Williamson v. Parker, 10th Cir. (2017)
Williamson v. Parker, 10th Cir. (2017)
Williamson v. Parker, 10th Cir. (2017)
ROBERT WILLIAMSON,
Petitioner-Appellant,
No. 16-6355
v. (D.C. No. 5:13-CV-00899-D)
(W.D. Okla.)
DAVID PARKER,
Respondent-Appellee.
(COA) in order to appeal the district courts dismissal with prejudice of his 28
U.S.C. 2254 habeas petition. Because we conclude that Williamson has failed
to demonstrate entitlement to a COA, we deny his request and dismiss this matter.
Appeals (OCCA) denied him relief. Williamson then filed a petition for a writ of
*
This order is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel.
habeas corpus in the district court pursuant to 2254. Warden David Parker
R&R, the district court denied habeas relief and entered judgment against him.
to the R&R out of time, and then filed objections. The district court overruled the
Motion for a COA with the district court, which was denied. Williamson filed an
opening brief and combined COA application, alleging five grounds as the basis
for relief: (1) the admission of propensity evidence that he engaged in lewd acts
with his biological daughter; (2) the jury instruction concerning that propensity
evidence; (3) the exclusion of expert testimony favorable to Williamson; (4) the
Clause of the Fifth and 14th Amendments; and (5) sufficiency of the evidence. 2
2
When Williamson failed to pay the filing fee or submit a motion to
proceed in forma pauperis, this court dismissed for lack of prosecution on
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showing that reasonable jurists could debate whether (or for that matter, agree
that) the petition should have been resolved in a different manner or that the
United States v. Taylor, 454 F.3d 1075, 1078 (10th Cir. 2006) (internal quotation
mark omitted).
petitioners claims, the Antiterrorism and Effective Death Penalty Act (AEDPA)
of state court decisions into our review of Williamsons request for a COA.
Dockins v. Hines, 374 F.3d 935, 938 (10th Cir. 2004). AEDPA makes habeas
relief available only if the state court decision was: (1) was contrary to clearly
established federal law, as held by the U.S. Supreme Court; (2) involved an
facts in light of the evidence presented in the state court proceeding. 28 U.S.C.
2254(d)(1), (2). We must presume the state courts factual determinations are
April 13, 2017. In May 2017, he paid the filing fee and filed a motion to reopen
the appeal, which was granted.
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correct, although the petitioner may rebut this presumption with clear and
v. Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005).
1. Propensity evidence
in child molestation cases evidence that the defendant had previously committed
child molestation or engaged in lewd conduct with a child. O KLA . S TAT . tit. 12,
2414. Before admitting the evidence, the trial court must conduct a balancing test
similar to the Federal Rule of Evidence 403 balancing test. Horn v. State, 2009
Under this state law provision, the state trial court allowed the prosecution
mouth kiss, licked her face and neck, and bathed her well beyond an age at
which she needed assistance, making her uncomfortable. ROA vol. 1 at 175, 592.
Williamson now argues: (1) admitting the propensity evidence absent the
balancing test violated his federal due process rights; (2) admitting this propensity
evidence was error under state law because the state trial judge failed to make the
requisite threshold finding that the prior act constituted a crime; and (3) because
not all elements of the factual threshold test were met (i.e., because the prior act
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was not proved by a preponderance of the evidence to be a crime), admitting the
The record indicates that the state trial court did balance the evidence
before admitting it. The State described the balancing test at length to the trial
court. ROA vol. 1 at 47782. The trial court said of the propensity evidence:
[C]learly its probably more prejudicial in these circumstances because its his
biological daughter, but I think its probative of the issues of whether there is a
propensity. Id. at 482. The trial court only then admitted the evidence. Id. at
48283. Because the state trial court performed the requisite balancing test, the
proceeding did not violate Williamsons due process rights. United States v.
