Sanders v. Bridges

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IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
RANDALL SANDERS,
Petitioner,
v.
CARRIE BRIDGES,
Respondent.
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) 	Case No. CIV-24-1158-HE
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REPORT AND RECOMMENDATION
Petitioner Randall Sanders (“Petitioner”), a pro se state prisoner,1 seeks a writ of
habeas corpus under 28 U.S.C. § 2254. (Doc. 1). United States District Judge Joe Heaton
referred the matter to the undersigned Magistrate Judge for initial proceedings consistent
with 28 U.S.C. § 636(b)(1)(B)–(C). 	(Doc. 4). 	Petitioner filed a Brief in Support of the
Petition. 	(Doc. 16). 	Respondent filed a Response (Doc. 18), along with portions of the
record, including the jury trial transcripts (Tr. Vols. I–IV) and the state court record (R.).
(Docs. 19, 20).2 Petitioner filed a Reply. (Doc. 25). For the reasons set forth below, the
undersigned recommends that Petitioner’s application for habeas relief be DENIED.
1 A pro se litigant’s pleadings are liberally construed “and held to a less stringent standard
than formal pleadings drafted by lawyers.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.
1991); see Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam). But the court cannot
serve as Petitioner’s advocate, creating arguments on his behalf. 	See Yang v. Archuleta,
525 F.3d 925, 927 n.1 (10th Cir. 2008).
2 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.
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I. 	Background
Raimondo Crittenden (“the victim”) let many people visit his home. (Tr. Vol. II, at
31). Among those that visited the most often were Marquis Hartfield and Petitioner. (Id.)
Mr. Hartfield and Petitioner were friends with the victim, and the three spent a lot of time
together. 	(Id. at 31–32). 	Sometimes, Mr. Hartfield and Petitioner spent the night at the
victim’s home. 	(Id. at 32). 	When they did, they would typically “[c]hill” and “watch
[sports],” but also “sometimes get high” on phencyclidine (“PCP”) and other drugs. (Id. at
73–74). Mr. Hartfield originally met and befriended the victim over a decade before trial,
(Id. at 71), and met Petitioner through the victim two years before trial. 	(Id. at 71–72).
Throughout that time, Mr. Hartfield and Petitioner developed a “little brother/big brother”
relationship where Mr. Hartfield was the little brother and Petitioner was the big brother.
(Id. at 72).
On February 6, 2020, Mr. Hartfield and Petitioner were at the victim’s home, along
with a woman who was helping Mr. Hartfield file his income taxes. 	(Id. at 76–77).
Eventually, the woman left and the three began to “chill[]” in the home. (Id. at 77). They
smoked PCP and used various other drugs together. 	(Id. at 78). At one point the victim
became angry that Mr. Hartfield was not “speak[ing] loud[ly] enough.” 	(Id. at 78). The
victim hit Mr. Hartfield three times in the face and chipped one of Mr. Hartfield’s teeth.
(Id. at 79–80). The hitting stopped once Petitioner told the victim to “leave [Mr. Hartfield]
alone,” and afterwards the victim apologized to Mr. Hartfield. 	(Id.) 	Soon after, Mr.
Hartfield went to sleep on one of the couches in the living room. (Id. at 81). The victim
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and Petitioner were on another couch in the living room and lit another PCP cigarette before
Mr. Hartfield fell asleep. (Id. at 81–82).
Mr. Hartfield later woke up and went to the kitchen for water. (Id. at 82). When he
did, he saw Petitioner stabbing the victim in the kitchen. (Id.) Petitioner had his left hand
over the victim’s mouth and was repeatedly stabbing him in the chest. (Id. at 83). After
the victim went limp, Petitioner dropped his knife and instructed Mr. Hartfield to help him
put the victim’s body in the bathtub. (Id. at 83–84). Mr. Hartfield complied and the two
placed the victim into the bathtub. 	(Id. at 84). 	Petitioner then “turn[ed] up stuff”
throughout the apartment, as if he were looking for something. 	(Id. at 85). 	Petitioner
eventually poured cleaning supplies on the victim’s body and took tools, a debit card, and
several watches from the victim’s home. 	(Id. at 86–87). 	Mr. Hartfield took a television
that he had previously paid the victim to borrow. (Id. at 88–89). Before they left, Petitioner
told Mr. Hartfield to not “tell or [he would] be next.” (Id. at 88).
Linda Barksdale was a friend of the victim and visited him multiple times a week.
(Id. at 32). 	On February 7, 2020, she visited his home to check in on him. 	(Id. at 35).
After knocking with no answer, she entered the unlocked apartment and saw that his home
“was a mess,” which was surprising given the victim “was neat” and cleaned his apartment
“[a]ll the time.” (Id. at 31, 36). Ms. Barksdale decided to call the victim’s sister and discuss
the scene because it was clear that “[s]omething [was] wrong.” (Id. at 36). Ms. Barksdale
then saw blood on the side of the bathroom door, and when she entered the bathroom, she
found the victim in the tub, surrounded by bottles and broken fixtures. (Id.) This led Ms.
Barksdale to call the police. (Id.) The police and a crime scene investigator arrived that
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day, and the next, an autopsy was performed that determined the cause of death to be a
homicide. (Id. at 55–56, 140; Tr. Vol. III, at 28, 42).
II. 	Procedural History
The State charged Petitioner in Oklahoma County District Court, Case No. CF-
2020-1114,3 with one count of murder in the first degree. (Doc. 1, at 1). At the conclusion
of the four-day trial, the jury found Petitioner guilty of murder in the first degree. (R., at
216–217). 	The trial judge sentenced Petitioner to life imprisonment. 	(Id. at 227).
Petitioner filed a direct appeal with the Oklahoma Court of Criminal Appeals (“OCCA”),
and the OCCA affirmed Petitioner’s conviction and sentence. (Doc. 18, at Ex. 1).
Petitioner filed an Application for Post-Conviction Relief in the Oklahoma County
District Court. (Id. at Ex. 9). The court denied the Application. (Id. at Ex. 13). On appeal,
the OCCA affirmed the decision to deny Petitioner’s Application. (Id. at Ex. 23). Petitioner
then filed the instant Petition for a Writ of Habeas Corpus Under 28 U.S.C. § 2254. (Doc.
1). The Petition is at issue.
III. 	Petitioner’s Claims
Petitioner raises six grounds for relief.4 	In Ground One, Petitioner claims the
prosecutor inappropriately bolstered the testimony of a witness in violation of his
3 https://www.oscn.net/dockets/GetCaseInformation.aspx?db=oklahoma&number=CF-
2020-1114&cmid=3862974 (Docket Sheet) (last visited Dec. 9, 2025).
4 Petitioner raised seven grounds for relief in his petition. 	(See generally Doc. 1). 	He
renumbered these claims in his opening brief and consolidated the petition’s Grounds Four
and Seven into the brief’s Ground Three. (Compare Doc. 1, at 9, 14 (including two trial
ineffective assistance of counsel claims as separate grounds for relief), with Doc. 16, at 2
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constitutional right to a fair trial. (Doc. 1, at 5; Doc. 16, at 2). In Ground Two, Petitioner
claims the evidence presented at trial was insufficient to establish guilt and violated his
constitutional due process rights. 	(Doc. 1, at 6–7; Doc. 16, at 2). 	In Ground Three,
Petitioner claims the trial counsel provided ineffective assistance of counsel by failing to
investigate the case, subpoena alibi witnesses, and at the sentencing phase, present
mitigating evidence. (Doc. 1, at 9, 14; Doc. 16, at 2). In Ground Four, Petitioner claims
his appellate counsel provided ineffective assistance of counsel by failing to raise
Petitioner’s actual innocence. 	(Doc. 1, at 13; Doc. 16, at 2). 	In Ground Five, Petitioner
claims appellate counsel provided ineffective assistance of counsel by failing to raise a
Brady5 violation. 	(Doc. 1, at 13; Doc. 16, at 2). 	In Ground Six, Petitioner claims that
cumulative errors at both the trial and appellate level violated his constitutional right to fair
proceedings.6 (Doc. 1, at 8; Doc. 16, at 2).
As set forth fully below, Petitioner is not entitled to relief on any of his claims.
(including both trial ineffective assistance of counsel claims as one ground for relief)). The
Court will address each Ground as argued in the brief.
5 Brady v. Maryland prohibits “the suppression by the prosecution of evidence favorable
to an accused upon request” because it violates the Fourteenth Amendment’s Due Process
Clause. 373 U.S. 83, 87 (1963).
6 Petitioner originally framed this issue as one solely arising from trial errors, but then in
his brief analyzed both the supposed trial and appellate errors. 	(Contrast Doc. 1, at 8
(header only naming trial errors), and Doc. 16, at 2 (same), with Doc. 16, at 103 (including
appellate ineffective assistance of counsel arguments in cumulative error analysis)). The
undersigned will address supposed errors from each stage because both Petitioner and
Respondent briefed the supposed errors at the appellate stage. (See Doc. 18, at 83–86).
