Padillow v. Crow

EARNEST EUGENE PADILLOW, Petitioner, v. SCOTT CROW, Interim Director, Oklahoma Department of Corrections Respondent.

Case No. 18-CV-122-TCK-CDL

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OKLAHOMA

March 24, 2021

OPINION AND ORDER

This matter comes before the Court on a Petition for Writ of Habeas Corpus filed pursuant to 28 U.S.C. § 2254. Petitioner Earnest Eugene Padillow ("Padillow") is a prisoner proceeding pro se. He is currently in the custody of the Oklahoma Department of Corrections and confined in the North Fork Correctional Center in Sayre, Oklahoma. He challenges his convictions for rape in the first degree (Count 1) and rape by instrumentation (Counts 2 and 3), all offenses committed after a previous felony conviction in Case No. CF-2010-3621, and two additional counts of rape in the first degree (Counts 1 and 2) also committed after a previous felony conviction in Case No. CF-2011-3957. Both cases were tried in a consolidated trial in the District Court of Tulsa County, Oklahoma. For the reasons discussed below, the Petition for Writ of Habeas Corpus is DENIED.

Padillow filed the instant Petition for Writ of Habeas Corpus (Dkt. 1) on February 26, 2018, challenging his convictions and sentences as in violation of federal law on the following grounds:

I. Padillow's appellate counsel was ineffective because counsel did not raise issues suggested by Padillow on appeal; II. Padillow's trial counsel was ineffective for failing to obtain and introduce a video of a victim's medical examination;

III. Padillow's trial counsel was ineffective for failing to locate and call witness Regina Johnson;

IV. The trial court erred in denying Padillow's pro se motion to dismiss trial counsel;

V. Padillow's trial counsel was ineffective for failing to object to the admission of "crucial" evidence against him;

VI. The trial court improperly denied Padillow's request for an evidentiary hearing on his application for post-conviction relief ("PCR");

VII. The trial court erred in removing Padillow from the courtroom during closing arguments in violation of the confrontation clause; and

VIII. The trial court denied Padillow's right to testify.

FACTUAL BACKGROUND

In ruling on Padillow's direct appeal, the Oklahoma Court of Criminal Appeals ("OCCA") set forth a detailed statement of the facts of the case, which we adopt.¹

In August of 2007, Padillow sexually abused his nine-year-old great-niece, S.G. Over the course of a single day, he took her to another child's birthday party, followed her into the bathroom, and put his penis in her vagina. S.G. asked unsuccessfully for another ride home. Padillow then took her to his house. While he took a shower, she tried to leave. Padillow stopped her. When S.G. asked to go home, he had her lay on his bed to watch a movie, rubbed her buttocks, then put his finger in her vagina. S.G. again asked to go home. Padillow warned her not to tell anyone and took her home; on the way, Padillow rubbed S.G.'s arms and legs and she wet her pants. Padillow brought a pair of pajamas with them to S.G.'s house. Her mother told her to take a bath and put them on. The pajama pants had a hole in the crotch. While S.G., Padillow, her mother and her sister lay on the floor, and her mom and sister fell asleep, Padillow put his finger in S.G.'s vagina again. S.G. told her mother that Padillow touched her. The allegations were not reported to police until about a year later, but S.G. was too emotionally fragile to cooperate. The investigation was halted until, in 2010, Padillow's twelve-year-old cousin D.S. claimed that Padillow sexually abused her.

[FN 1: "The charge involving D.S. was dismissed, and D.S.'s testimony was properly admitted as propensity evidence under 12 O.S. 2011, § 2414. Padillow does not complain about this evidence.]

In August 2011, Padillow babysat his niece, 11-year-old D.P., and her siblings. While D.P. was on the couch, Padillow sat down beside her, lifted a blanket which was over her, and put his finger in her vagina. He told her that if she told anyone he wouldn't love her anymore. In September 2011, Padillow visited D.P.'s house, saying they'd get something to eat. He took her to his house. D.P. said her stomach hurt and she felt sick. Padillow told her to go lay down in the back bedroom. He came in, began to take off her clothes, and told her he wouldn't hurt her. Using lubricant, he put his penis in her vagina, ejaculated, and told her to clean herself up. Padillow asked D.P. to promise not to tell anyone if he bought her supper, but when she got home she told her sisters. She tried to tell her mother, but Padillow, who had come in with D.P., followed them throughout the house. Finally D.P.'s sister told her mother they needed to go to the hospital because Padillow did something to D.P. As they tried to leave, D.P. heard Padillow ask them to try and work it out, saying he didn't want to go to jail for the rest of his life. Padillow could not be excluded as a contributor to DNA found on external genital and anal swabs from D.P., and a fluid testing presumptively positive for seminal fluid was on the external genitalia swabs and on D.P.'s underpants.

