Hackett v. Farris

• Decision Date: 25 September 2014
• Docket Number: Case No. 11-CV-322-GKF-TLW
• Parties: TROY LEE HACKETT, Petitioner, v. JIM FARRIS, Warden, Respondent.
• Court: U.S. District Court — Northern District of Oklahoma

TROY LEE HACKETT, Petitioner, v. JIM FARRIS, Warden,¹ Respondent.

Case No. 11-CV-322-GKF-TLW

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OKLAHOMA

September 25, 2014

OPINION AND ORDER

Before the Court is the 28 U.S.C. § 2254 habeas corpus petition (Dkt. # 1) filed by Petitioner, a state prisoner appearing pro se. Respondent filed a response (Dkt. # 25) and provided the state court records necessary for resolution of Petitioner's claims (Dkt. ## 25, 26). Petitioner filed a reply (Dkt. # 38). For the reasons discussed below, the petition for writ of habeas corpus is denied.

BACKGROUND

On July 31, 2006, Petitioner Troy Lee Hackett forced K.D., the fifteen-year-old daughter of his girlfriend, to have sexual intercourse. K.D. testified that, while she was alone with Petitioner, he shoved her down on a bed, forced her skirt up, pushed her panties aside and inserted his penis into her vagina. She unsuccessfully tried to get away, told him "no," and asked him to stop. K.D. said that Petitioner told her not to tell anybody. Because she was scared and embarrassed, K.D. did not tell anyone immediately after the incident. However, approximately two months later, K.D.'s mother said, "you look pregnant." She then told her mother what had happened. A pregnancy testconfirmed that she was pregnant. On April 6, 2007, K.D. gave birth to M.D. Law enforcement officials collected DNA samples from Petitioner, K.D., and M.D. The samples were tested and analyzed by Robert Allen, Ph.D. Dr. Allen found the probability that Petitioner is the biological father of M.D. is 99.9998%.

Based on those facts, Petitioner was charged, by Amended Information, with First Degree Rape, After Former Conviction of Two or More Felonies (AFCF), in Tulsa County District Court, Case No. CF-2007-5435.² (Dkt. # 26-7, O.R. at 22-26). At the conclusion of a two-stage trial, a jury found Petitioner guilty as charged and recommended a sentence of 40 years imprisonment. (Dkt. # 26-4, Tr. Vol. II at 354). On May 28, 2008, the trial court sentenced Petitioner in accordance with the jury's recommendation. (Dkt. # 26-6, Tr. Sentencing at 2-3). Attorney Brian Martin represented Petitioner at trial and at sentencing.

Petitioner, represented by attorney Jarrod Heath Stevenson, perfected an appeal to the Oklahoma Court of Criminal Appeals (OCCA). Petitioner raised six propositions of error, as follows:

Proposition 1: Mr. Hackett's conviction should be reversed and remanded for a new trial because he was denied a fair trial before an impartial judge in violation of the Fifth, Sixth and Fourteenth Amendments to the United States Constitution and Article Two, Sections Six, Seven and Twenty of the Oklahoma Constitution.

Proposition 2: The trial court erred when it overruled defense counsel's objection to the admission of the sentence Mr. Hackett received in his previous felony convictions in violation of the Fifth and Sixth Amendments to the United States Constitution and Article Two, Sections Seven and Twenty of the Oklahoma Constitution.

Proposition 3: The improper conduct of the prosecutor deprived Mr. Hackett of a fair trial in violation of the Fifth and Fourteenth Amendments of the United States Constitution, Article Two, Sections Seven and Twenty of the Oklahoma Constitution.

Proposition 4: Mr. Hackett received ineffective assistance of counsel in violation of the Sixth and Fourteenth Amendments to the United States Constitution and Article Two, Section Twenty of the Oklahoma Constitution.

Proposition 5: Mr. Hackett received an excessive sentence in violation of the Eighth and Fourteenth Amendments to the United States Constitution and Article Two, Section Nine of the Oklahoma Constitution.

Proposition 6: The accumulation of errors deprived Mr. Hackett of a fair trial in violation of the Fifth and Fourteenth Amendments to the United States Constitution and Article Two, Section Seven of the Oklahoma Constitution.

(Dkt. # 25-1). In an unpublished Summary Opinion filed June 15, 2009, in Case No. F-2008-546, the OCCA affirmed Petitioner's Judgment and Sentence. (Dkt. # 25-3).

Next, Petitioner filed an application for post-conviction relief. He raised the following propositions of error, as stated by the district court,

Proposition 1: Hackett received ineffective assistance of appellate counsel for not raising an ineffective assistance of trial counsel [claim]. Hackett asserts the trial counsel was ineffective for failing to utilize potent impeachment evidence or engage in meaningful cross-examination.

Proposition 2: Hackett's appellate counsel was ineffective for failing to file a claim of factual innocence based upon evidence being insufficient to sustain a conviction for the crime of rape in the first degree, where the verdict and judgment are not substantiated by the evidence and is contrary to law.

