Hewitt v. Parker
| Decision Date | 06 February 2012 |
| Docket Number | Case No. 08-CV-227-TCK-TLW |
| Parties | KENNETH D. HEWITT, Petitioner, v. DAVID PARKER, Warden, Respondent. |
| Court | U.S. District Court — Northern District of Oklahoma |
This is a 28 U.S.C. § 2254 habeas corpus action. By Opinion and Order filed February 8, 2011 (Dkt. # 58), the Court determined that Petitioner was entitled to an evidentiary hearing on his claim of ineffective assistance of counsel. The evidentiary hearing was held on May 2, 2011. Petitioner was represented by attorney Ryan Ray. Respondent was represented by Assistant Attorney General Jay Schniederjan. At the conclusion of the hearing, the Court directed the parties to file proposed findings of fact and conclusions of law. The parties have complied with the Court's directive. See Dkt. #s 72 and 75. For the reasons discussed below, the Court finds that Petitioner's trial and direct appeal were marred by ineffective assistance of counsel. Petitioner is entitled to a new trial. Therefore, the petition for writ of habeas corpus shall be granted, conditioned on the State's commencement of new trial proceedings within 120 days of the entry of this Order.
The Court has previously summarized the facts of this case. See Dkt. # 58. In brief, Petitioner Kenneth D. Hewitt was charged in Rogers County District Court, Case No. CF-2004-574, with Lewd Acts With a Child, After Former Conviction of Two or More Felonies. Petitioner refused two plea offers and proceeded to be tried by a jury on September 14-15, 2005. At trial, he was representedby attorney Timothy Wantland. On the first day of trial, prior to jury selection, Mr. Wantland advised the trial judge that Petitioner waived his statutory right to a bifurcated trial and that he anticipated Petitioner would testify in his own defense. The trial judge made a record to memorialize Petitioner's decision to waive a bifurcated trial and his decision to reject the State's final plea offer. Petitioner acknowledged to the trial judge that the State had made a plea offer of 15 years in custody of the Oklahoma Department of Corrections, that trial counsel advised him that he faced 20 years to life if convicted by the jury, but that it was his decision to reject the plea offer and to waive a bifurcated trial. During voir dire, defense counsel told prospective jurors at least two (2) times that he anticipated Petitioner would testify in his own defense. Defense counsel also told the jurors that Petitioner had three (3) prior felony convictions, and that one was a "sex-related charge." In addition, Mr. Wantland's entire opening statement was based on what Petitioner would tell the jury when he testified.
During trial, the State presented the testimony of three witness: S.M., the victim; Christopher Don Hopkins, the victim's father; and Douglas Spencer, the police officer who arrested Petitioner. First, S.M., who was eleven (11) years old at the time of the incident, testified that on September 17, 2004, between 7 and 8 p.m., he went outside the apartment where he lived with his father in Catoosa, Oklahoma, to empty his cat's litter box. As he completed the task, he was approached by a man who asked him, "Do you like the stars?" While the man continued to ask questions, S.M. saw the man put his hand in his pants and "play with himself." The man asked S.M. if he "like to jaculate [sic]," and then said "I like to jaculate [sic]." As S.M. turned to leave, the man grabbed S.M.'s pants and said, "Please don't tell anybody." S.M. returned to his apartment where he told his father what had happened. Christopher Hopkins testified that after S.M. told him what hadhappened, he then called the police. Douglas Spencer, one of the officers who responded to the call testified that Petitioner was found in a grassy area near the apartment complex. His physical description, including the description of the clothes he was wearing and the items he carried, including a ball cap, a dark coat, and QuikTrip mug, matched the description given by S.M. Mr. Wantland cross-examined all three witnesses. However, nothing in his cross-examination served to advance a defense theory or to impeach the witnesses' credibility.
