Eulitt v. Harvanek

• Decision Date: 25 August 2017
• Docket Number: Case No. 14-CV-0538-CVE-FHM
• Parties: KYLE TRAVIS EULITT, Petitioner, v. KAMERON HARVANEK, Warden, Respondent.
• Court: U.S. District Court — Northern District of Oklahoma

KYLE TRAVIS EULITT, Petitioner,
v.
KAMERON HARVANEK, Warden,¹ Respondent.

Case No. 14-CV-0538-CVE-FHM

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OKLAHOMA

August 25, 2017

OPINION AND ORDER

Before the Court is the 28 U.S.C. § 2254 habeas corpus petition (Dkt. # 1) filed by Petitioner, a state inmate appearing pro se. Respondent filed a response (Dkt. # 7) to the petition and provided the supporting state court record (Dkt. # 8). Petitioner did not file a reply to the response. For the reasons discussed below, the petition for writ of habeas corpus shall be denied.

BACKGROUND

During the early morning hours of December 31, 2010, Petitioner Kyle Travis Eulitt shot and killed Ronald Joseph Watts at the Linden Apartment Complex in Bartlesville, Oklahoma. Petitioner and his friend, Travis Weidbrauk, were returning to Weidbrauk's apartment at approximately 12:20 a.m., when they encountered a group of three men, Dustin Brown, John Barcus, and Watts. Petitioner was armed with a pistol. Weidbrauk and Watts had a verbal disagreement. Petitioner raised his gun and shot Watts in the left chest area. Watts did not survive the gunshot wound. Later

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that morning, at approximately 6:00 a.m., Petitioner turned himself in at the police station and told officers that he shot Watts in self-defense. Petitioner also gave police the pistol used in the shooting.

As a result of those events, Petitioner was charged in Washington County District Court, Case No. CF-2011-003, with First Degree Murder. Petitioner proceeded to be tried by a jury. The State presented testimony from at least six witnesses that Petitioner was the only person that night armed with a handgun. See Dkt. # 8-4, Tr. Vol. II at 294, 309, 326, 354, 384; Dkt. # 8-5, Tr. Vol. III at 525. Contrary to the testimony of those witnesses, Petitioner testified in his own defense that he shot Watts in self-defense because he saw Watts pull a handgun out of his right side pocket and proceed towards Petitioner causing him to be "in fear for my life and my well-being." See Dkt. # 8-5, Tr. Vol. III at 543. On September 1, 2011, at the conclusion of trial, Petitioner's jury found him guilty as charged and recommended a sentence of life imprisonment. On November 7, 2011, the trial judge sentenced Petitioner in accordance with the jury's recommendation. During trial proceedings, Petitioner was represented by attorney Jim Conatser.

Petitioner appealed his convictions to the Oklahoma Court of Criminal Appeals (OCCA). On direct appeal, Petitioner, represented by attorney Jamie D. Pybas, raised six (6) propositions of error, as follows:

Proposition 1: Mr. Eulitt was deprived of his due process rights when the trial court abused its discretion by failing to give requested instructions on Second Degree Murder and First Degree Manslaughter, in violation of his rights under the Fourteenth Amendment to the United States Constitution and Article II, §§ 7 and 20 of the Oklahoma Constitution.

Proposition 2: Erroneous and irrelevant instructions conveyed to the jury that Mr. Eulitt was not legally entitled to act in self-defense, violating the Fourteenth Amendment to the United States Constitution and Article II, §§ 7 and 9 of the Oklahoma Constitution.

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Proposition 3: Improper cross examination deprived Mr. Eulitt of a fair trial in violation of his rights under the due process clause of the Fourteenth Amendment to the United States Constitution and Article II, §§ 7 and 20 of the Oklahoma Constitution.

Proposition 4: The prosecutor's closing argument impermissibly burdened Mr. Eulitt's right to be present at trial and to testify in his own behalf by inviting the jury to draw a baseless inference that he concocted his testimony to fit the testimony presented by the State.

Proposition 5: Mr. Eulitt was deprived of the effective assistance of counsel in violation of the Sixth and Fourteenth Amendments to the United States Constitution and Article II, §§ 7 and 20 of the Oklahoma Constitution.

Proposition 6: The accumulation of error in this case deprived Mr. Eulitt of due process of law in violation of the Fourteenth Amendment to the United States Constitution and Article II, § 7 of the Oklahoma Constitution.

(Dkt. # 7-1). On December 7, 2012, in an unpublished summary opinion filed in Case No. F-2011-1012, the OCCA denied relief and affirmed the Judgment and Sentence of the trial court. See Dkt. # 7-3.

Petitioner filed an application for post-conviction relief in state district court. On May 1, 2014, the state district judge denied post-conviction relief. See Dkt. # 7-5. Petitioner filed a post-conviction appeal, raising the following propositions of error:

Proposition 1: Appellate counsel acted in an "objectively unreasonable," unprofessional, incompetent, and ineffective manner when she refused/failed to recognize, investigate into and raise much "stronger" grounds of error on direct appeal, than were raised, which adversely affected the appeal outcome. Amends. 6, 14.