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IV. 	General Consideration for Habeas Review
A. 	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 Corrs., 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).
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 (internal quotation marks
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omitted). 	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 (internal quotation marks
omitted). 	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 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
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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).
B. 	Procedural Default and Exhaustion of State Remedies
“A federal habeas court generally may consider a state prisoner’s federal claim only
if he has first presented that claim to the state court in accordance with state procedures.”
Shinn v. Ramirez, 596 U.S. 366, 371 (2022). 	“Under the doctrine of procedural default,
claims that are defaulted in state court on adequate and independent state procedural
grounds will not be considered by a habeas court.” 	Simpson v. Carpenter, 912 F.3d 542,
570 (10th Cir. 2018) (citation modified); see also Martinez v. Ryan, 566 U.S. 1, 9 (2012)
(“[A] federal court will not review the merits of claims, including constitutional claims,
that a state court declined to hear because the prisoner failed to abide by a state procedural
rule.”). 	“A state procedural default is ‘independent’ if it relies on state law, rather than
federal law.” Smith v. Workman, 550 F.3d 1258, 1274 (10th Cir. 2008). “A state procedural
default is ‘adequate’ if it is firmly established and regularly followed.” 	Id.; see Ellis v.
Hargett, 302 F.3d 1182, 1186 (10th Cir. 2002).
Moreover,
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AEDPA prohibits federal courts from granting habeas relief to state
prisoners who have not exhausted available state remedies. In this regard,
§ 2254(b)(1) states, “An application for a writ of habeas corpus . . . shall
not be granted unless it appears that[] . . . the applicant has exhausted the
remedies available in the courts of the State. . . .” 28 U.S.C. § 2254(b)(1).
Section 2254(c) elaborates that “[a]n applicant shall not be deemed to have
exhausted the remedies available in the courts of the State[] . . . if he has
the right under the law of the State to raise, by any available procedure,
the question presented.” Id. § 2254(c) (emphasis added).
Ellis v. Raemisch, 872 F.3d 1064, 1076 (10th Cir. 2017); see also Bland v. Sirmons, 459
F.3d 999, 1011 (10th Cir. 2006) (“A state prisoner generally must exhaust available state-
court remedies before a federal court can consider a habeas corpus petition.”). “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, 459 F.3d at 1011). 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) (citation omitted). “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).
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
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grounds.” Id. (internal quotation marks omitted). If these requirements are met, the federal
court applies an “‘[a]nticipatory procedural bar’ [which] occurs when the federal courts
apply procedural bar to an unexhausted claim that would be procedurally barred under state
law if the petitioner returned to state court to exhaust it.” Anderson v. Sirmons, 476 F.3d
1131, 1140 n.7 (10th Cir. 2007); see also Williams v. Trammell, 782 F.3d 1184, 1212 (10th
Cir. 2015) (explaining that anticipatory procedural default is “where a petitioner fails to
exhaust a claim and we, as a federal court, nonetheless conclude that the claim would be
procedurally defaulted on remand”).
A federal court may nevertheless consider claims that have been or will be defaulted
in state court on adequate and independent state procedural grounds only if “the prisoner
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).
“Cause for a procedural default exists where something external to the petitioner,
something that cannot fairly be attributed to him[,] . . . impeded [his] efforts to comply
with the State’s procedural rule.” 	Maples v. Thomas, 565 U.S. 266, 280 (2012) (internal
quotation marks omitted). 	Petitioner must show “prejudice arising from the errors that
form the basis of [his] substantive claims” in order to establish the prejudice prong. Smith
v. Allbaugh, 921 F.3d 1261, 1271 (10th Cir. 2019) (internal quotation marks omitted).
The fundamental miscarriage of justice exception to procedural default is “a
markedly narrow one, implicated only in extraordinary cases where a constitutional
violation has probably resulted in the conviction of one who is actually innocent.” Magar
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v. Parker, 490 F.3d 816, 820 (10th Cir. 2007) (citation modified). 	The Supreme Court
instructs that “prisoners 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 v. Bell, 547 U.S.
518, 536–37 (2006) (quoting Schlup v. Delo, 513 U.S. 298, 327 (1995)). 	“The gateway
should open only when a petition presents ‘evidence of innocence so strong that a court
cannot have confidence in the outcome of the trial unless the court is also satisfied that the
trial was free of nonharmless constitutional error.’” McQuiggin v. Perkins, 569 U.S. 383,
401 (2013) (quoting Schlup, 513 U.S. at 316).
V. 	Analysis
A. 	Ground One: Petitioner Is Not Entitled to Relief on His Bolstering Claim
Because the OCCA Reasonably Held the Prosecutor Did Not Bolster the
Witness’s Credibility.
Petitioner claims that prosecutorial misconduct, through the prosecutor’s improper
bolstering of witness testimony, denied Petitioner a fair trial. (Doc. 1, at 5). As set forth
fully below, the undersigned recommends denying Petitioner habeas relief on this ground.
1. 	The Clearly Established Law
“A prosecutor’s remarks to the jury can create constitutional error in one of two
ways.” Matthews v. Workman, 577 F.3d 1175, 1186 (10th Cir. 2009). “First, prosecutorial
misconduct can prejudice ‘a specific right, such as the privilege against compulsory self-
incrimination, as to amount to a denial of that right.’” 	Id. (quoting Donnelly v.
DeChristoforo, 416 U.S. 637, 643 (1974)). 	“Second, even if the prosecutor’s improper
remarks do not impact a specific constitutional right, they may still create reversible error
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if they ‘so infected the trial with unfairness as to make the resulting conviction a denial of
due process.’” Id. (quoting Donnelly, 416 U.S. at 643), see also Underwood v. Royal, 894
F.3d 1154, 1167 (10th Cir. 2018) (“The fundamental unfairness test applies to instances of
prosecutorial misconduct occurring in either the guilt or sentencing stage of trial.”).
Petitioner’s argument rests on an alleged violation of his due process rights, so he
must show fundamental unfairness to succeed on this claim.7 	(See Doc. 1, at 5). 	To
evaluate that claim, the court must “examine the entire proceeding, ‘including the strength
of the evidence against the petitioner, both as to guilt at that stage of the trial and as to
moral culpability at the sentencing phase as well as any cautionary steps—such as
instructions to the jury—offered by the court to counteract improper remarks.’” Littlejohn
v. Trammell, 704 F.3d 817, 837 (10th Cir. 2013) (quoting Bland, 459 F.3d at 1024). Indeed,
the court “should not lightly infer that a prosecutor intends an ambiguous remark to have
its most damaging meaning or that a jury will necessarily draw that meaning.” Id. (citation
modified) (quoting Donnelly, 416 U.S. at 647). 	“‘Not every improper or unfair remark
7 In its brief, Respondent cites one recent case from this district that reiterated the
observation “that no on-point holding of the Supreme Court establishes that vouching
testimony itself violates a defendant’s constitutional rights.” 	Revilla v. Whitten, 710 F.
Supp. 3d 1077, 1086 (W.D. Okla. 2024). According to Respondent, this case “closes the
door on [the] [P]etitioner’s habeas claim based on improper vouching by the prosecutor.”
(Doc. 18, at 26) (citation modified) (quoting Revilla, 710 F. Supp. 3d at 1086). Respondent
is incorrect that Revilla forecloses habeas review of Petitioner’s first claim. 	The instant
claim, like the claim in Revilla, id. at 1087, is reviewed under a constitutional due process
analysis, where it is possible that “a prosecutor’s remark . . . by itself so infected the trial
with unfairness as to make the resulting conviction a denial of due process.” 	Donnelly,
416 U.S. at 643.
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made by a prosecutor will amount to a federal constitutional deprivation.’” 	Id. at 838
(citation modified) (quoting Tillman v. Cook, 215 F.3d 1116, 1129 (10th Cir. 2000)).
2. 	The OCCA’s Ruling
The OCCA rejected Petitioner’s prosecutorial misconduct claims on the merits,
holding:
Appellant claims in Proposition I that the prosecutor’s statements during
closing argument deprived him of a fair trial. Appellant specifically asserts
that the prosecutor improperly bolstered witness testimony. Appellant admits
that no objection was made at trial, waiving review for all but plain error.
Vance v. State, 2022 OK CR 25, ¶ 12, 519 P.3d 526, 531. . . . Even where this
showing is made, this Court will correct plain error only where the error
seriously affected the fairness, integrity, or public reputation of the judicial
proceedings or represented a miscarriage of justice. Id.
Claims of prosecutorial misconduct are evaluated “within the context of the
entire trial, considering not only the propriety of the prosecutor’s actions, but
also the strength of the evidence against the defendant and the corresponding
arguments of defense counsel.” Lee v. State, 2018 OK CR 14, ¶ 6, 422 P.3d
782, 785. We have also held that the parties have wide latitude to argue the
evidence and reasonable inferences from it in their closing arguments. Lamar
v. State, 2018 OK CR 8, ¶ 54, 419 P.3d 283, 297. This Court in Bramlett v.
