De Luna v. Harpe

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
LUKE E. DE LUNA, 	)
)
Petitioner, 	)
)
v. 	) 	Case No. CIV-23-890-G
)
STEVEN HARPE, 	)
)
Respondent. 	)
REPORT AND RECOMMENDATION
Petitioner Luke E. De Luna (“Petitioner”) seeks a writ of habeas corpus under 28
U.S.C. § 2254. (Doc. 18) (“Amended Petition”). United States District Judge Charles B.
Goodwin referred the matter to the undersigned Magistrate Judge for initial proceedings
consistent with 28 U.S.C. § 636(b)(1)(B), (C). (Docs. 3, 16). After Petitioner filed his first
habeas petition, Respondent moved to dismiss for failure to exhaust state court remedies.
(Doc. 9). The undersigned recommended the Court dismiss Petitioner’s habeas petition as
a mixed petition but allow Petitioner to file an amended petition. 	(Doc. 14). 	Within the
time allowed for objection to the undersigned’s recommendation, Petitioner filed a motion
to dismiss only his unexhausted claims. 	(Doc. 15). 	The Court granted Respondent’s
motion to dismiss and Petitioner’s motion, construed as a motion to supplement. 	(Doc.
16). Now before the Court is Petitioner’s Amended Petition. (Doc. 18). Respondent filed
a response, (Doc. 21), along with portions of the record, including pre-trial hearing
transcript (Hearing Tr.), jury trial transcript (Tr. Vols. II-III), and the state trial court record
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(R.). (Doc. 21).1 For the reasons set forth below, the undersigned recommends Petitioner’s
application for habeas corpus relief be DENIED.
I. 	Background
Petitioner was charged with and later convicted of child abuse in violation of O KLA .
STAT . tit. 21, § 843.5(A) after his infant son was taken to the hospital with injuries
suggesting abuse. 	Kiowa County District Court, Case No. CF-2019-08;2 (see also Doc.
21, at Ex. 1). 	The infant, L.D., was born to Petitioner and Tayia De Luna in December
2017. (Tr. Vol. II, at 109-10). Soon thereafter, Ms. De Luna got a job at a nursing home,
where she worked between forty and sixty hours a week, occasionally overnight. 	(Id. at
165-66). 	Petitioner did not work outside the home and was L.D.’s sole caregiver while
Ms. De Luna was working her shifts. 	(Id. at 48, 166). 	Petitioner spent most of his time
with L.D. in the family’s room in a shared home. (Id. at 87).
On January 14, 2018, L.D. took the first of several trips to the hospital after he
started projectile vomiting. (Id. at 166). The hospital informed his parents that his jaundice
level was elevated and he likely had a virus. (Id. at 168). On January 26, Petitioner and
1 Citations to the parties’ filings and attached exhibits will refer to this Court’s CM/ECF
pagination. Citations to the state court record will refer to the original pagination. Except
for capitalization, all quotations are verbatim unless otherwise noted.
2 	https://oscn.net/dockets/GetCaseInformation.aspx?db=kiowa&number=CF-2019-
00008&cmid=3625757 (Docket Sheet) (last visited April 29, 2025). The undersigned takes
judicial notice of the docket sheets and related documents in Petitioner’s state criminal
proceedings. See United States v. Pursley, 577 F.3d 1204, 1214 n.6 (10th Cir. 2009)
(exercising discretion “to take judicial notice of publicly-filed records in [this] court and
certain other courts concerning matters that bear directly upon the disposition of the case
at hand”) (citation omitted).
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Ms. De Luna were in the laundry room with one of the other adults who lived in the shared
home when they heard L.D. scream. (Id. at 170). When they ran into the other room, they
found L.D. on the floor, not in the swing where they had left him, with a friend’s young
daughter standing nearby. (Id. at 169-70, 223). Ms. De Luna did not observe any marks
or injuries, and she was told by the local hospital nurse’s hotline that L.D. did not need to
visit the hospital if he was alert and crying and eating normally. 	(Id. at 170-71). 	On
February 4, L.D. began projectile vomiting again and also had diarrhea. 	(Id. at 174-75).
Petitioner dropped L.D. off at his grandmother’s house down the street and went to pick
up Ms. De Luna from work. (Id. at 176). Soon after, his grandmother called Ms. De Luna
to tell her she was taking L.D. to the hospital because he was “lethargic” and “lifeless.”
(Id. at 116, 176). Before she could depart for the hospital, L.D. stopped breathing, and his
grandmother called an ambulance. (Id. at 116, 176). One of the paramedics who arrived
on the scene observed that L.D. was lethargic, unresponsive, and limp. (Id. at 141). At the
hospital, Petitioner and Ms. De Luna were told L.D. likely had viral meningitis. 	(Id. at
177).
L.D. was released from the hospital on February 7, and he fell ill again on February
16. (Id. at 179-80). That day, another adult in the shared home told Petitioner and Ms. De
Luna that L.D.’s head was swollen and his eye “didn’t look right.” 	(Id. at 93). 	L.D.’s
grandmother also noticed that L.D.’s eye was deviated and his head felt “super heavy.”
(Id. at 120). At the hospital, Petitioner, Ms. De Luna, and L.D.’s grandmother were told
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L.D. had a skull fracture that was causing his eye deviation and fluid accumulation around
his brain. (Id. at 123, 183).