Proposition 2: Trial counsel acted "objectively unreasonable," unprofessional, incompetently, and ineffectively where counsel refused/failed to investigate and pursue Petitioner's defense of voluntary intoxication at trial. Amends. 6, 14; Ok. Const. art. II, §§ 7, 20.

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Proposition 3: Trial counsel acted "objectively unreasonable," unprofessional, incompetently, and ineffectively where counsel refused/failed to attack victim's credibility where victim had prior felony convictions for firearms, etc. Amend. 6, 14; Ok. Const. art. II, §§ 7, 20.

Proposition 4: The district court errored [sic] and/or abused its discretion in refusing/failing to hold a statutorily mandated evidentiary hearing in this case, where the issues involve fact-finding "outside the record." Amends. 6, 14; Title 22 O.S. §§ 1083, 1084.

(Dkt. # 7-6). The OCCA remanded the matter twice to the trial judge for additional findings of fact. On June 19, 2014, the trial judge filed an amended order denying relief on Petitioner's post-conviction claims of ineffective assistance of counsel, see Dkt. # 7-5. By Order filed July 10, 2014, in Case No. PC-2014-0109 (Dkt. # 7-7), the OCCA affirmed the denial of post-conviction relief.

On September 9, 2014, Petitioner filed his federal petition for writ of habeas corpus (Dkt. # 1). Petitioner raises the following grounds of error:

Ground 1: Petitioner was deprived of his due process rights when the trial court abused its discretion by failing to give requested instructions on 2nd degree murder and 1st degree manslaughter, in violation of his rights under the 14th Amendment to the U.S. Constitution, and Article II, §§ 7 and 20 of the OK State Constitution.

Ground 2: Erroneous and irrelevant instructions conveyed to the jury that Petitioner was not legally entitled to act in self-defense [and] violated the 14th Amendment to the U.S. Constitution and Article II, §§ 7 and 9 of the OK State Constitution.

Ground 3: Improper cross examination deprived Petitioner of a fair trial in violation of his rights under the due process clause of the 14th Amendment to the U.S. Constitution and Article II, §§ 7 and 20 of the Oklahoma Constitution.

Ground 4: The prosecutor's closing argument impermissibly burdened petitioner's right to be present at trial and to testify in his own behalf by inviting the jury to draw a baseless inference that he concocted his testimony to fit the testimony presented by the State.

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Ground 5: Petitioner was deprived of the effective assistance of counsel in violation of the 6th and 14th Amendments to the U.S. Constitution and Article II, §§ 7 and 20 of the OK State Constitution.

Ground 6: The accumulation of error in this case deprived Petitioner of due process of law in violation of the 14th Amendment to the U.S. Constitution and Article II, § 7 of the OK State Constitution.

Ground 7: Appellate counsel acted in an "objectively unreasonable," unprofessional, incompetent, and ineffective manner when she refused/failed to recognize, investigate into and raise much "stronger" grounds of error on direct appeal, than were raised, which adversely affected the appeal outcome. Amends. 6, 14.

Ground 8: Trial counsel acted "objectively unreasonable," unprofessional, incompetently, and ineffectively where counsel refused/failed to investigate and pursue Petitioner's defense of voluntary intoxication at trial. Amends. 6, 14; Ok. Const. art. II, §§ 7, 20.

Ground 9: Trial counsel acted "objectively unreasonable," unprofessional, incompetently, and ineffectively where counsel refused/failed to attack victim's credibility where victim had prior felony convictions for firearms, etc. Amends. 6, 14; Ok. Const. art. II, §§ 7, 20.

Id. Respondent filed a response (Dkt. # 7) to the petition, arguing that Petitioner is not entitled to habeas corpus relief.

ANALYSIS

A. Exhaustion and request for evidentiary hearing

Before addressing Petitioner's habeas claims, the Court must determine whether Petitioner meets the exhaustion requirement of 28 U.S.C. § 2254(b). See Rose v. Lundy, 455 U.S. 509, 510 (1982). Petitioner presented his claims to the OCCA on direct and post-conviction appeal and they are exhausted.

The Court also finds that Petitioner is not entitled to an evidentiary hearing. See Cullen v. Pinholster, 563 U.S. 170, 184-85 (2011); Williams v. Taylor, 529 U.S. 420 (2000).

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B. Claims adjudicated by the OCCA

The Antiterrorism and Effective Death Penalty Act (AEDPA) provides the standard to be applied by federal courts reviewing constitutional claims brought by prisoners challenging state convictions. Under the AEDPA, when a state court has adjudicated a claim, a petitioner may obtain federal habeas relief only if the state court decision "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." See ...