Heard v. Bear
| Decision Date | 06 February 2020 |
| Docket Number | Case No. 16-CV-671-JED-JFJ |
| Parties | DAVID GLEN HEARD, Petitioner, v. CARL BEAR, Warden, Respondent. |
| Court | U.S. District Court — Northern District of Oklahoma |
Before the Court is David Glen Heard's 28 U.S.C. § 2254 habeas corpus petition (Doc. 1). Petitioner challenges his convictions for lewd molestation in Tulsa County District Court, Case No. CF-2006-2945. For the reasons below, the Court will deny the petition.
This case stems from an incident at a Tulsa Walmart in 2006. (Doc. 10-3 at 2).1 Petitioner encountered a seven year-old girl, T.D., who was shopping with her mother, Nettie. (Id.). He positioned himself on the floor so that he could look up T.D.'s dress. (Id.). Nettie confronted Petitioner and tried to move away, but he continued to follow them as they walked towards the swimwear section. (Id. at 3). Later, Petitioner encountered nine year-old C.R., who was also shopping at Walmart with her mother. (Id.). He initially tried to block C.R.'s path before following her to the shoe department. (Id.). C.R. eventually sat on the floor with her knee pulled up to try on a pair of shoes. (Id.). Petitioner dropped down and placed his cheek on the floor to look up C.R.'s skirt. (Id. at 4). A Walmart employee intervened and contacted security. (Id.). Police laterarrested Heard after determining he was a registered sex offender. (Id.).
The State charged Petitioner with two counts of lewd molestation after two or more felonies (OKLA. STAT. tit. 21, § 1123).2 (Doc. 11-12 at 29). Petitioner originally pled guilty to both counts. (Doc. 10-1 at 5). The state judge accepted the plea and sentenced him to a total term of 25 years imprisonment. (Id.). The sentence also ran concurrent with Creek County Case No. CF-1998-296 (). (Id.). After sentencing, Petitioner filed an application for post-conviction relief. (Id.). The case eventually proceeded to the Tenth Circuit Court of Appeals, which granted habeas relief and allowed Petitioner to withdraw his plea. (Id.).
The state court permitted Petitioner to withdraw his plea, in accordance with the Tenth Circuit's instructions, and Petitioner went to trial on May 12, 2014. (Doc. 11-7). His defense theory was that his actions did not constitute lewd molestation. (Doc. 10-1 at 7). After a four-day trial, the jury convicted Petitioner of all charges and recommended a punishment of 20 years imprisonment on each count. (Doc. 11-10 at 66). The state court sentenced him accordingly, with the sentences running consecutively. (Doc. 11-11 at 9).
Petitioner perfected a direct appeal to the Oklahoma Court of Criminal Appeals (OCCA). By a summary opinion entered September 3, 2015, the OCCA affirmed the conviction and sentence. (Doc. 10-3). Petitioner then sought post-conviction relief, which the OCCA also denied. (Doc. 10-4; see also Doc. 10-7). Petitioner filed the instant § 2254 petition (Doc. 1) on November 4, 2016. He identifies four grounds of error:
Respondent filed an answer (Doc. 10), along with relevant portions of the state court record (Doc. 11). Respondent concedes, and the Court finds, that the Petition is timely. (Doc. 10 at 2); see also 28 U.S.C. §§ 2244(d)(1). However, Respondent contends Petitioner failed to exhaust Grounds 1 and 2, and that the remaining claims fail on the merits. (Doc. 10). Petitioner filed a reply brief (Doc. 12) on March 6, 2017, and the matter is ready for review.
The Antiterrorism and Effective Death Penalty Act (AEDPA) governs this Court's review of petitioner's habeas claims. See 28 U.S.C. § 2254. Relief is only available under the AEDPA where the petitioner "is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). Further, because the OCCA already adjudicated petitioner's claims, this Court may not grant habeas relief unless he demonstrates that the OCCA's ruling: (1) "resulted in a decision that was contrary to . . . clearly established Federal law as determined by [the] Supreme Court of the United States," 28 U.S.C. § 2254(d)(1);3 (2) "resulted in a decision that . . . involved an unreasonable application of clearly established Federal law," id.; or (3) "resulted in a decision that was based on an unreasonable determination of the facts" in light of the record presented tothe state court, id. at § 2254(d)(2).