L.D. was taken to a hospital specializing in children’s medicine. 	(See id. at 124,
184). There, doctors suspected child abuse and ordered a number of tests. (Tr. Vol. III, at
31-32). 	A body x-ray and CT scan revealed that L.D. had a fractured clavicle, fractured
ribs, a skull fracture, and fluid accumulation around the brain causing a separation of the
skull bones. 	(Id. at 32-33, 57-58). 	Lab tests showed elevated liver enzymes, raising
concerns about a liver injury. 	(Id. at 32). 	Doctors began asking Petitioner and Ms. De
Luna “a bunch of questions.” (Tr. Vol. II, at 184).
A pediatric attending doctor and child abuse specialist who examined L.D. testified
at trial that his injuries were consistent with having been shaken. 	The specialist testified
that shaking a baby can produce posterior rib fractures because when this occurs “the kid
is usually facing the perpetrator,” whose fingertips “are in the back of the kid’s back” and
“can go into the ribs and can break them;” and that a broken clavicle takes “some type of
direct trauma,” possibly “a thumb that’s being pushed down into it as [a child is] being
shaken,” consistent with having been squeezed possibly at the same time as being shaken.
(Trial Vol. III, at 34, 59). The posterior and lateral rib fractures seemed to the specialist to
have resulted from separate incidents, as the posterior fractures seemed to be healing while
the lateral fractures were “more fresh.” (Id. at 34-36). He further testified that L.D.’s MRI
revealed “fluid in the subdural space [ ] from an old bleed, which is concern for abuse,”
and “injury to the bridge between the left and right brain tissue, which is concern for []
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shaking.” (Id. at 41-42). Both were described as “very highly concerning for shaken baby,
or what [medical professionals] could call abusive head trauma.” (Id. at 42). Finally, he
testified to his conclusion that L.D. was abused “over a period of time,” including
“[m]ultiple incidents.” (Id. at 72).
Soon after L.D. was admitted to the children’s hospital, the Oklahoma Department
of Human Services (DHS) got involved in his case. (Tr. Vol. II, at 253-54). At trial, the
investigator testified that Petitioner said “he had a high frustration level specifically when
the child was crying” and that when frustrated, Petitioner would slam his own head into
the wall and throw things. (Id. at 264-65). The investigator also testified to Ms. De Luna’s
demeanor, describing her as “much more reserved” when Petitioner was in the room. (Id.
at 268). 	Ms. De Luna testified that during a private conversation in the middle of DHS
questioning, Petitioner asked if she thought he had injured L.D., and she said no, in part
because she was afraid to accuse him of hurting the child. (Id. at 193).
On February 26, L.D. was taken into DHS custody. (Id. at 187-88). Ms. De Luna
stayed with Petitioner for about a year because she was “was scared” of him. (Id. at 206-
07). At trial, the DHS investigator testified that in a different proceeding Ms. De Luna had
“describe[ed] domestic violence in her relationship with [Petitioner] to the point of being
choked out and just verbal aggression.” 	(Id. at 317). 	During the time Ms. De Luna was
with Petitioner, she became pregnant with a baby girl who was born in October 2018 and
was removed by DHS. 	(Id. at 211-12, 217). 	Ms. De Luna testified at trial that DHS
removed the baby girl “[b]ecause of the case with [Petitioner].” (Id. at 213).
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Ms. De Luna filed for divorce in March 2019, after Petitioner was charged with
Child Abuse by Injury and went to jail. (Id. at 208-09; see also R., at 1). 	Ms. De Luna
dismissed the divorce proceedings in December on her attorney’s advice because she was
pregnant with a third child. 	(Tr. Vol. II, at 214-15). 	She testified that, even though
Petitioner was not the father of this child, her attorney “kept e-mailing [her] and asking
[her] if [she] had [her] daughter [] yet and that [she] couldn’t get divorced until [she] had
her” and “that [she] could either dismiss the divorce or get another lawyer.” (Id. at 214-
16). Petitioner later attempted to reinitiate divorce proceedings. At the time of Petitioner’s
criminal trial, she had “sent in the papers and got the papers to be signed” but had not “been
able to pay the filing fee.” (Id. at 217).
Ms. De Luna voluntarily terminated her parental rights as to her and Petitioner’s
children on the advice of DHS officials. (Id. at 217-18). She testified that “they said that
if [she] had lost at [the termination proceedings] that [she] could lose the chance of getting
to know [her children] and that they[, DHS,] could take” her third child, as well. 	(Id. at
217). 	She testified that no one threatened her to terminate her parental rights, only
“suggested that it was what was best.” (Id. at 218).
On cross-examination, Petitioner’s counsel elicited testimony suggesting that Ms.
De Luna had only initiated divorce proceedings on DHS officials’ advice as a way to
improve her chances of retaining custody of her youngest child. 	(Id. at 242-44). 	And
counsel pursued a similar angle during cross-examination of the DHS investigator. (Id. at
305-06). Counsel made his strategy clear during his opening statement, when he explained:
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You’ll hear testimony from [Ms. De Luna] that after [L.D.] was taken away
she got involved with another man and she eventually had another little baby,
a baby girl. You’ll hear her testimony that she was pressured by DHS to file
for divorce against [Petitioner]. 	That she and [Petitioner] were both
pressured by DHS to relinquish off all of their parental rights for fear if they
didn’t DHS would automatically seek a court order to take her newborn baby
girl. They never did divorce. They’re still married to this day.
(Id. at 42).
