Magness v. Pettigrew

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF OKLAHOMA
MICHAEL D. MAGNESS,
Petitioner,
v.
MICHAEL MILLER, Warden,1
Respondent.
Case No. 22-CV-376-JFH-DES
OPINION AND ORDER
Petitioner Michael D. Magness (“Magness”), an Oklahoma prisoner appearing pro se,
brings this action pursuant to 28 U.S.C. § 2254, seeking federal habeas relief from the judgment
entered against him in the District Court of Okfuskee County, Case No. CF-2015-59. Dkt. No. 1.
Magness raises ten (10) grounds for habeas relief. See id. The Court considered Magness’ Petition
for Writ of Habeas Corpus (“Petition”) [Dkt. No. 1], Respondent’s Response in Opposition to
Petition for Writ of Habeas Corpus [Dkt. No. 9], Magness’ Reply [Dkt. No. 21], the record of state-
court proceedings provided by Respondent [Dkt. Nos. 10 and 11] and applicable law. 	For the
reasons discussed below, the Petition is DENIED.
1 Magness is presently incarcerated at Allen Gamble Correctional Center, and Michael Miller is
the Warden of that facility. The Court therefore substitutes Michael Miller, Warden, in place of
Luke Pettigrew as party Respondent. See Rule 2(a), Rules Governing Section 2254 Cases in the
United States District Courts. The Clerk of Court shall note on the record this substitution.
6:22-cv-00376-JFH-DES Document 28 Filed in ED/OK on 10/09/26 Page 1 of 73

2
TABLE OF CONTENTS
BACKGROUND ........................................................................................................................... 3
DISCUSSION ................................................................................................................................ 7
I. 	Magness’ Petition ........................................................................................................... 7
II. 	Legal Standards Applicable to Exhausted Claims ...................................................... 7
III. 	Legal Standards Applicable to Procedurally Barred Claims................................... 10
IV. 	Ground One: Sufficiency of the Evidence ................................................................ 12
A. 	The OCCA’s Decision ........................................................................................... 13
B. 	Analysis.................................................................................................................. 13
V. 	Ground Four: Abuse of Judicial Discretion ............................................................. 17
VI. 	Ground Five: Jurisdiction .......................................................................................... 19
A. 	The OCCA’s Decision ........................................................................................... 19
B. 	Analysis.................................................................................................................. 20
VII. 	Ground Eight: Ineffective Assistance of Appellate Counsel ................................... 21
A. 	The OCCA’s Decision ........................................................................................... 22
B. 	Analysis.................................................................................................................. 22
1. 	Sub-Claim One: Insufficiency of the Evidence ............................................ 24
2. 	Sub-Claim Two: Mrs. Reilly’s Conduct ........................................................ 24
3. 	Sub-Claim Three: Prosecutorial Misconduct ................................................ 27
4. 	Sub-Claim Four: Abuse of Judicial Discretion ............................................ 58
5. 	Sub-Claim Five: Jurisdiction ......................................................................... 60
6. 	Sub-Claim Six: Cumulative Error ................................................................ 61
VIII. 	Ground Nine: Post-Conviction Proceedings ............................................................. 61
IX. 	Ground Ten: Cumulative Error................................................................................. 63
X. 	Procedurally Barred Claims ...................................................................................... 64
A. 	Cause and Prejudice ............................................................................................. 66
1. 	Ground Four..................................................................................................... 67
2. 	Grounds Six and Seven .................................................................................... 68
3. 	Grounds Two and Three .................................................................................. 70
B. 	Fundamental Miscarriage of Justice .................................................................. 71
CONCLUSION ........................................................................................................................... 72
6:22-cv-00376-JFH-DES Document 28 Filed in ED/OK on 10/09/26 Page 2 of 73

3
BACKGROUND
On November 7, 2018, an Okfuskee County jury found Magness guilty of one (1) count of
murder in the first degree. Dkt. No. 10-9 at 111-112; Dkt. No. 10-18 at 53-55. On December 5,
2018, Magness was sentenced to life in prison without parole. Dkt. No. 10-18 at 53. The victim,
Elizabeth Magness (“Elizabeth”), was Magness’ wife and the mother of his children. Dkt. No. 10-
3 at 25, 32-33, 44-45.
Elizabeth and Magness lived in Okemah, Oklahoma with their two young sons. See Dkt.
No. 10-3 at 35-37. 	The family moved from Wisconsin, where Elizabeth obtained her master’s
degree, to Okemah in 2011. 	Id. at 36-37. They returned to Oklahoma for Magness to help his
grandfather run the family’s cattle ranch. Id. at 36.
On the evening in question, Magness stayed the night at the home of his friends’, Dustin
and April Crouch, along with the Magnesses’ two (2) young boys. Dkt. No. 10-3 at 109-112. The
Crouches’ home was approximately twenty (20) minutes from the Magness family home. Id. at
103. Magness staying the night at the Crouches’ with the oldest child, D.M., was not uncommon.
Id. at 204. However, the youngest, B.M., was still breastfeeding and typically co-slept with his
mother. 	Id. at 75; Dkt. No. 10-5 at 90. 	This was the first night B.M. stayed the night at the
Crouches’. Dkt. No. 10-3 at 111. D.M. slept in a bedroom with the Crouches’ other children. Id.
at 112. B.M. slept in the living room with Magness. Id. at 112-113. April Crouch (“Mrs. Crouch”)
testified she went into her bedroom around midnight, heard B.M. crying around 12:30–12:45 a.m.
and went out to the living room to check on him. Dkt. No. 10-3 at 112-113, 135. B.M. was in the
recliner and Magness was on the couch. 	Id. at 112-113, 135. About fifteen (15) minutes later,
B.M. fussed again; when she went to check on him, he was with Magness on the couch. Id. at.
113. Mrs. Crouch went to sleep around 1:00 a.m., and between 3:30-4:00 a.m. she awoke to B.M.
6:22-cv-00376-JFH-DES Document 28 Filed in ED/OK on 10/09/26 Page 3 of 73

4
crying again. Id. at 113-114, 133, 136. When she checked on B.M., he was in the kitchen with
Magness. Id. at 114.
Sometime between 1:30 a.m. and 3:00 a.m., on March 15, 2015, Elizabeth was shot in her
left eye with Magness’ .9mm Glock pistol. Dkt. No. 9-3 at 2.2 A block away from the Magnesses’
house, between 1:30 and 2:00 a.m., Rhonda Hill saw a dark, four-door sedan, driven by a man,
back into a vacant driveway.3 Dkt. No. 10-4 at 26, 32-33. Hill could not identify the man, “but
her description is consistent with [Magness].” Dkt. No. 9-3 at 3; Dkt. No. 10-4 at 27. The man
walked across the street and between two (2) houses, heading in the direction of the backyard of
the Magnesses’ home. 	Id. at 28. 	The car was gone within twenty (20) minutes. 	Id. Another
neighbor, Jeanetta Coale, heard a single shot around the same time. Dkt. No. 10-4 at 19. The wet
grass in the Magnesses’ backyard held footprint impressions leading out the gate in the direction
of Hill’s house. See Dkt. No. 10-4 at 151-153, 157-158; see also Dkt. No. 10-20 at 8-9 (State’s
Exs. 30 and 31).
In the morning, everyone at the Crouch residence woke up, ate breakfast and went their
separate ways. Dkt. No. 10-3 at 115-116. Magness and B.M. went by a restaurant he operated,
2 The OCCA’s factual findings are entitled to deference. 28 U.S.C. § 2254(e)(1). Further, a few
days after Elizabeth was found dead, Magness told his father-in-law, George Wilson, he believed
they would be able to have an open casket funeral because “a 9 millimeter gun doesn’t leave much
of an entry wound[.]” Dkt. No. 10-3 at 48. Magness then stated, “I don’t know that it was a 9
millimeter gun, but I suspect that the police are going to find it was my own gun that was taken
and used against her.” 	Id. 	Testimony was presented that the .9 mm gun was typically with
Magness but the day before Elizabeth’s murder he put it in the gun cabinet in their home. Dkt.
No. 10-7 at 161-162. 	The murder weapon was never recovered. 	See Dkt. No. 10-8 at 29.
However, the cartridge case from the crime scene and the casings from the pasture, where Magness
admitted to practicing shooting his .9 mm, were all fired from the same firearm. See Dkt. No. 10-
6 at 151-152, 160; Dkt. No. 10-7 at 170-174, 176.
3 Magness drove a dark green four-door sedan. Dkt. No. 10-4 at 45; see also Dkt. No. 10-19 at
18 (State’s Ex. 5).
6:22-cv-00376-JFH-DES Document 28 Filed in ED/OK on 10/09/26 Page 4 of 73

5
the K-Bar, to get lunch for Elizabeth and headed home. Dkt. No. 10-4 at 82; see also Dkt. No. 10-
29 at 11 (State’s Ex. 103). Dane Lyon, Magness’ friend, met Magness at the family home to return
a pickup truck he had borrowed. 	Dkt. No. 10-4 at 42, 46. 	Magness asked Lyon to wait in the
living room while he went to the back of the house. 	Id. at 46. 	Magness returned to Lyon
communicating to him that he found “[Elizabeth] on the floor.” Id. Pictures of the crime scene
show Elizabeth lying on the floor in a pool of blood. See, e.g., Dkt. No. 10-19 at 3 (State’s Ex. 9).
Lyon went to check Elizabeth’s pulse. Dkt. No. 10-4 at 48. Magness later told multiple people he
knew she was dead because her eye was bulging out. See, e.g., Dkt. No. 10-3 at 191-192 (Dustin
Crouch), Dkt. No. 10-5 at 217 (David Magness), Dkt. No. 10-7 at 119 (Justin Scrimshire); id. at
180 (Agent Titsworth); Dkt. No. 10-29 at 11 (State’s Ex. 103) (Magness’ statement to this effect).
“Neither Lyon, the responding officers, nor the medical examiner saw the bulging eye [Magness]
described.” Dkt. No. 9-3 at 4.
As noted, the original reason for the Magness family moving to Okemah was for Magness
to help his grandfather with the family ranch. Dkt. No. 10-3 at 36, Dkt. No. 10-5 at 193. By the
time of the murder, the land, fences and animals on the ranch were in poor condition, and Magness
had sold most of the cattle. See Dkt. No. 10-5 at 146, 208-209, 216; Dkt. No. 10-7 at 201.
In early 2014, Magness began leasing a building to operate the K-Bar Restaurant in
Okemah. See Dkt. No. 10-5 at 205; Dkt. No. 10-22 at 2-12 (State’s Ex. 42). The restaurant never
broke even. See Dkt. No. 10-5 at 136 (The K-Bar was “running a deficit, I’d say between 9,000
and 25,000 a month.”), 146. Magness kept the restaurant afloat by infusing it with money from
his own personal accounts, other outside sources, and cattle sales. See Dkt. No. 10-7 at 195-197.
Magness took out an agricultural loan in March of 2014, but he used most of the loan money to
6:22-cv-00376-JFH-DES Document 28 Filed in ED/OK on 10/09/26 Page 5 of 73

6
fund the restaurant. Id. at 198; see also Dkt. No. 10-24 at 10-18 and Dkt. No. 10-25 at 1-2 (State’s
Ex. 47).
In August of 2014, Magness planned to renovate his grandfather’s farmhouse and lease it.
See Dkt. No. 10-5 at 209-210. 	Magness took out an insurance policy on the farmhouse in late
August, and it burned down in early September, 2014. 	See id. 10-5 at 212-213. 	The fire was
discovered in early morning before the sun came up, but Magness had been at the house earlier
that morning, around 3:00 -3:30 a.m. Dkt. No. 10-6 at 30-33. Magness used the insurance money
from the fire to fund the restaurant for a few months. See Dkt. No. 10-7 at 197-198.
At the end of February 2015, a payment of approximately $16,600.00 was due on the
$165,000.00 agricultural loan. 	Dkt. No. 10-7 at 199-200. 	“By the end of February 2015, there
was almost no money in [Magness’] various accounts, the restaurant was in debt, he owed back
taxes, and the first loan payment was due.” 	Dkt. No. 9-3 at 5. 	Before Elizabeth’s death, he
unsuccessfully sought to borrow money from an acquaintance. Dkt. No. 10-6 at 37; Dkt. No. 10-
7 at 205-206. At the time of Elizabeth’s death, the $16,600.00 loan payment had not been paid.
Id. at 200.
Magness was the designated beneficiary of a $250,000.00 life insurance policy on
Elizabeth. 	Dkt. No. 10-27 at 13-14 (State’s Exhibit 88). 	Magness quipped to friends prior to
Elizabeth’s death that he was a sociopath [Dkt. No. 10-3 at 107], he could get away with murder
in Okemah [Id. at 121; Dkt. No. 10-5 at 17], and he had insurance policies to keep the K-Bar open
[Id. at 117-118]. Magness told one witness, Kimberly Simmons, “that he had premeditated several
different ways to murder his wife and murder his son and get away with it[.]” Id. at 17. Magness
also told Simmons he and Elizabeth “have this contract and if by the end of that time frame it’s
still not working out then we’ll end the marriage. And that year would have been 2015.” Id. at
6:22-cv-00376-JFH-DES Document 28 Filed in ED/OK on 10/09/26 Page 6 of 73

7
18. Magness told Mr. and Mrs. Crouch “Magnesses don’t get divorced.” Dkt. No. 10-3 at 108,
182.
Based on the evidence presented, the jury convicted Magness of one (1) count of first-
degree murder for the death of Elizabeth. Dkt. No. 10-8 at 111-112.
DISCUSSION
I. 	Magness’ Petition
After unsuccessfully completing a direct appeal before the Oklahoma Court of Criminal
Appeals (“OCCA”) and a round of post-conviction proceedings, Magness turned to this Court.
Dkt. No. 1. Magness presents the following claims:
Ground One: Insufficiency of Evidence;
Ground Two: Pre-Trial Prosecutorial Witness Tampering;
Ground Three: Prosecutorial Misconduct;
Ground Four: Abuse of Judicial Discretion;
Ground Five: Jurisdiction;
Ground Six: Cruel and Unusual Punishment/ Equal Protection;
Ground Seven: Ineffective Assistance of Trial Counsel;
Ground Eight: Ineffective Assistance of Appellate Counsel;
Ground Nine: Post-Conviction Proceedings; and
Ground Ten: Cumulative Error.
Dkt. No. 1.
II. 	Legal Standards Applicable to Exhausted Claims
A federal court has discretion to grant federal habeas relief to a prisoner who is in state
custody pursuant to a final criminal judgment if the prisoner “is in custody in violation of the
Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a); see Wilson v. Corcoran,
6:22-cv-00376-JFH-DES Document 28 Filed in ED/OK on 10/09/26 Page 7 of 73

8
562 U.S. 1, 5 (2010) (“[I]t is only noncompliance with federal law that renders a State’s criminal
judgment susceptible to collateral attack in the federal courts.”). But the federal habeas statutes,
as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) and as
interpreted by the United States Supreme Court, significantly limit a federal court’s discretion to
grant habeas relief to a state prisoner.
“A state prisoner generally must exhaust available state-court remedies before a federal
court can consider a habeas corpus petition.” 	Bland v. Sirmons, 459 F.3d 999, 1011 (10th Cir.
2006); see 28 U.S.C. § 2254(b)(1)(A). When a state prisoner fairly presents a federal claim in state
court and the state court adjudicates that claim on the merits, a federal court cannot grant habeas
relief as to that claim unless the prisoner first shows that the state court’s decision as to that claim
either: (1) “was contrary to, or involved an unreasonable application of, clearly established Federal
law, as determined by the Supreme Court of the United States;” or (2) “was based on an
unreasonable determination of the facts in light of the evidence presented in the State court
proceeding.” 	Douglas v. Workman, 560 F.3d 1156, 1170 (10th Cir. 2009) (quoting 28 U.S.C. §
2254(d)(1)-(2)).
As used in § 2254(d)(1), the phrase “clearly established Federal law” means “the governing
legal principle or principles” stated by “the holdings” of the Supreme Court’s “decisions as of the
time of the relevant state-court decision.” Lockyer v. Andrade, 538 U.S. 63, 71 (2003) (quoting
Williams v. Taylor, 529 U.S. 362, 412 (2000)). Thus, when § 2254(d)(1)’s framework informs a
federal court’s analysis, the first question for the court is whether the petitioner’s claim rests on
law that was clearly established by Supreme Court precedent at the time of the relevant state-court
decision. House v. Hatch, 527 F.3d 1010, 1015-18 (10th Cir. 2008). If such law exists, and the
state court has correctly identified that law, the only question under § 2254(d)(1) is “whether the
6:22-cv-00376-JFH-DES Document 28 Filed in ED/OK on 10/09/26 Page 8 of 73

9
decision ‘unreasonably applies that principle to the facts of the prisoner’s case.’” 	Cullen v.
Pinholster, 563 U.S. 170, 182 (2011) (quoting Williams v. Taylor, 529 U.S. 362, 413 (2000)). To
establish that the state court’s decision unreasonably applied the law, a petitioner “must show that
the state court’s ruling on the claim being presented in federal court was so lacking in justification
that there was an error well understood and comprehended in existing law beyond any possibility
for fairminded disagreement.” Harrington v. Richter, 562 U.S. 86, 103 (2011). In other words, “a
petitioner must persuade a federal court that no ‘fairminded juris[t]’ could reach the state court’s
conclusion under [the Supreme] Court’s precedents.” 	Brown v. Davenport, 596 U.S. 118, 135
(2022) (quoting Davis v. Ayala, 576 U.S. 257, 269 (2015)).
Under § 2254(d)(2), a petitioner must show that the state court’s decision rests on an
unreasonable determination of the facts. 	But “a state-court factual determination is not
unreasonable merely because the federal habeas court would have reached a different conclusion
in the first instance.” Wood v. Allen, 558 U.S. 290, 301 (2010). Instead, the reasonableness of a
state court’s factual determination also is measured by Richter’s fairminded-disagreement
standard. Dunn v. Madison, 583 U.S. 10, 13-14 (2017). And “if [Richter’s] rule means anything,
it is that a federal court must carefully consider all the reasons and evidence supporting the state
court’s decision” and that the federal court may not disturb the state court’s decision “without
identifying—let alone rebutting—all of the justifications” that may support that decision. Mays v.
Hines, 592 U.S. 385, 391-92 (2021) (per curiam). In addition, when § 2254(d) applies, the federal
court’s review is limited to the same record that was presented in state court unless and until the
petitioner satisfies § 2254(d)’s demanding preconditions to relief, Pinholster, 563 U.S. at 185, and
the federal court must presume the correctness of any state-court factual findings unless the
6:22-cv-00376-JFH-DES Document 28 Filed in ED/OK on 10/09/26 Page 9 of 73

