Whitely v. Farris ( 2019 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT October 23, 2019
_________________________________
Elisabeth A. Shumaker
Clerk of Court
LARRY ALAN WHITELY,
Petitioner - Appellant,
v. No. 18-6085
(D.C. No. 5:16-CV-00514-HE)
JIM FARRIS, Warden, (W.D. Okla.)
Respondent - Appellee.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before HARTZ, MURPHY, and CARSON, Circuit Judges.
_________________________________
Petitioner Larry Whitely is a state prisoner in Oklahoma. A jury convicted
him of two counts of lewd molestation of a minor, and the judge sentenced him to
concurrent twenty-year terms of imprisonment. The Oklahoma Court of Criminal
Appeals upheld his conviction and sentence on direct appeal and ultimately affirmed
a state district court’s denial of his request for post-conviction relief. Petitioner then
filed a habeas petition under 28 U.S.C. § 2254 in the United States District Court for
the Western District of Oklahoma, which the federal district court denied. He now
*
This order and judgment is not binding precedent, except under the doctrines
of law of the case, res judicata, and collateral estoppel. It may be cited, however, for
its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
appeals the federal district court’s denial of his petition. Our jurisdiction arises under
28 U.S.C. §§ 1291 and 2253. We affirm.
I.
In 2006, Petitioner’s step-daughter, K.B.—then in fifth grade—passed a note to
her friends N.M. and L.W. at school stating that her dad had been raping her. L.W. told
her mother about the note. Authorities removed K.B. and her younger sister from her
home. Tracy Koelling, a forensic interviewer, subsequently interviewed K.B. Law
enforcement officer Jeffrey Cox—a police officer with the Noble, Oklahoma police
department—observed the interview. K.B. denied worrying about anything, said she
missed her cat, and told Koelling that she felt safe in her home. Two days later, Officer
Cox himself interviewed K.B. K.B. continued to say that she missed her mother, wanted
to go home, and had nothing further to say. Officer Cox asked K.B. about the note. K.B.
denied passing the note, said a friend had passed the note, and said the friend had falsely
reported the content of the note. Cox told K.B. that he had talked to N.M. and L.W. and
that K.B. needed to tell him what was wrong. K.B. then began to cry and alleged that
Petitioner had, in fact, raped her.
Cox told Koelling that K.B. had made more disclosures. Koelling then
interviewed K.B. a second time, two days after K.B.’s interview with Officer Cox. At
that interview, K.B. told Koelling that Petitioner had anally raped her on numerous
occasions. She said that she wrestled with Petitioner and the wrestling would sometimes
lead to forced anal rape. K.B. said that she had fought back every time. She also said
that Petitioner had not put anything on his penis, but the anal rapes had not hurt or made
2
her bleed. K.B. also described Petitioner’s penis as “soft and gooey” and his ejaculate as
“really cold.”
Oklahoma charged Petitioner with two counts of lewd molestation of a minor.
Before and after Petitioner’s trial on those charges, K.B.’s mother, Kelly Whitely (“Mrs.
Whitely”), sought the return of her children and agreed to take various steps to get her
children back. On numerous occasions before trial, employees of the Oklahoma
Department of Human Services indicated to Mrs. Whitely that it was important that she
believe and support K.B. if she wanted her children back. At various times, Mrs. Whitely
indicated to DHS employees that she did or did not believe K.B.’s allegations.
At trial, L.W. testified regarding the note K.B. had written. She also testified that
people at school had called K.B. a liar.
K.B. testified regarding the abuse. She testified that Petitioner had forced his
penis into her anus and that she had fought back. She also testified that she had been able
to hit Petitioner with her shoes and kick him hard enough for him to flip over backwards,
at which point she would run and hide from him in her closet or under her bed. In
addition, K.B. testified that the abuse had not hurt and that she had not bled. She
admitted that she had previously gotten in trouble for lying about other matters.
Dr. Mark McKinnon, M.D., testified that his examination had revealed no physical
indications of sexual abuse. He also testified that in more than ninety percent of cases, no
physical signs of sexual abuse exist and that the anal region of the body heals quickly
because it is highly vascularized. He further testified that he would not be surprised if a
victim lacked signs of abuse despite having been abused anally for a long period of time.
3
He explained that an abrasion could exist but not appear three weeks later on a physical
exam.
Dr. McKinnon also conceded, though, that anal sex can cause injury and he opined
that the likelihood of an anal injury occurring would depend on the size of the object
introduced, the use or nonuse of force, the use or nonuse of lubricants, and the amount of
victim cooperation. He acknowledged, too, that frequent, forceful anal penetration would
lead to a greater risk of injury, conceded that an anal tear could leave a scar, and noted
that he had not found any such scars.
Dr. Linda Ingraham, Ph.D., testified that Koelling had conducted a proper child
forensic interview. She then discussed various factors that could have affected K.B.’s
memory, such as bias, suggestibility, misattribution, memory recording, and positive
versus negative reinforcement. She also criticized Officer Cox’s interview; identified
various inconsistences in K.B.’s allegations that she would generally not expect; and
concluded that it was possible that the interview with Officer Cox had distorted K.B.’s
memory.
Koelling testified about her interviews with K.B.1 She also discussed proper
techniques for interviewing child victims of sexual assault.
Mrs. Whitely also took the stand and briefly testified. During her testimony, she
stated that she had not seen any blood on K.B.’s underwear or clothes when K.B. had
been living with her. She also indicated that she had been looking for blood because she
1
A video of her first interview and an edited video of her second interview
were also played for the jury and entered into evidence.
4
had believed that K.B. would start menstruating soon. On cross-examination, she
testified that she was not at the trial to support Petitioner and that their divorce was
pending.
Petitioner’s father, Larry Whitely, Sr., also took the stand. During his testimony,
Petitioner submitted pictures his father took into evidence. Those pictures indicated that
no space existed for K.B. to hide under the bed and that her closet was small.
In his closing argument, Petitioner’s trial counsel highlighted these
inconsistencies, but the jury nevertheless convicted Petitioner on both counts. Between
the trial and sentencing, Mrs. Whitely sent a letter to the trial judge indicating that she did
not believe the allegations against Petitioner and had seen no signs of abuse. She
expressed her belief that Petitioner was innocent and asked the judge to release him or
give him the minimum punishment. At sentencing, Mrs. Whitely stood by her statements
after she was warned that her testimony could prevent her from getting her children back.
The judge sentenced Petitioner to concurrent twenty-year terms of imprisonment.
Petitioner appealed his convictions to the Oklahoma Court of Criminal Appeals
(the “OCCA”).2 The OCCA affirmed the judgment.
Petitioner then filed an application for post-conviction relief (the “APCR”) in state
district court. In the APCR, Petitioner asserted claims based on prosecutorial
2
None of the claims Petitioner asserts in this petition relate to his arguments
on direct appeal.
5
misconduct, ineffective assistance of trial counsel, and ineffective assistance of appellate
counsel. Petitioner also requested discovery and a full evidentiary hearing.
The state district court held that Petitioner waived his prosecutorial misconduct
claims and ineffective assistance of trial counsel claims because he did not assert them on
direct appeal. It denied Petitioner’s discovery request for the most part, although it
permitted Petitioner to depose his direct appeal appellate counsel. The court then held a
two-day evidentiary hearing to address Petitioner’s ineffective assistance of appellate
counsel claims but limited the hearing to what appellate counsel did or did not do.3 After
the hearing, the court denied relief on the ineffective assistance of appellate counsel
claims.
The OCCA reversed, holding the state district court failed to address a number of
issues and applied the wrong legal standard.
On remand, the state district court determined that appellate counsel was
ineffective because she had not engaged in any investigation outside the record before
filing Petitioner’s appeal. It then concluded that, even though it was unclear whether trial
counsel had performed ineffectively, cause existed to grant Petitioner a new appeal to
address Petitioner’s ineffective assistance of trial counsel claims.
The state district court also noted that the OCCA had directed it to determine
“whether witnesses were deterred by the prosecution, including DHS personnel, from
3
The parties dispute whether we should address Petitioner’s underlying claims
as if an evidentiary hearing was held or whether the limits on the hearing rendered it
equivalent to no hearing at all. We resolve this appeal without reaching that issue.
6
fully and truthfully testifying or whether the witnesses had changed their story after the
fact because they no longer had anything to lose.” Order dated Dec.19, 2014,
Oklahoma v. Whitely, No. CF-2006-250, slip op. at 2. It determined that Petitioner
had not produced sufficient evidence on that issue during the evidentiary hearing and
thus did not grant any relief with respect to the prosecutorial misconduct claim.
Petitioner appealed and the OCCA again reversed the state district court because
Oklahoma’s statute governing post-conviction relief does not permit a court to grant a
petitioner a second direct appeal. It then remanded the case to the state district court to
resolve the remaining issues and make specific findings of facts and conclusions of law
as to each issue. The OCCA concluded that the state district court could review the
original record, allow depositions and affidavits for good cause, and/or conduct an
evidentiary hearing.
On remand, the state district court determined that Petitioner’s claims lacked merit
without holding an evidentiary hearing. This time, the OCCA affirmed.
Petitioner then filed a petition in the United States District Court for the Western
District of Oklahoma seeking habeas relief pursuant to 28 U.S.C. § 2254. The court
denied that petition and denied Petitioner a certificate of appealability.
Petitioner appealed, and we granted a certificate of appealability allowing him to
pursue his claims.
II.
The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”)
requires that we apply a “difficult to meet” and “highly deferential standard” in
7
federal habeas proceedings under 28 U.S.C. § 2254; it “demands that state-court
decisions be given the benefit of the doubt.” Cullen v. Pinholster, 563 U.S. 170, 181
(2011) (internal quotation marks omitted). When a petitioner includes in his habeas
application a “claim that was adjudicated on the merits in State court proceedings,” a
federal court shall not grant relief on that claim unless the state-court decision:
(1) resulted in a decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the Supreme
Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of
the facts in light of the evidence presented in the State court proceeding.
28 U.S.C. § 2254(d)(1)–(2).
Section 2254(d)(1)’s reference to “clearly established Federal law, as
determined by the Supreme Court of the United States,” “refers to the holdings, as
opposed to the dicta, of th[e] Court’s decisions as of the time of the relevant state-
court decision.” Williams v. Taylor, 529 U.S. 362, 412 (2000). “Federal courts may
not extract clearly established law from the general legal principles developed in
factually distinct contexts, and Supreme Court holdings must be construed narrowly
and consist only of something akin to on-point holdings.” Fairchild v. Trammell
(Fairchild I), 784 F.3d 702, 710 (10th Cir. 2015) (internal quotation marks and
citation omitted).
Under § 2254(d)(1), a state-court decision is “contrary to” the Supreme
Court’s clearly established precedent if it “applies a rule that contradicts the
governing law set forth in [Supreme Court] cases” or if it “confronts a set of facts
8
that are materially indistinguishable from a decision of th[e] Court and nevertheless
arrives at a result different from [that] precedent.” Williams, 529 U.S. at 405–06. A
state court need not cite, or even be aware of, applicable Supreme Court decisions,
“so long as neither the reasoning nor the result of the state-court decision contradicts
them.” Early v. Packer, 537 U.S. 3, 8 (2002) (per curiam).
A state-court decision is an “unreasonable application” of Supreme Court law
if the decision “correctly identifies the governing legal rule but applies it
unreasonably to the facts of a particular prisoner’s case.” Williams, 529 U.S. at 407–
08. “The more general the rule, the more leeway courts have in reaching outcomes in
case-by-case determinations.” Yarborough v. Alvarado, 541 U.S. 652, 664 (2004).
Conversely, “[i]f a legal rule is specific, the range may be narrow,” and
“[a]pplications of the rule may be plainly correct or incorrect.” Id. And “an
unreasonable application of federal law is different from an incorrect application of
federal law.” Williams, 529 U.S. at 410 (emphases in original).
If we determine that a state-court decision is either contrary to clearly
established Supreme Court law or an unreasonable application of that law, or that the
decision was based on an unreasonable determination of the facts in light of the
evidence presented in the state-court proceeding, we then apply de novo review and
may only grant habeas relief if the petitioner is entitled to relief under that standard.
Milton v. Miller, 744 F.3d 660, 670–71 (10th Cir. 2014).
Claims not “adjudicated on the merits” in state court are entitled to no
deference. Fairchild I, 784 F.3d at 711 (internal quotation marks omitted). But
9
“even in the setting where we lack a state court merits determination, ‘[a]ny state-
court findings of fact that bear upon the claim are entitled to a presumption of
correctness rebuttable only by “clear and convincing evidence.”’” Grant v. Royal,
886 F.3d 874, 889 (10th Cir. 2018) (alteration in original) (quoting Victor Hooks v.
Workman (Victor Hooks II), 689 F.3d 1148, 1164 (10th Cir. 2012)).
With these standards in mind, we turn to Petitioner’s claims.
III.
Initially, Petitioner asserts that the OCCA did not determine that his
underlying ineffective assistance of trial counsel claims and prosecutorial misconduct
claims were procedurally barred and that he properly presents those claims to us
(rather than arguing that his appellate counsel was constitutionally ineffective for
failing to assert those claims on direct appeal). We do not necessarily agree, but we
need not resolve that issue because an ineffective assistance of appellate counsel
claim lacks merit if the petitioner argues that appellate counsel should have asserted
meritless claims. Ryder ex rel. Ryder v. Warrior, 810 F.3d 724, 746–47 (10th Cir.
2016). And for the reasons discussed below, we are satisfied that none of the claims
Petitioner advances here have merit.
A. Ineffective Assistance of Trial Counsel
Petitioner contends that trial counsel acted ineffectively by failing to:
(1) investigate a medical defense; (2) investigate and present expert forensic
interview testimony; and (3) present additional evidence that K.B. was dishonest,
manipulative, and attention-seeking.
10
1. Legal Standard
We review claims of ineffective assistance of counsel under the framework set
forth in Strickland v. Washington, 466 U.S. 668 (1984). Byrd v. Workman, 645 F.3d
1159, 1167 (10th Cir. 2011). Under Strickland, a petitioner “must show both that his
counsel’s performance ‘fell below an objective standard of reasonableness’ and that
‘the deficient performance prejudiced the defense.’” Id. (emphasis omitted)
(quoting Strickland, 466 U.S. at 687–88). “These two prongs may be addressed in
any order, and failure to satisfy either is dispositive.” Victor Hooks II, 689 F.3d at
1186.
“[O]ur review of counsel’s performance under the first prong of Strickland is a
‘highly deferential’ one.” Byrd, 645 F.3d at 1168 (quoting Danny Hooks v.
Workman, 606 F.3d 715, 723 (10th Cir. 2010)). “Every effort must be made to
evaluate the conduct from counsel’s perspective at the time.” Littlejohn v. Trammell
(Littlejohn I), 704 F.3d 817, 859 (10th Cir. 2013) (quoting United States v.
Challoner, 583 F.3d 745, 749 (10th Cir. 2009)). “[C]ounsel is strongly presumed to
have rendered adequate assistance and made all significant decisions in the exercise
of reasonable professional judgment.” Victor Hooks II, 689 F.3d at 1187
(quoting Byrd, 645 F.3d at 1168). And the “petitioner ‘bears a heavy burden’ when it
comes to overcoming that presumption.” Byrd, 645 F.3d at 1168 (quoting Fox v.
Ward, 200 F.3d 1286, 1295 (10th Cir. 2000)). “To be deficient, the performance
must be outside the wide range of professionally competent assistance. In other
11
words, it must have been completely unreasonable, not merely wrong.” Danny
Hooks, 606 F.3d at 723 (internal quotation marks and citation omitted).
“A state prisoner in the § 2254 context faces an even greater challenge.”
Victor Hooks II, 689 F.3d at 1187 (citing Byrd, 645 F.3d at 1168). “[W]hen
assessing a state prisoner’s ineffective-assistance-of-counsel claims on habeas
review, ‘[w]e defer to the state court’s determination that counsel’s performance was
not deficient and, further, defer to the attorney’s decision in how to best represent a
client.’” Id. (alterations in original) (quoting Byrd, 645 F.3d at 1168). “Thus, our
review of ineffective-assistance claims in habeas applications under § 2254 is
‘doubly deferential.’” Id. (quoting Knowles v. Mirzayance, 556 U.S. 111, 123
(2009)).
“Federal habeas courts must guard against the danger of equating
unreasonableness under Strickland with unreasonableness under § 2254(d).
When § 2254(d) applies, the question is not whether counsel’s actions were
reasonable. The question is whether any reasonable argument exists that counsel
satisfied Strickland’s deferential standard.” Harrington v. Richter, 562 U.S. 86, 105
(2011) (emphasis added). And “because the Strickland standard is a general
standard, a state court has . . . more latitude to reasonably determine that a defendant
has not satisfied that standard.” Byrd, 645 F.3d at 1168 (emphasis added) (ellipsis in
original) (quoting Knowles, 556 U.S. at 123).
“Under the prejudice prong [of Strickland], a petitioner must demonstrate ‘a
reasonable probability that, but for counsel’s unprofessional errors, the result of the
12
proceeding would have been different.’” Littlejohn v. Royal (Littlejohn II), 875 F.3d
548, 552 (10th Cir. 2017) (quoting Strickland, 466 U.S. at 694).
2. Claims
i. Medical Defense
Petitioner argues that trial counsel was ineffective because he failed to
investigate a medical defense to the charges and that failure prejudiced him. In
support of his contention, he directs us to the affidavit of Dr. John H. Stuemky. That
affidavit opines that:
[S]ome of the information disclosed by the girl indicating multiple
episodes of anal rape and that it was forced and against her will, and in
the absence of lubricant and not hurting is also rather difficult to believe.
This includes feeling ejaculate and that it was cold. If all of the above
occurred—forced anal rape, multiple times, without lubricant, against her
will, [sic] would seem more likely that there should have been physical
findings. All of the above would be of great concern.
Dr. Stumeky also notes that K.B.’s story of fighting back “simply does not fit
with ongoing child molestation by fathers/stepfathers” and that her “denial of pain
does not fit with her allegations of fighting back and that force was used.”4
a. Prior Decisions
4
Respondent contends Petitioner did not properly present this evidence to the
federal district court. We assume Petitioner properly presented the evidence because
that assumption does not alter the outcome of the appeal.
We also note, although it is not entirely clear, that Petitioner appears to argue
under this claim that he was prejudiced because Dr. Stuemky could not testify that
Officer Cox’s interview with K.B. presented a major conflict of interest and a risk of
intimidation. But Petitioner waived that argument with respect to this claim because,
before the federal district court, he only argued that the evidence was relevant to his
forensic expert claim. See Stouffer v. Trammell, 738 F.3d 1205, 1221 n.13 (10th Cir.
2013).
13
The state district court rejected this claim because Dr. Stuemky’s
review of this matter . . . did not include a review [of] the testimony of Dr.
McKinnon and . . . did not offer an opinion of whether he would agree or
disagree with that testimony. In fact, although not offered in his affidavit,
the 90% statistic is a well known opinion of Dr. Stuemky and thus his
testimony may have tended to support the testimony of Dr. McKinnon. In
addition, while it is not directly stated by Dr. Stuemky, it is clear that he
believes this may be one of the 10% cases due to the allegations. It is
interesting to note that Dr. Stuemky does not say that there would be physical
findings in this matter only that it would “seem more likely that there should
have been physical findings.” Dr. McKinnon was thoroughly cross-
examined on this point and concedes in effect the same conclusion: that the
number of episodes, with force, without lubrication may have left physical
finding and that he found none. The information proffered by Defendant was
clearly before the jury without the introduction of additional testimony.
Order dated Nov. 24, 2015, Whitely, No. CF-2006-250, slip op. at 7–8 (emphasis in
original). On appeal, the OCCA affirmed because, among other reasons, Petitioner
had not shown any prejudice from counsel’s omissions.
The federal district court concluded the OCCA’s determination was not
unreasonable. It stated:
Dr. Stuemky’s affidavit fails to challenge Dr. McKinnon’s testimony in any
meaningful way and does not establish[] that K.B. would have absolutely had
injury. Further, Dr. McKinnon testified that forced anal penetration without
lubrication would likely: (1) be painful; (2) cause bleeding; and (3) create a
greater chance of injury. See supra p. 9. In sum, assuming Dr. Stuemky
would have testified as his affidavit is presented, the expert would not have
provided any substantive information that the jury did not already hear.
Accordingly, the OCCA reasonably applied Strickland’s prejudicial prong in
finding there was not a reasonable likelihood that the results of Petitioner’s
trial would have been different had trial counsel investigated so as to call Dr.
Stuemky as a witness. See Hanson v. Sherrod, 797 F.3d 810, 832 (10th Cir.
2015) (“We cannot say it was unreasonable for the OCCA to hold that [the
cumulative evidence] would not have changed the outcome of Hanson’s
trial.”). And, because the claim would have therefore lacked merit on direct
appeal, the OCCA further reasonably applied Strickland in finding no
reasonable likelihood that the outcome of the direct appeal would have been
14
different had appellate counsel challenged trial counsel’s conduct. See
Fairchild v. Trammell, 784 F.3d 702, 715 (10th Cir. 2015) (“To prevail on a
claim of ineffective assistance of appellate counsel, a defendant must
establish that . . . there is a reasonable probability that, but for this
unreasonable failure, the claim would have resulted in relief on direct
appeal.”).
Whitely v. Farris, No. CIV-16-514-HE, 2018 WL 1733997, at *6 (W.D. Okla. Jan. 10,
2018), report and recommendation adopted, No. CIV-16-514-HE, 2018 WL 1732072
(W.D. Okla. Apr. 10, 2018).
b. Analysis
As a preliminary matter, Petitioner contends that we should review this claim
de novo because the state courts unreasonably concluded that the evidence in Dr.
Stuemky’s affidavit did not prove prejudice. He characterizes his argument as an
argument that Dr. Stuemky’s affidavit rebuts by clear and convincing evidence the
state courts’ speculative factual findings that Petitioner’s “‘different or better
experts’ were the ‘benefit of hindsight.’” He reasons that the affidavit—in light of its
statement that the absence of physical evidence and other factors are “of great
concern”—indicates that Dr. Stuemky believes the lack of physical evidence
substantially undermines K.B.’s credibility.
It is not immediately evident to us that that the state courts made a factual
finding, as opposed to a legal determination. But even if they did make a factual
finding, Petitioner’s argument lacks merit. Although Dr. Stuemky indicated that the
absence of physical evidence—among other factors—is “of great concern,” it is not
clear that Dr. Stuemky believes the lack of physical evidence alone substantially
15
undermines K.B.’s credibility.5 Resolving this issue in Petitioner’s favor would itself
require speculation.6 Under these circumstances, Petitioner has not rebutted any
factual determination by clear and convincing evidence. We thus decline to review
this claim de novo on that basis.7
Further, we agree with the district court that the OCCA’s resolution of this
claim was not an unreasonable application of Strickland. Insofar as he indicated
physical evidence of abuse would be more likely under the circumstances presented
5
We note that at trial, defense counsel extensively addressed the other factors
Dr. Stuemky identified as difficult to believe and of great concern.
6
Petitioner also contends that by denying him an evidentiary hearing, the state
district court prevented him from resolving the court’s “speculative concern.” He
does not initially argue for de novo review on this basis, nor does he cite any legal
authority that would support such relief.
Relatedly, Petitioner also contends that the state district court’s failure to hold
an evidentiary hearing prevented Petitioner from producing Dr. McKinnon or
obtaining his studies to prove the 90 percent statistic was not relevant. But he once
again fails to argue for de novo review or cite any legal authority showing he is
entitled to any relief.
In the last sentences of the section of his opening brief which addresses Dr.
McKinnon’s testimony and Dr. Stuemky’s affidavit, Petitioner finally argues that
“[t]he State court[’]s finding of fact and application of established Supreme Court
precedent are unreasonable. 28 U.S.C. § 2254(d)(1) and (2)[.] The Court owes no
deference.” But that conclusory assertion still identifies no Supreme Court precedent
that the OCCA unreasonably applied.
7
Petitioner faults the state courts for highlighting that Dr. Stuemky did not say
that a doctor would have found physical signs of abuse. Based on that statement, he
contends that the state court required him to make a greater showing of prejudice
than Strickland requires. This argument is not persuasive. When the state district
court made that statement, it was analyzing the content of Dr. McKinnon’s testimony
and Dr. Stuemky’s affidavit to determine whether the evidence was cumulative. It
did not impermissibly require Petitioner to satisfy a heightened burden on his
ineffective assistance of counsel claim.
16
in this case, Dr. Stuemky’s affidavit is essentially cumulative of Dr. McKinnon’s trial
testimony. “Generally, counsel’s failure to call witnesses whose testimony would be
corroborative or cumulative of evidence already presented at trial is not deemed
constitutionally deficient.” Snow v. Sirmons, 474 F.3d 693, 729 (10th Cir. 2007).
The other statements in Dr. Stuemky’s affidavit also add little to Petitioner’s
case. Dr. Stuemky indicates that K.B.’s story of fighting back “simply does not fit
with ongoing child molestation by fathers/stepfathers” and that her “denial of pain
does not fit with her allegations of fighting back and that force was used.” But at
trial, no one contended that K.B.’s testimony about fighting Petitioner was, in fact,
true.
Koelling testified that: (1) K.B. was likely describing her ability to fight back
“from her perspective”; (2) there is a lot of shame in being a victim and, because of her
helplessness, K.B. was “looking for things that she did or she could have done to change
the situation”; and (3) “[s]ome of the things [K.B.] told me were difficult for me to
comprehend.” And in its rebuttal argument, the prosecution argued:
First one I want to talk about that they want to make a big thing out of is the
fighting back and the hiding. [K.B.] tells you that she fought back, and I
don’t doubt that she wanted to. Don’t doubt for a minute that she wanted to
fight back and she wanted to punch and she wanted to hit him and kick him,
and in her mind, as she’s closing her eyes, as she’s being raped, she probably
is fighting him and she probably is hitting him and she probably is hiding
under her bed and she probably is hiding in her closet.
But what’s really going on is the defendant is raping her. She probably
fought the first few times, but after that it wasn’t worth it. It was gonna
happen anyway. He’s in her home. He’s where she lives. She can’t hide
from him every day, all day. Maybe should get it over with for that time that
day, maybe he won’t do it to you that night.
17
So I bet she did fight some. But a lot of what she says about the fighting is
children not wanting to admit that they laid there and allowed that to happen
to them over and over and over and over again. So she’s hiding. So she’s
fighting.
In light of this testimony and argument, it is unlikely that the jury that convicted
Petitioner did so because it believed that K.B. had routinely fought Petitioner when he
attempted to sexually assault her. Thus, a court could reasonably conclude that no
reasonable probability existed that this evidence from Dr. Stuemky—which was
predicated on K.B.’s testimony about fighting back—would alter the outcome of the trial.
Under these circumstances, the OCCA did not unreasonably deny Petitioner’s
claim.
ii. Forensic Interview Expert
Petitioner also argues that trial counsel was ineffective when he presented Dr.
Ingraham as his forensic interview expert because: (1) she was not a forensic
interview expert; (2) counsel had not gone over Dr. Ingraham’s testimony with
her; (3) she had not reviewed the Officer Cox interview before trial; and (4) her
testimony regarding memory distortion was irrelevant and reduced the significance of
K.B.’s inconsistent statements, which weakened Petitioner’s argument that K.B. was
lying.
Petitioner supports his claims with an affidavit from Dr. Maggie Bruck, Ph.D.8
In her affidavit, Dr. Bruck states that Officer Cox: (1) “should not have been allowed
8
In addition, Petitioner directs us to an affidavit from his post-conviction
investigator that he claims establishes that: (1) Koelling would not have re-
18
to interview K.B.”; (2) “used a number of interrogatory techniques used by police to
produce confessions from suspects”; and (3) could have caused K.B. to produce a
false statement by using those techniques on a child removed from her home who
could not contact her mother and missed her. Dr. Bruck also asserts that Dr.
Ingraham’s suggestibility/memory distortion testimony was irrelevant because K.B.
interviewed K.B. if she had been aware of Officer Cox’s interview; and (2) Koelling
admits K.B. may have fabricated her accusations. But the only reference to this
evidence in the federal district court is in Petitioner’s Statement of the case. There,
he asserts:
On August 4, 2014, Mr. Whitely filed a motion in the trial court to
supplement his post-conviction application with evidence from Tracy
Koelling, the state’s forensic interviewer who testified at trial. As an
offer of proof, Mr. Whitely submitted an affidavit prepared by Private
Investigator Frank Gaynor, who interviewed Koelling. (R. 1443-49)
Petition Under 28 U.S.C. 2254 for Writ of Habeas Corpus By a Person in State Custody
at 4, Whitely v. Farris, No. CIV-16-514-HE, 2018 WL 1732072 (W.D. Okla. Apr. 10,
2018). He did not, however, identify the evidence in the affidavit or argue its
significance. Because Petitioner did not adequately present that evidence to the federal
district court, we do not consider it here.
Petitioner also directs the court to the affidavit of Dr. H. D. Kirkpatrick, Ph.D.
But, with respect to that affidavit, he merely argues that:
Post-conviction counsel also obtained an independent, unbiased forensic
analysis of K.B.’s statements from Dr. [H. D.] Kirkpatrick. (R 534-63)
Kirkpatrick applied a rule-out hypothesis approach and found that K.B.’s
statements support conflicting conclusions. (R. 551-52)
He does not argue why it is significant that K.B.’s statements support conflicting
conclusions or how he was prejudiced by the absence of the evidence contained
therein. Thus, we do not consider it. See Adler v. Wal-Mart Stores, Inc., 144 F.3d
664, 679 (10th Cir. 1998) (“Arguments inadequately briefed in the opening brief are
waived.”).
19
had admitted to the abuse in a note that pre-dated her interview with Officer Cox, and
that an expert should have instead testified about lies in childhood.
Petitioner also submits the affidavit of Dr. Stuemky. In his affidavit, Dr.
Stuemky criticizes Officer Cox’s interview with K.B. He indicates that the interview
presented a major conflict of interest and a risk of intimidation because Officer Cox
had: (1) worked as a police officer in the same police department as K.B.’s parents;
and (2) interviewed K.B. late at night without any observers or any videotape.
Lastly, Petitioner identifies portions of Dr. Ingraham’s trial testimony where
she stated that she was: (1) testifying that Officer Cox was “wrong”; and (2) not
opining that K.B. was lying.
a. Prior Decisions
The state district court rejected this claim for several reasons. First:
Of the nine (9) points offered by Dr. Stuemky, seven (7) deal with the
disclosures made by and interviews of the child rather than the physical
examination itself. All seven of those concerns were addressed by defense
counsel in the cross-examination of Dr. McKinnon. In addition, defense
counsel addressed many of those issues with Linda Ingraham, the expert
forensic psychologist called by the defense. Dr. Stuemky also opines that
the first interview of the child was appropriate and well done. This
information, if testified to, would have further supported State’s case and
would have contradicted another proffered expert, Dr. Maggie Bruck. In
fact, Defendant specifically alleges that bolstering the State’s case is
problematic when he argues that trial counsel was ineffective by presenting
Dr. Ingraham, who also testified that the forensic interviews were
appropriately done. Either Dr. Stuemky would be supporting, yet again, the
opinion that the interview was appropriate or, if Dr. Bruck had testified, he
would be contradicting another defense witness. This would have been
detrimental to the defense.
Order dated Nov. 24, 2015, Whitely, No. CF-2006-250, slip op. at 8–9.
20
Second:
Both [Dr. Maggy Bruck and Dr. H. D. Kirkpatrick] are as well qualified in
their fields as Dr. Ingraham and espouse alternative theories to present to the
jury. Dr. Bruck, primarily puts forth a position of attacking the credibility of
the child as opposed to the memory distortion theory espoused by Dr.
Ingraham and would present information regarding the invalidity, from her
perspective, of the forensic interviews. Dr. Kirkpatrick would present
information about confirmatory bias thus attacking the interview techniques.
A portion of the opinions were covered in the cross-examinations of Dr.
McKinnon, Tracy Koelling (forensic interviewer) and Officer Cox as well as
in the direct examination of Dr. Ingraham. Some of the opinions proffered
clearly contradict other expert evidence given. However, particularly as it
relates to Dr. Bruck, there are valid strategic reasons to proceed with opinions
such as that offered at trial. In particular, attacking the credibility of [a] child
witness is perilous. A jury may feel more sympathy for the child after the
repeated attempts to cast her as a liar. The defense offered two theories for
not believing the statements of the child—that the child had fabricated the
story and that she had a distorted memory of the events. These are valid
defense theories which provided the jury with options. Because a valid
strategic reason exists for the manner in which the underlying case
proceeded, it cannot be found to be below an objectively reasonable standard.
This seems to be exactly the trap that the Strickland court warns against—
that hindsight often provides us with many different avenues to traverse. But
this Court does not find, based upon the totality of the trial record, that trial
counsel’s strategic decision to offer the memory distortion theory was
unreasonable or fell below the standard required.
Id. at 9–10.
On appeal, the OCCA affirmed. It reasoned that:
[The state district court] thoroughly examined [Petitioner’s] claims regarding
what seems to be a battle of the experts. A review of trial counsel’s affidavit
reveals that, in hindsight, counsel feels that he could have handled
[Petitioner’s] trial differently, and that some of the strategic decisions he
made did not work out as intended.
Order Granting Request to Associate Counsel and Affirming Denial of Post-
Conviction Relief, Whitely v. Oklahoma, No. PC 2015-1120, slip op. at 8 (Okla.
Crim. App. Apr. 22, 2016).
21
The federal district court also rejected this claim. It determined the OCCA’s
decision was not unreasonable because the evidence that Petitioner advanced was
essentially cumulative. It reasoned that, at trial, Dr. Ingraham (1) had extensively
criticized Officer Cox’s interview techniques; (2) had testified about her concerns
regarding the absence of details in K.B.’s allegations and various improbabilities
presented therein; (3) had not testified that the anal rape had occurred; and (4) had
not testified that K.B. was not lying and instead had taken no position on the truth or
falsity of the allegations. It further reasoned that although Dr. Bruck and Dr.
Ingraham had presented conflicting opinions regarding Koelling’s second interview,
the jurors watched the second interview and were able to determine for themselves
whether Koelling appeared biased towards disclosure.
b. Analysis
We agree with the district court’s analysis for several reasons. First, the
evidence does not show Dr. Ingraham harmed Petitioner’s case. Although Dr.
Ingraham indicated she was not opining that K.B. was lying, she also never testified
that K.B.’s allegations were true.
Further, when she testified that Officer Cox was not “wrong,” Dr. Ingraham
was opining that his conduct may have been proper from a community safety
perspective. She did not testify that his conduct did not undermine the credibility of
K.B.’s allegations—in fact, she specifically testified that he was untrained and that
his interview was inconsistent with protocols for interviewing child victims of sexual
22
abuse, had “introduced a possible source distortion,” and may have distorted K.B.’s
memory.
In addition, the evidence of memory distortion is not clearly inapplicable to
this case. Although K.B. wrote a note to her friends before her interview with
Officer Cox, no expert indicated to the jury9 that the note (even if a lie) would have
prevented Officer Cox from distorting K.B.’s memory at his interview—and K.B.’s
post-note allegations are expansive.
And even if Dr. Ingraham’s memory distortion testimony was not entirely
relevant, we are satisfied that testimony did not materially prejudice Petitioner. That
testimony did not clearly undermine Petitioner’s argument that K.B.’s inconsistencies
showed she was lying. Dr. Ingraham testified that she would expect K.B. to
remember pain and bleeding unless she “blocked” the experience. She further
testified that K.B. did not, in her opinion, have that type of traumatic amnesia. By
opining in that manner, Dr. Ingraham’s testimony left ample room for counsel to
argue that the inconsistencies in K.B.’s testimony showed she was lying.
Second, Petitioner was not prejudiced in the manner that Strickland requires
by the absence of the evidence he now presents. As the district court recounted, both
Dr. Ingraham and Koelling testified extensively about the proper techniques for
9
Dr. Bruck’s affidavit asserts that memory distortion testimony is appropriate
only when questioners suspect wrongdoing and the child was initially silent (unlike
here where K.B. wrote the note). But no such limitation was described to the jury.
23
interviewing child victims of sexual abuse, which Officer Cox clearly did not follow.
Indeed, Dr. Ingraham specifically criticized Officer Cox’s interview.
In addition, Officer Cox testified at trial that he interviewed K.B. at night (at
approximately 9:15 p.m.),10 that Mrs. Whitely and Petitioner worked at the Noble
Police Department as dispatchers, and that K.B. had been present there on several
occasions. Even in the absence of Dr. Stuemky’s testimony on that issue, the jury
was well-equipped to evaluate the risk of intimidation or conflict of interest from
those circumstances.
The allegations regarding the second Koelling interview also do not establish
the prejudice that Strickland requires. True, Dr. Bruck’s affidavit indicates that
during the second interview, Koelling was merely seeking to elicit as many abuse-
consistent details as possible and did not test the hypothesis that K.B. had made up
the allegations despite K.B.’s inconsistent allegations. The jury, however, watched a
video of the second interview and the jurors were able to: (1) consider the
inconsistencies; and (2) observe the extent to which Koelling did or did not challenge
K.B. and did or did not explore the hypothesis that no sexual abuse had occurred.
Thus, they were able to evaluate the interview themselves.
Lastly, we note that Dr. Bruck did not review K.B. or L.W.’s testimony. Their
testimony was significant because K.B. and L.W. testified that K.B. was known to
10
Petitioner posits that Officer Cox may also have been in uniform during the
interview. But he directs us to no evidence that was the case. To the extent he
asserts that it is a reasonable inference that Officer Cox was in uniform, a jury is just
as capable of drawing that inference when considering any pressure on K.B.
24
lie. Because Dr. Bruck did not review this testimony, which is specific to K.B., her
affidavit does not clearly indicate that additional expert testimony on childhood lying
was necessary.
Thus, because the record supports a determination that Dr. Ingraham did not
materially harm Petitioner’s case and the evidence Petitioner advances now would
not have materially benefitted his case, we are satisfied that the OCCA did not
unreasonably apply Strickland.
iii. Evidence of K.B.’s Dishonesty, Manipulation, and Attention-Seeking
Petitioner next argues that his counsel acted ineffectively by failing to present
additional evidence of K.B.’s prior dishonesty, manipulation, and attention-seeking
behavior. Petitioner contends counsel should have called impeachment witnesses and
witnesses who could testify about K.B.’s reputation, and that the state courts
unreasonably concluded the absence of that evidence did not prejudice him.
a. Prior Decisions
The state district court analyzed this claim as part of a larger claim that “trial
counsel was ineffective for failing to present certain witnesses that would possess
relevant information that would tend to disprove” K.B.’s allegations. The state district
court denied that claim because:
[t]he Affidavits of Danny Moss, Jeanna Moss, Shirely Orsak, and Toni
Snyder are observations of neighbors who had no extensive contact with the
Whitelys or the child. The testimony proffered is that they never saw
anything that would indicate to them that abuse was occurring. (For
example: “I never noticed anything unusual about our neighbors”, “They
appeared to be a normal family” . . . ). These statements have minimal
relevance at best. The Affidavits of Renee Haley, Jack Tracy, and Jack
25
Haley, all rely on hearsay as the basis for their opinions as to the child’s
character for untruthfulness. Frances Burnett could only testify as to the
general character for untruthfulness but had no specific instances. These
statements would not have been admissible and therefore it was not error on
the part of trial counsel to not sponsor those witnesses. In addition, their
observations as to not observing any behavior on the part of the child or the
Defendant, like those of the witnesses above, would only have minimal
relevance. This is particularly true in light of the fact that the same
information was presented by Larry Whitely, Sr. Furthermore, Defense
counsel was able to provide specific instances of untruthfulness to the jury
through the testimony of [L.W.]. Defense counsel was also able to argue that
the victim was a “troubled” and “untruthful” child in his closing argument.
Counsel’s conduct was not objectively unreasonable.
Order dated Nov. 24, 2015, Whitely, No. CF-2006-250, slip op. at 10–11. The
OCCA affirmed without any additional analysis.
The federal district court held that Petitioner was not entitled to relief because:
Petitioner’s attorney elicited testimony from K.B.’s friend that people at
school called K.B. a liar, see Tr. Vol. II at 381, and K.B. herself admitted
that she had been in trouble for lying. Tr. Partial Proceedings (dated Jan. 24,
2007) at 97. And, while K.B. claimed not to remember the meeting,
Petitioner’s attorney was able to suggest through his questioning that K.B.
had visited with Jack Tracy about her lying. Id. Additionally, trial counsel
called Petitioner’s father, Larry Whitely, who presented evidence that K.B.
could not have hidden in the closet or under the bed as she had suggested.
See Tr. Vol. IV at 791-92. Finally, in questioning Dr. Ingraham, Petitioner’s
attorney elicited evidence that K.B., after making her allegations, “was
getting attention” “which is important to a child.” Id. at 743. In closing
argument, trial counsel used all this information to emphasize K.B.’s alleged
dishonesty and the incredibility of her allegations. See Tr. Vol. V at 858,
860-61.
In light of this evidence, and based in large part of the generalness of the
proffered testimony, Petitioner simply cannot establish any reasonable
probability that the outcome of his trial would have been any different if trial
counsel had called these witnesses, or, in the case of Kelly Whitely, asked
her different questions. Accordingly, the OCCA reasonably applied
Strickland in finding no prejudice in trial counsel’s failure to call these
witnesses, and subsequently, in appellate counsel’s failure to raise this claim
on direct appeal.
26
Whitely, 2018 WL 1733997, at *11, report and recommendation adopted, 2018 WL
1732072.
b. Analysis
The district court did not err by denying relief on this claim. While Petitioner
directs us to additional evidence of K.B.’s dishonesty, that evidence is largely cumulative
of the testimony produced at trial and highlighted in trial counsel’s closing argument. In
addition, Dr. Ingraham testified that attention is important to children. Although the
evidence that Petitioner now asserts is stronger and more specific to K.B., when we apply
our deferential standard of review, the record does not compel a determination that a
reasonable probability of a different outcome exists. Thus, having considered the
evidence proffered and presented in this case, we are satisfied that the state courts did not
unreasonably apply Strickland.
B. Prosecutorial Misconduct
Petitioner brings two prosecutorial misconduct claims. First, he contends that
the prosecutor used false testimony to secure his conviction. Second, he argues that
the government improperly coerced Mrs. Whitely. We address each claim in turn.
1.
Petitioner’s first prosecutorial misconduct claim is that the Oklahoma state
courts unreasonably applied Napue v. Illinois, 360 U.S. 264 (1959), when they
resolved his claim that the prosecution relied on false testimony to secure his
27
conviction. Specifically, he contends that Mrs. Whitely testified falsely when she
indicated she was not “here today in support of [Petitioner].”11
To establish a Napue violation, a petitioner must show that “(1) [a witness’s]
testimony was in fact false, (2) the prosecution knew it to be false, and (3) the
testimony was material.” United States v. Caballero, 277 F.3d 1235, 1243 (10th Cir.
2002).
Petitioner directs us to several items of evidence to support his claim. First, he
directs us to his own affidavit, in which he asserts that:
My wife was present each day at the trial to support me, she had supper
with me and she stayed with me two or three nights at the motel I stayed
at during the trial. She continuously believed that I was innocent. I know
this because she communicated it to me.
Second, Petitioner submits certain records from the Oklahoma Department of
Human Services. Those records indicate: (1) during an interview on February 5,
2006, Mrs. Whitely said, in reference to the allegations, “I just can’t see it,” later
“seemed to be leaning toward believing [K.B.] and accepting the possibility that the
allegations [were] true,” and subsequently stated that her “gut was telling her” the
events described in K.B.’s allegations did not occur; (2) on May 31, 2006, a DHS
employee and K.B.’s attorney observed Petitioner and Mrs. Whitely hugging and
11
Petitioner also argues that Mrs. Whitely testified falsely when she testified
that a divorce action was pending. Significantly, Petitioner first raised the divorce
testimony in federal court in his objections to the Magistrate Judge’s report and
recommendation. “Issues raised for the first time in objections to the magistrate judge’s
recommendation are deemed waived.” Marshall v. Chater, 75 F.3d 1421, 1426 (10th Cir.
1996).
28
kissing each other for eight minutes after a court hearing; (3) on August 25, 2006,
when the DHS employee confronted Mrs. Whitely about the May 31, 2006 events,
Mrs. Whitely said she believed Petitioner “at that time but now has no doubts that
[Petitioner] hurt [K.B.]”; and (4) during an assessment of Mrs. Whitely’s home on
August 28, 2006, Mrs. Whitely made a comment that led a DHS employee to believe
that Mrs. Whitley did not believe Petitioner abused K.B. Those events occurred
before the trial in this matter.
Third, Petitioner cites witness testimony at his sentencing, which indicates that
Mrs. Whitely did not believe K.B.’s allegations against him.
Petitioner also directs us to the prosecution’s closing argument. There, the
prosecution argued that the jurors “didn’t hear [K.B.’s] mom come in here and you
didn’t hear her mom say she was a liar. And she would be the one who would know
more than anyone.”
The Respondent argues, among other things, that the prosecutors did not
violate Napue because the “alleged false testimony was about [Mrs. Whitely’s]
subjective state of mind during the trial” and, as such, “[t]he only person who could
ever know whether Mrs. Whitely’s answer was true or false [wa]s Mrs. Whitely.”
We conclude that this claim lacks merit even if we review it de novo.12 But
before we explain why we conclude that the prosecution did not violate Napue, we must
12
Petitioner argues that the state courts did not address this claim and that he
is entitled to de novo review. We do not resolve that issue because, as we noted
above, his claim also fails when we review it de novo.
29
emphasize the limited nature of our holding. In this opinion, we do not determine
whether Napue may ever apply to subjective intentions or beliefs. We also do not decide
whether the prosecution may violate Napue when a witness’s statements regarding their
subjective belief or intentions at trial conflict with prior unequivocal statements regarding
the witness’s beliefs or intentions prior to trial. Our holding here is more modest; we
merely hold that where a witness: (1) makes equivocal or contradictory statements
regarding her intentions or beliefs prior to trial; (2) then testifies regarding her current
subjective intentions or beliefs at the time of trial in a manner inconsistent with some of
those prior statements and consistent with others; and (3) no other evidence indicates that
the prosecution knew the witness’s testimony was false, the petitioner has not made a
sufficient showing that the prosecution knew the trial testimony was false.
We reach this conclusion for several reasons. First, the subjective nature of this
inquiry renders it difficult for the prosecution to determine whether a witness is lying,
even if the witness’s prior statements are inconsistent with the witness’s statement
regarding her current beliefs and intentions. And if the witness has made contradictory or
equivocal statements in the past, it would be even more difficult for the prosecution to
know the truth or falsity of the statement at trial.
Second, under these circumstances, the evidence available to the prosecutor
regarding the witness’s subjective intentions and beliefs is essentially ambiguous. When
presented with ambiguous evidence, the prosecution is entitled to argue the view of that
evidence most favorable to it. See United States v. Blueford, 312 F.3d 962, 968 (9th Cir.
2002) (“It is certainly within the bounds of fair advocacy for a prosecutor, like any
30
lawyer, to ask the jury to draw inferences from the evidence that the prosecutor believes
in good faith might be true. But it is decidedly improper for the government to propound
inferences that it knows to be false, or has very strong reason to doubt, particularly when
it refuses to acknowledge the error afterwards to either the trial court or this court and
instead offers far-fetched explanations of its actions.”). If we were to hold that, in a case
like this, the government must inform the jury that the less favorable view of ambiguous
evidence was correct, we would infringe on the prosecution’s right to present its case.
Here, Petitioner has not shown that the prosecution knew that Mrs. Whitely’s
testimony was false. As we previously discussed, Petitioner directs the court to certain
evidence to support his claim. But it is clear that the prosecution did not know Mrs.
Whitely’s sentencing testimony during the trial. Petitioner also does not direct us to any
evidence that the prosecution was aware of the facts Petitioner asserts in his affidavit.
Thus, the only evidence pertinent to the prosecution’s knowledge at trial is the evidence
contained in the DHS records. That evidence is equivocal and reflects shifting positions
by Mrs. Whitely. Based only on that evidence, no reasonable factfinder could conclude
that the prosecution knew Mrs. Whitely’s testimony was false.
2.
Petitioner also argues that the prosecution, in violation of his due process
rights, prevented Mrs. Whitely from testifying that she did not believe K.B.’s
allegations by repeatedly informing her that her children would not be returned to her
if she supported Petitioner.
31
To establish a violation of his due process rights, Petitioner must “provide
evidence that there was actual government misconduct in threatening or intimidating
potential witnesses and that such witnesses otherwise would have given testimony both
favorable to the defense and material.” United States v. Allen, 603 F.3d 1202, 1211 (10th
Cir. 2010).
a. Prior Decisions
The state district court rejected this claim for several reasons:
In his affidavit, trial counsel states that he did not ask certain questions of
[Mrs.] Whitely because he believed her fear of DHS might consume her.
This was a valid strategic reason not to ask particular questions-counsel did
not know whether [Mrs.] Whitely’s testimony would assist his client.
Furthermore, the affidavit of Kelly Whitely now proffered is inconsistent
with other statements. In particular, that the child always lied and made bad
grades. The affidavit offered by the child’s teacher indicates that she was her
“top student”, was not dishonest and was a very moral child. See Affidavit
of Julie Curry. This was also indicated by the Affidavit of [M.M.] (offered
by the Defendant) when she stated that [K.B.] never lied about big stuff and
only told little white lies. In addition, the Affidavit of Michael Baker (offered
by the Defendant) calls into question the character and credibility of Kelly
Whitely. All of this evidence, offered by the Defendant, tends to cast doubt
on the credibility of the statement of Kelly Whitely offered long after she
“had nothing left to lose”.
These issues also are relevant to the claim of Prosecutorial Misconduct raised
by the Defendant. [Mrs.] Whitely states that she was pressured into not
supporting her husband, the defendant, for fear of reprisals from DHS.
However, nothing in the record indicates that the statements made by the
prosecution or DHS were false nor that anyone indicated to [Mrs.] Whitely
that she should make false statements in court. The Court in Roy v. State,
2006 OK CR 4 7, stated that “Relief will be granted on a prosecutorial
misconduct claim only where the prosecutor committed misconduct that so
infected the defendant’s trial that it was rendered fundamentally unfair, such
that the jury’s verdicts should not be relied upon. In this matter, because the
statements of [Mrs.] Whitely are highly susceptible to credibility attacks (as
stated above) and that there is no evidence that a legal action on behalf of the
32
State in removing her children caused her to testify falsely, the claim of
prosecutorial misconduct must also fail.
Order dated Nov. 24, 2015, Whitely, No. CF-2006-250, slip op. at 11–12.
The OCCA affirmed. In its opinion, it noted that:
The victim’s mother, Kelly Whitely, claimed that she felt pressured into not
supporting her husband, Whitely, based on DHS’s threats of reprisal. [The
state district court] noted there was no supporting evidence in the record for
the claims that statements made by the prosecution or DHS were false, nor
was there any evidence to support a finding that Kelly Whitely was
encouraged to make false statements at trial. The court determined that Kelly
Whitely’s affidavit offered in support of Whitely’s application for post-
conviction relief contained statements which were inconsistent with
statements made by other witnesses, and are “highly susceptible to credibility
attacks”. [The state district court] also found that there was no evidence that
Kelly Whitely was coerced into giving false testimony at trial based on a
threat of legal action to remove her children from her custody. The court
found the claim of prosecutorial misconduct did not warrant relief.
Order Granting Request to Associate Counsel and Affirming Denial of Post-
Conviction Relief, Whitely, No. PC 2015-1120, slip op. at 5. The OCCA then
indicated that it agreed with the lower’s court’s resolution of the issue. Id. at 6. The
OCCA later elaborated that:
[Trial counsel] also confirms that [Petitioner] wanted to testify in his defense,
but that he . . . ultimately convinced [Petitioner] not to take the stand. [Trial
counsel’s] statement regarding Kelly Whitely reads as follows:
16. I realize also that the jury missed some critical information
from my client’s wife who is also [K.B.’s] . . . mother.
Although I had some reasons, at the time, for what I did and
did not ask Kelly Whitely, I think it would have had a major
impact on the jury if the jury had known that Kelly Whitely did
not believe the allegations against my client and that [K.B.]
lied on many occasions.
The affidavit clearly indicates, while not being specific, that [trial counsel]
had reasons for not asking Kelly Whitely questions which she now indicates
33
in her affidavit she would have been willing to answer. As noted in this
Court’s prior order, the question to be resolved is whether or not Kelly
Whitely refused to answer these questions because she was truly intimidated
by D.H.S. and the prosecution or whether at this point, having nothing to
lose, she has changed her story. The real question is, had Kelly Whitely
testified that she disbelieved the victim and believed her husband, would the
results at [Petitioner’s] trial have been different.
Although he asserts that Kelly’s testimony might have had an impact on the
jury, defense counsel . . . states that he had an unspecified reason for limiting
his questioning of Kelly Whitely. We cannot find this strategic behavior to
be objectively unreasonable. Additionally, as noted by [the state district
court], several of the affidavits offered by [Petitioner] in his post-conviction
application call into question Kelly Whitely’s credibility and her character
for truthfulness. The post-conviction claim is that Kelly was faced with a
difficult choice when appearing at [Petitioner’s] trial. We do not disagree.
However, after the trial and prior to knowing that D.H.S. would not be
returning her children to her custody, Kelly wrote a letter to the district court
prior to [Petitioner’s] sentencing advising the court that she did not believe
[Petitioner] committed the offenses and expressing her belief that [K.B.] was
lying. It is difficult to reconcile Kelly Whitely’s claim that she was too
intimidated to testify at trial because she feared losing her children but she
was not afraid of losing them when she chose to write a letter on [Petitioner’s]
behalf prior to sentencing.
Id. at 8–9.
The federal magistrate judge recommended that the district court deny relief
on this claim. The magistrate judge’s report and recommendation reasoned that:
First, as noted above, Petitioner must initially show that the State actually
and substantially interfered with Mrs. Whitely’s decision to testify. See
supra p. 26, 123 S. Ct. 357. But Mrs. Whitely did in fact testify, and as a
defense witness. See Tr. Vol. IV at 819-26. According to Mrs. Whitely’s
testimony, she regularly checked K.B.’s undergarments for blood, believing
K.B. would soon begin menstruating, and never found any. Id. at 820-21.
Moreover, Petitioner claims that had trial counsel asked her at trial, Mrs.
Whitely “would have testified” about K.B.’s lying. Pet. at 52-53. Finally,
as the OCCA noted, Mrs. Whitely wrote a letter to the district court,
approximately one-month after trial, claiming that she did not believe K.B.
and asking the court to overturn the verdict. Or. at 158 (filed stamped Feb.
22, 2007). Then, in March 2007, Mrs. Whitely testified at Petitioner’s
34
sentencing and after repeated cautions from the district court that her
statements could be used against her in the DHS case, Mrs. Whitely said she
was “going to stand by my letter.” Tr. of Partial Proceedings (dated March
29, 2007) at 4-6, 10-11, 13-17. The OCCA found, essentially, that this
evidence showed a lack of substantial coercion and this Court presumes that
factual finding to be correct. See, e.g., Johnson v. Zavaras, 141 F.3d 1184,
1998 WL 141968, at *1 (10th Cir. Mar. 30, 1998) (unpublished op.) (holding,
in the context of a confession, “an underlying factual determination that the
police did not engage in coercive conduct is presumed correct”). Petitioner
has not provided clear and convincing evidence to overcome that
presumption of correctness.
Second, Petitioner must show that Mrs. Whitely’s testimony would have
been material and favorable to his defense, and not merely cumulative to
other witnesses’ testimony. See supra p. 26, 123 S. Ct. 357. As discussed
above, trial counsel elicited testimony regarding K.B.’s alleged dishonesty,
and while certainly her mother could have given “favorable testimony,” this
is insufficient to show prosecutorial misconduct through coercion of a
witness. Id. Petitioner has failed to demonstrate that his specific right to put
forth a defense was so prejudiced as to be a denial of that right, and therefore,
the OCCA’s rejection of Petitioner’s prosecutorial misconduct claim on this
issue was a reasonable application of federal law.
Whitely, 2018 WL 1733997, at *13–14, report and recommendation adopted, 2018 WL
1732072 (emphasis in original).
The district court adopted the report and recommendation. In its order, it stated:
Of the various matters relied on by petitioner here, the evidence as to DHS’s
dealings with Mrs. Whitely is the most troubling to this court. However, the
OCCA accurately noted that Mrs. Whitely testified in her husband’s favor at
the later sentencing hearing despite the same pressures being potentially
present, and there is therefore a plausible basis for the OCCA’s conclusion
that that appellate counsel was not constitutionally ineffective for not raising
that issue on appeal. While this court might not have reached that conclusion
if making the determination in the first instance, that is not the nature of the
court’s determination here. Rather, the question is whether the OCCA’s
resolution of the issue was unreasonable under the deferential AEDPA
standard, and it was not.
Whitely, 2018 WL 1732072, at *2 (footnotes omitted).
35
b. Analysis
Petitioner argues that the OCCA’s determination is an unreasonable application of
Webb v. Texas, 409 U.S. 95 (1972).13 In that case, the Supreme Court determined that
the government violated a defendant’s due process rights when a defense witness refused
to testify due to improper government interference. Id. at 95–98. By contrast, Mrs.
Whitely never refused to testify. In fact, as we previously noted, she provided some
exculpatory testimony when questioned by defense counsel.
Petitioner nevertheless asserts that Webb establishes that the government violated
his due process rights when, allegedly due to government pressure on Mrs. Whitely,
(1) defense counsel decided not to ask her certain questions because he was unsure
whether Mrs. Whitely would answer truthfully, and (2) Mrs. Whitely did, in fact, answer
certain questions untruthfully.
When determining whether a state court holding violates clearly established
federal law, as determined by the Supreme Court, we narrowly construe the Supreme
Court’s holdings. See Fairchild I, 784 F.3d at 710. For that reason, the first issue—
whether defense counsel’s response to government pressure on Mrs. Whitely rendered the
governmental pressure a violation of due process—is a legal principle that falls outside
the reach of Webb. Nothing in Webb indicates that Petitioner may assert a due process
13
Petitioner also contends that the OCCA’s decision is incompatible with
Lynumn v. Illinois, 372 U.S. 528 (1963). That case only addresses whether the
government’s conduct was coercive. Because we determine that Petitioner is not entitled
to relief even if we determine the government’s conduct was coercive, we need not
determine if the OCCA’s decision contravenes Lynumn.
36
claim because his trial counsel refrained from asking a witness certain questions rather
than asking the questions and seeking relief, if necessary, based on the witness’s
responses. Because Webb does not authorize such a claim, Petitioner has not shown that
the state courts unreasonably applied clearly established federal law with respect to the
testimony that Mrs. Whitely claims she would have provided in response to questioning
from counsel.
The second issue—whether clearly-established federal law provides that a
defendant’s due process rights are violated when government pressure results in false
testimony—presents a more difficult question. But we need not resolve that question
here because we conclude that any error was harmless.
In the § 2254 context, we generally may only grant habeas relief if, after applying
de novo review, we determine that the error “had substantial and injurious effect or
influence in determining the jury’s verdict.” Brecht v. Abrahamson, 507 U.S. 619,
637 (1993) (quoting Kotteakos v. United States, 328 U.S. 750, 776 (1946)). That
harmless error standard requires a greater showing of prejudice than the standard that
state courts apply on direct appeal. See id.
We have not previously addressed whether Brecht applies to Webb claims. But a
number of other circuits apply harmless error analysis to such claims. See, e.g., Earp v.
Davis, 881 F.3d 1135, 1145 (9th Cir. 2018); United States v. Foster, 128 F.3d 949, 953
(6th Cir. 1997); United States v. Saunders, 943 F.2d 388, 392 (4th Cir. 1991); United
States v. Pinto, 850 F.2d 927, 932–33 (2d Cir. 1988); United States v. Weddell, 800 F.2d
1404, 1411 (5th Cir. 1986), opinion amended on denial of reh’g, 804 F.2d 1343 (5th Cir.
37
1986); Peeler v. Wyrick, 734 F.2d 378, 381–82 (8th Cir. 1984). Moreover, we apply
Brecht to Napue claims. See Mitchell v. Gibson, 262 F.3d 1036, 1062 n.13 (10th Cir.
2001). And we see no meaningful basis for applying Brecht to Napue claims in the
§ 2254 context but not to Webb claims in that context. Thus, we apply Brecht to this
claim.14
14
In Brecht, the Supreme Court noted that its decision did not
foreclose the possibility that in an unusual case, a deliberate and especially
egregious error of the trial type, or one that is combined with a pattern of
prosecutorial misconduct, might so infect the integrity of the proceeding as
to warrant the grant of habeas relief, even if it did not substantially influence
the jury’s verdict.
Brecht, 507 U.S. at 638 n.9. We consider the application of this exception sua sponte
because we raise the Brecht standard sua sponte.
Significantly, we have never held that a habeas case presented such an error.
Indeed, in Duckett v. Mullin, 306 F.3d 982 (10th Cir. 2002), we held this exception did
not apply when: (1) a prosecutor “had made improper remarks such as, in arguing for the
death sentence, asking the jury whether it would serve ‘justice [to] send this man down to
prison, let him have clean sheets to sleep on every night, three good meals a day, visits by
his friends and family, while [the victim] lies cold in his grave?’”; (2) the prosecutor
“‘ha[d] been chastised for participating in the same type of improper argumentation in
other cases’”; (3) “‘our past experiences with this prosecutor le[ft] us convinced that his
inappropriate commentary at trial was intentional and calculated’”; and (4) we noted both
that “the prosecutor’s ‘persistent misconduct . . . has without doubt harmed the reputation
of Oklahoma’s criminal justice system and left the unenviable legacy of an indelibly
tarnished legal career’” and that “[o]ur nation’s confidence in the fair and just
administration of the death penalty is disserved by prosecutors who cynically test the
bounds of the harmless-error doctrine.” Underwood v. Royal, 894 F.3d 1154, 1176–77
(10th Cir. 2018) (alterations and ellipsis in original) (quoting Duckett, 306 F.3d at 992–
94). We nevertheless concluded that the prosecutorial misconduct did not so infect the
integrity of the proceeding that the entire trial was unfair. Duckett, 306 F.3d at 995.
We are satisfied that this case also does not present such an error for two
reasons. First, as we determined above, no reasonable factfinder could conclude the
prosecution knew Mrs. Whitely’s testimony was false. Second, although we do not
decide whether the government’s interaction with Mrs. Whitely constituted coercion,
38
The statement at issue here—that Mrs. Whitely was not at the trial to support
her husband—was ambiguous. While that statement could lead a jury to conclude
that she believed the allegations against Petitioner, the statement does not compel
such a conclusion.15 Further, K.B. testified at trial that: (1) she and her mother had
talked about whether her mother believed the allegations and, when asked whether
she thought her mother believed her, said “No, not really”; and (2) she did not want
to live with her mother, and one of her main problems she had with her mother was
that her mother did not believe her.
Mrs. Whitely also provided exculpatory evidence for Petitioner. For example,
she testified that she had never seen “any blood or anything like that in [K.B.’s]
underwear or on her clothes,” and that she was looking for blood because she had
expected K.B. to start menstruating. Mrs. Whitely did not testify that she was aware
of any facts that indicated the allegations were true.
The prosecution argued that the jurors “didn’t hear [K.B.’s] mom come in here
and you didn’t hear her mom say she was a liar. And she would be the one who
would know more than anyone else.” That argument was arguably inappropriate
because neither the defense nor the prosecution had asked Mrs. Whitely whether K.B.
was a liar. But, at the same time, we are not convinced that any prejudice from that
even if it did, that conduct was not especially egregious in light of the parallel child
placement proceedings.
15
Indeed, the same is true of Mrs. Whitely’s testimony that a divorce was
pending between her and the Petitioner.
39
argument resulted from Mrs. Whitely’s testimony that she was not at the trial to
support Petitioner.
Under these circumstances, we conclude that Mrs. Whitely’s testimony that
she was not at the trial to support Petitioner—even if that testimony was false—had
no substantial or injurious effect or influence on the jury’s verdict. That testimony
was therefore harmless.
IV.
For the reasons stated above, we AFFIRM the district court’s denial of federal
habeas relief under 28 U.S.C. § 2254.
Entered for the Court
Joel M. Carson III
Circuit Judge
40