Petitioner was convicted by a jury of one count of child abuse and was sentenced to
thirty years of imprisonment. (Doc. 21, at Ex. 2). He appealed to the Oklahoma Court of
Criminal Appeals (OCCA), which affirmed his conviction. 	(Id. at Exs. 1, 3). 	He now
applies for habeas corpus relief.
II. 	Petitioner’s Claims
Petitioner raises two grounds for relief. In Ground One, he claims the trial court
denied him a fundamentally fair trial by granting the state’s motion to admit evidence of
alleged domestic violence. 	(Doc. 18, at 13-14). 	In Ground Two, Petitioner claims he
received ineffective assistance of counsel at his trial. (Id. at 14-18).
III. 	Standard of Review
“The standards set forth in the Antiterrorism and Effective Death Penalty Act of
1996 (‘AEDPA’) guide [this Court’s] review of 28 U.S.C. § 2254 applications.” Wellmon
v. Colo. Dep’t of Corr., 952 F.3d 1242, 1245 (10th Cir. 2020). “When a federal claim has
been presented to a state court and the state court has denied relief, it may be presumed that
the state court adjudicated the claim on the merits in the absence of any indication or state-
law procedural principles to the contrary.” Harrington v. Richter, 562 U.S. 86, 99 (2011).
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A petitioner is entitled to federal habeas relief only if that merits-based adjudication “was
contrary to, or involved an unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States” or “resulted in a decision that was
based on an unreasonable determination of the facts in light of the evidence presented in
the State court proceeding.” 28 U.S.C. § 2254(d). “It is the petitioner’s burden to make
this showing and it is a burden intentionally designed to be difficult to meet.” 	Owens v.
Trammell, 792 F.3d 1234, 1242 (10th Cir. 2015) (internal quotation marks omitted). This
standard “reflects the view that habeas corpus is a guard against extreme malfunctions in
the state criminal justice systems, not a substitute for ordinary error correction through
appeal.” Harrington, 562 U.S. at 102-03 (internal quotation marks omitted).
This Court “first determine[s] whether the petitioner’s claim is based on clearly
established federal law.” Hanson v. Sherrod, 797 F.3d 810, 824 (10th Cir. 2015). “Only
Supreme Court law announced by the time of the state-court decision on the merits
qualifies as clearly established law.” 	Wellmon, 952 F.3d at 1245. 	If clearly established
federal law exists, this Court then considers whether the state court decision was contrary
to or an unreasonable application of that clearly established federal law. See Owens, 792
F.3d at 1242. 	A state court’s decision is contrary to clearly established federal law if it
“comes to a conclusion opposite to that reached by the Supreme Court on a question of law
or decides a case differently than the Court has . . . on materially indistinguishable facts.”
Wellmon, 952 F.3d at 1245. 	Notably, “[i]t is not enough that the state court decided an
issue contrary to a lower federal court’s conception of how the rule should be applied; the
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state court decision must be diametrically different and mutually opposed to the Supreme
Court decision itself.” Owens, 792 F.3d at 1242 (internal quotation marks omitted).
“[T]he state court’s decision is an unreasonable application of Supreme Court Law”
if it “identifies the correct governing legal principle . . . but unreasonably applies that
principle to the facts of the prisoner’s case.” Wellmon, 952 F.3d at 1245 (internal quotation
marks omitted). 	On this point, “the relevant inquiry is not whether the state court’s
application of federal law was incorrect, but whether it was objectively unreasonable.”
Owens, 792 F.3d at 1242 (internal quotation marks omitted). 	So, to qualify for habeas
relief on this prong, the petitioner must show “there was no reasonable basis for the state
court’s determination.” 	Id. at 1243 (internal quotation marks omitted). “In other words,
so long as fairminded jurists could disagree on the correctness of the state court’s decision,
habeas relief is unavailable.” Id. (internal quotation marks omitted); see also Harrington,
562 U.S. at 103 (“As a condition for obtaining [federal habeas relief], a state prisoner 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.”).
This Court “must accept a state-court [factual] finding unless it was based on ‘an
unreasonable determination of the facts in light of the evidence presented in the State court
proceeding.’” Davis v. Ayala, 576 U.S. 257, 271 (2015) (quoting 28 U.S.C. § 2254(d)(2)).
This Court presumes the factual determination to be correct; a petitioner can only rebut this
presumption with clear and convincing evidence. See id.; see also 28 U.S.C. § 2254(e)(1).
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IV. 	Analysis
A. 	Ground One: Petitioner Is Not Entitled to Relief on His Due Process
Claim.
Petitioner claims he was “denied the right to a fundamentally fair trial by the
admission [of] unduly prejudicial evidence.” (Doc. 18, at 13). As explained fully below,
the undersigned recommends the Court deny habeas relief on this ground because he did
not exhaust his claim in state court and it would be procedurally barred if he raised it now
after being granted leave to exhaust. 	Even if not procedurally barred and exhausted,
Petitioner’s claim nevertheless fails on the merits.
1. 	Relevant Procedural History
The State filed a pre-trial motion to admit evidence of Petitioner’s alleged domestic
violence, to which Ms. De Luna had testified in a separate proceeding: specifically,
evidence that Petitioner was “physically and mentally abusive to his wife . . . with the result
being that his wife [ ] did not report said abuse until [Petitioner] was jailed and she was no
longer at risk of physical injury” and that she, out of fear, did not “tell[] law enforcement
or medical professionals about [Petitioner’s] violent conduct.” 	(R., at 92-93). 	The State
proposed to introduce the domestic violence under Burks v. State, 594 P.2d 771 (Okla.