The record shows Padillow had a contentious relationship with his attorneys from the very beginning—no matter who they were. His cases were filed separately. Padillow was originally charged with abusing D.S. and S.G. in CF-2010-3621, and represented by an attorney from the Tulsa County Public Defender office. He bonded out of jail, committed the offenses against D.P., the second case was filed, and he was represented by a different attorney from the Tulsa County Public Defender office in the second case. Padillow expressed dissatisfaction with both those lawyers. At least one other Public Defender Office attorney was involved in the case. After several discussions, and an incident one of his attorneys witnessed, in which Padillow committed an action resulting in a misdemeanor charge against him, the trial court removed the Tulsa County Public Defender Office and appointed conflict counsel, Stephen Lee and Mark Cagle. The record reflects Padillow's relationship with these two included at least one profane outburst and one assault during pretrial conferences. Padillow finally informed the trial court that he could not agree with defense counsel's trial strategy, and insisted on representing himself. Padillow began the trial representing himself with standby counsel Lee and Cagle. However, he asked that Lee and Cagle be re-appointed to represent him during voir dire, after the State had passed the panel for cause and Padillow had begun questioning the panel. The trial court granted this request.

Before the state rested Padillow offered the trial court a handwritten motion to dismiss his counsel, claiming that Cagle and Lee were ineffective. This motion wasdenied, the State rested, Padillow called his first witness, and there was a lunch break. Padillow had expressed his intention to testify. After lunch and before jurors returned, his attorneys made a record that Padillow would not cooperate in preparing his trial testimony and wanted to represent himself. Padillow explained that he wanted to recall particular witnesses who had either already testified, been subject to cross-examination, and released by counsel, and that defense counsel had not subpoenaed any of the proposed witnesses. The jurors returned and Lee called Padillow to the stand. In front of the jury, Padillow got up as if to walk to the stand but instead attacked Cagle, jumping on him violently. Padillow also tried to attack Lee. The attack broke chairs at the defense table. Lee and the deputies separated Padillow from Cagle. Deputies subdued Padillow and removed him from the courtroom through the main entrance.

The trial court made a record, in front of the jury, that Padillow's actions constituted a knowing and voluntary waiver of his right to be present and his right to testify. The defense rested, and the jury retired. Outside the jury's presence the trial court gave a fuller description of the attack. The trial court stated that it was clear that the attack had an impact on the jury, but that having watched the incident and the jury, the court believed the incident would not impact the trial. The court noted that jurors did not become emotional, cry, or even gasp. Based on these observations, the trial court did not grant a mistrial. Lee continued to represent Padillow, making zealous and thorough closing arguments. Neither Lee nor the prosecutor mentioned the courtroom attack in closing.

Dkt. 16-3, pp. 2-5.

PROCEDURAL BACKGROUND

After closing arguments made by counsel (but without Padillow present), the jury rendered guilty verdicts on all counts for rape in the first degree (Count 1) and rape by instrumentation (Counts 2 and 3), all offenses committed after a previous felony in Case No. CF-2010-3621, and the two additional counts of rape in the first degree (Counts 1 and 2) also committed after a previous felony conviction in Case No. CF-2011-3957. In Case No. CF-2010-3621, the trial court sentenced Padillow to life imprisonment without parole on Count 1, and twenty (20) years imprisonment on Counts 2 and 3. In Case No. CF-2011-3957, the trial court sentenced Padillow to twenty (20) years imprisonment on Count 1, and life imprisonment without the possibility of parole on Count 2. The trial court ordered the sentences to run consecutively. Dkt. 17-19.

Padillow, with assistance of counsel, filed a direct appeal to the Oklahoma Criminal Court of Appeals ("OCCA") (Dkt. 16-1), raising the following errors:

I. Padillow's convictions must be reversed because his removal from the courtroom during the trial violated his constitutional right to be present;

II. Padillow's convictions must be reversed because his removal from the courtroom during the trial violated his constitutional right to testify on his own behalf;

III. The trial court erred in finding Padillow to be in direct

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