10
petitioner presents clear and convincing evidence to rebut that presumption, 28 U.S.C. §
2254(e)(1).
III. 	Legal Standards Applicable to Procedurally Barred Claims
Even when a habeas petitioner presents cognizable federal claims, the AEDPA and the
United States Supreme Court’s interpretation of those provisions tightly constrain a federal court’s
discretion to grant relief. Two (2) constraints are relevant here: exhaustion and procedural default.
A habeas petitioner must exhaust available state remedies, before filing a federal habeas petition,
by fairly presenting the substance of his federal claims to the highest state appellate court in
accordance with applicable state procedural rules. 28 U.S.C. § 2254(b)(1)(A); see O’Sullivan v.
Boerckel, 526 U.S. 838, 845 (1999) (“[S]tate prisoners must give the state courts one full
opportunity to resolve any constitutional issues by invoking one complete round of the State’s
established appellate review process.”); Prendergast v. Clements, 699 F.3d 1182, 1184 (10th Cir.
2012). 	Exhaustion gives “the state courts a ‘full and fair opportunity’ to correct alleged
constitutional errors.” 	Selsor v. Workman, 644 F.3d 984, 1026 (10th Cir. 2011) (quoting
O’Sullivan, 526 U.S. at 845).
“[A] federal court should dismiss unexhausted claims without prejudice so that the
petitioner can pursue available state-court remedies.” Bland, 459 F.3d at 1012; see 28 U.S.C. §
2254(b)(1)(A). “However, dismissal without prejudice for failure to exhaust state remedies is not
appropriate if the state court would now find the claims procedurally barred on independent and
adequate state procedural grounds.” Smallwood v. Gibson, 191 F.3d 1257, 1267 (10th Cir. 1999)
(citing Coleman v. Thompson, 501 U.S. 722, 735 n.1 (1991)). 	“Where the relevant state courts
‘would now find those claims procedurally barred, there is a procedural default for the purposes
6:22-cv-00376-JFH-DES Document 28 Filed in ED/OK on 10/09/26 Page 10 of 73

11
of federal habeas review.’” Grant v. Royal, 886 F.3d at 874, 892 (10th Cir. 2018) (quoting Bland,
459 F.3d at 1012).
Second, “an important ‘corollary’ to the exhaustion requirement” is that “a federal court
may not review federal claims that were procedurally defaulted in state court—that is, claims that
the state court denied based on an adequate and independent state procedural rule.” Davila, 582
U.S. at 527 (quoting Dretke v. Haley, 541 U.S. 386, 392 (2004)). “A state procedural default is
‘independent’ if it relies on state law, rather than federal law,” and is “‘adequate’ if it is firmly
established and regularly followed.” 	Smith v. Workman, 550 F.3d 1258, 1274 (10th Cir. 2008)
(internal quotations omitted).
“A petitioner may overcome [a] procedural bar only if he can ‘demonstrate cause for the
default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that
failure to consider the claims will result in a fundamental miscarriage of justice.’” Grant, 886 F.3d
at 892 (quoting Coleman, 501 U.S. at 750); see also McQuiggin v. Perkins, 569 U.S. 383, 392-93
(2013) (discussing miscarriage of justice exception); Murray v. Carrier, 477 U.S. 478, 488 (1986)
(discussing cause and prejudice).
Applying the outlined legal standards, the Court first addresses Magness’ exhausted claims
and, subsequently, will address Magness’ procedurally barred claims.4
4 Magness did not request an evidentiary hearing in his Petition but only that the court “remand
to the district court for evidentiary hearing[.]” Dkt. No. 1 at 43; see also id., generally. However,
in his Reply, Magness repeatedly requests a hearing. 	See Dkt. No. 21. 	But when § 2254(d)’s
framework applies, as it does in this case, a federal habeas court must consider whether the
petitioner has satisfied § 2254(d)(1)’s precondition to relief only by looking to the record that was
presented in state court proceedings. Pinholster, 563 U.S. at 181. In addition, “[i]f a prisoner has
‘failed to develop the factual basis of a claim in State court proceedings,’ a federal court ‘shall not
hold an evidentiary hearing on the claim’ unless the prisoner satisfies one of two narrow
exceptions, see 28 U.S.C. § 2254(e)(2)(A), and demonstrates that the new evidence will establish
his innocence ‘by clear and convincing evidence,’ § 2254(e)(2)(B).” Shinn v. Ramirez, 596 U.S.
366, 371 (2022). 	“In all but these extraordinary cases, AEDPA ‘bars evidentiary hearings in
6:22-cv-00376-JFH-DES Document 28 Filed in ED/OK on 10/09/26 Page 11 of 73

12
IV. 	Ground One: Sufficiency of the Evidence
For his first claim, Magness alleges the “State failed to provide a sufficiency of evidence
to convict Petitioner of First Degree Murder. Only by adding layer upon layer of inference could
any reasonable jury come to a finding of guilt, and by doing so, the Prosecution denied Petitioner
the Constitutional Rights of Due Process, Equal Protection and Fair Trial.” 	Dkt. No. 1 at 3-4.
Magness continues, “the State failed to present a single piece of non-circumstantial evidence,
focused their argument upon the mere possibility of guilt, and required the jury to rely upon layer
after layer of inference to reach their guilty verdict as evidenced by their closing arguments.” Id.
at 4.
Magness presented a similar claim in his direct appeal. Dkt. 9-1 at 42-45. In his amended
application for post-conviction relief, Magness re-urged a sufficiency of the evidence claim and
stated he was “aware that appellant counsel raised the general issue of insufficiency of evidence
in the direct appeal; however, they failed to raise the issue of compounding inference, as well as
many of the points made below.” Dkt. No. 9-8 at 2. Magness explained he did “not wish to reargue
the insufficiency of the evidence as presented in direct appeal, but rather present a secondary set
of issues which appellate counsel failed to raise.” Id. Magness then presented generally the same
claim he presents here. 	Compare Dkt. No. 1 at 3-7 with Dkt. No. 9-8 at 1-5. Accordingly, the
Court will analyze the claim as it was presented in his state post-conviction proceedings.
federal habeas proceedings initiated by state prisoners.’” Id. (quoting McQuiggin v. Perkins, 569
U.S. 383, 395 (2013)). For the reasons discussed herein, Magness has not demonstrated, as to any
claim, that he can satisfy § 2254(d)’s preconditions to habeas relief. And Magness does not argue,
much less demonstrate, that he can make the showings necessary to obtain an evidentiary hearing
under § 2254(e)(2). See Dkt. No. 1. For these reasons, the Court denies Magness’ belated request
for an evidentiary hearing.
6:22-cv-00376-JFH-DES Document 28 Filed in ED/OK on 10/09/26 Page 12 of 73

13
A. The OCCA’s Decision
As noted by Respondent, the OCCA applied the doctrine of res judicata to Magness’
insufficient evidence claim presented during post-conviction proceedings. See Dkt. No. 9-11 at 2.
However, the direct appeal claim and the post-conviction claim were not identical. Compare Dkt.
No. 9-1 at 3-4 with Dkt. No. 9-8 at 1-5. Therefore, to the extent Magness raised a different claim
on post-conviction and the OCCA did not review the merits of it, this Court will review the claim
de novo. See Cone v. Bell, 566 U.S. 449, 466 (2009); Cuesta-Rodriguez v. Carpenter, 916 F.3d
885, 898 (10th Cir. 2019).
B. Analysis
In support of his insufficiency of the evidence claim before this Court, Magness highlights
the State’s reliance on circumstantial evidence and argues that circumstantial evidence “becomes
unreasonable when there is no other supporting evidence and inferences must be made to support
additional inferences which in turn generate still further inferences.” Dkt. No. 1 at 4. Magness
emphasizes the following purported weaknesses in the evidence presented at trial: alibi witness
testimony, the location where the gun and ammunition were found in the river and misleading
statements from the State regarding matching the ammunition that killed Elizabeth to Magness.
See id. at 4-6. Magness argues this evidence creates eight (8) unsupported inferences. See id. at
6-7. Magness further develops his arguments in his Reply. See Dkt. No. 21 at 5-10.
The Fourteenth Amendment’s due process clause “protects the accused against conviction
except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with
which he is charged.” In re Winship, 397 U.S. 358, 364 (1970). When reviewing the sufficiency
of the evidence supporting a criminal conviction, “the relevant question is whether, after viewing
the evidence in the light most favorable to the prosecution, any rational trier of fact could have
6:22-cv-00376-JFH-DES Document 28 Filed in ED/OK on 10/09/26 Page 13 of 73

14
found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443
U.S. 307, 319 (1979) (emphasis in original). When applying the Jackson standard, a federal court
first looks to state law to determine the essential elements of the crime and then whether the
evidence suffices to establish each element. 	Hawes v. Pacheco, 7 F.4th 1252, 1264 (10th Cir.
2021). Circumstantial evidence can be sufficient to support a guilty verdict. Lucero v. Kerby, 133
F.3d 1299, 1312 (10th Cir. 1998). A habeas court is “not to weigh conflicting evidence or consider
witness credibility.” Wingfield v. Massie, 122 F.3d 1329, 1332 (10th Cir. 1997) (citing Messer v.
Roberts, 74 F.3d 1009, 1013 (10th Cir. 1996)). The habeas court is to “accept the jury’s resolution
of the evidence as long as it is within the bounds of reason.” Wingfield, 122 F.3d at 1332 (quoting
Grubbs v. Hannigan, 982 F.2d 1483, 1487 (10th Cir. 1993)).
Notably, “Jackson claims face a high bar in federal habeas proceedings because they are
subject to two layers of judicial deference.” Coleman v. Johnson, 566 U.S. 650, 651 (2012).
First, on direct appeal, it is the responsibility of the jury—not the court—to decide
what conclusions should be drawn from evidence admitted at trial. A reviewing
court may set aside the jury’s verdict on the ground of insufficient evidence only if
no rational trier of fact could have agreed with the jury. [...] And second, on habeas
review, a federal court may not overturn a state court decision rejecting a
sufficiency of the evidence challenge simply because the federal court disagrees
with the state court. 	The federal court instead may do so only if the state court
decision was “objectively unreasonable.”
Id. (internal quotations and citations omitted).
To obtain a conviction for first degree murder, the State had to prove Magness unlawfully
caused the death of a human with malice aforethought. 	Okla. Stat. tit. 21, § 701.7(A). 	Having
reviewed the record, a rational trier of fact could have found the essential elements of first-degree
murder beyond a reasonable doubt.
6:22-cv-00376-JFH-DES Document 28 Filed in ED/OK on 10/09/26 Page 14 of 73

15
The trial record contains sufficient evidence supporting the jury’s finding that Magness
murdered Elizabeth with malice aforethought. In adjudicating Magness’ similar claim presented
on direct appeal, the OCCA made the following factual findings:
The gun. The victim was shot with [Magness’] .9mm Glock. The gun was not left
at the scene and was never recovered. 	[Magness] told police that, the morning
before the murder, he put the gun in the house, in a case, locked in a gun safe, in a
closet. The wooden gun case was secured with a lock attached to a hasp. The hasp
on the cabinet had always been broken and [Magness] used a wire or screw to fasten
it. The night of the crime, the screw was removed. The cabinet door was hanging
open, with the lock still attached. [Magness’] rifles, shotgun, and the Glock case
(with fired cartridges) were gone. Fishermen found [Magness’] long guns and the
Glock’s case a few days later in the Deep Fork River which is near the home of the
Crouch family.
The Magness family owned ranch property nearby and [Magness] was familiar with
the area. Particles consistent with gunshot residue were found on [Magness’] pants.
The scene. Valuables including electronics and the victim’s purse were found at
the scene. There were several vehicles parked in the driveway with the keys in the
ignition. 	Only the guns were missing; nothing else in the house was disturbed.
There was no sign of forced entry. The victim lay in a large pool of blood on the
floor near the back door, and evidence suggested she fell back immediately after
being shot. A single line of shoeprints led through the back yard and out the gate,
in the direction of a car which was briefly parked in the block behind [Magness’]
house. The shoeprints were too indistinct to measure or identify.
Appellant’s statements. The victim was shot with a single .9mm round in her left
eye. [Magness] told friends and police that, when he found her, her eye was bulging
out. He insisted that this showed she had died as the result of blunt force trauma or
a single shot; he said he recognized it from his own experiences putting down
animals on the ranch. 	When Lyons (who saw the victim immediately after
[Magness] found her), the responding officers, and the medical examiner saw
[Elizabeth]’s body, her eye was in its socket. The medical examiner testified that,
when a person is shot in the head, the eye may bulge out at the time of the shot, but
that the eye will recede into its socket within minutes. The only time [Magness]
could have seen the victim’s eye as he described it was at the time she was shot.
Before police told [Magness] what the weapon was, he told the victim’s father that
she had been shot with a .9mm, and that he believed police would find his gun had
been used. He told friends and the police that there might be gunshot residue on
his pants. While [Magness] claimed he had been at the Crouch home all night, both
April and Dustin agreed that he could have left and returned while they were asleep.
6:22-cv-00376-JFH-DES Document 28 Filed in ED/OK on 10/09/26 Page 15 of 73

16
Appellant’s motive. [Magness] was in severe financial trouble. At the time of the
crime, he owed a large sum as an annual loan payment on the restaurant, and had
no money to pay it. The restaurant itself was losing money. He had not paid the
payroll taxes for the last quarter of 2014, and the first 2015 taxes were due. He had
sold all but a few of the extended family’s cattle, and the family ranching business
was almost moribund. In the week preceding [Elizabeth]’s death, [Magness] tried
and failed 	to borrow 	several 	thousand dollars from two different sources.
[Magness] had a $250,000 life insurance policy for [Elizabeth]. 	He had already
received insurance money from the burned family home, which he had used to prop
up the failing restaurant several months before. [Magness] had talked intermittently
to friends about the money he could get from [Elizabeth]’s life insurance since
2011. [Magness] contacted the insurance company shortly after her death. When
the company refused to pay after he was arrested, he asked the secondary
beneficiary, [Elizabeth]’s father, to accept the money and sign it over to him.
[Magness] complained to friends that [Elizabeth], who was clinically depressed,
did not have sex with him. He often slept on the couch. While [Elizabeth] helped
at the restaurant, [Magness] was the sole source of income for the family.
[Elizabeth] was often unable to engage in housework or childcare duties. In 2011,
[Magness] had said that because he was an extrovert and [Elizabeth] was an
introvert, they’d see how it went, but he considered the marriage to have an
expiration date of 2015. At the same time, he told other friends that he would not
leave [Elizabeth] because his family did not get divorced. In the months before the
murder, [Magness] attempted unsuccessfully to begin an inappropriate relationship
with a teenage girl.
In summary, the victim was shot with [Magness’] gun. 	His description of
[Elizabeth]’s physical condition matched the time she was shot, not her condition
when she was found. Nothing in the house was taken except the guns. [Magness]
had no alibi for the time of the crime. He had a significant financial motive, as well
as a more personal one.
Dkt. No. 9-3 at 5-10. Even though the Court is reviewing this claim de novo, the OCCA’s factual
findings are presumed correct unless Magness rebuts them by clear and convincing evidence.
Sumpter v. Kansas, 61 F.4th 729, 750 (10th Cir. 2023).
The evidence presented at trial supports the jury’s finding that Magness murdered Elizabeth
with malice aforethought. 	Magness possessed a motive, the jury reasonably could draw the
6:22-cv-00376-JFH-DES Document 28 Filed in ED/OK on 10/09/26 Page 16 of 73

17
inference that Magness’ gun was used to kill Elizabeth,5 his theory of a robbery gone wrong is
unsupported by the presence of other valuables in the home and the recovery of some of the guns,
and his statements regarding Elizabeth’s eye place him at the scene of the crime. Magness failed
to rebut these relevant findings of fact by clear and convincing evidence. Thus, after viewing the
evidence in the light most favorable to the prosecution, the Court concludes a rational trier of fact
could have found the essential elements of the crime beyond a reasonable doubt. 	Jackson, 442
U.S. at 319. No constitutional error occurred. Therefore, habeas relief as to this claim is denied.
V. 	Ground Four: Abuse of Judicial Discretion
For his fourth claim, Magness alleges, “the trial court repeatedly abused their judicial
discretion in favor of the State by the admission of improper evidence, directly prejudicing the
defense via facial expression and comments, and failure to properly instruct the jury.” Dkt. No. 1
at 17.
First, Magness challenges the trial court’s “Burks[6] ruling” permitting testimony regarding
Magness’ prior arson and infidelity into evidence. See id. at 17-18. Respondent argues Magness’
challenge to the admission of the arson and adultery evidence is merely a state law claim and is
not cognizable as a federal habeas claim. 	Dkt. No. 9 at 42-43. 	Magness further challenges the
Burks ruling in his Reply. See Dkt. No. 21 at 41-51.
5 “Jackson [v. Virginia] leaves juries broad discretion in deciding what inferences to draw from
the evidence presented at trial, requiring only that jurors ‘draw reasonable inferences from basic
facts to ultimate facts.’” Coleman v. Johnson, 566 U.S. 650, 655 (2012) (quoting Jackson, 442
U.S. at 319).
6 Burks v. State, 594 P.2d 771 (Okla. Crim. App. 1979) (setting forth the procedure to be followed
when the State intends to introduce evidence of other crimes), overruled in part on other grounds
by Jones v. State, 772 P.3d 922 (Okla. Crim. App. 1989).
6:22-cv-00376-JFH-DES Document 28 Filed in ED/OK on 10/09/26 Page 17 of 73

18
The admission of evidence at a state criminal trial is largely a matter of state law. Even if
evidence is admitted in violation of state law, that state-law error ordinarily “is no part of a federal
court’s habeas review of a state conviction.” Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); see
also Lisenba v. California, 314 U.S. 219, 228 (1941) (noting that federal habeas courts “do not sit
to review state court action on questions of the propriety of the trial judge’s action in the admission
of evidence”); Thornburg v. Mullin, 422 F.3d 1113, 1124 (10th Cir. 2005) (noting that a federal
habeas court’s “concern is not whether state rules of evidence were violated” and the court “must
confine [itself] to ‘deciding whether a conviction violated the Constitution, laws, or treaties of the
United States’ ” (quoting McGuire, 502 U.S. at 68)). Federal habeas courts “will not disturb a state
court’s admission of evidence of prior crimes, wrongs or acts unless the probative value of such
evidence is so greatly outweighed by the prejudice flowing from its admission that the admission
denies [the petitioner] due process of law.” Knighton v. Mullin, 293 F.3d 1165, 1171 (10th Cir.
2002) (quoting Duvall v. Reynolds, 139 F.3d 768, 787 (10th Cir. 1998)).
The Court agrees with Respondent. 	Magness does not identify a single constitutional
violation which allegedly flowed from the admission of this evidence. See Dkt. No. 1 at 17-23.7
Critically, whether the trial court complied with state law is a question of state law that is not
cognizable on federal habeas review. McGuire, 502 U.S. at 67-68; Leatherwood v. Allbaugh, 861
F.3d 1034, 1043 (10th Cir. 2017) (noting that a habeas petitioner “cannot transform a state law
claim into a federal one merely by attaching a due process label”). 	Therefore, this contention,
standing alone, is insufficient to provide Magness with habeas relief.
7 	In his Reply, Magness indicates this was a clerical error. 	Dkt. No. 21 at 45-46. 	This Court,
however, is under no obligation to construct arguments for Magness and search the record. Foster
v. Smith, 429 F. Supp. 3d 940, 961 (D.N.M. 2019) (quoting Garrett v. Selby Connor Maddux &
Janer, 425 F.3d 836, 840 (10th Cir. 2005)).
6:22-cv-00376-JFH-DES Document 28 Filed in ED/OK on 10/09/26 Page 18 of 73

