Bingley v. Whitten, Case No. CIV 16-439-RAW-KEW

CourtUnited States District Courts. 10th Circuit. Eastern District of Oklahoma
Writing for the CourtRonald A. White United States District Judge Eastern District of Oklahoma
PartiesJEFFREY DALE BINGLEY, Petitioner, v. RICK WHITTEN, Warden, Respondent.
Docket NumberCase No. CIV 16-439-RAW-KEW
Decision Date19 March 2020

RICK WHITTEN, Warden, Respondent.

Case No. CIV 16-439-RAW-KEW


March 19, 2020


This matter is before the Court on Petitioner's petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. Petitioner is a pro se state prisoner in the custody of the Oklahoma Department of Corrections who currently is incarcerated at James Crabtree Correctional Center in Helena, Oklahoma. He is attacking his convictions and sentences in LeFlore County District Court Case No. CF-2010-21 for Child Sexual Abuse (Count 1) and Possession of Child Pornography (Count 2), setting forth the following grounds for relief:

I. Petitioner's partially recorded statement to the district attorney's investigator, which was obtained without a valid waiver of his Miranda rights and in violation of his constitutional rights was improperly admitted into evidence at Petitioner's jury trial, in violation of the Fifth and Fourteenth Amendments to the United States Constitution.

II. Prosecutorial misconduct deprived Petitioner of a fair trial and created fundamental error, resulting in an excessive sentence in this case, in violation of the Fifth and Fourteenth Amendments.

III. The trial court committed reversible error by failing to instruct the jury that Petitioner would be required to register as a sex offender as an additional punishment if he was convicted of either of these charges, in violation of the Fifth, Sixth, and Fourteenth Amendments.

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IV. The cumulative effect of the errors in Grounds I, II, and III deprived Petitioner of a fair trial, in violation of the Fifth and Fourteenth Amendments.

V. Petitioner was denied Sixth Amendment effective assistance of appellate counsel on direct appeal.

VI. Petitioner was denied Sixth Amendment effective assistance of trial counsel.

VII. The verdict was against the weight of the evidence, that there was insufficient evidence for the State to sustain a conviction as set out in the State's Information page in violation of the Fifth and Fourteenth Amendments.

VIII. The State introduced inadmissible evidence to the Jury, in violation of the Fifth and Fourteenth Amendments, after trial counsel advised appellate counsel that this substantive ground was recommended by him for Petitioner's direct appeal, and appellate counsel ignored it.

Respondent concedes that Petitioner has exhausted his state court remedies for the purpose of federal habeas corpus review. The following records have been submitted to the Court for consideration in this matter:

A. Petitioner's direct appeal brief (Dkt. 14-1).

B. The State's brief in Petitioner's direct appeal (Dkt. 14-2).

C. Opinion affirming Petitioner's judgment and sentence. Bingley v. State, No. F-2013 (Okla. Crim. App. Dec. 19, 2014) (unpublished) (Dkt. 14-3).

D. Petitioner's application for post-conviction relief, filed on December 15, 2015 (Dkt. 14-4).

E. Order Denying Application for Post-Conviction Relief, filed in Case No. CF-2010-21 on July 18, 2016 (Dkt. 14-5).

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F. Petitioner's post-conviction appeal, filed in Case No. PC-2016-367 on September 13, 2018 (Dkt. 14-6).

G. Order Affirming Denial of Application for Post-Conviction Relief, filed in Case No. PC-2016-367 on November 10, 2016 (Dkt. 14-7).

H. Transcripts and Original Record (Dkt. 15).

Standard of Review

Under the Anti-Terrorism and Effective Death Penalty Act, federal habeas corpus relief is proper only when the state court adjudication of a 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

(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).


The Oklahoma Court of Criminal Appeals made the following factual findings in Petitioner's direct appeal:

Appellant sexually abused his stepdaughter, [P.S.]. He began having intercourse with her when she was eleven years old. He used the family video camera to record himself having sex with her. Appellant continued to abuse her several times a month until she reached fourteen years of age. Her mother discovered the video and took her to the local family advocacy center.

Bingley v. State, No. F-2013-203, slip op. at 1-2 (Okla. Crim. App. Dec. 19, 2014) (Dkt. 14-3). The OCCA's factual findings are entitled to a presumption of correctness, unless

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Petitioner produces clear and convincing evidence to rebut the presumption. 28 U.S.C. § 2254(e)(1).

