Petition for Writ of Certiorari — William Todd Lewallen, Petitioner v. Scott Crow

Supreme Court briefMar 17, 2023

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Appendix B

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UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF OKLAHOMA

WILLIAM TODD LEWALLEN,

Petitioner,

SCOTT CROW,1

Respondent.

)

Case No. 18-CV-0414-CVE-CDL

OPINION AND ORDER

Petitioner William Todd Lewallen, a state inmate appearing pro se,2 claims that he is in

custody, under the sentence imposed against him in the District Court of Tulsa County, Case No. CF2012-5174, in violation of the United States Constitution. Lewallen contends that the sentence,

imposed after the Oklahoma Court of Criminal Appeals (“OCCA”) vacated his original sentence and

remanded the case for resentencing, is unconstitutional because the trial court deprived Lewallen of

his right to testify at the new sentencing proceeding. Having considered Lewallen’s 28 U.S.C.

§ 2254 petition for writ of habeas corpus (Dkt. # 1), respondent Scott Crow’s response (Dkt. # 10)

in opposition to the petition, the state-court record (Dkt. ## 10, 11, 12, 13), and applicable law, the

Court concludes that the petition shall be conditionally granted.

Pursuant to FED. R. CIV. P. 25(d), the Court substitutes Scott Crow, Director of the Oklahoma

Department of Corrections (“ODOC”), in place of Joe Allbaugh, the ODOC’s former

director, as party respondent. The Clerk of Court shall note this substitution on the record.

Because Lewallen appears pro se, the Court liberally construes his petition. Hall v. Bellmon,

935 F.2d 1106, 1110 (10th Cir. 1991).

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BACKGROUND

Original trial and first appeal

In November 2012, the State of Oklahoma (“the state”) filed a felony information, in the

District Court of Tulsa County, Case No. CF-2012-5174, charging Lewallen with one count of child

neglect, in violation of OKLA. STAT. tit. 21, § 843.5(C), after former conviction of two or more

felonies. Dkt. # 11-5, O.R. vol. 1, at 33-36 [28-31].3 In an amended information filed in June 2014,

the state alleged that on November 11, 2012, Lewallen “willfully or maliciously fail[ed] to provide

proper supervision and/or a safe and/or sanitary environment” for his three children, C.L., J.L., and

W.L., all of whom were under the age of four years old, “by taking a combination of oxycontin,

flexaril and dilantin and by drinking alcohol during the time” he was caring for the children at his

home “and as a result W.L was naked and unsupervised outside, C.L. was locked and unsupervised

in a dog cage, and J.L. was naked and unsupervised, and the residence was unsanitary with [the

children exposed to] feces, dirty diapers, and spoiled food.” Dkt. # 11-6, O.R. vol. 2, at 11 [207].4

The state further alleged that, at the time of the charged offense, Lewallen had previously been

convicted of seven felonies. Dkt. # 11-6, O.R. vol. 2, at 13-14 [209-10].

The Court’s citations generally refer to the CM/ECF header pagination. The Court refers to

the original record as “O.R. vol. _, at _,” and refers to trial transcripts as “Tr. Trial vol. _, at

_.” For citations to the original record and transcripts of court proceedings, the Court cites

to the CM/ECF header page number and, if that page number differs from the original page

number, also provides the original page number in brackets.

The state also charged Lewallen’s wife (now, ex-wife), Erin Lewallen, with felony child

neglect, alleging that she failed to provide supervision or a safe environment for her children

by leaving them with Lewallen. Dkt. # 11-5, O.R. vol. 1, at 33-36 [28-31]. Erin pleaded

guilty in 2013, before Lewallen’s original trial, and received a deferred sentence. Dkt. # 115, O.R. vol. 1, at 162-66 [157-61].

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Following a trial in November 2014, the jury found Lewallen guilty as charged and

recommended a sentence of 23 years’ imprisonment. Dkt. # 11-6, O.R. vol. 2, at 27-28 [223-24].

The trial court sentenced Lewallen accordingly, and Lewallen filed an appeal. Dkt. # 10-2, Judgment

and Sentence (Dec. 8, 2014), at 1; Dkt. # 10-3, Lewallen v. State, No. F-2014-1063, 2016 OK CR

4 (Okla. Crim. App. 2016) (“OCCA 2016 Op.”), at 1. In a published opinion filed March 11, 2016,

the OCCA affirmed Lewallen’s conviction but vacated his sentence because the trial court

erroneously instructed the jury on the range of punishment5 during the sentencing phase of

Lewallen’s bifurcated trial,6 and remanded the case to the District Court of Tulsa County for

resentencing. Dkt. # 10-3, OCCA 2016 Op., at 2.

II.

Motion to present new evidence

Following the remand, Lewallen timely requested a new sentencing jury, and the trial court

scheduled a new sentencing proceeding for February 6, 2017.7 Dkt. # 11-6, O.R. vol. 2, at 143 [339].

On January 3, 2017, Lewallen filed a “notice of intent to present evidence,” advising the trial court

At the time relevant to Lewallen’s offense, a person convicted of child neglect could be

sentenced to a prison term not exceeding life. OKLA. STAT. tit. 21, § 843.5(C). The OCCA

explained that, under Oklahoma’s recidivist statute, OKLA. STAT. tit. 21, § 51.1, Lewallen’s

range of punishment was four years to life imprisonment because he had two or more prior

felony convictions, but the jury was incorrectly instructed that the range was 20 years to life

imprisonment. Dkt. # 10-3, OCCA 2016 Op., at 2-5.

Oklahoma law provides for a bifurcated jury trial in a noncapital case when the state, as it

did in Lewallen’s case, alleges that the defendant committed an offense after former

conviction of one or more felonies. OKLA. STAT. tit. 22, § 860.1.

Under Oklahoma law, “[w]hen a criminal case is remanded for vacation of a sentence, the

court may: 1. Set the case for a nonjury sentencing proceeding; or 2. If the defendant or the

prosecutor so requests in writing, impanel a new sentencing jury.” OKLA. STAT. tit. 22,

§ 929(B). “If a written request is filed within twenty (20) days of the date of the appellate

court order, the trial court shall impanel a new jury for the purpose of conducting a new

sentencing proceeding.” OKLA. STAT. tit. 22, § 929(C).

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that he intended to testify and to present other witnesses at the new sentencing proceeding and that

he anticipated that the state would object to the presentation of any evidence that was not admitted

at the original trial. Dkt. # 11-6, O.R. vol. 2, at 143 [339]. The trial court construed Lewallen’s

notice as a motion and held a hearing on January 20, 2017. Dkt. # 11-1, Tr. Mot. Hr’g, at 1-3. At

the conclusion of the hearing, the trial court took the matter under advisement. Dkt. # 11-1, Tr. Mot.

Hr’g, at 15-18. The trial court denied Lewallen’s motion on February 2, 2017, ruling that only the

witnesses who testified at the original trial and the exhibits admitted at the original trial would be

permitted at the new sentencing proceeding. Dkt. # 11-5, O.R. vol. 1, at 29-30 [25-26].8

III.

New sentencing proceeding

Lewallen’s new sentencing proceeding commenced on February 7, 2017, and concluded on

February 9, 2017. Dkt. # 11-2, Tr. Trial vol. 1, at 1; Dkt. 11-4, Tr. Trial vol. 3, at 66 [555]. The

prosecutor called five witnesses and presented several exhibits.9 Dkt. # 11-2, Tr. Trial vol. 1, at 3.