"To determine whether a particular decision is 'contrary to' then-established law, a federal court must consider whether the decision 'applies a rule that contradicts [such] law' and how the decision 'confronts [the] set of facts' that were before the state court." Cullen v. Pinholster, 563 U.S. 170, 182 (2011) (alterations in original) (quotations omitted). When the state court's decision "identifies the correct governing legal principle in existence at the time, a federal court must assess whether the decision 'unreasonably applies that principle to the facts of the prisoner's case." Id. (quotations omitted). Significantly, an "unreasonable application of" clearly established federal law under § 2254(d)(1) "must be objectively unreasonable, not merely wrong." White v. Woodall, 134 S. Ct. 1697, 1702 (2014) (quotations omitted). "[E]ven clear error will not suffice." Id. Likewise, under § 2254(d)(2), "a state-court factual determination is not unreasonable merely because the federal habeas court would have reached a different conclusion in the first instance." Wood v. Allen, 558 U.S. 290, 301 (2010). The Court must presume the correctness of the OCCA's factual findings unless petitioner rebuts that presumption "by clear and convincing evidence." 28 U.S.C. § 2254(e)(1).
Essentially, the standards set forth in § 2254 are designed to be "difficult to meet," Harrington v. Richter, 562 U.S. 86, 102 (2011), and require federal habeas courts to give state court decisions the "benefit of the doubt." Woodford v. Visciotti, 537 U.S. 19, 24 (2002). A state prisoner ultimately "must show that the state court's ruling ... was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Richter, 562 U.S. at 103.
Petitioner first argues the lewd molestation statute (OKLA. STAT. tit. 21, § 1123) is unconstitionally vague as it applies to him. (Doc. 1 at 3). Specifically, he contends the statute does not indicate that looking upon a child's underwear is prohibited. Petitioner further argues the statute could criminalize a wide range of behavior that involves looking at clothed minors.
Respondent contends an anticipatory bar applies to Ground 1 because Petitioner failed to raise it on appeal. Respondent points to the OCCA opinion, which notes Petitioner never argued the lewd molestation statute "was unconstitutionally vague as applied to him." (Doc. 10-3 at 7-8) (emphasis in original). Nevertheless, the OCCA went on to analyze Petitioner's void-for-vagueness challenge based on "the facts of the case at hand," and "on an as-applied basis." (Id. at 7). The Court therefore finds no procedural bar exists and will reach the merits of Ground 1.
Section 1123 prohibits "look[ing] upon ... the body or private parts of any child under sixteen ... in any lewd or lascivious manner by any acts against public decency and morality." OKLA. STAT. tit. 21, § 1123(A)(2). The OCCA concluded such language "sufficiently warned [Petitioner] that positioning himself on the ground in order to look up the skirts of young girls in order to see their vaginal area fell within § 1123(A)(2)'s" definition of criminal conduct. (Doc. 10-3 at 8). The opinion noted that the "lewd and lascivious manner" requirement narrowed the statute, and that Petitioner admitted "to looking at each victim's 'private spot;'" that he realized it was wrong; and that seeing the "little girl in the shopping cart with her legs spread and panties exposed 'got [him] going.'" (Id. at 9-10). The OCCA also rejected the notion that § 1123 would criminalize "a casual glance at a [clothed] child." (Id. at 11). Citing Hill v. Colorado, 530 U.S. 703, 733 (2000), the opinion reasoned that "speculation about possible vagueness in hypothetical situationsnot before the court will not support a facial attack on a statute when it is surely valid in the vast majority of its intended applications." (Id.).
The same general standard applies under Oklahoma and federal law. "[T]he void-for-vagueness doctrine requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement." United States v. Hunter, 663 F.3d 1136, 1141 (10th Cir. 2011) (citing Kolender v. Lawson, 461 U.S. 352, 357 (1983)). "When considering a vagueness challenge ..., courts begin with 'the presumption that the statute comports with the requirements of federal due process and must be upheld unless satisfied beyond all reasonable doubt that the legislature went beyond the confines of the Constitution." United States v. Welch, 327 F.3d 1081, 1094 (10th Cir. 2003). In other words, "all that is required is that the language 'conveys sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices....'" Hunter, 663 F.3d at 1142 (quoting Roth v. United States, 354 U.S. 476, 491 (1957)). "Vagueness challenges to statutes which do not involve First Amendment freedoms must be examined in light of the facts of the case at hand." United States v. Saffo, 227 F.3d 1260, 1270 (10th Cir. 2000) (quoting Village of Hoffman Estates v....
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