Opinion
CIV-22-658-SLP
04-18-2023
ANDREW J. REVILLA, Petitioner, v. RICK WHITTEN, Respondent.
REPORT AND RECOMMENDATION
AMANDA MAXFIELD GREEN, UNITED STATES MAGISTRATE JUDGE
Petitioner Andrew J. Revilla (“Petitioner”) seeks a Writ of Habeas Corpus under 28 U.S.C. § 2254. (Doc. 1). United States District Judge Scott L. Palk referred the matter to the undersigned Magistrate Judge for initial proceedings consistent with 28 U.S.C. § 636 (b)(1)(B), (C). (Doc. 3). Respondent filed a response (Doc. 10), along with the preliminary hearing transcript (P. Tr.), the motion hearing transcript (M. Tr.), the jury-trial transcripts (Tr. Vol. I-IV), the jury-trial exhibits (State Ex.), the state court record (R.), and the sentencing transcript (S. Tr.). (Doc. 12).For the reasons set forth below, the undersigned recommends that Petitioner's application for habeas relief be conditionally GRANTED.
Citations to the parties' filings and attached exhibits will refer to this Court's CM/ECF pagination. Citations to the state court records will refer to the original pagination.
I. Factual Summary and Procedural History
Around April 2015, eight-year-old C.D. and her younger sister began living in a foster home with Alcario and Sonya Revilla, their biological aunt and uncle. (Tr. Vol. II, at 5-7, 90; Tr. Vol. III, at 169, 187-188). During the following year, C.D. claims that Petitioner (the Revillas' adult son and C.D.'s cousin) and his girlfriend Stephanie Garcia sexually abused her. (Tr. Vol. III, at 9-35). Following her adoption in November 2016, C.D.'s adoptive mother learned of these allegations when C.D. acted out sexually and, when questioned, described and drew pictures depicting sexual acts she witnessed and experienced at the Revilla home. (Tr. Vol. II, at 12-18, 20-24, 27-28, 66-67; State's Ex. 1). C.D. indicated to her mother that the sexual acts were perpetuated by Petitioner and Garcia. (Tr. Vol. II, at 13, 20-23).
On December 6, 2016, a forensic interview was conducted by Ronnie Webb, a supervisor working in the Child Welfare Division of the Oklahoma Department of Human Services. (Tr. Vol. III, at 67, 86). In the videotaped interview, C.D. described how Petitioner and Garcia touched both the inside and outside of her private area, how she had seen both Petitioner and Garcia naked with descriptions of their bodies, how Petitioner and Garcia had sexual intercourse while forcing C.D. to watch, how Petitioner and Garcia had sex on top of her, and how C.D. was forced to perform oral sex on Petitioner and Garcia (State Ex. 4, at 22:05-28:24; 31:05-34:40; 35:54-40:42; 47:30-53:00; 53:20-59:08; 1:05:43-1:06:23). These allegations were consistent with the descriptions and pictures drawn by C.D. for her mother. (Tr. Vol. II, at 19-20, 22-23; State's Ex. 1). In her forensic interview, C.D. also stated that she was choked and dragged when she refused to participate in the sexual acts. (State Ex. 4, at 37:00-31:10; 39:10-40:07).
The State charged Petitioner in Jackson County District Court, Case No. CF-2017-62, with two counts of lewd molestation and one count of sodomy under 16. (Doc. 1, at 11). At the preliminary hearing, the Jackson County District Court considered both the videotaped forensic interview conducted by Webb and C.D.'s testimony at the hearing. (See P. Tr.). C.D. testified that Petitioner and Garcia touched her, that she remembered drawing for her mom (id. at 34), and that she saw Petitioner and Garcia naked including their private parts (id. at 55). However, C.D. indicted she had never been choked (id. at 58) or participated in oral sex (id. at 62), that she did not recall watching Petitioner and Garcia have sex (id.), and that the inappropriate touching only occurred on one day (id. at 74). After C.D. finished testifying, counsel for Petitioner and Garcia argued that C.D. failed to remember any specific details or allege specific touching by Petitioner or Garcia and challenged the reliability and truthfulness of C.D.'s testimony. (Id. at 81-83). The state court judge found C.D.'s videotaped forensic interview compelling and C.D.'s testimony credible, “in spite of the fact, that she was not able to in more of an open court setting, with more pressure on her, was not able to recount those events in court.” (Id. at 86). The judge therefore ordered Petitioner and Garcia to appear for a formal arraignment. (Id. at 86-87).