Lewallen presented one exhibit: a DVD depicting a videotaped forensic interview of his then three-

The trial court’s ruling on the motion to present evidence is reflected in an entry on the state

court’s docket sheet, and the entry indicates that the ruling may have been delivered from the

bench during a hearing held on February 2, 2017. Dkt. # 11-5, O.R. vol. 1, at 29-30 [25-26].

But there is no indication in the state court record that a transcript of that hearing was either

prepared or presented to the OCCA when Lewallen filed his second appeal. Dkt. # 11-7,

O.R. vol. 3, at 48-58 [440-450], 62 [454]. The Court therefore relies on the description of

the ruling that is provided in the docket entry to explain that ruling here.

Crow did not provide this Court with transcripts of the original trial. However, given the

trial court’s pretrial ruling regarding evidence that would be admitted at the new sentencing

proceeding, the Court finds it reasonable to infer that the state recalled some or all witnesses

who testified at the original trial and presented exhibits that were properly admitted at the

original trial.

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year-old son, W.L. Dkt. # 11-2, Tr. Trial vol. 1, at 4; Dkt. # 11-3, Tr. Trial vol. 2, at 213-14 [46465].10

The state’s evidence

The following facts were presented to the jury at the new sentencing proceeding through the

state’s evidence. On November 11, 2012, Lewallen’s wife, Erin, went to work around 9:30 or 10:00

a.m., leaving Lewallen to care for their three children, W.L., J.L., and C.L., all of whom were under

the age of four. Dkt. # 11-3, Tr. Trial vol. 2, at 140-41 [391-92], 155 [406]. Lewallen injured his

back a few days earlier and had returned home from the hospital on November 10, 2012, against

medical advice, because the Lewallens could not afford a babysitter. Dkt. # 11-3, Tr. Trial vol. 2,

at 143-44 [394-95], 155 [406]. Around 3:30 p.m., on November 11, 2012, Lewallen was cleaning

the house when his back began hurting. Dkt. # 11-3, Tr. Trial vol. 2, at 152-53 [403-04]. Lewallen

took one Oxycontin, as prescribed for pain, drank some or all of one beer and some soda, and laid

down for a nap. Dkt. # 11-3, Tr. Trial vol. 2, at 160-61 [411-12]. Earlier, throughout that same day,

Lewallen had taken three Oxycontin, two Flexeril (a muscle relaxant), and one Dilantin (an antiseizure medication), all of which had been prescribed to him to treat his back injury or to treat preexisting medical conditions. Dkt. # 11-3, Tr. Trial vol. 2, at 151-52 [402-03], 160-61 [411-12].

When Lewallen laid down for a nap, all three children were in the bedroom with Lewallen, and J.L.

and C.L. were asleep. Dkt. # 11-3, Tr. Trial vol. 2, at 153 [404].

Just “before sundown,” maybe between 4:00 and 5:00 p.m., a neighbor of the Lewallens,

Matthew Testerman, stepped out of the back door of his house and heard “a young child yelling for

The parties stipulated to the admission of the forensic interview both at the original trial and

at the new sentencing proceeding. Dkt. # 11-3, Tr. Trial vol. 2, at 213-14 [464-65]; Dkt. #

11-6, O.R. vol. 2, at 153 [349].

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his daddy.” Dkt. # 11-3, Tr. Trial vol. 2, at 31-33 [282-84], 37 [288]. It was cold outside, possibly

around 45 degrees. Dkt. # 11-3, Tr. Trial vol. 2, at 33 [284], 73 [324]. Testerman walked to his

back fence but his view was obstructed so he jumped over the fence, into an alley behind his house.

Dkt. # 11-3, Tr. Trial vol. 2, at 34 [285]. In the Lewallens’s back yard, Testerman saw a young boy,

maybe 3 or 4 years old, who was “stark naked” and “freaking out.” Dkt. # 11-3, Tr. Trial vol. 2, at

35-36 [285-86]. The boy, later identified as W.L., was running back and forth between a back door

and a side door, trying to get inside. Dkt. # 11-3, Tr. Trial vol. 2, at 35-36 [286-87]. Through the

window of the Lewallens’s house, Testerman saw a young girl, later identified as W.L.’s sister, C.L.

Dkt. # 11-3, Tr. Trial vol. 2, at 35-36 [286-87], 62-63 [313-14]. Testerman saw C.L. running back

and forth inside and heard her “screaming for her brother.” Dkt. # 11-3, Tr. Trial vol. 2, at 35-36

[286-87], 62-63 [313-14]. Testerman also saw a dog inside the house with C.L.; he thought the dog

might be a golden retriever. Dkt. # 11-3, Tr. Trial vol. 2, at 39 [290], 64-65 [315-16]. Testerman

encouraged W.L. to walk to the gate on Testerman’s fence and told W.L. that he could help him.

Dkt. # 11-3, Tr. Trial vol. 2, at 38 [289]. According to Testerman, W.L. appeared “scared” and

“cold.” Dkt. # 11-3, Tr. Trial vol. 2, at 35 [286]. Testerman, who described W.L.’s lips as “dark

purple,” wrapped his jacket around W.L. and carried W.L. inside the Testerman’s house to get warm.

Dkt. # 11-3, Tr. Trial vol. 2, at 37-39 [288-90]. Testerman’s wife clothed W.L. and gave him warm

milk while Testerman called the police. Dkt. # 11-3, Tr. Trial vol. 2, at 38-39 [289-90]. While he

waited for law enforcement officers to arrive, Testerman returned to his back fence and yelled toward

the Lewallens’s house in an attempt to make contact with a parent. Dkt. # 11-3, Tr. Trial vol. 2, at

38-39 [289-90]. At that time, Testerman realized he did not see C.L. running around any more and

that concerned him. Dkt. # 11-3, Tr. Trial vol. 2, at 39 [290].

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Approximately 25 minutes later, two law enforcement officers, Officer Daniel Embrey and

Captain Karen Tipler arrived at the Lewallens’s house. Dkt. # 11-3, Tr. Trial vol. 3, at 40-42 [29193], 71 [322], 97 [348]. The officers began knocking “loudly” on the front door of the house, but

no one answered. Dkt. # 11-3, Tr. Trial vol. 2, at 42 [293], 74-76 [325-27], 101-02 [352-53].

Testerman told Officer Embrey that there was at least one other child in the house and, at some point,

Captain Tipler saw, through a window, that C.L. was sitting inside a dog cage. Dkt. # 11-3, Tr. Trial

vol. 2, at 42-43 [293-94], 49 [300], 76-77 [327-28], 102 [353]. Captain Tipler testified that she

“couldn’t believe what [she] was seeing” and that she immediately thought that C.L. “must be

trapped in there.” Dkt. # 11-3, Tr. Trial vol. 2, at 102 [353]. With Testerman’s help, the officers

kicked in the back door and entered the Lewallens’s house. Dkt. # 11-3, Tr. Trial vol. 2, at 43-44

[294-95], 77-78 [328-29], 103-04 [354-55].

Officer Embrey removed C.L. from the dog cage. Dkt. # 11-3, Tr. Trial vol. 2, at 82 [333].

According to the officers, the cage was “locked” or latched, C.L. was wearing a wet, dirty diaper that

appeared to have been unchanged for some time, C.L. was “filthy,” and C.L. smelled “awful.” Dkt.

# 11-3, Tr. Trial vol. 2, at 81-82 [332-33], 104-06 [355-57], 120-21 [371]. Captain Tipler changed

C.L.’s diaper, while Testerman and Officer Embrey continued walking through the home looking

for an adult. Dkt. # 11-3, Tr. Trial vol. 2, at 106-07 [357-58]. Testerman described the house as

“messy,” “disgusting,” and “nasty” with a “stench [that] was unreal.” Dkt. # 11-3, Tr. Trial vol. 2,

at 58 [309]. On the floor of the house, Testerman and the officers saw dirty diapers, a cereal bowl,

and a rotten pork chop, and they saw “dog feces throughout the house.” Dkt. # 11-3, Tr. Trial vol.

