CLAIRE V. EAGAN, Chief District Judge.
This matter comes before the court on Petitioner's 28 U.S.C. § 2254 Petition for Writ of Habeas Corpus (Doc. #1) ("Petition"), Petitioner's Motion to Amend (Doc. #35), and Petitioner's Motion for Hearing (Doc. #38). Respondent filed a response to the Petition (Doc. #12), and provided the state court records necessary to resolve Petitioner's claims (Doc. ##12, 14, 15). Petitioner replied. (Doc. #25). As Mr. Hernandez proceeds pro se, the court construes his pleadings liberally. See United States v. Guerrero, 488 F.3d 1313, 1316 (10th Cir. 2007).
Pursuant to 28 U.S.C. § 2254(e)(1), factual determinations made by a state court are presumed correct, and the Petitioner has the burden of rebutting the presumption of correctness by clear and convincing evidence. Here, the Petitioner has not rebutted the presumption of correctness of the factual background provided by the Oklahoma Court of Criminal Appeals (OCCA):
Hernandez v. State, Case No. F-2008-650 (Okla. Crim. App. May 22, 2009) (Doc. #12-4 at 1-2) (Hernandez I).
App. Br. in Hernandez I (Okla. Crim. App. Jan. 22, 2009) (Doc. #12-1). The OCCA found the videotape was "neither cumulative nor prejudicial." Hernandez I (Okla. Crim. App. May 22, 2009) (Doc. #12-4 at 4). And the OCCA held that Aletheia Kikugama and the unborn child were "separate and distinct persons," and thus Mr. Hernandez was not punished twice for the same offense. Id. at 5.
Order Denying Pet.'s Application for Post-Conviction Relief in Case No. CF-2007-281 (Tulsa County District Court May 12, 2010) (Doc. #12-5 at 2-3). That court found Mr. Hernandez's "trial counsel acted as a reasonable competent attorney under the facts and circumstances of this case." Id. at 4. That court also found Mr. Hernandez's "appellate counsel carefully selected legal issues to be raised on appeal" and "was reasonably competent." Id. Additionally, the court found that any alleged errors would not have changed the outcome of the trial or appeal. Id.
The court interpreted Mr. Hernandez's second argument as a claim that appellate counsel was ineffective for not providing an interpreter in his direct appeal. Id. at 5. And the court held that Mr. Hernandez failed to prove the outcome of the case would have been different if he had been provided an interpreter on appeal. Id. at 5-6.
Petition (Doc. #1). In his reply, Mr. Hernandez requests an evidentiary hearing to establish that his counsel on direct appeal made no attempt to contact him by letter, phone, or visits, and provided no translator. Additionally, Mr. Hernandez raises for the first time that his counsel failed to advise him that under the Vienna Convention he could have contacted the Mexican Consulate for assistance and that the outcome could have been different if he had contacted the Mexican Consulate.
Mr. Hernandez also seeks to amend his Petition in three ways: (1) to substitute the State of Oklahoma as the party respondent; (2) to supplement his second ground with an argument that federal law prohibits "pyramiding of sentencing" when two crimes arise out of a single action; and (3) to supplement his third ground with an argument that counsel failed to ensure Mr. Hernandez understood enough English to effectively aid his own defense. (Doc. #35). Finally, Mr. Hernandez moves for a hearing on the Petition. (Doc. #38).
The motion to amend requests the court change the respondent from Oklahoma Department of Corrections to "State of Oklahoma." (Doc. #35). The court previously dismissed the Oklahoma Department of Corrections and added the proper party respondent — Justin Jones, Director of the Oklahoma Department of Corrections. (See Order at Doc. #13). This portion of the motion to amend is therefore denied.
Consideration of the two other proposed amendments is governed by Fed. R. Civ. P. 15(c) (providing conditions determining whether an amended pleading relates back to the date of the original pleading).
An untimely amendment to a § 2254 motion which, "`by way of additional facts, clarifies or amplifies a claim or theory in the original motion may, in the District Court's discretion, relate back to the date of the original motion if and only if the original motion was timely filed and the proposed amendment does not seek to add a new claim or to insert a new theory into the case.'" Woodward v. Williams, 263 F.3d 1135, 1142 (10th Cir. 2001) (quoting United States v. Espinoza-Saenz, 235 F.3d 501, 505 (10th Cir. 2000)).