Crim. App. 1979), as other-act evidence to prove identity, opportunity, and lack of accident
or mistake, as permitted by Okla. Stat. tit. 12, § 2404(B); the State also sought to introduce
the domestic violence evidence as res gestae of the alleged child abuse. 	(Id.) 	After an
evidentiary hearing, the state district court allowed the evidence. (First Burks Hearing Tr.,
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at 18-30). The evidence was introduced at trial via the testimony of Ms. De Luna and the
DHS investigator. (Doc. 21, at Ex. 1, at 4-5).
In his direct appeal to the OCCA, Petitioner claimed the state district court erred in
allowing the domestic violence evidence, arguing that the evidence failed to satisfy the
requirements for either res gestae or admissible other acts evidence set forth in state statute
and case law. (Id. at Ex. 3, at 12-15). The OCCA rejected Petitioner’s argument and found
no state-law evidentiary error. (Id. at Ex. 1, at 2-7).
2. 	Petitioner Did Not Exhaust Ground One in State Court, and It
Would Be Procedurally Barred If He Raised It Now.
a. 	Habeas Petitioners Must First Exhaust Available State
Remedies.
“[A] state prisoner must exhaust available state remedies before presenting his claim
to a federal habeas court.” Davila v. Davis, 582 U.S. 521, 527 (2017). “The exhaustion
requirement is satisfied if the federal issue has been properly presented to the highest state
court, either by direct review of the conviction or in a postconviction attack.” Dever v. Kan.
State Penitentiary, 36 F.3d 1531, 1534 (10th Cir. 1994). “Exhaustion requires that the
claim be ‘fairly presented’ to the state court, which ‘means that the petitioner has raised
the ‘substance’ of the federal claim in state court.’” Fairchild v. Workman, 579 F.3d 1134,
1151 (10th Cir. 2009) (quoting Bland v. Sirmons, 459 F.3d 999, 1011 (10th Cir. 2006));
see also 28 U.S.C. § 2254(b)(1)(A). This means “a federal habeas petitioner [must] provide
the state courts with a ‘fair opportunity’ to apply controlling legal principles to the facts
bearing upon his constitutional claim.” Anderson v. Harless, 459 U.S. 4, 6 (1982); see also
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Williams v. Trammell, 782 F.3d 1184, 1210 (10th Cir. 2015) (“‘Fair presentation’ . . .
requires that the petitioner raise in state court the ‘substance’ of his federal claims. 	This
includes not only the constitutional guarantee at issue, but also the underlying facts that
entitle a petitioner to relief.”) (internal citation omitted). So “the crucial inquiry” is whether
the petitioner has put the state courts on notice of his federal claim by presenting them with
its “substance.” Prendergast v. Clements, 699 F.3d 1182, 1184 (10th Cir. 2012). Although
“[a] petitioner need not invoke ‘talismanic language’ or cite ‘book and verse on the federal
constitution,’” id. (quoting Nichols v. Sullivan, 867 F.2d 1250, 1252 (10th Cir. 1989)), “it
is not enough that all the facts necessary to support the federal claim were before the state
courts or that a somewhat similar state-law claim was made.” 	Anderson, 459 U.S. at 6,
103 S.Ct. 276 (internal citation omitted).
Petitioner did not provide the OCCA a fair opportunity to review his current due
process claim that “he was denied the right to a fundamentally fair trial” because “the
alleged 	evidence 	failed 	to 	meet 	both 	the 	Burks 	requirements 	and 	the 	res 	gestae
requirements.” 	(Doc. 18, at 13). 	Rather, in his direct appeal to the OCCA, Petitioner
presented the domestic violence evidence as a state-law evidentiary error, mentioning his
federal due process rights only twice. 	(Doc. 21, at Ex. 3, at 11-15). 	Specifically, in the
standard of review section, Petitioner stated only that “[t]he defendant’s constitutional
rights include due process of law and fair trial before an impartial jury,” citing the Fifth,
Sixth, and Fourteenth Amendments along with provisions of the Oklahoma constitution.
(Id. at Ex. 3, at 11). 	And, in conclusion, Petitioner stated only that “[t]he evidence of
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unrelated bad acts resulted in a miscarriage of justice and denied [Petitioner] a right to a
fair trial before an impartial jury” and that “[t]he passions of the jury were inflamed not for
the purpose of proving the crime charged, but to attempt to sway the jury to the fact that
[Petitioner] should be punished because of past behavior.” (Id. at 14). But to have properly
exhausted his due process argument, Petitioner needed to do more than append to his state
evidentiary argument a cursory mention of fundamental fairness. 	See Hill v. Farris, No.
CIV-21-335-C, 2022 WL 16954832, at *11 (W.D. Okla. Oct. 7, 2022) (finding that
“Petitioner did not raise the substance of his federal claims . . . to the OCCA in a manner
sufficient to 	put the 	court[ ] on notice of 	the federal constitutional claim” 	when
“Petitioner’s argument to the OCCA did not reference federal law and explicitly sought a
new trial under state law.”), adopted, 2022 WL 16951674 (W.D. Okla. Nov. 15, 2022).
Before the OCCA, Petitioner argued that “the other crimes evidence at trial . . .
failed to meet either [sic] both the Burks requirements and the res gestae requirements.”