2, at 51-52 [302-03], 65-67 [316-18], 83 [334], 107 [358]. According to Testerman, C.L. “was

covered in feces” which he described as “[h]er own and the dog’s.” Dkt. # 11-3, Tr. Trial vol. 2, at

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46 [297]. Officer Embrey testified he also saw “feces smeared all over” C.L. and “smeared on the

walls in the back room.” Dkt. # 11-3, Tr. Trial vol. 2, at 81 [332], 83 [334]. Captain Tipler, who

changed C.L.’s diaper, testified that she saw feces on C.L. only on the area of C.L.’s body that was

covered by her dirty diaper. Dkt. # 11-3, Tr. Trial vol. 2, at 106-07 [357-58]. Officer Embrey found

a third child, later identified as J.L., naked and sleeping uncovered on the bed with Lewallen, who

was sleeping underneath a comforter or blanket. Dkt. # 11-3, Tr. Trial vol. 3, at 52-53 [303-04], 8486 [335-37], 108 [359], 123 [374]. Captain Tipler placed a clean diaper on J.L., and J.L. continued

sleeping. Dkt. # 11-3, Tr. Trial vol. 2, at 109 [360].

When the officers were “finally” able to rouse Lewallen from his nap, he appeared

“confused” and “groggy.” Dkt. # 11-3, Tr. Trial vol. 2, at 68 [319], 87 [338], 109-10 [360-61], 11718 [368-69]. Captain Tipler got the impression that Lewallen “didn’t know what was going on.”

Dkt. # 11-3, Tr. Trial vol. 2, at 127 [378]. The officers placed the Lewallen children in protective

custody and placed Lewallen under arrest. Dkt. # 11-3, Tr. Trial vol. 2, at 68 [319], 88 [339].

Detective Mark Hodges interviewed Lewallen around 9:30 p.m. on the day of his arrest. Dkt.

# 11-3, Tr. Trial vol. 2, at 129 [380], 135-36 [386-87], 140 [391]. According to Detective Hodges,

Lewallen did not appear to be under the influence of drugs or alcohol at the time of the interview.

Dkt. # 11-3, Tr. Trial vol. 2, at 138 [389]. Lewallen told Hodges that he had been awake since 4:30

a.m. that day, told him about the prescription medications he had taken throughout the day, and told

him that he drank part of one beer and some soda around the same time he took his fourth

Oxycontin, just before he laid down to nap with the children around 4:00 p.m. Dkt. # 11-3, Tr. Trial

vol. 2, at 141-42 [392-93], 145-47 [396-98], 151-53 [402-04]. Lewallen told Hodges that the next

thing he remembered was being awakened by law enforcement officers and being told that one of

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his children had been found outside naked and one had been found locked in a dog crate. Dkt. # 113, Tr. Trial vol. 2, at 142 [393], 148-49 [399-400]. Lewallen told Hodges he did not know anything

about how the children came to be in those situations, and Hodges believed him. Dkt. # 11-3, Tr.

Trial vol. 2, at 142-43 [393-94], 155 [406], 157 [408]. Lewallen told Hodges that he and his family

recently moved into the house, that they had not had the dog or the dog crate for very long, that he

had previously told the children not to play in the crate, and that J.L. and C.L. were both sleeping

when he laid down for a nap. Dkt. # 11-3, Tr. Trial vol. 2, at 142-44 [393-95], 153 [404], 157 [408].

Lewallen also told Hodges about his recent back injury and that he had left the hospital early to care

for the children. Dkt. # 11-3, Tr. Trial vol. 2, at 143-44 [394-95].

Dr. Sarah Passmore testified that she reviewed photographs of the Lewallens’s home that

were taken by the officers who placed the Lewallen children in state custody, that she obtained

background information about the case from a social worker, and that she physically examined the

Lewallen children. Dkt. # 11-3, Tr. Trial vol. 2, at 161 [412], 167-69 [418-20]. Dr. Passmore found

that all three children were healthy and she found no evidence of malnutrition or injuries. Dkt. # 113, Tr. Trial vol. 2, at 169-74 [420-25], 178-86 [429-37] 192-96 [443-47]. Dr. Passmore testified that

she diagnosed all three with “child neglect,” because they were found unsupervised and “without an

appropriate caregiver” on November 11, 2012. Dkt. # 11-3, Tr. Trial vol. 2, at 161 [412], 167-74

[418-25], 178-86 [429-37] 192-96 [443-47]. Dr. Passmore explained that a medical diagnosis of

“child neglect,” in broad terms, means that the child’s needs are not being met. Dkt. # 11-3, Tr. Trial

vol. 2, at 175 [426]. Dr. Passmore also diagnosed C.L., who was then 22 months old, with a speech

delay, opining that “[i]t would be very uncommon for [C.L.] to not speak at that age.” Dkt. # 11-3,

Tr. Trial vol. 2, at 193 [444]. Dr. Passmore further opined that a person under the influence of pain

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medication and alcohol to the point of unconsciousness should not be supervising three children

under the age of four. Dkt. # 11-3, Tr. Trial vol. 2, at 174 [425], 197 [448].

After presenting this evidence, the state introduced documentary evidence establishing that

Lewallen had seven prior felony convictions. Dkt. # 11-3, Tr. Trial vol. 2, at 209-12 [460-63]. That

evidence showed that Lewallen previously had been convicted of grand larceny (two counts) and

escape from a penal institution (two counts) for offenses committed between 1989 and 1993,

convicted of possession of a stolen vehicle and second degree burglary for offenses committed in

2003, and convicted of possession of a precursor that could be used to manufacture a controlled

substance for an offense committed in 2011. Dkt. # 11-4, Tr. Trial vol. 3, at 13-15 [502-04].

Lewallen’s evidence

On behalf of the defense, Lewallen’s counsel offered, and the trial court admitted, the DVD

depicting W.L.’s videotaped forensic interview. Dkt. # 11-3, Tr. Trial vol. 2, at 213-14 [464-65].

W.L. told the forensic interviewer that he felt safe with his parents, that he talked to police that time

he was naked outside when his mother was at work and his father was sleeping, that his brother J.L.

locked him out of the house, and that his sister C.L. liked to be in the dog cage and that “someone

didn’t put her there.” Dkt. # 13 (Defendant’s Exhibit 1).

Lewallen’s offer of proof and the trial court’s ruling

Following the playing of the videotaped forensic interview, the trial court excused the jury

so that Lewallen’s counsel could make an offer of proof regarding Lewallen’s request to present

evidence that was not presented at the original trial. Dkt. # 11-3, Tr. Trial vol. 2, at 215-17.

Lewallen’s counsel stated that, if permitted, he would call two witnesses: Lewallen and Lewallen’s

ex-wife, Erin. Dkt. # 11-3, Tr. Trial vol. 2, at 218 [469], 225 [476]. Before Lewallen’s counsel

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offered the proposed testimony of these two witnesses, the trial court summarized its pretrial ruling

on Lewallen’s request to present new evidence. The trial court noted that the language of OKLA.

STAT. tit. 22, § 929(C)(1),11 permits the admission of “additional relevant evidence” at a new

sentencing proceeding and further noted that, under Roy v. State, No. F-2007-1060 (Okla. Crim.

App. June 22, 2009) (“Roy II”) (unpublished),12 and Malone v. State, 58 P.3d 208 (Okla. Crim. App.

