Franklin v. Oklahoma State of et al

UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
CORTEZ L. FRANKLIN, 	)
)
Petitioner, 	)
)
v. 	) 	Case No. CIV-12-865-F
)
ROBERT PATTON, Director, 	)
)
Respondent.1 )
REPORT AND RECOMMENDATION
Petitioner Cortez L. Franklin, a state prisoner appearing pro se, has filed a Petition
Under 28 U.S.C. § 2254 for Writ of Habeas Corpus and Brief in Support, challenging the
constitutionality of his criminal conviction by the State of Oklahoma. See Doc. Nos. 1, 3.
Respondent ODOC Director Robert Patton has filed a Response to Petition for Writ of
Habeas Corpus (Doc. No. 13). United States District Judge Stephen P. Friot has referred
this action to the undersigned Magistrate Judge for initial proceedings consistent with 28
U.S.C. § 636. 	As outlined herein, the undersigned recommends that the Petition be
DENIED.
1 In his Petition, Petitioner named the State of Oklahoma as Respondent. 	See Pet. (Doc.
No. 1). 	As previously referred to by the Court (Doc. No. 11) and as noted in the
Response to the Petition (Doc. No. 13, at 1 n.1), the proper Respondent in this proceeding
is the Director of the Oklahoma Department of Corrections (“ODOC”). 	This position
currently is held by Robert Patton. Accordingly, Director Patton is hereby substituted as
the sole Respondent in this proceeding. 	See Director’s Office, Okla. Dep’t of Corr.,
http://www.ok.gov/doc/About_Us/Director's_Office/ (last visited Nov. 14, 2014); 28
U.S.C. § 2243; R. 1(a), 2(a), 12 of Rules Governing Section 2254 Cases in the United
States District Courts; Fed. R. Civ. 25(d), 81(a)(4).
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I. 	Relevant Case History and Issues Presented
On 	the 	morning 	of 	August 	9, 	2004, 	fifteen-year-old 	Marcus 	Ivy 	was 	seen
sweeping the porch of the apartment at the Will Rogers Courts public housing complex in
southwest Oklahoma City, where he lived with his brother. 	Pet’r’s Br. (Doc. No. 3) at
11;2 Vol. IV Trial Tr. 231, 234-35; Vol. V Trial Tr. 39, 46, 79, 80 (State v. Franklin, No.
CF-2004-5898 (Okla. Cnty., Okla. Dist. Ct. Dec. 8-16, 2008)) (Doc. No. 15). Marcus Ivy
was shot once in the stomach by a person using a handgun and, 23 days later, on
September 1, 2008, died of multiple organ failure caused by the gunshot wound. Pet’r’s
Br. at 11; Vol. V Trial Tr. 12, 21, 22-25; Original Record (“OR”) 5 (Doc. No. 15).
During the authorities’ investigation, at least one eyewitness placed Petitioner at or
near the murder scene, and Petitioner ultimately was charged by information with the
felony crime of Murder in the First Degree. See OR 5-11. On December 16, 2008, after
a jury trial in the District Court of Oklahoma County, Petitioner was convicted of one
count of Murder in the First Degree with Malice Aforethought in violation of Title 21,
Section 701.7 of the Oklahoma Statutes. 	Vol. VII Trial Tr. 108; OR 1643, 1706. 	On
January 23, 2009, Petitioner was sentenced to life imprisonment without the possibility of
parole, 	in 	accordance 	with 	the 	jury’s 	recommendation 	following 	a 	second-stage
sentencing proceeding in which the State had sought the death penalty. OR 64-65, 68-69,
1644, 1668, 1706; Sent’g Tr. 5 (Jan. 23, 2009) (Doc. No. 15).
2 References to documents filed electronically in this Court use the page numbers
assigned by the Court’s electronic filing system, if applicable.
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Petitioner 	appealed 	his 	conviction 	and 	sentence 	to 	the 	Oklahoma 	Court 	of
Criminal Appeals (“OCCA”). 	OR 1721; see Franklin v. State, No. F-2009-96 (Okla.
Crim. App. filed Feb. 3, 2009).3 On Aug. 30, 2010, the OCCA affirmed Petitioner’s
conviction and sentence. OCCA Op., No. F-2009-96 (Doc. No. 13-3).
Petitioner then filed this federal habeas action and now raises seven grounds for
relief: (1) the testimony of an eyewitness identifying Petitioner as the shooter was
unlawfully coerced, resulting in a deprivation of due process; (2) ineffective assistance of
trial counsel for failing to raise this first ground; (3) the evidence presented at trial was
insufficient to support Petitioner’s conviction; (4) denial of a fair trial based upon the trial
court’s refusal to grant a mistrial; (5) denial of a fair trial based upon the trial court’s
failure to give an eyewitness-identification instruction to the jury; (6) the State’s
improper 	use 	of 	peremptory 	challenges 	denied 	Petitioner 	a 	jury 	comporting 	with
constitutional standards; and (7) cumulative error based on Grounds One through Six.
See Pet. at 4-5; Pet’r’s Br. at 17-38; Pet’r’s Mot. to Supplement (Doc. No. 16) at 1-4;
Doc. Nos. 16-1 to 16-5. Respondent concedes that Petitioner’s claims are timely and that
Petitioner exhausted his state-court remedies with respect to the grounds raised in the
Petition and Brief in Support. See Resp’t’s Resp. (Doc. No. 13) at 2.
3 The docket sheets for State v. Franklin, No. CF-2004-5898, District Court of Oklahoma
County (filed Nov. 1, 2004), and Franklin v. State, No. F-2009-96, Oklahoma Court of
Criminal 	Appeals 	(filed 	Feb. 	3, 	2009), 	are 	publicly 	available 	through
http://www.oscn.net.
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II. 	The Standard of Review
The Tenth Circuit recently summarized the standard of review for evaluating state-
court legal determinations that have been challenged in federal court through a 28 U.S.C.
§ 2254 habeas proceeding:
Under the Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA), 	we 	must 	apply 	a 	highly 	deferential 	standard 	in 	§ 	2254
proceedings, one that demands that state-court decisions be given the
benefit of the doubt. If a claim has been “adjudicated on the merits in State
court proceedings,” we may not grant relief under § 2254 unless the state-
court decision “was contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the Supreme Court of the
United States” or “was based on an unreasonable determination of the facts
in light of the evidence presented in the State court proceeding.” 28 U.S.C.
§ 	2254(d)(1), 	(2). 	The 	phrase 	“clearly 	established 	Federal 	law, 	as
determined by the Supreme Court of the United States,” id. § 2254(d)(1),
refers to the holdings, as opposed to the dicta, of the Court’s decisions as of
the time of the relevant state-court decision.
Under the “contrary to” clause of § 2254(d)(1), we may grant relief
only if the state court arrives at a conclusion opposite to that reached by the
Supreme Court on a question of law or if the state court decides a case
differently than the Court has on a set of materially indistinguishable facts.
And under the “unreasonable application” clause, we may grant relief only
if the state court identifies the correct governing legal principle from the
Court’s decisions but unreasonably applies that principle to the facts of the
prisoner’s case. 	An unreasonable application of federal law is different
from an incorrect application of federal law. Indeed, a federal habeas court
may 	not 	issue 	the 	writ 	simply 	because 	that 	court 	concludes 	in 	its
independent judgment that the relevant state-court decision applied clearly
established federal law erroneously or incorrectly.
Dodd v. Trammell, 753 F.3d 971, 982 (10th Cir. 2013) (alterations, citations, and internal
quotation marks omitted).
Pursuant to AEDPA, factual findings made by a state trial or appellate court are
presumptively correct and may be rebutted only by “clear and convincing evidence.” 28
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U.S.C. § 2254(e)(1). 	The standard for relief prescribed by AEDPA is high: “As a
condition for obtaining habeas corpus from a federal court, 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.” 	Harrington v. Richter, 131 S. Ct.
770, 786-87 (2011).
III. 	Analysis
A. Ground One: Coercion of Testimony of Pam Watley
Pamela Watley lived in the Will Rogers Courts near the apartment where Marcus
Ivy was staying and was shot on August 9, 2004. 	On that date, Ms. Watley was at her
apartment with her mother and two daughters. Pet’r’s Br. at 12-13; Vol. IV Trial Tr. 233-
34, 236; Vol. V Trial Tr. 39. 	When first interviewed by police following the shooting,
Ms. Watley denied seeing anything related to Marcus Ivy’s murder. 	Pet’r’s Br. at 12;
Vol. V Trial Tr. 50, 111-13. 	Oklahoma City Police Department (“OCPD”) detectives
soon learned, however, that Ms. Watley had told acquaintances that Petitioner was the
shooter. OR 1, 8; Vol. V Trial Tr. 90-91, 123-24, 126. On September 2, 2004, the police
again questioned Ms. Watley; Ms. Watley again denied seeing the shooting. OR 1, 8; V
Trial Tr. 123, 127, 128-30, 177.
On October 25, 2004, in an effort to obtain Ms. Watley’s truthful testimony, an
OCPD detective submitted a Subpoena Request Form to the Grand Jury Investigations
Division of the Office of Attorney General of the State of Oklahoma. 	Doc. No. 13-1, at
99, 101. 	On October 26, 2004, Multicounty Grand Jury Subpoena No. MCGJ-03-1177
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(“the Subpoena”) was issued by the Attorney’s General’s Office directing Pamela Watley
to appear and testify as a witness before the multicounty grand jury on November 15,
2004. 	Doc. No. 13-1, at 58. 	Ms. Watley never appeared before a grand jury, however.
Instead, when served with the Subpoena on October 27, 2004, Ms. Watley agreed to
further questioning by the OCPD and identified Petitioner as the gunman. 	OR 8; Doc.
No. 13-1, at 60; Vol. V Trial Tr. 92-94, 130-31, 132. On November 1, 2004, the OCPD
Detective who had requested the issuance of the Subpoena drafted a report, addressed to
the multicounty grand jury, in which the detective stated he had obtained a “truthful
eyewitness account” from Ms. Watley and had learned that Ms. Watley “saw Franklin
shoot the victim.” Doc. No. 13-1, at 60. On that same date, criminal charges were filed
against Petitioner, by information rather than by grand jury indictment, for the murder of
Marcus Ivy. OR 5. See generally Okla. Stat. tit. 22, §§ 301, 302.
Petitioner’s criminal trial was continued on multiple occasions until commencing
in December 2008. 	During the time prior to trial, Ms. Watley failed to appear to testify
on multiple occasions and was arrested for not meeting the terms of conditions imposed
while she was released on bond. 	Vol. IV Trial Tr. 227-28, 229-30; Vol. V Trial Tr. 94-
95, 134-35, 150-51, 153, 154-55; OR 1440. 	At the time of trial, Ms. Watley was being
held in custody and testified for the State pursuant to a material-witness warrant that had
been issued on November 14, 2008. OR 1440-41, 1508-09; Vol. IV Trial Tr. 227; Vol. V
Trial Tr. 103, 104. 	At trial, Ms. Watley identified Petitioner in person and testified that
she had seen Petitioner shoot Marcus Ivy in the stomach. Vol. IV Trial Tr. 232-33, 238;
Vol. V Trial Tr. 40, 445-46, 47-48, 79-84.