(Doc. 21, at Ex. 3, at 13). 	This evidentiary argument is insufficient to exhaust his due
process claim because “errors of state law do not automatically become violations of due
process.” 	Rivera v. Illinois, 556 U.S. 148, 160 (2009). 	Such evidentiary questions “are
cognizable on habeas only if the alleged error was ‘so grossly prejudicial [that it] fatally
infected the trial and denied the fundamental fairness that is the essence of due process.’”
Revilla v. Gibson, 283 F.3d 1203, 1212 (10th Cir. 2002) (alteration in original) (quoting
Fox v. Ward, 200 F.3d 1286, 1296 (10th Cir. 2000)). And Petitioner’s argument before the
OCCA lacked any reference to federal case law or express explanation about how this
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alleged evidentiary error “fatally infected the trial.” Revilla, 283 F.3d at 1212; see also
Cole v. Zavaras, 349 F. App’x 328, 331 (10th Cir. 2009) (finding petitioner failed to
exhaust his federal claim: “In some instances, [petitioner] states in a conclusory fashion
that the alleged error violated his federal constitutional rights, but he cites no federal case
law to support those claims and does little to connect the claim with the rights he alleged
were violated.”).
b. 	Unexhausted 	Claims 	That 	the 	OCCA 	Would 	Be
Procedurally Barred From Considering Are Subject to an
Anticipatory Procedural Bar.
If a claim is unexhausted, a federal court generally dismisses it without prejudice “so
that the petitioner can pursue available state-court remedies.” Grant v. Royal, 886 F.3d
874, 892 (10th Cir. 2018) (internal quotation marks omitted). But “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.” Id. (internal quotation marks omitted). “[I]n appropriate circumstances the court
can apply an ‘anticipatory procedural bar’ to functionally transform unexhausted claims
into exhausted ones, thus obviating the need to dismiss a mixed petition.” Fontenot v.
Crow, 4 F.4th 982, 1019 (10th Cir. 2021), cert. denied, 142 S. Ct. 2777 (2022).
These are the circumstances here. Petitioner could have raised his due process claim
on direct appeal but, as explained above, he did not. Oklahoma law requires that any claims
for post-conviction relief be raised first on direct appeal, or they are deemed waived. Mann
v. State, 1993 OK CR 32, ¶5, 856 P.2d 992, 992; O KLA . STAT . tit. 22, § 1086. 	Thus, if
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Petitioner would now attempt to raise his due process claim on post-conviction relief, the
state court would find it to be procedurally barred. 	The Tenth Circuit has held that the
“procedural rule barring post-conviction relief for claims petitioner could have raised on
direct appeal constitutes an independent and adequate ground . . . .” 	Sherrill v. Hargett,
184 F.3d 1172, 1175 (10th Cir. 1999). Accordingly, the undersigned finds it appropriate to
apply an anticipatory procedural bar in this Court.
c. 	Petitioner Does Not Demonstrate Cause and Prejudice or a
Fundamental 	Miscarriage 	of 	Justice 	Sufficient 	to
Overcome the Procedural Bar.
A petitioner may overcome procedural default 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.” Coleman v. Thompson, 501 U.S. 722, 750 (1991), holding modified by Martinez
v. Ryan, 566 U.S. 1 (2012). 	Petitioner has not alleged — and a review of his pleadings
reveals he has not shown — cause for his failure to present his unexhausted due process
claim to the state court. Because Petitioner has not shown cause for his procedural default,
the undersigned need not address whether he suffered actual prejudice. 	Simpson v.
Carpenter, 912 F.3d 542, 571 (10th Cir. 2018) (A petitioner “must establish both cause
and prejudice to overcome the state procedural bar.”). Likewise, Petitioner does not assert
a fundamental miscarriage of justice, and a review of his pleadings reveals he does not
present any new evidence of his innocence as is required to prove a miscarriage of justice.
House v. Bell, 547 U.S. 518, 536-37 (2006) (A petitioner “asserting innocence as a gateway
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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.’”
(quoting Schlup v. Delo, 513 U.S. 298, 327 (1995))). 	Petitioner cannot overcome the
anticipatory procedural bar, so the Court should deny habeas relief on Ground One.
3. 	Alternatively, Petitioner’s Due Process Claim Should Be Denied
on the Merits.
Even if Petitioner’s free-floating references to due process were sufficient to exhaust
his claim, the undersigned would recommend denying it on the merits. “When a state court
admits evidence that is ‘so unduly prejudicial that it renders the trial fundamentally unfair,
the Due Process Clause of the Fourteenth Amendment provides a mechanism for relief.’”
Ochoa v. Workman, 669 F.3d 1130, 1144 (10th Cir. 2012) (quoting Payne v. Tennessee,
501 U.S. 808, 825 (1991)). So the relevant inquiry is “whether, considered in light of the
entire record, [the contested evidence’s] admission resulted in a fundamentally unfair trial.”
Knighton v. Mullin, 293 F.3d 1165, 1171 (10th Cir. 2002), abrogated on other grounds by
Johnson v. Williams, 568 U.S. 289 (2013). “[B]ecause a fundamental-fairness analysis is
not subject to clearly definable legal elements . . . [the] federal court must tread gingerly
and exercise considerable self-restraint.” Duckett v. Mullin, 306 F.3d 982, 999 (10th Cir.
2002) (internal quotation marks omitted).
The OCCA reviewed Petitioner’s evidentiary claim for plain error. (Doc. 21, at Ex.