2002), “the [d]efense may not present mitigation evidence in a non-capitol [sic] case.” Dkt. # 11-3,

Tr. Trial vol. 2, at 218-19 [469-70]. The trial court also noted that neither Lewallen nor Erin testified

at the original trial. Dkt. # 11-3, Tr. Trial vol. 2, at 218 [469], 225 [476].

Lewallen’s counsel proffered that Erin would testify about the Lewallens’s financial

difficulties and their move to a new house shortly before Lewallen’s arrest; about Lewallen’s medical

conditions, including his then-recent back injury, and his use of prescription medications both before

and on the day of his arrest; about her opinion that Lewallen was an alcoholic but not a drug addict;

about how the conditions in the home at the time of Lewallen’s arrest resulted from the family’s

recent move, Erin’s lack of time and energy to clean while Lewallen was in the hospital, and

Lewallen’s inability to clean following his release from the hospital; and about her discovery that

some of the alleged “feces” smears the law enforcement officers reported finding in the house were

actually peanut butter smears. Dkt. # 11-3, Tr. Trial vol. 2, at 219-24 [470-75]. The trial court ruled

OKLA. STAT. tit. 22, § 929(C)(1) provides: “All exhibits and a transcript of all testimony and

other evidence properly admitted in the prior trial and sentencing shall be admissible in the

new sentencing proceeding. Additional relevant evidence may be admitted including

testimony of witnesses who testified at the previous trial.”

Crow submitted a copy of the unpublished Roy II decision as part of the appellate brief

Lewallen filed in the OCCA. See Dkt. # 10-4, Appellant’s Br., at 17-35. The Court will

therefore cite to the Roy II decision as follows, Dkt. # 10-4, Roy II, at ___, using the

CM/ECF pagination.

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that “a large portion” of Erin’s proffered testimony “bears directly on guilt or innocence and that has

already been determined,” and that “the bulk of the remainder [w]as mitigation evidence with regard

to the punishment phase.” Dkt. # 11-3, Tr. Trial vol. 2, at 224 [475]. The trial court therefore

affirmed its prior ruling excluding Erin’s proffered testimony.

Next, Lewallen’s counsel proffered that, if permitted, Lewallen would testify as follows:

[Lewallen] would state that he’s 52 years old. And in 2012 he had three young

children with his then wife, Erin. He hasn’t seen his children since November 11th,

2012, the night of his arrest. He has since surrendered his parental rights.

Mr. Lewallen suffers from COPD, or Chronic Obstructive Pulmonary

Disease, which is a terminal illness. Primarily this means he has trouble breathing.

Sometimes he has to rest and he cannot catch his breath and he has to use oxygen at

times.

He’s had trouble breathing since his time as a roughneck when he received

what he calls caustic burns that left him partially disabled. He also suffers from

hypothyroidism, emphysema, and back problems.

When he was on his feet at the time in November of 2012, he would use a

back brace. Sometimes he would even use a walker. He’s had these issues -- or he

had these issues in November of 2012. This adversely affected the length of time

that he would perform labor as well as his ability to lift anything heavy. William

Lewallen was unable to work.

He would testify substantially in accordance with [Erin’s] testimony with

regard to how they acquired the house, what happened when they moved into the

house.13

He would testify that about three days into the time that they lived in the

house, this would have been November 8th, 2012, he tripped over the family dog and

injured his back. He could barely move. And Erin took him to St. Francis Hospital

where he was admitted.

During his stay he was diagnosed with a lumbar spine injury, but the injury

did not require immediate surgical intervention, and Mr. Lewallen was released

during the early afternoon on Saturday November 10th, 2012.

He does recall that the house wasn’t in very good shape at the time. In

particular, he remembers the diapers overflowing the waste can in the bathroom.

Erin would have testified that her mother had recently purchased a house and had agreed to

let the Lewallens rent the house “with the understanding that they would fix the place up.”

Dkt. # 11-3, Tr. Trial vol. 2, at 219-20 [470-71]. She would have further testified that she

and Lewallen, along with the three children, moved into the house about a week before

Lewallen’s arrest. Dkt. # 11-3, Tr. Trial vol. 2, at 220 [471].

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Erin had been on her own for three days while William was in the hospital, and at the

time he simply didn’t feel up to cleaning the house.

Mr. Lewallen would testify that while he believed he was able to take care of

the kids at the time, he truly was not in any shape to do so.

He had a prescription for pain [medication] that he had never used before.

It was actually called Oxycodone and the thought that it would help. He was on a

number of other prescriptions at the time relating to his breathing troubles and took

a nebulizer treatment three times a day to help his breathing.

He took Dilantin for seizures, Neurontin, used Ativan inhalers, and used

oxygen when necessary to help him breathe.

Mr. Lewallen remembers going to bed early on Saturday night because he

didn’t feel well. He started taking the Oxycodone as prescribed, which was one

tablet every four hours. He woke up early in the morning on November 11th. Erin

made cereal and William Lewallen cleaned up the dishes.

He thinks he might have taken one of the bowls of cereal that still had milk

in it and put it on the floor for the dog, which was still there when the police arrived

later that day.

Erin went to work in the morning. She was working at Wal-Mart at the time.

William remembers her telling him that, I’m counting on you today. She knew that

he didn’t feel well.

William took a pain pill after he woke up that morning and also took a

Dilantin. William Lewallen remembers reading to [J.L.] for a while. He liked

reading Thomas the Tank Engine. The other children played with their toys.

He did change diapers that day. He changed more than one in the morning

and put the dirty diapers in a box in the kitchen. He did not just throw them on the

floor.

William Lewallen doesn’t remember an unusually bad smell in the house,

although he was aware that there was some standing water under the house.

When they were moving in, the Lewallens contacted a pest control company

to check out for bugs or other pests. There were not any.

The man who did the check told Mr. Lewallen that there was standing water

under the house and it was probably the result of a sewage backup or pipe issue.

William Lewallen had not had the time or the money to get to it.

Also the furnace was broken and the family had to rely on space heaters.

There was no air circulation in the house and that made it stuffy.

Around lunchtime William Lewallen took another pain pill, fed the children

lunch, which included a peanut butter sandwich. Played with the children.

He noticed that in [W.L.’s] bedroom the tack strip was exposed and he tried

to cover it up with some carpet that had been laid in the house that week.

He quickly became tired and everyone laid down to watch some television.

All three kids had clothing on at the time and William Lewallen checked their diapers

during this period. He did take another pain pill as prescribed and drank a small

portion of a beer. He fell asleep and he thought the kids did as well.

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He woke up to find the police in his house. He was very confused. He had

never used Oxycodone before, although he had taken other pain pills in the past such

as Lortab. This had never happened before and he thinks that there might have been

a stronger effect from the drug. He estimates that he had been asleep for several

hours.

Mr. Lewallen denies locking his daughter up in a dog cage. They had just

gotten the cage and the dog. It was new to the kids [and] they tried to play in the

cage all the time. They were not permitted to do so.

The two older children knew how to unlock doors and William, alone,

believes that either [J.L.] locked [W.L.] out or [W.L.] locked himself out. William

Lewallen was negligent in the care, but he did not deliberately lock his son out of the

house or lock his daughter up in a cage.

Dkt. # 11-3, Tr. Trial vol. 2, 225-30 [476-81] (footnote and alterations added).

After hearing Lewallen’s proposed testimony, the trial court again acknowledged that OKLA.

STAT. tit. 22, § 929(C)(1) “provides that additional relevant evidence may be admitted” at a new

sentencing proceeding and asked trial counsel to explain how Lewallen’s testimony was relevant.

