Howell v. Trammell
728 F.3d 1202
10th Cir.2013Background
- Michael Wayne Howell was convicted in Oklahoma (1988) for the murder of Charlene Calhoun; jury recommended death. Post-trial juror misconduct during sequestration led the Oklahoma Court of Criminal Appeals (OCCA) to vacate the first death sentence and remand for a new penalty phase (1996), where Howell again received death.
- Howell pursued federal habeas relief: an initial §2254 petition denied (district court 2002); appeal stayed for Atkins developments. After Atkins v. Virginia, Oklahoma held an Atkins (mental-retardation) jury trial (2005) and found Howell not mentally retarded; OCCA affirmed (Howell III).
- Howell filed a second federal habeas petition raising numerous Atkins-related claims; the district court denied relief and declined a COA. Howell sought a COA from the Tenth Circuit, which denied and consolidated his earlier appeal on guilt/penalty-phase claims.
- The Tenth Circuit reviewed five guilt-phase and sentencing-phase claims (juror misconduct, admission of co-defendant’s preliminary-hearing testimony, juror nondisclosure of CIA employment, testimony of co-defendant’s former attorneys, and counsel’s disclosure that Howell was on death row) and multiple issues from the Atkins trial and post-conviction proceedings.
- Applying AEDPA deferential standards, the court held the state proceedings were not contrary to or unreasonable applications of clearly established federal law; it affirmed denial of Howell’s first habeas petition and denied a COA for the second petition, dismissing that appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Juror misconduct before guilty verdict | Juror Smith and deputies’ contacts tainted guilt verdict; new guilt trial required | Only one pre-verdict comment (about deputies being armed); substantive contacts occurred after guilt phase; OCCA already remedied penalty-phase misconduct | No relief: pre-verdict contact not about the case; no presumption of prejudice; OCCA decision reasonable under AEDPA |
| Admission of co-defendant Watson’s preliminary-hearing testimony (Confrontation) | Watson’s prior testimony violated Howell’s Confrontation rights because she was not "unavailable" and testimony lacked reliability | Watson was effectively unavailable under state law; preliminary-hearing testimony bore indicia of reliability (under Green/Roberts); Howell cross-examined Watson at the hearing and trial | No relief: admission met pre-Crawford Roberts/Green standards; OCCA’s ruling not contrary to clearly established law |
| Juror nondisclosure (CIA employment) | Juror Bays withheld material voir dire information; bias or basis for challenge for cause | Omission not dishonest evasion of a material question; Bays disclosed other military/court-martial experience; no proof of bias | No relief: McDonough standard not met; OCCA’s denial reasonable under AEDPA |
| Testimony by co-defendant’s former attorneys and failure to give limiting instruction | Testimony and lack of limiting instruction violated Confrontation and prejudiced Howell | Attorneys’ testimony was not substantive hearsay (Watson testified and was cross-examined); failure to sua sponte give limiting instruction not plain error warranting relief | No relief: admission not a Confrontation violation pre-Crawford; OCCA reasonably found no plain error in omitting a limiting instruction |
| IAC for revealing Howell was on death row during second penalty phase | Counsel’s disclosure predisposed jury and violated Caldwell; counsel was ineffective under Strickland | Counsel’s strategy to show model-prisoner behavior rebutted continuing-threat aggravator; mentioning death row not clearly prejudicial nor a Caldwell violation | No relief: strategic decision; no reasonable probability of different outcome; OCCA’s Strickland application reasonable |
| Atkins proceedings: burden of proof, Batson, IAC, sufficiency of evidence | Defendant argues burden should be on State (Apprendi/Ring), Batson violations at jury selection, counsel errors, and insufficient evidence of non-retardation | Oklahoma law places burden on defendant by preponderance; OCCA applied reasonable state standards; no proven Batson or IAC prejudice; evidence supported jury verdict | COA denied on these Atkins claims: reasonable jurists would not debate the district court’s AEDPA-based conclusions |
Key Cases Cited
- Remmer v. United States, 347 U.S. 227 (1954) (presumptively prejudicial any unauthorized contact with juror during trial)
- Turner v. Louisiana, 379 U.S. 466 (1965) (reversal where officers fraternized with jurors and also served as prosecution witnesses)
- Parker v. Gladden, 385 U.S. 363 (1966) (reversal where bailiff’s comments to jurors prejudiced trial)
- California v. Green, 399 U.S. 149 (1970) (preliminary-hearing testimony admissible when circumstances approximate trial and defendant had opportunity to cross-examine)
- Ohio v. Roberts, 448 U.S. 56 (1980) (pre-Crawford test: unavailable declarant plus indicia of reliability required for prior statements)
- Strickland v. Washington, 466 U.S. 668 (1984) (two-prong ineffective-assistance-of-counsel test)
- Jackson v. Virginia, 443 U.S. 307 (1979) (standard for sufficiency of the evidence on habeas review)
- Atkins v. Virginia, 536 U.S. 304 (2002) (Eighth Amendment prohibits execution of mentally retarded defendants)
- Ring v. Arizona, 536 U.S. 584 (2002) (Apprendi extension: aggravating factors enabling death penalty must be found by a jury)
- Apprendi v. New Jersey, 530 U.S. 466 (2000) (facts increasing maximum penalty must be submitted to jury and proved beyond reasonable doubt)