At Petitioner's jury trial, the State presented the drawings made by C.D. depicting the sexual acts, and C.D. was asked questions to explain what was shown in her drawings. (Tr. Vol. III, at 9-35). During this testimony, C.D. stated that she witnessed Petitioner and Garcia having sex, that they forced her to engage in oral sex, that Petitioner and Garcia had touched her private area, and that she was choked by Garcia for refusing to perform sexual acts. (Id.) C.D. stated that she had watched her videotaped forensic interview the week prior to trial and now remembered the things that occurred because of watching the interview. (Id. at 27, 57).
At the conclusion of the four-day trial, the jury found Petitioner guilty on all three counts. (Tr. Vol. IV, at 16-17, 84). The trial judge sentenced Petitioner to twenty years of imprisonment for each count, to be served consecutively. (S. Tr., at 12). Petitioner filed a direct appeal to the Oklahoma Court of Criminal Appeals (“OCCA”). (Doc. 10, at Ex. 1). The OCCA affirmed his conviction and sentence. (Id. at Ex. 4, at 11).
Petitioner filed an application for post-conviction relief in Jackson County District Court (id. at Ex. 5) and a supplement to that application (id. at Ex. 8) (together the “Application”). The district court denied the Application (id. at Ex. 11), and Petitioner appealed the denial to the OCCA (id. at Ex. 12). The OCCA remanded the Application to the state district court (id. at Ex. 13), where it was again denied (id. at Ex. 14) and again appealed by Petitioner (id. at Ex. 15). The OCCA remanded the Application to the state district court a second time (id. at Ex. 16); it was denied (id at Ex. 17), and Petitioner appealed (id at Ex. 18). The OCCA ultimately upheld the denial of Petitioner's Application. (Id. at Ex. 19). Petitioner then filed the instant Petition for Writ of Habeas Corpus Under 28 U.S.C. § 2254. (Doc. 1). The Petition is at issue.
II. Standard of Review
“The standards set forth in the Antiterrorism and Effective Death Penalty Act of 1996 (‘AEDPA') guide [this Court's] review of 28 U.S.C. § 2254 applications.” Wellmon v. Colo. Dep't of Corrs., 952 F.3d 1242, 1245 (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 statelaw procedural principles to the contrary.” Harrington v. Richter, 562 U.S. 86, 99 (2011). A petitioner is entitled to federal habeas relief only if that merits-based adjudication “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.” 28 U.S.C. § 2254(d). “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) (internal quotation marks omitted). This standard “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 102-03 (internal quotation marks omitted).
This court “first determine[s] whether the petitioner's claim is based on clearly established federal law.” Hanson v. Sherrod, 797 F.3d 810, 824 (10th Cir. 2015). “Only Supreme Court law announced by the time of the state-court decision on the merits qualifies as clearly established law.” Wellmon, 952 F.3d at 1245 (internal quotation marks omitted). If clearly established federal law exists, this court then considers whether the state court decision was contrary to or an unreasonable application of that clearly established federal law. See Owens, 792 F.3d at 1242. A state court's decision is contrary to clearly established federal law if it “comes to a conclusion opposite to that reached by the Supreme Court on a question of law or decides a case differently than the Court has . . . on materially indistinguishable facts.” Wellmon, 952 F.3d at 1245 (internal quotation marks 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.” Owens, 792 F.3d at 1242 (internal quotation marks omitted).