Petitioner's "illegal pyramiding of sentencing" argument states that federal law prohibits two separate murder sentences running consecutively where the crime "arose out of a single action." (Doc. #35). The court construes this as an attempt to raise a federal Double Jeopardy Clause claim. See U.S. CONST. amend. V. Petitioner did not raise this claim in his Petition. His Petition raised a state law claim that he could not be "punished twice" for killing a pregnant woman and her unborn child, and the Petition stated he had raised the issue in his direct appeal. In his direct appeal, he argued that 21 Okla. Stat. § 11 prohibited prosecution for more than one crime if the two criminal statutory provisions cover the same act. App. Br. in Hernandez I (Okla. Crim. App. Jan. 22, 2009) (Doc. #12-1 at 5-6). Thus, the Petition includes only his state law claim. A federal Double Jeopardy claim is not the same as a claim alleging violation of a state statute prohibiting multiple punishment. Petitioner did not raise, and the OCCA did not address, a Double Jeopardy Clause claim. Petitioner could have raised the federal "illegal pyramiding" argument in his Petition in addition to renewing his state law claim. He did not do so. The federal "illegal pyramiding" claim is new and does not relate back to the original Petition.
Petitioner's new argument on his ineffective assistance of counsel claim states that his counsel did not ensure he "understood enough of the English language to effectively aid in his own defense and understand the proceedings against him." (Doc. #35). The Petition already includes an argument that appellate counsel failed to provide a translator or communicate with Petitioner effectively concerning his defense. (Doc. #1 at 7-8) (appellate counsel "never communicated with me, asked my input or attempted to help me understand my constitutional rights"). Thus, the court interprets the motion to amend to assert a claim that trial counsel also failed to ensure Petitioner understood the ongoing proceedings. As such, this is a new argument that does not relate back to the original Petition.
Pursuant to 28 U.S.C. § 2244(d)(1)(A), a habeas corpus petition must be filed within one year from "the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review." In this case, Respondent concedes that Mr. Hernandez timely filed his original Petition. (Doc. #12 at 3 ¶6). His motion to amend, however, was not filed until more than two years after filing the original Petition, well after the one-year limitations period expired. As to Mr. Hernandez's new claims that do not relate back, the court finds that, unless Mr. Hernandez is entitled to tolling of the limitations period, to allow amendment in this case by adding new claims would frustrate the intent of Congress in enacting the statute of limitation provisions of the Antiterrorism and Effective Death Penalty Act (AEDPA).
The court finds no statutory or equitable basis for tolling the limitations period for his new claims. First, the pendency of the instant federal case does not serve to toll the federal limitations period under 28 U.S.C. § 2244(d)(2). Duncan v. Walker, 533 U.S. 167 (2001) (holding that a federal habeas petition is not an "application for State post-conviction or other collateral review" within the meaning of § 2244(d)(2)). Second, although the statute of limitations contained in § 2244(d) may be subject to equitable tolling where extraordinary circumstances beyond the prisoner's control prevent a petitioner from timely filing his petition, see Miller v. Marr, 141 F.3d 976, 978 (10th Cir. 1998), nothing in the record suggests that Mr. Hernandez is entitled to equitable tolling.
Mr. Hernandez's request to amend his petition (Doc. #35) is denied. The court will consider the claims identified in the petition. (Doc. #1).
The court denies Mr. Hernandez's motion for a hearing (Doc. #38) as no hearing is necessary to decide the issues before the court.
As previously stated, Mr. Hernandez raises four grounds in his Petition: (1) the trial court erred in admitting prejudicial and cumulative photographs and video of the crime scene; (2) the trial court erred in punishing a single act twice under Oklahoma law; (3) ineffective assistance of both trial and appellate counsel; and (4) "[w]ith held [sic] interpreter in appeal process and late during trial."
Preliminarily, the court must determine whether Petitioner has exhausted available state court remedies as required by 28 U.S.C. § 2254(b) and (c). See Rose v. Lundy, 455 U.S. 509, 510 (1982). Mr. Hernandez raised the first two claims on direct appeal and the remaining two claims on post-conviction appeal. Thus, the exhaustion requirement is satisfied.
