Hanson v. Sherrod, 2015 U.S. App. LEXIS 14239

Background

John Hanson and Victor Miller carjacked Mary Bowles (an elderly volunteer), drove her to an isolated area where Miller shot Jerald Thurman; Hanson then removed Bowles and shot her multiple times. Both were later arrested; guns matching the murder weapons were found in their motel room.
Hanson was convicted of first-degree murder (Bowles) and felony murder (Thurman). A jury at the penalty phase found multiple aggravators and initially imposed death; Oklahoma courts reversed and remanded for resentencing, and after a second jury again recommended death the OCCA upheld the sentence after striking one aggravator.
Hanson pursued state post-conviction relief and then filed a federal habeas petition under 28 U.S.C. §2254 raising ineffective-assistance-of-counsel claims (trial and appellate), multiple prosecutorial-misconduct claims, a challenge based on invalidation of the great-risk aggravator, a claim about a mitigating-instruction limiting consideration of mitigation, and cumulative-error.
The Tenth Circuit reviewed the habeas petition under AEDPA deferential standards and Strickland for ineffective assistance; it examined specific allegations: failure to call or interview a jailhouse witness (Ahmod Henry), failure to use Miller’s trial transcript to object to Barnes’s testimony, failure to present more mitigation witnesses and mental-health/brain-damage evidence, and failure to object to alleged prosecutorial misconduct.
The court found (1) counsel’s strategic choices (e.g., eliciting Henry’s statement through a detective rather than calling Henry) were reasonable; (2) additional mitigation proffers were largely cumulative of testimony presented; (3) pretrial mental-health screenings did not reasonably require further testing, so counsel’s investigation was not deficient; (4) the asserted prosecutorial misconduct claims were either unpersuasive or cured by rulings/instructions; and (5) invalidation of the great-risk aggravator did not render the sentence unconstitutional because the same facts supported a valid avoid-arrest-or-prosecution aggravator.
The Tenth Circuit affirmed the district court’s denial of habeas relief and refused an evidentiary hearing and to expand the COA.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Ineffective assistance: failure to call Ahmod Henry	Hanson: counsel was deficient for not calling Henry to testify about Miller’s jailhouse confession	State: counsel reasonably used cross-examination of detective to introduce the confession and avoided risks of calling a discredited witness	Court: counsel’s strategy was reasonable; no Strickland deficiency found
Ineffective assistance: failure to use Miller’s trial transcript to object to Barnes’s testimony	Hanson: counsel should have read Miller’s transcript and used it to impeach Barnes	State: counsel reasonably avoided exposing harmful portions of Miller’s testimony; omission was tactical	Court: no deficiency and, even if error, no prejudice
Ineffective assistance: failure to investigate/present mitigation and mental-health/brain-damage evidence	Hanson: counsel failed to develop and present extensive mitigation and neuro/psychiatric evidence that could have swayed sentencing	State: counsel did investigate; proffered witnesses were cumulative; pretrial screenings gave no clear reason for further testing	Court: additional mitigation mostly duplicative; mental-health screenings justified not pursuing further testing; no prejudice; no evidentiary hearing warranted
Prosecutorial misconduct (various)	Hanson: prosecutor vouched for witnesses, appealed to civic duty, mischaracterized law on aggravators, engaged in name-calling and victim-sympathy appeals, and argued death was the only adequate punishment	State: remarks were grounded in the record, limited, or cured by the trial court; slide issue unclear in record; jury instructed and could consider mitigation	Court: most remarks were proper or cured; where comments were improper, not so prejudicial as to deny due process; no relief
Effect of OCCA invalidating great-risk-of-death aggravator	Hanson: invalidation skewed jury calculus and made death sentence unconstitutional	State: Brown analysis allows upholding if same facts support a valid aggravator; evidence supported avoid-arrest aggravator	Court: OCCA reasonably applied Brown; same facts supported valid aggravator; sentence upheld
Jury instruction on mitigating circumstances	Hanson: instruction limited consideration to mitigation reducing moral culpability, improperly narrowing jury’s consideration	State: instruction not unconstitutional; considered in context with other instructions and prosecutor remarks	Court: no reasonable likelihood jury was prevented from considering mitigating evidence; instruction upheld

Key Cases Cited

Strickland v. Washington, 466 U.S. 668 (1984) (standard for ineffective assistance of counsel)
Harrington v. Richter, 562 U.S. 86 (2011) (AEDPA deference; "doubly deferential" review when Strickland and §2254(d) apply)
Brown v. Sanders, 546 U.S. 212 (2006) (invalidated aggravator harmless if same facts support a valid aggravator)
Ring v. Arizona, 536 U.S. 584 (2002) (jury must find any fact increasing authorized punishment)
Boyde v. California, 494 U.S. 370 (1990) (instruction reviewed for reasonable likelihood of misapplication regarding mitigation)
Eddings v. Oklahoma, 455 U.S. 104 (1982) (sentencer may consider any aspect of defendant’s character or record as mitigation)
Lockett v. Ohio, 438 U.S. 586 (1978) (mitigation cannot be limited to enumerated factors)
Clemons v. Mississippi, 494 U.S. 738 (1990) (reweighing remaining aggravators after invalidation of one)
Mills v. Maryland, 486 U.S. 367 (1988) (jury unanimity and mitigation-related concerns in verdict forms)
Greer v. Miller, 483 U.S. 756 (1987) (presumption that juries follow limiting instructions)
Wiggins v. Smith, 539 U.S. 510 (2003) (counsel deficient for failing to investigate and present significant mitigating evidence)
Darden v. Wainwright, 477 U.S. 168 (1986) (prosecutorial misconduct reviewed under due-process standard)