“[T]he state court's decision is an unreasonable application of Supreme Court Law” if it “identifies the correct governing legal principle . . . but unreasonably applies that principle to the facts of the prisoner's case.” Wellmon, 952 F.3d at 1245 (internal quotation marks 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.” Owens, 792 F.3d at 1242 (internal quotation marks omitted). So, to qualify for habeas relief on this prong, the petitioner must show “there was no reasonable basis for the state court's determination.” Id. at 1243 (internal quotation marks omitted). “In other words, so long as fairminded jurists could disagree on the correctness of the state court's decision, habeas relief is unavailable.” Id. (internal quotation marks omitted); see also Harrington, 562 U.S. at 103 (“As a condition for obtaining [federal habeas relief], a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fair-minded disagreement.”).
This court “must accept a state-court [factual] finding unless it was based on ‘an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.'” Davis v. Ayala, 576 U.S. 257, 271 (2015) (quoting 28 U.S.C. § 2254(d)(2)).
This court presumes the factual determination to be correct; a petitioner can only rebut this presumption with clear and convincing evidence. See id.; see also 28 U.S.C. § 2254(e)(1).
III. Analysis: Petitioner Is Entitled to Relief Because the OCCA Unreasonably Applied Clearly Established Law Regarding Fundamental Fairness.
In his Petition, Petitioner raises five grounds for relief, including a claim of prosecutorial misconduct based on the improper vouching of the prosecutor for the truthfulness of C.E.'s testimony. (Doc. 1, at 25-27).As set forth fully below, the undersigned recommends conditionally granting Petitioner habeas relief on this ground.
Petitioner also alleges other instances of prosecutorial misconduct, including “elicit[ing] improper propensity evidence,” “suggest[ing] facts outside the evidence,” and “invok[ing] victim sympathy.” (Doc. 1, at 24-28). The court need not address these allegations in light of the recommendation for habeas relief due to improper vouching.
A. Clearly Established Law Supports A Due Process Claim When Prosecutorial Misconduct Causes A Fundamentally Unfair Trial.
“A prosecutor's remarks to the jury can create constitutional error in one of two ways.” Matthews v. Workman, 577 F.3d 1175, 1186 (10th Cir. 2009). “First, prosecutorial misconduct can prejudice ‘a specific right, such as the privilege against compulsory selfincrimination, as to amount to a denial of that right.'” Id. (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974)). “Second, even if the prosecutor's improper remarks do not impact a specific constitutional right, they may still create reversible error if they ‘so infected the trial with unfairness as to make the resulting conviction a denial of due process.'” Matthews, 577 F.3d at 1186 (quoting Donnelly, 416 U.S. at 643). See also Underwood v. Royal, 894 F.3d 1154, 1167 (10th Cir. 2018) (“The fundamental unfairness test applies to instances of prosecutorial misconduct occurring in either the guilt or sentencing stage of trial.”).
Petitioner's argument rests on an alleged violation of his due process rights. (See Doc. 1, at 24). To evaluate that claim, the court must “examine the entire proceeding, ‘including the strength of the evidence against the petitioner, both as to guilt at that stage of the trial and as to moral culpability at the sentencing phase as well as any cautionary steps - such as instructions to the jury - offered by the court to counteract improper remarks.'” Littlejohn v. Trammell, 704 F.3d 817, 837 (10th Cir. 2013) (quoting Bland v. Sirmons, 459 F.3d 999, 1024 (10th Cir. 2006)). Indeed, the court “‘should not lightly infer that a prosecutor intends an ambiguous remark to have its most damaging meaning or that a jury will necessarily draw that meaning.'” Id. (quoting Donnelly, 416 U.S. at 647 (cleaned up)). “‘Not every improper or unfair remark made by a prosecutor will amount to a federal constitutional deprivation.'” Id. at 838 (quoting Tillman v. Cook, 215 F.3d 1116, 1129 (10th Cir. 2000) (cleaned up)).