The 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). When a state court applies the correct federal law to deny relief, a federal habeas court may consider only whether the state court applied the federal law in an objectively reasonable manner. See Bell v. Cone, 535 U.S. 685, 699 (2002); Hooper v. Mullin, 314 F.3d 1162, 1169 (10th Cir. 2002). Furthermore, the "determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1).
In this case, the OCCA adjudicated grounds 1 and 2 on direct appeal and Petitioner's claim of ineffective assistance of appellate counsel on post-conviction appeal. These claims will therefore be reviewed pursuant to § 2254(d)'s standard.
Federal habeas review is restricted "to deciding whether a conviction violated the Constitution, laws, or treaties of the United States." Estelle v. McGuire, 502 U.S. 62, 68 (1991). The crime scene evidence is an issue of state evidentiary law, and thus federal habeas review is only available if the state law error is so egregious to result in a fundamentally unfair trial. Knighton v. Mullin, 293 F.3d 1165, 1171 (10th Cir. 2002) ("The question presented in these habeas proceedings, however, is not whether this evidence was admissible under state law, but instead whether, considered in light of the entire record, its admission resulted in a fundamentally unfair trial.").
The OCCA held the evidence was not cumulative nor prejudicial:
Based on the OCCA's description of the video and photos, the admission of these pieces of evidence did not result in a fundamentally unfair trial. The Petitioner's first proposition of error is without merit.
Mr. Hernandez's argument on direct appeal was that separate punishments for the murders of Ms. Kikugama and the unborn child violated 21 Okla. Stat. § 11. App. Br. in Hernandez I (Okla. Crim. App. Jan. 22, 2009) (Doc. #12-1 at 5-7). The OCCA rejected this state law claim:
Hernandez I (Okla. Crim. App. May 22, 2009) (Doc. #12-4 at 5). Federal courts on habeas review of prescriptions against cumulative punishments for a single act are "`bound by a state court's determination of the legislature's intent.'" Cummings v. Evans, 161 F.3d 610, 615 (10th Cir. 1998) (quoting Birr v. Shillinger, 894 F.2d 1160, 1161 (10th Cir. 1990)). Here, the OCCA, the highest Oklahoma court on criminal matters, rejected Mr. Hernandez's argument and held that the state legislature intended for a murder of a woman and her unborn child to be punished cumulatively. Hernandez I (Okla. Crim. App. May 22, 2009) (Doc. #12-4 at 5). This court must defer to the OCCA on the issue. Petitioner's second proposition of error is without merit.
As part of his third and fourth propositions of error, Petitioner claims that appellate counsel provided ineffective assistance. On post-conviction appeal, Petitioner argued that state witnesses' testimonies contradicted each other without challenge or cross examination by trial or appellate counsel, which "allowed" the state to "paint a portrait of me as an abusive boyfriend with bad motives to kill my girlfriend who I've [sic] living with for two years." App. Br. In Hernandez II (Okla. Crim. App. May 18, 2010) (Doc. #12-6 at 5). Additionally, Petitioner claims the lack of an interpreter during part of the trial and during the direct appeal made it impossible for him to understand his constitutional rights. Petition (Doc. #1 at 9). The OCCA rejected these claim, finding as follows:
Hernandez II (Okla. Crim. App. Aug. 3, 2010) (Doc. #12-7 at 2). In Mr. Hernandez's reply, he argues that his counsel failed to inform him that under the 1963 Vienna Convention on Consular Relations and as a Mexican national he could contact the Mexican Consulate for assistance.