State, 2018 OK CR 19, ¶ 36, 422 P.3d 788, 799-800, provided that “[i]t is the
rare instance when a prosecutor’s misconduct during closing argument will
be found so egregiously detrimental to a defendant’s right to a fair trial that
reversal is required.” The prosecution may also properly respond to the
defense theory or to the defense characterization of the State’s case. Oliver v.
State, 2022 OK CR 15, ¶ 17, 516 P.3d 699, 707 (citing Taylor v. State, 2011
OK CR 8, ¶ 56, 248 P.3d 362, 379; Browning v. State, 2006 OK CR 8, ¶ 43,
134 P.3d 816, 841). “Vouching occurs when a prosecutor expresses a personal
belief in a witness’s credibility, either through explicit assurances or by
implying that other evidence, not presented to the jury, supports the witness’s
testimony.” Browning, 2006 OK CR 8, ¶ 43, 134 P.3d at 841.
The closing argument was based upon the evidence presented during trial.
The prosecutor did not vouch for the witness. There was no misconduct, so
there was no error. Proposition I is denied.
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(Doc. 18, at Ex. 1, at 2–4). On federal habeas review, the court defers to the OCCA’s ruling
unless the OCCA “unreasonably applied” the due process test. 	Thornburg v. Mullin, 422
F.3d 1113, 1125 (10th Cir. 2005) (citation modified).
3. 	The OCCA Reasonably Applied Clearly Established Law.
Petitioner argues that the prosecutor improperly bolstered witness testimony during
closing arguments, (see Doc. 16, at 23), when she made these three statements8: (1) Mr.
Hartfield “doesn’t get any extra benefit from getting up here and telling . . . a story that’s
not true,” (Doc. 16, at 28) (quoting Tr. Vol. IV, at 11); (2) Mr. Hartfield was “not
sophisticated enough” to “tell you some lie,” (id.) (quoting Tr. Vol. IV, at 11); and (3) Mr.
Hartfield “doesn’t have the mental capacity to lie to you,” (see id., at 30) (quoting Tr. Vol.
IV, at 12).9
The Tenth 	Circuit 	has 	recognized 	that 	bolstering 	a 	witness’s 	testimony 	can
compromise the fairness of the proceedings and implicate the Fourteenth Amendment’s
Due Process Clause. See Parker v. Scott, 394 F.3d 1302, 1311 (10th Cir. 2005) Moreover,
8 Petitioner actually argues there were “nine . . . unprofessional conducts” made by the
prosecutor during closing arguments, (Doc. 16, at 27), but the majority of these are
explanations of the supposed impropriety of the prosecutor’s statements.
9 While Petitioner’s opening brief references the prosecutor’s third comment on Mr.
Hartfield’s mental capacity, (Doc. 16, at 30), neither Petitioner’s Petition nor his opening
brief actually include the quote. However, Respondent’s brief does, (see Doc. 18, at 23),
likely because Petitioner’s previous appeal to the OCCA included this as part of his
bolstering argument. 	(See id., at Ex. 3, at 13). 	Petitioner then included the quote in his
reply brief. 	(See Doc. 25, at 21). 	The undersigned will address this quote because
Petitioner appears to have tried to brief it in his opening brief and Respondent actually did
brief it.
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the Supreme Court has recognized that such bolstering “poses the danger that ‘evidence
not presented to the jury, but known to the prosecutor, supports the charges against the
defendant,’ as well as the risk that the jury will ‘trust the Government’s judgment rather
than its own view of the evidence.’” Matthews, 577 F.3d at 1187 (quoting United States v.
Young, 470 U.S. 1, 18–19 (1985)).
The relevant question is what constitutes bolstering by the prosecutor? 	“A
prosecutor may comment on and draw reasonable inferences from evidence presented at
trial.” 	Thornburg, 422 F.3d at 1131. 	The OCCA further holds that it is proper for a
prosecutor to tell the jury what he or she believes the evidence showed. 	See Williams v.
State, 188 P.3d 208, 228 (Okla. Crim. App. 2008) (holding that the prosecutor cannot tell
the jury to abandon its duty and convict upon the prosecutor’s opinion, but the prosecutor
can tell the jury what he thinks the evidence showed). It also is proper for the prosecution
to respond to the defense theory or to the defense characterization of the State’s case. See
Bland, 459 F.3d at 1025 (“[I]t is permissible for the prosecution to comment on the veracity
of a defendant’s story.”); Taylor v. State, 248 P.3d 362, 379 (Okla. Crim. App. 2011)
(holding 	that 	prosecutor’s 	statements 	in 	closing 	regarding 	victim’s 	inconsistent
identifications of defendant as the product of his “dire circumstances” were a proper
response to the defense theory of mistaken identity). 	A prosecutor’s words constitute
impermissible bolstering “only if the jury could reasonably believe that the prosecutor is
indicating a personal belief in the witness’ credibility, either through explicit personal
assurances of the witness’ veracity or by implicitly indicating that information not
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presented to the jury supports the witness’ testimony.” 	United States v. Bowie, 892 F.2d
1494, 1498 (10th Cir. 1990).
Here, the OCCA held that “[t]he closing argument was based upon the evidence
presented during trial. The prosecutor did not vouch for the witness. There was no
misconduct, so there was no error.” (Doc. 18, at Ex. 1, at 2–4). The undersigned agrees
that the statements are reasonable inferences based on the evidence at trial, were made in
response to the defense theory of the case, and did not indicate a personal belief regarding
Mr. Hartfield’s testimony.
At trial, the government put on several witnesses who testified to Mr. Hartfield’s
intelligence. Kathryn Hines, Mr. Hartfield’s supervisor at a fast food restaurant, testified
that Mr. Hartfield could not “comprehend” tasks more complicated than seasoning chicken
despite working there for five years. 	(Tr. Vol. II, at 64). 	Ben Ivanhoe, the maintenance
worker at the victim’s apartment complex, testified that Mr. Hartfield did not “appear to
function normally.” 	(Tr. Vol. II, at 117). 	And Alexa Sabin, an employee at a local gas
station frequented by Mr. Hartfield, testified that Mr. Hartfield “ha[d] issues upstairs” and
was “[a] little slow.” 	(Tr. Vol. II, at 125). 	It was not unreasonable for the prosecutor to
infer from this evidence that Mr. Hartfield would find it significantly more difficult than
the average witness to fabricate a coherent story and to share this inference with the jury.
See Thornburg, 422 F.3d at 1131; see also Hanson, 797 F.3d at 837 (“There is no rule
against” “direct[ing] the jury’s attention to concrete evidence supporting [a petitioner’s]
credibility.”).
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Petitioner’s argument also ignores the defense’s theory of the case—namely, that
Mr. Hartfield’s testimony is untrustworthy because the evidence points to him as the true
murderer, who testified against Petitioner in exchange for a plea deal. (See Tr. Vol. II, at
26–28). By arguing that Mr. Hartfield was not capable of lying, the prosecutor sought to
directly contradict the defense’s characterization of the state’s case as one built upon the
testimony of the true killer. 	See United States v. Gomez-Olivas, 897 F.2d 500, 503 (10th
Cir. 1990) (“[T]he prosecutor is allowed considerable latitude in responding to defense
arguments, commenting on the evidence, and arguing inferences therefrom.”). It was not
unreasonable for the OCCA to determine that these comments were proper considering
they commented on the evidence and responded to the defense’s characterization of the
case. See id.; Bland, 459 F.3d at 1025.
Petitioner additionally fails to show that the prosecutor indicated a personal belief
in the witness’s credibility. To begin, the prosecutor did not “implicitly indicat[e] that
information not presented to the jury supports the witness’ testimony.” Bowie, 892 F.2d at
1498. As explained above, the second and third statements highlighted by Petitioner relate
directly to witness testimony that was presented to the jury. The first statement, that Mr.
Hartfield “doesn’t get any extra benefit from getting up here and telling . . . a story that’s
not true,” (Tr. Vol. IV, at 11), directly follows the prosecutor’s statement that Mr. Hartfield
already pleaded guilty for his involvement and is “still going back to prison,” (id.), and
itself is based on Mr. Hartfield’s consistent testimony.
Petitioner also does not show that the prosecutor gave an “explicit personal
assurance of [Mr. Hartfield’s] veracity.” 	Bowie, 892 F.2d at 1498. In Hanson, the Tenth
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Circuit rejected an improper bolstering claim where the prosecutor said the following
during his closing argument:
The instructions tell you to consider the credibility of the witness[] . . . . What
stakes does [the witness] have in this? None. For his testimony he’s labeled
a snitch. He told you he was scared to testify. He has nothing in this except
to tell what he knows of what happened and what that defendant told him.