B. The OCCA's Ruling
The OCCA rejected Petitioner's prosecutorial misconduct claims on the merits, holding:
In Proposition IV, Appellant lists various instances of alleged prosecutor misconduct. For the most part, he did not object to this conduct below, and we review the comments he did not object to for plain error; relief is only granted if misconduct so infected the trial as to render it fundamentally unfair. Bramlett v. State, 2018 OK CR 19, ¶ 36, 422 P.3d 788, 799-800. As to Appellant's four complaints, we find as follows: Although the prosecutor did elicit testimony about other bad acts committed by Appellant, we found in Proposition II that most of that testimony was not met with a timely objection, and that counsel for Appellant's co-defendant elicited similar
evidence without complaint; hence, we found no grounds for relief. (2) The prosecutor did not comment on facts not in evidence by merely asking a defense witness a question that did not even suggest a particular answer. Williams v. State, 2008 OK CR 19, ¶ 108, 188 P.3d 208, 228. (3) The prosecutor did not personally vouch for the victim's credibility by saying that her allegations had the ring of truth. Pickens v. State, 2001 OK CR 3, ¶ 42, 19 P.3d 866, 880. (4) The prosecutor did not plainly err by mentioning the possible lifetime effects of sexual abuse on a child. Carol v. State, 1988 OK CR 114, ¶ 10, 756 P.2d 614, 617. The cumulative effect of the prosecutor's questions and comments did not deny Appellant a fair trial. Proposition IV is denied.(Doc. 10, at Ex. 4, at 9-10) (emphasis added). On federal habeas review, the court defers to the OCCA's ruling unless the OCCA “unreasonably applied” the due process test. Thornburg v. Mullin, 422 F.3d 1113, 1125 (10th Cir. 2005) (internal brackets and citation omitted).
C. The OCCA Unreasonably Applied Supreme Court Law in Determining that the Prosecutor's Vouching for the Victim's Truthfulness Did Not Render the Trial Fundamentally Unfair.
Petitioner argues that the prosecutor improperly vouched for C.D.'s truthfulness during closing arguments (see Doc. 1, at 25) by stating the following things: (1) “It's not made up. It's true.” (Tr. Vol. IV, at 42); (2) “A kid can't make this kind of stuff up.” (id. at 46); (3) “I would just submit to you that [C.D.'s] truth is stranger than fiction but it's the truth. It happened to her. She lived it. And she's telling the truth about it.” (id. at 50); (4) “[C.D.] didn't lie. She's not lying. She didn't lie yesterday. She's never lied one time.” (id. at 71); (5) “[C.D.] told the truth.” (id. at 77); and (6) “She's not sophisticated enough to make this up.” (id. at 78).
“Improper vouching for witnesses is not considered to impact an express constitutional right.” United States v. Harlow, 444 F.3d 1255, 1266 (10th Cir. 2006) (citation omitted). And the Supreme Court has never held that witness “vouching testimony itself violates the Due Process Clause.” Parker v. Scott, 394 F.3d 1302, 1310 (10th Cir. 2005). However, the Tenth Circuit Court of Appeals has recognized that vouching can compromise the fairness of the proceedings and implicate the Fourteenth Amendment's Due Process Clause. See id. And “the Supreme Court has held that a prosecutor's vouching for the credibility of witnesses poses the danger that ‘evidence not presented to the jury, but known to the prosecutor, supports the charges against the defendant,' as well as the risk that the jury will ‘trust the Government's judgment rather than its own view of the evidence.'” Matthews, 577 F.3d at 1187 (quoting United States v. Young, 470 U.S. 1, 18-19 (1985)).
