Hamburger v. Allbaugh

• Decision Date: 24 May 2016
• Docket Number: Case No. CIV-13-921-F
• Parties: ISAIAH C. HAMBURGER, Petitioner, v. JOE M. ALLBAUGH, Director, Respondent.
• Court: U.S. District Court — Western District of Oklahoma

ISAIAH C. HAMBURGER, Petitioner, v. JOE M. ALLBAUGH, Director, Respondent.¹

Case No. CIV-13-921-F

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA

May 24, 2016

REPORT AND RECOMMENDATION

Petitioner Isaiah C. Hamburger, a state prisoner appearing through counsel, has filed a Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus, challenging the constitutionality of his criminal conviction by the State of Oklahoma. See Pet. (Doc. No. 1). Respondent filed a Response (Doc. No. 13), and Petitioner filed a Reply (Doc. No. 18). United States District Judge Stephen P. Friot has referred this matter to the undersigned Magistrate Judge for initial proceedings in accordance with 28 U.S.C. § 636. As outlined herein, the undersigned recommends that the Petition be denied.

I. Relevant Case History and Issues Presented

On June 28, 2009, Petitioner's niece, four-year-old J.H., played and spent the night at her grandparents' house along with several relatives, including Petitioner. Vol. V Trial Tr. 39-48 (State v. Hamburger, No. CF-2009-1406 (Cleveland Cnty. Dist. Ct. Dec. 6-10,2010)) (Doc. No. 15) (conventionally filed). Approximately one week later, J.H. reported to other relatives that Petitioner "showed [her] his pee-pee" and "makes her do yucky things," including wanting her to "put his pee-pee in [her] mouth." Vol. III Trial Tr. 12, 41, 42-43.

Petitioner ultimately was charged with two felony counts of committing Lewd Acts with a Child under title 21, section 1123(A)(4) of the Oklahoma Statutes. Vol. I Trial Tr. 40; Am. Info. (Doc. No. 13-10, at 1) at 1. On December 10, 2010, following a jury trial in Cleveland County District Court, Petitioner was convicted on one count and acquitted on the other. See State v. Hamburger, No. CF-2009-1406 (Cleveland Cnty. Dist. Ct.) (docket entries of Dec. 10, 2010);² OCCA Summ. Op. (Doc. No. 13-5) at 1 n.1.³ In accordance with the jury's recommendation, Petitioner was sentenced to thirty-three years' imprisonment. OCCA Summ. Op. at 1; J. & Sentence (Doc. No. 13-1) at 1.

Petitioner appealed his conviction and sentence to the Oklahoma Court of Criminal Appeals ("OCCA"). See Hamburger v. State, No. F-2011-164 (Okla. Crim. App.); OCCA Summ. Op. at 1. On May 1, 2012, the OCCA affirmed Petitioner's conviction and sentence. See OCCA Summ. Op. at 8. Petitioner subsequently filed a petition for rehearing and request to recall the appellate court's mandate, which the OCCA denied. See Doc. Nos. 13-6, 13-7.

Petitioner then filed this federal habeas action, asserting the same seven grounds that were raised as Propositions I through VII in his direct appeal. See Pet. at 5, 11, 16; OCCA Summ. Op. at 1-2. Respondent concedes that Petitioner's claims are timely and that Petitioner exhausted his state-court remedies with respect to the grounds raised in the Petition. See Resp't's Resp. (Doc. No. 13) at 2; 28 U.S.C. §§ 2244(d), 2254(b)(1)(A).

II. Standard of Review

The Tenth Circuit has summarized the standard of review for evaluating state-court determinations that have been challenged in federal court through a 28 U.S.C. § 2254 habeas proceeding:

Under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), we must apply a highly deferential standard in § 2254 proceedings, one that demands that state-court decisions be given the benefit of the doubt. If a claim has been "adjudicated on the merits in State court proceedings," we may not grant relief under § 2254 unless 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." 28 U.S.C. § 2254(d)(1), (2). The phrase "clearly established Federal law, as determined by the Supreme Court of the United States," id. § 2254(d)(1), refers to the holdings, as opposed to the dicta, of the Court's decisions as of the time of the relevant state-court decision.

Under the "contrary to" clause of § 2254(d)(1), we may grant relief only if the state court arrives at a conclusion 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. And under the "unreasonable application" clause, we may grant relief only if the state court identifies the correct governing legal principle from the Court's decisions but unreasonably applies that principle to the facts of the prisoner's case. An unreasonable application of federal law is different from an incorrect application of federal law. Indeed, a federal habeas court may not issue the writ simply because that court concludes in itsindependent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly.