1, at 4-5). 	“Oklahoma’s plain-error test is rooted in due process.” Thornburg v. Mullin,
422 F.3d 1113, 1124 (10th Cir. 2005). There is “no practical distinction between the [the
OCCA’s] formulation[ ] of plain error . . . and the federal-due process test.” Id. Moreover,
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the OCCA’s ruling on Petitioner’s evidentiary claim is sufficient to trigger AEDPA
deference even without any express due process analysis. See Harrington, 562 U.S. at 99
(“When a federal claim has been presented to a state court and the state court has denied
relief, it may be presumed that the state court adjudicated the claim on the merits in the
absence of any indication or state-law procedural principles to the contrary.”). 	So, the
Court “must defer to [the OCCA’s] ruling unless it unreasonably applied that test.”
Thornburg, 422 F.3d at 1124 (internal quotations and alterations omitted).
The OCCA found that the domestic violence introduced via testimony by Ms. De
Luna and the DHS investigator was properly admitted as res gestae of the child abuse
charge:
The State’s theory of the case was that Appellant and his wife were the
primary caregivers for L.D. 	Despite evidence that Appellant inflicted the
physical injuries leading to the charge of child abuse by injury and L.D. was
subsequently removed from her home, Mrs. DeLuna did not leave Appellant
or seek a divorce. She did however, change her opinion during the pendency
of the case from believing that Appellant did not commit the abuse to
believing he was responsible for the physical abuse. 	She testified this was
because she was scared of Appellant due to ‘something physical’ and
‘physical stuff’ that had happened to her.
[The investigator] testified to the DHS investigation into the abuse of L.D. .
. . [H]e described in part the deprived child hearing on L.D. and specifically
Mrs. DeLuna’s testimony. 	He said in part that Mrs. DeLuna told him that
she believed Appellant abused the baby and that she had filed for divorce.
He testified that she described ‘domestic violence in her relationship with
Mr. DeLuna to the point of being choked out and just verbal aggression.’
These brief references to the relationship between Appellant and his wife
helped explain to the jury the chain of events that led to Appellant sitting
before them. The evidence helped to show why, after L.D. was taken from
Appellant 	and 	his 	wife, 	Appellant 	was 	not 	criminally 	charged 	with
committing the abuse. 	He was not criminally charged because the only
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person who had witnessed Appellant’s violent behavior, his wife, did not
report the abuse because she was afraid of Appellant’s reaction if she
reported it.
The evidence also helped explain why, even though Mrs. DeLuna was
concerned with Appellant’s behavior toward L.D., she did not report her
concerns or attempt to get L.D. away from Appellant. The evidence helped
rebut defense claims that L.D.’s injuries were accidental and not abuse and
explained 	why 	Mrs. 	DeLuna 	changed 	her 	opinion 	regarding 	whether
Appellant abused L.D.
Having thoroughly reviewed the record, we find the challenged evidence was
not improper evidence of other crimes but was properly admitted as res
gestae of the charged offense.
(Doc. 21, at Ex. 1, at 5-7).
The undersigned finds the OCCA reasonably determined that the domestic violence
testimony did not deprive Petitioner of a fundamentally fair trial. Generally, “[e]vidence
of other crimes should not be suppressed when those facts come in as res gestae — ‘as part
and parcel of the proof of the offense [ ] charged in the indictment.’” 	United States v.
Kimball, 73 F.3d 269, 272 (10th Cir. 1995) (alteration in original) (quoting United States
v. Gano, 560 F.2d 990, 993-94 (10th Cir. 1977)); see also United States v. Piette, 45 F.4th
1142, 	1155 	(10th 	Cir. 	2022) 	(“Intrinsic 	other 	acts 	evidence 	encompasses 	conduct
‘inextricably intertwined with the charged crime such that a witness’s testimony would
have been confusing and incomplete without mention of the prior act.’”) (quoting United
States v. Ford, 613 F.3d 1263, 1267 (10th Cir. 2010)). 	And “[w]here evidence against a
defendant is strong, the likelihood that erroneously admitted evidence will have an unduly
prejudicial impact is lessened.” Johnson v. Martin, 3 F.4th 1210, 1231-32 (10th Cir. 2021)
(collecting cases). Specifically, Petitioner points to no clearly established law contrary to
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the OCCA’s determination that the domestic violence testimony was not so unduly
prejudicial as to result in a fundamentally unfair trial. 	See Ochoa, 669 F.3d at 1144; see
also Owens, 792 F.3d at 1242 (explaining petitioner’s burden). So, even assuming
Petitioner exhausted his due process claim, it would still fail on the merits. See 28 U.S.C.
§ 2254(d).
B. 	Ground Two: Petitioner Is Not Entitled to Relief on His Ineffective
Assistance of Counsel Claim Because the OCCA Reasonably Held His
Representation Was Consistent with the Sixth Amendment.
Petitioner claims he was denied effective assistance of counsel at his trial because
counsel failed to object to evidence admitted under Burks v. State, 594 P.2d 771 (Okla.
Crim. App. 1979),3 and failed to ask for a limiting instruction;4 and failed to object to
“irrelevant and unduly prejudicial testimony” from Ms. De Luna and the DHS investigator.
(Doc. 18, at 15-16). 	The undersigned recommends the Court deny Petitioner’s claim on
the merits.
