Bussell v. Harpe
| Docket Number | 20-CV-0417-TCK-JFJ |
| Decision Date | 01 September 2023 |
| Parties | TIMOTHY BRIAN BUSSELL, Petitioner, v. STEVEN HARPE, Director, Oklahoma Department of Corrections,[1] Respondent. |
| Court | U.S. District Court — Northern District of Oklahoma |
Petitioner Timothy Brian Bussell, an Oklahoma prisoner appearing through counsel, brings this action pursuant to 28 U.S.C. § 2254, seeking federal habeas relief from the judgment entered against him in the District Court of Tulsa County, Case No CF-2015-4151. Dkts. 2, 13. Respondent Steven Harpe filed a response in opposition to the petition (Dkt. 16) and submitted the state-court record (Dkts. 17, 18), and Bussell filed a reply (Dkt. 19). Having considered the parties' arguments, the relevant record, and applicable law, the Court denies the petition.
This matter arises from the 2014 rape of T.M., an adult female, at Bussell's apartment in Tulsa, Oklahoma. The State's case at trial included the following testimony and evidence. Bussell shared an apartment with Cody Alexander, whom T.M. had recently begun dating. Dkt. 17-5, at 63-65.[2] On April 7, 2014, Alexander and Bussell drove to T.M.'s home in Muskogee, Oklahoma, and the three returned to Alexander and Bussell's apartment in Tulsa with plans to “hang out.” Id. at 64-66. On the return trip, Alexander told T.M. that he wanted her to have sex with Bussell. Id. at 66. T.M. testified that she “did not say yes and [she] did not say no” to Alexander's request. Id. Alexander then mentioned the possibility of T.M. having sex with his friend Willie Donnell Jackson. Id. at 4, 66-67. T.M. testified that she “told [Alexander] flat out no” and that she did not agree to have sex with Jackson. Id. at 66-67. Once at the apartment, T.M. drank several shots of tequila and had consensual sex with Alexander. Id. at 67-69. Afterward, Bussell came into the room with a shot glass and told T.M. to drink it. Id. at 70. Bussell then “[got] on top of [T.M.]” and began having sex with her. Id. T.M. testified that she did not agree to have sex with Bussell, that she “mumbled something,” and that everything then “went black.” Id. at 70-71. Later, T.M. woke up, saw Alexander lying next to her, walked to the kitchen to get a drink, saw Bussell lying on the couch in the living room, returned to Alexander's bedroom, performed fellatio on Alexander, and went back to sleep. Id. at 71-72.
Sometime thereafter, Jackson sent a text message to a co-worker and attached videos and photographs that the co-worker described at trial as depicting “a lady unconscious laying naked and . . . being taken advantage of.” Dkt. 17-5, at 44-49; Dkt. 18 (State's Exhibits 1, 2, 3). The co-worker further testified that one photograph (State's Exhibit 3) depicted Alexander, Jackson, and “the young lady,” and that the other photograph (State's Exhibit 2) depicted Alexander, Jackson, a third male he did not know, and the same female.[3] Id. at 49-50. The co-worker testified he also recognized Alexander and Jackson as the two males in the videos. Id. at 50-51. The coworker reported his receipt of the videos and photographs to his boss and later turned his phone over to law enforcement officers for examination. Id. at 47; Dkt. 17-8, at 33-34. Bussell admitted to police that he used Jackson's phone to film the videos. Id. at 34; Dkt. 17-5, at 139-42, 185. The videos appear to capture Bussell's laughter and voice in the background telling Jackson to “perk it up,” as well as Bussell's hand lifting T.M. to a sitting position while Jackson ejaculates on her chest. Dkt. 17-5, at 219-20; Dkt. 17-6, at 37-40; Dkt. 18 (State's Exhibit 1). T.M. testified that she initially lied and told police that “everything was consensual” because Alexander told her to say that. Dkt. 17-5, at 74, 104-24. T.M. further testified that after she saw the video, she told police that she did not consent to have sex with Jackson and that she did not consent to the creation of the video. Id. at 104-24.
