TIMOTHY D. DeGIUSTI, District Judge.
Petitioner is a state prisoner seeking federal habeas relief from a state death sentence. His petition raised several grounds for relief. He requested discovery and an evidentiary hearing on some of those grounds, including his first.
In that first ground for relief, Petitioner contends that the jury's sentencing determination was tainted by the presence of a Bible in the jury deliberation room. Through affidavits obtained from three jurors, Petitioner asserts that a Bible was provided to the jurors by a court official and utilized by one juror who was struggling with imposing a death sentence. This is a serious constitutional claim as it is axiomatic that a jury should make its decision free from external influence. See Oliver v. Quarterman, 541 F.3d at 329, 334 (5th Cir. 2008) (discussing Supreme Court precedent). The Court cannot proceed directly to the merits of the claim, however, because Petitioner did not raise this claim to the Oklahoma Court of Criminal Appeals ("OCCA") until his second post-conviction application. The Court must first decide whether the claim is procedurally barred. The Court cannot make this determination from the pleadings, therefore an evidentiary hearing is warranted on the limited issue of whether Petitioner can show cause and prejudice to excuse his procedural default.
Petitioner raised this claim to the OCCA in his second post-conviction application, which was filed the same day that he filed his habeas petition. Regarding his discovery of the claim, Petitioner stated in the application as follows:
Successive Appl. for Post-Conviction Relief at 14 n.4, Martinez v. State, No. PCD-2017-951 (Okla. Crim. App. Sept. 15, 2017). In the fact section, Petitioner told the OCCA that there was "no reason to think anything improper occurred, and therefore, no reason for direct-appeal or post-conviction counsel to have investigated the issue," because according to the trial transcript, when the jury asked for a Bible, the trial court "appropriately denied that request." Id. at 14. Petitioner continued as follows:
Id. at 15. In his request for an evidentiary hearing, Petitioner asserted that the record before the OCCA was sufficient to decide the merits of the claim. However, Petitioner additionally stated that "[i]f the [OCCA] believes further evidence is necessary to resolve the claim, then [Petitioner] respectfully requests an evidentiary hearing to address these issues, as well as any procedural concerns the [OCCA] may have." Mot. for Evidentiary Hr'g at 1-2, Martinez v. State, No. PCD-2017-951 (Okla. Crim. App. Sept. 15, 2017).
The OCCA refused to review the merits of Petitioner's claim because he failed to satisfy the requirements for claims raised in a second post-conviction application. Pursuant to OKLA. STAT. tit. 22, § 1089(D)(8) (2011),
Rule 9.7(G)(3), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2008), also states in pertinent part that "[n]o subsequent application for post-conviction relief shall be considered by [the OCCA] unless it is filed within sixty (60) days from the date the previously unavailable . . . factual basis serving as the basis for a new issue is . . . discovered." Relying on these provisions, the OCCA found the claim procedurally barred because "Petitioner [failed to] establish[] that the factual basis of his claim about the Bible's presence or use by one or more jurors during penalty-phase deliberations could not have been ascertained through the exercise of reasonable diligence prior to filing Petitioner's original application in June, 2015, or even before filing his brief on direct appeal." Martinez v. State, No. PCD-2017-951, slip op. at 4-5 (Okla. Crim. App. Oct. 17, 2017).
Based on Petitioner's presentation of the claim to the OCCA and the OCCA's denial of relief based on procedural grounds, Respondent asserts that this Court should procedurally bar the claim. See McCormick v. Parker, 821 F.3d 1240, 1245 (10th Cir. 2016) ("[P]rocedural default is an affirmative defense."); Fairchild v. Workman, 579 F.3d 11134, 1143 (10th Cir. 2009) ("The state bears the initial burden of pleading the procedural bar as an affirmative defense.").
The Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA") precludes an evidentiary hearing were the petitioner "fails to develop the factual basis of a claim in State court proceedings." 28 U.S.C. § 2254(e)(2). It is unsettled whether this provision applies to evidentiary hearings on whether a petitioner can avoid a state procedural bar, but three circuits have found that it does not. See Dickens v. Ryan, 740 F.3d 1302, 1328 (9th Cir. 2014); Henry v. Warden, Ga. Diagnostic Prison, 750 F.3d 1226, 1231-32 (11th Cir. 2014); Cristin v. Brennan, 281 F.3d 404, 416-17 (3d Cir. 2002). The reasoning is persuasive. First, § 2254(e)(2), by its plain language, applies to "claims." An argument that a petitioner can avoid a state procedural bar is not a claim, but rather an attempt to avoid a judge-made rule. See Woodford v. Ngo, 548 U.S. 81, 91 (2006) ("[H]abeas law includes the judge-made doctrine of procedural default"); Coleman v. Thompson, 501 U.S. 722, 750 (1991) (recognizing the "cause and prejudice" exception to procedural default). Second, allowing an evidentiary hearing on cause and prejudice does not undermine the interests of comity and the need for state courts to address errors in the first instance. Petitioners have no reason to develop facts in state proceedings that would allow them to avoid procedural default at the federal habeas level.
Since § 2254(e)(2) does not apply, the Court looks to the pre-AEDPA standard for obtaining an evidentiary hearing. See Barkell v. Crouse, 468 F.3d 684, 693 (10th Cir. 2006) (pre-AEDPA standard applies to evidentiary hearings when § 2254(e)(2) does not apply). Under that standard, federal courts have plenary power over habeas matters, and the decision of whether to hold an evidentiary hearing is within the Court's discretion. Townsend v. Sain, 372 U.S. 293, 318 (1963) (overruled on other grounds).
The issue before the Court is whether Petitioner is entitled to an evidentiary hearing to determine whether the Oklahoma procedural bar is adequate and whether he has established cause and prejudice to avoid the procedural bar. The Court decides that an evidentiary hearing is not needed to determine that the procedural bar is adequate, but does conclude that an evidentiary hearing is warranted to determine whether Petitioner can establish cause and prejudice to avoid procedural default of his claim in Ground One.
A state court rule is adequate if it is firmly established and regularly followed. Johnson v. Lee, 136 S.Ct. 1802, 1804 (2016); Beard v. Kindler, 558 U.S. 53, 60 (2009). As the Tenth Circuit has repeatedly upheld the OCCA's application of a procedural bar to claims raised in a second or subsequent post-conviction application,
In Lee, the petitioner made an oral request for a continuance in the midst of trial because his alibi witnesses, who had been present that very day at the courthouse, had inexplicably disappeared. The trial court denied the motion on substantive grounds. No procedural deficiencies were raised or addressed. On appeal, however, the state appellate court found that the trial court's denial was proper because Lee had failed to comply with a state court rule which required motions for continuance to be made in writing. The Supreme Court found that the state court's application of this procedural rule in this instance was inadequate to bar federal habeas review. Id. at 365-367.
Although the Supreme Court acknowledged the general rule that firmly established and regularly followed state court rules will "ordinarily" bar federal habeas review, it held that "[t]here are, however, exceptional cases in which exorbitant application of a generally sound rule renders the state ground inadequate to stop consideration of a federal question." Id. at 376. The Court then found that Lee fell "within th[is] small category of cases" because (1) the trial court's ruling was not based upon Lee's failure to file a written motion and there was no indication that a written motion would have changed the trial court's ruling; (2) state law did not demand strict compliance with the rule "in the urgent situation Lee's case presented"; and (3) Lee "substantially complied" with the rule as only a "[f]ew transcript pages need be read to reveal the information called for by [the rule]." Id. at 381-87.
Petitioner contends that as in Lee, he also substantially complied with the OCCA's rule regarding claims raised in a second post-conviction application by (1) advising the OCCA that the factual basis of his claim was unknown until his habeas counsel's investigator was able to locate and interview the jurors and (2) requesting an evidentiary hearing if the OCCA needed any more information to address any procedural concerns it may have had. Because he was not afforded an evidentiary hearing, Petitioner additionally asserts that the OCCA denied him a meaningful review of his claim.
Section 1089(D)(8)(b)(1)
Petitioner does not state why he did not or could not comply with the OCCA's pleading requirement. Instead he claims that by seeking an evidentiary hearing, he offered to address any procedural concerns the OCCA may have had and he faults the OCCA for not taking him up on his offer. The Court finds no merit to this argument. The OCCA's pleading requirement is not unclear, onerous, or unreasonable, and Petitioner has no excuse for failing to meet it. Petitioner cannot withhold information which would excuse his late presentation of the claim and then determine the manner in which he would like to present it. Unlike the circumstances in Lee, Petitioner did not substantially comply with the OCCA's requirement to plead sufficient facts to justify a merits review of his claim in a second post-conviction application.