Proposition 3: The appellate counsel was ineffective for failing to raise a claim of trial court's fundamental error by not informing the jury that Hackett would not be eligible for parole until he has served 85% of his sentence.

(Dkt. # 25-4 at 4). By order dated June 11, 2010, the trial court denied Petitioner's application for post-conviction relief. Id. Petitioner appealed the denial. (Dkt. # 25-5). On August 30, 2010, inCase No. PC-2010-689, the OCCA affirmed the denial of the application for post-conviction relief. (Dkt. # 25-6).

Petitioner also filed a "motion to vacate void judgment and sentence" in the state district court. See Dkt. # 25-7. The district court judge treated the motion as an application for postconviction relief raising two claims, identified by the court as follows:

1. The trial judge exceeded her jurisdiction by finding Petitioner guilty of first degree rape in violation of Okla. Stat. tit. 21 § 1114 and sentencing him to a term of (40) years imprisonment.

2. Petitioner contends he should have been charged and convicted if at all of Okla. Stat. tit. 10 § 7115(E) because it was a more specific statute pursuant to the alleged criminal course of conduct of Petitioner.

(Dkt. # 25-7 at 5). By order filed November 8, 2010, id., the state district court denied the motion. Petitioner appealed by filing a petition for writ of habeas corpus. See Dkt. # 25-8. By order filed February 11, 2011, in Case No. HC-2010-1140, the OCCA adjudicated the appeal, pursuant to Petitioner's request, as an original proceeding for the writ of habeas corpus, rather than as a postconviction appeal. See Dkt. # 25-9 at 2. Because Petitioner failed to comply with state procedural rules applicable to extraordinary writs, the OCCA declined jurisdiction and dismissed the "petition for writ of habeas corpus." Id. at 2-3.

On February 24, 2011, Petitioner filed a second petition for writ of habeas corpus at the OCCA (Dkt. # 25-10). By Order filed March 10, 2011, in Case No. HC-2011-133, the OCCA found Petitioner had not complied with state procedural rules and, for that reason, declined jurisdiction and dismissed the petition for writ of habeas corpus. (Dkt. # 25-11).

On May 24, 2011, Petitioner filed his federal petition for writ of habeas corpus. (Dkt. # 1). In the petition, Petitioner raises eight (8) grounds for relief,

Ground 1: Judicial bias against Petitioner and partiality to the prosecution deprived Petitioner of a fair trial in violation of the 5th, 6th and 14th USCA.

Ground 2: In violation of Petitioner's 5th and 6th USCA due process fair trial rights, the trial court erred in overruling defense objection to prejudicial admission of sentence[s] Petitioner received in prior felony convictions.

Ground 3: Prosecutorial misconduct deprived/denied Petitioner a fair trial before an impartial judge, in violation of the 5th and 14th USCA.

Ground 4: Petitioner's trial counsel provided ineffective assistance [in] violation of 6th and 14th USCA due process and counsel rights of Petitioner.

Ground 5: Petitioner's punishment is excessive violating the 8th USCA.

Ground 6: Petitioner's 14th USCA due process rights - statutory liberty interest - substantial law rights 21 § 11 where the State under the wrong penal code for crime charged convicted and punished.

Ground 7: On direct appeal, appellate counsel's assistance was ineffective in violation of Petitioner's 14th USCA due process of law rights.

Ground 8: The accumulation of errors deprived/denied Petitioner of a fair trial due process of law rights 5th and 14th USCA.

(Dkt. # 1). In response to the petition, Respondent filed a motion to dismiss petition for habeas corpus as time barred by the statute of limitations (Dkt. # 7). By Opinion and Order filed March 26, 2012 (Dkt. # 18), the Court denied the motion to dismiss and directed Respondent to file a response to the petition. After the Tenth Circuit denied Respondent's motion to appeal under 28 U.S.C. § 1292(b), Respondent filed a response to the petition (Dkt. # 25). Respondent argues the OCCA's rulings on the claims raised in Grounds 1, 3, 4, 7, and 8 were not contrary to, or an unreasonable application of, federal law. (Dkt. # 25). Respondent also argues that Grounds 2 and 5 are state law matters and are not cognizable for habeas review. Id. Finally, Respondent argues that Ground 6 and parts of Grounds 4 and 7 are procedurally barred. Id.

ANALYSIS

A. Exhaustion/Evidentiary Hearing

As a preliminary matter, the Court must determine whether Petitioner meets the exhaustion requirements of 28 U.S.C. § 2254(b), (c). See Rose v. Lundy, 455 U.S. 509, 510 (1982). Petitioner presented Grounds 1, 2, 3, part of 4, 5, 6, part of 7, and 8 to the OCCA on direct or post-conviction appeal, or in his first petition for writ of habeas corpus. Therefore, the exhaustion requirement of 28 U.S.C. § 2254(b) is satisfied as to those claims. As discussed below, some of Petitioner's claims of ineffective assistance of trial and appellate counsel claims, raised in Grounds 4 and 7, have not been presented to the OCCA. However, in light of the procedural posture of this case, "there is an absence of available State corrective...