Bussell and Jackson were charged and tried jointly for first-degree rape accomplished when the victim is unconscious, a violation of Okla. Stat. tit. 21, § 1114(A)(4).[4] Dkt. 17-8, at 101. At trial, the jury was instructed that an individual who aids and abets in the commission of a crime is a principal to the crime and is equally guilty, while an individual who merely stands by and does not participate is not a principal. Dkt. 17-6, at 12; Dkt. 17-8, at 145-46. The jury found both defendants guilty, and the trial court sentenced each to life imprisonment. Dkt. 17-10, at 16, 20. Bussell directly appealed his conviction and sentence to the Oklahoma Court of Criminal Appeals (OCCA), asserting ten claims. Dkt. 16-1, at 1-6. In an unpublished summary opinion filed May 23, 2019, the OCCA rejected each claim on the merits and affirmed Bussell's conviction and sentence. Dkt. 16-4.
Bussell now seeks federal habeas relief, under 28 U.S.C. § 2254, reasserting five of the ten claims he presented to the OCCA on direct appeal. Dkts. 2, 13. Bussell specifically claims (1) he was denied due process because the charging document was too vague to provide adequate notice of the charges against him; (2) he was denied due process because the State's evidence is insufficient to prove his guilt beyond a reasonable doubt; (3) he was denied due process because the trial court refused to sever his trial from Jackson's trial; (4) he was denied his Sixth Amendment right to the effective assistance of trial counsel; and (5) he was denied due process because the prosecutor made prejudicial and improper remarks during closing argument. Dkt. 13.
As just discussed, the OCCA rejected each of Bussell's claims on the merits when he presented them on direct appeal. The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) “imposes a highly deferential standard for evaluating state-court rulings and demands that state-court decisions be given the benefit of the doubt.” Renico v. Lett, 559 U.S. 766, 773 (2010) (internal citations and quotation marks omitted). When, as here, a federal claim has been “adjudicated on the merits in State court proceedings,” the AEDPA permits a federal court to grant habeas relief only if the state-court decision as to that claim “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States” or “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)(1), (2).
Clearly established federal law “refers to the holdings, as opposed to the dicta, of the [Supreme] Court's decisions as of the time of the relevant state-court decision.” Dodd v. Trammell, 753 F.3d 971, 982 (10th Cir. 2013) (alteration and internal quotation marks omitted). A statecourt decision is “contrary to” clearly established federal law if the conclusion is “opposite to that reached by the Supreme Court on a question of law or if the state court decides a case differently than the Court has on a set of materially indistinguishable facts.” Id. (alterations and internal quotation marks omitted). A state-court decision is an “unreasonable application” of clearly established federal law if the Id. (alteration and internal quotation marks omitted). Renico, 559 U.S. at 773 (citations and internal quotation marks omitted). Instead, “[a]s a condition for obtaining habeas corpus relief from a federal court, a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Harrington v. Richter, 562 U.S. 86, 103 (2011).
Applying these standards, the Court turns to Bussell's claims.
Bussell first contends that he was denied due process because the Amended Information gave “inadequate notice of the charge against which he had to defend.” Dkt. 13, at 13-14. Under clearly established federal law, a charging document “is sufficient if it, first, contains the elements of the offense charged and fairly informs a defendant of the charge against which he must defend, and, second, enables him to plead an acquittal or conviction in bar of future prosecutions for the same offense.” Hamling v. United States, 418 U.S. 87, 117 (1974); Russell v. United States, 369 U.S. 749, 763-64 (1962). Bussell argues that the Amended Information charged him with committing rape by having intercourse with T.M. while she was unconscious and thus did not accurately reflect the State's theory of prosecution presented at trial, namely, that Bussell aided and abetted Jackson's rape of T.M. Dkt. 13, at 13. The Amended Information states:
CODY ALEXANDER, WILLIE DONNELL JACKSON AND TIMOTHY BRIAN BUSSELL, on or about 4/7/2014, in Tulsa County, State of Oklahoma and within the jurisdiction of this Court, did commit the crime of RAPE - FIRST DEGREE - VICTIM UNCONSCIOUS, a Felony, by unlawfully, feloniously, willfully and knowingly, while acting in concert each with the other, have sexual intercourse with T.M. while sh...
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