Brushwood v. Franklin
| Decision Date | 13 August 2012 |
| Docket Number | Case No. CIV-12-193-R |
| Parties | JEFFERY ALLEN BRUSHWOOD, Petitioner, v. WARDEN ERIC FRANKLIN, Respondent. |
| Court | U.S. District Court — Western District of Oklahoma |
Mr. Jeffery Brushwood is a state inmate requesting a writ of habeas corpus. The Court should deny the request.
In state court, Mr. Brushwood was convicted of first-degree attempted rape. See Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody at ECF1 p. 1 (Feb. 21, 2012) ("Petition"). The Oklahoma Court of Criminal Appeals ("OCCA") affirmed,2 and Mr. Brushwood filed the present action with claims involving:
The Court can grant habeas relief "on the ground that [the petitioner] is in custody in violation of the Constitution or laws or treaties of the United States." The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2254(a) (2006). The applicable standard turns on how the state appellate court had treated the underlying issue.
When the state appellate court does not address the merits, the federal district court exercises its independent judgment. See, e.g., Hain v. Gibson, 287 F.3d 1224, 1229 (10th Cir. 2002). In this situation, the Petitioner must demonstrate by a preponderance of the evidence that he is entitled to habeas relief.4
If the OCCA denied the claims on the merits, the federal district court bears a "secondary and limited" role. See Castro v. Ward, 138 F.3d 810, 815 (10th Cir. 1998) (citation omitted).
For example, when factual allegations are involved, a federal court can grant habeas relief only if the state court had made "an unreasonable determination of the facts in light of the evidence presented." AEDPA, 28 U.S.C. § 2254(d)(2) (2006).
The federal district court also engages in limited scrutiny of legal determinations when the state's highest court has addressed the merits. In these circumstances, the federal court considers only whether the state appeals court's conclusions were "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." AEDPA, 28 U.S.C. § 2254(d)(1) (2006).
The threshold issue is whether federal law clearly establishes the constitutional protection underlying the Petitioner's claim. "A legal principle is 'clearly established' . . . only when it is embodied in a holding of [the Supreme Court]." Thaler v. Haynes, _ U.S. __, 130 S. Ct. 1171, 1173 (2010) (citations omitted). For this purpose, Supreme Court holdings "must be construed narrowly and consist only of something akin to on-point holdings." House v. Hatch, 527 F.3d 1010, 1015 (10th Cir. 2008). In the absence of Supreme Court precedents, "a federal habeas court need not assess whether a state court's decision was 'contrary to' or involved an 'unreasonable application' of such law." Id. at 1017 (citation omitted).
If the underlying constitutional right is clearly established, the federal district court must ask whether the state court decision was contrary to Supreme Court precedent. See Hicks v. Franklin, 546 F.3d 1279, 1283 (10th Cir. 2008). These circumstances may exist when the state court had:
See Williams v. Taylor, 529 U.S. 362, 405-06 (2000) (citation omitted).
If these circumstances are absent, the federal district court must determine whether the state court decision involved an unreasonable application of Supreme Court precedent. See Hicks v. Franklin, 546 F.3d at 1283. Application of Supreme Court precedent is considered "unreasonable" when the state court unreasonably extends, or refuses to extend, prior decisions. See House v. Hatch, 527 F.3d 1010, 1018 (10th Cir. 2008).
Mr. Brushwood alleges that Okla. Stat. tit. 12 § 2413 violates the federal and state constitutions. Petition at ECF p. 5, Attachment at ECF pp. 4-19. The OCCA disagreed and rejected the claim. OCCA Opinion at p. 2. This determination does not entitle the Petitioner to habeas relief.
Okla. Stat. tit. 12 § 2413 provides in relevant part:
In a criminal case in which the defendant is accused of an offense of sexual assault, evidence of the defendant's commission of another offense or offenses of sexual assault is admissible, and may be considered for its bearing on any matter to which it is relevant.
Okla. Stat. tit. 12 § 2413(A) (2011). The prosecution utilized this statute at trial, calling witnesses who testified that the Petitioner had previously committed sexual assaults. See Transcript of Proceedings, Vol. II at pp. 176-86, 194, 200-02, 225-40, State v. Brushwood, Case No. CF-2004-1021 (Okla. Co. Dist. Ct. filed Aug. 24, 2009) ("Trial Transcript").