797 F.3d at 837. In that case, there was no improper bolstering because “presenting
evidence 	of 	[the 	witness’s] 	obligation 	or 	motivation 	to 	testify 	truthfully 	is
unobjectionable.” Id. at 838 (quoting United States v. Jones, 468 F.3d 704, 707 (10th Cir.
2006)). 	“There is no rule against” “the prosecutor direct[ing] the jury’s attention to
concrete evidence supporting [the witness’s] credibility.” Id. Like that case, the prosecutor
here committed no error when she noted that Mr. Hartfield “doesn’t get any extra benefit
from getting up here and telling . . . a story that’s not true” because she was merely
presenting evidence of why Mr. Hartfield testified and whether he would receive a benefit
for it. (Tr. Vol. IV, at 11).
The other two comments are also proper. In Revilla v. Whitten, a petitioner claimed
that the prosecutor improperly vouched for a witness when he stated that the witness, a
child, was “not sophisticated enough to make [the statements] up” and that “[a] kid can’t
make this kind of stuff up.” 710 F. Supp. 3d 1077, 1083–84 (W.D. Okla. 2024). The district
court determined that these statements were not improper because they were based on
evidence presented at trial that the witness was a minor, and were made in response to
defense counsel’s direct challenges that the witness was a liar with inconsistent testimony.
Id. at 1088. The present case is similar to Revilla. Here, the prosecutor also stated that a
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witness was not sophisticated enough to lie, supported by evidence that Mr. Hartfield had
a mental deficiency and in response to the defense counsel’s characterization of him as the
true murderer. In other words, “the prosecutor fairly argued that [Mr. Hartfield’s] testimony
was believable based on the evidence at trial.” 	Id. 	The OCCA was not unreasonable in
determining that all three statements made by the prosecutor were proper.
Lastly, even if the prosecutor’s remarks were improper, the strength of the evidence
admitted at trial puts to bed any “fundamental unfairness” in Petitioner’s prosecution.
Littlejohn, 704 F.3d at 837 (quoting Bland, 459 F.3d at 1024). 	At trial, Mr. Hartfield
provided a thorough description of the murder as well as events immediately before and
after it. 	(See Tr. Vol. II, at 5–19). 	Several witnesses testified to their belief that Mr.
Hartfield did not possess the intelligence to frame Petitioner, as seen above. 	DNA or
fingerprints identifying Petitioner were all over the victim’s home, including: on an empty
bottle of cleaning solution that was left in the victim’s bathroom and had stains consistent
with blood, (see Tr. Vol. II, at 26; Tr. Vol. III, at 74), on a pair of underwear found in the
trashcan at the victim’s home, (see Tr. Vol. III, at 123), and on the lightbulb and cover
pulled out of the wall in the bathroom, (see Tr. Vol. III, at 70–72). The instructions to the
jury further required that a conviction could only be based on witness testimony,
stipulations by the attorneys, and admitted exhibits. (R., at 187, 190); see Lamb v. Okla.
Cty. Dist. Ct., 229 F. App’x 690, 696 (10th Cir. 2007).
“Considering the prosecutor’s statements in the context of the entire proceeding,
[the undersigned] therefore conclude[s] that they did not compromise the jury’s ability ‘to
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fairly judge the evidence in light of the prosecutor’s conduct.’” Lamb, 229 F. App’x at 696.
Relief should be denied on this ground.
B. 	Ground Two: Petitioner Is Not Entitled to Relief on His Sufficiency of
the Evidence Claim Because the OCCA Reasonably Held All Four
Elements of First Degree Murder Were Met.
In Ground Two, Petitioner asserts the evidence was not sufficient to support his first-
degree murder conviction. (Doc. 1, at 6). For the reasons stated below, Ground Five should
be denied.
1. 	The Clearly Established Law
The relevant inquiry for a challenge to the sufficiency of the evidence is “whether,
after viewing the evidence in the light most favorable to the prosecution, any rational trier
of fact could have found the essential elements of the crime beyond a reasonable doubt.”
Jackson v. Virginia, 443 U.S. 307, 319 (1979). This standard “must be applied with explicit
reference to the substantive elements of the criminal offense as defined by state law.” Id.
at 324 n.16. 	“[A] state-court decision rejecting a sufficiency challenge may not be
overturned on federal habeas unless the decision was objectively unreasonable.” Parker v.
Matthews, 567 U.S. 37, 43 (2012) (internal quotation marks omitted). Thus, courts utilize
a “twice-deferential standard” when addressing a sufficiency-of-the-evidence claim on §
2254 habeas review. Id.
2. 	The OCCA’s Ruling
The OCCA found, in relevant part:
In Proposition II, Appellant claims that there was insufficient evidence to
show Appellant caused the victim’s death or that he had malice aforethought,
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as required to find a violation of Title 21, Section 701.7 of the Oklahoma
Statutes as charged in Count 3.
The ultimate question of sufficiency of the evidence should be resolved with
deference to the fact finder and in a light most favorable to the State. Dodd
v. State, 2004 OK CR 31, ¶ 80, 100 P.3d 1017, 1041; see also Spuehler v.
State, 1985 OK CR 132, ¶ 7, 709 P.2d 202, 203-04 (finding that viewing
evidence in light most favorable to the State, a verdict will not be overturned
if any rational trier of fact could have found the elements of the crime to exist
beyond a reasonable doubt). We also accept all reasonable inferences and
credibility choices that tend to support the verdict. Coddington v. State, 2006
OK CR 34, ¶ 70, 142 P.3d 437, 456.
In order to sustain a conviction for murder in the first degree as charged in
Count 1, the State had to prove (1) the death of a human, (2) that the death
was unlawful, (3) that Appellant caused the death, and (4) that the death was
caused with malice aforethought. 21 O.S.Supp.2012, § 701.7(A); see also
OUJI-CR(2d) 	4-61. 	Malice 	aforethought 	is 	defined 	as 	the 	“deliberate
intention to take away the life of a human being.” 21 O.S.Supp.2012, §
701.7(A); see also OUJI-CR(2d) 4-62. “A design to effect death [i.e.,
premeditation] is inferred from the fact of killing, unless the circumstances
raise a reasonable doubt whether such design existed.” 21 O.S.2011, § 702.
“Malice may be formed in the instant before the fatal act, and may be
established from the fact of the killing alone.” Robinson v. State, 2011 OK
CR 15, ¶ 18, 255 P.3d 425, 432. “Jurors may find intent to kill from
circumstantial evidence.” Id. “The manner of killing and pattern of wounds
may support a finding of intent to kill.” Id. “Pieces of evidence must be
viewed not in isolation but in conjunction, and we must affirm the conviction
so long as, from the inferences reasonably drawn from the record as a whole,
the jury might fairly have concluded the defendant was guilty beyond a
reasonable doubt.” Matthews v. State, 2002 OK CR 16, ¶ 35, 45 P.3d 907,
919-920.
Review of the entire record, viewed in the light most favorable to the State,
shows that the jury was given sufficient information to find Appellant guilty.
Proposition II is denied.
(Doc. 18, at Ex. 1, at 4–6).
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3. 	The OCCA’s Application of Jackson Was Not Unreasonable.
As an initial matter, Petitioner argues that relief must be granted on this claim
because the State “failed to implement clearly established federal law” in its direct appeal
brief and the OCCA’s opinion did not include “Supreme Court[] precedent[].” 	(Doc. 25,
at 29). Habeas review is not concerned with the State’s direct appeal filings. See 28 U.S.C.
§ 2254(d) (permitting granting of habeas petition only where “adjudication of the claim”
was unreasonable). 	Furthermore, in the habeas context, “[a] state court need not cite, or
even be aware of, applicable Supreme Court decisions, ‘so long as neither the reasoning
nor the result of the state-court decision contradicts them.’” Harmon v. Sharp, 936 F.3d
1044, 1056 (10th Cir. 2019) (quoting Early v. Packer, 537 U.S. 3, 8 (2002) (per curiam)).
Here, the OCCA’s application of Dodd and Spuehler did not contradict Jackson because
both cases apply the Jackson standard. 	Dodd, 100 P.3d at 1041 (“We must resolve any
factual issues, including the ultimate question of sufficiency of the evidence, with
deference to the fact finder and in a light most favorable to the prevailing party below.”);
Spuehler, 709 P.2d 203–04 (“In Jackson . . . , the United States Supreme Court held that
due process requires a reviewing court to determine ‘whether, after reviewing the evidence
in the light most favorable to the prosecution, any rational trier of fact could have found
the essential elements of the crime charged beyond a reasonable doubt.’”) (internal citation
omitted). Therefore, analysis of this claim will continue on the merits.
