Redfearn v. Crow

1

JESSE DEAN REDFEARN, Petitioner, v. SCOTT CROW, Director, Respondent.

No. CIV-21-999-J

United States District Court, W.D. Oklahoma

February 16, 2022

REPORT AND RECOMMENDATION

GARY M. PURCELL, UNITED STATES MAGISTRATE JUDG

Petitioner Jesse Dean Redfearn, a state prisoner represented by counsel challenges his state court convictions in this 28 U.S.C § 2254 Petition for Writ of Habeas Corpus (Doc. No. 1) and Brief in Support (Doc. No. 2), with attached exhibits and excerpts from relevant transcripts. Respondent has filed his Response (Doc. No. 10), with attached exhibits and the relevant state court records. Petitioner has filed a Reply. Doc. No. 14. The matter has been referred to the undersigned Magistrate Judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B). For the following reasons, it is recommended the Petition be denied.

I. Summary of Procedural Background

Petitioner was convicted of First-Degree Rape and Kidnapping, both after former convictions of two felonies in Case No. CF-2018-4337, District Court of Tulsa County, Oklahoma. In accordance with the jury's recommendation, the trial court sentenced Petitioner to two terms of life imprisonment to be served consecutively. Doc. No. 2-1 at 344-46. Petitioner appealed to the Oklahoma Court of Criminal Appeals (“OCCA”) raising eight issues: (1) whether the trial court denied him his constitutional right to confront witnesses against him when the trial court declared the victim/witness (“T.A.”)^[1] unavailable to testify; (2) whether the trial court denied his right to confrontation when it allowed T.A.'s preliminary hearing testimony to be read into the record even though defense counsel had not finished his preliminary hearing questioning before T.A. left the stand; (3) whether the trial court erred in its instruction on the range of punishment; (4) whether the district court judge erred in failing to recuse herself; (5) whether prosecutorial misconduct denied him a fair trial; (6) whether the evidence was sufficient to prove the crime of First-Degree Rape beyond a reasonable doubt; (7) whether his trial counsel was ineffective; and (8) whether an accumulation of error denied him a fair trial. Doc. Nos. 10-1; 10-2. The OCCA affirmed Petitioner's convictions. Doc. No. 10-1. Petitioner then filed the instant action seeking habeas relief based on three grounds.

In his first and third grounds for relief, Petitioner contends his Sixth Amendment right to confront witnesses against him and his right to due process were violated when the trial court erroneously declared the complaining witness to be “unavailable” and erroneously allowed her preliminary hearing testimony to be read into the trial transcript. Doc. No. 2 at 8-14; 16-20.^[2] In his second ground for relief, Petitioner contends the evidence was insufficient to support his conviction for First-Degree Rape. Id. at 14-16.

II. Factual Introduction

At approximately 1:00 a.m. on the morning of June 19, 2018, two Tulsa police officers observed a person, who appeared to be a child, walking on the side of the road in an industrial area of Tulsa, Oklahoma. Doc. No. 10-11 at 24-26. Upon investigation, the two officers, Vernon McNeal and Jill (Jamagochin) Sallee, discovered the person was an adult woman, later identified as T.A, who was wearing a large garment, later determined to be a size 6X t-shirt, and her head and face were covered with a hood.^[3] Officer McNeal activated his body camera, and a portion of the video was played for the jury. Officer McNeal then explained the video:

What you saw is me exiting my vehicle, putting my body cam on, and then approaching the victim. As I approached, I tried to-one, I kind of wanted to see where her hands were, kind of-for officer safety I just want to know where people's hands are. And so I did not see any hands. I did not see anything. And as I got closer, I could see that her face was covered. So I pulled-I pulled the mask down and pulled up her shirt, and I could see that-just to see where her hands were. I wanted to make sure I knew where her hands were, and that is when I saw that her hands were bound behind her back and that she was completely nude.

Doc. No. 10-11 at 31.

T.A. testified at a preliminary hearing on November 16, 2018, ^[4] regarding what she could remember from the evening of June 18, 2018, and the early morning hours of June 19, 2018. Doc. No. 10-4 at 6-22. In sum, T.A. testified that on June 18, 2018, she had been wearing blue jeans, a spaghetti strap orange shirt, and blue and white flip flops. She was carrying a little black purse.^[5] Id. at 11. T.A. remembered buying liquor at a liquor store in the vicinity of Sheridan and Admiral before walking to a friend, Benny, with whom she sometimes spent the night. Id. at 9. When she left the Budget Inn, she crossed the street and headed toward a Family Dollar store behind which she intended to spend the night. Her path took her through the parking lot of an Arby's restaurant.