19
To the extent Magness now wishes to raise a due process violation premised upon the
admission of the arson and infidelity evidence, this claim was presented for the first time in his
application for post-conviction relief. See Dkt. No. 9-4 at 19-23, Dkt. No. 9-8 at 11-14. The trial
court and appellate court applied a procedural bar because this claim could have been raised, but
was not raised, on direct appeal. Dkt. No. 9-9 at 3, Dkt. No. 9-11 at 2-3. Accordingly, the Court
will address this portion of Ground Four, concerning the arson and infidelity evidence, below in
the procedural default section.8
VI. 	Ground Five: Jurisdiction
Next, Magness alleges the State lacked subject matter jurisdiction to convict him because
the crime occurred within the boundaries of the Muskogee/Creek Nation thereby violating his due
process and equal protection rights. Dkt. No. 1 at 23. Magness explicitly states, “[t]o the best of
his knowledge, neither [he] nor his alleged victim are of Indian descent.” Id. at 24.9
A. The OCCA’s Decision
Magness presented this claim in his application for post-conviction relief and the OCCA
addressed it on the merits. The OCCA held:
In Proposition Four Petitioner asserts that the District Court lacks subject matter
jurisdiction because the alleged offense occurred within the boundaries of the
8 The remaining portion of Ground Four, concerning judicial bias, will also be addressed below
in the procedural default section. See infra.
9 The Petition makes one passing statement, “[f]or the Court to uphold Equal Protection, it cannot
discriminate upon the basis of Race, just as with other Federal jurisdictions . . . subject matter
jurisdiction remains with the Federal government, not the State in which Federal lands resides.”
Dkt. No. 1 at 24-25. In his Reply, Magness states, “The Respondent, as the OCCA and District
Court before them, fails to understand (or willfully ignores) that [Magness’] claim is one of
jurisdiction based upon racial discrimination.” 	Dkt. No. 21 at 51-52 (emphasis in original).
Accepting Magness’ current position, Magness fails to identify a clearly established Federal law,
as determined by the Supreme Court of the United States, supporting his jurisdictional claim based
on racial discrimination. 	See Dkt. No. 1 at 23-25; see also Dkt. No. 21 at 51-53. 	Therefore,
Magness’ discrimination claim is not entitled to habeas relief.
6:22-cv-00376-JFH-DES Document 28 Filed in ED/OK on 10/09/26 Page 19 of 73

20
Muskogee/Creek Nation. See McGirt v. Oklahoma, 140 S. Ct. 2452 (2020). This
claim is without merit. Petitioner concedes that he is not of Indian descent and
nor is the victim. 	Federal jurisdiction over offenses committed within Indian
country does not extend to crimes committed by non-Indians against non-Indians,
which are subject to state jurisdiction. Goforth v. State, 1982 OK CR 48, ¶ 5, 644
P.2d 114, 116 (citing United States v. McBratney, 104 U.S. 621 (1882)). Therefore,
fundamental to Petitioner’s claim that state jurisdiction is preempted by federal
statute is a determination of whether both the Petitioner and the victim are Indian.
See Oklahoma v. Castro-Huerta, 142 S. Ct. 2486, 2499 (2022).
The District Court determined that Petitioner failed to establish that he or the victim
is Indian. The defendant has the “burden to prove his is an Indian by producing
prima facie evidence that he has some Indian blood and that he was recognized as
an Indian by a tribe or the federal government.” Parker v. State, 2021 OK CR 17,
¶ 32, 495 P.3d 653, 654. 	We agree Petitioner failed to make this showing.
Petitioner’s unsupported assertions are not sufficient to warrant relief. See Brown
v. State, 1997 OK CR 1, ¶ 33, 933 P.2d 316, 324-25.
Dkt. No. 9-11 at 3-4 (emphasis added).
B. Analysis
The Court agrees Magness’ Ground Five is without merit. “The states possess exclusive
jurisdiction over crimes occurring in Indian country if there is neither an Indian victim, nor an
Indian perpetrator.” 	United States v. Langford, 641 F.3d 1195, 1197 (10th Cir. 2011); see also
Oklahoma v. Castro-Huerta, 597 U.S. 629, 656 (2022) (“[t]he Federal Government and the State
have concurrent jurisdiction to prosecute crimes committed by non-Indians against Indians in
Indian country.”); see also id. at 651 (“If his victim were a non-Indian, Castro-Huerta [,a non-
Indian,] could be prosecuted by the State, as he acknowledges.”). Magness has presented nothing
to suggest the OCCA’s decision rejecting his jurisdiction claim was contrary to, or involved an
unreasonable application of Supreme Court precedent or was an unreasonable determination of the
facts. Therefore, habeas relief as to this claim is denied.
6:22-cv-00376-JFH-DES Document 28 Filed in ED/OK on 10/09/26 Page 20 of 73

21
VII. 	Ground Eight: Ineffective Assistance of Appellate Counsel
For his eighth claim, Magness states his appellate counsel was ineffective. Dkt. No. 1 at
35-37. Magness asserts six (6) instances of ineffective assistance of appellate counsel. See id.
Magness alleges appellate counsel did not:
1) 	Adequately raise the issue of insufficiency of the evidence as outlined in
Ground One;
2) 	Raise the issue of Mrs. Reilly’s misconduct as outlined in Ground Two;
3) 	Raise the issue of the Trial Prosecutor’s misconducts as outlined in Ground
Three;
4) 	Fully raise the issue of Trial Court’s abuse of discretion (nothing beyond a few
of the Burk’s issues) as outlined in Ground Four;
5) 	Raise the issue of jurisdiction as outlined in Ground Five; and
6) 	Raise the issue of overall cumulative error as outlined in Ground Ten
([Magness] 	does 	not 	complain 	of Appellate 	Counsel’s 	failure 	to 	claim
ineffective assistance of Trial Counsel, as that would be improper for direct
appeal, but the errors outlined in Ground 7 themselves should have gone to the
issue of cumulative error).
Dkt. No. 1 at 35. Of these six (6) instances, five (5) were explicitly raised as ineffective assistance
of counsel claims in his amended application for post-conviction relief. See Dkt. No. 9-8 at 22.10
The state district court considered these five (5) claims and rejected them all. Dkt. No. 9-9 at 2-3.
Magness appealed the state district court’s denial of his application for post-conviction relief [Dkt.
No. 9-10], and the OCCA affirmed the state district court’s denial of the application [Dkt. No. 9-
11].
10 Magness did not raise an ineffective assistance of appellate counsel claim as it relates to his
jurisdictional claim in his amended application for post-conviction relief. See Dkt. No. 9-8 at 22.
6:22-cv-00376-JFH-DES Document 28 Filed in ED/OK on 10/09/26 Page 21 of 73

22
A. The OCCA’s Decision
The OCCA reasoned as follows:
We set forth in Logan that in reviewing a claim of ineffective assistance of appellate
counsel under Strickland, a court must look to the merits of the issues that appellate
counsel failed to raise. Logan, 2013 OK CR 2, ¶¶ 5-7, 293 P.3d at 973-74. Only
an examination of the merits of any omitted issues will reveal whether appellate
counsel’s performance was deficient and also whether the failure to raise the
omitted issue on appeal prejudiced the defendant; i.e., whether there is a reasonable
probability that raising the omitted issue would have resulted in a different outcome
in the defendant’s direct appeal. Id. We find no merit in the claim that Petitioner
was denied effective assistance of appellate counsel as alleged in his post-
conviction application.
Dkt. No. 9-11 at 6.
B. Analysis
A habeas petitioner asserting a claim of ineffective assistance of appellate counsel must
show both: 	“(1) constitutionally deficient performance, by demonstrating that his appellate
counsel’s conduct was objectively unreasonable, and (2) resulting prejudice, by demonstrating a
reasonable probability that, but for counsel’s unprofessional error(s), the result of the proceeding-
in this case the appeal-would have been different.” Cargle v. Mullin, 317 F.3d 1196, 1202 (10th
Cir. 2003) (citing Smith v. Robbins, 528 U.S. 259, (2000)).
To establish deficient performance, a person challenging a conviction must show that
“counsel’s representation fell below an objective standard of reasonableness.” 	Strickland, 466
U.S. at 688. 	A court considering a claim of ineffective assistance must apply a “strong
presumption” that counsel’s representation was within the “wide range” of reasonable professional
assistance. 	Id. at 689. 	With respect to prejudice, a challenger must demonstrate “a reasonable
probability that, but for counsel's unprofessional errors, the result of the proceeding would have
been different.” Id. at 694. It is not enough “to show that the errors had some conceivable effect
on the outcome of the proceeding.” Id. at 693.
6:22-cv-00376-JFH-DES Document 28 Filed in ED/OK on 10/09/26 Page 22 of 73

23
When a habeas petitioner alleges that his appellate counsel rendered ineffective assistance
by failing to raise an issue on direct appeal, the Court first examines the merits of the omitted issue,
generally in relation to the other arguments counsel did pursue. Cargle, 317 F.3d at 1202.
If the omitted issue is so plainly meritorious that it would have been unreasonable
to winnow it out even from an otherwise strong appeal, its omission may directly
establish deficient performance; if the omitted issue has merit but is not so
compelling, the case for deficient performance is more complicated, requiring an
assessment of the issue relative to the rest of the appeal, and deferential
consideration must be given to any professional judgment involved in its omission;
of course, if the issue is meritless, its omission will not constitute deficient
performance.
Id.
The OCCA correctly identified Strickland11 as the controlling authority. See Malicoat v.
Mullin, 426 F.3d 1241, 1248 (10th Cir. 2005). 	Thus, Magness must establish the OCCA
unreasonably applied Strickland. See Upchurch v. Bruce, 333 F.3d 1158, 1167 (10th Cir. 2003).12
As outlined below, after reviewing the record and the merits of the omitted claims, Magness cannot
show the OCCA’s determination of his ineffective assistance of appellate counsel claim was an
unreasonable application of Strickland nor can Magness establish the OCCA’s adjudication of his
11 Strickland v. Washington, 466 U.S. 668 (1984).
12 Magness contends the OCCA did not engage in the appropriate analysis dictated by Logan v.
State, 293 P.3d 969 (Okla. Crim. App. 2013). Dkt. No. 21 at 57; see also Logan, 293 P.3d at 973
(noting “[p]ost-conviction claims of ineffective assistance of appellate counsel are reviewed under
the standard for ineffective assistance of counsel set forth in Strickland v. Washington, 466 U.S.
668 (1984).”). 	The record reveals otherwise. 	The OCCA explicitly cited Strickland and
concluded, “[w]e find no merit in the claim that [Magness] was denied effective assistance of
appellate counsel as alleged in his post-conviction application.” 	Dkt. No. 9-11 at 6. 	Despite
Magness’ contention that the OCCA “promptly ignored” Logan [Dkt. No. 21 at 57], “[w]here a
state court’s decision is unaccompanied by an explanation, the habeas petitioner’s burden still must
be met by showing there was no reasonable basis for the state court to deny relief. 	This is so
whether or not the state court reveals which of the elements in a multipart claim it found
insufficient, for § 2254(d) applies when a ‘claim,’ not a component of one, has been adjudicated.”
Richter, 562 U.S. at 98. As explained throughout, Magness fails to show there was no reasonable
basis for the OCCA’s rejection of his ineffective assistance of appellate counsel claim.
6:22-cv-00376-JFH-DES Document 28 Filed in ED/OK on 10/09/26 Page 23 of 73

24
claim was an unreasonable determination of the facts. 	Habeas relief as to Magness’ ineffective
assistance of appellate counsel claim is unwarranted.
1. 	Sub-Claim One: Insufficiency of the Evidence
Magness complains of the prosecution’s reliance on circumstantial evidence. Dkt. No. 1
at 35; see also id. at 3-8. The jury was permitted to rely on circumstantial evidence. See Hill, 786
F.3d at 1261. Additionally, as outlined above and recognized by the OCCA, there was sufficient
evidence to convict Magness of first-degree murder. 	See supra; see also Dkt. No. 9-3 at 5-10.
Magness possessed a motive, it was reasonable for the jury to infer his gun was used to kill
Elizabeth, his theory of a robbery gone wrong is unsupported by the presence of other valuables
in the home and the recovery of some of the guns, and his statements regarding Elizabeth’s eye
places him at the scene of the crime. In all, a rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt. Jackson, 442 U.S. at 319. Thus, considering
the record as a whole, the Court cannot conclude that had appellate counsel included this claim in
Magness’ direct appeal, as currently presented by Magness,13 Magness would have received relief.
Therefore, Magness cannot establish the prejudice prong of Strickland and cannot demonstrate the
OCCA’s determination was unreasonable. Magness’ request for habeas corpus relief on this sub-
claim is denied.
2. 	Sub-Claim Two: Mrs. Reilly’s Conduct
Next, Magness contends his appellate counsel should have raised the alleged witness
tampering claim that he raises as his Ground Two in the instant Petition. Dkt. No. 1 at 35; see also
id. at 8-11; see also Dkt. No. 21 at 58-63. Magness’ position is that Maxey Reilly, a prosecutor on
13 As mentioned above, Magness’ appellate counsel did present a sufficiency of the evidence claim
to the OCCA on direct appeal. See Dkt. No. 9-1 at 42-45. Magness simply contends it was not
adequately raised. Dkt. No. 1 at 3-7. 35.
6:22-cv-00376-JFH-DES Document 28 Filed in ED/OK on 10/09/26 Page 24 of 73

25
the case during the investigation, informed Mr. Crouch there was a video of Magness on the night
in question away from the Crouch residence and that Magness had a life insurance policy on
Crouch. Id. at 9. Magness reasons Mrs. Reilly deceived Mr. Crouch to influence Mr. Crouch to
alter his testimony. Dkt. No. 1 at 9. Magness claims prior to Mrs. Reilly’s interference, Mr. Crouch
and his wife told investigators that Magness could not have left their house on the night in question.
Id. at 8-9. 	However, after Mrs. Reilly’s purported interference, Mr. Crouch and Mrs. Crouch
testified it was possible Magness left the residence thereby taking from Magness “his most solid
defense.” Id. at 9.
“Whether rooted directly in the Due Process Clause of the Fourteenth Amendment or in
the Compulsory Process or Confrontation clauses of the Sixth Amendment, the Constitution
guarantees criminal defendants a meaningful opportunity to present a complete defense.” Crane
v. Kentucky, 476 U.S. 683, 690 (1986) (citations and internal quotation marks omitted). 	This
includes “the right to present a defense by compelling the attendance, and presenting the testimony,
of [the defendant’s] own witnesses.” 	United States v. Serrano, 406 F.3d 1208, 1215 (10th Cir.
2005). 	Accordingly, “the government cannot substantially interfere with a defense witness’s
decision to testify.” Id. Witness interference must be determined on a case-by-case basis. Id. at
1216. “The dispositive question in each case is whether the government actor’s interference with
a witness’s decision to testify was ‘substantial.’” Id. (quotations omitted). 	“Interference is
substantial when the government actor actively discourages a witness from testifying through
threats of prosecution, intimidation, or coercive badgering.” Id.
However, as Mr. Crouch testified, the State subpoenaed him to testify. Dkt. No. 10-3 at
215; see also id. at 3 (Mrs. Crouch and Mr. Crouch were both presented as State witnesses); cf.
Dkt. No. 10-8 at 3 (Defendant did not call either Mrs. Crouch or Mr. Crouch to testify). Magness
6:22-cv-00376-JFH-DES Document 28 Filed in ED/OK on 10/09/26 Page 25 of 73

26
does not identify any case law, let alone Supreme Court authority, providing that a defendant’s
right to present a defense can be violated by government interference with the government’s own
witness. Contra Webb v. Texas, 409 U.S. 95, 97-98 (1972) (per curiam) (holding that the defendant
had been deprived due process of law under the Fourteenth Amendment when a trial judge’s
“lengthy and intimidating warning” and “threatening remarks, directed only at the single witness
for the defense, effectively drove that witness off the stand.” (emphasis added)); see also Ponds v.
Harding, Case No. 21-CV-104-CVE-CDL, 2024 WL 1221169, at *10 (N.D. Okla. March 21, 2024)
(unpublished)14 (denying § 2254 petitioner’s habeas claim that the State’s investigator intimidated
State’s witness into not testifying at trial).
Even if the Court were to assume that clearly established law holds that the State can
interfere with its own witness, the purported evidence of witness tampering Magness complains of
was presented to the jury. On cross-examination, Magness’ counsel elicited testimony from Mr.
Crouch regarding the video and alleged life insurance policy. 	See Dkt. No. 10-3 at 207-208.15
Furthermore, the jury was informed that Mr. Crouch changed his original statement that he did not
believe Magness could have left his home on the night in question to testifying it was a possibility.
See id. at 200-201, 203-204, 206, 216. The jury also was informed that Mr. Crouch and Magness
were good friends and at times in the investigation Mr. Crouch was protective of Magness. See id.
at 200-201, 215-216. 	Furthermore, defense counsel cross-examined Mrs. Crouch regarding her
original statement to Agent Titsworth that she believes she would have heard it if Magness left her
14 	The Court cites all unpublished decisions herein as persuasive authority. 	Fed. R. App. P.
32.1(a); 10th Cir. R. 32.1(A).
15 	Mr. Crouch testified Magness first informed him of the video. 	Dkt. No. 10-3 at 207. 	Mr.
Crouch testified, “Michael had mentioned it first when I heard about it after he’d been arrested[.]
I asked Maxey Reilly, and she confirmed that there was a video but she could not show it to me.”
Id.; see also id. at 217.
6:22-cv-00376-JFH-DES Document 28 Filed in ED/OK on 10/09/26 Page 26 of 73