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On direct appeal, Petitioner attacked Ms. Watley’s identification of Petitioner as
coerced through the use of an “unauthorized and unlawful” subpoena and argued that the
use of Ms. Watley’s testimony violated Petitioner’s due process right to a fair trial.
Pet’r’s OCCA Br. (Doc. No. 13-1) at 17-21. The OCCA denied relief on the merits:
Appellant claims that by using a multi-county grand jury subpoena, law
enforcement officials used “unauthorized means to do indirectly what they
could not do directly,” that is, “to compel Watley to tell the truth.” 	We
disagree.
Various constitutional and statutory provisions illustrate an obvious
and fundamental principle: that a person has no right to withhold truthful
information about a crime committed within our State, provided the person
is not compelled to incriminate himself in the process. . . . .
Appellant challenges the validity of the subpoena, and the very
authority of [a] multi-county grand jury to command information from
Watley, on various technical grounds. 	We need not examine these claims
in detail, for several reasons. Watley never appeared before the grand jury.
The evidence naming Appellant as the gunman came from Watley’s live
testimony at Appellant’s trial – not from any prior proceeding. 	Appellant
claims Watley was pressured into initially cooperating with police; he does
not claim her testimony at trial – over four years later – was false, or even
coerced. 	Watley 	had 	no 	legal 	right 	to 	withhold 	information 	about
Appellant’s commission of a crime, and Appellant hardly has any right to
make the same complaint in her stead. 	Short of claiming that Watley
committed perjury under duress, Appellant lacks standing to complain
about how and why she initially decided to cooperate with the police.
The chronology of Watley’s contacts with authorities, the changes in
her story, and the issuance of the subpoena were made abundantly clear to
the jury, which was free to consider that evidence in assessing Watley’s
credibility. . . . . Proposition[] 1 . . . [is] denied.
OCCA Op. at 4-6 (footnotes and citations omitted) (citing Manson v. Brathwaite, 432
U.S. 98 (1977)).
In support of his Petition, Petitioner has resubmitted his OCCA appellate brief and
has raised the same seven arguments as on direct appeal. See Pet. at 4-5; Pet’r’s Br. at 2-
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38; Pet’r’s OCCA Br. at 2-38. 	Petitioner’s Ground One attacks the procurement and
issuance of the subpoena on several bases. 	Citing Isaacs v. District Court of Oklahoma
County, 818 P.2d 1247 (Okla. Crim. App. 1991), Petitioner argues that “the prosecution
cannot obtain an investigative subpoena prior to charges being filed.” 	Pet’r’s Br. at 10.
Petitioner also attacks the Subpoena as an “unauthorized use” of the multicounty grand
jury’s subpoena power and asserts that the multicounty grand jury that was in session on
October 26, 2004, lacked jurisdiction to issue the Subpoena. 	Pet’r’s Br. at 10-11 (citing
the Multicounty Grand Jury Act, Okla. Stat. tit. 22, §§ 350-363).
The subject matter jurisdiction of the multicounty grand jury extends by statute to
the offense of murder. 	Okla. Stat. tit. 22, § 353(B)(1). 	Petitioner’s cited authorities do
not hold that a subpoena is unlawful because it was issued at the request of a police
detective.4 Further, Petitioner does not attack the facial validity of the Subpoena. 	See
Pet’r’s Br. at 17-21; Doc. No. 13-1, at 58. Petitioner’s cited authorities and documents do
not establish that the applicable multicounty grand jury did not review this criminal
matter in its confidential proceedings.5 Petitioner cites no authority for his proposition
4 In Isaacs, the OCCA held that the issuance of a subpoena by a district attorney for
investigative purposes in connection with a preliminary hearing on a criminal case,
pursuant to Title 22, Section 258 of the Oklahoma Statutes, could not be done prior to the
commencement of the criminal case. 	See Isaacs, 818 P.2d at 1249. 	The court in Isaacs
did not address subpoenas to testify before a multicounty grand jury, issued on the
authority of the grand jury, which are governed by article 2, section 18 of the Oklahoma
constitution and Title 22, Sections 350 to 363 of the Oklahoma Statutes.
5 See generally In re Multicounty Grand Jury, State of Okla., No. SCAD-03-46 (Okla.
Feb. 23, 2005) (Final Report of Ninth Multicounty Grand Jury empaneled August 19,
2003, 	stating 	that 	1623 	subpoenas 	were 	issued 	during 	its 	session), 	available 	at
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that “[t]here was no grand jury investigation of this case.” Pet’r’s Br. at 20. Elsewhere in
his brief, Petitioner concedes a lack of support for this proposition by stating “there is no
indication” that the multicounty grand jury reviewed the subpoenaed information and that
“the paperwork indicates” that the Subpoena was issued based only upon a detective’s
request. Id. at 20 (emphasis added).
Even assuming the provenance of the Subpoena was not in accordance with
Oklahoma law, however, such a violation of state law does not, by itself, amount to a
deprivation of due process to Petitioner in his criminal proceedings. In a habeas action, 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). “[I]t is not
the province of a federal habeas court to reexamine state-court determinations on state-
law questions.” Id. at 67-68. “Federal habeas corpus relief does not lie for errors of state
law” such as the alleged infirmities cited by Petitioner. 	See id. at 67 (internal quotation
marks omitted).
Rather, the pertinent question is whether admission of Ms. Watley’s testimony
violated Petitioner’s due process rights under the Fourteenth Amendment. 	To implicate
the Due Process Clause, Petitioner must demonstrate that Ms. Watley’s eyewitness
identification of Petitioner was “procured under unnecessarily suggestive circumstances
arranged by law enforcement.” See Perry v. New Hampshire, 132 S. Ct. 716, 730 (2012);
Manson v. Brathwaite, 432 U.S. 98, 112-16 (1977); Neil v. Biggers, 409 U.S. 188, 198
https://www.oag.ok.gov/oagweb.nsf/0/edafd737958b02df862572b400738e78/$FILE/MC
GJ%20Final%20Report%2011-28-06.pdf.
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(1972). 	The Supreme Court has recognized that a “due process check” is applied to the
admission 	of 	eyewitness 	identification 	“when 	the 	police 	have 	arranged 	suggestive
circumstances leading the witness to identify a particular person as the perpetrator of a
crime.” 	Perry, 132 S. Ct. at 720. 	Relying on its prior decisions, the Court laid out the
applicable framework for when such a “check” is required:
Synthesizing previous decisions, we set forth in Neil v. Biggers, and
reiterated in Manson v. Brathwaite, the approach appropriately used to
determine whether the Due Process Clause requires suppression of an
eyewitness 	identification 	tainted 	by 	police 	arrangement. 	The 	Court
emphasized, 	first, 	that 	due 	process 	concerns 	arise 	only 	when 	law
enforcement officers use an identification procedure that is both suggestive
and unnecessary. 	Even when the police use such a procedure, the Court
next said, suppression of the resulting identification is not the inevitable
consequence.
A rule requiring automatic exclusion, the Court reasoned, would “go
too far,” for it would “keep evidence from the jury that is reliable and
relevant,” 	and 	“may 	result, 	on 	occasion, 	in 	the 	guilty 	going 	free.”
Brathwaite, 432 U.S., at 112; see id., at 113 (when an “identification is
reliable 	despite 	an 	unnecessarily 	suggestive 	police 	identification
procedure,” automatic exclusion “is a Draconian sanction,” one “that may
frustrate rather than promote justice”).
Instead of mandating a per se exclusionary rule, the Court held that
the Due Process Clause requires courts to assess, on a case-by-case basis,
whether 	improper 	police 	conduct 	created 	a 	“substantial 	likelihood 	of
misidentification.” 	Biggers, 	409 	U.S., 	at 	201. 	“Reliability 	of 	the
eyewitness identification is the linchpin” of that evaluation, the Court stated
in Brathwaite. 	Where the “indicators of a witness’[s] ability to make an
accurate identification” are “outweighed by the corrupting effect” of law
enforcement 	suggestion, 	the 	identification 	should 	be 	suppressed.
Otherwise, the evidence (if admissible in all other respects) should be
submitted to the jury.
Perry, 132 S. Ct. at 724-25 (alterations and citations omitted).
Applying its holdings in Brathwaite and Biggers, the Perry Court rejected the
criminal defendant’s contention that admission of an eyewitness identification made
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under arguably suggestive circumstances should be subject to pretrial reliability screening
even where the police did not arrange those circumstances. 	See id. at 725-30. 	Rather,
“when no improper law enforcement activity is involved, . . . it suffices to test reliability
through the rights and opportunities generally designed for that purpose, notably, the
presence of counsel at postindictment lineups, vigorous cross-examination, protective
rules of evidence, and jury instructions on both the fallibility of eyewitness identification
and the requirement that guilt be proved beyond a reasonable doubt.” Id. at 721; see also
Snow v. Sirmons, 474 F.3d 693, 720 (10th Cir. 2007) (“When a pretrial identification
occurs under impermissibly suggestive circumstances and the in-court identification of
the witness is unreliable, the identification should be excluded.”); Howard v. Warden,
Lebanon Corr. Inst., 519 F. App’x 360, 366 (6th Cir. 2013) (“When determining whether
to suppress an eyewitness identification, a court should not consider the reliability of
eyewitness evidence . . . unless the defendant . . . prov[es] that the police employed an
unduly suggestive identification procedure.”).6
6 Although Respondent cites the 2012 Perry case without elaboration, this Court is
limited under AEDPA to examining federal law that was “clearly established” on August
30, 2010, the date on which Petitioner’s state-court conviction became final through
conclusion of direct review. 	See Resp’t’s Resp. (Doc. No. 13) at 8; 28 U.S.C. §§
2244(d)(1)(A), 2254(d)(1). 	As noted by the Sixth Circuit Court of Appeals, however,
Perry primarily was merely a clarification and “reaffirmation” of the principles outlined
in Biggers (1972) and Brathwaite (1977). 	See Howard, 519 F. App’x at 364, 369-70
(upholding district court’s denial of undue-suggestiveness habeas claim pursuant to Perry
where state-court ruling predated Perry by six years). 	Further, it is the “old law”
summarized and reaffirmed in Perry—i.e., the well-established due-process principles
applicable to eyewitness identification evidence—rather than any “new law”—i.e., the
Court’s refusal to extend Brathwaite to the specific circumstances of Perry, which are
inapposite 	here—that is 	relevant 	to 	the 	instant 	proceeding. 	The 	undersigned 	has
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Even if assumed true, Petitioner’s argument that the underlying issuance of the
Subpoena violated Oklahoma law does not sufficiently support a claim for federal habeas
corpus relief. 	As the OCCA accurately noted, Petitioner takes issue with the procedure
employed to obtain Ms. Watley’s initial identification of Petitioner as the gunman in
2004, rather than with how Ms. Watley came to testify and identify Petitioner as the
gunman at the trial in December 2008. 	See Pet’r’s Br. at 17-21. 	The State did not
attempt to rely upon any pretrial identification of Petitioner or to admit such evidence at
trial, so no “due process check” was required on that preliminary identification. 	See
Perry, 132 S. Ct. at 723 (instructing that the Due Process Clause imposes a constraint
“[o]nly when evidence ‘is so extremely unfair that its admission violates fundamental
conceptions of justice.’” (emphasis added) (quoting Dowling v. United States, 493 U.S.