T.A. next remembered not being able to see. She testified that a mask was covering her eyes, a rope held two bandanas around her mouth, a belt was around her neck, and her hands were tied behind her back. Id. at 11-12.

Her next memory was of being washed in a bathtub or shower. When she screamed her friend's name, a cloth was shoved in her mouth, and the belt around her neck was tightened. She remembered a soft voice telling her repeatedly to shut up. At least twice, something that felt like a washcloth was shoved into her mouth to gag her. T.A. remembered someone's hands cleaning her with water from the chest down, touching her chest and vagina. Id. at 12-14, 15-19.

After she endured the bath, T.A. remembered being placed in a vehicle, being driven somewhere, being carried like a baby out of the vehicle, and being placed on the ground. Id. at 14-15. As she stood up and began to walk, she heard Officer Sallee call to her. Officer Sallee cut the rope binding T.A.'s hands. The officers then removed the items from her face and neck, collecting the rope, belt, and bandanas as evidence. Id. at 19-20.

After her hands were freed, T.A. found she was wearing a baby blue South Pole t-shirt, big enough to be like a dress on her. Id. at 20. The officers summoned an ambulance to take T.A. to a hospital for examination. T.A. testified that she did not see the face of the person, but she felt his stomach which suggested he was overweight. Id. at 22.

On cross-examination, T. A. stated that she was questioned by the examining nurse and told the nurse that she did not remember whether there was vaginal or rectal penetration during her ordeal. When defense counsel asked T.A. if she had been engaged in an act of prostitution on the night of June 18, 2018, T. A. responded, “I'm done. I'm done, ” and she left the witness stand. Doc. No. 10-4 at 51. At the judge's suggestion, T. A. was taken to the jury room to regain her composure before further questioning. The prosecution was allowed to call its other witnesses. Defense counsel did not attempt to recall T.A. for further questioning, and T.A. did not return to the courtroom during the preliminary hearing.

Although the prosecution was able to find and question T. A. several times between the preliminary hearing and the trial, the prosecution moved to have T. A. declared “unavailable” because during several contacts with the prosecution, she voiced her reluctance to testify. Doc. No. 10-14 at 1-13. Over Defendant's objection, Doc. No. 10-14 at 14-28, the trial court ruled that T.A. was “unavailable, ” paving the way for her preliminary hearing testimony to be read into the trial record.

The Court will refer to other evidence of record and testimony as necessary for a thorough discussion and analysis of Petitioner's grounds for relief.

III. Standard of Review of Constitutional Claims

Under the Antiterrorism and Effective Death Penalty Act (“AEDPA”), a federal court cannot grant habeas relief with respect to a state prisoner's constitutional claim that was adjudicated on the merits in state court proceedings unless the state court decision (1) 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) “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). The AEDPA directs courts to “ensure a level of ‘deference to the determinations of state courts,' provided those determinations did not conflict with federal law or apply federal law in an unreasonable way.” Williams v. Taylor, 529 U.S. 362, 386 (2000) (quoting H.R. Conf. Rep. No. 104-518, p. 111 (1996)).

Under this standard, a writ of habeas corpus will issue only if “a state court's application of federal law . . . is so erroneous that there is no possibility fairminded jurists could disagree that the state court's decision conflicts with [the Supreme] Court's precedents.” Nevada v. Jackson, 569 U.S. 505, 508-09 (2013) (quotations omitted). Under this deferential standard, even a showing of “clear error will not suffice.” White v. Woodall, 572 U.S. 415, 419 (2014) (quotations omitted).

“[W]hether a state court's decision was unreasonable must be assessed in light of the record the [state appellate] court had before it.” Holland v. Jackson, 542 U.S. 649, 652 (2004). Consequently, federal habeas “review is limited to the record that was before the state court that adjudicated the claim on the merits.” Cullen v. Pinholster, 563 U.S. 170, 180 (2011). In reviewing a state appellate court's decision, the state court's findings of fact are presumed correct and entitled to deference. 28 U.S.C. § 2254(e)(1).

IV. Confrontation...