Hallmark v. Martin
| Decision Date | 14 September 2000 |
| Docket Number | No. 97-CV-567-H(J).,97-CV-567-H(J). |
| Citation | 112 F.Supp.2d 1122 |
| Parties | Cecil HALLMARK, Petitioner, v. Tom MARTIN, Respondent. |
| Court | U.S. District Court — Northern District of Oklahoma |
Cecil Wayne Hallmark, Hinton, OK, pro se.
Patrick T Crawley, Office of the Attorney General, State of Oklahoma, Oklahoma City, OK, for Tom Martin, respondents.
The Court has for consideration the Report and Recommendation (the "Report") of the U.S. Magistrate Judge entered on August 25, 2000 (Docket # 27), in this habeas corpus action brought pursuant to 28 U.S.C. § 2254. The Magistrate Judge recommends that Petitioner's petition for a writ of habeas corpus be denied. Neither party has filed an objection to the Report and the time for filing an objection has passed.
Having reviewed the Report and the facts of this case, pursuant to Rule 8(b) of the Rules Governing Section 2254 Cases and 28 U.S.C. § 636(b)(1)(C), the Court concludes that the Report should be adopted and affirmed.
ACCORDINGLY, IT IS HEREBY ORDERED that:
1. The Report and Recommendation of the Magistrate Judge (# 27) is adopted and affirmed.
2. The petition for a writ of habeas corpus is denied.
IT IS SO ORDERED.
REPORT AND RECOMMENDATION
TABLE OF CONTENTS
I. PROCEDURAL BACKGROUND ....................................................................1125
II. EXHAUSTION OF STATE REMEDIES .............................................................1127
III. PROCEDURAL DEFAULT/ PROCEDURAL BAR .......................................................1128
A. THE CLAIMS PETITIONER RAISED FOR THE FIRST TIME IN HIS
APCR, OTHER THAN HIS INEFFECTIVE ASSISTANCE OF APPELLATE
COUNSEL CLAIM, ARE PROCEDURALLY BARRED ...............................................1128
1. Cause and Prejudice ................................................................1129
2. Fundamental Miscarriage of Justice .................................................1129
3. Petitioner's Ineffective Assistance of Trial Counsel Claim .........................1129
IV. PETITIONER IS NOT ENTITLED TO HABEAS ON HIS NON-DEFAULTED
CLAIMS ................................................................................1130
A. INTRODUCTION ..........................................................................1130
B. STANDARD OF REVIEW ....................................................................1130
C. EVIDENTIARY HEARING ...................................................................1132
D. PROSECUTORIAL MISCONDUCT ..............................................................1132
E. ONE-PERSON-SHOW-UP IDENTIFICATION .....................................................1135
F. BURGLARY JURY INSTRUCTION .............................................................1135
G. INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL ...........................................1136
1. Constitutional Standard ............................................................1136
2. Ineffectiveness of Appellate Counsel As Establishing Sufficient "Cause"
to Permit the Court to Review Petitioner's Procedurally Barred
Claims ...........................................................................1137
3. Appellate Counsel's Failure to Raise Flores Issue on Petitioner's Direct
Appeal to the OCCA ...............................................................1138
Now before the Court is Petitioner's pro se Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. Petitioner is currently imprisoned in the Great Plains Correctional Facility, an Oklahoma State Penitentiary in Hinton, Oklahoma. Petitioner challenges the sentence he received on April 28, 1993 after being convicted by a jury in Tulsa County, Oklahoma in case number CF-92-5200. For the reasons discussed below, the undersigned recommends that Petitioner's petition for a writ of habeas corpus be DENIED.
On April 7th and 8th of 1993, Petitioner was tried and convicted by a jury of the following offenses, with the jury recommending the following sentences: Count I, first degree rape, 75 years; Count II, first degree burglary, 12 years; Count III, attempted rape in the first degree, 23 years; and Count IV, sexual battery, 5 years. Petitioner was sentenced on April 28, 1993 in accordance with the jury's recommendation. Petitioner's sentences were ordered to run consecutively. Petitioner was represented at his trial by Charles Hamit, an attorney retained by Petitioner.