342, 352 (1990))). 	Nor does Petitioner cite any support for the proposition that an
improperly issued grand jury subpoena, standing alone, renders any further questioning
by police (not before a grand jury) “unnecessarily suggestive” and therefore subject to
possible exclusion on due process grounds. 	Cf. id. at 728 (“The fallibility of eyewitness
evidence does not, without the taint of improper state conduct, warrant a due process rule
considered these underlying and longstanding principles in assessing Petitioner’s claim
and in reviewing the state court’s determination pursuant to AEDPA. See, e.g., Howard,
519 F. App’x at 366-69; Fowler v. Joyner, 753 F.3d 446, 453-58 (4th Cir. 2014)
(applying Perry and the “clearly established constitutional principles” outlined therein to
affirm a denial of habeas relief on in-court-identification claim the state court had
rejected in 2001); see also OCCA Op. at 5 n.3 (citing Brathwaite, 432 U.S. 98); Biggers,
409 U.S. at 198; cf. Snow, 474 F.3d at 720.
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requiring a trial court to screen such evidence for reliability before allowing the jury to
assess its creditworthiness.”).
As far as the evidence that was admitted and considered by the jury, it cannot be
reasonably concluded that Ms. Watley’s trial testimony was the product of police conduct
creating 	“unnecessarily 	suggestive 	circumstances” 	or 	a 	“substantial 	likelihood 	of
misidentification,” 	See Perry, 132 S. Ct. at 726; Biggers, 409 U.S. at 198; cf. Fowler,
753 F.3d at 453-58 (rejecting habeas claim that witness’s in-court identification of
petitioner was the product of impermissibly suggestive police tactics prior to trial).
Although Petitioner broadly states that Ms. Watley’s “testimony” was compelled through
issuance of the Subpoena, Ms. Watley’s trial testimony was four years removed from and
elicited independently of the Subpoena’s directive. Petitioner’s attack does not extend to
the State’s use of a material-witness warrant to procure Ms. Watley’s testimony at trial.
See Pet’r’s Br. at 17-21; OCCA Op. at 4 n.4. Further, defense counsel vigorously cross-
examined Ms. Watley regarding her pretrial identification of Petitioner as the gunman, as
well as Ms. Watley’s version of events and ability to view the shooting on August 9,
2004. 	Vol. V Trial Tr. 106, 109, 112-13, 118-19, 122-24, 127-32, 135-46, 158-63, 165-
67; cf. Perry, 132 S. Ct. at 721 (instructing that when there is no arrangement of
suggestive circumstances by law enforcement, rights and opportunities such as “vigorous
cross-examination” and “protective rules of evidence” suffice to test reliability of
identification evidence). 	The jury was fully informed as to the multiple efforts by
authorities to secure Ms. Watley’s identification of Petitioner prior to and at trial.
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“The due process check for reliability, Brathwaite made plain, comes into play
only after the defendant establishes improper police conduct.” 	Perry, 132 S. Ct. at 726.
In both Brathwaite and Perry, the Supreme Court made clear that “evidence obtained
under unnecessarily suggestive circumstances,” such as when a witness is faced with a
rigged lineup, is excluded on a case-by-case basis as a deterrent to improper police
action. See id.; Brathwaite, 432 U.S. at 112. This deterrence rationale is “inapposite” in
the instant case, where “the police engaged in no improper conduct” with respect to the
in-court testimony. 	See Perry, 132 S. Ct. at 719. 	Absent any showing that there was “a
very substantial likelihood of irreparable misidentification,” Ms. Watley’s identification
was “for the jury to weigh.” 	Brathwaite, 432 U.S. at 116 (internal quotation marks
omitted). “[E]vidence with some element of untrustworthiness is customary grist for the
jury mill.” Id.; cf. Robison v. Ward, 232 F. App’x 785, 788-89 (10th Cir. 2007) (rejecting
habeas claim that eyewitness identification violated due process where witness had not
previously 	known 	the 	defendant 	but 	expressed 	“absolute 	certainty” 	of 	defendant’s
identity over one year later).
Petitioner has not shown, and the record does not reflect, that the in-court
identification evidence actually admitted and considered by the jury in Petitioner’s
criminal 	case 	was 	coerced, 	false, 	or 	the 	result 	of 	unnecessarily 	suggestive 	police
procedure. 	The admission of Ms. Watley’s in-court identification of Petitioner did not
render Petitioner’s trial fundamentally unfair, and the OCCA’s adjudication of this claim
was neither contrary to nor an unreasonable application of clearly established federal law.
Relief should be denied on Ground One.
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B. Ground Two: Ineffective Assistance of Trial Counsel
Petitioner asserts that his trial counsel was ineffective for failing to move to
suppress Ms. Watley’s testimony on the grounds that the testimony was improperly
coerced. 	See Pet’r’s Br. at 21-22 (citing U.S. Const. amends. VI, XIV). 7 The OCCA
rejected this claim on the merits, holding: “Because Watley’s testimony was not illegally
coerced, defense counsel was not deficient for failing to seek its exclusion on those
grounds.” OCCA Op. at 5 (citing Strickland v. Washington, 466 U.S. 668 (1984)).
7 The record and state-court dockets reflect that Petitioner raised additional claims of
ineffective 	assistance 	of 	both 	trial 	and 	appellate 	counsel 	in 	an 	application 	for
postconviction relief and was denied relief by the trial court. 	The OCCA declined to
exercise jurisdiction over Petitioner’s direct appeal of this denial. See Pet. at 2-3; State v.
Franklin, CF-2004-5898 (Okla. Cnty. Dist. Ct. Sept. 16, 2011) (docket entry of order
denying application for postconviction relief); Franklin v. State, PC-2011-976 (Okla.
Crim. App. Nov. 15, 2011) (docket entry of order declining jurisdiction). 	The OCCA’s
disposition may have been based upon the untimeliness of Petitioner’s commencement of
the appeal. 	See Okla. Crim. App. R. 2.1(B) (instructing that the filing of a notice of
intent 	to 	appeal 	in 	the 	trial 	court 	is 	jurisdictional); 	id. 	R. 	5.2(C)(1) 	(notice 	of
postconviction appeal must be filed within 10 days of date that denial of relief is filed);
State v. Franklin, CF-2004-5898 (Okla. Cnty. Dist. Ct. Sept. 28, 2011) (docket entry
showing Petitioner’s notice of postconviction appeal filed 12 days after denial of
application).
Petitioner then filed a second application for postconviction relief, seeking leave to
appeal 	the 	denial 	of 	the 	first 	postconviction 	application 	out 	of 	time; 	this 	second
application was denied by the trial court on February 9, 2012. 	The OCCA affirmed this
denial on direct appeal. 	See State v. Franklin, CF-2004-5898 (Okla. Cnty. Dist. Ct. Feb.
9, 2012) (docket entry denying second application for postconviction relief and not
recommending an appeal out of time); Franklin v. State, PC-2012-192 (Okla. Crim. App.
June 20, 2012) (order affirming denial); Okla. Crim. App. R. 2.1(E) (instructing that a
petitioner wishing to obtain an untimely appeal must file application for postconviction
relief in the trial court). 	Petitioner does not attempt to raise these additional, likely
procedurally barred ineffective assistance of counsel claims as grounds for habeas relief
in this proceeding. See Pet. at 4-5; Pet’r’s Br. at 17-38; Pet’r’s Mot. to Supp. at 1-4.
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Claims of ineffective assistance of counsel in violation of the Sixth Amendment
are analyzed under the familiar, two-part test established by the Supreme Court in
Strickland v. Washington, 466 U.S. 668. 	“First, [Petitioner] must show that counsel’s
performance was deficient.” 	See id. at 687. 	To satisfy this prong, Petitioner must show
that his attorney’s performance “fell below an objective standard of reasonableness,” or,
in other words, that counsel’s performance was not “within the range of competence
demanded of attorneys in criminal cases.” 	See id. at 687-88 (internal quotation marks
omitted). 	There is a strong presumption that counsel acted reasonably, and counsel’s
performance will not be deemed deficient if it “might be considered sound trial strategy.”
Id. at 689 (internal quotation marks omitted).
With respect to the second prong of the analysis, Petitioner must show that but for
counsel’s unprofessional errors, there is a reasonable probability that the result of the
proceeding would have been different. 	See id. at 694. 	“A reasonable probability is a
probability sufficient to undermine confidence in the outcome.” 	Id. 	“In making this
determination, a court hearing an ineffectiveness claim must consider the totality of the
evidence before the judge or jury.” Id. at 695.
In assessing prejudice under Strickland, the question is not whether a
court can be certain counsel’s performance had no effect on the outcome or
whether it is possible a reasonable doubt might have been established if
counsel acted differently. Instead, Strickland asks whether it is “reasonably
likely” the result would have been different. 	This does not require a
showing that counsel’s actions more likely than not altered the outcome,
but the difference between Strickland’s prejudice standard and a more-
probable-than-not standard is slight and matters only in the rarest case. The
likelihood of a different result must be substantial, not just conceivable.
Harrington, 131 S. Ct. at 791-92 (citations and internal quotation marks omitted).
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Applying the law as outlined above to the facts of Petitioner’s case, Petitioner was
not prejudiced by his trial counsel’s failure to move for suppression of Ms. Watley’s
testimony, including her in-court identification of Petitioner as the person who shot
Marcus Ivy. 	As outlined above in Part III.A, there is no contention or indication in the
record that Ms. Watley’s trial testimony was the product of unduly suggestive police
conduct, such that suppression of the testimony would have been warranted under
Brathwaite and other applicable authority. 	Petitioner therefore has failed to show that it
is “reasonably likely” a request to suppress Ms. Watley’s in-court identification of
Petitioner would have led to a different result. Therefore, Petitioner cannot show that his
trial counsel’s performance was prejudicial: there is no “substantial” likelihood of a
different result. See Harrington , 131 S. Ct. at 791-92; cf. Jones v. Gibson, 206 F.3d 946,
959 (10th Cir. 2000) (holding that appellate counsel is not ineffective for failing to raise a
meritless claim). Because Petitioner has failed to demonstrate that he was prejudiced by
his trial counsel’s performance, the undersigned need not address whether counsel’s
performance was deficient with regard to his suppression efforts. 	See Strickland, 466
U.S. at 697 (“[T]here is no reason for a court deciding an ineffective assistance claim . . .
to address both components of the inquiry if the defendant makes an insufficient showing
on 	one.”). 	The 	OCCA’s 	rejection 	of 	this 	claim 	was 	neither 	contrary 	to 	nor 	an
unreasonable application of Strickland’s governing standard. 	See id. at 687-95; 28
U.S.C. § 2254(d)(1); OCCA Op. at 5. Relief on this basis should be denied.
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C. Ground Three: Sufficiency of the Evidence
Petitioner claims in Ground Three that the evidence admitted at his trial was
insufficient for a jury to have found, beyond a reasonable doubt, that he committed the
crime of first-degree murder. 	See Pet’r’s Br. at 22-26 (citing U.S. Const. amend. XIV).
