Rojem v. Royal
673 F. App'x 797
| 10th Cir. | 2016Background
- Richard Rojem was convicted in 1985 of kidnapping, raping, and murdering a seven‑year‑old; he received death for murder and multi‑hundred year terms for other counts.
- After multiple appeals and resentencings, Rojem was resentenced to death in a third sentencing (the proceeding at issue); the OCCA affirmed and post‑conviction relief was denied.
- This federal habeas appeal (COA granted on specific issues) challenges (1) appellate counsel’s failure to raise that the trial court’s deadlock instruction (an Oklahoma pattern Allen charge) coerced the jury and (2) cumulative error from that instruction combined with exclusion of certain mitigating evidence (a PowerPoint referencing a DOJ study).
- At sentencing the jury reported deadlocks (10–2 then 11–1 in favor of death); the court gave the Oklahoma pattern deadlock instruction and the jury returned a unanimous death verdict about an hour later.
- The trial judge excluded the expert’s PowerPoint because it cited a DOJ study but allowed the expert to testify substantively; defense did not elicit certain details at trial.
- The district court denied habeas relief; the Tenth Circuit reviews ineffective‑assistance claims under Strickland and evaluates alleged coercion of Allen charges under Lowenfield and related precedent.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether appellate counsel was ineffective for not challenging the trial court’s supplemental deadlock (Allen) instruction | Rojem: counsel should have argued the Allen charge was coercive and deprived him of effective appellate advocacy | State: the Allen instruction was non‑coercive given its wording, context, and short subsequent deliberation | Court: No deficient performance—omitted claim lacked merit; Allen charge was not coercive |
| Whether the Allen charge’s language (lack of admonition to holdouts) rendered it coercive | Rojem: instruction should have contained cautionary language protecting conscientiously held convictions | State: Lowenfield does not require such language; similar language has been upheld | Court: No rule requiring cautionary language; prior Tenth Circuit cases upheld similar wording |
| Whether timing/placement and mention of alternative sentences coerced the lone holdout juror | Rojem: giving the instruction after deliberations and identifying only life options coerced the juror who objected on religious grounds | State: timing alone does not establish coercion; jury knew other life terms already in record; no record support for juror mindset | Court: Placement/timing increase possibility but absent coercive language or record indicia, not coercive |
| Whether exclusion of the PowerPoint and related DOJ citation had a substantial and injurious effect (cumulative error) | Rojem: exclusion prevented presentation of mitigating evidence (child sexual abuse, empirical basis) and undermined expert credibility | State: exclusion was of form not substance; expert testified to abusive history and was not impeached on basis; counsel could have elicited more but chose not to | Court: Exclusion did not have a substantial and injurious effect; no cumulative error found |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (1984) (two‑prong standard for ineffective assistance of counsel)
- Lowenfield v. Phelps, 484 U.S. 231 (1988) (Allen‑type supplemental instructions evaluated in context and under all circumstances)
- Fry v. Pliler, 551 U.S. 112 (2007) (standard for prejudice review on habeas — substantial and injurious effect)
- Brecht v. Abrahamson, 507 U.S. 619 (1993) (harmless‑error standard on federal habeas review)
- Darks v. Mullin, 327 F.3d 1001 (10th Cir. 2003) (upholding similar Allen instruction lacking protective admonition)
- United States v. Zabriskie, 415 F.3d 1139 (10th Cir. 2005) (definition and purpose of Allen charges)