In order to convict Petitioner of first-degree murder, the State had to prove (1) the
death of a human, (2) that the death was unlawful, (3) that Petitioner caused the death, and
(4) that the death was caused with malice aforethought. 	(See Doc. 18, at Ex. 1, at 5);
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Instruction No. 4-61, OUJI-CR(2d); Okla. Stat. tit. 21, § 701.7(A). Petitioner argues that
there was insufficient evidence to prove the third10 element of first-degree murder. (Doc.
16, at 48–49; Doc. 25, at 33).
It was not unreasonable for the OCCA to find that the State presented sufficient
evidence of this element. 	There was ample evidence that Petitioner caused the victim’s
death. Mr. Hartfield’s testimony outlined the entirety of the night of the murder—from the
events at the victim’s house leading up to the murder, to Mr. Hartfield’s own eyewitness
account of the murder by Petitioner, to his inculpating assistance in the concealment of the
crime by placing the victim in the bathtub, and to the immediate aftermath of Petitioner
tearing up the home and taking several of the victim’s belongings. (Tr. Vol. II, at 76–90).
Petitioner contends that Mr. Hartfield’s unreliability as a witness undermines the value of
his testimony. (Doc. 16, at 49). It is true that the story told by Mr. Hartfield at trial was
not the same as the original story he told the police. (Tr. Vol. II, at 113–114). However, “a
federal court sitting in habeas may not weigh conflicting evidence, which would effectively
displace the jury’s evaluation of the evidence. 	Here, the jury clearly resolved [Mr.
Hartfield’s] testimony . . . in favor of the prosecution.” 	Meek v. Martin, 74 F.4th 1223,
1261 (10th Cir. 2023).
10 While he did brief it in his reply, Petitioner failed to raise in his opening brief whether
the fourth element, malice aforethought, was proven by the prosecution. (Doc. 18, at Ex.
3, at 18–20). “Arguments inadequately briefed in the opening brief are waived.” Adler v.
Wal-Mart Stores, Inc., 144 F.3d 664, 679 (10th Cir. 1998).
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In regard to Mr. Hartfield’s testimony, Petitioner also argues that it required
corroboration because Mr. Hartfield was an accomplice to the murder, and in the absence
of corroborating testimony the district court should have instructed the jury to more
carefully weigh his statements. (Doc. 16, at 47–48). Under Oklahoma law, “a conviction
cannot be had upon the testimony of an accomplice unless he be corroborated by such other
evidence as tends to connect the defendant with the commission of the offense.” 	Okla.
Stat. tit. 22, § 742. However, “[i]n conducting habeas review, a federal court is limited to
deciding whether a conviction violated the Constitution, laws, or treaties of the United
States.” 	Estelle v. McGuire, 502 U.S. 62, 68 (1991). 	Because “[t]he [United States]
Constitution does not prohibit convictions based primarily on accomplice testimony,” the
undersigned will consider Petitioner’s sufficiency claim with the benefit of Mr. Hartfield’s
testimony. Scrivner v. Tansy, 68 F.3d 1234, 1239 (10th Cir. 1995).
Regardless, other evidence at trial also pointed to Petitioner as the killer: Petitioner’s
fingerprints were on an empty Fabuloso cleaner bottle found next to the victim, (Tr. Vol.
III, at 73–74), his DNA was found on the waistband of underwear discovered in the victim’s
trash can, (id. at 123), and additional fingerprints were also found on a light bulb and light
bulb cover that had been pulled from the bathroom wall and onto the floor, (id. at 60, 70–
72). Thus, a rational trier of fact could have found the prosecution proved that Petitioner
caused the victim’s death beyond a reasonable doubt. The OCCA reasonably determined
there was sufficient evidence to prove first-degree murder.
Towards the end of his briefing on Ground Two, Petitioner asserts that the
prosecution failed to hand over various exculpatory evidence that would prove Petitioner
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is innocent of the crime. (Doc. 16, at 51–53). Petitioner gives no explanation of how he
discovered that this supposed evidence exists. Petitioner also failed to exhaust this issue
on direct appeal or in his application for post-conviction relief. (See generally Doc. 18, at
Exs. 1, 13). 	Moreover, Petitioner has failed to show cause and prejudice for failure to
exhaust these claims and any actual innocence arguments fail as is explained infra Section
V.D.3. Therefore, this unexhausted argument is subject to an anticipatory procedural bar
because the state court would find it waived.11 Williams, 782 F.3d at 1212.
For the reasons stated above, the undersigned recommends Ground Two be denied.
C. 	The Entirety of Grounds Three and Five Are Barred.
Petitioner asserts in Ground Three of his brief that trial counsel was ineffective
because they failed to investigate the case and subpoena alibi witnesses at the trial stage
and failed to present mitigating evidence at the sentencing stage. (Doc. 1, at 9, 14; Doc.
16, at 7). Petitioner also asserts in Ground Five that appellate counsel was ineffective for
failure to raise Brady issues. (Doc. 1, at 13; Doc. 16, at 8).
In its Order Affirming Denial of Application for Post-Conviction Relief, the OCCA
stated the following:
On May 24, 2024, Petitioner filed an application for post-conviction relief in
the trial court raising three propositions of error as follows:
11 For similar reasons, Petitioner fails to show entitlement to an evidentiary hearing on this
supposed evidence. 	(See Doc. 16, at 51) (“P[e]titioner could prove in an evidentiary
[hearing] that” exculpatory evidence exists); 28 U.S.C. § 2254(e)(2) (“[T]he court should
not hold an evidentiary hearing . . . unless the applicant shows that” either “the claim relies
on a factual predicate that could not have been previously discovered through the exercise
of due diligence” or “the facts underlying the claim would be sufficient to establish by clear
and convincing evidence that but for constitutional error, no reasonable factfinder would
have found the applicant guilty of the underlying offense”).
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1. “Tr[ia]l counsel was ineffective for failure to investigate the case and
subpoena [P]etitioner[’]s alibi witnesses, in violation of his constitutional
rights of the Sixth (6th) and Fourteenth amendment. Also, in violation of
Article two (2) Section seven (7) and Twenty (20) of the Oklahoma
Constitution.”
2. “Appellate counsel provided ineffective assistance of counsel for omitting
or failure to raise actual, factual innocence, in violation of his constitutional
rights of the Sixth (6th) and Fourteenth amendment. Also, in violation of
Article two (2) Section seven (7) and Twenty (20) of the Oklahoma
Constitution.”
3. “Appellate counsel provided Ineffective assistance of counsel, when he
omitted or failed to raise petitioner[’]s claim of prosecutorial misconduct in
bolstering the credibility of a witness, in violation of his constitutional rights
of the Sixth (6th) and Fourteenth amendment. Also, in violation of Article
two (2) Section seven (7) and Twenty (20) of the Oklahoma Constitution.”
In an August 2, 2024, order, the Honorable Susan Stallings, District Judge,
denied Petitioner’s propositions as either without merit or as procedurally
barred after noting that Petitioner’s conviction was affirmed by this Court on
direct appeal and that any issues raised in his direct appeal were barred by
res judicata, and issues which could have been raised, but were not, were
waived. See Logan v. State, 2013 OK CR 2, ¶ 3, 293 P.3d 969, 973; 22
O.S.2011, § 1086. Judge Stallings addressed and denied each of Petitioner’s
ineffective assistance of counsel claims on its merits. Judge Stallings
considered each argument and relied upon Strickland v. Washington to
determine 	that 	appellate 	counsel’s 	performance 	was 	not 	objectively
unreasonable 	and 	that 	Petitioner 	failed 	to 	demonstrate 	a 	reasonable
probability that due to the alleged errors the outcome of the appeal would
have been different. See Strickland v. Washington, 466 U.S. 668 (1984). We
agree.
Except as related to his ineffective assistance of appellate counsel claim[s],
consideration of Petitioner’s claims for relief are procedurally barred. Logan,
2013 OK CR 2, ¶ 3, 293 P.3d at 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.
(Doc. 18, at Ex. 23, at 1–3).
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The OCCA’s order did not address Petitioner’s present claims that “[a]ppellate
counsel was ineffective when she omitted or failed to raise the prosecutor withheld
evidence from the defense” and that “[t]rial counsel was ineffective for failure to
investigate at the sentencing phase.” 	(Doc. 1, at 13–14). 	While Petitioner did not raise
these issues in his original post-conviction application, (see Doc. 18, at Ex. 9, at 3–4),
Petitioner did raise these claims on post-conviction appeal to the OCCA. (Doc. 18, at Ex.
21, at 2). 	The OCCA never addressed them because they were not raised to the district
court in Petitioner’s original post-conviction application. (See Doc. 18, at Ex. 9, at 3–4).
Ultimately, all claims in Grounds III and V fail.
1. 	The Post-Conviction Procedure Act Bars Part of Petitioner’s
Ineffective Assistance of Trial Counsel Claim.