1. 	Clearly Established Law.
In order to succeed on his claim of ineffective assistance of counsel, Petitioner must
satisfy the standards of Strickland v. Washington, 466 U.S. 668 (1984), and show that his
attorney’s performance was both deficient and prejudicial. Id. at 687. An attorney’s
3 Petitioner erroneously cites Burks v. State, 568 P.2d 322 (Okla. Crim. App. 1977) instead
of the above Burks citation, which was cited by the State in its notice of intent to offer
evidence of other crimes. (See Doc. 18, at 13 n.4; R., at 92).
4 Petitioner makes only cursory mention of counsel’s decision not to ask for a limiting
discussion, so that argument is not sufficiently briefed for our review. 	See Grant v.
Trammell, 727 F.3d 1006, 1025 (10th Cir. 2013).
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performance is deficient when it falls “outside the wide range of professionally competent
assistance.” Id. at 690. The performance is prejudicial where “counsel’s errors were so
serious as to deprive the defendant of a fair trial, a trial whose result is reliable.” Id. at 687.
Thus, prejudice is shown when “there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.” Id. at 694.
On habeas review, “[t]he pivotal question is whether the state court’s application of
the Strickland standard was unreasonable” — not “whether defense counsel’s performance
fell below Strickland’s standard.” Harrington, 562 U.S. at 101. The court must therefore
use a “doubly deferential standard of review that gives both the state court and the defense
attorney the benefit of the doubt.” Burt v. Titlow, 571 U.S. 12, 15 (2013) (internal quotation
marks omitted).
2. 	The OCCA’s Ruling.
The OCCA rejected Petitioner’s claim:
Appellant claims counsel was ineffective for failing to object to the “Burks
evidence”. 	He also argues counsel was ineffective for failing to object to
“irrelevant and unduly prejudicial evidence testified to by Mrs. DeLuna and
[the DHS investigator]”; specifically, referring to testimony about L.D.’s
placement in the DHS system, Mrs. DeLuna’s parental rights to a child she
bore during the pendency of Appellant’s case (which was not Appellant’s
child), whether Mrs. DeLuna voluntarily chose to terminate her parental
rights and the implications of that choice, and whether Appellant and Mrs.
DeLuna were requested to get a divorce.
The Court reviews claims of ineffective assistance of counsel under the
standard set forth in Strickland v. Washington, 466 U.S. 668 (1984).
[. . .]
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[T]he evidence contained in the Burks notice of domestic abuse between
Appellant and his wife was properly admitted as res gestae of the charged
offense of child abuse by injury. 	Defense counsel vigorously objected to
admission of the evidence in the pre-trial hearing, but having been overruled
did not raise any objections at trial to the evidence.
Based on the court’s pre-trial ruling, any objection raised subsequently at
trial would have been denied. Trial counsel will not be found ineffective for
failing to raise an objection that would have been overruled.
Further, the record indicates the omission of objections was a strategic move.
In the instruction conference, defense counsel objected to the State’s
proposed limiting instruction on other crimes evidence. 	The ensuing
discussion showed that defense counsel did not think the State had actually
offered any evidence of domestic violence and did not want a limiting
instruction.
Not wanting to emphasize evidence of domestic violence between Appellant
and his wife was a sound strategic move by defense counsel. The references
to domestic violence were brief, limited, and generally non-specific. In the
context of the trial, raising an objection, with its ensuing instruction, would
have drawn more attention to the testimony than it garnered otherwise. There
are many ways to a defend a criminal case, and our review of counsel’s
performance is deferential to informed strategic choices. . . . That the strategy
ultimately 	proved 	unsuccessful 	is 	not 	grounds 	for 	branding 	counsel
ineffective. 	Here, counsel’s attempt to minimize potentially prejudicial
evidence was reasonable trial strategy.
Regarding the absence of objections to testimony about L.D.’s placement in
the DHS system, Mrs. DeLuna’s parental rights, and whether she was forced
to file for divorce, counsel’s conduct again appears to be strategic. Defense
counsel used this evidence to challenge Mrs. DeLuna’s credibility by
showing her bias or prejudice. Defense counsel attempted to show that Mrs.
DeLuna only testified against Appellant to avoid losing custody of the new
baby.
The 	record 	indicates 	that 	defense 	counsel 	intentionally 	did 	not 	raise
objections to evidence appellate counsel calls irrelevant and prejudicial
because he wanted to use it as impeachment evidence.
[. . .]
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Further, Appellant has failed to show a reasonable probability that but for
counsel’s failure to raise objections appellate counsel deems appropriate, the
result of the trial would have been different. The jury heard testimony that
Appellant thought he did something to L.D. because it had to be either him
or his wife, and that he did not believe his wife could have caused the injuries.
Appellant never specifically blamed his wife for the injuries but argued the
injuries were accidental or not abuse. 	The experts disagreed, finding the
injuries intentionally inflicted and evidence of abuse. 	In the face of this
evidence, counsel did the best he could by challenging the credibility of the
only other primary caregiver. 	Appellant has failed to show how he was
prejudiced by counsel’s failure to object to admissible evidence.
(Doc. 21, at Ex. 1, at 7-11) (internal citations omitted).
3. 	The OCCA Reasonably Applied Strickland.
Petitioner points to no clearly established federal law contrary to the OCCA’s
application of Strickland. 	See Owens, 792 F.3d at 1242 (explaining petitioner’s burden).
