Loya v. Whitten, CIV-20-922-C

• Decision Date: 07 June 2021
• Docket Number: CIV-20-922-C
• Parties: ERNESTO RAY LOYA, Petitioner, v. RICK WHITTEN, Warden, [1] Respondent.
• Court: U.S. District Court — Western District of Oklahoma

ERNESTO RAY LOYA, Petitioner, v. RICK WHITTEN, Warden, ^[1] Respondent.

No. CIV-20-922-C

United States District Court, W.D. Oklahoma

June 7, 2021

REPORT AND RECOMMENDATION

SUZANNE MITCHELL UNITED STATES MAGISTRATE JUDGE

Petitioner Ernesto Ray Loya, initially proceeding pro se, seeks a writ of habeas corpus under 28 U.S.C. § 2254. Doc I.^[2] United States District Judge Robin J. Cauthron referred the matter to the undersigned Magistrate Judge for proceedings consistent with 28 U.S.C. § 636(b)(1)(B), (C). Doc. 3. Respondent filed a response, Doc. 14, and the state record which includes the jury-trial transcripts (TR.), the jury-trial exhibits (State's Ex. or Court's Ex.), and the original record for Alfalfa County Case Nos. CF-2014-65 (OR I) and CF-2016-24 (OR II). Doc. 16. Petitioner, through counsel, filed a reply brief. Doc. 19. For the reasons set forth below, the undersigned recommends the court deny habeas corpus relief.

I. The facts underlying Petitioner's convictions.

In 2014, Petitioner's son, G.L., repeatedly called 911 from his residence. TR. 178-79. Although the child was "quiet" and did not disclose his reason for making the calls to the investigating officer at the time, he later revealed his father had sexually abused him on multiple occasions when he was ten years old. Id. at 183, 191.

G.L. testified that the first occurrence of sexual abuse took place at his home in Cherokee, Oklahoma. Id. at 191-92. Petitioner "got off the couch and he started dragging [G.L.] up the stairs." Id. at 194. Petitioner threw G.L. on the bed in Petitioner's bedroom, tied him to the bed, and put a blindfold over his eyes. Id. at 195. Although G.L. tried, he was not strong enough to get Petitioner off of him. Id. G.L. stated that Petitioner "put[] his penis in [G.L.'s] butt." Id. G.L. also read into the record a statement recorded by his counselor addressing this incident, in which G.L. further stated he was scared and worried when his father dragged him up the stairs, G.L. was screaming, and Petitioner stuck a sex toy "on his butt" and another on his penis.^[3] Id. at 208-11; State's Ex. 4.

G.L. also testified Petitioner sexually abused him in a camper outside their residence. TR. 200. On that occasion, while G.L. and Petitioner did homework, Petitioner "crawled over the table and started having sex with [G.L.]" by "putting his penis in [G.L.'s] butt." Id. at 201-02. G.L. also read a statement into the record that additionally accused Petitioner of putting his penis inside G.L.'s mouth. Id. at 214-17; State's Ex. 6.

G.L. testified about a third occurrence of sexual abuse at the feed lot where his father worked. TR. 198, 204. Petitioner "took off his clothes in the break room and he came in and he shoved [G.L.] over the table and shoved his penis in [G.L.'s] mouth and in [G.L.'s] butt." Id. at 204. Petitioner then made G.L. stick his penis in Petitioner's mouth and "butt." Id. at 204-05. G.L. also read a statement into the record about the incident, explaining that he was "angry, upset, and confused," that he believed Petitioner snuck drugs into work, that Petitioner's breath smelled like crack and cocaine, and that Petitioner used a sex toy on him. Id. at 211-14; State's Ex. 5.

G.L. also testified that Petitioner showed him pornography on Petitioner's phone while at Petitioner's workplace that depicted "two men having sex" and "a man putting his penis in [a] girl[']s mouth and in her butt." TR. 197-98.

The police searched Petitioner's residence and found a phone, computer, multiple explicit adult magazines, a "blue robe tie," and a "pink sex toy." Id. at 246-47. And the police found nine sexually explicit magazines in the camper and one-hundred-six sexually explicit magazines in a white Ford Ranger. Id. at 249-50. Former Chief Andrew Minson testified two such magazines were entitled "Family Fun" and "Family Stuff," which described family members having sexual encounters. Id. at 251, 253-55; State's. Exs. 11, 12.

Steve Tanio, an investigator with the District Attorney's Council, conducted a forensic interview of G.L. TR. 309. Mr. Tanio testified that the blue robe tie in Petitioner's house was consistent with what G.L. said Petitioner had used during the sexual assault in Petitioner's bedroom. Id. at 313, 315; State's Ex. 10. Mr. Tanio also testified about three still images from videos found on Petitioner's computer, which-although not necessarily shown to G.L.- corroborated information he obtained from his interview with G.L. TR. 321, 328-30; State's Exs. 16-18.

