Gray v. Whitten

Decision Date21 February 2020
Docket NumberCase No. CIV 16-482-JHP-KEW
PartiesDARVIN WAYNE GRAY, Petitioner, v. RICK WHITTEN, Warden, Respondent.
CourtU.S. District Court — Eastern District of Oklahoma

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 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 conviction in Muskogee County District Court Case No. CF-2011-951 for First Degree Rape by Instrumentation (Count 1), Forcible Oral Sodomy (Count 2), and Lewd Molestation of a Child Under the Age of 16 (Count 3), all after former conviction of two or more felonies. He raises the following grounds for relief:

I. Error occurred when no election was made with regard to the specific act relied on as the basis for each offense and the trial court failed to properly instruct the jury.
II. The state district court abused its discretion when it failed to grant the motion for mistrial made after the state improperly commented on Petitioner's failure to testify.
III. Prosecutorial misconduct deprived Petitioner of a fair trial.
IV. Ineffective assistance of trial counsel denied Petitioner due process and his right to a fundamentally fair trial.
V. Petitioner was denied the effective assistance of counsel at trial, for reasons not raised in his direct appeal.
VI. Petitioner was denied the effective assistance of appellate counsel, in violation of the Sixth Amendment.
VII. The State's evidence was insufficient to prove Petitioner's guilt beyond a reasonable doubt.

Respondent alleges Petitioner has exhausted the state court remedies for his first six habeas claims, however, Ground VII is unexhausted. The following records have been submitted to the Court for consideration in this matter:

A. Petitioner's direct appeal brief (Dkt. 8-1).
B. The State's brief in Petitioner's direct appeal (Dkt. 8-2).
C. Summary Opinion affirming Petitioner's Judgment and Sentence. Gray v. State, No. F-2014-322 (Okla. Crim. App. Aug. 7, 2015) (Dkt. 8-3).
D. Petitioner's post-conviction petition in error (Dkt. 8-4).
E. Order Affirming Denial of Application for Post-Conviction Relief in Gray v. State, No. PC-2016-605 (Okla. Crim. App. Sept. 13, 2016) (Dkt. 8-5).
F. Transcripts of state court proceedings.
G. Original Record.
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 anunreasonable 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 (OCCA) set forth the facts of the case in Petitioner's direct appeal as follows:

In October of 2011, Appellant managed the "Trail of Blood" at The Castle in Muskogee. The "Trail of Blood" was a Halloween themed maze with different interactive haunted scenes along the path. Appellant was friends with T.G.'s family. Appellant hired the fifteen-year-old T.G. to work even though The Castle required all cast members to be at least sixteen years old. T.G. worked on the weekends. She was assigned to play the role of a shadow in the parachute scene. She dressed in all black and wore costume makeup on her face. T.G. hid behind a parachute hung from the trees and used a leaf blower to cause the parachute to fly out at those that came down the trail.
Appellant sexually abused T.G. while she worked on the "Trail of Blood." He coerced her into staying silent through threats of losing her job, threats of violence, and promises of additional pay.
The first weekend that T.G. worked, Appellant caught her alone in the corral where the staff assembled to get their daily assignments. Appellant hugged T.G., rubbed her back, and touched her chest above her clothes. T.G. was caught off guard. Appellant slipped his hand up T.G.'s shirt and touched her breasts. Appellant stated that T.G. felt better than his wife. T.G. told Appellant that he could not do this because she had a boyfriend. Appellant only stopped when T.G. informed him that she needed to use the restroom.
The second weekend that T.G. worked, Appellant found T.G. alone behind the parachute shortly before the "Trail of Blood" opened.
Appellant made T.G. give him a "hand job" and then a "blow job." He also placed his fingers inside her. T.G. told Appellant to stop but he cursed her and told her that he would fire her if she didn't like it. T.G. continued to come up with reasons why Appellant should stop. In response, Appellant threatened to slice T.G.'s throat if she told anyone what had occurred.
On October 21, 2011, T.G. arrived for her third weekend of work. She went to the parachute scene area as the other workers prepared the trail for the evening. T.G. was alone. Appellant sought her out and found her behind the parachute. He, again, made her give him a "hand job," a "blow job," and stuck his fingers inside her. However, one of the other worker rescued T.G. on this occasion.
Ben Sparks came down the path filling Tiki torches with oil. He spotted two pairs of feet under the umbrella and called out: "Silence means trouble." To which, Appellant chuckled. Sparks entered the parachute area and greeted the pair. T.G. poked her head up above the parachute and, twice, mouthed "Help me" to Sparks. Twenty seconds later, Appellant poked his head up. Sparks was able to persuade Appellant to allow T.G. to help him fill the Tiki torches with oil. T.G. followed Sparks down the path. She visibly fought back her tears and held her breath. Appellant walked off in the other direction. After approximately 50 feet, T.G. openly sobbed. She was unable to speak for approximately ten minutes but, eventually informed Sparks that Appellant had been molesting her on the weekends and buying her silence with her paycheck.
After Sparks' intervention, Appellant frantically searched for T.G. He looked for her on the trail and repeatedly texted her phone. Appellant stated: "We didn't finish but don't tell him." He asked T.G. to call him, apologized and professed his love for her. In still later texts, Appellant stated, "We need to talk baby if u didn't want to do that u should have said no but can I talk to u." He asked her: "What r u telling people." Eventually, Appellant texted: "U all r getting bonus."
The next morning, T.G. told her mother what had happened and her mother called the Muskogee County Sheriff's Department. Deputy Bill Perry and Investigator Coletta Peyton investigated the incident. Perry spoke with Appellant concerning the allegations. He denied ever being alone with T.G. Peyton recovered the text messages and obtained statements from other witnesses. She went to Appellant's home andinterviewed him. Appellant claimed that he thought T.G. was sixteen years old but denied having a sexual relationship with her. Perry asked Appellant why he was behind the parachute with T.G. and Appellant stated that he was helping T.G. get a leaf blower.