In reviewing a habeas challenge based on the sufficiency of the evidence, a federal court
“does not focus on whether the trier of fact made the correct guilt or innocence
determination, but rather whether it made a rational decision to convict or acquit.”
Herrera v. Collins, 506 U.S. 390, 402 (1993). For habeas review, “the relevant question
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). The reviewing court
considers both direct and circumstantial evidence in determining whether evidence is
sufficient to support a conviction. 	Lucero v. Kerby, 133 F.3d 1299, 1312 (10th Cir.
1998). 	In this habeas matter, the Court “may not weigh conflicting evidence []or
consider the credibility of witnesses” but must “accept the jury’s resolution of the
evidence as long as it is within the bounds of reason.” 	See id. (internal quotation marks
omitted).
Here, the sufficiency of the evidence inquiry is based on the substantive elements
of the crime as defined by Oklahoma law. 	See Jackson, 443 U.S. at 309, 324 n.16. 	As
relevant 	to 	this 	case, 	the 	elements 	of 	Murder 	in 	the 	First 	Degree 	with 	Malice
Aforethought are: (1) the death of a human; (2) that was unlawful; (3) caused by the
defendant; and (4) caused with malice aforethought. 	Okla. Unif. Crim. Jury Instruction
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No. 4-61 (2d ed. 1996 & Supps.); Okla. Stat. tit. 21, § 701.7(A); see OR 1638 (Jury
Instruction No. 23). 	The jury was specifically instructed: “No person may be convicted
of Murder in the First Degree with Malice Aforethought unless his conduct caused the
death of the person allegedly killed. A death is caused by the conduct if the conduct is a
substantial factor in bringing about the death and the conduct is dangerous and threatens
or destroys life.” 	OR 1637 (Jury Instruction No. 22); see Okla. Unif. Crim. Jury
Instruction No. 4-60.
Petitioner specifically contends that the evidence does not support the perpetrator
aspect of the third element—i.e., that Petitioner was the person whose conduct caused the
death of Marcus Ivy. 	According to Petitioner, the State did not establish this element
because the conviction was based on the testimony of a single eyewitness, Ms. Watley,
and that Ms. Watley’s testimony is not worthy of belief. Petitioner argues that “no other
evidence links Mr. Franklin to the shooting.” See Pet’r’s Br. at 24-26.
Petitioner raised the same claims of error to support his insufficiency-of-the-
evidence argument on direct appeal as those now raised in this habeas action, and the
OCCA denied relief on the merits, stating:
Appellant claims the evidence presented at trial was insufficient to support
his conviction. He observes that only Pam Watley claimed to have actually
witnessed him committing the crime. 	He notes facts bearing on Watley’s
credibility. 	He points out that there was no physical evidence linking him
to the crime. 	His primary argument is that basing a murder conviction on
the 	word 	of 	a 	single 	eyewitness 	violates 	due 	process 	of 	law. 	But
Appellant’s conviction was not based solely on the testimony of Pam
Watley. 	Rashika Williamson’s testimony corroborated Watley’s account,
as did the admissions Appellant made to Kenneth Williams. 	While there
may have been some discrepancies among the accounts of the various
witnesses, these were explored in great detail at trial. A rational jury could
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have 	dismissed 	these 	discrepancies, 	and 	concluded 	that 	eyewitness
testimony and a confession, related by three witnesses who were personally
acquainted with Appellant, but who had no apparent motive to conspire
together and falsely accuse him, left no reasonable doubt as to the identity
of 	Marcus 	Ivy’s 	killer. 	The 	evidence 	was 	sufficient 	to 	support 	the
conviction.
OCCA Op. at 6 (citing Jackson, 443 U.S. at 319; Easlick v. State, 90 P.3d 556, 559
(Okla. Crim. App. 2004)); see also id. at 1-3 (summarizing evidence presented at trial);
Pet’r’s OCCA Br. at 22-26.
Because the OCCA applied the governing standard of Jackson v. Virginia, this
Court’s task “is limited by AEDPA to inquiring whether the OCCA’s application of
Jackson was unreasonable” or was contrary to the U.S. Supreme Court’s holding in that
case. See Matthews v. Workman, 577 F.3d 1175, 1183 (10th Cir. 2009). The OCCA was
not obligated to determine whether it believed the evidence established Petitioner’s guilt
beyond a reasonable doubt. 	See Jackson, 443 U.S. at 318. Rather, the relevant question
was “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.” Id. at 319. This standard gives full responsibility to the trier of fact to
“fairly” 	“resolve 	conflicts 	in 	the 	testimony, 	to 	weigh 	the 	evidence, 	and 	to 	draw
reasonable inferences from basic facts to ultimate facts.” Id.
As indicated by the OCCA’s Opinion, there was detailed testimony at trial as to
the events of August 9, 2004, at the Will Rogers Courts. Pamela Watley testified that in
August 2004 she had been living in the Will Rogers Courts for nine years and that she
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had known Petitioner for about four years. 	Vol. IV Trial Tr. 231-33.8 Ms. Watley also
knew Marcus Ivy as her neighbor who lived across the courtyard from her with his
brother, Kiki. 	Vol. IV Trial Tr. 233-34. 	On the morning of August 9, 2004, Ms.
Watley’s mother brought Ms. Watley’s two daughters to visit her at the Will Rogers
Courts. 	Vol. IV Trial Tr. 236. Ms. Watley testified that she saw Petitioner in her
apartment complex once or twice a week and that she saw him at the Will Rogers Courts
on that date. 	Vol. IV Trial Tr. 238. 	Petitioner was driving his black Cadillac when Ms.
Watley first saw him. Vol. IV Tr. 238, 245-46. Ms. Watley tried to flag Petitioner down
as he was driving on Pettee Street between noon and 1:00 p.m., but Petitioner did not
stop. 	Instead, Petitioner “said shh” to Ms. Watley and continued driving. 	Vol. V Trial
Tr. 41-43.
When Ms. Watley next saw Petitioner, Petitioner was on foot across from her
apartment. Vol. V Trial Tr. 43-44. Ms. Watley testified Petitioner was on the side of the
building containing Marcus Ivy’s apartment (#1628) beside a bush. Petitioner signed for
Ms. Watley to keep quiet by putting his finger up to his mouth. 	Vol. V Trial Tr. 43-45,
79. Petitioner walked toward Marcus Ivy’s apartment, and Ms. Watley turned to go back
to her apartment. Marcus Ivy, who was sweeping his porch, asked Ms. Watley for some
bleach. Vol. V Trial Tr. 46. Ms. Watley told Marcus Ivy to “hold on” and then asked her
8 Although not explained in her answer, it is clear from the context of the questioning that
Ms. Watley meant that she had known Petitioner for about four years in August 2004, not
that she had known him for four years as of December 2008. 	See Vol. IV Trial Tr. 232-
33. Petitioner does not dispute that Ms. Watley knew him prior to the shooting of Marcus
Ivy. See Pet’r’s Br. at 12-13, 24-25, 31.
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daughter to get some bleach. After Ms. Watley got the bleach and was walking toward
Marcus Ivy’s apartment, she saw Petitioner on the porch with Marcus Ivy. 	Vol. V Trial
Tr. 46-47. 	Marcus Ivy was facing his front door and had his back turned toward Ms.
Watley. 	Vol. V Trial Tr. 46, 79-80. 	Ms. Watley heard Petitioner say, “[N]ow, nigger;
now, nigger, I got you” and heard at least three shots. 	Vol. V Trial Tr. 82-83, 84. 	Ms.
Watley saw Petitioner shoot Marcus Ivy and then saw Marcus Ivy fall to the ground.
Vol. V Trial Tr. 48, 83.
Ms. Watley then saw Petitioner take a gun out of Marcus Ivy’s pocket and run
inside Marcus Ivy’s apartment. 	Vol. V Trial Tr. 85-87. 	Petitioner then came out of the
apartment carrying a VCR and “disappeared.” 	Vol. V Trial Tr. 86, 88. 	Ms. Watley
testified that she ran back inside her apartment and lay on the floor with her mother and
daughters. Then Ms. Watley and her family ran out of the back door of her apartment to a
friend’s house. Vol. V. Trial Tr. 89-90.
Ms. Watley testified that on the date of the shooting, Ms. Watley did not call the
police and also denied having seen anything because she did not want to be a “snitch.”
Vol. V Trial Tr. 49-50. Several days later, Ms. Watley again denied knowing anything to
the police because she was afraid of Petitioner. 	Vol. V Trial Tr. 50-51. 	Ms. Watley
testified that she later told other people that she had seen Petitioner shoot Marcus Ivy.
Vol. V Trial Tr. 90-91, 123-24, 126. Ms. Watley testified that after she was served with
the Subpoena, she initially did not tell police she saw Petitioner shoot Marcus Ivy, but
later Ms. Watley decided it was time to tell police the truth about what she saw and told
police she had seen Petitioner shoot Marcus Ivy. Vol. V Trial Tr. 93; see also OR 8. As
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discussed above, Ms. Watley identified Petitioner in person during the trial. Vol. IV Trial
Tr. 232-33.
Rashika Williamson testified she was living at the Will Rogers Courts apartments
in August 2004. Ms. Williamson was good friends with Marcus Ivy, and she had grown
up with Petitioner, who also was her friend. 	Vol. VI Trial Tr. 13-14. 	Ms. Williamson
identified Petitioner in person at trial. Vol. VI Trial Tr. 14-15. Ms. Williamson testified
that around noon on August 9, 2004, she was in her living room and heard a gunshot.
Ms. Williamson testified that she looked out the window and saw a person she thought
was Petitioner running away; Petitioner had an item in his hand that Ms. Williamson
thought was a gun. 	Vol. VI Trial Tr. 15-16. 	Ms. Williamson testified that she saw
Marcus Ivy running to an apartment holding his stomach and stumbling. 	Vol. VI Trial
Tr. 18-19.
Kenneth Williams testified he had known Petitioner for six or seven years and
they had been friends with each other “off and [o]n”; Mr. Williams identified Petitioner
in person during the trial. 	Vol. VI Trial Tr. 173-74. 	Mr. Williams testified that a few
days after Marcus Ivy was shot, Petitioner called Mr. Williams on the phone and told him
about shooting Marcus Ivy. According to Mr. Williams, Petitioner told Mr. Williams that
when Petitioner was in Will Rogers Courts and saw Marcus Ivy, Petitioner “walked up on
him, grabbed Marcus’ gun and he had a gun and he shot Marcus.” Vol. VI Trial Tr. 175.
Mr. Williams testified that Petitioner told him that Marcus Ivy was sweeping his porch
when Petitioner shot him. 	Vol. VI Trial Tr. 175-76. 	Mr. Williams testified that
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Petitioner told him that Petitioner and Marcus Ivy had some type of confrontation at Will
Rogers Courts about two days before the shooting. Vol. VI Trial Tr. 176-77.