The relevant question is what constitutes vouching by the prosecutor? “A prosecutor may comment on and draw reasonable inferences from evidence presented at trial.” Thornburg, 422 F.3d at 1131. The OCCA further holds that it is proper for a prosecutor to tell the jury what he or she believes the evidence showed. See Williams v. State, 188 P.3d 208, 228 (Okla. Crim. App. 2008) (where the prosecutor does not tell the jury to abandon its duty and convict upon the prosecutor's opinion, the prosecutor can tell the jury what he thinks the evidence showed). It also is proper for the prosecution to respond to the defense theory or to the defense characterization of the State's case. See Bland, 459 F.3d at 1025 (“[I]t is permissible for the prosecution to comment on the veracity of a defendant's story.”); Taylor v. State, 248 P.3d 362, 379 (Okla. Crim. App. 2011) (holding prosecutor's statements in closing regarding victim's inconsistent identifications of defendant as the product of his “dire circumstances” were a proper response to the defense theory of mistaken identity). “Argument or evidence is impermissible vouching only if the jury could reasonably believe that the prosecutor is indicating a personal belief in the witness' credibility, either through explicit personal assurances of the witness' veracity or by implicitly indicating that information not presented to the jury supports the witness' testimony.” United States v. Bowie, 892 F.2d 1494, 1498 (10th Cir. 1990).
Here, the OCCA held “[t]he prosecutor did not personally vouch for the victim's credibility by saying that her allegations had the ring of truth.” (Doc. 10, at Ex. 4, at 10). Respondent argues that the prosecutor's comments, taken in context, show that no vouching occurred. (Doc. 10, at 22). But the alleged statements in the suggested context are:
• Why them? What could she gain by making this up about them? Absolutely nothing. It's not made up. It's true. (Tr. Vol. IV, at 42).
• Why? Why wouldn't she just go ahead and say they had sex with her? That would have been easier for her to explain. It's because it's the truth. A kid can't make this kind of stuff up. (Id. at 46).
• Ladies and gentlemen, I have a little more time here in [a] moment but for now I would just submit to you that [C.D.'s] truth is stranger than fiction but it's the truth. It happened to her. She lived it. And she's telling the truth about it. (Id. at 49-50).
• The defense still wants to stress that she was lying. Well, ladies and gentlemen, I'd stress to you she's not. She didn't lie. She's not lying. She didn't lie yesterday. She's never lied one time. (Id. at 71).
• Talked about [C.D.'s] medical records, about her U-T-I. No one's ever said that that U-T-I was caused from any kind of sexual abuse. The doctor testified. It could have been hygiene. Little girls have those problems all the time. Same way with the vaginitis. It could have been hygiene. We don't know. But doesn't mean that this didn't happen. [C.D.] told the truth. (Id. at 77).
• She's had to talk about this way more than she ever wanted to by now.
She has no reason to put herself through this experience. She's not sophisticated enough to make this up. This is pretty complex. Those drawings, those are complex. The dolls, all those sex acts, kids can't make that up. (Id. at 78).(Emphasis added). The prosecutor's statements, taken in context, show improper vouching for the witness. No reasonable jurist would find the prosecutor's statements to simply suggest that C.D.'s testimony has the “ring of truth;” rather, the statements explicitly express the prosecutor's personal opinion and assure the jury of C.D.'s truthfulness and even her inability to fabricate her testimony or lie.
In finding the absence of prosecutorial vouching, the OCCA cited Pickens v. State, 19 P.3d 866, 880 (Okla. 2001). (Doc. 10, at Ex. 4, at 10). In Pickens, the OCCA held that a question asked by the state that bolstered the credibility of the witness constituted improper vouching, but that no relief was necessary as the question was objected to, the prosecutor restated the question, no further objection was made, and the defendant was not deprived of his right to a fair trial. Id. at 880-81. Reviewing the whole of that case, including physical evidence of the crime and the defendant's confession, the OCCA found that “the cumulative effect of the conduct” did not “deprive[] the defendant of a fair trial.” Id. at 881 (citation omitted). But Pickens is not analogous to Petitioner's case. Here, the prosecutor made multiple explicit statements that the witness was telling the truth, that she had never lied, and that she was incapable of making up any of her testimony. Additionally, there was no physical evidence, confessions, or eyewitnesses besides C.D.'s testimony. The entire case, and the other witnesses' testimony, was based on C.D.'s testimony. Accordingly, the jury's most important determination was whether C.D.'s testimony was true and credible.