27
house on the night in question. 	Dkt. No. 10-3 at 140-141. 	However, Mrs. Crouch testified on
direct examination that she believed it was possible for Magness to leave her home without her
hearing that night. Id. at 121. And the jury was instructed regarding Magness’ alibi defense. See
Dkt. No. 10-18 at 30.
Therefore, the jury was permitted to evaluate Mr. and Mrs. Crouch’s credibility, all of the
evidence presented and render its verdict. 	Magness’ appellate counsel’s performance was not
deficient because he did not present this sub-claim on appeal. The jury embraced the Crouches’
direct examination testimony by way of its verdict. Therefore, omission of this claim was within
the wide range of reasonable professional assistance. It follows, Magness cannot demonstrate the
OCCA’s adjudication of this claim was an unreasonable application of Strickland. Habeas relief
as to this sub-claim is denied.
3. 	Sub-Claim Three: Prosecutorial Misconduct
Next, Magness alleges the prosecution: i) made statements of “fact” that were knowingly
false; ii) made prejudicial statements in closing argument; and iii) misrepresented, contradicted
and/or plainly lied about testimony. Dkt. No. 1 at 35; see also id. at 11-15; see also Dkt. No. 21 at
63-64.
Critically, a “prosecutor may comment on and draw reasonable inferences from evidence
presented at trial.” 	Thornburg v. Mullin, 422 F.3d 1113, 1131 (10th Cir. 2005). 	Generally, the
Court will reverse a state conviction only if prosecutorial remarks “so infected the trial with
unfairness as to make the resulting conviction a denial of due process.” Donnelly v. DeChristoforo,
416 U.S. 637, 643 (1974). “Inquiry into fundamental fairness requires examination of the entire
proceedings, including the strength of the evidence against the petitioner[.]” Le v. Mullin, 311 F.3d
1002, 1013 (10th Cir. 2002). Counsel’s failure to object to the comments, while not dispositive, is
6:22-cv-00376-JFH-DES Document 28 Filed in ED/OK on 10/09/26 Page 27 of 73

28
also relevant. Id. (citing Trice v. Ward, 196 F.3d 1151, 1167 (10th Cir. 1999)). “[I]t is not enough
that the prosecutor’s remarks were undesirable or even universally condemned.” 	Id. (quoting
Darden v. Wainwright, 477 U.S. 168, 181 (1986)). Ultimately, the Court considers the jury’s ability
to judge the evidence fairly in light of the prosecutor’s conduct. Id. (citing Tillman v. Cook, 215
F.3d 1116, 1129 (10th Cir. 2000)). Against this legal backdrop, the Court will consider each alleged
instance of prosecutorial misconduct outlined in Magness’ three (3) categories and whether
Magness’ appellate counsel was ineffective for failing to raise these instances.
a. 	Category One: False Statements of Fact
First instance. Magness alleges, the State “explicitly stated that the murder weapon was
proven to belong to [Magness] even though their own forensic expert stated no match could be
made.” Dkt. No. 1 at 12, 35; see also Dkt. No. 9-8 at 8. Magness points to the following statement
during the State’s opening argument, “the evidence will be, ladies and gentleman, that Elizabeth
Magness was shot and killed by the Glock that [Magness] just says that he just happened to take
out of his truck that day and box up and put in that gun case.” 	Dkt. No. 10-3 at 18. 	Magness
further emphasizes the following exchange between the prosecution and Titsworth:
Q: This – the crime itself, the – the idea that, as he’s presenting it, someone’s gone
into the home and killed this woman with what we later learned would be their own
weapon, is that an exceptionally rare case?
A: Yes.
Dkt. No. 10-7 at 158. Magness also notes the following exchange between the prosecution and
Katelyn Millar, an OSBI firearm and tool mark examiner:
Q: And can you tell us in this case what conclusions were you able to make in
regards to Items No. 7 and 9?
A: 	Though they were consistent with 9 millimeter Luger bullets, meaning that
when it was a cartridge it was in a cartridge case that said 9 millimeter Luger on it,
6:22-cv-00376-JFH-DES Document 28 Filed in ED/OK on 10/09/26 Page 28 of 73

29
there was not enough individual detail for me to say if they were fired by the same
gun.
Dkt. No. 10-6 at 157. 	Lastly, Magness references the following statements during closing
argument:
And, ladies and gentleman, in this case, the evidence takes you directly to
[Magness]. His gun is the gun that was used to kill her.
Dkt. 10-9 at 12.
And he wants you to believe that, coincidentally again, he takes his baby that’s
breastfeeding and cosleeping, but for the first time ever on the same night his wife
happened to get killed by his gun, they had a plan for him to spend the night and
keep that baby.
Id. at 14.
Critically, the OCCA determined, “[t]he victim was shot with [Magness’] .9 mm Glock.”
Dkt. No. 9-3 at 5. Magness has not rebutted this finding by clear and convincing evidence. Further,
the cartridge case from the crime scene and the casings from the pasture, where Magness admitted
to practicing shooting his .9 mm, were all fired from the same firearm. See Dkt. No. 10-6 at 151-
152, 160; Dkt. No. 10-7 at 170-174, 176. Magness admitted to owning a .9-millimeter pistol that
was never recovered after the crime. Dkt. No. 10-7 at 159; Dkt. No. 10-8 at 29. Magness also told
his father-in-law he suspected “that the police are going to find it was my own gun that was taken
and used against her.” Dkt. No. 10-3 at 48. There was sufficient testimony and evidence in the
record to permit the prosecution to comment and draw the reasonable inference that Magness’
missing .9-millimeter Glock was the weapon that fired the shot that killed Elizabeth. Therefore,
appellate 	counsel’s 	omission 	of 	this 	claim 	did 	not 	fall 	below 	an 	objective 	standard 	of
reasonableness. And, it follows, Magness has not demonstrated the OCCA unreasonably applied
Strickland when it rejected this instance.
6:22-cv-00376-JFH-DES Document 28 Filed in ED/OK on 10/09/26 Page 29 of 73

30
Second instance. For his next assertion of prosecutorial misconduct, Magness alleges the
State “introduced a multitude of ‘bad acts’ (as better outlined in Ground Four)16 as well as solicited
testimony of [Magness’] skill as a [live-action role player or] LARPer in an effort to convict upon
[Magness’] alleged character rather than evidence.” Dkt. No. 1 at 12, 35; see also Dkt. No. 9-8 at
8. Magness points to the following comment during opening argument:
I anticipate that you will hear that the defendant, since he was just a child, has been
involved in what we talked about yesterday, that live-action role-play, and that that
was something that was very important and very central to his life. And I submit
to you, ladies and gentlemen, that the evidence will be that he had really perfected
his craft.
Dkt. No. 10-3 at 9. Magness also points to the following exchange between the prosecution and
Mr. Crouch:
Q: And did [Magness] often write those scripts?
***
Q: I believe I was asking you if [Magness] wrote the scripts, and that – that may
not be the right term, so correct me if I’m misstating what you would call –
A: We call them scripts.
Q: Okay. Is that something [Magness] would do for the group?
A: He wrote a few of the games. [Elizabeth] wrote more of the games.
Id. at 177-178.
There was ample evidence presented at trial of Magness’ involvement in LARP. See Dkt.
No. 10-3 at 50 (Elizabeth’s father, George Wilson, testified Magness participated in International
Fantasy Gaming Society after Elizabeth’s death), 173 (Mr. Crouch testified Magness introduced
him to LARP in high school); Dkt. No. 10-4 at 39-40 (Dane Lyon testified he met Magness through
a LARP organization in 2003). 	Further, Mrs. Crouch testified she “think’s [Magness] is an
16 Ground Four, as it relates to ineffective assistance of appellate counsel, is discussed in more
detail infra.
6:22-cv-00376-JFH-DES Document 28 Filed in ED/OK on 10/09/26 Page 30 of 73

31
excellent actor. That’s why he does so well at IFGS stuff.” Dkt. No. 10-3 at 163. The testimony
regarding Magness’ participation in LARP was not used to malign his character. This evidence of
Magness’ hobby was not impermissibly used to convict Magness. The Court cannot conclude the
cited portions of the record constituted prosecutorial misconduct rendering this claim meritless.
Therefore, appellate counsel was not ineffective for failing to raise these statements as
prosecutorial 	misconduct 	on 	direct 	appeal. 	Nor 	has 	Magness 	demonstrated 	the 	OCCA
unreasonably applied Strickland to this instance.
Third instance. Next, Magness alleges the state “intentionally misquoted timelines.” Dkt.
No. 1 at 12, 35; see also Dkt. No. 9-8 at 8. Magness supports his contention with the prosecutor’s
statement during opening argument that “[Magness] spends the night with the two children, and I
believe you’ll hear from April that they were trying to go to bed somewhere around 11:30, 12:30,
and that the baby’s fussing, having a hard time going down, crying for his mama.” Dkt. No. 10-3
at 14. During direct examination, Mrs. Crouch testified she and Mr. Crouch went to bed around
midnight, subsequently she heard B.M. fussing and she went out to check on him. Id. at 112-113.
She testified she was awoken around 3:30 – 4:00 a.m. by B.M. screaming. Id. at 113. When she
investigated, B.M. was in the kitchen with Magness. Id. at 114.
During cross-examination, Mrs. Crouch clarified she and Mr. Crouch went into their
bedroom around midnight but did not fall asleep until “closer to 1:00.” 	Id. at 133-134. 	She
testified the first time B.M. was fussing was around 12:30 or 12:45. Id. at 135. And the next time
she woke to B.M. was in the “3:30 to 4 o’clock range.” Id. at 136.
Reviewing the entire proceedings, the Court, first, cannot conclude the prosecution
provided an inaccurate timeline. The prosecution stated during opening Mrs. Crouch heard B.M.
crying around 12:30 and that matched Mrs. Crouch’s testimony. Second, the comment was made
6:22-cv-00376-JFH-DES Document 28 Filed in ED/OK on 10/09/26 Page 31 of 73

32
during opening and the jury then heard the testimony and was able to “judge the evidence fairly in
light of the prosecutor’s conduct.” See Le, 311 F.3d at 1013. 	In all, this claim of prosecutorial
misconduct is meritless, appellate counsel was not ineffective for failing to raise this instance and
Magness has not demonstrated the OCCA unreasonably applied Strickland to this instance.
Fourth instance. For his fourth instance of prosecutorial misconduct, Magness alleges the
State “knowingly lied about [Magness] not showing emotion while they intentionally edited
around such displays in evidence provided to the jury.” Dkt. No. 1 at 12, 35; see also Dkt. No. 9-
8 at 8. Magness cites the following:
Q: What did you see when you got there?
A [Mr. Crouch]: [Magness] was sitting on the north side of the porch, Dane was
standing close by him. [Magness] was in tears.
Dkt. No. 10-3 at 190.
Q: What was [Magness]’ demeanor while you saw him outside?
A [Dane Lyon]: He was starting to, I guess, come to the realization of what was
going on. He started to break down.
Q: None of us were there, so please tell me what you mean by breaking down?
A: He began to cry. He was – I apologize, it’s difficult to describe. He wasn’t so
much babbling is that he was trying to figure out what he was going to do, who was
going to – that he knew that he would have to speak with the police and he was
trying to figure out if he – what he was going to do with his – with his child.
Dkt. No. 10-4 at 64-65.
And to support his position that the prosecution lied, Magness references a conference that
took place outside the presence of the jury wherein the prosecution and defense discussed the
presentation of a video of Magness while talking to police and writing his statement. See Dkt. No.
10-7 at 138-145. During the conference, Magness’ counsel stated, “the parts that [the State] ha[s]
redacted is not really a bad – a good word, condensed, for lack of better word, is obviously the
6:22-cv-00376-JFH-DES Document 28 Filed in ED/OK on 10/09/26 Page 32 of 73

33
things that they want the jury to hear, not necessarily the things that we would want the jury to
hear or see.” Id. at 140. Defense counsel noted the State’s version did “not include a portion that
we would think would be an appropriate playing, that my client shows emotion while Agent
Titsworth’s asking him to write down his statement. He expresses emotion when he’s in the room
by himself, which is consistent with our theory. 	Id. at 140-141. 	The trial court ultimately
concluded, “I’m going to allow [the State] to play those, Ms. Farris, as you have requested, and
I’ll allow defense counsel to play what they want to play.” 	Id. at 145. 	Magness did present
additional portions of the video. See Dkt. No. 11 (Defense Ex. 5).
Further, there was testimony from witnesses that Magness did not display emotion after
Elizabeth was found dead and that he did. For example, Elizabeth’s father testified when he arrived
in Okemah:
[Magness] greeted us with a sort of shrug, which wasn’t what I expected from a
grieving husband whose wife had died violently. It was not in character with him,
it was – it was just very surprising and unexpected and didn’t – you know, marked
it very, very significantly in my mind that it was just an odd behavior.
Dkt. No. 10-3 at 46; see also id. at 49 (“There was no, you no, no sign of strain, no – just no
emotion or anxiety about missing her.”). Carl Fletcher, the first officer responding to the crime
scene, testified Magness “wasn’t emotional.” Dkt. No. 10-4 at 82. Steve Dominy, the family’s
pastor, testified when he met with Magness after the murder Magness displayed a “lack of
emotion[.]” Id. at 104. Justin Scrimshire, a friend of Magness’, testified he met Magness for lunch
a few weeks after Elizabeth’s death and Magness had “zero emotion, there was no quiver in his
lip, that was no – he wasn’t crying or anything,” as he discussed Elizabeth’s death. Dkt. No. 10-7
at 117, 120. 	Finally, Agent Titsworth testified when he first encountered Magness at the police
station to interview Magness, Magness “didn’t have much grief” and appeared “anxious, nervous.”
Id. at 153.
6:22-cv-00376-JFH-DES Document 28 Filed in ED/OK on 10/09/26 Page 33 of 73

34
Conversely, other witnesses testified to observing Magness display emotion. Dane Lyon
also testified that at the Okemah funeral Magness appeared “distraught” and was crying. Dkt. No.
10-4 at 67. Caleb Phillips, an employee at the K-Bar, testified he spoke to Magness on the phone
the day after the murder and Magness was “emotional” and “sobbing[.]” Dkt. No. 10-7 at 82.
Therefore, the jury was presented with testimony indicating Magness did have emotion and
did not have emotion after Elizabeth was discovered. However, any comment by the prosecution
regarding Magness’ lack of emotion17 was a fair comment on the evidence. It cannot be said that
the prosecution lied or that any such comment “so infected the trial with unfairness as to make the
resulting conviction a denial of due process.” Donnelly, 416 U.S. at 643. Therefore, this claim is
meritless, appellate counsel was not ineffective for failing to raise this statement as prosecutorial
misconduct on direct appeal and Magness has not demonstrated the OCCA unreasonably applied
Strickland.
Fifth instance. 	Magness alleges the prosecution engaged in misconduct when it
“repeatedly solicited non-experts for opinions which they knew a true expert (often other State
witnesses which were called) would refute.” Dkt. No. 1 at 12, 35; see also Dkt. No. 9-8 at 8. To
support this point, Magness first references a bench conference held outside the presence of the
jury. See Dkt. No. 10-4 at 134-136. The Court overruled the defense’s objection and permitted
the witness, Janell Daggett, an OSBI crime scene agent, to testify regarding her opinion of how
close the shooter was to Elizabeth when she was shot. Id. at 136.
First, Magness fails to articulate how Janell Daggett was not qualified to provide the
opinion she did. Second, Dr. Pfeifer, a physician employed at the Oklahoma Medical Examiner’s
17 Beyond the reference to defense counsel’s comment during the conference held outside of the
jury, Magness does not direct the Court to any comment made by the prosecution wherein the
prosecution purportedly lied to the jury.
6:22-cv-00376-JFH-DES Document 28 Filed in ED/OK on 10/09/26 Page 34 of 73

35
Officer, also testified to his opinion that, based upon the stippling pattern on Elizabeth’s face, the
muzzle of the gun was “several inches from the surface up to about a foot and a half to two feet”
from Elizabeth’s face. Dkt. No. 10-7 at 104. Therefore, the Court cannot conclude the prosecution
engaged in any misconduct by inquiring of Janell Daggett or that the information received from
Janell Daggett “infected the trial with unfairness[.]” Donnelly, 416 U.S. at 643.
Next, Magness relies on the following exchange between the prosecution and Paulynda
Stevens, an OSBI agent:
Q: 	Did it leave any impression with you, ma’am, when he – when you inquired
about, “Did you think it was a suicide,” and he said “Oh, no,” was that – did that
seem unusual to you?
A: It did.
Dkt. No. 10-6 at 60. Magness fails to articulate how this question even impermissibly seeks an
expert opinion or was in anyway improper. Nevertheless, Paulynda Stevens went on to explain:
[Magness] spent a – spent a great deal of time talking about her mental health and
how bad it was and how she didn’t take annual – she didn’t go to the doctor, she
was resistant with going, and he just spent a great deal talking about how bad it got
and the catatonic state and how her – her mental health affected her parenting and
just the ability to appropriately supervise her children. 	And, I mean, he just
described it to be very bad.
Id. Therefore, the question seeking Paulynda Jones’ impression based upon the information she
gathered from Magness regarding Elizabeth was not improper.
Finally, Magness references Agent Titsworth’s direct examination that was met with many
objections. 	See Dkt. No. 10-8 at 20-28. 	Agent Titsworth, generally, offered his opinion that
nighttime residential burglaries in Okemah were “rare,” and factors that made it, in his opinion,
unlikely that the crime was a burglary gone wrong. See id.
Magness does not elaborate on what credentials a “true expert” would need to provide the
opinions Agent Titsworth provided. 	Agent Titsworth, at the time of the investigation and his
6:22-cv-00376-JFH-DES Document 28 Filed in ED/OK on 10/09/26 Page 35 of 73

36
testimony, was a special agent with the OSBI. Dkt. No. 10-7 at 146. He testified prior to joining
OSBI he “had over three years of investigative experience,” he attended the OSBI agent’s academy
and had over 2,000 hours of annual training and education. Id. at 147. Agent Titsworth was tasked
with investigating Elizabeth’s murder. See id. at 147-148. Based on Agent Titsworth’s training
and experience, the Court cannot conclude Agent Titsworth offered an inappropriate opinion
regarding the characteristics of the crime.
The trial court did sustain defense counsel’s objection to the prosecution asking Agent
Titsworth if he found “anyone with a motive to kill [Elizabeth] Magness?” Dkt. No. 10-8 at 23-
24. Therefore, the trial court cured any error in this regard. See Patton v. Mullin, 425 F.3d 788,
800 (10th Cir. 2005).
In all, the Court cannot conclude appellate counsel’s decision to omit this claim on direct
appeal fell outside the wide range of reasonable professional assistance. Thus, Magness has failed
to demonstrate the OCCA unreasonably applied Strickland to this instance of ineffective assistance
of appellate counsel.
Sixth instance. Magness also alleges the State “knowingly misled the Trial Court by: A)
claiming solicitation of a minor is ‘not a crime’ (in order to meet the Court’s ‘Burk’s’ standard,
admission of bad acts); and B) claiming having grown up in Okemah precludes [Magness] having
grown up as a nudist (in another effort to admit character evidence)[.]” Dkt. No. 1 at 12, 35; see
also Dkt. No. 9-8 at 8.
Regarding Magness’ issue with the trial court’s Burks ruling [Dkt. No. 10-5 at 99], the
exchange Magness points to occurred during a bench conference. Id. Therefore, the Court cannot
conclude a statement made outside the presence of the jury is grounds for a viable prosecutorial
misconduct claim and this claim is meritless.
6:22-cv-00376-JFH-DES Document 28 Filed in ED/OK on 10/09/26 Page 36 of 73