Sergeant Cliff Mueggenborg, an investigator for the crime scene unit of the OCPD
in August 2004, testified that he collected metal fragments from the porch of Apartment
1628, one of which was later identified by OCPD firearms examiner Ronald Jones as a
fragment of a bullet jacket, most probably fired from a .38 Special or .357 Magnum
firearm. Vol. VI Trial Tr. 52, 73, 75-76, 79-81, 153-54, 157-58, 160-63; State’s Exs. 13,
63 (Doc. No. 15). 	Sergeant Mueggenborg testified he observed what appeared to be
bloodstains on the door of Apartment 1628 and that he swabbed those stains to obtain
physical evidence. 	Vol. VI Trial Tr. 55, 77-78, 87-89; State’s Exs. 23, 77. 	Sergeant
Mueggenborg further testified that he had observed and marked what appeared to be a
blood trail from Apartment 1628 to Apartment 1642. 	Vol. VI Trial Tr. 88-93. 	He
collected State’s Exhibits 2A and 2B (shoes with apparent bloodstains), 2C (pants with
apparent bloodstains), and 3 (towel with apparent bloodstains) from the porch of
Apartment 1642. 	Vol. VI Trial Tr. 94, 97-98; State’s Exs. 2A, 2B, 2C, 3, 86, 88, 90.
OCPD Officer Edward Mosier testified that he was the first police officer to arrive at the
scene on August 9, 2004, and that he observed Marcus Ivy lying on his stomach just
inside the back door of Apartment 1642. 	Vol. VI Trial Tr. 247-48, 250-51. 	Dr. Chai
Choi, a forensic pathologist employed by the Office of the Chief Medical Examiner for
the State of Oklahoma, testified that Marcus Ivy sustained a single gunshot wound to the
right epigastrium area (depicted on State’s Exhibits 94 and 95) going through to the right
lower back (depicted on State’s Exhibit 94). 	Vol. VI Trial Tr. 5, 7-8, 15, 17-21; State’s
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Exs. 94, 95. Dr. Choi testified that Marcus Ivy died from the gunshot wound resulting in
multiorgan failure and that the manner of his death was homicide. 	Vol. VI Trial Tr. 21-
25.
In light of this evidence, Petitioner’s argument that his conviction is improperly
based only upon the testimony of a single eyewitness is not supported by the record.
Petitioner attacks Ms. Watley’s testimony implicating Petitioner as “not worthy of belief”
due to: use of the Subpoena and material-witness warrants; Ms. Watley’s mental status
and drug use at the time of the shooting; and inconsistencies between Ms. Watley’s
testimony and that of other witnesses. See Pet’r’s Br. at 24-6; see, e.g., Vol. IV Trial Tr.
221-23 (Ms. Watley’s mother testifying that Ms. Watley had gotten “pretty messed up on
drugs” during the day of August 9, 2004); Vol. V Trial Tr. 106, 109, 127 (Ms. Watley
testifying that she had had not slept for two days and had been up using crack cocaine
prior to the shooting). When a record supports conflicting inferences, however, the Court
must presume that the jury “resolved any such conflicts in favor of the prosecution.” See
Matthews, 577 F.3d at 1184 (internal quotation marks omitted). 	The Court is “not
allowed to weigh conflicting evidence or consider the credibility of witnesses” on habeas
review. 	See id. (internal quotation marks omitted). 	Here, the jury was permitted to
evaluate all of the above testimony, including as to Ms. Watley’s physical state and use
of drugs, and was able to determine the weight to give to Ms. Watley’s testimony and to
evaluate any inconsistencies with other witnesses’ accounts. 	“[T]he jury was entitled to
find her identification testimony at trial to be credible, particularly in light of the fear and
trauma that she may have experienced in the period immediately following the murders.”
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Torres v. Mullin, 317 F.3d 1145, 1157 (10th Cir. 2003) (rejecting habeas challenge to
sufficiency of the evidence where eyewitness had failed to identify defendants when first
interrogated).
The jury was specifically and properly instructed that a necessary element of the
relevant offense is that the death must be “caused” “by the conduct” of Petitioner and was
specifically and properly instructed on the meaning of these terms under Oklahoma law.
See OR 1637, 1638 (Jury Instruction Nos. 22, 23); Okla. Crim. Jury Instruction Nos. 4-
60, 4-61; Okla. Stat. tit. 21, § 701.7(A). 	In a federal habeas challenge to the sufficiency
of the evidence, “[s]tate law determines the parameters of the offense and its elements
and a federal court may not reinterpret state law.” Tillman v. Cook, 215 F.3d 1116, 1131-
32 (10th Cir. 2000) (internal quotation marks omitted). 	Considering the testimony and
evidence discussed above, a rational trier of fact could find beyond a reasonable doubt
that Petitioner was the perpetrator of conduct that caused the unlawful death of Marcus
Ivy. 	Therefore, the OCCA’s rejection of Petitioner’s challenge to the sufficiency of the
evidence was not contrary to or an unreasonable application of the governing Jackson
standard. 	See OCCA Op. at 6; 28 U.S.C. § 2254(d)(1); Jackson, 443 U.S. at 319.
Petitioner is not entitled to habeas relief on Ground Three.
D. Ground Four: Trial Court’s Failure to Declare a Mistrial
Petitioner next seeks habeas relief on the basis that he was denied his right to a fair
trial when the trial court refused to declare a mistrial based upon verbal references to
Petitioner’s “background” and “other cases.” Pet’r’s Br. at 26-29.
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Regarding the “other cases” statement, in the instant case, during voir dire, a
certain “Panelist L.” was called as a prospective juror and asked by the trial court if she
thought she knew anything about the case. Panelist L. responded, “I don’t know anything
about this case, but I know about other cases.” 	Vol. II Trial Tr. 116. 	The trial court
stated: “Okay. 	Other cases involving where you have been involved in or?” 	Amidst
interjections from the court and defense counsel, Panelist L. answered, “Involving—,”
“Involving people that—,” and “Prior history of—.” 	Vol. II Trial Tr. 116-17. 	The trial
court responded, “Knowledge with the District Attorney’s office? 	Okay. 	Come on up.”
Vol. II Trial Tr. 117.
The trial court then excused the pool of jurors from the courtroom and questioned
Panelist L. in chambers with all counsel present. 	Panelist L. advised the court that she
thought she had seen Petitioner on the local news and, based on what she had seen on the
news, she thought that Petitioner had a “huge rap sheet,” was a gang member and a repeat
offender, and was involved with drugs and several other murder charges. Vol. II Trial Tr.
118-21. 	Panelist L. stated that her understanding would “taint” her opinion and was
excused. 	Vol. II Trial Tr. 121. 	Petitioner’s attorney moved for a mistrial, arguing that
there now was “a bell that can’t be unrung, no matter how you admonish the jury”; the
trial court denied the motion, ruling that Panelist L. had made no statement connecting
Petitioner with the things she had talked about. Vol. II Trial Tr. 122-25. Defense counsel
declined to state a position on whether he would request an admonishment to the jury
regarding Panelist L.’s comments. 	Vol. II Trial Tr. 126-30, 131. 	The trial court stated
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that “it doesn’t find that the statement . . . created cause for a mistrial.” Vol. II Trial Tr.
131.
Panelist L. was interviewed by the trial court and by the attorneys in chambers
regarding whether she had shared her thoughts about Petitioner to anyone else in the
prospective jury or in the courthouse jury pool, and Panelist L. answered that had not.
Vol. II Trial Tr. 136-39. 	Panelist L. was excused for cause. 	Vol. II Trial Tr. 139.
Defense counsel reurged his request for a mistrial, or alternatively for an entirely new
jury panel or individual sequestered voir dire, but refused to answer whether he wished
for the jury to receive an admonishment. Vol. II Trial Tr. 140-49; OR 1585-88. The trial
court denied defense counsel’s requests and admonished the remaining prospective jurors
that Panelist L. “had some beliefs based totally on speculations” and that the jurors were
to “disregard any comments that she had to say in open court.” Vol. II Trial Tr. 149-50.
With respect to the “background” statement, during Pamela Watley’s cross-
examination the prosecutor asked Ms. Watley if she felt afraid of Petitioner in the hours
and days following the shooting. 	Vol. V Trial Tr. 50-51. 	Ms. Watley replied, “Yes, I
was afraid of Mr. Franklin because of his background.” 	Vol. V Trial Tr. 51. 	Defense
counsel objected and moved again for a mistrial, on the grounds of Ms. Watley’s
improper mention of Petitioner’s background in front of the jury. Vol. V Trial Tr. 51-60,
61-64; see Okla. Stat. tit. 12, § 2404(B) (“Evidence of other crimes, wrongs, or acts is not
admissible to prove the character of a person in order to show action in conformity
therewith.”). The trial court denied the motion, determining that Ms. Watley’s “statement
and use of the word ‘background’ clearly does not speak as to prior convictions, prior . . .
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cases, but it is an example of other evidence of the defendant’s bad character.” 	Vol. V
Trial Tr. 67-68. The trial court admonished the jury to disregard Ms. Watley’s “comment
about a background.” Vol. V Trial Tr. 74.
The OCCA discussed Petitioner’s contentions in detail and rejected his claim of
error. Regarding Panelist L’s comments, the OCCA held:
The decision to grant a mistrial is generally left to the sound
discretion of the trial court. 	The mere suggestion of another crime
allegedly 	committed 	by 	the 	accused 	is 	not 	usually 	reversible 	error.
Appellant complains that Panelist L.’s comment was a clear reference to
other crimes committed by him, and that by admonishing the rest of the
panel, 	the 	court 	only 	brought 	more 	attention 	to 	the 	implication 	that
Appellant had been in trouble before. 	We disagree. 	The trial court made
an 	ample 	record 	on 	the 	matter, 	and 	conscientiously 	considered 	the
arguments of counsel before making its ruling. 	The record supports the
conclusion that the panelist’s reference to “other cases” (which did not
specify who was involved in those cases, or what those cases were about)
did not taint the panel with insinuations about Appellant’s criminal history.
The trial court’s decision to deny a mistrial, but to admonish the panel in an
abundance of caution, was not an abuse of discretion.
OCCA Op. at 7-8 (citations omitted).
Regarding Ms. Watley’s reference to Petitioner’s “background,” the OCCA held:
The prosecutor asked Watley [why she was reluctant to testify and
implicate Petitioner in the murder], not to delve into Appellant’s past, but to
get Watley to relate an incident that had occurred in the jail just the day
before. Watley went on to state that a few days before, as she passed by
Appellant in the county jail (where she also was being held as a material
witness pending completion of testimony), he told her that regardless of the
outcome of his trial, “we will take care of you.” 	Watley testified that she
perceived this as a threat, not as a promise of beneficence. 	This comment,
of course, was entirely admissible against Appellant, and he does not
complain about it on appeal. 	Whatever vague implications about other
crimes might be found in Watley’s reference to Appellant’s “background”
were overshadowed by the properly-admitted evidence. The trial court did
not abuse its discretion in how it resolved this matter.