Dkt. # 11-3, Tr. Trial vol. 2, at 230 [481]. The following colloquy then occurred between the trial

court and counsel:

[Counsel]: Your Honor, under the Malone decision -- I remember Malone well. I

was involved in the appeal. The underpinnings of Malone were, as the Court has

pointed out, that the Defense wanted to offer mitigation.

I believe that Malone was somewhat of a compromise. There were, as I

recall, some -- I think there was maybe an absolute dissent, some concurring in the

result opinions, where essentially I think they adopted the position of Judge Lumpkin.

Judge Lumpkin stated that, while simple mitigation and simple aggravation

would not be admissible, that in the telling of their story and presenting a defense, as

the State presents its case in chief, certainly [s]ome aggravation and mitigation would

work its way in. And that way -[The Court]: Because a lot of what I heard goes to guilt or innocence.

[Counsel]: Correct. Correct. As did the State’s case in chief. There is a certain

difficulty, if you will, with the system that we have in Oklahoma with jury sentencing

because of what we had to do in this case. The State had to present its case again, the

State did present its case again, and incorporated within that case was both evidence

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relating to guilt and innocence which arguably wouldn’t have been admissible

logically because the jury had already determined that.

[The Court]: Under both Roy [II] and Malone that’s permitted. Correct?

[Counsel]: Right. It’s the only way to do it.

[The Court]: Right.

[Counsel]: By denying the defendant the right to present anything, I believe that he

has been denied his right to a fair sentencing proceeding.

[The Court]: Well, he presented some evidence to the jury. He hasn’t been flat out

denied the opportunity to present anything -[Counsel]: Correct.

[The Court]: -- as you say.

[Counsel]: He most certainly was denied the opportunity to testify in his own

defense, at the very least.

[The Court]: Yes.

[Counsel]: So in response to your question as to relevance, I believe that, yes, there

is some discussion with regard to guilt or innocence. But implicit in that is evidence

which would allow the jury to weigh the strength of the State’s case.

[The Court]: Mitigation.

[Counsel]: When I briefed this issue, the case law didn’t necessarily define it as that.

They just simply said that when determining a sentence without hearing specifically

mitigating or aggravating evidence in determining an appropriate sentence, they

would weigh the strength of the State’s case. Which is something that they have to

do whether the defendant presents any evidence or not.

Unfortunately, when the defendant does not present any evidence, I think that

sort of tilts the scales against him.

[The Court]: But he did present some evidence today. You’re saying any. But he

did, in fact, present evidence to the jury today.

[Counsel]: He did by stipulation.

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And I think the reason for that was because this court was -- it was important

for this court to not go beyond the parameters of the original trial. And that was

certainly what the -- what the State wanted to do. And in presenting Defendant’s

Exhibit 1, we were falling within those parameters.

[The Court]: And the statute provides that I may admit additional relevant evidence.

And I found no additional relevant evidence -[Counsel]: I understand.

[The Court]: -- and used my discretion in that manner.

Dkt. # 11-3, Tr. Trial vol. 2, at 231-34 [482-85]. Following this colloquy, the trial court asked the

prosecutor for a response, and the prosecutor maintained his position “that this new information or

new evidence is barred, in the State’s mind, based on [OKLA. STAT. tit. 22, § 929] . . . [a]nd also

under the Roy [II] decision.” Dkt. # 11-3, Tr. Trial vol. 2, at 234 [485]. Because the trial court

excluded Lewallen’s proffered testimony, Lewallen did not testify at the new sentencing proceeding.

The jury’s verdict

During closing arguments, the prosecutor argued that the state’s evidence regarding the

circumstances of the offense combined with Lewallen’s criminal history justified a sentence of 25

years’ imprisonment. Dkt. # 11-4, Tr. Trial vol. 3, at 21-31 [516-19], 48-49 [537-38]. Defense

counsel argued that the circumstances of this case were less severe than many cases involving child

neglect and urged the jury to impose a prison term of less than 10 years. Dkt. # 11-4, Tr. Trial vol.

3, 45-46 [534-35]. Following deliberations, the jury returned a verdict finding Lewallen “guilty of

the crime of child neglect after two or more previous convictions and affix[ed] punishment at 14

years.” Dkt. # 11-4, Tr. Trial vol. 3, at 57 [546]. Lewallen waived his statutory right to delay his

sentencing, and the trial court sentenced Lewallen to 14 years’ imprisonment, with credit for all time

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served and earned, to be followed by a one-year term of post-imprisonment supervision. Dkt. # 11-4,

Tr. Trial vol. 3, at 59-60 [548-49]; Dkt. # 11-7, O.R. vol. 3, at 36.

IV.

Second appeal

Represented by appellate counsel, Lewallen filed an appeal in the OCCA to challenge his

new sentence. Lewallen claimed that “[t]he trial court erred when it denied [Lewallen] the right to

testify in his defense at the resentencing trial.” Dkt. # 10-4, Appellant’s Br., at 13.14 He argued that

the trial court violated his constitutional right to testify, as that right is interpreted in Rock v.

Arkansas, 483 U.S. 44 (1987), by excluding his proffered testimony as “not relevant,” and further

argued that the error was “structural” and thus required automatic reversal for a new sentencing

proceeding. Dkt. # 10-4, Appellant’s Br., at 12-16.

In an unpublished opinion filed May 24, 2018, the OCCA affirmed Lewallen’s sentence.

Dkt. # 10-7, Lewallen v. State, No. F-2017-189 (Okla. Crim. App. 2018) (“OCCA 2018 Op.”), at

2, 7. The OCCA first rejected Lewallen’s argument that the alleged denial of his right to testify

would be a structural error, reasoning that the United States Supreme Court (“Supreme Court”) has

not held that the denial of a defendant’s right to testify is one of the few constitutional errors that

infects the entire criminal proceeding and thus requires reversal without a showing of prejudice.

Dkt. # 10-7, OCCA 2018 Op., at 2-3 & n.2. The OCCA then rejected Lewallen’s argument that the

trial court violated his right to testify by excluding his proffered testimony. Applying Rock, the

OCCA acknowledged that Lewallen had a fundamental, but not absolute, right to testify. Dkt. # 107, OCCA 2018 Op., at 3-4. The OCCA recognized that “[i]n applying its evidentiary rules a State

Lewallen did not challenge the trial court’s exclusion of Erin’s proffered testimony when he

appealed his new sentence. Dkt. # 10-4, Appellant’s Br., at 12-16. Nor does he attempt to

do so in this habeas proceeding. Dkt. # 1, Pet., at 4-7.

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must evaluate whether the interests served by a rule justify the limitation imposed on the defendant’s

constitutional right to testify.” Dkt. # 10-7, OCCA 2018 Op., at 5 (quoting Rock, 483 U.S. at 56).

The OCCA then stated,

This Court has cautioned that ‘resentencing proceedings should not be viewed

as a second chance at revisiting the issue of guilt.” Rojem v. State, 2006 OK CR 7,

¶ 56, 130 P.3d 287, 299. Resentencing proceedings are unique; the original jurors

who heard evidence relating to guilt/innocence are gone and have been replaced with

jurors who are not familiar with that evidence. Rojem, 2006 OK CR 7, ¶ 53, 130

P.3d at 298. The resentencing jurors are told that the defendant has already been

found guilty and they are only asked to assess punishment. While this Court has

specifically held that a defendant has no right to present mitigating evidence in the

sentencing phase of a non-capital case, see Malone v. State, 2002 OK CR 34, ¶¶ 5-7,

58 P.3d 208, 209-10, we do not ask the jurors to assess punishment without the

benefit of knowing the acts they are punishing. See Rojem, 2006 OK CR 7, ¶ 55,

130 P.3d at 299 (jurors in a resentencing proceeding will always be able to consider

the weight of the evidence in deciding punishment). Accordingly, relevant evidence

properly admitted in the prior trial is admissible in the resentencing trial. Title 22

O.S. 2011, § 929(C)(1) specifically addresses the introduction of evidence in a noncapital case remanded for a new sentencing proceeding before a jury providing [sic]

and states:

All exhibits and a transcript of all testimony and other evidence

properly admitted in the prior trial and sentencing shall be admissible

in the new sentencing proceeding. Additional relevant evidence may

be admitted including testimony of witnesses who testified at the

previous trial.