37
Second, Magness points to an exchange between the prosecution and OSBI agent,
Paulynda Stevens. Dkt. No. 10-6 at 52. Once again, Magness points to a bench conference. Id.
Nevertheless, before the bench conference, the prosecution asked Paulynda Stevens, “[a]t some
point did [Magness] make any mention to you about growing up as a nudist?” Dkt. No. 10-6 at
51. 	Paulynda Stevens responded, “[y]es, he did.” 	Id. 	The prosecution then asked, “[c]an you
explain to the jury what he told you about that?” Id. This question was met with an objection and
the trial court ultimately ruled, during the bench conference, “I don’t need to hear about a nudist.
Let’s move on, counsel.” 	Id. at 52. 	Examining this question and answer against the entire
proceedings, the Court cannot conclude this question “so infected the trial with unfairness as to
make the resulting conviction a denial of due process.” Donnelly, 416 U.S. at 643. Thus, appellate
counsel did not provide deficient performance by omitting this claim of alleged prosecutorial
misconduct on direct appeal. It follows, Magness has not established no fair-minded jurist could
reach the same conclusion as the OCCA.
Seventh instance. 	Magness also alleges the prosecution engaged in misconduct by
“knowingly solicit[ing] false, and/or contradictory information about: A) [Magness’] gun being
positively identified as the murder weapon; B) alleged inconsistencies in Magness’ statements; and
C) [Magness’] financial status[.]” Dkt. No. 1 at 12, 35; see also Dkt. No. 9-8 at 8-9. The Court
already addressed Magness’ allegation that the State “explicitly stated that the murder weapon was
proven to belong to [Magness] even though their own forensic expert stated no match could be
made.” See supra. The Court will not revisit this claim.
Regarding Magness’ inconsistent statements, Magness points the Court to an exchange
between Agent Titsworth and the prosecution wherein the prosecution asked, “[t]he story that he
tells you about the gate, did that change over time?” 	Dkt. No. 10-7 at 178. 	Agent Titsworth
6:22-cv-00376-JFH-DES Document 28 Filed in ED/OK on 10/09/26 Page 37 of 73

38
responded, “[y]es, it did.” Id. This exchange referred to the gate in the backyard and, according
to Agent Titsworth, Magness first told him the “kids always keep the gate shut,” and Magness later
told Agent Titsworth that Elizabeth had bought some locks and planned to lock the gate because
the kids were getting out. 	Compare id. at 177-178 with 178-179. 	Magness also points to the
prosecution’s question “did he tell you that he could not see theft as being a motive in this case?”
and Agent Titsworth responding, “[y]es.” Id. at 187.
None of these instances were met with an objection. Further, they were fair questions from
the prosecution based on what Magness told Agent Titsworth while Agent Titsworth was
investigating the crime. 	Magness does not explain how the questions solicited knowingly false
testimony. 	Therefore, the Court cannot conclude the OCCA unreasonably applied Strickland
regarding this instance.
Next, regarding his financial status, Magness directs the Court to the prosecution’s
question, “did you see an electric bill with a large past due amount?” Dkt. No. 10-7 at 194. Agent
Titsworth responded, “[t]here was utility bills that was, yeah, that was behind.” Id. Magness does
not articulate how this question solicited false testimony or how the answer was false. 	To the
extent Magness challenges the notion that he was in a poor financial position, there was testimony
beyond the utility bills to support this inference. See Dkt. No. 10-3 at 40 (George Wilson testified
at Christmas 2014 “the family didn’t have a lot of spending money.”); Dkt. No. 10-7 at 199-200
(Agent Titsworth testified the annual payment due at end of February 2015 for a mortgage taken
out by Magness had not been paid at the time of Elizabeth’s death). Accordingly, Magness has
failed to establish the prosecution solicited false testimony by way of this question regarding the
utility bill. Once again, this is a meritless claim, appellate counsel was not deficient for failing to
raise it and Magness did not establish the OCCA unreasonably applied Strickland.
6:22-cv-00376-JFH-DES Document 28 Filed in ED/OK on 10/09/26 Page 38 of 73

39
Eighth instance. 	Magness also challenges the State’s purposeful solicitation of “a long
series of conclusive statements from Agent Titsworth (the lead investigator) in which he repeatedly
and directly states [Magness] was guilty, many times doing so after defense objection had been
sustained, and going so far that even the otherwise biased [[Magness’] Belief] Trial Court verbally
reprimanded the State and threatened mistrial[.]” Dkt. No. 1 at 12-13, 35; see also Dkt. No. 9-8 at
9. 	Magness broadly references an entire volume of the trial transcript and states, “throughout
Titsworth’s testimony.” Dkt. No. 9-8 at 9. Agent Titsworth testified on direct for approximately
ninety-three (93) pages of the trial transcript. See Dkt. No. 10-7 at 146-216, Dkt. No. 10-8 at 8-
32.18
At one point, in the course of sustaining a defense objection and during a bench trial, the
trial court did caution the prosecution, “Ms. Farris, you and I both know that [Titsworth] can’t give
an opinion to this jury on [Magness]’ guilt.” 	Dkt. No. 10-8 at 24. 	Later, Agent Titsworth was
testifying, “I believe that [Magness] only went back to the home that night to –[.]” Dkt. No. 10-8
at 30. Magness’ counsel objected and a bench conference ensued. See id. The trial court cautioned
the prosecution:
The trial court: Again, I’m not going to allow from this witness that [Magness]
killed [Elizabeth], so please be careful with your questions, Ms. Farris.
The prosecution: I will.
The trial court: Or we’re going to mistry this case.
The prosecution: I understand.
Id.
18 This Court is under no obligation to search the record on Magness’ behalf. See Foster, 429 F.
Supp. 3d at 961.
6:22-cv-00376-JFH-DES Document 28 Filed in ED/OK on 10/09/26 Page 39 of 73

40
First, during an earlier portion of Agent Titsworth’s testimony the trial court instructed the
jury, “you are ordered and directed to disregard the answer of the witness for the reason that that
is your sole – not your sole job, that’s one of the jobs that you have, his opinion is irrelevant to
what you decide.” Dkt. No. 10-7 at 204.
Second, the Court already addressed the propriety of the opinions Agent Titsworth formed
while investigating the case. See supra. The trial court did caution the prosecution and sustain
some of the defense’s objections. However, the jury was presented with ample evidence to support
its finding of guilt. See supra. Therefore, considering the jury’s ability to judge the evidence fairly
in light of the prosecutor’s conduct and the trial court’s instructions, the Court cannot conclude the
prosecution’s questioning of Agent Titsworth “so infected the trial with unfairness as to make the
resulting conviction a denial of due process.” 	Donnelly, 416 U.S. at 643. 	Nor can the Court
conclude appellate counsel’s decision to omit this instance, in light of the evidence supporting the
verdict, fell below an objective standard or reasonableness. Thus, it follows, a fair-minded jurist
could agree with the OCCA’s adjudication of this instance.
Ninth instance. For his ninth instance of prosecutorial misconduct, Magness asserts the
State “submitted a falsified Miranda document” (Magness does not make any Miranda claim, he
does point out that his arrest was well documented as occurring on May 1st, 2015, while the
document submitted was labeled as May 5th, 2015, and is indicative of the State’s overall efforts
to achieve victory no matter the facts). Dkt. No. 1 at 13, 35; see also Dkt. No. 9-8 at 9. During
direct examination, Agent Titsworth reviewed Magness’ Miranda form and noted it read, “the
Okemah police Department, May 5th, ’15, 13:17 hours.” Dkt. No. 10-7 at 213-214; . However, a
review of the actual exhibit reveals it is dated May 1, 2015. Dkt. No. 10-33 at 5 (State’s Ex. 125).
6:22-cv-00376-JFH-DES Document 28 Filed in ED/OK on 10/09/26 Page 40 of 73

41
First, it appears Agent Titsworth simply misspoke. Second, Magness fails to articulate how
Agent Titsworth’s minor misstatement of the date can be attributed to the prosecution for
“falsifying” a document. The actual document, by Magness’ own allegation, is accurately dated
May 1, 2015. This claim is meritless.
Tenth instance. 	For his tenth and final instance of prosecutorial misconduct within the
first category, Magness states that the State “knowingly concealed Medical Examiner’s opinion of
the timing for Victim’s eye to have been bulged and that said timing was even an issue of
importance for the State’s case, making it impossible for the defense to offer explanation or counter
testimony.” 	Dkt. No. 1 at 13, 35; see also Dkt. No. 9-8 at 9. 	During direct examination, the
following exchange occurred:
Q: There’s been some discussion in the case about her eye bulging out, and I don’t
see that in this photograph. What – do you have an opinion as to what point, if ever,
her eye would have been bulged out?
A [Dr. Pfeifer]: I – I could see that eye bulging out at the moment of impact with
that bullet. The – the bullet creates a shockwave in front of it in what we call a
temporary cavity, and so when it enters that orbital area, I think it’s very plausible
that the pressure in that orbit where that eye is could have forced that eye out
momentarily.
Q: And then it immediately returns?
A: Immediately or within a few seconds or minutes.
Dkt. No. 10-7 at 105-106. This testimony was not met with an objection. Defense counsel did not
even cross-examine Dr. Pfeifer regarding his testimony about the timing of Elizabeth’s eye bulging
out. See Dkt. No. 10-7 at 107-108.
Magness does not articulate how this opinion was concealed. 	See Dkt. No. 1 at 13, 35.
Multiple witnesses testified to Magness’ comment about observing Elizabeth’s eye bulging out
when he found her. See, e.g, Dkt. No. 10-3 at 191-192 (Mr. Crouch), Dkt. No. 10-5 at 217 (David
6:22-cv-00376-JFH-DES Document 28 Filed in ED/OK on 10/09/26 Page 41 of 73

42
Magness), Dkt. No. 10-7 at 119 (Justin Scrimshire); id. at 180 (Agent Titsworth). 	It was
permissible for the prosecution to inquire of a medical examiner about this piece of evidence. In
all, considering the entirety of the record and evidence supporting the jury’s verdict, appellate
counsel was not ineffective for failing to raise this claim.
b. 	Category Two: Prejudicial Statements in Closing Argument
Next, Magness alleges the prosecution made “a litany of plain error, prejudicial statements”
during closing argument. Dkt. No. 1 at 13; see also Dkt. No. 9-8 at 9. Magness contends that his
appellate counsel’s failure to raise the following eleven (11) enumerated instances of prosecutorial
misconduct rendered appellate counsel ineffective:
1) “you know that’s not who [Magness] is;” 2) “you know that [Magness] is
someone who murdered his wife;” 3) “it does factor into your decision as to why
[Magness] would do what he did;” 4) “the reason [Magness] did what he did;” 5)
“and will agree and know with confidence beyond a reasonable doubt that the
murder was caused by this defendant;” 6) “in this case the evidence takes you
directly to [Magness];” 7) “after he shot her in the face;” 8) “and shoot her in the
face;” 9) “he’s surprised because he killed her, ladies and gentlemen;” 10) “he shot
her in the face;” and 11) “and it was [Magness] who shot his wife with malice
aforethought in the face.”
Id. at 13; see also Dkt. No. 10-9 at 6, 10, 12, 17, 30, 32 and 35.
“The prosecutor may properly comment on the circumstances of the crime made known to
the jury during trial.” Hooper v. Mullin, 314 F. 3d 1162, 1172 (10th Cir. 2002). “The prosecutor
also possesses reasonable latitude in drawing inferences from the record.” Id. Magness fails to
articulate how any of the above eleven (11) statements were beyond the scope of proper
commentary and inferences a prosecutor is permitted to make. The State’s theory of the case was
that Magness murdered his wife by shooting her in the face for insurance money and Magness
tried to cover up the crime as a robbery gone wrong. 	See Dkt. No. 10-3 at 8-18. 	The State
introduced sufficient evidence to support this theory. 	Therefore, the prosecution’s closing
6:22-cv-00376-JFH-DES Document 28 Filed in ED/OK on 10/09/26 Page 42 of 73

43
argument reiterating its theory and drawing reasonable inferences from the evidence presented to
the jury was not improper. Thus, this claim lacks merit and Magness has not shown the OCCA
unreasonably applied Strickland to this category.
c. 	Category Three: The Prosecution Lied
To support his final category of prosecutorial misconduct, Magness alleges “the State
misrepresented, contradicted and/or plainly lied about additional testimony[.]” Dkt. No. 1 at 13.
The Court will address each instance of alleged misrepresentation, contradiction and/or lie.
First instance. Magness alleges the State “fabricat[ed] contradictions between [Magness’]
and Mr. Lyons’ statements[.]” Dkt. No. 1 at 13-14; see also Dkt. No. 9-8 at 9. Magness references
the prosecution’s closing argument wherein she stated:
Do you all remember Dane Lyon? 	He was the gentleman from Norman who
brought – had borrowed the truck and he brought it back on that day and he met
him there at the house. 	My memory is that Mr. Lyon says when they get there,
they’re going in together, and he specifically says that [Magness] tells him to wait
right here and he’s going to go on back around the house, and that [Magness] turns
around and comes running right back out and that he’s holding the baby, and tells
him that [Elizabeth] is down, and he gives him – he tells him to call 911. That’s
my memory of what Mr. Lyons says. That is not what [Magness] says.
[Magness] tells Agent Stevens and Agent Titsworth that when he goes in the house
he tells Dane Lyon to wait, he goes on back, he gets into that dining room area and
then he sees her down and he whirls around and he runs back in – which we know
has to be the living room because that’s where the bedroom door is, and he says he
puts the baby and the food down in that bedroom. He goes back and checks on her
again and then comes back to Mr. Lyon. Now, do you think Mr. Lyon would have
noticed all the commotion with the baby and the food and he’s going back again?
But that’s not what Mr. Lyon told you happened.
Dkt. No. 10-9 at 31. Dane Lyon testified as follows:
Q: What happened after [Magness] arrived?
A: 	We went in the house, he asked me to wait in the living room and he went
towards the back, towards the dining room area. After which he came back out
very shortly, informed me that he had found [Elizabeth] on the floor. He seemed to
be in a state of shock, he was pale and very monotoned in his response, and I asked
6:22-cv-00376-JFH-DES Document 28 Filed in ED/OK on 10/09/26 Page 43 of 73

44
him did she seem to be okay, was she unconscious and he didn’t respond so I went
to check myself and that’s when I found her on the floor.
Q: . . . Where did you wait in the house?
A: In the living room.
Q: Living room, okay. And did [Magness] have the baby with him?
A: Yes.
Dkt. No. 10-4 at 46-47. Agent Stevens testified:
Q: And, ma’am, at one point in your lengthy conversation with him did he go into
detail about the moments when he says he found [Elizabeth]’s body?
A: Yes.
[Portion of recording of Agent Stevens’ conversation with Magness introduced as
Exhibit 55]
Q: Okay. And we can hear him indicating about when he came in, “I got right –”,
where did he get – when he’s talking to you, where did he indicate in the house –
where did he get to look at [Elizabeth]?
A: H[e] walked through here, stopped right here and could see her head.
Q: Okay. And did he tell you then to get – that’s when he goes back and puts the
baby in the room?
A: He – he put B.M. down in the room.
Q: That’s what he said? And then he comes back – where does he say that he goes?
How far did he go into the room?
A: Walked to about right here.
Q: Okay. So sort of parallel to the dining room table?
A: Yes.
Q: Okay. And that’s where he told you?
A: Yes.
6:22-cv-00376-JFH-DES Document 28 Filed in ED/OK on 10/09/26 Page 44 of 73

45
Dkt. No. 10-6 at 54-58; see also Dkt. No. 10-21 at 9 (State’s Ex. 39). 	“Petitioner told Agent
Titsworth that he saw [Elizabeth] on the floor when he reached for the light switch, put B.M. and
a bag in the children’s room, and checked on her again before coming back out.” Dkt. No. 9 at 85;
see also Dkt. No. 11 (State’s Ex. 101). Magness does not articulate how the prosecution’s argument
was false. The evidence presented at trial establishes it was not. It follows that the prosecution’s
statement during closing was permissible commentary from the evidence presented. Therefore,
this instance of prosecutorial misconduct is meritless.
Second instance. Magness next alleges the State “add[ed] their own non-expert testimony
about the dog being in its crate.” Dkt. No. 1 at 14; see also Dkt. No. 9-8 at 9. Magness directs the
Court to the following statement during the prosecution’s closing argument:
The other item that I think is interesting is if you look at the picture of the living
room, this has always stood out to me, they have a dog and that dog is in a crate.
Do you think [Magness] put that dog up so he wouldn’t track through this carefully
orchestrated scene? The police told you that dog was always in the crate when they
were there. Doesn’t that seem unusual that a woman who’s home alone would have
the dog stuck in the crate the whole time?
Dkt. No. 10-9 at 32; see also Dkt. No. 10-19 at 8 (State’s Ex. 14).
The evidence presented during the State’s case in chief is that the dog was in the crate the
entire time the first responding officer, Carl Fletcher, was at the scene. See Dkt. No. 10-4 at 80-
81. 	The prosecution’s inference that the dog was purposefully placed in the kennel was
appropriately drawn from the record. Hooper, 314 F. 3d at 1172. Magness fails to explain how
the prosecutor’s comment was a misrepresentation, contradiction or lie. 	Thus, this claim is
meritless and its omission did not constitute deficient performance by appellate counsel. Thereby,
the OCCA’s adjudication of this instance was reasonable.
Third instance. 	Magness alleges the prosecution gave “their own non-expert (and
incorrect) testimony about cell towers not being able to show travel off a single text, knowing full
6:22-cv-00376-JFH-DES Document 28 Filed in ED/OK on 10/09/26 Page 45 of 73

46
well there were multiple pings throughout the time in question that did show ‘travel’ as having
been static at the Crouch residence and going further to tell the jury to disregard it anyway because
the data wasn’t ‘helpful in the case[.]’” Dkt. No. 1 at 14; see also Dkt. No. 9-8 at 9-10. Magness
relies on the following statement during closing argument:
The prosecution: And the other thing I want to address while it’s fresh on your
mind is this cell phone data – data sorry that he’s trying to feed you. He says I’m
trying to hide it from you and he has it all. 	He brought the maps over, and he’s
saying I’m trying to hide it? I produced all of that. You see, obviously, he has the
same subpoena power that I do and can bring –
Defense counsel: 	Judge, I’m going to object, that’s burden shifting. 	I have no
burden.
The trial court: Overruled.
The prosecution: He has the same ability that I do to bring any witness in here. If
he thought that evidence exonerated his client, you better believe those witnesses
would have been here and we would not be here today. That’s not what happened
here. You – he asked Agent Titsworth a question before we went to lunch and I
think he got a surprise answer because I think that data is complicated and lawyers
don’t necessarily understand it.
Agent Titsworth told you no – or told him, “No, I can’t really say about his phone
because after 2 o’clock it hits off a different tower, off the Castle tower. So I don’t
know whether it’s moving or not.” 	What you have to see to know if a phone is
moving is not whether you’re driving in a car, that’s not how that works. It’s as you
– as the phone receives data it pings. So if you get a text in but you don’t respond,
there’s no pinging back to show any travel.
I didn’t see how that evidence was helpful in this case. I don’t think it hurts me, I
don’t think it helps me. I don’t think it hurts him, I don’t think it helps him. It just
has limited use. We’re in a small grouped area, our phones ping off various towers.
And a lot of times it depends on traffic and if you’re standing this way or standing
that way, that’s how I understand it. 	That’s not helpful information, and yet he
wants you to walk this murderer out of this courtroom because I didn’t bring in a
cell phone analyst that he has the ability to do himself.
Defense counsel: Judge, again I’m going to object. This is burden shifting.
The trial court: Overruled. You have subpoena power.
Defense counsel: Judge, that doesn’t matter, it’s burden shifting.
6:22-cv-00376-JFH-DES Document 28 Filed in ED/OK on 10/09/26 Page 46 of 73