Charley, 189 F.3d 1251, 1259 (10th Cir. 1999) (holding that the parallel Federal
Rule of Evidence 414 is not facially unconstitutional because the trial court must
this habeas action. Federal habeas review is not available to correct state law
evidentiary errors. Ochoa v. Workman, 669 F.3d 1130, 1144 (10th Cir. 2012).
habeas relief does not extend to the remedying of state law evidentiary errors, an
prejudicial that it renders the trial fundamentally unfair. Id. (quoting Payne v.
Tennessee, 501 U.S. 808, 825 (1991)). The state law error must be so grossly
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prejudicial that it fatally infected the trial and denied the fundamental fairness
that is the essence of due process. Revilla v. Gibson, 283 F.3d 1203, 1212 (10th
Cir. 2002). However, we may disregard error unless it had substantial and
United States, 328 U.S. 750, 776 (1946); see Brecht v. Abrahamson, 507 U.S.
619, 638 (1993); Lockett v. Trammel, 711 F.3d 1218, 1232 (10th Cir. 2013). A
substantial and injurious effect exists if a court finds itself in grave doubt about
the effect of the error on the jurys [sentencing decision]. Lockett, 711 F.3d at
Even if admitting the propensity evidence in this case was error, it was
harmless. The jury heard abundant evidence that Williamson had molested the
victim in this case: the victims mother heard him making suggestive comments
in the bathroom while her daughter was sitting in the bathtub. ROA vol. 1 at 580.
The child stated, without prompting, Hes been showing me his penis. Id. at
581. The child was able to describe various sexual behaviors in detail. Id. at
58182. The girls testimony was extensive and would have provided ample
Williamson raised this argument both before the OCCA and the federal
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district court. See id. at 17172.
That a jury instruction was allegedly incorrect under state law is not a
basis for habeas relief. Estelle v. McGuire, 502 U.S. 62, 7172 (1991). Rather,
Williamson must show that the erroneous instruction so infected the entire trial
that the resulting conviction violates due process, id. (quotation omitted) or is
We assess the instruction in light of all other jury instructions together with the
Combined Brief at 2021. Moreover, Williamson does not clearly argue that this
3. Expert testimony
Williamson argued to the district court that the state trial courts exclusion
ROA vol. 1 at 36, 4243. He now asserts that this exclusion, standing alone,
violated his right to present a defense under the Due Process Clause of the Fifth
Amendment. See Combined Br. at 25. Although we may decline to issue a COA
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as to this issue because it was not raised before the district court, see United
States v. Viera, 674 F.3d 1214, 1220 (10th Cir. 2012), we will construe his pro se
anything suggested to the jury [that] it should decide the case on any basis other
than the facts adduced at trial and the law as set out in the trial courts
instructions. Ochoa v. Workman, 669 F.3d at 1145. Here, the facts adduced at
trial were incredibly probative of Williamsons guilt. The district court truth
qualified the victim before she testified to the incidents in question, ROA vol. 1
at 586, and when she testified, her testimony was powerful. The jury heard
multiple times about the limitations of child victim testimony, including that it is
common for child victims to elaborate upon information they previously disclosed
and to disclose additional incidents over time. E.g., id. at 425, 585. And, as the
R&R detailed at length, nontrivial evidence favoring the defense was admitted at
trial: evidence that the child had been potentially exposed to adult videos, an
464; and evidence of the victims mothers ongoing sexual relationship with
of Dr. Kishurs testimony did not render Williamsons trial fundamentally unfair.
4. Fundamental unfairness
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Williamson next argues that the state trial courts state law evidentiary
rulings, when viewed collectively, violated his due process rights. He asserts that
the exclusion of the following evidence was problematic: (1) a song the victim
sang called Get a New Daddy; 3 (2) the victims mothers continued sexual
relationship with Williamson after she allegedly stated that he scared her; (3)
evidence that the victim had seen provocative videos; (4) evidence that the victim
biological daughter. He also asserts the admission of the following evidence was
problematic: (6) victim hearsay statements; (7) evidence surrounding the incidents
of sexual abuse of the victim (res gestae); (8) pornographic pictures on the
Williamson family computer; and (9) a sex tape that Williamson and the victims
mother made.