Respondent additionally argues that the prosecutor's comments were invited by the defense's opening statement and examination of witnesses. (Doc. 10, at 24-25). In support of this argument, Respondent cites United States v. Young, 470 U.S. 1 (1985). (Id. at 24). In Young, the United States Supreme Court stated:
In order to make an appropriate assessment, the reviewing court must not only weigh the impact of the prosecutor's remarks, but must also take into account defense counsel's opening salvo. Thus the import of the evaluation has been that if the prosecutor's remarks were “invited,” and did no more than respond substantially in order to “right the scale,” such comments would not warrant reversing a conviction.Id. at 12-13. In Young, defense counsel argued at closing that the prosecutor did not believe the defendant was guilty, “point[ing] directly at the prosecutor's table and stat[ing]: ‘I submit to you that there's not a person in this courtroom including those sitting at this table who think that [the defendant] intended to defraud [the plaintiff].'” Id. at 4-5. In rebuttal, the prosecutor stated his belief that the defendant did so intend, with the caveat “[i]f we are allowed to give our personal impressions since it was asked of me.” Id. at 5 (emphasis in original). The Court held in Young that any harm in the prosecutor's statement was mitigated by the jury's understanding that the comments were made in response to defense counsel's comments at closing, as “a defense of his decision and his integrity - in bringing criminal charges on the basis of the very evidence the jury had heard during the trial.” Id. at 19. Additionally, the court cited the “overwhelming evidence” of the defendant's guilt, which eliminated any concerns that the prosecutor unfairly prejudiced the jury's deliberations. Id.
Petitioner's case is not analogous to Young.It is true that Petitioner's case centered on the truthfulness and reliability of C.D.'s testimony. During the opening, Petitioner's attorney stated that C.D.'s story has changed over time, evolving over four different versions, and may have been fabricated as a response to getting in trouble with her adopted mother. (Tr. Vol. I., at 253-61). He stated that C.D.'s daycare provider would testify that C.D. has a propensity for lying in the past. (Id. at 252). He encouraged the jury, “after you hear all of the evidence and watch the body language of the young lady, listen to the statements made by the young lady, listen to what version she's going to tell us today . . . to find [Petitioner] not guilty of the charges that have been filed against him.” (Id. at 26162. Throughout direct and cross examinations, the attorneys for Petitioner and Garcia explore the inconsistencies in C.D.'s testimony and her ability to recall the events. (See, e.g., Tr. Vol. III, at 46-55). They discuss C.D.'s understanding of the truth versus a lie and her propensity to lie. (Tr. Vol. II, at 46-27, 52-53, 77, 126-27; Tr. Vol. III, at 44, 48, 121, 137, 164-65, 174-75, 258-59). And, in closing, Petitioner's attorney states that “what we learned through the course of this trial is that C.D. is in fact a liar.” (Tr. Vol. IV, at 51). He supports this claim through reference to the evidence presented over the course of the trial, including the testimony of various witnesses, C.D.'s trouble recalling the details of the incident until she watched the video of her forensic interview, and C.D.'s prior inconsistent testimony at the preliminary hearing. (Id. at 51-54). He ends by stating in closing:
The other cases cited by Respondent (see Doc. 10, 24-25) at are similarly distinguishable. See Black v. Workman, 682 F.3d 880, 908-09 (10th Cir. 2012) (finding the “prosecutor's statement was not an unreasonable response to th[e] personal attack” of defense counsel “impugn[ing] the prosecutors' motives” in seeking the death penalty); Matthews v. Workman, 577 F.3d 1175, 1189 (10th Cir. 2009) (prosecutor's statement that defense counsel “feels the State should be indicted for putting on [as witnesses] admitted liars in their case” and referring to these witnesses as defendant's “‘friends and associates' was not unduly prejudicial and “certainly more restrained than defense counsel's provocation” that the State's case “reek[ed] of liars, half-truth tellers, [and] accidental liars”); Wyatt v. Crow, 812 F. App'x. 764, 769 (10th Cir. 2020) (prosecutor's personal opinion of the evidence presented at trial and statements of sympathy for the victim “substantially responded to defense counsel's characterization of the case and did not render [petitioner's] trial so fundamentally unfair as to deny him due process”).