47
The trial court: Overruled, Counsel.
Dkt. No. 10-9 at 100-101.
On cross-examination, defense counsel asked Agent Titsworth:
Q: Did [Magness]’ cell phone ever leave the Tower 2 up by the Crouch’s residence?
A: I can’t say whether it did or not. I know that there was a text message around
2 o’clock and I believe that hit off of a tower south of Castle, which would be south
of 62 Highway, which is about 15 or 16 miles south of Crouch, somewhere in that
area.
Q: You learned that was an incoming text; correct?
A: I believe so, yes.
Q: From one of the employees at the K-Bar?
A: Yes.
Q: So my question is do you have any information that [Magness]’ phone ever left
the Crouch’s residence?
The prosecution: 	Judge, I believe he has answered that he can’t answer that
particular question, other than the answer he’s given.
Defense counsel: Judge, he has the reports. I’m asking him based on the reports
that he has.
The trial court: He can answer if he can.
Q: 	Let me ask a more specific question. 	Let me ask a more specific question.
AT&T gave you cell phone towers for the area; correct?
A: They did, yes.
Q: Tower 1 is in Okemah, correct?
A: I don’t recall exactly where all the towers were at, there were several towers.
Dkt. No. 10-8 at 76-77.19 On re-direct, Agent Titsworth testified:
19 Subsequent to this exchange, the prosecution objected stating, “Agent Titsworth is not a cell
phone expert and certainly not a tower data expert. . . . Asking him about AT&T’s data and trying
6:22-cv-00376-JFH-DES Document 28 Filed in ED/OK on 10/09/26 Page 47 of 73

48
Q: 	And in this case are you able to tell us by looking at the data what you
understood as to whether or not someone is definitely traveling or the – not – I
guess I should say whether the phone is in one location or not?
A: The entire time, no.
Q: Okay. Because it’s hitting off different towers?
A: That’s correct.
Q: But even though it’s hitting off different towers, as you sit here today you would
be unwilling to testify because you just don’t know if that’s because tower activity
or of movement; is that right?
A: Yes.
Q: Okay. And so in cases like this that data has – at least does it in your mind have
limited usefulness in a case like this? That’s probably a bad question. Let me just
say, are there limits to what we can tell with cell phone data?
A: Yes.
Dkt. No. 10-8 at 125-126.
Therefore, critically, Magness’ counsel introduced the cell phone tower data topic to the
jury and solicited Agent Titsworth’s opinion. 	See Dkt. No. 10-8 at 76-79. 	Furthermore, the
prosecution’s commentary was a proper comment on the evidence presented at trial. 	Agent
Titsworth testified he was unable to determine if Magness’ cell phone moved that evening. The
prosecution commented that the data was not helpful to either side. Magness does not articulate
how the comment was beyond the scope of proper closing argument or a misrepresentation,
contradiction or lie. Therefore, the OCCA did not unreasonably apply Strickland in rejecting this
instance of alleged prosecutorial misconduct.
to introduce it through this agent would be hearsay and it lacks any foundation with him. He’s not
the appropriate witness.” Dkt. No. 10-8 at 78. The trial court ultimately concluded, “[c]ounsel
may pursue the questioning. If the witness can’t answer the question, he can tell the jury he can’t
answer the question.” Id. at 79.
6:22-cv-00376-JFH-DES Document 28 Filed in ED/OK on 10/09/26 Page 48 of 73

49
Fourth 	instance. 	Next, 	Magness 	alleges 	the 	prosecution 	“added 	the 	testimony
‘unfortunately, there’s a lot of brush and debris for [Magness] so that Glock case, I’m sure he
thought would float down the river, got hung up there.’ Even though both Mr. York senior and Mr.
York junior testified for the State that the case was freely floating in a back current (not caught in
any brush), and no other testimony would suggest otherwise[.]” Dkt. No. 1 at 14; see also Dkt.
No. 10-9 at 103 and Dkt. No. 9-8 at 10.
Magness does not articulate how this comment at closing is material. Magness’ Glock case
was recovered. Dkt. No. 10-7 at 211. It is unclear why it matters if the Glock case was recovered
from brush and debris or freely floating in a back current. 	Nevertheless, Eric York testified the
Glock case was floating in a back current approximately twenty (20) feet from where he found a
16-gauge shotgun. 	Dkt. No. 10-6 at 95-96, 100-101. 	Billy York testified they found a black
powder rifle by “rak[ing] around[.]” 	Id. at 114. And the Glock case “was a little ways further
down from where the rifles was.” Id. at 115. Both York men testified based on the location of the
items it appeared they had been tossed from the bridge. 	Dkt. No. 10-6 at 95, 116. 	The
prosecution’s 	statement 	amounts 	to 	fair 	commentary. 	Thus, 	this 	instance 	of 	purported
prosecutorial misconduct is meritless.
Fifth instance. 	Magness also alleges the prosecution engaged in misconduct when the
State’s attorneys gave “their own non-expert (and incorrect) testimony about guns not rusting while
in water.” Dkt. No. 1 at 14; see also Dkt. No. 9-8 at 10. During closing, the prosecutor said:
And counsel thinks that those guns would be rusted, and I disagree with the science
on that. And first of all, I’d tell you Eric York said the one that he pulled out – or
that was – he found in the mud first, he started working on it with chemicals and
oils because it had started rusting. But you don’t get rust on metal until you expose
it to air, and that you can use from common knowledge and inference. 	You’ve
probably seen things recovered from the sea, and when they bring it up, they keep
it submerged in water so that it doesn’t begin to rust. That’s a false premise that the
defendant is trying to -- to feed you.
6:22-cv-00376-JFH-DES Document 28 Filed in ED/OK on 10/09/26 Page 49 of 73

50
Dkt. No. 10-9 at 103-104.
During direct examination, Eric York stated, when he found the 16-guage shotgun it was
“setting right by the water” and “was actually out of the water.” 	Dkt. No. 10-6 at 94-95. 	He
assumed, “it wasn’t out of the water long, just from the way it looked, wasn’t really any rust
buildup starting[.]” 	Id. at 97. 	Once again, Magness fails to articulate how the prosecution’s
comment was a misrepresentation, contradictory, or a lie. 	Eric York’s testimony suggested that
items in water do not rust. This instance of purported prosecutorial misconduct is likewise without
merit.
Sixth instance. Magness next contends the prosecution improperly stated Elizabeth “was
also a disabled person who was having some problems and suffering in her home. And it was that
disability that kept her trapped in this marriage with [Magness].” Dkt. No. 1 at 14; see also Dkt.
No. 10-9 at 108 and Dkt. No. 9-8 at 10. Magness alleges “no other testimony suggested [Elizabeth]
was ‘disabled’ by her depression, nor was there any other testimony to suggest either of us wished
to end our marriage.” Dkt. No. 1 at 14.
Contrary to Magness’ contention, there was testimony Elizabeth’s daily life was hindered
by her depression. Elizabeth’s father, George Wilson, testified after Elizabeth and Magness moved
to Okemah, Wilson was concerned his daughter was depressed, and Magness told Wilson that
Elizabeth was taking anti-depressants. Dkt. No. 10-3 at 35-36. The last time Wilson saw Elizabeth
he reached the conclusion “that we wouldn’t be surprised if the next time we saw her wasn’t her
and the boys on the doorstep with suitcases telling us she had decided to leave [Magness].” Id. at
42.
Mrs. Crouch testified, Elizabeth “didn’t come out of the house much. She didn’t really do
much after B.M. was born.” 	Id. at 104. 	Mrs. Crouch also testified she believed Elizabeth was
6:22-cv-00376-JFH-DES Document 28 Filed in ED/OK on 10/09/26 Page 50 of 73

51
depressed and “all she ever did was sleep.” 	Id. at 105, 107. 	Mrs. Crouch further testified,
“[u]sually that house is such a disaster you couldn’t see much of anything.” Id. at 147. Magness
reported to Mr. Crouch that Elizabeth “would lock herself in her room and not come out. 	She
wouldn’t do any of the housework, she wouldn’t help out with the kids. 	She was basically
emotionally shut down.” Id. at 182.
Regarding their marriage, Magness complained “he wasn’t getting any.” Dkt. No. 10-3 at
108. 	Mrs. Crouch encouraged Magness to divorce Elizabeth. 	Id. 	However, Magness told the
Crouches that “Magnesses don’t get divorced.” 	Id.; see also id. at 182. 	There was evidence
presented that Magness had an extra-marital affair with Kimberly Simmons. Dkt. No. 10-5 at 18-
19. Magness talked to Simmons about ending his marriage and told her, “we’ll have this contract
and if by the end of that time frame it’s still not working out then we’ll end our marriage. And that
year would have been 2015.” 	Id. at 18. 	There was also evidence presented that Magness
communicated to K.C., the Crouches’ then sixteen-year-old daughter, that if she was interested in
having sex with him, he would do that. Dkt. No. 10-5 at 98.
Therefore, the prosecution’s commentary that Elizabeth was depressed, her depression
interfered with her daily life and that the marriage was not thriving was all supported by the record.
The prosecutor’s inference that Elizabeth was trapped in the marriage was also supported by the
evidence. Nothing about the prosecutor’s closing statement was a misrepresentation, contradiction
or lie. This instance is meritless.
Seventh instance. The next instance of alleged prosecutorial misconduct was when the
state “bolster[ed] Agent Titsworth’s testimony above even the State’s own expert witnesses[.]”
Dkt. No. 1 at 14; see also Dkt. No. 9-8 at 10. The prosecution argued, “your common sense will
tell you just what Agent Titsworth told you, this crime makes no sense that a [sic] intruder would
6:22-cv-00376-JFH-DES Document 28 Filed in ED/OK on 10/09/26 Page 51 of 73

52
have done this.” Dkt. No. 10-9 at 9. Magness does not articulate how this statement somehow
improperly elevated Agent Titsworth’s testimony.
The evidence presented to the jury was that Agent Titsworth was an OSBI investigator with
extensive training. Dkt. No. 10-7 at 146-147. Furthermore, left behind at the crime scene were
cars with keys in the ignition and valuables in and outside the home. See Dkt. No. 10-8 at 25-27.
Further, what was allegedly taken were the guns and most of them were later recovered from the
river. 	See id at 29. 	Based on Agent Titsworth’s experience, the murder did not appear to be a
robbery. Id. at 28. Therefore, based on Agent’s Titsworth’s testimony, the prosecution’s statements
at closing were within the permissible bounds of commentary and inferences drawn from the
evidence presented. Appellate counsel’s decision to omit this instance was reasonable, in light of
the record, and a fair-minded jurist could reach the same conclusion the OCCA did.
Eighth instance. 	For his eighth example of prosecutorial misconduct within category
three, Magness alleges the State “claim[ed] that there was no reason for the Crouchs to have
changed their testimony despite Mr. Crouch’s testimony of Mrs. Reilly’s tampering.” Dkt. No. 1
at 14; see also Dkt. No. 9-8 at 10. 	Magness points to the following statement during closing:
“[The Crouches] didn’t have any reason to come in here and tell you anything other than what they
actually remembered.” Dkt. No. 10-9 at 14.
Placing it more in context, the prosecutor argued:
And then we have this story of him going, and we know that he goes to April and
Dustin Crouch’s house. And he takes these two babies with him. Isn’t it interesting
that he just happens to be out of town when his wife gets murdered, just like he just
happened to be out of town, driving to Wisconsin, when Grimmie’s house burns
down? Isn’t that an interesting parallel? Think he thought that covered him in the
fire and that would cover him here?
And I submit to you, ladies and gentlemen, when Dustin and April are asked, when
you went to bed was [Magness] there, yes, when you got up was [Magness] there,
yes. Would you assume he had been there through the night? How many parents
6:22-cv-00376-JFH-DES Document 28 Filed in ED/OK on 10/09/26 Page 52 of 73

53
across the country, if I asked that question to them, was your teenager there all night
last night in their bedroom, how many of them do you think would say yes, and
how many times do you think those teenagers have snuck out of the house without
their parents knowing? Again, use your common sense.
Dustin and April had time to reflect on it and recalled that [Magness] has come into
their home and startled the girls before and had told them how – he told them how
easy it was to get in and out of their house. Dustin and April love this man. They
treated him as though he was one of their family, he was like a brother. They were
together all the time. 	He had free access to their house and their home and free
access to their daughter. They didn’t have any reason to come in here and tell you
anything other than what they actually remembered.
Dkt. No. 10-9 at 13-14.
As outlined above, on cross-examination, the jury was informed that Mr. Crouch changed
his original statement that he did not believe Magness left his home on the night in question to
testifying it was a possibility. See id. at 200-201, 203-204, 206, 216. The jury also was informed
that Mr. Crouch and Magness were good friends and, at times in the investigation, Mr. Crouch was
protective of Magness. 	See id. at 200-201, 215-216. 	Furthermore, defense counsel cross-
examined Mrs. Crouch regarding her original statement to Agent Titsworth that she did not believe
Magness left her house on the night in question. Dkt. No. 10-3 at 140-141. However, Mrs. Crouch
testified on direct examination that she believed it was possible for Magness to leave her home
without her hearing it that night. Id. at 121.
The prosecution’s commentary on Mr. and Mrs. Crouch’s testimony was properly grounded
in the evidence that the Crouches had changed their testimony. 	It was reasonable for the
prosecution to comment on that and present an argument. 	The jury had this evidence and was
permitted to weigh the Crouches’ credibility. It was within an objective standard of reasonableness
for appellate counsel to omit this claim.
Ninth instance. 	Magness also alleges the prosecution “misrepresent[ed] the DNA
evidence.” Dkt. No. 1 at 14; see also Dkt. No. 9-8 at 10. Magness takes issue with the prosecutor’s
6:22-cv-00376-JFH-DES Document 28 Filed in ED/OK on 10/09/26 Page 53 of 73

54
argument, “[t]hat’s what you would first test, but no one else’s DNA was found on that lock except
for [Elizabeth] and [Magness]. That’s it.” Dkt. No. 10-9 at 17.
On direct examination, William Christensen, a forensic scientist in the OSBI DNA Lab in
2015, testified he analyzed the DNA from the “silver and gold padlock[.]” Dkt. No. 10-7 at 19.
Through his analysis he concluded, “the DNA profiles obtained from the swabs from the silver
and gold lock appears to be a mixture. The source of Item 10, which is the known buccal swabs
from [Magness], and 15A, which is the known blood card from Elizabeth Magness could not be
excluded as potential contributors for this mixture, and the probability of selecting an unrelated
individual at random from the population who could be a contributor to this mixture is at least 1
in 26.” Id.
The defense cross-examined Christensen about the lock:
Q: And so for the lock, from – from the DNA science point of view, you don’t
know whether or not that’s actually [Elizabeth] Magness’ DNA or [Magness’] DNA
on the lock; right?
A: 	No, the alleles that are present in that mixture are also present in the known
samples from both – both the knowns that I compared it to. It’s just that when it’s
a mixture in it that’s low level, it’s – it brings the statistic down so. There are certain
thresholds that you have in DNA analysis that you can indicate whether or not it’s
a low-level mixture versus not a low-level mixture, and that’s kind of where this
applies to, it’s just a low-level mixture on this particular lock. But all the alleles
present in the mixture are also present in both known samples.
Q: 	Right. But all the alleles you found would also be present in 1 in 26 people
randomly chosen; right?
A: Right, there’s a potential that if I was to also profile 26 people that at least one
of them, on average, would also be included in this mixture.
Q: Okay. So both [Magness] and [Elizabeth] are might be’s for the lock?
A: Right, they both cannot be excluded.
Dkt. No. 10-7 at 26-27.
6:22-cv-00376-JFH-DES Document 28 Filed in ED/OK on 10/09/26 Page 54 of 73

55
The prosecutor’s statement was accurate that, based upon the evidence presented to the
jury, there was nobody else identified as having DNA on the lock. 	Once again, this was a fair
argument at closing based on the evidence presented at trial. Any weaknesses with this argument
were exploited on cross-examination and the jury was permitted to weigh the evidence. The jury
possessed the ability to judge the evidence fairly in light of the prosecutor’s conduct. See Le, 311
F.3d at 1013. 	The Court cannot conclude this instance amounts to prosecutorial misconduct or
appellate counsel was deficient for failing to raise this instance.
Tenth instance. For his tenth instance of prosecutorial misconduct, Magness alleges the
prosector “directly l[ied] about [Magness’] weight, which was in the 290 – 310 range at the time
of the murder[.]” 	Dkt. No. 1 at 14; see also Dkt. No. 9-8 at 10. 	Magness takes issue with the
following statement during closing, “he’s in his mid-200s weight is what she’s guessing and about
– I believe she said 5’10”.” Dkt. No. 10-9 at 18. The prosecutor was referring to Rhonda Hill’s
testimony. See id. at 17-18. On direct, Hill was asked how much she thought the man she observed
on the night in question weighed and she answered, “[w]ith the pudginess, maybe 240, 250,
something like that.” Dkt. No. 10-4 at 28.
The prosecution’s closing statement was an accurate summary of Hill’s testimony. Simply
because Magness believes Hill’s testimony was inaccurate does not mean the prosecution’s
statement was a lie. Furthermore, Magness’ counsel cross-examined Hill about the weight of the
person she observed [Dkt. No. 10-4 at 33] and presented Magness’ Booking Form from the
Okfuskee County Jail dated May 1, 2015, indicating Magness weighed 270 pounds. Dkt. No. 10-
35 at 4 (Defense Ex. 9). Therefore, the jury was able to fairly judge the evidence presented and
the prosecutor’s statement was not improper. This is another meritless claim.
6:22-cv-00376-JFH-DES Document 28 Filed in ED/OK on 10/09/26 Page 55 of 73