The OCCA found only the exclusion of the Get a New Daddy song to be
error. Id. 368. However, it held that it did not have grave doubts that the trial
outcome would have been materially affected if the error had not occurred. Id. at
369. The federal district court found no error in any of the OCCAs evidentiary
3
The federal district court explained: Get A New Daddy is a song that,
in satirical fashion, instructs children on how they can get rid of their father by
accusing him of molestation and other lewd behavior. ROA vol. 1 at 697.
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evidentiary errors if it is so grossly prejudicial that it fatally infected the trial
and denied the fundamental fairness that is the essence of due process. Revilla,
283 F.3d at 1212. But federal habeas relief may not be granted if the error did
not have substantial and injurious effect or influence in determining the jurys
verdict. Kotteakos, 328 U.S. at 776; see Brecht, 507 U.S. at 638; Lockett, 711
F.3d at 1232.
never reached the allegedly erroneously admitted res gestae evidence because
Williamson failed to specify what details he was contesting. ROA vol. 1 at 618.
See Adler v. Wal-Mart Stores, 144 F.3d 664, 679 (10th Cir. 1998). Third, a
district court did allow defense counsel to ask the victims mother about her
ongoing sexual relationship with Williamson, albeit before she testified that he
frightened her. ROA Vol. 1 at 609. Moreover, the record indicates that defense
counsel questioned her about the ongoing relationship despite her fears. Id. at
610. Additionally, the trial court did admit some evidence of the victims sexual
habits: one statement from Williamson about one instance in which she
masturbated, and one statement from her mother about a single, similar instance.
Id. at 61213. The trial court did prevent Williamsons brother from testifying
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regarding the same subject. Id. at 613. And the district court did not admit the
contents of the sex tapes that Williamson and the victims mother made. Id. at
the rulings fatally infected the trial. Admitting the evidence that the victim had
sung the phrase Get a New Daddy was not fundamentally unfair, even if it was
error under state law, because there was no evidence that she knew the full lyrics.
See id. at 608. The trial court did admit evidence that adult videos were
accessible to the victim, although it excluded evidence that one such video was
the video that Williamson and the victims mother made. Id. at 612. Thus, the
defense was able to present evidence that the victims advanced understanding of
sexual activities was not limited to her alleged contact with Williamson.
Williamson also argues that the victim hearsay statements were unreliable and
should not have been admitted. The state trial court held a hearing before
admitting this sensitive evidence and made an express finding of the statements
reliability. Id. at 61617. And defense counsel was able to cross examine all
witnesses who presented such hearsay statements. Id. Finally, the admission of
case, as the evidence also suggested that the victim had been exposed to porn. Id.
at 61819.
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We conclude that none of the challenged evidentiary rulings rendered the
proceedings fundamentally unfair and thus decline to issue a COA on this basis.
by Supreme Court precedent. Jackson v. Virginia, 443 U.S. 307, 324 (1979)
habeas action, the relevant question is whether, after viewing the evidence in the
light most favorable to the prosecution, any rational trier of fact could have found
the essential elements of the crime beyond a reasonable doubt. Id. at 319.
Williamson argues that the state failed to prove beyond a reasonable doubt
all elements of Count One, lewd acts with a child. Specifically, he argues the
State did not prove that he exposed himself for the purpose of receiving sexual
The OCCAs analysis was conclusory but applied the correct standard.
ROA vol. 1 at 370. The district court listed the significant evidence that the State
offered at trial: that Williamson licked the victims vagina; masturbated before
her to the point of ejaculation; placed her mouth on his penis; and made her touch
his penis. Id. at 702. From these facts, a rational trier of fact could certainly
have found that Williamson exposed himself to the victim for the purpose of
receiving sexual gratification. Thus, the state courts adjudication of his claim
was not contrary to, nor did it involve an unreasonable application of, clearly
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established federal law as stated by the Supreme Court.
III
Because Williamson has provided no viable basis for relief, and because
reasonable jurists would not find the district courts denial of his claims debatable
or wrong, we DENY his request for a COA and dismiss the matter.
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