The evidence of Lewallen’s medical condition and his consumption of

prescribed medication as well as its effect on his ability to clean his house and care

for his children was introduced in his original trial and was introduced through the

testimony of State’s witnesses at the resentencing trial. This evidence was relevant

to show Lewallen’s resentencing jury the facts upon which his conviction was based

and to allow them to make an informed decision regarding the assessment of his

sentence. The evidentiary restrictions relied upon by the trial court in its decision to

disallow Lewallen’s proffered testimony at the resentencing trial, however, were

neither arbitrary nor disproportionate to the purposes they were designed to serve.

Lewallen was not precluded from testifying at his resentencing trial because he had

not testified at the original trial. Rather, the trial court ruled against his request

because his proffered testimony went to guilt or innocence and its mitigation value

was not relevant to sentencing. The trial court denied Lewallen’s request based upon

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the most basic rule of admissibility, i.e., the rule of relevancy. 12 O.S. 2011, § 2402.

The trial court’s ruling did not deny Lewallen the right to present a defense; it

excluded the admission of irrelevant evidence. There was no structural error, no

constitutional error, and no abuse of discretion by the trial court in excluding this

evidence. Relief is not required.

Dkt. # 10-7, OCCA 2018 Op., at 5-7.

Petition for writ of habeas corpus

Proceeding pro se, Lewallen filed the instant petition for writ of habeas corpus on August 10,

2018. Dkt. # 1, Pet., at 1. Crow filed a response (Dkt. # 10), urging the Court to deny the petition,

and provided state court records (Dkt. ## 10, 11, 12, 13) necessary for this Court to adjudicate

Lewallen’s claim.

DISCUSSION

Lewallen seeks federal habeas relief on the same claim that he presented to the OCCA

through his second appeal. He contends that he “was denied his fundamental right to testify in his

own behalf during a jury sentencing trial in violation of the 5th, 6th, and 14th Amendments to the

United States Constitution” because the trial court excluded his proffered testimony as not relevant

to the new sentencing proceeding. Dkt. # 1, Pet., at 4-5. Lewallen further contends, as he did in

state court, that this constitutional error was a structural error that required automatic reversal. Dkt.

# 1, Pet., at 5-6.

Crow contends that Lewallen did not exhaust available state remedies as to a portion of his

claim, but Crow asserts that exhaustion is not necessary because that portion of the claim can be

denied on the merits. Dkt. # 10, Resp., at 2-3. As to those portions of the claim that Crow identifies

as properly exhausted, Crow contends that 28 U.S.C. § 2254(d) bars relief. Dkt. # 10, Resp., at 7-16.

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Alternatively, Crow contends that even if this Court finds that the alleged constitutional error

occurred, the petition should be denied because the error was harmless. Dkt. # 10, Resp., at 16-17.

Exhaustion and cognizability

Lewallen properly exhausted all portions of his constitutional claim.

Crow contends that Lewallen did not exhaust available state remedies as to that portion of

his claim challenging “the trial court’s determination that his proffered testimony was irrelevant.”

Dkt. # 10, Resp., at 2 & n.3. Crow acknowledges that “the OCCA expressed its agreement with the

trial court’s evidentiary ruling on relevance” when the OCCA found that the trial court “excluded

the admission of irrelevant evidence,” but Crow suggests that the OCCA only “implicitly found the

evidence irrelevant.” Dkt. # 10, Resp., at 2-3 nn. 3-4. Thus, in Crow’s view, Lewallen’s “argument

that his proffered testimony was relevant was not denied on the merits.” Dkt. # 10, Resp., at 3 n.4.

When a petitioner attacks the validity of a state-court judgment by filing a federal habeas

petition, the petitioner must show that he or she first exhausted available state remedies by fairly

presenting his or her federal claim or claims in state court utilizing the state’s established procedures

for appellate and postconviction review. 28 U.S.C. § 2254(b); O’Sullivan v. Boerckel, 526 U.S. 838,

842, 845 (1999).

This Court has carefully reviewed the trial court’s ruling, the OCCA’s decision, and the

appellate briefs that were filed in the OCCA and the Court finds no support for Crow’s position on

exhaustion. As previously discussed, the sole basis for the trial court’s exclusion of Lewallen’s

proffered testimony was the trial court’s determination that the proffered testimony was not relevant.

Lewallen squarely presented the relevancy issue to the OCCA when he argued that the trial court’s

ruling excluding his proffered testimony deprived him of his right to testify. And the OCCA

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explicitly addressed the relevancy issue when it determined that the trial court did not abuse its

discretion or violate the Constitution because the trial court’s ruling merely barred “the admission

of irrelevant evidence.” Dkt. # 10-7, OCCA 2018 Op., at 5-7. Thus, contrary to Crow’s argument,

Lewallen’s claim that he was denied his right to testify when the trial court excluded his proffered

testimony as not relevant to any issues presented at the new sentencing proceeding is fully exhausted.

Lewallen presents a federal claim that is cognizable on habeas review.

Crow further contends that, notwithstanding the alleged failure to exhaust available state

court remedies as to this portion of Lewallen’s claim, Lewallen’s challenge to the trial court’s

relevancy determination can be denied on the merits because it alleges only an error of state law

which is not cognizable on habeas review. Dkt. # 10, Resp., at 2-3, 13-16.

It is true that “[r]un-of-the-mill state law errors usually do not provide a basis for federal

habeas relief because a habeas petitioner may obtain relief only if a state court rendered a decision

‘in violation of the Constitution or laws or treaties of the United States.’” Fieldman v Brannon, 969

F.3d 792, 800 (7th Cir. 2020) (quoting 28 U.S.C. § 2254(a)); see also, Smallwood v. Gibson, 191

F.3d 1257, 1275 (10th Cir. 1999) (“Federal habeas review is not available to correct state law

evidentiary errors; rather it is limited to violations of constitutional rights.”).

But Crow’s argument on this point fails for the same reason as his partial-exhaustion

argument. As it was presented to the OCCA and as it is presented in this habeas proceeding,

Lewallen’s claim does not merely challenge the trial court’s relevancy determination as a violation

of state evidentiary rules. The trial court’s evidentiary ruling that excluded his proffered testimony

as not relevant to the new sentencing proceeding forms the foundation of Lewallen’s claim that he

was deprived him of his constitutional right to testify. And the OCCA addressed Lewallen’s claim

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as a federal constitutional claim when it applied Rock to reject it. Contrary to Crow’s position, this

is not one of those cases where a state prisoner challenges a trial court’s evidentiary ruling in state

court as a violation of state law and then attempts to convert the alleged state-law error into a

cognizable habeas claim by alleging a due process violation in his federal habeas petition. Rather,

Lewallen presented a federal claim in state court and he now presents that same federal claim in this

habeas proceeding by alleging that the trial court’s evidentiary ruling violated his constitutional right

to testify.

II.

Analysis

Section 2254(d) guides this Court’s review of the federal claim.