Ladies and Gentlemen of the jury, I submit to you today, you cannot convict someone based on the testimony from a known liar. One who can't keep her story straight. One that lies to get out of trouble. One that lies to force people to do what she wants. One that lies so much and so badly that she's still going to counseling to learn not to lie.(Id. at 58).
While the defense may have “invited” commentary in rebuttal regarding the truthfulness of C.D.'s testimony, the prosecutor's comments went far beyond an attempt to “right the scale.” See Young, 470 U.S. at 12-13. Here, the prosecutor stated at least six different times in explicit terms - three times in his closing, before defense counsel's comments (see Tr. Vol. IV, at 42, 46, 49-50), and three times in rebuttal (see id. at 71, 77, 78) - that C.D. was telling the truth, without any reference to evidence or testimony presented at trial in support of his assertations. Compare Thornburg, 422 F.3d at 1131 (“A prosecutor may comment on and draw reasonable inferences from evidence presented at trial.”). By doing so, the prosecutor “indicat[ed] a personal belief in the witness' credibility . . through explicit personal assurances of the witness' veracity[.]” Bowie, 892 F.2d at 1498.
Moreover, aside from C.D.'s testimony to the court or others, this case lacks “overwhelming evidence” of Petitioner's guilt. Compare Young, 470 U.S. at 19. And C.D.'s testimony was objectively inconsistent between her initial disclosure to her mother, her forensic interview, her testimony at the preliminary hearing, and her trial testimony. The jury was charged with determining the guilt of the Petitioner based almost entirely on the credibility of C.D.'s testimony. The fairness of this determination was likely affected by the prosecutor's repeated explicit assurances of C.D.'s honesty.
The undersigned thus finds that the OCCA identified the correct governing legal principle applicable to claims of prosecutorial misconduct - whether Petitioner's trial was rendered fundamentally unfair, Matthews, 577 F.3d at 1186 (citing Donnelly, 416 U.S. at 643) - but unreasonably applied that principle to the facts of Petitioner's case. It was objectively unreasonable for the OCCA to find that Petitioner was not deprived of a fair trial through the prosecutor's improper vouching. Because the OCCA unreasonably applied Supreme Court law, the court should conditionally grant Petitioner's request for a writ of habeas corpus.
IV. Remaining Grounds
In his other grounds for relief, Petitioner brings propositions of error regarding other instances of prosecutorial misconduct; that the trial court allowed improper evidence of other crimes and bad acts; that the trial court erred when it gave an overly broad limiting instruction on impeachment evidence; ineffective assistance of appellate counsel for failing to raise plainly meritorious claims; and that the state court lacked jurisdiction. (See Doc. 1). The court need not address these allegations in light of the recommendation for habeas relief due to improper vouching. See Cargle v. Mullin, 317 F.3d 1196, 1225, n.23 (10th Cir. 2003) (“Because of our decision to grant habeas relief on the basis of ineffective assistance of counsel and, alternatively, on the basis of cumulative error, we need not address any of petitioner's other claims.”).
V. Recommended Ruling and Notice of Right to Object.
Based on the foregoing findings, it is recommended that Petitioner's Petition for Writ of Habeas Corpus be conditionally GRANTED. It is further recommended that the Writ of Habeas Corpus be issued, unless within ninety (90) days of the entry of an Order adopting this Report and Recommendation, the State grants Petitioner a new trial or, in the alternative, orders his permanent release from custody.
The court advises the parties of their right to object to this Report and Recommendation by Friday, May 9, 2023, under 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b)(2). The court further advises the parties that failure to make timely objection to this report and recommendation waives their right to appellate review of both factual and legal issues contained herein. See Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991).
This Report and Recommendation disposes of all issues and terminates the referral to the undersigned Magistrate Judge in the captioned matter.