Petitioner filed a timely appeal from his April 1993 convictions to the Oklahoma Court of Criminal Appeals ("OCCA"). Petitioner was represented on his direct appeal by Thomas Purcell, an attorney with the Oklahoma Appellate Indigent Defender's Officer appointed by the trial court. Petitioner raised the following errors/issues in his direct appeal:
I. The trial court's sentence was excessive;
II. The trial court erred by failing to order a pre-sentence investigation;
III. The trial judge erred in sentencing Petitioner in accordance with the jury's recommendation, and in finding that the sentences should run consecutively, without exercising his own discretion;
IV. Juror misconduct and request for evidentiary hearing based on an allegation made by Petitioner at his sentencing that one of the jurors had a neighbor who was related to the victim;
V. Prosecutor engaged in misconduct when in his closing argument he appealed to societal alarm and the jury's sympathy for the victim;
VI. The trial court erred in failing to suppress the one-person-show-up identification of Petitioner by the victim on the night Petitioner was arrested and the victim was raped;
VII. Convicting Petitioner for rape, attempted rape, and sexual battery, because they were all based on the same criminal act or transaction, amounts to double punishment and violates the prohibition against double jeopardy; and
VIII. The trial court failed to correctly instruct the jury regarding the "breaking" element necessary for a conviction of first degree burglary.
See Doc. No. 20, Exhibit "A."
The OCCA considered Petitioner's direct appeal on the merits, and issued its opinion on November 22, 1995. The OCCA found merit in Petitioner's failure to order a pre-sentence investigation and double jeopardy arguments. The OCCA remanded the case with instructions (a) to dismiss Count III, attempted rape, and Count IV, sexual battery; and (b) to resentence Petitioner on Count I, first degree rape, and Count II, first degree burglary, after a pre-sentence investigation had been prepared. The OCCA rejected the remainder of Petitioner's arguments on the merits without discussion. See Doc. No. 20, Exhibit "B." Petitioner was resentenced on March 11, 1996 to 75 years on Count I, first degree rape, and to 12 years on Count II, first degree burglary. These sentences were ordered to run consecutively.
Petitioner filed an application for post-conviction relief ("APCR") on August 26, 1996. Petitioner asserted the following issues/errors in his APCR:
A. Ineffective assistance of counsel at the trial and appellate levels;
B. The trial court used an erroneous "presumed not guilty" instruction, rather than a "presumed innocent" instruction;
C. Insufficient evidence to support a verdict for burglary, there being no evidence to establish the breaking or intent elements;
D. During the jury's deliberation, the trial court incorrectly answered a question posed by the jury regarding whether a phone message slip in evidence was found on Petitioner the night of his arrest;
E. The prosecutor engaged in misconduct by using the victim's identification testimony when the prosecution knew that the victim did not recognize Petitioner.
F. Insufficient evidence to support any conviction given circumstantial nature of the evidence; and
G. Denial of due process due to juror misconduct, and the trial court failed to hold an evidentiary hearing when the issue was raised at his April 1993 sentencing.
See Doc. No. 20, Exhibit "C."
The trial court denied Petitioner's APCR on November 4, 1996. The trial court determined that an evidentiary hearing was not required. The trial court determined that all of Petitioner's alleged errors were procedurally barred, except for his ineffective assistance of counsel claim. The trial court found that issues # C and # E were raised during Petitioner's direct appeal, and were, therefore, barred by the doctrine of res judicata. The trial court found that issues # B, # D # F and # G had been waived on an application for post-conviction relief because they could have been raised on direct appeal but were not, and Petitioner failed to offer a sufficient reason for his failure to raise these issues on direct appeal. The trial court then addressed Petitioner's ineffective assistance of counsel claim on the merits. Applying the test announced in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the trial court found that Petitioner failed to establish the first element articulated in Strickland as to either his trial counsel or appellate counsel. That is, the trial court found that the performance of Petitioner's trial and appellate counsel was objectively reasonable under the circumstances. See Doc. No. 20, Exhibit "D."
Petitioner timely appealed to the OCCA the trial court's denial of his APCR. In his petition in error to the OCCA, Petitioner raised the same errors/issues he had raised in his APCR before the trial court, and argued against the trial court's application of res judicata and waiver to his claims. The OCCA affirmed the trial court's denial of Petitioner's APCR on February 7, 1997. Specifically, the OCCA affirmed the trial court's procedural bar of all of Petitioner's "non-ineffective assistance of counsel claims" on res judicata and...
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... ... Following Seventh Circuit precedent, see Martin v. United States, 109 F.3d 1177, 1178 (7th Cir.1996), cert. denied, 522 U.S. 931, 118 S.Ct. 335, 139 L.Ed.2d 260 (1997); Durrive v. United ... The parties do not cite any case law involving such a situation. The only published case found by this court was Hallmark v. Martin, 112 F.Supp.2d 1122, 1139-40 (N.D.Okla.2000). 6 After Hallmark's state court appeal was briefed, the Oklahoma Court of Criminal Appeals ... ...
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