The OCCA held that Petitioner’s ineffective assistance of counsel claim regarding
a “failure to investigate the case and subpoena [P]etitioner[’]s alibi witnesses” was waived
on post-conviction appeal because Petitioner did not properly present the claim on direct
appeal. (Doc. 18, at Ex. 23, at 2). Oklahoma’s Post-Conviction Procedure Act states that:
Any ground finally adjudicated or not so raised, or knowingly, voluntarily
and intelligently waived in the proceeding that resulted in the conviction or
sentence or in any other proceeding the applicant has taken to secure relief
may not be the basis for a subsequent application, unless the court finds a
ground for relief asserted which for sufficient reason was not asserted or was
inadequately raised in the prior application.
Okla. Stat. tit. 22, § 1086.
According to Petitioner, the Supreme Court’s holding in Massaro v. United States,
538 U.S. 500 (2003), permits his ineffective assistance of trial counsel claim to be brought
for the first time in a post-conviction proceeding and effectively requires a carveout of the
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Act for ineffective assistance of trial counsel claims. (Doc. 25, at 39–40). 	Massaro held
that “an ineffective-assistance-of-counsel claim may be brought in a collateral proceeding
under [28 U.S.C.] § 2255, whether or not the petitioner could have raised the claim on
direct appeal.” 538 U.S. at 504. “Massaro, however, concerned federal prisoners and
applications 	filed 	pursuant 	to 28 	U.S.C. 	§ 	2255, 	and 	it 	has 	no 	application 	in
the Section 2254 context.” Lockett v. Workman, No. 3-cv-734-F, 2011 WL 10843368, at
*12 (W.D. Okla. Jan. 9, 2011).
Moreover, it is well established that “[t]he Oklahoma requirement that a claim of
ineffective assistance of trial counsel be raised on direct appeal is an adequate ground for
procedural default if (1) the defendant’s counsel on direct appeal is different from trial
counsel and (2) the claims can be resolved on the trial record alone.” Welch v. Workman,
639 F.3d 980, 1012 (10th Cir. 2011). 	See also Thacker v. Workman, 678 F.3d 820, 841
(10th Cir. 2012) (applying anticipatory procedural bar to claim that would be barred in
state court under the Act). 	Here, Petitioner’s trial and appellate counsel were different.
(Contrast R., at 230 (“Amber Leal[,] attorney for defendant”), with Doc. 18, at Ex. 3, at 1
(“Amanda Holden[,] . . . attorney for appellant”)). And this claim can be resolved on the
trial 	record 	alone: 	the 	record 	provides 	information 	both 	on 	whether 	trial 	counsel
investigated the case – for example, trial counsel’s use of evidence to attempt to pin the
murder on Mr. Hartfield, (e.g., Tr. Vol. II, at 27) (trial counsel explaining that Mr. Hartfield
had a bloody sweatshirt in his room when he was arrested that was worn during the
murder); (id. at 114) (trial counsel explaining that Mr. Hartfield had a knife on his person
when arrested) – and on whether or not trial counsel called alibi witnesses (see Tr. Vols. I–
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IV). Thus, both prongs of the procedural bar test are met. The OCCA’s bar of Petitioner’s
ineffective assistance of trial counsel claim regarding the failure to investigate the case and
call alibi witnesses rests on independent and adequate grounds, leaving the claims
procedurally barred on habeas review.
2. 	The 	Remaining 	Unexhausted 	Claims 	Are 	Subject 	to 	an
Anticipatory Procedural Bar.
Both Petitioner’s ineffective assistance of counsel claim regarding the failure of trial
counsel to provide mitigating evidence at sentencing and Petitioner’s ineffective assistance
of appellate counsel claim regarding a failure to raise Brady violations are unexhausted
because they were not considered on the merits by the state’s highest court, the OCCA.
Respondent argues that the anticipatory procedural bar applies to Petitioner’s
unexhausted claims. 	(Doc. 18, at 53–57, 76–79). 	The undersigned agrees. 	“Oklahoma
requires a post-conviction relief applicant to raise all grounds for relief which he actually
knows or should have known through the exercise of due diligence in his original
application for relief.” 	Williams, 782 F.3d at 1212; see also Okla. Stat. tit. 22, § 1086.
And, as explained above, “[a]ny ground finally adjudicated or not so raised . . . may not be
the basis for a subsequent application, unless the court finds a ground for relief asserted
which for sufficient reason was not asserted or was inadequately raised in the prior
application.” Okla. Stat. tit. 22, § 1086.
Petitioner contends that he did properly raise these two claims before the OCCA,
and that they are therefore exhausted and not subject to an anticipatory procedural bar.
(Doc. 25, at 43, 63). 	Regarding his argument about the trial counsel claim, Petitioner
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essentially argues that this claim is exhausted because it is so related to the claim “that trial
counsel failed to investigate the case and subpoena his alibi witnesses.” (Id. at 43). But,
as established above, that claim is also barred from federal review. And regardless,
“presentation of a somewhat similar claim is insufficient to fairly present a federal claim
before the state courts,” so this argument fails. Bland, 459 F.3d at 1012 (internal quotations
omitted).
In support of his argument that his appellate claim is exhausted, Petitioner highlights
that he did file a Supplemental Brief of the Application for Post-Conviction Relief for
Propositions Two (2), Three (3), and Four (4) to the Oklahoma County District Court that
included these two claims. (Doc. 25, at 63; see Doc. 18, at Ex. 15, at 3). However, he filed
this supplement over two months after his original application and a week after the district
court ruled on his Post-Conviction Application. (Id.) Petitioner then included these claims
in his post-conviction petition for error to the OCCA. 	(Doc. 18, at Ex. 21, at 2). 	In its
order, the OCCA refused to rule on the claims in the petition for error that were not properly
presented to the district court. (Doc. 18, at Ex. 23, at 6). Because the district court never
had an opportunity to evaluate the claims, the OCCA’s opinion could not have exhausted
them. See Okla. Stat. tit. 22, § 1087 (only “final judgement[s] entered” under Oklahoma
post-conviction procedures “may be appealed to the” OCCA); Dever, 36 F.3d at 1534
(“The exhaustion requirement is satisfied if the federal issue has been properly presented
to the highest state court . . . .”) (emphasis added).
This procedural bar is also independent and adequate. 	See Medlock v. Ward, 200
F.3d 1314, 1323 (10th Cir. 2000) (“Despite the especially vigilant scrutiny we apply in
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examining procedural 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.”). Because Petitioner failed to properly seek post-conviction relief on both his
ineffective assistance of appellate counsel Brady claim and his ineffective assistance of
trial counsel claim regarding sentence mitigation evidence, and he has put forth no
sufficient reason for failing to properly bring the claim, Petitioner would be barred from
bringing these claims in another application for post-conviction relief. See id.; Johnson v.
State, 823 P.2d 370, 372–73 (Okla. Crim. App. 1991) (“[W]e will not review new claims
brought in successive petitions or applications that could have or should have been brought
at some previous point in time without proof of adequate grounds to excuse the delay.”).
3. 	Petitioner Does Not Meet Any Exception to Procedural Default.
Petitioner does not acknowledge that his claims are defaulted and therefore fails to
demonstrate cause for the default. 	(Doc. 25, at 42–43, 63). 	Because Petitioner has not
shown cause for the procedural default of his claims in state court, the undersigned need
not address whether he suffered actual prejudice. 	See Simpson, 912 F.3d at 571
(“[Petitioner] must establish both cause and prejudice to overcome the state procedural bar,
and [the court] must reject his . . . claim if he fails to show either requirement.”).
Petitioner neither invokes the fundamental miscarriage of justice exception nor
presents any new evidence that he is actually innocent. Cf. Rushing v. Havernek, 2022 WL
17333067, at *2 (10th Cir. Nov. 30, 2022) (“[A]lthough [the petitioner] invokes the
miscarriage-of-justice 	exception, 	he 	identifies 	nothing 	suggesting, 	as 	the 	exception
requires, ‘that he is actually innocent of the crime of conviction.’”) (quoting Pacheco v. El
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Habti, 48 F.4th 1179, 1186 (10th Cir. 2022)). And to the extent that Petitioner’s claims to
possess exculpatory evidence in Ground Four may be construed as a fundamental fairness
argument here, analysis of that section proves that such claims are without merit. See infra
Section V.D.3. “Because [Petitioner] cannot establish his actual innocence of . . . murder,
our analysis ends.” Taylor v. Powell, 7 F.4th 920, 939–40 (10th Cir. 2021).
Petitioner has not established cause or a fundamental miscarriage of justice for any
of the claims in Grounds III and V. The court should therefore deny habeas corpus relief
on these claims.
D. 	Ground Four: Petitioner Is Not Entitled to Relief on His Claim that
Appellate Counsel Failed to Raise Actual Innocence Because the OCCA
Reasonably Held Appellate Counsel Was Effective.
Petitioner claims that his appellate counsel provided ineffective assistance because
she “omitt[ed] or fail[ed] to raise [Petitioner’s] actual factual innocence.” (Doc. 1, at 13).