56
Eleventh instance. Magness also alleges the prosecution “directly l[ied] about [Magness]
being denied for a bridge loan (the record shows [Magness] has been approved, but was holding
off while shopping for better rates[.])” Dkt. No. 1 at 14-15; see also Dkt. No. 9-8 at 10. During
closing, the prosecution said,
[h]e tried to get that, and I can’t remember the name of the finance company but
it’s basically like a quick – quick cash type loan situation, like a payday loan except
it’s for business, and that didn’t go through so he tries to get 50 grand out of Dale
Rich, but Dale doesn’t respond to him.
Dkt. No. 10-9 at 23-24.
Agent Titsworth testified he discovered during the investigation Magness was “trying to
obtain some funds from Flash Advance, I believe, some sort of loan company.” Dkt. No. 10-8 at
16. 	Agent Titsworth testified Flash Advance is “kind of like a payday loan company for
businesses[.]” Id. The State asked Agent Titsworth, “[d]o you know whether or not the loan went
through?” Id. at 17. Agent Titsworth answered, “[t]o my knowledge it did not go through.” Id.
Therefore, once again, the prosecution’s statement accurately captured the substance of Agent
Titsworth’s testimony, this statement does not amount to prosecutorial misconduct, and this
purported instance of ineffectiveness is meritless.
Twelfth instance. 	Magness alleges, the State “l[ied] about [Magness’] loans from his
mother and Mr. Rich having been both for the funeral (the loan from Rich was for the funeral, the
loan from Petitioner’s mother was for the restaurant[.])” Dkt. No. 1 at 15; see also Dkt. No. 9-8
at 10. Magness takes issue with the following statement during closing, “[y]ou heard the testimony
that Dale Rich went to the funeral home himself and paid for that funeral, but then he gets the
money for the funeral again off his own mother.” Dkt. No. 10-9 at 24.
During the State’s case in chief, the following exchange occurred:
Q: Did he make any other requests of you?
6:22-cv-00376-JFH-DES Document 28 Filed in ED/OK on 10/09/26 Page 56 of 73

57
A [Dale Rich]: 	Later, right after – after his wife was deceased, he asked me for
help with funeral expenses.
Q: And did you help him with that?
A: Yes, I did do that.
Q: Do you remember how much that was for?
A: Right at about 10,000.
Q: Okay. And did you give the defendant a check for 10,000?
A: No, I went straight to the funeral home and paid for the expenses there.
Dkt. No. 10-6 at 38. 	Magness’ mother was asked during cross-examination, “did you help
[Magness] with the funeral expenses?” Dkt. No. 10-8 at 154. Mrs. Magness answered:
Yes, I did. 	Now, he hadn’t asked me for money but I’d just been through my
husband’s, I knew how expensive it was. I think I gave him like 20,000 to help him
out, and I came up with that number because I’d went with him to the funeral home
here and kind of knew what it – you know, what a lot of it was going to cost.
Id. While Magness’ mother testified Magness did not ask for the money from her, the prosecution’s
closing statement that Magness obtained money from two separate sources to fund Elizabeth’s
funeral is an accurate summary of the testimony presented. The Court discerns no misconduct by
the prosecution or ineffectiveness on behalf of appellate counsel for omitting this claim.
Thirteenth instance. Finally, Magness alleges the prosecution impermissibly “attribut[ed]
multiple quotes as having been directly from [Magness] even though [Magness] never took the
stand.” Dkt. No. 1 at 15; see also Dkt. No. 9-8 at 10. Magness points to the following statements:
i) “[Magness] says you need a pair of pliers;” and ii) “he told you Magnesses don’t get divorced.”
Dkt. No. 10-9 at 21, 24-25. A statement “offered against a party and [that] is the party’s own
statement, in either an individual or a representative capacity” is not hearsay and appropriately
admitted into evidence. See Okla. Stat. tit. 12, § 2801(B)(2)(a). Throughout Magness’ trial, many
6:22-cv-00376-JFH-DES Document 28 Filed in ED/OK on 10/09/26 Page 57 of 73

58
statements made by him were admitted into evidence without objection. Agent Titsworth testified
regarding accessing the gun cabinet in the Magness home, “[Magness] described to me that you
could use a pair of pliers or a (inaudible) or something and just take that screw out.” Dkt. No. 10-
7 at 183. Magness also told both Mr. and Mrs. Crouch, “Magnesses don’t get divorces.” Dkt. No.
10-3 at 108, 182.
Both of the prosecutor’s closing statements were accurate summaries of statements
Magness told other witnesses and the witnesses relayed to the jury during trial. 	Therefore,
Magness’ final attempt to establish prosecutorial misconduct falls short.
After thoroughly evaluating each point of purported prosecutorial misconduct raised by
Magness, the Court concludes the OCCA’s rejection of Magness’ ineffective assistance of appellate
counsel claim as it relates to the noted instances of prosecutorial misconduct was not an
unreasonable application of Strickland nor an unreasonable determination of the facts. For these
reasons, habeas relief as to Sub-Claim Three is denied.
4. 	Sub-Claim Four: Abuse of Judicial Discretion
Next, Magness alleges his appellate counsel was ineffective for failing to raise the abuse
of judicial discretion claim he presents in Ground Four. Dkt. No. 1 at 35; see also id. at 17-21; see
also Dkt. No. 21 at 64. Magness challenges the trial court’s Burk’s ruling and the evidence that
was admitted as a result of this ruling [see Dkt. No. 1 at 17-18] and the trial court’s “procedural
failures” [id. at 18]. 	However, “[u]nfavorable judicial rulings do not in themselves call into
question the impartiality of a judge.” United States v. Mendoza, 468 F.3d 1256, 1262 (10th Cir.
2006). Even where the trial court makes incorrect legal rulings, that, standing alone, is not enough
to establish actual bias. See Welch v. Sirmons, 451 F.3d 675, 698–701 (10th Cir. 2006), abrogated
on other grounds by Wackerly v. Workman, 580 F.3d 1171 (10th Cir.2009) (citing Liteky v. United
6:22-cv-00376-JFH-DES Document 28 Filed in ED/OK on 10/09/26 Page 58 of 73

59
States, 510 U.S. 540, 555 (1994) (holding that “judicial rulings alone almost never constitute a
valid basis for a bias or partiality motion.”)). 	Generally, unfavorable or incorrect legal rulings
constitute the basis for appeal, not for a bias challenge. Liteky, 510 U.S. at 555. Considering the
whole record and evidence presented, the Court cannot conclude had appellate counsel included
this particular point in Magness’ direct appeal, Magness would have received relief. Therefore,
Magness cannot establish the prejudice prong of Strickland and cannot demonstrate the OCCA’s
determination was unreasonable.
Next, Magness argues the trial court’s facial expressions, general demeanor and body
language demonstrate the trial court’s bias against Magness. Dkt. No. 1 at 18-19. During a bench
conference, defense counsel stated, “I think the Court’s facial expressions when I make objections
in this matter are being transmitted and the jury is seeing them just as I am. I’d request the Court
keep its expression neutral[.]” Dkt. No. 10-6 at 35. The Court responded, “the Court is unable to
sit up here and be totally expressionless, Mr. Allen. My expressions in no way reflect any irritation
with you or Mr. Stevenson as far as your objections are concerned. But I’ll continue to have the
expressions I’ve had for 50 years probably, so you want to say anything else about my
expressions?” Id. at 35-36. Defense counsel responded, “[n]o, sir.” Id. at 36.
The United States Supreme Court has held,
[n]ot establishing bias or partiality, however, are expressions of impatience,
dissatisfaction, annoyance, and even anger, that are within the bounds of what
imperfect men and women, even after having been confirmed as federal judges,
sometimes display. A judge’s ordinary efforts at courtroom administration—even
a stern and short-tempered judge's ordinary efforts at courtroom administration—
remain immune.
Liteky, 510 U.S. at 555-56 (emphasis in original). Magness has not pointed to anything more than
purported expressions of impatience, dissatisfaction, annoyance or anger. See id. The record does
not support Magness’ contention that the trial court’s facial expression and general demeanor
6:22-cv-00376-JFH-DES Document 28 Filed in ED/OK on 10/09/26 Page 59 of 73

60
indicated a bias and frustration against the defense that rose to the level of a constitutional
violation. Omission of this claim did not fall outside the wide range of reasonable professional
assistance.
Finally, to support his judicial bias claim Magness claims the trial court was unfit for duty
and using prescription pain killers at the time of trial. Dkt. No. 1 at 20. Magness further alleges
the trial court’s alleged “commiserating and shaking hands with the victim’s father, both giving
the witness greater credibility and showing which ‘side’ the trial court was on.” 	Id. 	Magness
acknowledges the alleged exchange between the victim’s father and the trial court is not captured
by the record. Id. Further, as noted, there was sufficient evidence to support the jury’s verdict.
See supra. Therefore, the Court cannot conclude that, if appellate counsel raised this position in
Magness’ direct appeal, he would have received relief from the OCCA. 	In all, Magness cannot
establish the prejudice prong and cannot demonstrate the OCCA’s determination of this ineffective
assistance of appellate counsel claim was unreasonable.
5. 	Sub-Claim Five: Jurisdiction
Concerning his ineffective assistance of appellate counsel claim, Magness contends his
appellate counsel “failed to raise the issue of jurisdiction as outlined in Ground Five[.]” Dkt. No.
1 at 35. This sub-claim was not presented to the state district court in his application for post-
conviction relief. See Dkt. No. 9-4 at 6; Dkt. No. 9-8 at 22. Nor was this sub-claim presented to
the OCCA on appeal. See Dkt. No. 9-10 at 6. Therefore, this claim has not been fairly presented
to the state court. Fairchild, 579 F.3d at 1151. Further, the OCCA would apply a procedural bar
if Magness were to return to state court to exhaust this claim through an application for post-
conviction relief because he could have, but did not, raise this claim in his initial application for
post-conviction relief. 	Smallwood, 191 F.3d at 1267. 	Magness does not demonstrate why this
6:22-cv-00376-JFH-DES Document 28 Filed in ED/OK on 10/09/26 Page 60 of 73

61
Court should review his procedurally barred claim. 	Therefore, Magness has not overcome the
procedural bar, and habeas relief as to this sub-claim is denied.
6. 	Sub-Claim Six: Cumulative Error
Magness also contends his appellate counsel was ineffective for failing to “raise the issue
of overall cumulative error as outlined in Ground Ten.[.]” Dkt. No. 1 at 35; see also Dkt. No. 21
at 65-66. 	The “cumulative-error analysis applies where there are two or more actual errors. 	It
does not apply, however, to the cumulative effect of non-errors.” Cuesta-Rodriguez v. Carpenter,
916 F.3d 885, 915 (10th Cir. 2019). As explained thoroughly throughout this Opinion, Magness
has failed to establish a single constitutional error, let alone two or more. 	Further, the OCCA
reviewed this claim on the merits and rejected it. Dkt. No. 9-11 at 4-6. Magness cannot establish
the result of his direct appeal would have been different had the OCCA reviewed the claim on
direct appeal instead of during his post-conviction proceedings. 	Therefore, Magness has not
established the prejudice prong of Strickland.
In all, Magness failed to establish, let alone even argue, the OCCA unreasonably applied
Strickland or made an unreasonable determination of the facts. See Dkt. No. 1 at 35-37. Therefore,
habeas relief as to this sub-claim is denied.
VIII. 	Ground Nine: Post-Conviction Proceedings
Magness also alleges his “rights to due process, equal protection and fair trial were denied
through the State’s failure to follow Oklahoma statute and established procedure.” Dkt. No. 1 at
37-38. Specifically, Magness alleges:
The State of Oklahoma has a clear and well-defined process for Post-Conviction
Relief codified in both statute and case law. 	The District Court (which was the
same as the Trial Court) failed to follow this process by: 	1) refusing to recuse
themselves from a proceeding which directly called into question their own actions;
2) relying on personal knowledge of the original trial rather than the evidence and
testimony entered into the record of the post-conviction proceeding; 3) taking a
6:22-cv-00376-JFH-DES Document 28 Filed in ED/OK on 10/09/26 Page 61 of 73

62
directly adversarial roll [sic.] by making arguments for the State (the District
Attorney entered no Response); 4) failing to conduct Logan tests on the issues
raised as evidence of ineffective assistance of appellate counsel; and 5) failing to
conduct evidentiary hearings on issues of material fact.
These issues were all raised in the subsequent appeal to the Oklahoma Court of
Criminal Appeals (OCCA); however, the OCCA failed to remand and affirmed the
District Court’s decision despite the failings listed above. By not following state
statu[t]e and the Logan procedure, both the District Court and the OCCA denied
Petitioner his rights.
Dkt. No. 1 at 38; see also Dkt. No. 21 at 66-71.
Respondent argues this claim “concerns the manner in which the state courts denied him
post-conviction relief and does not concern federal law,” and is not a cognizable habeas claim.
Dkt. No. 9 at 102-103.
Respondent is correct, “[h]abeas relief is available for a violation of the federal
constitution, but not for a violation of state law.” Graham v. White, 101 F. 4th 1199, 1204 (10th
Cir. 2024). In Graham, the Tenth Circuit explained:
The State points out that Ms. Graham alleges a misapplication of Oklahoma law. If
Ms. Graham had stopped there, her claim wouldn’t support habeas relief. But Ms.
Graham also alleges a denial of due process from the misapplication of state law.
These allegations involve a violation of not only state law but also the federal
constitution.
Granted, 	the 	theories 	involving 	state 	law 	and 	the 	federal 	constitution 	are
intertwined. 	But “in rare circumstances, a determination of state law can be so
arbitrary or capricious as to constitute an independent due process violation.”
Cummings v. Sirmons, 506 F.3d 1211, 1237 (10th Cir. 2007) (alterations and
quotation marks omitted) (quoting Lewis v. Jeffers, 497 U.S. 764, 780 (1990)).
Ms. Graham not only labels her claim as constitutional, but also alleges that it was
arbitrary for the state court to jettison the initial order (vacating the convictions).
Though this allegation turns on an antecedent question of state law, an arbitrary
application of state law could impinge on the right to due process. See id. So the
claim isn’t confined to a violation of state law.
Id. at 1204-05.
6:22-cv-00376-JFH-DES Document 28 Filed in ED/OK on 10/09/26 Page 62 of 73

63
Here, Magness merely alleges a “misapplication of Oklahoma law” and labels his claim as
constitutional. Graham, 101 F. 4th at 1204; see also Dkt. No. 1 at 38 (alleging the district court
“failed to follow this [state] process” and the district court and OCCA did not follow “state statu[t]e
and the Logan procedure[.]”). Therefore, the Court agrees with Respondent that Magness has not
presented a cognizable habeas claim. See Sellers v. Ward, 135 F.3d 1333, 1335 (10th Cir. 1998)
(“[B]ecause the constitutional error [petitioner] raises focuses only on the State’s post-conviction
remedy and not the judgment which provides the basis for his incarceration, it states no cognizable
federal habeas claim.”); see also Lopez v. Trani, 628 F.3d 1228, 1229 (10th Cir. 2010) (“Our
precedent makes clear that the district court did not err in dismissing claims that related only
alleged errors in the post-conviction proceedings.”). Therefore, habeas relief as to Ground Nine
is denied.
IX. 	Ground Ten: Cumulative Error
For his final claim, Magness alleges his “rights to due process, equal protection, and fair
trial were denied through the cumulative effect of multiple errors, which when viewed collectively
created a clear prejudice.” Dkt. No. 1 at 39-40. During his post-conviction proceedings, the OCCA
reviewed this claim on the merits and concluded, “[a] cumulative error argument has no merit
where, as here, this Court fails to sustain any of the other errors raised by [Magness]. 	See
Zamarripa v. State, 2022 OK CR 10, ¶ 32, 514 P.3d 470, 478.” Dkt. No. 9-11 at 6.
In this Court, habeas petitioners “are entitled to ‘relief under [the] cumulative error doctrine
only when the constitutional errors committed in the state court trial so fatally infected the trial
that they violated the trial’s fundamental fairness.’” Andrew v. White, 62 F.4th 1299, 1351 (10th
Cir. 2023) (quoting Littlejohn v. Trammell, 704 F.3d 817, 868 (10th Cir. 2013)), cert. granted,
judgment vacated on other grounds 145 S. Ct. 75 (2025). To analyze a cumulative-error claim, a
6:22-cv-00376-JFH-DES Document 28 Filed in ED/OK on 10/09/26 Page 63 of 73

64
reviewing court “aggregates all errors found to be harmless and analyzes whether their cumulative
effect on the outcome of the trial is such that collectively they can no longer be determined to be
harmless.” 	Simpson v. Carpenter, 912 F.3d 542, 602 (10th Cir. 2018) (quoting United States v.
Toles, 297 F.3d 959, 972 (10th Cir. 2002)). But “[o]nly actual constitutional errors are considered
when reviewing a case for cumulative error.” Id. As detailed above and below, Magness has not
established the existence of any constitutional errors. 	Therefore, no reasonable jurist could
conclude the OCCA’s rejection of his cumulative error claim [Dkt. No. 9-11 at 1-2, 6-7] was
contrary to or an unreasonable application of clearly established federal law. See Wyatt v. Crow,
812 F. App’x 764, 770 (10th Cir. 2020). 	Nor has Magness demonstrated the OCCA’s decision
rested on an unreasonable determination of the facts. 28 U.S.C. § 2254(d)(2). Habeas relief as to
Ground Ten is denied.
X. 	Procedurally Barred Claims (Grounds Two, Three, part of Four, Six and Seven)
Magness’ remaining claims are the following:
2. 	Pre-Trial Prosecutorial Witness Tampering. 	The State purposefully deceived
Petitioner’s alibi witness with the express intent of altering said witnesses’
testimony, resulting in the witnesses’ trial testimony being fundamentally
altered 	from 	all 	previous 	statements. 	Thus, 	Petitioner 	was 	denied 	his
Constitutional rights of due process, equal protection, and a fair trial;
3. 	Prosecutorial Misconduct. 	The State tried a case full of misconducts in an
attempt to achieve a “victory” in spite of knowing the evidence did not support
their theory and well established case law;
4. 	Abuse of Judicial Discretion. The trial court repeatedly abused their judicial
discretion in favor of the State by . . . directly prejudicing the defense via facial
expression and comments, and failure to properly instruct the jury;
6. 	Cruel and Unusual Punishment/ Equal Protection. 	The State of Oklahoma
violated Petitioner’s right to protection from cruel and unusual punishment
under the United States Constitution by imposing a sentence of life without the
possibility of parole; which in modern times has been found both cruel and
unusual by multiple nations and the international community at large. Further,
6:22-cv-00376-JFH-DES Document 28 Filed in ED/OK on 10/09/26 Page 64 of 73

