Harris v. Sharp, 941 F.3d 962

Background

Jimmy Dean Harris was convicted of first-degree murder (killing Merle Taylor), wounded Pam Harris, and shot at Jennifer Taylor; jury recommended death in 2001; OCCA vacated initial death sentence and ordered a 2005 penalty-phase retrial where the death sentence was reimposed.
Record contained multiple IQ tests and expert opinions: childhood tests ~87/83; post-arrest adult tests 63, 66, 68, 75; Dr. Martin Krimsky testified to mild intellectual disability at a 2001 competency hearing; Dr. Jennifer Callahan later reported borderline-to-impaired scores and relied on prior testing; Dr. Wanda Draper testified at the 2005 retrial about developmental and cognitive deficits.
Defense counsel did not request a pretrial Atkins hearing on intellectual disability (which, under Oklahoma law at the time, required at least one IQ score ≤70 to trigger further inquiry and could bar execution).
Harris pursued state post-conviction relief; OCCA denied relief (finding no prejudice from counsel’s omissions); federal district court denied habeas relief; Harris appealed to the Tenth Circuit.
The Tenth Circuit held counsel was deficient for failing to seek the Atkins pretrial hearing and found the OCCA’s prejudice determination factually unreasonable, vacating and remanding for an evidentiary hearing on prejudice; the court affirmed denial of relief on the other claims but remanded cumulative-error review in light of the Atkins remand.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Counsel ineffective for failing to request a pretrial Atkins (intellectual-disability) hearing	Harris: counsel had a risk‑free, significant opportunity (IQ scores, Krimsky opinion, other record evidence) to obtain an Atkins finding that would bar death; failing to request hearing was deficient and prejudicial	State: counsel made a strategic decision after reasonable investigation; OCCA found no prejudice	Court: Counsel was deficient; OCCA’s prejudice finding rested on an unreasonable factual premise (misreading Krimsky). Remanded for evidentiary hearing on prejudice (reversal as to deficiency/pronounced need for hearing).
Counsel ineffective for failing to present additional mitigation (intellectual impairment / mental illness)	Harris: counsel should have introduced additional expert testimony and records demonstrating intellectual impairments and mental illness as mitigating	State: trial counsel presented substantial mitigation (family witnesses, Dr. Draper); additional evidence risked rebuttal/aggravation (psychopathy/antisocial traits, malingering); OCCA reasonably applied Strickland under AEDPA	Court: OCCA reasonably rejected claim under §2254(d); habeas relief denied on mitigation-presentation claims.
Jury instruction and prosecution closing arguments limited consideration of mitigation	Harris: instruction defining mitigating circumstances as those reducing moral culpability and prosecutor’s argument effectively restricted jury’s consideration of mitigation	State: instruction and later prosecutor’s rebuttal clarified jury could consider all mitigation; error (if any) was harmless	Court: Under §2254(d) OCCA reasonably concluded instructions + rebuttal cured prosecutor’s improper remarks; claim denied.
Victim-impact witnesses asked for death (impermissible sentence recommendation)	Harris: family members’ explicit requests for death violated Booth/Payne and undermined sentencing reliability	State: OCCA found no reversible error; any error harmless given aggravators and brief testimony	Court: Admission of death-request testimony was unconstitutional under Booth/Payne, but error was harmless (Brecht standard); habeas relief denied on this claim.
Cumulative error	Harris: cumulative effect of deficient counsel, improper argument, and victim-impact testimony undermined confidence in sentence	State: individual errors were harmless or non-prejudicial; no cumulative relief warranted	Court: Because remand required on Atkins-prejudice issue, cumulative-error claim must be reconsidered by district court on remand.

Key Cases Cited

Strickland v. Washington, 466 U.S. 668 (1984) (two‑part ineffective assistance standard: deficiency and prejudice)
Atkins v. Virginia, 536 U.S. 304 (2002) (execution of intellectually disabled prohibited; states define the standard)
Williams v. Taylor, 529 U.S. 362 (2000) (AEDPA §2254(d) deference framework)
Rompilla v. Beard, 545 U.S. 374 (2005) (de novo review where state court did not reach a Strickland prong)
Harrington v. Richter, 562 U.S. 86 (2011) (doubly deferential review in §2254 ineffective-assistance claims)
Knowles v. Mirzayance, 556 U.S. 111 (2009) (overview of AEDPA/Strickland interaction)
Littlejohn v. Trammell, 704 F.3d 817 (10th Cir. 2013) (need for evidentiary hearing where facts are disputed in cold record)
Wilson v. Workman, 577 F.3d 1284 (10th Cir. 2009) (en banc) (evidentiary-hearing denial and §2254(d) implications)
Lott v. Trammell, 705 F.3d 1167 (10th Cir. 2013) (clarifying treatment of OCCA denials of evidentiary hearings)
Murphy v. State, 54 P.3d 556 (Okla. Crim. App. 2002) (Oklahoma Atkins standard requiring at least one IQ score ≤70 at the time)
Wiggins v. Smith, 539 U.S. 510 (2003) (scope of counsel’s duty to investigate mitigation)
Tennard v. Dretke, 542 U.S. 274 (2004) (mitigating value of low IQ evidence)
Lockett v. Ohio, 438 U.S. 586 (1978) (sentencer may consider any aspect of defendant’s character or record as mitigation)
Eddings v. Oklahoma, 455 U.S. 104 (1982) (sentencer must consider mitigating evidence)
Payne v. Tennessee, 501 U.S. 808 (1991) (victim-impact evidence generally admissible; Booth limits requests for specific sentence)
Booth v. Maryland, 482 U.S. 496 (1987) (prohibiting victim-family requests for specific punishment)
Brecht v. Abrahamson, 507 U.S. 619 (1993) (harmless-error standard for federal habeas review)
Boyde v. California, 494 U.S. 370 (1990) (assessing whether jury instructions reasonably likely precluded consideration of mitigation)