The undersigned recommends the Court deny habeas relief on this ground.
1. 	The Clearly Established Law
To succeed on a claim of ineffective assistance of counsel, a 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
performance is deficient when it falls “outside the wide range of professionally competent
assistance.” Id. at 690. 	“Judicial scrutiny of counsel’s performance must be highly
deferential. . . . [A] court must indulge a strong presumption that counsel’s conduct falls
within the wide range of reasonable professional assistance; that is, the defendant must
overcome the presumption that, under the circumstances, the challenged action might be
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considered sound trial strategy.” 	Id. at 689 (internal quotation marks omitted). 	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:
In an August 2, 2024[,] order, the Honorable Susan Stallings, District Judge,
. . . denied each of Petitioner’s ineffective assistance of counsel claims on its
merits. Judge Stallings considered each argument and relied upon Strickland
v. Washington to determine that appellate counsel’s performance was not
objectively 	unreasonable 	and 	that 	Petitioner 	failed 	to 	demonstrate 	a
reasonable probability that due to the alleged errors the outcome of the appeal
would have been different. See Strickland v. Washington, 466 U.S. 668
(1984). We agree.
. . .
Claims of ineffective assistance of appellate counsel may be raised for the
first time on post-conviction, as it is usually a petitioner’s first opportunity
to allege and argue the issue. As set forth in Logan, 2013 OK CR 2, ¶ 5, 293
P.3d at 973, post-conviction claims of ineffective assistance of appellate
counsel are reviewed under the standard for ineffective assistance of counsel
set forth in Strickland. See Smith v. Robbins, 528 U.S. 259, 289 (2000)
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(“[Petitioner] must satisfy both prongs of the Strickland test in order to
prevail on his claim of ineffective assistance of appellate counsel.”). Under
Strickland, a petitioner must show both (1) deficient performance, by
demonstrating that his counsel’s conduct was objectively unreasonable, and
(2) resulting prejudice, by demonstrating a reasonable probability that, but
for counsel’s unprofessional error, the result of the proceeding would have
been different. Strickland, 466 U.S. at 687-89. And we recognize that “[a]
court considering a claim of ineffective assistance of counsel must apply a
‘strong presumption’ that counsel’s representation was within the ‘wide
range’ of reasonable professional assistance.” Harrington v. Richter, 562
U.S. 86, 104 (2011) (quoting Strickland, 466 U.S. at 689).
We find no merit in the claim that Petitioner was denied effective assistance
of appellate counsel as alleged in his post-conviction application. . . .
In his brief, Petitioner alleges Judge Stallings erred in denying his claim that
he was denied effective assistance of appellate counsel. Petitioner makes
several different claims within the context of his argument that his appellate
counsel was ineffective. He argues his appellate counsel inadequately argued
otherwise 	winning 	claims 	and 	that 	his 	appellate 	counsel 	overlooked
meritorious claims. There is nothing in this case that indicates appellate
counsel was ineffective in the claims actually raised in his direct appeal or
that had appellate counsel argued any of these issues differently on appeal it
would have changed the result of his appeal. A review of the record makes it
clear these claims are unsupported. Petitioner does not establish any deficient
performance by appellate counsel in these claims. Strickland, 466 U.S. at
687-89.
After examining Petitioner’s claims of ineffective assistance of counsel,
pursuant to the Logan and Strickland standards stated above, Petitioner has
failed to establish that appellate counsel’s performance was deficient or
objectively unreasonable and Petitioner has failed to establish any resulting
prejudice. As a result, Petitioner’s ineffective assistance of appellate counsel
claims are without merit.
(Doc. 18, at Ex. 23, at 2–6).
3. 	The OCCA Reasonably applied Strickland.
Petitioner argues that he is actually innocent of murder, and that the following facts
would prove his innocence if they had been raised on appeal:
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• 	Petitioner was in Edmond when the crime occurred. 	(Doc. 16, at 69).
According to him, several alibi witnesses would have testified at trial as to
this fact, (id. at 70), and these witnesses presently “intend to send th[e] court
their 	affidavits” 	proving 	Petitioner’s 	innocence.12 	(Doc. 	25, 	at 	58).
Furthermore, “A video recording would show that Petitioner w[as] at a Wal[-
Mart]” while in Edmond. (Doc. 16, at 69).
• 	Mr. Hartfield committed perjury when he testified against Petitioner in a
manner inconsistent with his original story. (Id. at 70).
• 	Mr. Hartfield had a knife in his possession when he was arrested, and a
bloody sweatshirt was found in his home with the victim’s DNA on it. (Id. at
71).13 In his Reply, he also highlights that the victim’s television was found
in Mr. Hartfield’s home as well as “a blood stained t[-]shirt.” 	(Doc. 25, at
60).
Ultimately, Petitioner fails to prove that his appellate counsel was ineffective, much less
that the OCCA unreasonably applied Strickland in their own analysis.
To begin, the underlying factual basis of this claim appears to be unexhausted. In
his post-conviction application, 	Petitioner 	only included a topic 	sentence outlining
appellate counsel’s supposed ineffectiveness for failure to raise actual innocence. 	(Doc.
18, at Ex. 9, at 3). He then included an explanation of this claim in his supplemental post-
conviction brief, the filing of which was denied by the OCCA. (See Doc. 18, at Ex. 15, at
6–10; id. at Ex. 23, at 6). The denied supplemental brief contained the actual arguments
that the above three pieces of evidence prove Petitioner’s innocence. (Id. at Ex. 15, at 7–
8). 	Therefore, the OCCA did not see this “‘substance’ of the [ineffective assistance of
12 The undersigned has not received any of these affidavits.
13 Petitioner simultaneously argues that “[a]ppellate counsel failed to search the record to
raise this” evidence and that the prosecution “failed to disclose [this] exculpatory evidence
to the defense before trial.” (Id.)
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appellate counsel claim] in state court,” rendering it unexhausted. See Bland, 459 F.3d at
1011 (quoting Picard v. Connor, 404 U.S. 270, 278 (1971)). 	As these facts provide the
entirety of the underlying rationale for Petitioner’s present claim, the entire claim is likely
unexhausted, too.
That said, in order to determine whether this claim is anticipatorily barred and that
no exception applies, the undersigned would engage in a review similar to one on the
merits: as analyzed above, one exception to procedural default is “[t]he fundamental
miscarriage of justice exception,” which analyzes whether “a constitutional violation has
probably resulted in the conviction of one who is actually innocent.” Magar, 490 F.3d at
820 (internal quotation marks and alteration omitted). Furthermore, the OCCA appears to
have reached this claim on the merits, non-exhaustion as to the underlying factors
notwithstanding. (See Doc. 18, at Ex. 23, at 2–6). Given the underlying procedural morass
of this ground, and the intent to ensure Petitioner’s claims are adequately addressed, the
undersigned will additionally address this claim on the merits. 	See Moore v. Schoeman,
288 F.3d 1231, 1232 (10th Cir. 2002) (courts faced with unexhausted claims “may deny
the petition on the merits, notwithstanding the petitioner’s failure to exhaust his state court
remedies.”)
The OCCA reasonably found that the outcome of Petitioner’s appeal would not have
been different had his counsel raised his supposed innocence. In doing so, it appears they
broke 	the 	actual 	innocence 	claim 	into 	the 	“several 	different” 	issues 	of 	counsel
ineffectiveness that made up the actual innocence claim. 	(Doc. 18, at Ex. 23, at 5). 	A
determination of whether counsel was deficient in failing to raise a given issue on appeal
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requires analysis of “the merits of the omitted issue.” Cargle v. Mullin, 317 F.3d 1196, 1202
(10th Cir. 2003) (internal quotation marks omitted). 	An omitted issue that is “plainly
meritorious . . . may directly establish deficient performance;” one that “has merit but is
not so compelling . . . requir[es] an assessment of the issue relative to the rest of the appeal,
[with] deferential consideration . . . given to any professional judgment involved in its
omission;” and one that has no merit “will not constitute deficient performance.” 	Id. 	In
any case, while “it is possible to bring an ineffective assistance claim based on counsel’s
failure 	to 	raise 	a 	particular 	issue, 	it 	is 	difficult 	to 	demonstrate 	that 	counsel 	was
incompetent.” Miller v. Mullin, 354 F.3d 1288, 1298 (10th Cir. 2004) (internal quotations
marks omitted).
First is Petitioner’s alibi and related purported evidence that he was in Edmond
during the murder. While Petitioner claims to have several alibi witnesses and that he could
acquire video surveillance footage proving his alibi, he fails to provide any proof that this
evidence even exists. Indeed, both in his rejected supplemental post-conviction application
and in his habeas brief, Petitioner states that he attached five affidavits of alibi witnesses
explaining he was in Midwest City during the murder. None of the affidavits were attached
in either filing. (Doc. 16, at 69; Doc. 18, at Ex. 15, at 7). “[C]onclusory allegations [of a
failure to contact alibi witnesses] do not suffice to state a constitutional claim.” 	United
States v. Garcia, 825 F. App’x 571, 575 (10th Cir. 2020). Petitioner’s statement that video
surveillance footage would place him in Midwest City fails for the same reason. 	See
Cummings v. Sirmons, 506 F.3d 1211, 1229 (10th Cir. 2007) (rejecting Strickland habeas
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claim where petitioner’s “allegations amounted to little more than speculation”). 	Thus,
there was no merit to this claim.
Second is the alleged perjury committed by Mr. Hartfield during trial. This issue is
meritless, especially considering trial counsel cross-examined Mr. Hartfield’s testimony
with the same goal of casting doubt on his credibility. (Tr. Vol. II, at 112–114) (explaining
that Mr. Hartfield originally told police that he was not at the victim’s home during the
murder). “[C]hallenges to [Mr. Hartfield’s testimony] go to his credibility and are properly
left to the jury to determine what weight, if any, to give to his testimony. [Trial c]ounsel’s
cross-examination of [Mr. Hartfield] sufficiently challenged his credibility on each of these
issues. [Petitioner] cannot establish deficient performance under Strickland.” Miller, 354
F.3d at 1298 (citation modified). 	In the event that Petitioner instead claims to have
evidence that Mr. Hartfield committed perjury, this is once again a “conclusory allegation”
with no proof provided. 	Garcia, 825 F. App’x at 575.
Last, the physical evidence associated with Mr. Hartfield either when he was
arrested or in his home fail to prove Petitioner’s innocence and a discussion of them on
appeal would have been meritless. 	All of this purported exculpatory evidence was
introduced at trial. 	(See Tr. Vol. II, at 114) (eliciting on cross-examination that Mr.
Hartfield had a knife on his person when arrested); (id. at 26–27) (explaining in opening
arguments that Mr. Hartfield had a bloody t-shirt and sweatshirt in his home when he was
arrested); (id. at 88–89) (eliciting on direct-examination that Mr. Hartfield took a television
from the victim’s home after the murder). 	Because this evidence was raised at trial,
reintroduction on appeal would have been meritless.
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Because Petitioner has not shown sufficient prejudice to advance to the second
prong of the Strickland analysis, it is unnecessary “to address both components of the
[ineffective assistance of counsel] inquiry . . . .” 	Strickland, 466 U.S. at 697. The court
should deny relief on this ground.
E. 	Ground Six: Petitioner Is Not Entitled to Relief on His Cumulative Error
Claim Because the OCCA Reasonably Held No Errors Existed to
Accumulate.
Petitioner claims he was prejudiced by the cumulative effect of all the individually
“harmless” errors present at trial and sentencing. The undersigned recommends the Court
deny habeas relief on this ground.
1. 	The Tenth Circuit’s Cumulative Error Caselaw
“[W]hen a habeas petitioner raises a cumulative error argument under due process
principles the argument is reviewable because ‘Supreme Court authority clearly establishes
the right to a fair trial and due process.’” Hanson, 797 F.3d at 852 n.16 (quoting Darks v.
Mullin, 327 F.3d 1001, 1017 (10th Cir. 2003)). 	“In the federal habeas context, a
cumulative-error analysis aggregates all constitutional 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.” 	Cuesta-Rodriguez v. Carpenter, 916
F.3d 885, 915 (10th Cir. 2019) (quoting Cole v. Trammell, 755 F.3d 1142, 1177 (10th Cir.
2014)). “The cumulative-error analysis applies where there are two or more actual errors.”
Smith v. Duckworth, 824 F.3d 1233, 1255 (10th Cir. 2016) (quoting United States v.
Franklin–El, 555 F.3d 1115, 1128 (10th Cir. 2009)). This Court also considers the impact
of any constitutional claims that “have been individually denied for insufficient prejudice.”
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Cargle v. Mullin, 317 F.3d 1196, 1207 (10th Cir. 2003); see also Grant, 886 F.3d at 954–
55 (“[I]n resolving under the prejudice prong of Strickland [petitioner’s] ineffective-
assistance claims based on counsel’s alleged failure[s] . . . we have effectively assumed
that counsel’s performance was constitutionally deficient. 	And thus, we are obliged to
assess these . . . assumed errors in a cumulative-error analysis.”).
2. 	The OCCA’s Ruling
The OCCA rejected Petitioner’s claim:
In Proposition III, Appellant claims that cumulative error deprived him of a
fair trial. “The cumulative error doctrine applies when several errors occurred
at the trial court level, but none alone warrants reversal.” Tafolla v. State,
2019 OK CR 15, ¶ 45, 446 P.3d 1248, 1263. Having found no errors, relief
is not warranted. Fuston v. State, 2020 OK CR 4, ¶ 126, 470 P.3d 306, 333.
Proposition III is denied.
(Doc. 18, at Ex. 1, at 6.)
3. 	The OCCA Reasonably Applied Cumulative Error Caselaw.14
At the outset, Petitioner’s cumulative error argument suffers from a series of
procedural barriers that greatly limits the scope of federal review.
First, all three of the present claims Petitioner raised outside of his direct appeal—
Grounds III, IV, and V—are excluded from cumulative error review. 	The exhaustion
14 Petitioner argues that Respondent was “barred from raising” any response to this ground
because they failed to “federalize” it. 	(Doc. 25, at 71). 	According to Petitioner,
Respondent’s decision to not rely on federal law in their original appeal to the OCCA
prevents them from responding here to the same claims in federal court. 	(Id.) 	But
Petitioner misapplies the law. While it is true that a petitioner must “fairly present[]” their
federal claims “to the state courts,” there is no parallel requirement that a respondent
present their oppositions using federal law to the state courts. Picard v. Connor, 404 U.S.
270, 275 (1971).
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requirement commands that all claims were “fairly presented” in state court. Williams, 782
F.3d at 1210 (internal quotations omitted). And “[f]air presentation, in turn requires that
the petitioner raise in state court the substance of his federal claims[,] . . . includ[ing] not
only the constitutional guarantee at issue, but also the underlying facts that entitle a
petitioner to relief.” 	Id. (internal quotations and citations omitted). 	When the facts
underlying a constitutional claim have changed, the otherwise exhausted claim is no longer
fully exhausted. 	See id.; Draper v. Allbaugh, 2017 WL 2590301, at *2 (May 22, 2017)
(“A petitioner is not considered to have fairly presented his argument to state court when
the federal petition is based on a significantly different factual basis, even where the
argument presented in federal court shares the same constitutional protection.”). 	Here,
Petitioner’s cumulative error argument is exhausted with respect to his direct appeal claims
only because he did not invoke cumulative error on post-conviction review. (See generally
Doc. 18, at Exs. 1, 23). 	“[O]ur exhaustion determination is limited to the [direct appeal
claims] alone.” 	Williams, 782 F.3d at 1211; see also Cuesta-Rodriguez, 916 F.3d at 916
(“[I]n a cumulative error analysis, a court . . . may not consider claims that are procedurally
defaulted.”) (internal quotations omitted). These portions of the cumulative error review
are also anticipatorily barred for the same reasons as outlined in Section V.C.2, supra, and
Petitioner provides no cause and prejudice nor fundamental miscarriage of justice that
would result if they were not reviewed.
Next, Petitioner’s sufficiency-of-the-evidence claim is barred from cumulative error
review. 	Cumulative error review “aggregates all constitutional errors found to be
harmless.” 	Cuesta-Rodriguez, 916 F.3d at 915. 	But there are no harmless errors in a
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sufficiency-of-the-evidence habeas claim: “in a challenge to a state criminal conviction
brought under 28 U. S. C. § 2254 . . . the applicant is entitled to habeas corpus relief if it is
found that upon the record evidence adduced at the trial no rational trier of fact could have
found proof of guilt beyond a reasonable doubt.” 	Jackson, 443 U.S. at 324 (emphasis
added). So, this ground, too, is barred from cumulative error review. See Meek v. Martin,
74 F.4th at 1277 (ignoring unsuccessful sufficiency-of-the-evidence argument during
cumulative error review).
With Grounds 2–5 unavailable for cumulative error review, all that remains is
Petitioner’s bolstering argument. 	There were no errors identified in Ground One. 	The
undersigned “cannot engage in a cumulative error analysis absent at least two errors.”
Hanson, 797 F.3d at 853.
VI. 	Recommended Ruling and Notice of Right to Object
For the reasons discussed above, the court recommends that the Petition for habeas
relief (Doc. 1) be DENIED on all grounds.
The court advises the parties of their right to object to this Report and
Recommendation by December 31, 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).
This Report and Recommendation disposes of all issues and terminates the referral
to the undersigned Magistrate Judge in the captioned matter.
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ENTERED this 10th day of December 2025.
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