65
the State failed to provide equal protection to Petitioner by denying him access
to the resources available to any other citizen facing a death sentence; and
7. 	Ineffective Assistance of Trial Counsel. 	Petitioner was denied the right to
effective assistance of trial counsel due to the attorney’s deficient performance,
the trial court’s rulings, and the State’s discovery violations which led to
prejudice against Petitioner.
Dkt. No. 1 at 8-15, 17-21, 26-33. Respondent argues these Grounds are procedurally barred, and
Magness cannot overcome the procedural default. Dkt. No. 9 at 107-117.
The Court agrees Magness raised these Grounds for the first time in his post-conviction
proceedings.20 Compare Dkt. No. 9-1 with Dkt. No. 9-4 at 13-19, 26-30; Dkt. No. 9-8 at 5-11, 17-
21 and Dkt. No. 9-10 at 3-6. The OCCA applied the procedural rule of waiver and denied Magness’
claims. Dkt. No. 9-11 at 3. Specifically, on appeal, the OCCA concluded,
In Propositions Two[21]
, Three[22]
, Five[23] and Six[24] we do not reach the merits of
Petitioner’s claims because the issues could have been raised in a direct appeal and
are therefore waived. Logan v. State, 2013 OK CR 2, ¶ 3, 293 P.3d 969, 973; Fowler
v. State, 1995 OK CR 29, ¶ 2, 896 P.2d 566, 569; Walker v. State, 1992 OK CR 10,
¶ 6, 826 P.2d 1002, 1004. All issues that could have been raised in a previous direct
appeal proceeding but were not are waived and may not be the basis of a post-
conviction application. Fowler, 1995 OK CR 29, ¶ 2, 896 P.2d at 569. The Post-
20 While Magness did not set forth a standalone “witness tampering” claim in his application for
post-conviction relief, he couched it within his claim of prosecutorial misconduct. See Dkt. No.
9-4 at 14 and Dkt. No. 9-8 at 6.
21 	Magness raised the prosecutorial misconduct claim (Ground Two) as proposition two in his
post-conviction proceedings. See Dkt. No. 9-4 at 13-19; see also Dkt. No. 9-8 at 5-11 and Dkt.
No. 9-10 at 3-6.
22 Magness raised the judicial bias claim (Ground Four) as proposition three in his post-conviction
proceedings. See Dkt. No. 9-4 at 3-4; see also Dkt. No. 9-8 at 11 and Dkt. No. 9-10 at 5.
23 	Magness raised his cruel and unusual punishment/equal protection claim (Ground Six) as
proposition five in his post-conviction proceedings. See Dkt. No. 9-4 at 5, 26-28; see also Dkt.
No. 9-8 at 17-19 and Dkt. No. 9-10 at 5-6.
24 Magness raised his ineffective assistance of trial counsel claim (Ground Seven) as proposition
six in his post-conviction proceedings. See Dkt. No. 9-4 at 5-6, 28-30; see also Dkt. No. 9-8 at
19-21 and Dkt. No. 9-10 at 6.
6:22-cv-00376-JFH-DES Document 28 Filed in ED/OK on 10/09/26 Page 65 of 73

66
Conviction Procedure Act is not a substitute for a direct appeal, nor is it intended
as a means of providing a petitioner with a second direct appeal. Id. Petitioner has
not established sufficient reason for not asserting or inadequately raising his current
grounds for relief in direct appeal proceedings. 	Id. 	“Simply envisioning a new
method of presenting an argument previously raised does not avoid the procedural
bar.” McCarty v. State, 1999 OK CR 24, ¶ 9, 989 P.2d 990, 995.
Dkt. No. 9-11 at 3. Therefore, to avail himself to federal habeas review of these claims, Magness
must demonstrate the OCCA’s decision did not rest on an independent and adequate state law
ground. See Coleman, 501 U.S. at 729.
OCCA’s application of the waiver doctrine is routinely deemed independent and adequate.
See Smith, 550 F.3d at 1274 (noting the Tenth Circuit “has found Oklahoma’s bar of claims not
raised on direct appeal to be independent and adequate”). It is clear Oklahoma’s waiver rule, as
codified in Okla. Stat. tit. 22, § 1086, is based solely on state law, and Magness provides no
argument suggesting it is not regularly followed and evenhandedly applied. See Cole v. Trammell,
755 F.3d at 1142, 1159 (2014); see also Dkt. No. 1.
A. Cause and Prejudice
Because each of these claims were defaulted in state court on an independent and adequate
state procedural ground, the Court’s review of these claims is foreclosed unless Magness can find
a way around the procedural bar. There are two ways to do this: Magness can “demonstrate cause
and prejudice or a fundamental miscarriage of justice.” 	McCracken, 268 F.3d at 976 (internal
quotations omitted).
To establish the cause prong of the cause and prejudice exception, a petitioner must “show
that some objective factor external to the defense impeded . . . efforts to comply with the state
procedural rules.” Murray v. Carrier, 477 U.S. 478, 488 (1986). Examples of such external factors
include the discovery of new evidence, a change in the law, and interference by state officials. Id.
6:22-cv-00376-JFH-DES Document 28 Filed in ED/OK on 10/09/26 Page 66 of 73

67
As for prejudice, Magness must show “‘actual prejudice’ resulting from the errors of which he
complains.” United States v. Frady, 456 U.S. 152, 168 (1982).
1. 	Ground Four
The Court first addresses the remaining portion of Magness’ judicial bias claim, Ground
Four.
As noted above, Magness now clarifies he challenges the admission of arson and infidelity
evidence as violating his due process rights. See Dkt. No. 21 at 45-47. However, a due process
claim premised upon the admission of this evidence was not presented until Magness’ application
for post-conviction relief. See Dkt. No. 9-4 at 19-23, Dkt. No. 9-8 at 11-14. Similarly, Magness
alleges, “the Trial Court repeatedly abused their judicial discretion in favor of the State by . . .
directly prejudicing the defense via facial expression and comments, and failure to properly
instruct the jury.” 	Dkt. No. 1 at 17. 	Magness outlines fourteen (14) instances he alleges
demonstrate a pattern of bias. Id. at 19-20. Id. at 18. Magness also challenges the trial court’s
fitness and failure to recuse from the post-conviction proceedings. Id. at 20-21. However, like the
arson and infidelity evidence, Magness raised this claim for the first time in his application for
post-conviction relief [Dkt. No. 9-4 at 3-4, Dkt. No. 9-8 at 11 and Dkt. No. 9-10 at 4-7], and the
OCCA denied relief due to a procedural bar. Dkt. No. 9-11 at 3. Therefore, to have these portions
of Ground Four reviewed by this Court, Magness must overcome the applicable procedural bars.
Fatally, Magness does not adequately address either exception to the procedural bar. See
Dkt. No. 1 at 21-22. He contends he raised judicial bias on direct appeal. Id. at 21. However, on
direct appeal, he raised the claim that “the trial court abused its discretion by allowing the State to
present irrelevant and unfairly prejudicial ‘bad acts’ character evidence of arson and infidelity at
trial.” See Dkt. No. 9-1 at 3, 46-54. It is clear on direct appeal Magness did not raise a due process
6:22-cv-00376-JFH-DES Document 28 Filed in ED/OK on 10/09/26 Page 67 of 73

68
claim. See id. He further alleges that he raised the issue in post-conviction, which is true. See
Dkt. No. 1 at 22, Dkt. No. 9-4 at 3-4, Dkt. No. 9-8 at 11 and Dkt. No. 9-10 at 4-7. But he fails to
adequately address cause or prejudice to excuse his failure to raise the remaining portion of Ground
Four on direct appeal. See Dkt. No. 1 at 21-23; see also Dkt. No. 21 at 51.25 Therefore, Magness
failed to overcome the applicable procedural bar, and habeas relief is denied concerning the
remaining portion of Ground Four.
2. 	Grounds Six and Seven
The Court next turns to Grounds Six and Seven. In his Petition, Magness contends these
Grounds were not raised on direct appeal because of “ineffectiveness of appellate counsel[.]” Dkt.
No. 1 at 29 and 34. 	In certain circumstances, counsel’s ineffectiveness can constitute “cause”
sufficient to excuse a state prisoner’s procedural default. Carrier, 477 U.S. at 488-89. However,
“a claim of ineffective assistance [must] be presented to the state courts as an independent claim
before it may be used to establish cause for a procedural default.” 	Id. at 489. 	An ineffective
assistance of counsel claim asserted as cause for the procedural default of another claim can itself
be procedurally defaulted. 	Edwards v. Carpenter, 529 U.S. 446, 452-53 (2000). 	Unless a
petitioner can satisfy the “cause and prejudice” standard for the procedurally defaulted ineffective
25 	Magness argues in his Reply that “with the additional evidence of the post-conviction
proceedings (which were not available prior to this Habeas Application) it becomes yet another
‘dead bang winner’ which clearly calls for relief[.]” 	Dkt. No. 21 at 51. 	Thus, the Court
understands Magness’ position to be that the issue of judicial bias, as evidenced by the state district
court’s failure to recuse, was unknown until the district court level post-conviction proceedings
and this establishes cause excusing the procedural default. See id. at 68. Even if the Court accepts
this premise as cause, Magness cannot demonstrate prejudice with respect to the district court’s
failure to recuse from Magness’ post-conviction proceedings. The district court, and the OCCA,
denied the judicial bias claim on procedural grounds because it “could have been raised on appeal
and [was] not.” Dkt. No. 9-9 at 3; see also Dkt. No. 9-11 at 3. Magness cannot establish a different
state district judge would not have likewise denied the claim on the same procedural ground.
6:22-cv-00376-JFH-DES Document 28 Filed in ED/OK on 10/09/26 Page 68 of 73

69
assistance of counsel claim, that claim cannot serve as cause for another procedurally defaulted
claim. Id.; see also Mondier v. Franklin, 04-CV-0629-CVE-FHM, 2008 WL 554995, at *11 (N.D.
Okla. Feb. 27, 2008) (unpublished). The Court, thus, evaluates Magness’ ineffective assistance of
appellate counsel claim as “cause” for Grounds Six and Seven.
As noted, the ineffective assistance of appellate counsel claim must “be presented to the
state courts as an independent claim before it may be used to establish cause for procedural
default.” 	Carrier, 529 U.S. at 452. 	Magness did present an ineffective assistance of appellate
counsel claim in his post-conviction appeal to the OCCA. See Dkt. No. 9-10 at 6; see also Dkt.
No. 9-8 at 22. In his application for post-conviction relief, Magness presented the following bases
of ineffectiveness: 	1) failed to raise compounding inference issue; 2) failed to raise witness
tampering; 3) failed to raise prosecutorial misconduct; 4) failed to raise trial court’s abuse of
discretion; and 5) failed to raise cumulative error. Dkt. No. 9-8 at 22; see also Dkt. No. 9-10 at 6.
Fatally, Magness never argued his appellate counsel was ineffective for failing to raise the cruel
and unusual punishment/equal protection claim or the ineffective assistance of trial counsel
claim.26 See id.
Accordingly, Magness’ “cause” for Grounds Six and Seven is unexhausted. 	If Magness
returned to state court to exhaust these claims, they would be procedurally barred in a second post-
conviction application. 	See Smith v. State, 878 P.2d 375, 377 (Okla. Crim. App. 1994) (“issues
which could have been raised on direct appeal or in the first post-conviction application, but were
not, are waived” (citing Okla. Stat. tit. 22, § 1086)); see also Medlock v. Ward, 200 F.3d 1314,
1323 (10th Cir. 2000) (“Despite the especially vigilant scrutiny we apply in examining procedural
26 	Critically, Magness alleges he “does not complain of appellate counsel’s failure to claim
ineffective assistance of trial counsel[.]” Dkt. No. 1 at 35.
6:22-cv-00376-JFH-DES Document 28 Filed in ED/OK on 10/09/26 Page 69 of 73

70
bars to ineffective assistance claims, we have held that Oklahoma’s procedural bar to claims not
raised on initial post-conviction review is independent and adequate.”). 	Therefore, as outlined,
Magness’ “cause” is procedurally barred and cannot be relied upon to overcome the OCCA’s
procedural bar as it relates to Grounds Six and Seven. Having failed to establish cause, the Court
need not evaluate prejudice, and habeas relief as to Grounds Six and Seven is denied.
3. 	Grounds Two and Three
Magness also alleges Grounds Two and Three were not raised on direct appeal because of
“ineffectiveness of appellate counsel[.]” 	Dkt. No. 1 at 10 and 15. And, as noted, Magness did
raise an ineffective assistance of counsel claim as it relates to appellate counsel’s failure to raise
witness tampering and prosecutorial misconduct in his post-conviction proceedings. Dkt. No. 9-8
at 22; see also Dkt. No. 9-10 at 6. Therefore, liberally construing Magness’ Petition, the Court
will assume without deciding Magness has established cause to overcome the procedural bar with
respect to Grounds Two and Three, and the Court will turn to the prejudice prong.
As outlined above, in the context of Magness’ ineffective assistance of appellate counsel
claim, Magness cannot establish “actual prejudice.” 	United States v. Frady, 456 U.S. 152, 168
(1982). Concerning Ground Two, witness tampering, Magness failed to establish a constitutional
claim arises by the State allegedly “tampering” with its own witness. 	See Harding, 2024 WL
1221169, at *10. Further, as outlined, the jury was permitted to evaluate Mr. and Mrs. Crouch’s
credibility and changed testimony. 	See Dkt. No. 10-3 at 140-141, 200-201, 203-204, 206-208,
215-217. The jury was informed these witnesses changed their testimony and still returned a guilty
verdict. Therefore, Magness cannot establish that if the jury been further educated on this theory,
the outcome of his trial would have changed. Accordingly, Magness cannot establish prejudice to
6:22-cv-00376-JFH-DES Document 28 Filed in ED/OK on 10/09/26 Page 70 of 73

71
overcome the procedural bar applicable to Ground Two, and habeas relief as to Ground Two is
denied.
Concerning Ground Three, prosecutorial misconduct, the Court already considered the
merits of this claim in the context of Magness’ ineffective assistance of appellate counsel claim.
See supra. When examining the entire proceedings, the strength of the evidence against Magness
and the jury’s ability to judge the evidence fairly in light of the prosecutor’s conduct, the outcome
of Magness’ trial would not have changed. 	The jury was presented with evidence sufficient to
support the guilty verdict, including, but not limited to: 	Magness possessed a motive, the jury
could reasonably infer his gun was used to kill Elizabeth, his theory of a robbery gone wrong is
unsupported by the presence of other valuables in the home and his statements regarding
Elizabeth’s eye place him at the scene of the crime. See Dkt. No. 9-3 at 5-10. Further, as explained
supra, many of the purported instances of prosecutorial misconduct are meritless. The prosector’s
questions and arguments did not “so infect[] the trial with unfairness as to make the resulting
conviction a denial of due process.” 	Donnelly, 416 U.S. at 643. Accordingly, Magness cannot
establish prejudice to overcome the procedural bar applicable to Ground Three, and habeas relief
as to Ground Three is denied.
B. Fundamental Miscarriage of Justice
Magness’ only other means of gaining federal habeas review of his defaulted claims is the
fundamental miscarriage of justice exception. Herrera v. Collins, 506 U.S. 390, 403-404 (1993);
Sawyer v. Whitley, 505 U.S. 333, 339-341 (1992); see also Schlup v. Delo, 513 U.S. 298 (1995).
To “demonstrate that a fundamental miscarriage of justice would occur if his claim is procedurally
barred[,] . . . a criminal defendant must make a colorable showing of factual innocence.” Beavers
v. Saffle, 216 F.3d at 918, 923 (10th Cir. 2000). Successful actual innocence claims are rare due to
6:22-cv-00376-JFH-DES Document 28 Filed in ED/OK on 10/09/26 Page 71 of 73

72
the demanding evidentiary requirements for such claims. 	McQuiggin v. Perkins, 569 U.S. 383,
386 and 401 (2013); House v. Bell, 547 U.S. 518, 538 (2006). “[P]risoners asserting innocence as
a gateway to defaulted claims must establish that, in light of new evidence, ‘it is more likely than
not that no reasonable juror would have found petitioner guilty beyond a reasonable doubt.’”
House, 547 U.S. at 536-37 (quoting Schlup, 513 U.S. at 327). “To be credible, a claim of actual
innocence requires a petitioner to present ‘new reliable evidence—whether it be exculpatory
scientific evidence, trustworthy eyewitness accounts, or critical physical evidence—that was not
presented at trial.’” Fontenot v. Crow, 4 F.4th 982, 1031 (10th Cir. 982) (quoting Schlup, 513 U.S.
at 324).
Within Ground Ten (cumulative error), Magness alleges, “Plaintiff’s claim is one of actual
innocence.” Dkt. No. 1 at 40. “I loved my wife (still do) and had absolutely nothing to do with
her murder. I have been unjustly accused for this crime, prosecuted by a close-knit, small town
court system and will spend the rest of my life in prison while the real murdered walks free.” Id.
“[A]ll I really need is a fair trial to prove my innocence.” Id.
Beyond this self-serving statement and argument concerning the miscarriage of justice in
his Reply [see Dkt. No. 21 at 10, 15, 16, 40, 51, 59], Magness presents no evidence to support his
claim. 	His allegations and arguments alone are insufficient to meet the demanding evidentiary
requirements of an actual innocence claim. 	Fontenot, 4 F.4th at 1031. 	Thus, the fundamental
miscarriage of justice exception is inapplicable and cannot be used to access habeas review of
Grounds Two, Three, part of Four, Six or Seven.
CONCLUSION
The Court finds and concludes Magness cannot obtain federal habeas relief under 28
U.S.C. § 2254. As to Magness’ claims that are not procedurally defaulted, Grounds One, part of
Four, Five, Eight, Nine and Ten, Magness has not made the necessary showings to obtain federal
6:22-cv-00376-JFH-DES Document 28 Filed in ED/OK on 10/09/26 Page 72 of 73

73
habeas relief under 28 U.S.C. § 2254. The Court, therefore, denies the Petition as to Grounds One,
part of Four, Five, Eight, Nine and Ten.
Magness’ remaining claims, Grounds Two, Three, part of Four, Six and Seven, are
procedurally defaulted, and Magness has not demonstrated cause and prejudice sufficient to allow
this Court to consider his claims. Nor can Magness avail himself of the fundamental miscarriage
of justice exception. Accordingly, the Court denies Grounds Two, Three, part of Four, Six and
Seven as procedurally barred.
The Court further concludes no certificate of appealability shall issue because reasonable
jurists would not debate the correctness of this Court’s assessment of Magness’ constitutional
claims or its determination that some claims, in whole or in part, are procedurally barred. 	28
U.S.C. § 2253(c); Slack v. McDaniel, 529 U.S. 473, 484 (2000).
IT IS THEREFORE ORDERED that the Petition [Dkt. No. 1] is DENIED; a certificate of
appealability is DENIED; and a separate judgment shall be entered in this matter.
IT IS FURTHER ORDERED that the Clerk of Court shall note on the record the
substitution of Michael Miller, Warden, in place of Luke Pettigrew as party Respondent.
Dated this 9th day of October, 2026.
____________________________________
JOHN F. HEIL, III
CHIEF UNITED STATES DISTRICT JUDGE
6:22-cv-00376-JFH-DES Document 28 Filed in ED/OK on 10/09/26 Page 73 of 73