Holcomb v. Whitten

• Decision Date: 14 March 2019
• Docket Number: Case No. 16-CV-0159-TCK-FHM
• Parties: TERRY KENT HOLCOMB, II, Petitioner, v. RICK WHITTEN, Respondent.
• Court: United States District Courts. 10th Circuit. Northern District of Oklahoma

TERRY KENT HOLCOMB, II, Petitioner,
v.
RICK WHITTEN,¹ Respondent.

Case No. 16-CV-0159-TCK-FHM

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OKLAHOMA

March 14, 2019

OPINION AND ORDER

Before the Court is the 28 U.S.C. § 2254 petition for writ of habeas corpus (Dkt. # 2) filed by Petitioner Terry Kent Holcomb, II, a state inmate appearing through counsel. Petitioner challenges the constitutional validity of the judgment and sentence entered against him in the District Court of Tulsa County, Case No. CF-2011-754. In that case, a jury convicted Petitioner of five counts of child sexual abuse, in violation of OKLA. STAT. tit. 21, § 843.5(E), and fixed punishment at five years in prison and a $500 fine for each count. The trial court sentenced Petitioner accordingly, and ordered the sentences to be served consecutively and followed by a three-year term of probation. Petitioner alleges he is entitled to federal habeas relief because (1) the trial court violated his constitutional right to present a complete defense by excluding critical evidence and (2) appellate counsel

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violated his constitutional right to the effective assistance of counsel by failing to raise a meritorious double-jeopardy claim. Respondent filed a response in opposition to the petition (Dkt. # 14), and Petitioner filed a reply (Dkt. # 20). Both parties provided the state court record (Dkt. ## 3, 14, 15) necessary to adjudicate Petitioner's claims.² For the reasons that follow, the Court denies Petitioner's request for an evidentiary hearing, denies the petition for writ of habeas corpus, and declines to issue a certificate of appealability as to any issues raised in the petition.

BACKGROUND

In August 2010, Petitioner moved to Tulsa, Oklahoma, with his two children, T.H. and O.H, and his ex-wife's daughter, N.H.³ Tr. vol. 1, at 72, 75; Tr. vol. 3, at 399-401; Tr.

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vol. 6, at 1007. At the time, N.H. was 10 years old and in the fourth grade. Tr. vol. 1, at 74-80.

Sometime in February 2011, N.H. told two of her friends, S.E. and B.E., that she and her father "had sex." Tr. vol. 1, at 80, 91-92, 119-21; Tr. vol. 2, at 161. S.E. told her mother about N.H.'s disclosure. Tr. vol. 4, at 470, 473-77, 492-94. On February 23, 2011, S.E.'s mother reported the disclosure to the Department of Human Services (DHS) and to the counselor at N.H.'s school. Id. at 492-94; Tr. vol. 3, at 315, 317, 342-43. The school counselor, Bobbie Fields, separately spoke with S.E., B.E., and N.H. Tr. vol. 2, at 154, 163-70. N.H. confirmed that she told S.E. and B.E. that she and her dad "had been having sex." Id. at 170-71. N.H. also told Fields that she and her father "had sex sometimes about once a week," that "it had only hurt the first time," and that "he had told her he would have to stop after she started getting her period anyway because she could get pregnant." Id. at 171, 174. Fields asked N.H. what she meant by "sex," and N.H. explained that "he put his privates in her privates." Id. at 174-75. Fields contacted DHS and the school resource officer, David Cotney. Id. at 169, 176, 182-83. Cotney, in turn, contacted the Tulsa Police Department. Id. at 182-83.

Tulsa Police Officer John West drove to N.H.'s school, took N.H. into protective custody, and transported her to the Justice Center in Tulsa, Oklahoma. Tr. vol. 2, at 191-94. There, David Glanz, a forensic interviewer employed by the Child Abuse Network, interviewed N.H. Tr. vol. 2, at 191-94, 198-204. That same day, Dr. Mike Baxter, a child abuse pediatrician, examined N.H. and noted possible injuries to her hymenal tissue. Id. at 242-43; Tr. vol. 3, at 266-70. On February 28, 2011, N.H. returned to the Justice Center

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for a follow-up examination. Tr. vol. 2, at 270. Dr. Nichole Wallace, a child abuse pediatrician, examined N.H. and found "nothing abnormal." Tr. vol. 2, at 235; Tr. vol. 2, at 267-72.

Based on the forensic interview, the medical examinations and a police investigation, the State charged Petitioner, in the District Court of Tulsa County, Case No. CF-2011-754, with five counts of child sexual abuse in violation of OKLA. STAT. tit. 21, § 843.5(E). Dkt. # 15-1, O.R. vol. 1, at 39-42. In each count, the State alleged:

[Petitioner] on or about between 7/1/2010 and 2/23/2011, in Tulsa County, State of Oklahoma and within the jurisdiction of this Court, did commit the crime of CHILD SEXUAL ABUSE, a Felony, by unlawfully, feloniously, willfully, maliciously and intentionally, sexually abusing one N.H., a child under the age of 18, to-wit: 10 years of age, and did then and there sexually abuse said child by inserting his penis in her vagina. This incident occurred at 10620 E. 66th St. #167, Tulsa, Tulsa County, Oklahoma, while the child was under the care and custody of the defendant, who was N.H.'s step-father residing in the same home with her and therefore a person responsible for her care.