Dodd v. Trammell, 753 F.3d 971, 982 (10th Cir. 2013) (alterations, citations, and internal quotation marks omitted). Pursuant to AEDPA, factual determinations made by a state court are presumptively correct and may be rebutted only by "clear and convincing evidence." 28 U.S.C. § 2254(e)(1).

III. Analysis

A. Ground One: Admission of Videotaped Interview of Victim

In Ground One, Petitioner argues that he was denied a fair trial because the trial court admitted a videotaped forensic interview of J.H. in which the interviewer failed to follow accepted protocols, thus rendering the victim's statements unreliable. See Pet. at 5-7; Pet'r's Reply (Doc. No. 18) at 4-7.

1. Background

In November 2010, the State filed notice of its intent to offer J.H.'s prior statements into evidence at trial. See Mot. Hr'g Tr. 5 (State v. Hamburger, No. CF-2009-1406 (Cleveland Cnty. Dist. Ct. Dec. 2, 2010)) (Doc. No. 15). The trial court, pursuant to title 12, section 2803.1(A)(1) of the Oklahoma Statutes, held a hearing regarding the admissibility of J.H.'s statements—including those reflected in the video of a forensic interview of J.H. conducted in July 2009—prior to admitting them at trial. See Mot. Hr'g Tr. 6-37, 39-62; Vol. I Trial Tr. 5; Okla. Stat. tit. 12, § 2803.1 (2001 & Supp. 2008). The trial court, after reviewing the video but without issuing specific findings as to the reliability of the statements, allowed the videotaped interview to be admitted intoevidence, subject to cross-examination as to the means and method of the interviewer. Vol. I Trial Tr. 5; Vol. IV Trial Tr. 23. Petitioner, through his trial counsel, argued against admission of J.H.'s recorded statements at the pretrial hearing and, at trial, renewed his objection to admission of the interview of J.H. See Mot. Hr'g Tr. 6, 60-62; Vol. IV Trial Tr. 22-23.

On direct appeal, Petitioner argued that the trial court's admission of the videotaped interview constituted reversible error and violated Petitioner's right to due process because the statements therein lacked sufficient indicia of reliability as required by section 2803.1. Pet'r's Appellate Br. (Doc. No. 13-2) at 18-23; OCCA Summ. Op. at 1. The OCCA rejected this argument, stating:

[T]he trial court did not abuse its discretion in admitting the victim's videotaped forensic interview under [Okla. Stat. tit. 12, § 2803.1]. A hearsay statement of a child under 13, describing an act of sexual abuse, is admissible if (1) after a hearing the court finds that the time, content and totality of circumstances surrounding the taking of the statement provide sufficient indicia of reliability to render it inherently trustworthy, and (2) the child either (a) testifies or (b) is unavailable to testify. [Okla. Stat. tit. 12, § 2803.1.] In determining trustworthiness, the court considers (a) the spontaneity and consistent repetition of the statements; (b) the mental state of the declarant; (c) whether the terminology used is unexpected for a child of similar age; and (d) if there is a lack of motive to fabricate. Id. After a lengthy hearing, the trial court ruled that the statement was admissible. This ruling failed to describe the specific facts and circumstances supporting the court's finding. However, this omission does not require relief if the facts and circumstances of the hearing show that the ruling was not an abuse of discretion. The record amply supports the trial court's decision.

Hamburger argues in Proposition I that the forensic interviewer's failure to follow standard interview protocols rendered the videotaped statement untrustworthy under § 2803.1, and thus inadmissible. No law supports this claim. While the statute sets out criteria for trustworthiness, necessary for admission of the statement, the statute does not specify thatany particular form of questioning must be used to satisfy those criteria. The trial court must examine the evidence presented at the hearing and find that the circumstances surrounding the making of the statement satisfy the admissibility requirements of the statute. Once that determination is made, the question of professional protocols goes to the statement's weight and credibility.

OCCA Summ. Op. at 2-3 (citations omitted).

2. Discussion

To the extent Petitioner argues that the videotaped interview was not properly admissible under Oklahoma's child hearsay statute, he has not established an entitlement to relief: "federal habeas corpus relief does not lie for errors of state law" such as violation of a state's evidence code. Estelle v. McGuire, 502 U.S. 62, 67 (1991) (internal quotation marks omitted); see, e.g., Durbin v. Province, 448 F. App'x 785, 787 (10th Cir. 2011) ("It is not the responsibility of a federal habeas court to cure errors from the state court concerning state law."). The Court "will only consider state law evidentiary questions on habeas 'if the alleged error was so grossly prejudicial that it fatally infected the trial and denied the fundamental fairness that is the essence of due process.'" Durbin, 448 F. App'x at 787 (quoting Revilla...