Petitioner was charged with child sexual abuse and lewd molestation in Alfalfa County Case No. CF-2014-65 and forcible sodomy and first-degree rape in Alfalfa County Case No. CF-2016-24. OR I 56; OR II 38. The state court tried the cases together, and a jury convicted Petitioner of all counts. TR. 472-73. The trial court sentenced Petitioner to twenty years' imprisonment for child sexual abuse, five years' imprisonment for lewd molestation, and ten years' imprisonment for rape-all to be served consecutively. OR I 111; OR II 70. The trial court also sentenced Petitioner to ten years' imprisonment for forcible sodomy, to be served concurrently with his rape sentence. OR II 70.

II. Petitioner's claims.

Petitioner raises eleven grounds for relief:

Ground One: Hearsay testimony was improperly admitted because the trial court failed to abide by the standards set out in law.

Ground Two: The trial court erred in failing to require the prosecution to "elect between acts."

Ground Three: Because G.L.'s testimony was not "clear and convincing," it required corroboration. And, because the testimony was not adequately corroborated, this Court should find the evidence is insufficient to support [Petitioner's] convictions.

Ground Four: [Petitioner] was denied a fundamentally fair trial by the admission of prejudicial and cumulative evidence, as well as improper bolstering.

Ground Five: Admission of other bad acts evidence prejudiced the jury, deprived [Petitioner] of his fundamental right to a fair trial, and warrants reversal of the sentences.

Ground Six: The introduction of the contents of Donald Rains's forensic report violated [Petitioner's] right to confront witnesses under the Sixth Amendment of the United States Constitution.

Ground Seven: The trial court committed reversible error in its response to jury questions regarding the elements of the alleged crimes.

Ground Eight: [Petitioner] was deprived of the effective assistance of counsel in violation of the Sixth and Fourteenth Amendments to the United States Constitution.

Ground Nine: The cumulative effect of all the errors addressed previously herein deprived Petitioner of a fair trial.

Ground Ten: [Petitioner] is factually innocent of all crimes of which he is accused through the insufficiency of any physical evidence in this case.

Ground Eleven: [Petitioner] was denied the effective assistance of appellate counsel in violation of the Sixth and Fourteenth Amendments to the United States Constitution.

Doc. 1, at 4-8. Petitioner made the same challenges-along with others-in his direct appeal and application for post-conviction relief from the state court. Id. at 2, 8-9. The OCCA affirmed the trial court's judgments and sentences, Doc. 14, Ex. 8, at 1, 24, and the denial of Petitioner's application for post-conviction relief. Id. Ex. 9.

III. Standard of review for habeas relief.

"The standards set forth in the Antiterrorism and Effective Death Penalty Act of 1996 ('AEDPA) guide [this Court's] review of 28 U.S.C. § 2254 applications." Wellmon v. Colo. Dep't of Corr., 952 F.3d 1242, 1245 (10th Cir. 2020). A petitioner is entitled to federal habeas relief only if the state court's adjudication of the merits of petitioner's claim "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." 28 U.S.C. § 2254(d). Petitioner bears the "burden to make this showing and it is a burden intentionally designed to be 'difficult to meet.'" Owens v. Trammell, 792 F.3d 1234, 1242 (10th Cir. 2015) (citation omitted). This standard "reflects the view that habeas corpus is a guard against extreme malfunctions in the state criminal justice system, not a substitute for ordinary error correction through appeal." Harrington v. Richter, 562 U.S. 86, 102-03 (2011).

This Court first determines "whether the petitioner's claim is based on clearly established federal law." Hanson v. Sherrod, 797 F.3d 810, 824 (10th Cir. 2015). Clearly established federal law consists of Supreme Court holdings in cases with facts similar to those in the petitioner's case. See House v. Hatch, 527 F.3d 1010, 1016 (10th Cir. 2008). If clearly established federal law exists, this Court then considers whether the state court decision was contrary to or an unreasonable application of that clearly established federal law. See Owens, 792 F.3d at 1242.

"A state court's decision is contrary to clearly established federal law 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." Id. (internal quotation marks omitted). "It is not enough that the state court decided an issue contrary to a lower federal court's conception of how the rule should be applied; the state court decision must be diametrically different and mutually opposed to the Supreme Court decision itself." Id. (internal quotation marks and citation omitted).

The '"unreasonable application' prong requires [the petitioner to prove] that the state court 'identified...