Gray, No. F-2014-322, slip op. at 2-4. The OCCA's factual findings are entitled to a presumption of correctness, unless Petitioner produces clear and convincing evidence to rebut the presumption. 28 U.S.C. § 2254(e)(1).

Ground I: Notice of the Charges and Jury Instructions

Petitioner alleges in Ground I of the petition, as he did in Proposition One of his direct appeal, that the Information did not provide adequate notice of the charges against him when the State failed to elect which acts of rape, sodomy, and lewd molestation were relied upon for his convictions.

On direct appeal, Petitioner argued that because T.G. testified that each charged act happened three times over the three successive weekends in October 2011, the State should have been required to elect which act it relied upon to prove each count (Dkt. 8-1 at 5-6). The State argued the Information was sufficient to put Petitioner on notice of the acts charged in Counts 1-3, and the dates were specific enough to allow him to present a defense. The OCCA denied relief as follows:

Reviewing the record in the present case, we find that Appellant has not shown the existence of an actual error that is plain or obvious from the record. The State charged Appellant with rape by instrumentation, forcible oral sodomy, and lewd molestation. At trial, the prosecutor presented evidence of more than one act as to each of the charged offenses. The testimony revealed that Appellant had committed two separate acts of rape by instrumentation, two separate acts of forcible sodomy and three separate acts of lewd molestation. These acts occurred over three separate weekendsin October of 2011. As each of the acts clearly constituted separate and distinct crimes, the State could have charged Appellant with a total of seven offenses. See Davis v. State, 993 P.2d 124, 126 (Okla. Crim. App. 1999); Ziegler v. State, 610 P.2d 251, 254 (Okla. Crim. App. 1980). Instead, the State treated the two acts of rape by instrumentation as an ongoing offense, the two acts of forcible sodomy as a second ongoing offense, and the three acts of lewd molestation as a third but separate ongoing offense.
Appellant argues that the State was required to elect which act it relied upon for conviction as to each of the three charged offenses. Election of offenses is the general rule in this State. Huddleston v. State, 695 P.2d 8, 10-11 (Okla. Crim. App. 1985) (citing Cody v. State, 361 P.2d 307, 320 (Okla. Crim. App. 1961)). However, the State is permitted to treat ongoing offenses as a single act or transaction.
This Court in McManus v. State, 297 P. 830 (Okla. Crim. App. 1931), announced that "election is not required

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