Because Lewallen presented his constitutional claim to the OCCA and the OCCA rejected

it on the merits, 28 U.S.C. § 2254(d) imposes preconditions to obtaining habeas relief. See Shinn

v. Kayer, 141 S. Ct. 517, 520 (2020) (“The Antiterrorism and Effective Death Penalty Act of 1996

(AEDPA) restricts the power of federal courts to grant writs of habeas corpus based on claims that

were ‘adjudicated on the merits’ by a state court.”). Under § 2254(d), a federal habeas court “shall

not” grant a petition for writ of habeas corpus filed by a person in custody pursuant to a state-court

judgment unless the petitioner first demonstrates that the state court’s adjudication of the federal

claim “(1) resulted in a decision that was contrary to, or involved an unreasonable application of,

clearly established Federal law, as determined by the Supreme Court of the United States; or

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(2) resulted in a decision that was based on an unreasonable determination of the facts in light of

the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d).15

Satisfying the preconditions imposed by § 2254(d) is no easy task. “When a state court has

applied clearly established federal law to reasonably determined facts in the process of adjudicating

a claim on the merits, a federal habeas court may not disturb the state court’s decision unless its error

lies ‘beyond any possibility for fairminded disagreement.’” Shinn, 141 S. Ct. at 520 (quoting

Harrington v. Richter, 562 U.S. 86, 103 (2011)). But, while § 2254(d) sets a high bar, it “stops short

of imposing a complete bar on federal-court relitigation of claims already rejected in state

proceedings.” Richter, 562 U.S. at 102; see also Miller-El v. Cockrell, 537 U.S. 322, 340 (2003)

(discussing the deference required by § 2254(d) when a state court has adjudicated the merits of a

federal claim and stating, “Even in the context of federal habeas, deference does not imply

abandonment or abdication of judicial review. Deference does not by definition preclude relief.”).

If a petitioner demonstrates that § 2254(d) does not bar relief, a federal habeas court will

review the petitioner’s federal claim de novo. See Milton v. Miller, 744 F.3d 660, 670-71 (10th Cir.

2014) (noting that overcoming § 2254(d)’s relitigation bar “effectively removes AEDPA’s

prohibition on the issuance of a writ” and “requires [the federal habeas court] to review de novo” the

petitioner’s federal claims, without deference to the state court’s decision). And, if the federal

habeas court finds a constitutional error on de novo review, it “must assess the prejudicial impact

of [the] constitutional error . . . under the ‘substantial and injurious effect’ standard set forth in

As used in § 2254(d)(1), the phrase “clearly established Federal law” means “the governing

legal principle or principles” stated in “the holdings, as opposed to the dicta, of [the Supreme

Court’s] decisions as of the time of the relevant state-court decision.” Lockyer v. Andrade,

538 U.S. 63, 71-72 (2003) (quoting Terry Williams v. Taylor, 529 U.S. 362, 412 (2000)).

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Brecht [v. Abrahamson, 507 U.S. 619 (1993)], whether or not the state appellate court recognized

the error and reviewed it for harmlessness under the ‘harmless beyond a reasonable doubt’ standard

set forth in Chapman [v. California], 386 U.S. 18 [(1967)].” Fry v. Pliler, 551 U.S. 112, 121-22

(2007). Under the Brecht standard, “an error is harmless unless it “had a substantial and injurious

effect or influence in determining the jury’s verdict.” Fry, 551 U.S. at 116 (quoting Brecht, 507 U.S.

at 631). And a federal habeas court should grant habeas relief if the court “is in grave doubt as to

the harmlessness of an error that affects substantial rights.” O’Neal v. McAninch, 513 U.S. 432, 445

(1995).

The OCCA did not unreasonably determine the facts.

A petitioner can avoid § 2254(d)’s bar to habeas relief by showing that the state court’s

decision rests on an unreasonable determination of the facts presented in state court proceedings.

28 U.S.C. § 2254(d)(2). “A state-court decision unreasonably determines the facts if the state court

‘plainly misapprehend[ed] or misstate[d] the record in making [its] findings, and the

misapprehension goes to a material factual issue that is central to petitioner’s claim.’” Wood v.

Carpenter, 907 F.3d 1279, 1289 (10th Cir. 2018) (alterations in original) (quoting Byrd v. Workman,

645 F.3d 1159, 1170-72 (10th Cir. 2011)). Here, in adjudicating Lewallen’s federal claim, the

OCCA acknowledged that the material facts were clear and undisputed: (1) Lewallen did not testify

at his original trial, (2) Lewallen asserted his right to testify before and during the new sentencing

proceeding, (3) the trial court denied Lewallen’s request to testify before and during the new

sentencing proceeding, (4) the trial court excluded Lewallen’s proffered testimony because the trial

court found that the testimony “went to guilt or innocence and its mitigation value was not relevant

to sentencing,” and (5) Lewallen did not testify at the new sentencing proceeding. Dkt. # 10-7,

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OCCA 2018 Op., at 2, 7. The Court therefore agrees with Crow that the OCCA’s decision is not

based an unreasonable determination of the facts in light of the state court proceeding.

Rock v. Arkansas is clearly established federal law for purposes of § 2254(d)(1).

When § 2254(d)(1)’s framework applies, a federal habeas court’s first task is to identify the

clearly established federal law, if any, that governs the petitioner’s claim. House v. Hatch, 527 F.3d

1010, 1015 (10th Cir. 2008). As he did in state court, Lewallen primarily relies on Rock v.

Arkansas, 483 U.S. 44 (1987), to support his claim of constitutional error. The Court agrees that this

is the clearly established federal law governing his claim. In Rock, the Supreme Court stated over

three decades ago that, “[a]t this point in the development of our adversary system, it cannot be

doubted that a defendant in a criminal case has the right to take the witness stand and to testify in

his or her own defense.” 483 U.S. at 49. The Rock Court found that a defendant’s right to testify

is guaranteed by the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution.

Rock, 483 U.S. at 51-52. And the Rock Court described the right to testify as “one of the rights that

‘[is] essential to due process of law in a fair adversary process.’” Id. at 51 (alteration added) (quoting

Faretta v. California, 422 U.S. 806, 819, n. 15 (1975)).

But the Rock Court also recognized that a defendant’s right to testify, like a defendant’s right

to present a complete defense, is not absolute. Rock, 483 U.S. at 53-56. In cases involving the right

to present a defense, the Supreme Court has explained that “state and federal rulemakers have broad

latitude under the Constitution to establish rules excluding evidence from trials,” United States v.

Scheffer, 523 U.S. 303, 308 (1998), but this latitude also “has limits,” Holmes v. South Carolina,

547 U.S. 319, 324 (2006). In Rock, the Supreme Court explained that a defendant’s right to testify

“may, in appropriate cases, bow to accommodate other legitimate interests in the criminal trial

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process.” Rock, 483 U.S. at 55-56. Nevertheless, the Rock Court held that a state’s evidentiary rules

that place “restrictions on a defendant’s right to testify may not be arbitrary or disproportionate to

the purposes they are designed to serve.” Id. at 55-56. And “[i]n applying its evidentiary rules a

State must evaluate whether the interests served by a rule justify the limitation imposed on the

defendant’s constitutional right to testify.” Id. at 56.

After establishing this evaluation method, the Supreme Court applied it to consider the

defendant’s argument in Rock that application of Arkansas’s per se rule barring hypnoticallyrefreshed testimony impermissibly infringed on her right to testify. Rock, 483 U.S. at 45, 48-49.

The defendant in Rock was charged with manslaughter after shooting her husband and the defendant

underwent hypnosis before trial because she could not recall the details of the shooting. Id. at 46.