At the end of the first day of trial, on September 14, 2005, the State rested and the trial judge overruled defense counsel's demurrer. The jury was excused for the evening recess. Trial was scheduled to resume at 9:00 a.m., on the morning of September 15, 2005. However, Mr Wantland and the prosecutor first entered the courtroom at about 9:30 a.m., followed by the trial judge who made an expressly off-the-record comment apologizing to the jury for the delay, but stating that the delay "saved you four hours." The judge then instructed the court reporter to go on the record and the trial resumed. First, certified copies of Petitioner's prior judgments and sentences,1 along with 3 photographs of the apartment complex, were entered by stipulation. The defense then rested without offering the testimony of Petitioner or any other witness. After hearing the attorneys' closing arguments, including the prosecutor's request that the jury find Petitioner guilty and recommend a sentence of 250 years, the jury returned a verdict of guilty as charged and recommended a sentence of 125 years imprisonment.
On October 6, 2005, the trial court judge sentenced Petitioner to 125 years imprisonment in accordance with the jury's recommendation. Defense counsel lodged no objection to the recommended sentence when afforded the opportunity prior to entry of the sentence.
Petitioner appealed his conviction to the Oklahoma Court of Criminal Appeals ("OCCA"). Represented by attorney Thomas D. McCormick,2 he raised two (2) propositions of error:
See Dkt. # 17, Ex. 1. In an unpublished summary opinion filed July 7, 2006, in Case No. F-2005-1019 (Dkt. # 17, Ex. 3), the OCCA rejected both claims and affirmed the Judgment and Sentence of the trial court.
On October 17, 2007, Petitioner filed his application for post-conviction relief (Dkt. # 17, Ex. 4) in the state district court. By order filed December 13, 2007 (Dkt. # 17, Ex. 5), the state district court denied relief on Petitioner's claims that he was improperly denied free transcripts, he was denied the right to testify on his own behalf, the trial court committed error by failing to conduct a bifurcated trial, the trial court erred in failing to properly instruct the jury regarding the significance of the 85% Rule, prosecutorial misconduct, he was denied his right to an impartial jury, the trial court erred by allowing a prosecution witness who was not on the witness list, he was denied allocution, and he was denied effective assistance of trial and appellate counsel. Petitioner appealed to the OCCA. By Order filed February 28, 2008 (Dkt. # 17, Ex. 6), the OCCA affirmed the denial of post-conviction relief.
On March 4, 2008, Petitioner filed his federal petition for writ of habeas corpus (Dkt. # 1) and supporting brief (Dkt. # 4) in the United States District Court for the Western District of Oklahoma. By Order filed April 21, 2008, the case was transferred to this Court. In his supporting brief, Petitioner identifies six (6) grounds for relief, as follows:
See Dkt. # 4. In response to the petition, Respondent states that the petition is timely but asserts that Petitioner's claims are not cognizable in these proceedings, or do not justify relief under 28 U.S.C. § 2254(d), or are procedurally barred. See Dkt. # 17.
By Opinion and Order filed February 8, 2011, the Court determined that Petitioner was entitled to an evidentiary hearing on his claim of ineffective assistance of counsel for refusing to allow him to testify. That hearing was held on May 2, 2011. Upon consideration of the evidence presented at the hearing, the Court finds Petitioner is entitled to habeas corpus relief on those claims.
Before addressing any claim raised in the petition, the Court must determine whether Petitioner meets the exhaustion requirement of 28 U.S.C. § 2254(b) and (c). See Rose v. Lundy, 455 U.S. 509, 510 (1982). Consideration of Petitioner's claims is not precluded by the exhaustion requirement.3
The Antiterrorism and Effective Death Penalty Act ("AEDPA") provides the standard to be applied by federal courts reviewing constitutional claims brought by prisoners challenging state convictions. Under the AEDPA, when a state court has adjudicated a claim, a petitioner may obtain federal habeas relief only if the state 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." See 28 U.S.C. § 2254(d); Williams v. Taylor, 529 U.S. 362, 402 (2000); Neill v. Gibson, 278 F.3d 1044, 1050-51 (10th Cir. 2001)...
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