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30
OCCA Op. at 8-9 (footnote omitted). 9
Respondent broadly asserts that Ground Four (as well as Ground Five, discussed
infra Part III.E) “involve[s] matters of state law” and therefore the Court should “decline
to entertain” these arguments. Resp’t’s Resp. at 23. This response fails to recognize that
Petitioner specifically argues, as he also did to the OCCA, that his right to an impartial
jury under the Sixth and Fourteenth Amendments was violated, which is a specific claim
of “violation of the Constitution” long recognized in federal habeas actions. 	See Pet’r’s
Br. at 28; OCCA Br. at 28; 28 U.S.C. § 2254(a); see, e.g., Irvin v. Dowd, 366 U.S. 717,
722-23 (1961); Lucero, 133 F.3d at 1307-09. 	The undersigned thus concludes that
Petitioner 	raises 	cognizable 	(though 	ultimately 	meritless) 	federal 	habeas 	claims 	in
Grounds Four and Five and analyzes the OCCA decision thereon with the deference
mandated by AEDPA.
Here, the focus of the inquiry is not whether the trial court abused its discretion
under Oklahoma law but whether denial of a mistrial resulted in a deprivation of
Petitioner’s federal constitutional right to a fair trial before an impartial jury. “The Sixth
Amendment, applied to the states by the Fourteenth Amendment, ensures that ‘[i]n all
criminal prosecutions, the accused shall enjoy the right to a . . . trial . . . by an impartial
jury of the State and district wherein the crime shall have been committed.’” Gardner v.
9 Even if disagreement could be had with the OCCA’s view of the purpose of the State’s
question, what matters is the potential effect of Ms. Watley’s answer on the jury. Room
for disagreement on the former point does not undermine the OCCA’s conclusion on the
latter.
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31
Galetka, 568 F.3d 862, 888 (10th Cir. 2009) (alteration in original) (quoting U.S. Const.
amend. VI).
It is not required . . . that the jurors be totally ignorant of the facts
and issues involved. 	In these days of swift, widespread and diverse
methods of communication, an important case can be expected to arouse
the interest of the public in the vicinity, and scarcely any of those best
qualified to serve as jurors will not have formed some impression or
opinion as to the merits of the case. 	This is particularly true in criminal
cases. To hold that the mere existence of any preconceived notion as to the
guilt or innocence of an accused, without more, is sufficient to rebut the
presumption of a prospective juror’s impartiality would be to establish an
impossible standard. It is sufficient if the juror can lay aside his impression
or opinion and render a verdict based on the evidence presented in court.
Irvin, 366 U.S. at 722-23.
To obtain habeas relief, Petitioner must show that the trial court’s refusal to grant
a mistrial based upon juror bias deprived Petitioner of a fair and impartial jury. 	See
Gardner, 568 F.3d at 887-90 (rejecting habeas claim of juror bias based upon pretrial
publicity); Sallahdin v. Gibson, 275 F.3d 1211, 1222-23 (10th Cir. 2002) (rejecting
habeas claim of juror bias where trial court had refused to reopen voir dire and refused to
remove juror for cause). 	To show juror bias, Petitioner “must show more than that the
juror[s] had a preconceived notion of guilt; he must show that the juror[s] had such a
fixed opinion that [they] could not judge impartially.” 	Hale v. Gibson, 227 F.3d 1298,
1320 (10th Cir. 2000). Due to the “broad deference traditionally accorded to trial courts
in determining jury selection procedures and conducting voir dire,” a petitioner must
show that the trial court committed “manifest error” in finding that the jury as a whole
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32
was impartial. 	Lucero, 133 F.3d at 1308 (internal quotation marks omitted).10 To make
this showing, a petitioner must demonstrate either actual prejudice or that “the trial gave
rise to a presumption of prejudice because it involved such a probability that prejudice
will result that it is deemed inherently lacking in due process.” 	Id. (internal quotation
marks omitted).
The trial court’s decision to deny a mistrial following each communication was
reached only after individualized consideration of defense counsel’s arguments and was
premised upon an express or implied finding that the disputed comments were not
sufficient cause to declare a mistrial based on an impartial jury. See Vol. II Trial Tr. 117-
35, 136-49; Vol. V Trial Tr. 51-60, 61-64, 67-68; cf. Goss, 439 F.3d at 627 (“[A] state
trial court’s finding regarding the impartiality of particular jurors is a question of fact.”).
Pursuant to AEDPA, Petitioner carries the burden of rebutting the presumption of
correctness of a state court’s factual determinations by clear and convincing evidence.
See Goss, 439 F.3d at 627; 28 U.S.C. § 2254(e)(1); Morris v. Workman, No. CIV-09-81-
10 In Gardner, the Tenth Circuit stated:
This court’s precedents are not entirely consistent with regard to the standard of
review to apply to a state court's decision regarding jury impartiality. 	Compare
Goss v. Nelson, 439 F.3d 621, 627 (10th Cir.2006) (stating that only when a
manifest error occurs can a federal habeas court overturn a state court’s finding
regarding jury impartiality as a whole), with Hale[, 227 F.3d at 1331] (asking
whether state supreme court’s finding that trial court did not abuse its discretion in
rejecting change of venue was an unreasonable application of Supreme Court
precedent).
568 F.3d at 888 (citation omitted). 	As outlined herein, the undersigned has considered
the governing authorities and concludes that “the same result would follow from either
standard”; thus, as in Gardner, any inconsistency need not be resolved here. 	See
Gardner, 568 F.3d at 888.
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33
R, 2009 WL 2579792, at *6-10 (W.D. Okla. Aug. 18, 2009) (denying habeas relief where
trial court refused to grant a mistrial and defense counsel pointed only to “apprehension”
and “appearance” rather than facts to support a conclusion that the jury was impartial),
appeal dismissed, 382 F. App’x 693 (10th Cir. 2010).
Petitioner has not identified any actual bias on the part of any particular juror.
Rather, Petitioner suggests that prejudice should be presumed because the jury heard
Panelist L.’s statement regarding “other cases” and Ms. Watley’s testimony regarding
“background.” 	See Pet’r’s Br. at 28-29; cf. Vol. IV Trial Tr. 85 (defense counsel
renewing his motion for mistrial due to a “tainted jury” but agreeing that he had no
individual challenge to the jurors who were passed for cause). 	Petitioner also contends
that the trial judge’s issuance of a cautionary instruction following each of these
communications only served “to draw more attention to them.” See Pet’r’s Br. at 27-28.
Petitioner has failed to establish a presumption of prejudice under the facts of this
case. “A presumption of prejudice . . . attends only the extreme case.” Skilling v. United
States, 561 U.S. 358, 381 (2010). 	Panelist L. was interviewed by both attorneys and by
the court and excused for cause; she did not sit on the jury. While Panelist L’s comments
in 	closed 	chambers 	revealed 	that 	Panelist 	believed 	she 	knew 	information 	about
Petitioner’s past, Panelist L’s “other cases” comment was nonspecific and did not
actually implicate Petitioner in any other crimes or acts. 	Similarly, Ms. Watley’s bare
reference to “background” did not reasonably communicate to the jury that Petitioner had
committed other crimes or specific instances of bad activity. 	Panelist L. communicated
that she had not shared her thoughts on Petitioner’s past with any jurors, and she was
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34
removed from the prospective-juror pool after she made the “other cases” comment. The
trial court, with the participation of both parties’ counsel, engaged in more than three
days of voir dire proceedings in an effort to seat jurors who “indicated that they could
remain fair and impartial.” See Lucero, 133 F.3d at 1309; Vol. I Trial Tr. 10-240; Vol. II
Trial Tr. 5-299; Vol. III Trial Tr. 3-223; Vol. IV Trial Tr. 4-142.
Further, despite defense counsel’s ambivalence regarding jury admonishments, the
jury was specifically instructed to disregard both of the disputed comments, and such
instructions have been found to be ameliorative of purported errors that potentially render
a criminal trial unfair. 	See, e.g., Brown v. Sirmons, 515 F.3d 1072, 1084 (10th Cir.
2008); Bland v. Sirmons, 459 F.3d 999, 1022-23 (10th Cir. 2006); cf. Lucero, 133 F.3d at
1308-09 	(finding 	no 	presumption 	of 	prejudice 	despite 	petitioner’s 	contention 	that
questioning of jurors regarding their association with the victim’s sister, who had been
seated as a prospective juror, “only served to emphasize the situation”). 	“Absent
evidence to contrary, we presume that jurors remain true to their oath and conscientiously
observe the instructions and admonitions of the court.” 	Lucero, 133 F.3d at 1309
(internal quotation marks omitted); cf. United States v. Small, 423 F.3d 1164, 1178-80
(10th Cir. 2005) (affirming decision of trial court denying mistrial after potential juror
expressed concern for personal safety because case involved drugs and seven defendants
and ten marshals were present: “Any prejudice that may have resulted . . . was adequately
addressed by the district court’s explanation of the presence of the marshals in the
courtroom.”).
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35
The two isolated incidents, occurring in the course of seven days of “a fairly
structured and formal setting,” are insufficient to establish a presumption of prejudice.
See Lucero, 133 F.3d at 1309; 28 U.S.C. § 2254(e)(1). Petitioner has not shown manifest
error in the trial court’s denial of a mistrial or rebutted the presumption of correctness in
the trial court’s findings. 	See id. 	The OCCA’s rejection of relief on the merits was not
an unreasonable application of or contrary to clearly established federal law; nor was it
based on an unreasonable determination of the facts in light of the evidence presented in
the state court proceedings. See 28 U.S.C. §§ 2254(d)(1)-(2). Relief should be denied on
Ground Four.
E. Ground Five: Trial Court’s Failure to Give Eyewitness Identification
Instruction
In Ground Five, Petitioner asserts that he was deprived of a fair trial because the
trial court refused to specifically instruct the jury as to factors relevant for consideration
of eyewitness testimony. See Pet’r’s Br. at 29-32. At trial, Petitioner’s counsel submitted
a proposed jury instruction, based upon an Oklahoma uniform criminal instruction,
containing 	cautionary 	language 	as 	to 	eyewitness 	identification 	testimony 	(the
“Eyewitness Instruction”). Vol. VII Trial Tr. 3-4; see Okla. Unif. Crim. Jury Instruction
No. 9-19. 	After the State raised its objection, the trial court heard argument from both
parties’ 	counsel, 	discussed 	the 	proposed 	instruction 	in 	detail, 	and 	ruled 	that 	the
Eyewitness Instruction would not be given. Vol. VII Trial Tr. 3-9.
Petitioner argues that he was entitled to the Eyewitness Instruction based upon the
lack of reliability of Pamela Watley’s eyewitness identification of Petitioner, and to a
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36
lesser extent the lack of reliability of Rashika Williamson’s eyewitness identification of
Petitioner. 	According to Petitioner, the case “hinged on” these two eyewitnesses’
testimony, but that testimony was undermined by the inconsistencies in Ms. Watley’s
statements and also the inconsistencies between those statements and the testimony of
Ms. Williamson and Mr. Williams. 	See Pet’r’s Br. at 30-32. 	The OCCA denied
Petitioner’s challenge to the trial court’s decision on direct appeal:
Appellant contends that the trial court erred in refusing to instruct the jury
on the special dangers of eyewitness identification. The trial court carefully
considered the propriety of this instruction, evaluating each of the factors
suggested in OUJI-CR (2nd) No. 9-19. 	The court agreed that eyewitness
identification 	was 	a 	central 	issue 	in 	the 	case, 	but 	observed 	that 	the
identifications were made by persons well acquainted with Appellant. The
key witnesses may have had some credibility issues, but the ability to see
and recognize those involved in the crime was not one of them. 	The trial
court did not abuse its discretion in refusing to specially caution the jury on
eyewitness identification.