The trial court granted the state’s pretrial motion to exclude all of the defendant’s hypnoticallyrefreshed testimony. Id. at 47. The defendant was permitted to testify at trial, but her testimony was

limited to only those facts that she remembered before she was placed under hypnosis. Id. at 47-48.

The Rock Court held that the “per se rule excluding all posthypnosis testimony infringes

impermissibly on the right of a defendant to testify on his own behalf.” Rock, 483 U.S. at 62. The

Rock Court reasoned, in part, that “[t]he Arkansas rule enunciated by the state courts does not allow

a trial court to consider whether posthypnosis testimony may be admissible in a particular case; it

is a per se rule prohibiting the admission at trial of any defendant’s hypnotically refreshed testimony

on the ground that such testimony is always unreliable.” Id. at 56. The Rock Court further reasoned

that the application of this per se rule in the defendant’s case “had a significant adverse effect on

[her] ability to testify” because it “virtually prevented her from describing any of the events that

occurred on the day of the shooting, despite corroboration of many of those events by other

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witnesses,” and barred the defendant from “describ[ing] the actual shooting except in the words

contained in [the doctor’s] notes.” Rock, 483 U.S. at 57.

The Rock Court acknowledged that Arkansas was not the only state that had adopted a rule

excluding hypnotically-refreshed testimony as unreliable. Rock, 483 U.S. at 57. But the Rock Court

noted that other states had adopted that rule “for the testimony of witnesses, not for the testimony

of a defendant.” Id. (emphases in original); see also id. at 58 n.15 (noting that “while the California

court adopted a far stricter general rule—barring entirely testimony by any witness who has been

hypnotized—it explicitly excepted testimony by an accused . . . ‘to avoid impairing the fundamental

right of an accused to testify in his own behalf’” (quoting People v. Shirley, 31 Cal.3d 18, 67

(1982))). In emphasizing the distinction between a rule that excludes testimony presented through

any witness and a rule that excludes the defendant’s own testimony, the Rock Court noted that “the

most important witness for the defense in many criminal cases is the defendant himself.” Rock, 483

U.S. at 52. The Supreme Court thus determined that in applying the per se rule to exclude the

defendant’s hypnotically-refreshed testimony, “[t]he Arkansas Supreme Court failed to perform the

constitutional analysis that is necessary when a defendant’s right to testify is at stake.” Id. at 57-58.

After discussing various views on the admissibility of hypnotically-refreshed testimony, the Rock

Court stated,

We are not now prepared to endorse without qualifications the use of

hypnosis as an investigative tool; scientific understanding of the phenomenon and of

the means to control the effects of hypnosis is still in its infancy. Arkansas, however,

has not justified the exclusion of all of a defendant’s testimony that the defendant is

unable to prove to be the product of prehypnosis memory. A State’s legitimate

interest in barring unreliable evidence does not extend to per se exclusions that may

be reliable in an individual case. Wholesale inadmissibility of a defendant’s

testimony is an arbitrary restriction on the right to testify in the absence of clear

evidence by the State repudiating the validity of all posthypnosis recollections. The

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State would be well within its powers if it established guidelines to aid trial courts

in the evaluation of posthypnosis testimony and it may be able to show that testimony

in a particular case is so unreliable that exclusion is justified. But it has not shown

that hypnotically enhanced testimony is always so untrustworthy and so immune to

the traditional means of evaluating credibility that it should disable a defendant from

presenting her version of the events for which she is on trial.

Rock, 483 U.S. at 61.

The OCCA’s decision either is contrary to, or involves an unreasonable

application of, Rock.

A petitioner may avoid § 2254(d)’s relitigation bar by showing that the state court’s decision

either is contrary to, or involves an unreasonable application of, clearly established federal law. 28

U.S.C. § 2254(d)(1). “A state-court decision is only contrary to clearly established federal law if it

‘arrives at a conclusion opposite to that reached by’ the Supreme Court, or ‘decides a case

differently’ than the Court on a ‘set of materially indistinguishable facts.’” Wood, 907 F.3d at 1289

(quoting Terry Williams, 529 U.S. at 412-13). Thus, “ run-of-the-mill state-court decision applying

the correct legal rule from [Supreme Court] cases to the facts of a prisoner’s case would not fit

comfortably within § 2254(d)’s ‘contrary to’ clause.” Terry Williams, 529 U.S. at 406. A state-court

decision “unreasonably applies federal law if it ‘identifies the correct governing legal principle’ from

the relevant Supreme Court decisions, but applies those principles in an objectively unreasonable

manner,” under the particular facts of the case. Wood, 907 F.3d 1289 (quoting Wiggins v. Smith,

539 U.S. 510, 520 (2003)). But “an unreasonable application of federal law is different from an

incorrect application of federal law. Terry Williams, 529 U.S. at 410 (emphases in original). As

a result, a habeas court cannot grant relief on a federal claim unless it is convinced that “the state

court’s application of clearly established federal law was objectively unreasonable.” Id. at 409;

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see also Milton, 744 F.3d at 668 (“‘When reviewing a state court’s application of federal law’ under

28 U.S.C. § 2254(d), ‘we are precluded from issuing the writ simply because we conclude in our

independent judgment that the state court applied the law erroneously or incorrectly.’” (quoting

McLuckie v. Abbot, 337 F.3d 1193, 1197 (10th Cir. 2003))).

Here, the OCCA identified Rock as the clearly established law governing Lewallen’s claim.

Moreover, the OCCA recognized the fundamental nature of Lewallen’s right to testify and correctly

described Rock’s evaluation method which requires the state “to evaluate whether the interests

served by a rule justify the limitation imposed on the defendant’s constitutional right to testify.” Dkt.

# 10-7, OCCA 2018 Op., at 4-5 (quoting Rock, 483 U.S. at 56).16 Under these circumstances, a state

court’s decision ordinarily would not be considered contrary to clearly established federal law. But

a careful application of Rock’s analysis to the facts of this case shows that the OCCA’s decision

either is contrary to or, at the very least, involves an unreasonable application of Rock.

As previously discussed, a defendant’s right to testify “may, in appropriate cases, bow to

accommodate other legitimate interests in the criminal trial process.” Rock, 483 U.S. at 55-56. But

a state’s evidentiary rules that place “restrictions on a defendant’s right to testify may not be arbitrary

or disproportionate to the purposes they are designed to serve.” Id. at 55-56. And “[i]n applying its

The Court recognizes that Lewallen waived his right to testify at the original trial. But the

OCCA did not suggest that the prior waiver barred Lewallen from testifying at the new

sentencing proceeding. In fact, the OCCA stated that “Lewallen was not precluded from

testifying at his resentencing trial because he had not testified at the original trial” and

reasoned instead that “[t]he trial court denied Lewallen’s request based upon the most basic

rule of admissibility, i.e., the rule of relevancy.” Dkt. # 10-7, OCCA 2018 Op., at 7.

Moreover, in this proceeding, Crow does not argue that the prior waiver barred Lewallen

from testifying at the new sentencing proceeding. Dkt. # 10, Resp., generally.

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evidentiary rules a State must evaluate whether the interests served by a rule justify the limitation

imposed on the defendant’s constitutional right to testify.” Rock, 483 U.S. at 56.

After identifying Rock’s method for evaluating whether a state court’s application of

evidentiary rules has impermissibly infringed on defendant’s right to testify, the OCCA ostensibly

applied that method to the facts of this case. Although that part of the OCCA’s decision applying

Rock’s analysis is set forth in the background section of this opinion and order, see supra

background section IV, at 18-19, the Court finds it necessary to repeat it here to avoid any

misinterpretation or misrepresentation of the OCCA’s decision. In determining that no constitutional

violation occurred when the trial court denied Lewallen’s request to testify, the OCCA stated: