Howard v. Habti

JAZMINE SHAWN'TE HOWARD, Petitioner, v. WARDEN ABOUTANAA EL HABTI, Respondent.

No. CIV-22-622-D

United States District Court, W.D. Oklahoma

February 1, 2023

REPORT AND RECOMMENDATION

SHON T. ERWIN, UNITED STATES MAGISTRATE JUDGE.

Petitioner Jazmine Shawn'te Howard, a state prisoner appearing pro se, has filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. (ECF No. 1). Chief United States District Judge Timothy D. DeGiusti has referred this matter for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B). Respondent has filed a Response in Opposition to Petition for Writ of Habeas Corpus (ECF No. 13), and Petitioner has replied (ECF No. 15). For the following reasons, it is recommended that the Petition be DENIED.

I. FACTUAL AND PROCEDURAL BACKGROUND

This case arises from the death of Jose Miguel Lopez who was shot at least two times before his body was dumped off a bridge on the outskirts of town. Ms. Howard ultimately turned herself in to authorities. At trial, Ms. Howard testified in her own defense, admitting that she had shot and killed Mr. Lopez but attempting to prove she had shot him in self-defense.

Ms Howard testified that she met Mr. Lopez on the evening of June 9, 2017, outside an Oklahoma City bar where she had admittedly gone with the intent of procuring money for sexual services. She testified that when she met Mr. Lopez, she agreed to provide sexual services to him for a fee and accompanied him in his truck to a secluded area where he parked. While Ms. Howard was performing oral sex, Mr. Lopez abruptly got out of the truck, walked around to the passenger side, opened the door, and pulled Ms. Howard's head towards his crotch. She testified that Mr. Lopez also pulled on her arms. Although Ms. Howard testified that she was not sure what his intentions were, she became fearful because they were in a dark, secluded area with no one else around. She did not, however, testify that Mr. Lopez actually threatened her in any way. Rather, she testified that she was confused because it seemed like Mr. Lopez was trying to force her to do something she was already willing to do. Ms. Howard pulled a gun out of her purse and shot Mr. Lopez in the chest. Later, Ms. Howard and her boyfriend returned to the scene, put Mr. Lopez's body in the back seat of his truck, drove to a bridge over the Canadian River, and dumped the body over the side of the bridge.

Ms. Howard was charged with First Degree Murder. At the close of the trial, Ms. Howard requested that the trial court instruct the jury on several alternative theories including self-defense, second-degree depraved-mind murder, first-degree heat-of-passion manslaughter, and first-degree manslaughter while resisting criminal attempt. The trial court instructed the jury on second degree depraved-mind murder but rejected the other requested instructions.

Ms. Howard was convicted of Murder in the Second Degree in the District Court of Oklahoma County, Case No. CF-2017-4447. She was sentenced, in accordance with the jury's recommendation, to thirty years' imprisonment and assessed a $10,000 fine. (ECF No. 13-1). On direct appeal to the Oklahoma Court of Criminal Appeals, Case No. F-2019-366, Ms. Howard raised six propositions of error:

1. that the trial court erred in failing to instruct the jury on the defense of self defense and the lesser included offenses of manslaughter in the first-degree heat of passion and manslaughter in the first-degree by resisting criminal attempt;

2. that the introduction of grotesque and disturbing photographs of the victim was unfairly prejudicial;

3. that “other crimes” evidence was improperly admitted and violated the provisions against evidentiary harpoons;

4. that prosecutorial error led to a fundamentally unfair trial;

5. that that Petitioner was deprived of effective assistance of counsel; and

6. that cumulative error deprived Petitioner of a fair trial.

(ECF No. 13-1). The OCCA affirmed Petitioner's conviction and sentence. (ECF No. 13-1).

Ms. Howard filed an Application for Post-Conviction Relief (APCR) in the trial court raising the same propositions she had raised on direct appeal. (ECF No. 13-5). The trial court denied the APCR (ECF No. 13-7), and Ms. Howard appealed, raising the following propositions of error:

1. that the Petitioner was deprived of effective assistance of appellate counsel;

2. that the trial court erred in failing to give an instruction on self-defense and the lesser included defenses of first-degree manslaughter heat of passion and first-degree manslaughter by resisting criminal attempt; 3. that the trial court erred when it allowed the jury to perceive indirect evidence and conflicting evidence in the form of testimony given by an uncharged and unprosecuted accomplice and admitted gruesome photographs; and

4. that the trial court erred in allowing testimony and evidence in violation of the confrontation clause.

(ECF No. 13-8). The OCCA affirmed the denial of Ms. Howard's APCR. (ECF No. 13-9).

In this habeas action, Ms. Howard presents the following grounds for relief:

1. the trial court's refusal to instruct the jury on the defense of self-defense and the lesser included defenses of first-degree manslaughter by heat of passion and first-degree manslaughter by resisting criminal attempt denied Ms. Howard her right to due process;

2. the trial court's allowing introduction of grotesque and disturbing photographs violated Ms. Howard's right to a fundamentally fair trial;

3. the trial court's admission of other crimes evidence and prohibition against evidentiary harpoons violated state law as well as the due process clauses of the state and federal constitutions;

4. prosecutorial misconduct deprived her of a fundamentally fair trial;

5. ineffective assistance of counsel deprived her of a fair trial; and

6. the cumulative trial errors warrant a new trial.

II. STANDARD OF REVIEW

The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) governs this Court's power to grant habeas corpus relief. Under AEDPA, the standard of review applicable to each claim depends upon how that claim was resolved by the state courts. Coddington v. Sharp, 959 F.3d 947, 952 (10th Cir. 2020).

“When a federal claim has been presented to a state court and the state court has denied relief, it may be presumed that the state court adjudicated the claim on the merits in the absence of any indication or state-law procedural principles to the contrary.” Harrington v. Richter, 562 U.S. 86, 98 (2011).

For claims adjudicated on the merits, “this [C]ourt may grant . . . habeas [relief] only if the [OCCA's] 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 ‘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.'” Hanson v. Sherrod, 797 F.3d 810, 814 (10th Cir. 2015) (citation omitted). “It is the petitioner's burden to make this showing, and it is a burden intentionally designed to be ‘difficult to meet.'” Owens v. Trammell, 792 F.3d 1234, 1242 (10th Cir. 2015) (citation omitted). The deference embodied in § 2254(d) “reflects the view that habeas corpus is a ‘guard against extreme malfunctions in the state criminal justice systems,' not a substitute for ordinary error correction through appeal.” Harrington, 562 U.S. at 102-103 (citation omitted).

This Court first determines “whether the petitioner's claim is based on clearly established federal law, focusing exclusively on Supreme Court decisions.” Hanson, 797 F.3d at 824. “A legal principle is ‘clearly established' within the meaning of this provision only when it is embodied in a holding of [the United States Supreme Court.]” Thaler v. Haynes, 559 U.S. 43, 47 (2010). If clearly established federal law exists, this Court then considers whether the state court decision was contrary to or an unreasonable application of clearly established federal law. See Owens, 792 F.3d at 1242.

“A state court's decision is ‘contrary to' clearly established federal law ‘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.'” Id. (citations omitted). Notably, “[i]t is not enough that the state court decided an issue contrary to a lower federal court's conception of how the rule should be applied; the state court decision must be ‘diametrically different' and ‘mutually opposed' to the Supreme Court decision itself.” Id. (citation omitted).

The “unreasonable application” prong requires the petitioner to prove that the state court “identifie[d] the correct governing legal principle from [Supreme Court] decisions but unreasonably applie[d] that principle to the facts of the prisoner's case.” Id. (citation omitted). On this point, “the relevant inquiry is not whether the state court's application of federal law was incorrect, but whether it was ‘objectively unreasonable.'” Id. (citations omitted, emphasis in original). Thus, to qualify for habeas relief on this prong, a petitioner must show “there was no reasonable basis for the state court's determination.” Id. at 1242-43 (citation omitted). “The question under AEDPA is not whether a federal court believes the state court's determination was incorrect but whether that determination was unreasonable-a substantially higher threshold.” Schriro v. Landrigan, 550 U.S. 465, 473 (2007).

In sum “[u]nder § 2254(d), a habeas court must determine what arguments or theories supported . . . the state court's decision; and then it must ask whether it is...