OCCA Op. at 9 (citation omitted).
“A state conviction may only be set aside in a habeas proceeding on the basis of
erroneous jury instructions when the errors had the effect of rendering the trial so
fundamentally unfair as to cause a denial of a fair trial.” 	Maes v. Thomas, 46 F.3d 979,
984 (10th Cir. 1995). The issue is “not whether the instruction is undesirable, erroneous,
or even universally condemned, but whether the instruction so infected the trial that the
resulting conviction violates due process.” Id. (internal quotation marks omitted); accord
Robison, 232 F. App’x 785, 789 (10th Cir. 2007). In this case, Petitioner has not shown
that the trial court’s failure to specially instruct on eyewitness identification resulted in a
fundamentally unfair trial.
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37
While the trial court did not give the specific instruction requested by Petitioner,
(1) the court did instruct the jury that in determining the weight or credibility to be given
the testimony of each witness, the jury may properly consider “the ability of the witness
to remember and relate past occurrences, the means of observation, and the opportunity
of knowing the matters about which the witness has testified.” OR 1627 (Jury Instruction
No. 13). 	In addition, (2) defense counsel had ample opportunity to cross-examine and
discredit 	the 	witnesses 	regarding 	their 	identification 	of 	Petitioner, 	and 	(3) 	“the
prosecution’s case did not rest solely on eyewitness testimony.” 	See Robison, 232 F.
App’x at 791; Vol. V Trial Tr. 103-67, 177-78; Vol. VI Trial Tr. 22-49, 50-51; supra Part
III.C. 	In Robison, the Tenth Circuit relied on these same three factors to reject an
ineffective assistance of counsel habeas claim premised upon the defense attorney’s
failure to request a cautionary instruction regarding eyewitness testimony. 	See Robison,
232 F. App’x at 791.
The committee notes accompanying Oklahoma Uniform Criminal Jury Instruction
No. 9-19 prescribe that the instruction should be given if “there is a serious question
concerning the reliability of the identification.” Okla. Unif. Crim. Jury Instruction No. 9-
19 note. The trial court addressed the factors that the jury would be asked to consider if
given the proposed instruction and reasonably concluded that Ms. Watley’s testimony
had 	remained 	positive 	following 	cross-examination. 	Vol. 	VII 	Trial 	Tr. 	9. 	The
eyewitnesses did not vacillate on their respective identifications of Petitioner as being
present at Will Rogers Courts in their trial testimony. See Vol. IV Trial Tr. 232-33, 238;
Vol. V Trial Tr. 40; Vol. VI Trial Tr. 14-15, 23; cf. United States v. Thoma, 713 F.2d
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604, 608 (10th Cir. 1983) (“[T]he government’s case did not depend upon a single
eyewitness, but upon several witnesses whose identifications were not shaken despite
some uncertainties and disparities in their testimony . . . .”). In Thoma, the Tenth Circuit
relied upon witnesses’ unwavering identifications in finding that the failure to give a
cautionary eyewitness instruction was not reversible error on direct appeal. 	See Thoma,
713 F.2d at 608. 	But cf. Perry, 132 S. Ct. at 730 (listing a given jury instruction on
identification testimony as one of the safeguards defeating a claim of deprivation of due
process).
Here, the OCCA similarly and reasonably concluded that the key witnesses’
“ability to see and recognize those involved in the crime” was not a significant credibility
issue. 	See OCCA Op. at 9. 	Further, it is undisputed that both Ms. Watley and Ms.
Williamson knew Petitioner by sight prior to the events of August 9, 2004. 	Cf.
Brathwaite, 432 U.S. at 112 (noting that “the problems of eyewitness identification” are
that “[u]sually the witness must testify about an encounter with a total stranger under
circumstances of emergency or emotional stress” and that “[t]he witness’[s] recollection
of the stranger can be distorted easily by the circumstances or by later actions of the
police”). For all of these reasons, the trial court’s failure to give the proposed Eyewitness
Instruction did not render the trial “so fundamentally unfair as to cause a denial of a fair
trial.” See Maes, 46 F.3d at 984. The OCCA’s decision in this regard was not contrary to
or an unreasonable application of clearly established federal law. 	Petitioner is not
entitled to habeas relief on Ground Five.
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39
F. Ground Six: Violation of Equal Protection and Batson v. Kentucky
In Ground Six, Petitioner claims that the State used peremptory challenges to
exclude two potential jurors on the basis of race, in violation of his equal protection rights
as determined by the United States Supreme Court in Batson v. Kentucky, 476 U.S. 79
(1986). See Pet’r’s Br. at 33-37 (citing U.S. Const. amend. XIV).
As the Tenth Circuit has explained:
The Constitution forbids a prosecutor from exercising a peremptory
challenge to a prospective juror on account of the juror’s race. 	When
defense counsel believes that the prosecutor has violated Batson, a three-
step review process is in order. Once the opponent of a peremptory
challenge has made out a prima facie case of racial discrimination (step
one), the burden of production shifts to the proponent of the strike to come
forward 	with 	a 	race-neutral 	explanation 	(step 	two). 	If 	a 	race-neutral
explanation is tendered, the trial court must then decide (step three) whether
the opponent of the strike has proved purposeful racial discrimination. 	At
the second step of the inquiry, the issue is the facial validity of the
prosecutor’s explanation. Unless a discriminatory intent is inherent in the
prosecutor’s explanation, the reason offered will be deemed race neutral.
But if, at step three, the court finds the proffered ground to be pretextual, it
may determine that the strike was purposeful discrimination.
Black v. Workman, 682 F.3d 880, 894 (10th Cir. 2012) (alterations, citations, and internal
quotation marks omitted).
Pursuant to AEDPA and Tenth Circuit authority, Petitioner is only entitled to
relief 	on 	his 	Batson 	claim 	if 	the 	OCCA’s 	determination 	was 	“‘an 	unreasonable
determination 	of 	the 	facts 	in 	light 	of 	the 	evidence 	presented 	in 	the 	State 	court
proceeding.’ 28 U.S.C. § 2254(d)(2).” Id. at 896 (quoting Rice v. Collins, 546 U.S. 333,
338 (2006)). “Thus, a federal habeas court can only grant [Petitioner’s] petition if it was
unreasonable 	to 	credit 	the 	prosecutor’s 	race-neutral 	explanations 	for 	the 	Batson
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40
challenge. 	State-court factual findings, moreover, are presumed correct; the petitioner
has the burden of rebutting the presumption by ‘clear and convincing evidence.’” 	See
Rice, 546 U.S. at 338-39; Black, 682 F.3d at 896; 28 U.S.C. § 2254(e)(1).
1. 	Challenges to Panelist J and Panelist M
The prosecution exercised its sixth peremptory challenge to excuse “Panelist J.”
This dialogue followed:
THE COURT: [Panelist J.], Number 1.
[DEFENSE COUNSEL]: I need to object as to Batson. 	And let the record
reflect that is the only African-American person in this jury person of 30.
And I object to her being excused and I request a race-neutral reason.
. . . .
[PROSECUTOR]: First and foremost, because you will require us to come
up with people to kick, I don’t know that I would necessarily kick everyone
that I’m kicking, but you are making us do nine. 	So the biggest reason is
she has got two children, one who is only three months old and she is
unemployed. That is the biggest reason. Also, she is exactly the same age
as Mr. Franklin. 	And the last question [defense counsel] asked her was
about her ability to stick to her guns and she was, in my opinion, very firm
in the response that, yeah, I will stick to my guns no matter what. And you
need to be able to deliberate.
. . . .
[DEFENSE COUNSEL]: Okay. This particular person, [Panelist J.], is like
I said, the only African-American person out of the 30 people seated here
today. 	Additionally, Judge, [Panelist J.] is not the only person with two
children around that age group. There are other jurors who are not African-
American who have the same situation in that regard. 	There are other
jurors the same age as Mr. Franklin. And every juror I asked that question
to was as fair, if you remember, as [Panelist J.] was. I would object to that
excusal.
THE COURT: It will be so noted. 	The Court finds that the State is
exercising their peremptories based on non-racial factors. . . . .
. . . .
[PROSECUTOR]: Can I also add, while we are talking about this, I don’t
think the record has been clear that there have been I don’t know how many
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41
other African-Americans who came to the pool and were excused for cause
because of their views on the death penalty.
THE COURT: Their inability to follow the law.
Vol. IV Trial Tr. 90-91; see also Vol. I Trial Tr. 177-78, 194; Vol. II Trial Tr. 14-26
The prosecution exercised its eighth peremptory challenge to excuse “Panelist M.”
This dialogue followed:
[DEFENSE COUNSEL]: Your Honor, there is now a pattern. 	This is the second
minority which the State has excused with their peremptory challenge. 	[Panelist M.]
is a Mexican American. And based upon that I request a race neutral reason.
. . . .
[PROSECUTOR]: Well, Number one, we are forced to excuse people. 	He has got a
brother-in-law facing a capital murder offense right now he said. And I think also he
has a difficulty understanding the concepts that we have talked about.
THE COURT: Okay.
. . . .
[DEFENSE COUNSEL]: . . . . However, he is the only other minority on this jury
panel and I do object, Judge.
THE COURT: Okay.
[PROSECUTOR]: There is one other thing. 	He also indicated that he thought that
people of color and Hispanic were discriminated against by the Government, by the
law enforcement agencies.
THE COURT: The State has stated a sufficient race neutral reason. 	I don’t find a
pattern for excusal.
Vol. IV Trial Tr. 92-93; see also Vol. I Trial Tr. 152-53, 186; Vol. III Trial Tr. 53-61.
2. 	Fourteenth Amendment Analysis
With respect to both Panelist J and Panelist M, the trial court directed the State to
explain its rationale for the peremptory strike, and the prosecutor offered an explanation.
Accordingly, the undersigned assumes that the trial court found a prima facie case at step
one of the Batson inquiry and proceeded to step two: whether the prosecutor offered a
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42
race-neutral explanation for each peremptory strike. 	See Saiz v. Ortiz, 392 F.3d 1166,
1178-79 (10th Cir. 2004). 	Petitioner asserts that the prosecutor’s stated reasons for
exercising the two peremptory challenges were not actually race-neutral, but merely a
pretext for discriminatory strikes. 	See Pet’r’s Br. at 35. 	The record supports a finding
that these proffered reasons were not pretextual.