Petitioner's case does not involve unique and/or unusual circumstances which align it with Lee. Petitioner therefore fails to show that the OCCA's application of § 1089(D)(8) (and Rule 9.7(G)(3)) is inadequate as applied to his case.
Petitioner can avoid the application of a procedural bar to his claim if he can show cause and prejudice. See Coleman, 501 U.S. at 750 ("In all cases in which a state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claims is barred unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law. . . ."). The Supreme Court has explained cause as follows:
Murray v. Carrier, 477 U.S. 478, 488 (1986) (quotation marks and citations omitted). Whether cause and prejudice exists is a question of federal law. Id. at 489.
Petitioner asserts that given events at trial, no one had reason to believe that anything improper occurred in jury deliberations. In this regard, the trial transcript reflects that the jury sent out a note during second stage deliberations asking for a Bible. The trial court denied the request by telling the jury that it had all the law and evidence it needed to arrive at a verdict. Trial Tr. vol. XII at 30. But based on information recently provided by a juror, Petitioner contends that a court official, presumably the bailiff, provided the jury a Bible. [Doc. #16-2]. Petitioner's cause, therefore, is that he reasonably relied on the trial court's ruling that the jury would not be provided a Bible and that the violation of this order by a court official was an external impediment to his discovery of the claim.
If the facts show that the bailiff did provide the jurors a Bible after the trial judge denied their request, Petitioner could very likely establish cause for avoiding the procedural default. First, it would seem that the factual basis for this claim was not reasonably available to counsel before the second post-conviction application. The record shows that the jury requested a Bible, and the court declined that request. There was no other indication of misconduct. If, in fact, the bailiff provided the jury a Bible, there is nothing in the record that would suggest counsel should have known of that fact. And while interviewing jurors may be a helpful endeavor, and in certain circumstances even vital, there is no blanket rule that counsel should interview jurors in the absence of evidence of impropriety. See Sallie v. Humphrey, No. 5:11-CV-75 (MTT), 2013 WL 4011009 at *8 (M.D. Ga. Aug. 6, 2013) (finding that Williams v. Taylor, 529 U.S. 420, 442 (2000), "stands for the proposition that there is not a general duty to investigate the background of every juror."). Whether counsel should have investigated in this situation is a highly fact-specific inquiry, weighing in favor of an evidentiary hearing.
Second, the evidence may also show that state officials impeded Petitioner's ability to bring this claim prior to his second application for post-conviction relief. The Eleventh Circuit has found that concealment by state officials can serve as such an impediment. In Ward v. Hall, that Circuit determined the petitioner established cause for the procedural default by establishing that during deliberations, the jury asked the bailiff about parole, a question that jurors were not to consider during deliberations. 592 F.3d 1144, 1177 (11th Cir. 2010). The Circuit found that since neither the bailiff nor the trial court informed the attorneys of the question or the response, the state had concealed the jury's question, providing cause for avoiding the default. Id. at 1176.
Ward is persuasive here. If the evidence shows that the bailiff provided the Bible without informing the parties, Petitioner may be able to establish the type of impediment found in Ward. These factual questions cannot be resolved on the record as it now exists. As these factual disputes prevent the Court from determining, as a matter of law, whether there is cause to avoid the procedural bar, an evidentiary hearing is warranted.
An evidentiary hearing is also warranted to determine whether Petitioner can establish prejudice stemming from the alleged use of the Bible in jury deliberations. There is nothing in the record at this point to indicate that the use of the Bible actually changed a juror's mind, and Fed. R. Evid. 606(b) does not allow jurors to testify about their subjective considerations during deliberations. But there is certainly evidence that a Bible was introduced into the deliberations. How the Bible came to be in the room and how it was used are both factual issues relevant to whether petitioner suffered prejudice. Limited discovery and an evidentiary hearing are necessary to clarify the prejudice issue.
Because the Court can resolve the adequacy issue as a matter of law, an evidentiary hearing is not warranted on that issue. But Petitioner's request for an evidentiary hearing on the issue of whether he can establish cause and prejudice to avoid the procedural bar of Ground One of his petition, is