The OCCA rejected Mr. Brushwood's constitutional challenges to Okla. Stat. tit. 12 § 2413. OCCA Opinion at p. 2.
In part, the Petitioner seeks federal habeas relief based on violation of the Oklahoma Constitution. Petition at ECF p. 5, Attachment at ECF pp. 11-19. But such a violation would not entitle Mr. Brushwood to federal habeas relief.5 Thus, the Court should reject the portion of the claim based on violation of the state constitution.
Mr. Brushwood has also invoked the federal constitution, arguing in part that Okla. Stat. tit. 12 § 2413 creates a deprivation of due process. Id. at ECF p. 5, Attachment at ECF pp. 11-17. This claim should be rejected.
The OCCA's determination on this issue can only be considered unreasonable if the Supreme Court has clearly answered the relevant question. See supra p. 3. The Supreme Court has not done so, and the Western District of Oklahoma should reject the habeas claim based on the absence of clearly established federal law.
This Court recently addressed a similar issue in Burke v. Rudek, 2012 WL 346651 (W.D. Okla. Feb. 1, 2012) (). There the petitioner claimed that Okla. Stat. tit. 12 § 2413 violated the federal constitution, and the OCCArejected the claim on the merits. See Burke v. Rudek, 2012 WL 346651, Westlaw op. at 1-2 (W.D. Okla. Feb. 1, 2012) (). The Western District of Oklahoma rejected the subsequent habeas claim in light of the absence of a dispositive Supreme Court decision on the constitutionality of Okla. Stat. tit. 12 § 2413. Id., Westlaw op. at 2 (citing House v. Hatch, 527 F.3d 1010, 1017 (10th Cir. 2008)). The Tenth Circuit Court of Appeals dismissed the appeal, concluding in part that the OCCA had acted reasonably in upholding the constitutionality of Section 2413. Burke v. Rudek, 2012 WL 2019164, Westlaw op. at 1 (10th Cir. June 6, 2012) (unpublished op.).
The reasoning in Burke applies here. The Supreme Court has not issued a decision that questions the constitutionality of Okla. Stat. tit. 12 § 2413 or a similar statute.6 In the absence of clearly established federal law on the issue, the Court should reject the habeas claim. See supra p. 3.
Mr. Brushwood also claims that the trial court had erred in allowing the propensity evidence because it was too prejudicial under Okla. Stat. tit. 12 § 2413. Petition at ECF p. 7, Attachment at ECF pp. 20-25.
The threshold issue is whether the Court should construe the claim to include violation of the federal constitution as well as Okla. Stat. tit. 12 § 2413. In the petition, Mr. Brushwood did not identify the statutory or constitutional basis for the habeas claim. See Petition at ECF pp. 7-8. In the brief attached to the petition, Mr. Brushwood quoted the Fourteenth Amendment. Id. at ECF p. 20. But he did not clearly state whether he was intending to invoke the federal constitution as a basis for the claim. See id. at ECF pp. 20-25. The issue of construction is significant because habeas relief can be based on violation of the federal constitution but not state law. See supra note 5 (quoting Davis v. Reynolds, 890 F.2d 1105, 1109 n.3 (10th Cir. 1989)).
In the direct appeal, Mr. Brushwood challenged the admissibility of the propensity evidence based solely on Okla. Stat. tit. 12 § 2413. Original Brief for and on Behalf of Jeffery Allen Brushwood, Appellant at pp. 20-24, Brushwood v. State, Case No. F-2009-548 (Okla. Crim. App. Nov. 17, 2009). As a result, the OCCA analyzed the claim solely on the basis of Section 2413. OCCA Opinion at p. 2.
In the habeas proceedings, the district court could conceivably construe the habeas claim to go further and challenge introduction of the propensity evidence based on the Fourteenth Amendment as well as Section 2413. But this interpretation appears problematic.
In the habeas petition, Mr. Brushwood specifically invoked the United States Constitution when he challenged the constitutionality of Okla. Stat. tit. 12 § 2413, the admissibility of the preliminary hearing transcript, and the length of time between the charges and the trial. Petition at ECF pp. 5, 10, 13. Mr. Brushwood declined to refer to thefederal constitution only when he claimed unfair prejudice in the introduction of propensity evidence. See id. at ECF pp. 7-8. Even though Mr. Brushwood is a layman, he obviously knew how to invoke the federal constitution when he intended to assert a federal claim. Thus, omission of a constitutional claim could have been purposeful.7...
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