Id. At the conclusion of a five-day trial, the jury found Petitioner guilty as charged. Tr. vol. 7, at 1136. On February 19, 2013, the trial court sentenced Petitioner, in accordance with the jury's recommendations, to five years imprisonment and a $500 fine for each conviction. App. D713-D15. The trial court ordered the sentences to be served consecutively and to be followed by a three-year term of probation. Id. at D714.

Represented by counsel, Petitioner filed a timely direct appeal raising four propositions of error:

I. The trial court erred by allowing other "bad acts" evidence to be admitted.
II. The trial court erred by not allowing defense to present evidence supporting his defense.

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III. The [Petitioner] was prejudiced [by] the State's failure to disclose evidence in violation of Allen v. District Ct. of Washington Co. and the Discovery Code.
IV. The trial court erred by omitting an instruction to the jury regarding inconsistent statements by N.H.

App. D41. By unpublished summary opinion filed May 22, 2014, in Case No. F-2013-197, the Oklahoma Court of Criminal Appeals (OCCA) affirmed Petitioner's convictions and sentences. App. D41-D48. Petitioner did not file a petition for writ of certiorari with the United States Supreme Court. Dkt. # 2, at 7.

Petitioner filed a pro se application for postconviction relief in state district court on February 9, 2015, raising nine propositions of error:

1) "The trial court impermissibly allowed evidence of other wrongs;"
2) "Prosecutorial misconduct in closing argument deprived the Petitioner of a fair trial;"
3) "Prosecutorial misconduct in offering perjured testimony from several witnesses deprived Petitioner of a fair trial;"
4) "Prosecutorial misconduct in improper communications with a defense witness and ex parte communications with the trial court deprived Petitioner of a fair trial;"
5) "The trial court erred in allowing perjured testimony to be offered from several witnesses which deprived the Petitioner of a fair trial;"
6) "Jury instruction regarding punishment did not comply with the statute;"
7) "The trial court did not have jurisdiction over Petitioner;"
8) "Ineffective assistance of appellate counsel;" and
9) "Cumulative error."

App. D71; see also App. D49-D66 (Petitioner's application for postconviction relief). The state district court denied relief by order filed June 1, 2015. App. D67-D76. On September 30, 2015, the OCCA affirmed the denial of postconviction relief. App. D77.

Petitioner filed the instant federal habeas petition on March 23, 2016. Dkt. # 2.

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ANALYSIS

Petitioner seeks federal habeas relief on two grounds. He claims (1) the trial court violated his rights, under the Sixth and Fourteenth Amendments, to present a complete defense and (2) appellate counsel's failure to raise a meritorious double-jeopardy claim violated his Sixth Amendment right to the effective assistance of counsel. Dkt. # 2, at 41, 54.

I. Claim One: Right to present a complete defense

Petitioner claims that the State violated his Sixth and Fourteenth Amendment rights to due process, to present witnesses, and to confront the witnesses against him. Dkt. # 2, at 41-58. He specifically alleges that

the trial court literally shut down [his] defense by refusing to allow him to put on four key pieces of evidence: (1) that he did not fit a sex offender profile, (2) that N.[H.]'s forensic interview was inconsistent with a child that has been sexually traumatized, (3) that N.[H.]'s physical exam was not consistent with studies of similar prepubescent children subjected to vaginal penetration for a prolonged period of time, and (4) that N.[H.]'s diary was inconsistent with a child that was being sexually traumatized.

Id. at 50.

Respondent contends that portions of Claim One are unexhausted and should be deemed procedurally defaulted, and that 28 U.S.C. § 2254(d) bars habeas relief on the exhausted portion of Claim One. Dkt. # 14, at 5-24.

A. Petitioner procedurally defaulted portions of Claim One

1. Exhaustion

The Court agrees with Respondent that Claim One is only partially exhausted because it is significantly broader than the claim Petitioner presented in state court. Dkt. #

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14, at 5. Before seeking federal habeas relief, a state prisoner must exhaust available state remedies, 28 U.S.C. § 2254(b)(1)(A), by "fairly present[ing] the substance of his federal habeas claim to state courts," Hawkins v. Mullin, 291 F.3d 658, 668 (10th Cir. 2002). The substance of a federal claim "includes not only the constitutional guarantee at issue, but also the underlying facts that entitle a petitioner to relief." Jeremy Williams v. Trammell, 782 F.3d 1184, 1210 (10th Cir. 2015) (Jeremy Williams). The AEDPA's exhaustion requirement "is designed to give the state courts a full and fair opportunity to resolve federal constitutional claims before those claims are presented to the federal courts." O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). To further that design, the claim presented in state court "must be the 'substantial equivalent' of its federal habeas counterpart."...