Instead, as to deficient performance, Petitioner relies on state case law to argue that
counsel’s failure to object could not have been sound trial strategy. Petitioner first argues
that under Collins v. State, 685 P.2d 975 (Okla. Crim. App. 1984), failure “to object to
error that goes to the heart of the case . . . cannot be considered trial strategy.” (Doc. 18,
at 15). This case is not clearly established law sufficient to carry Petitioner’s burden in this
habeas proceeding. Wellmon, 952 F.3d at 1245 (“Only Supreme Court law announced by
the time of the state-court decision on the merits qualifies as clearly established law.”). But
even if it were, Petitioner over states its holding. 	In Collins, the defendant was charged
with shooting with intent to kill, and the jury heard evidence from two witnesses that they
“had received threats from third parties that the [defendant] wanted to kill [the intended
victim].” Collins, 685 P.2d at 975-77. The OCCA held counsel’s failure to object — and
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decision 	to 	elicit 	more 	hearsay 	testimony 	on 	cross-examination 	— 	was 	“beyond
justification” because “this was the sole evidence of the [defendant’s] intent.” Id. at 977.
Based on the undersigned’s reading, the OCCA’s decision does not stand for the
proposition that counsel’s decision not to object to testimony despite a reasonable basis for
objection always amounts to deficient performance. 	Unlike in Collins, the challenged
Burks evidence in this case was not the only evidence of guilt; and, as the OCCA explained,
not objecting meant counsel could use the testimony to call into question Ms. De Luna’s
motivations for initiating divorce proceedings. 	Petitioner next argues that counsel was
deficient in failing to object to evidence that was irrelevant and therefore inadmissible
under state evidentiary law. (Doc. 18, at 16-17). This argument is again without citation
to any clearly established federal law relevant to his burden here. See Wellmon, 952 F.3d
at 1245.
As to prejudice, Petitioner summarily argues: “The facts of this case reveal that but
for Trial Counsel’s failure to object the result of Petitioner’s trial would have been
different. The evidence of who injured L.D. was scarce. There were no witnesses to any
action committed by anyone that would have been sufficient to cause the injuries that L.D.
sustained. 	The State’s theory of the case was to show that Petitioner was a primary
caregiver to L.D., along with Mrs. De Luna and her mother from time to time, and then
evoke sympathy for Mrs. De Luna.” (Doc. 18, at 18). However, he cites only to Strickland
for the proposition that prejudice requires “a reasonable probability that, but for counsel’s
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unprofessional errors, the result of the proceeding would have been different.” Strickland,
466 U.S. at 694. This, again, is insufficient to carry Petitioner’s burden.
The OCCA’s decision would be contrary to clearly established law only if it “comes
to a conclusion opposite to that reached by the Supreme Court on a question of law or
decides a case differently than the Court has . . . on materially indistinguishable facts.”
Wellmon, 952 F.3d at 1245. “While a Supreme Court case need not be factually identical,
it must bear some resemblance to the case at hand.” Holland v. Allbaugh, 824 F.3d 1222,
1228-29 (10th Cir. 2016). 	“And we may not ‘extract clearly established law from the
general legal principles developed in factually distinct contexts.’” 	Id. at 1229 (quoting
House v. Hatch, 527 F.3d 1010, 1017 n.5 (10th Cir. 2008)).
Setting aside Petitioner’s failure to carry his burden, the undersigned finds the
OCCA reasonably applied Strickland. 	This is especially true in light of our starting
assumption “that an attorney acted in an objectively reasonable manner and that an
attorney’s challenged conduct might have been part of a sound trial strategy.” Bullock v.
Carver, 297 F.3d 1036, 1046 (10th Cir. 2002). 	The record supports the OCCA’s
conclusion that defense counsel’s decision not to object was in furtherance of a strategy he
previewed in his opening statement — to discredit Ms. De Luna by portraying her decision
to initiate divorce proceedings as motivated by a desire to retain custody of her youngest
child, implying her bias against Petitioner. (Tr. Vol. II, at 42). The challenged testimony,
therefore, has “a double-edged nature,” and counsel is free to “concede to, or admit,
unflattering or even incriminating facts as part of an effective trial strategy.” 	Meek v.
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Martin, 74 F.4th 1223, 1268 (10th Cir. 2023) (collecting cases). 	As for prejudice, the
record likewise supports the OCCA’s conclusion that there is no reasonable probability
that Petitioner would have been acquitted had counsel objected. 	The jury heard ample
testimony about the time Petitioner was alone with L.D. and about his violent reactions to
the baby crying. The jury heard that Petitioner was L.D.’s primary caregiver while Ms. De
Luna was working long hours and that Petitioner became frustrated when the baby cried,
causing him to slam his head against the wall and throw things. (Tr. Vol. II, at 48, 165-66,
264-65). Given our doubly deferential standard of review, the undersigned finds the OCCA
reasonably applied Strickland and recommends the Court deny Petitioner’s habeas claim.
V. 	Recommended Ruling and Notice of Right to Object.
For the reasons discussed above, the Court recommends that the Petition for habeas
relief (Doc. 18) be DENIED on both grounds.
The Court advises the parties of their right to object to this Report and
Recommendation by May 16, 2025, under 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P.
72(b)(2). The Court further advises the parties that failure to make timely objection to this
report and recommendation waives their right to appellate review of both factual and legal
issues contained herein. See Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991).
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This Report and Recommendation disposes of all issues and terminates the referral
to the undersigned Magistrate Judge in the captioned matter.
ENTERED this 2 nd day of May, 2025.
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