Ground I: Violation of Miranda v. Arizona, 384 U.S. 436, 444 (1966)

Petitioner alleges in Ground I, as he did in Proposition One on direct appeal, that the trial court erred in admitting his statement to the district attorney's investigator, Travis Saulsberry, that "I guess I messed up." Petitioner asserts the statement was made without a proper waiver, and he was goaded into making it. He maintains the State failed to demonstrate that his statement to Saulsberry was knowing, voluntary, and intelligent, and he argues the statement should have been suppressed. Petitioner further contends that because his entire conversation with Saulsberry was not recorded, the OCCA should mandate police recording of all statements made by defendants. The OCCA denied relief on this claim in Petitioner's direct appeal:

In his first proposition of error, Appellant contends that his statement to District Attorney's Investigator, Travis Saulsberry, should have been suppressed. After Investigator Saulsberry arrested Appellant on January 9, 2010, he interviewed Appellant at the LeFlore County Sheriff's Department. Saulsberry video recorded the interview. During the interview, Saulsberry listed the evidence and allegations against Appellant. He explained that he was just providing Appellant with an opportunity to explain what had happened. Appellant admitted: "I guess I messed up."

Appellant filed a motion to suppress. The District Court held a hearing pursuant to Jackson v. Denno, 378 U.S. 368 (1964), and determined that Appellant's statement was voluntary and admissible.

"A confession is voluntary, and thus admissible in evidence, only when it is the product of an essentially free and unconstrained choice by its maker." Young v. State, 191 P.3d 601, 607 (Okla. Crim. App. 2008) (quotations and

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citation omitted). "When the admissibility of a defendant's incriminating statement is challenged at trial, the State must establish voluntariness by a preponderance of the evidence." Johnson v. State, 272 P.3d 720, 727 (Okla. Crim. App. 2012). The inquiry has two aspects: (1) the relinquishment of the right must be voluntary in that it was a product of free, deliberate choice, rather than coercion, intimidation or deception; and (2) the waiver must have been made with a full awareness of the nature of the right being abandoned and the consequences of the decision to abandon it. Coddington v. State, 142 P.3d 437, 447 (Okla. Crim. App. 2006) citing Moran v. Burbine, 475 U.S. 412, 421 (1986)).

The voluntariness of a confession is judged from the totality of the circumstances, including the characteristics of the accused and the details of the interrogation. Davis v. State, 103 P.3d 70, 80 (Okla. Crim. App. 2004); Van White v. State, 990 P.2d 253, 267 (Okla. Crim. App. 1999); Lewis v. State, 970 P.2d 1158, 1170 (Okla. Crim. App. 1998). This necessarily includes the use of any physical punishment, repeated or prolonged questioning, deprivation of food or sleep, the presence of any promises or threats, and the psychological impact on the accused. Schneckloth v. Bustamonte, 412 U.S. 218, 226 (1973); Lynumn v. Illinois, 372 U.S. 528, 534 (1963). "[T]he question in each case is whether the defendant's will was overborne at the time he confessed." Lynumn, 372 U.S. at 534; Culombe v. Connecticut, 367 U.S. 568, 602 (1961). On appeal, we consider whether the District Court's ruling "is supported by competent evidence of the voluntary nature of the statement." Johnson, 272 P.3d at 727; Young, 191 P.3d at 607; Davis, 103 P.3d at 80.

Appellant contends, as he did in the District Court, that his statement to Investigator Saulsberry was involuntary. He claims that Saulsberry questioned him for more than an hour, but that only 12 minutes and 30 seconds of the interview were recorded. Nothing in the record supports Appellant's claim that he was interrogated for any length of time before the recorded interview began. Saulsberry arrested Appellant at his home in Wister, Oklahoma. Prior to placing Appellant under arrest, Saulsberry spoke with Appellant and informed him that the victim had made some allegations. He then placed Appellant under arrest, drove him to the Sheriff's Department, and conducted the interview. A review of the video reveals that Saulsberry brought Appellant into the interview room, removed his handcuffs, explained the purpose of the interview, and advised Appellant concerning the Miranda rights with a rights waiver form. It is apparent from the conversation on the video that Saulsberry had not questioned Appellant concerning the offenses prior to

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that point in time.

Appellant further claims that his statement should have been suppressed because he never signed the Miranda rights waiver form and never unequivocally agreed to speak to Saulsberry. However, an express statement of waiver, oral or otherwise, is not essential to effect a waiver of Miranda rights. Berghuis v. Thompkins, 560 U.S. 370, 384 (2010); Gilbert v. State, 951 P.2d 98, 110 (Okla. Crim. App. 1997). "As a general proposition, the law can presume that an individual who, with a full understanding of his or her rights, acts in a manner inconsistent with their exercise has made a deliberate choice to relinquish the protection those rights afford." Id. 560 U.S. at 385; Gilbert, 951 P.2d at 110.

We find

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