To be entitled to habeas corpus relief on his claim of ineffective assistance of appellate counsel, Petitioner must demonstrate that the OCCA's adjudication of this claim was an unreasonable application of Strickland v. Washington, 466 U.S. 668 (1984). Under Strickland, a defendant must show that his counsel's performance was deficient and that the deficient performance was prejudicial. Strickland, 466 U.S. at 687; Osborn v. Shillinger, 997 F.2d 1324, 1328 (10th Cir. 1993); see also United States v. Cook, 45 F.3d 388, 392 (10th Cir. 1995) ("we have applied those same standards in assessing the effectiveness of appellate counsel"), abrogated on other grounds by Neill v. Gibson, 278 F.3d 1044 (10th Cir. 2001). A defendant can establish the first prong by showing that counsel performed below the level expected from a reasonably competent attorney in criminal cases. Strickland, 466 U.S. at 687-88. There is a "strong presumption that counsel's conduct falls within the range of reasonable professional assistance." Id. at 688. In making this determination, a court must "judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct." Id. at 690. Moreover, review of counsel's performance must be highly deferential. "[I]t is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable." Id. at 689.
To establish the second prong, a defendant must show that this deficient performance prejudiced the defense, to the extent that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694; see also Sallahdin v. Gibson, 275 F.3d 1211, 1235 (10th Cir. 2002); Boyd v. Ward, 179 F.3d 904, 914 (10th Cir. 1999). This court's review of the OCCA's decision on ineffective assistance of counsel claims is "doubly deferential." Cullen v. Pinholster, 131 S.Ct. 1388, 1403 (2011) (noting that a habeas court must take a "highly deferential" look at counsel's performance under Strickland and through the "deferential" lens of § 2254(d)).
Mr. Hernandez provides no reason to find the OCCA's application of Strickland was unreasonable. The Tulsa County District Court Order Denying Petitioner's Application for Post-Conviction Relief treated his argument that an interpreter was not provided during his appeal as an ineffective assistance of counsel claim. Hernandez v. Oklahoma, Case No. CF-2007-281 (Tulsa County Dist. Ct. May 12, 2010) (Doc. #12-5 at 5). That court found Mr. Hernandez did not show how an interpreter would have changed the outcome of the appeal. The OCCA affirmed on the same grounds. Hernandez II (Okla. Crim. App. Aug. 3, 2010) (Doc. #12-7 at 2). Nothing in the record suggests that decision was unreasonable.
In sum, Mr. Hernandez provides no reason to find the OCCA's decision concerning appellate counsel was unreasonable or "contrary to, or involved an unreasonable application of, clearly established Federal law as determined by the Supreme Court." 28 U.S.C. § 2254(d)(1); see Hernandez II (Okla. Crim. App. Aug. 3, 2010) (Doc. #12-7 at 2) ("Petitioner hasn't established why or how the outcome of his appeal would have or should have been different, and he hasn't established factual innocence."); Hernandez v. Oklahoma, Case No. CF-2007-281 (Tulsa County Dist. Ct. May 12, 2010) (Doc. #12-5 at 3-4) ("Petitioner's allegation(s) of error fail to establish that the results of petitioner's direct appeal or the jury verdict of guilty beyond a reasonable doubt would have changed.").
Mr. Hernandez's claims of ineffective assistance of appellate counsel are without merit. Therefore, the court denies the Petition for Writ of Habeas Corpus. (Doc. #1).
Respondent argues that Petitioner's ineffective assistance of trial counsel claim is procedurally barred from this court's review as a result of Petitioner's failure to raise the claim on direct appeal. (Doc. #12 at 15-17). Respondent is correct. In his direct appeal, Mr. Hernandez did not raise a claim of ineffective assistance of trial counsel. Mr. Hernandez's appellate counsel was a different attorney than his trial counsel. In his direct appeal, Mr. Hernandez did not claim that his trial counsel failed to procure an interpreter for all or part of the trial. Under federal law, claims which were not raised in state court are generally barred from federal habeas review:
Coleman v. Thompson, 501 U.S. 722, 750 (1991). Mr. Hernandez did not attempt to and has not shown any of the exceptions to this general rule apply.
Additionally, trial counsel acted reasonably and well within the bounds of Strickland. Trial court records confirm that the district court provided a translator throughout pretrial and trial proceedings. See Doc. ##15-1 at 1, 3-4; 15-2 at 1, 13 (noting translator "is present again today throughout the week"), 15-3 at 1; 15-4 at 1; 15-5 at 1, 7 ("As stated previously, the interpreter has been here throughout every court proceeding. He continues to be here today."). And as the Tulsa County District Court found in its Order Denying Petitioner's Application for Post-Conviction Relief, "trial counsel acted as a reasonable competent attorney under the facts and circumstances of this case. The witnesses were effectively cross-examined by Petitioner's trial attorney." Hernandez v. Oklahoma, Case No. CF-2007-281 (Tulsa County Dist. Ct. May 12, 2010) (Doc. #12-5 at 4). Even if he had not waived the argument, Mr. Hernandez provides no evidence to contradict these findings.
