918 F.3d 895
10th Cir.2019Background
- Raymond Johnson brutally attacked his ex-girlfriend with a hammer, doused the house (including the infant’s room) with gasoline, set it on fire, and both the mother and her seven-month-old died; Johnson was convicted of first-degree arson and two counts of first-degree murder and sentenced to death.
- At penalty phase the State proved four aggravators (risk to more than one person, heinousness, prior violent felony—which Johnson stipulated to—and continuing threat); defense presented nine mitigation witnesses focused on Johnson’s prison ministry and potential to help others.
- Trial court excluded two of five family photographs, most of a prison gospel recording (allowed a 30-second excerpt), and a video of Johnson preaching; defense counsel reduced a proffered 21-witness mitigation list to nine witnesses during trial.
- Johnson filed state post-conviction relief alleging ineffective assistance of trial and appellate counsel (failure to challenge exclusions, failure to investigate/present mitigation witnesses, failure to raise prosecutorial misstatements) and sought federal habeas under 28 U.S.C. § 2254; district court denied relief.
- On appeal, under AEDPA, the Tenth Circuit reviewed whether the Oklahoma Court of Criminal Appeals unreasonably applied clearly established federal law (Strickland standard for ineffective assistance) and whether any prosecutorial misstatements precluded the jury from considering mitigating evidence (Lockett principle).
- The Tenth Circuit affirmed denial of habeas relief, finding the OCCA reasonably concluded Johnson could not show Strickland prejudice from excluded evidence or counsel decisions, that appellate counsel was not ineffective for omitting nonmeritorious claims, that prosecutorial misstatements were cured by instructions and other comments, and that cumulative error did not warrant relief.
Issues
| Issue | Johnson's Argument | State's Argument | Held |
|---|---|---|---|
| Exclusion of evidence (photos, audio, video) and appellate counsel ineffective for not appealing | Excluded items were significant mitigation; appellate counsel ineffective for not raising exclusion on direct appeal | Excluded items were cumulative or weak; any error was not prejudicial under Strickland/AEDPA | No relief: OCCA reasonably found no prejudice; appellate counsel not ineffective |
| Trial counsel failed to investigate/develop/present mitigation witnesses; appellate counsel ineffective for not raising it | Counsel should have presented a fuller life-history and additional witnesses ("whole Raymond") and not truncated the list | Counsel investigated 21 witnesses, made a strategic choice to present positive mitigation and avoid double-edged evidence; omissions were strategic and reasonable | No relief: trial strategy was reasonable under Strickland; appellate counsel not ineffective for omitting meritless claim |
| Prosecutorial misconduct—misstating definition of mitigating evidence; appellate counsel ineffective for not raising it | Prosecutor repeatedly equated mitigation with reduced moral culpability, which could have prevented jury from considering broader mitigation | Jury instructions and other prosecutorial remarks properly defined and encouraged consideration of mitigation; any misstatements cured | No relief: OCCA reasonably concluded misstatements did not preclude consideration of mitigation; appellate counsel not ineffective |
| Cumulative error | Even if each error is minor, their aggregate deprived Johnson of reliable sentencing | Errors were limited to assumed exclusions and were not prejudicial individually or cumulatively | No relief: aggregated presumed errors would not have changed the sentence |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (establishes two-part ineffective-assistance test)
- Lockett v. Ohio, 438 U.S. 586 (sentencer must consider any relevant mitigating evidence)
- Harrington v. Richter, 562 U.S. 86 (AEDPA deference and interplay with Strickland)
- Woodford v. Visciotti, 537 U.S. 19 (deference to state-court rulings under AEDPA)
- Boyde v. California, 494 U.S. 370 (prosecutorial argument judged less forceful than jury instructions)
- Richardson v. Marsh, 481 U.S. 200 (presumption jurors follow jury instructions)
- Hooks v. Workman, 689 F.3d 1148 (AEDPA review framework in Tenth Circuit)
- Grant v. Royal, 886 F.3d 874 (prosecutorial misstatements and curative effect of instructions analyzed)
- Underwood v. Royal, 894 F.3d 1154 (similar analysis of curing prosecutor misstatements)
- Moore v. Gibson, 195 F.3d 1152 (standard for ineffective-assistance of appellate counsel)
- Neill v. Gibson, 278 F.3d 1044 (reasonable probability standard for omitted appellate claims)
- English v. Cody, 241 F.3d 1279 (appellate counsel not ineffective for omitting nonmeritorious issues)
- Breechen v. Reynolds, 41 F.3d 1343 (Lockett application to jury consideration of mitigation)
- Cargle v. Mullin, 317 F.3d 1196 (cumulative-error treatment of Strickland claims)
- Fox v. Ward, 200 F.3d 1286 (presumption counsel’s actions are sound strategy)
- United States v. Rivera, 900 F.2d 1462 (cumulative-harmless-error standard)
- Littlejohn v. Trammell, 704 F.3d 817 (quoting AEDPA standards for § 2254 review)