During voir dire, Panelist J. indicated that she had not thought at all about the
issue of the death penalty since the day before, despite significant discussion about the
issue during the preceding day’s proceedings, because she was “pretty firm” in the way
she believed or in her ability to be a juror. Vol. II Trial Tr. 14-15. A juror’s disfavor of
or opposition to the death penalty has been held to be a nonpretextual, race-neutral
explanation on a Batson challenge. 	See Sallahdin, 275 F.3d at 1225-26 (citing United
States v. Barnette, 211 F.3d 803, 812 (4th Cir. 2000); United States v. Moore, 149 F.3d
773, 780 (8th Cir. 1998)). 	This explanation, as well as Panelist J.’s age, family, and
employment circumstances, was “a neutral explanation related to the particular case to be
tried,” in light of the State’s intent to seek the death penalty upon issuance of a guilty
verdict. 	See Batson, 476 U.S. at 98; Vol. I Trial Tr. 177-78, 194 (Panelist J. stating that
she is a 30-year-old, single, unemployed mother of two); Vol. II Trial Tr. 14-26; Vol. IV
Trial Tr. 90-91; OR 64-65, 68-69.
In response to questions regarding his opinions on the death penalty, Panelist M.
stated his belief that some members of his race have been “[d]iscriminated against” and
that some stories he has heard are “unfair.” Vol. III Trial Tr. 54-56. Although Petitioner
claims that the State’s reliance upon this belief was not race-neutral, in the Batson
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43
context, “[a] neutral explanation means an explanation based on something besides the
race of the juror.” 	Saiz, 392 F.3d at 79 (emphasis added) (internal quotation marks
omitted). 	Courts have rejected the argument that discriminatory intent is inherent in an
explanation relying upon a prospective juror’s negative experience with, and perspective
of, law enforcement based on presumed racial profiling or race bias. 	See, e.g., Boggs v.
Diguglielmo, 264 F. App’x 165, 169 & n.6 (3d Cir. 2008) (holding that prosecutor
satisfied Batson’s second prong when race-neutral reasons offered by prosecutor to
exclude African-American venireperson included juror’s concern about police bias in
treatment of African-Americans); Green v. Travis, 414 F.3d 288, 300 (2d Cir. 2005)
(“[A] juror’s perceived bias against law enforcement can constitute a race-neutral
explanation for a peremptory challenge.”). 	Petitioner does not dispute that Panelist M.
reported having a brother-in-law being held in jail on murder charges in Oklahoma
County, ostensibly being prosecuted by the District Attorney’s Office (as was Petitioner
in the instant case). 	See Vol. I Trial Tr. 152-53. 	Further, when asked whether he could
fairly hear this case on the issues of guilt and punishment, Panelist M. misstated the
applicable burden of proof. 	See Vol. III Trial Tr. 58 (Panelist M. stating that “in a way
it’s not our burden to carry with us because the defense don’t prove their case or don’t do
their job then—”).
The second step of the Batson inquiry “‘does not demand an explanation that is
persuasive, or even plausible.’” Saiz, 392 F.3d at 1179 (citing Purkett v. Elem, 514 U.S.
765, 767-68 (1995)). 	Rather, “‘the issue is the facial validity of the prosecutor's
explanation,’” 	so 	“[u]nless 	a 	discriminatory 	intent 	is 	inherent 	in 	the 	prosecutor's
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44
explanation, the reason offered will be deemed race neutral.’” 	Id. (alteration in original)
(quoting Purkett, 514 U.S. at 768). 	The reasons cited by the State are facially valid,
reflect no discriminatory intent, and support the trial court’s specific findings to that
effect. 	See Vol. IV Trial Tr. 90-91, 92-93. Petitioner has failed to show the trial court’s
findings at step two were unreasonable or to rebut those findings by clear and convincing
evidence. See Rice, 546 U.S. at 338-39; Black, 682 F.3d at 896; 28 U.S.C. §§ 2254(d)(2),
2254(e)(1). 	Petitioner further offers no specific challenge to the trial court’s findings at
step three and has not demonstrated that “the trial court had no permissible alternative but
to reject the prosecutor’s race-neutral justifications.” See Rice, 546 U.S. at 341.
On direct appeal, the OCCA rejected Petitioner’s Batson claim on the merits:
Appellant claims he was denied a fair trial when the State used peremptory
challenges 	to 	remove 	two 	prospective 	jurors 	who 	belonged 	to 	racial
minorities, violating Batson v. Kentucky. 	If a defendant objects to the
State’s use of a peremptory challenge on such grounds, the prosecutor must
offer a race-neutral reason to justify the strike. 	If the reason given is
facially race-neutral, the trial court’s decision to allow it will generally be
upheld. A trial court’s decision in such matters is reviewed for an abuse of
discretion.
Appellant claims the prosecutor’s reasons for excusing Panelist J.
and Panelist M. were not sufficiently race-neutral. 	In excusing Panelist J.,
the prosecutor pointed out that this prospective juror had two young
children, was unemployed, and was the same age as Appellant. 	The
prosecutor also noted that when speaking with defense counsel, the panelist
suggested a potential unwillingness to consider the opinions of other jurors.
In excusing Panelist M., the prosecutor pointed out that this prospective
juror had a brother-in-law facing a capital murder charge, expressed some
difficulty understanding the legal concepts being discussed, and gave his
opinion that racial minorities were unfairly treated by law enforcement
authorities. 	The trial court accepted the prosecutor’s explanations for both
strikes. 	We have examined the record and find no reason to second-guess
the trial court’s conclusions.
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OCCA Op. at 9-10 (citations omitted).
For the reasons outlined above, the OCCA’s acceptance of the prosecution’s race-
neutral reasons for exercising peremptory strikes was not an unreasonable determination
of the facts in this case. 	Further, the OCCA’s conclusion that Petitioner’s equal
protection rights under Batson were not violated is not contrary to or an unreasonable
application of clearly established federal law.
3. 	Sixth Amendment Analysis
Petitioner’s Batson challenge is based in part on the contention that he was
deprived of his Sixth Amendment right to a jury drawn from a fair cross-section of the
community. 	See Pet’r’s Br. at 35-37 (citing U.S. Const. amend. VI; Duren v. Missouri,
439 U.S. 357 (1979)).
In order to establish a prima facie violation of the fair-cross-section
requirement, the defendant must show (1) that the group alleged to be
excluded 	is 	a 	“distinctive” 	group 	in 	the 	community; 	(2) 	that 	the
representation of this group in venires from which juries are selected is not
fair and reasonable in relation to the number of such persons in the
community; and (3) that this underrepresentation is due to systematic
exclusion of the group in the jury-selection process.
Duren, 439 U.S. at 364; accord United States v. Green, 435 F.3d 1265, 1270-71 (10th
Cir. 2006). 	The OCCA denied this fair-cross-section claim on the merits, citing Duren
and stating: “[M]uch of his [Batson] argument really focuses on the fact that his jury did
not mirror the racial and ethnic demographics of the county. Appellant has failed to meet
his burden of showing that any racial or ethnic underrepresentation was the product of
systematic exclusion in the jury selection process.” OCCA Op. at 10 n.8.
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Here, as on direct appeal, Petitioner offers some statistics purportedly showing a
discrepancy between the county population and the composition for his own jury pool but
provides no support to show that any underrepresentation was the result of systematic
exclusion “inherent in the particular jury-selection process [used].” See Pet’r’s Br. at 36;
Pet’r’s OCCA Br. at 36; Duren, 439 U.S. at 366-67 (finding that this element had been
demonstrated through evidence of discrepancies in every weekly venire for nearly a
year). See generally Alverson v. State, 983 P.2d 498, 517 & nn.81-82 (Okla. Crim. App.
1999) 	(“[W]e 	repeat 	once 	again 	that 	Oklahoma’s 	method 	of 	jury 	selection 	is
constitutionally firm.” (citing Duren, 439 U.S. at 364)); Green, 435 F.3d at 1270 (“A
defendant does not have a right to a jury of any particular composition and the jury
actually chosen does not have to mirror the community.” (internal quotation marks
omitted)). 	Petitioner therefore has not set forth a reasonable argument that the OCCA’s
denial of this claim was erroneous, much less shown that the decision is contrary to or an
unreasonable application of Duren. Habeas relief on Ground Six is not warranted.
G. Ground Seven: Cumulative Error
In his final argument, Petitioner claims that the accumulation of trial errors raised
in Grounds One through Six deprived him of a fundamentally fair trial. See Pet’r’s Br. at
37-38. 	The OCCA denied this claim of error on the merits, holding: “Because we have
found no error in the preceding claims, there can be no accumulation of error.” 	OCCA
Op. at 11.
“In the federal habeas context, the only otherwise harmless errors that can be
aggregated are federal constitutional errors, and such errors will suffice to permit relief
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under cumulative error doctrine only when the constitutional errors committed in the state
court trial so fatally infected the trial that they violated the trial’s fundamental fairness.”
Littlejohn v. Trammell, 704 F.3d 817, 868 (10th Cir. 2013) (internal quotation marks
omitted). 	As that language implies, “[c]umulative error analysis applies where there are
two or more actual errors; it does not apply to the cumulative effect of non-errors.”
Moore v. Reynolds, 153 F.3d 1086, 1113 (10th Cir. 1998). 	Under such review a federal
court also considers the impact of any constitutional claims that “have been individually
denied for insufficient prejudice.” 	See Cargle v. Mullin, 317 F.3d 1196, 1207 (10th Cir.
2003) 	(holding 	that 	because 	claims 	involving 	“substantive 	prejudice 	components
essentially duplicate the function of harmless-error review,” “such claims should be
included in the cumulative-error calculus if they have been individually denied for
insufficient prejudice”).
The Tenth Circuit has recognized that a circuit split exists regarding whether the
requirement to conduct a cumulative-error analysis is clearly established federal law
under 28 U.S.C. § 2254(d)(1). 	See Cole v. Trammell, 755 F.3d 1142, 1177 n.14 (10th
Cir. 2014). 	However, the Tenth Circuit also notes that its precedent “may very well
signal where our court has come down on the issue—viz., that cumulative-error analysis
is clearly established law.” See id. (internal quotation marks omitted).
Having 	considered 	Cole’s 	forecast, 	the 	undersigned 	concludes 	that 	that 	the
OCCA’s 	decision 	on 	Petitioner’s 	cumulative-error 	claim 	was 	not 	unreasonable 	or
contrary to such clearly established federal law. 	As outlined above, no constitutional
errors were present in the state-court proceedings, including with respect to Petitioner’s
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claims where it is recommended that relief be denied based upon an insufficient showing
of prejudice (or presumed prejudice), see supra Parts III.B, III.D. 	Lacking two or more
errors to accumulate, Petitioner cannot show a violation of fundamental fairness. 	See
Littlejohn, 704 F.3d at 868; Moore, 153 F.3d at 1113. 	Relief on this basis should be
denied.
RECOMMENDATION
As detailed above, it is recommended that the Petition for Writ of Habeas Corpus
(Doc. No. 1) be denied.
NOTICE OF RIGHT TO OBJECT
The parties are advised of their right to file an objection to the Report and
Recommendation with the Clerk of this Court by December 16, 2014, in accordance with
28 U.S.C. § 636 and Federal Rule of Civil Procedure 72. The parties are further advised
that failure to timely object to this Report and Recommendation waives the 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 	referred 	to 	the
undersigned Magistrate Judge in the present case.
The Clerk of the Court is directed to electronically forward a copy of this Report
and Recommendation to Respondent and to the Attorney General for the State of
Oklahoma at fhc.docket@oag.state.ok.us.
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ENTERED this 25th day of November, 2014.
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