Mr. Hernandez did not raise his Vienna Convention argument on direct appeal or in his Application for Post-Conviction Relief. Further; he did not raise the argument in his Petition; and thus, Respondent has not had an opportunity to respond. "[C]laims under Article 36 of the Vienna Convention may be subjected to the same procedural default rules that apply generally to other federal-law claims." Sanchez-Llamas v. Oregon, 548 U.S. 331, 360 (2006). Insofar as Mr. Hernandez did not raise the argument until he filed his reply in this proceeding, he has waived the argument. See Threat v. Laymon, 311 F. App'x 132, 134 (10th Cir. 2009) ("to the extent [Petitioner's] reply raised a new claim . . ., the claim was waived because he had not included it in his habeas petition or attempted to amend the petition to do so").
Additionally, Petitioner's Vienna Convention argument is subject to an anticipatory procedural bar. An "`[a]nticipatory procedural bar' occurs when the federal courts apply procedural bar to an unexhausted claim that would be procedurally barred under state law if the petitioner returned to state court to exhaust it." Anderson v. Sirmons, 476 F.3d 1131, 1140 n.7 (10th Cir. 2007) (quoting Moore v. Schoeman, 288 F.3d 1231, 1233 n.3 (10th Cir. 2002)). If Petitioner were to return to state court to present the defaulted claim, the OCCA would impose a procedural bar based on independent and adequate state procedural grounds. See Threat, 311 F. App'x at 135 ("Oklahoma's rule barring post-conviction relief for claims that could have been raised on direct appeal constitutes an independent and adequate state ground barring habeas review.").
Rule 11 of the Rules Governing Section 2254 Cases in the United States District Courts instructs that "[t]he district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant." Pursuant to 28 U.S.C. § 2253, the court may issue a certificate of appealability "only if the applicant has made a substantial showing of the denial of a constitutional right," and the court "indicates which specific issue or issues satisfy [that] showing." A petitioner can satisfy that standard by demonstrating that the issues raised are debatable among jurists, that a court could resolve the issues differently, or that the questions deserve further proceedings. Slack v. McDaniel, 529 U.S. 473, 483-84 (2000) (citing Barefoot v. Estelle, 463 U.S. 880, 893 (1983)). In addition, when the court's ruling is based on procedural grounds, Petitioner must demonstrate that "jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling." Slack, 529 U.S. at 484.
In this case, the court concludes that a certificate of appealability should not issue. Nothing suggests that the Tenth Circuit would find that this court's application of deference to the decision by the OCCA was debatable among jurists of reason. See Dockins v. Hines, 374 F.3d 935, 938 (10th Cir. 2004). As to those claims denied on a procedural basis, Petitioner has failed to satisfy the second prong of the required showing, i.e., that the court's ruling resulting in the denial of the petition on procedural grounds was debatable or incorrect. The record is devoid of any authority suggesting that the Tenth Circuit Court of Appeals would resolve the issues in this case differently. A certificate of appealability shall be denied.
WHEREFORE, the Motion To Amend is denied (Doc. #35), the Motion For Hearing is denied (Doc. #38), and the Petition for Writ of Habeas Corpus is denied (Doc. #1). Moreover, the court denies a certificate of appealability.
Even if the OCCA Order is read to have held the argument concerning a lack of an interpreter on direct appeal was waived, Petitioner's argument is without merit. First, the Court Interpreters Act applies only to federal trials. 28 U.S.C. §1827(a). Second, there is no evidence Petitioner requested an interpreter during his direct appeal. Thus, even under de novo review, the court would find the lack of an appellate interpreter was not "contrary to, or involved an unreasonable application of, clearly established Federal law as determined by the Supreme Court." 28 U.S.C. § 2254(d)(1).
In the instant case, Mr. Hernandez has not attempted to make a showing how the consulate would have aided him at trial.
