*1 Billy ALVERSON, D. Petitioner-
Appellant, WORKMAN, Warden,
Randall G. Penitentiary,
Oklahoma State
Respondent-Appellee.
No. 09-5000. of Appeals,
United States Court
Tenth Circuit.
Feb. *2 26,1995.
ruary They chatted with Rich- Yost, clerk, night ard until the most opportune time them arose for to accost *3 him and force him the back into cooler. They handcuffed him and tied his legs tape. with duct Harjo Alverson and Harjo went outside and with returned carrying a baseball bat. (Steven Jackson, Presson Robert W. M. was Yost found beaten death in a briefs), with him on the Law Of- Presson blood, of pool milk. beer and Part of a fice, OK, Norman, Petitioner-Appel- for broken set of handcuffs found near lant. right hip. The medical examiner Miller, Attorney Jennifer B. Assistant pina found from handcuffs these embed- (W.A. Edmondson, Attorney General Drew during ded in Yost’s skull the autopsy. Oklahoma, General on of with her $30,000.00 safes Two over containing brief), City, OK, Respon- Oklahoma stolen, all were as well the money as dent-Appellee. register from cash and the store’s surveillance All videotape. four defen- KELLY, BRISCOE, Before were dants arrested day later same TYMKOVTCH, Judges. Circuit wearing new and carrying tennis shoes of cash. BRISCOE, drop wads The stolen safe and Judge. Circuit videotape, store surveillance as well Billy Alverson, Petitioner an Oklahoma evidence, damaging as other was found state prisoner convicted degree of first search home. Alverson’s The robbery dangerous murder and with a bat, bloody Quick- baseball the victim’s weapon and sentenced to death in connec- jacket, Trip [sic] the other cuff from the tion conviction, murder appeals handcuffs, set of broken and Wilson’s the district denial of court’s his 28 U.S.C. jacket Nike which matched the one he § petition writ of corpus. habeas tape wore the surveillance were tak- jurisdiction Exercising pursuant to 28 en from Wilson’s home. § U.S.C. we affirm judgment State, (Okla. Alverson 983 P.2d the district court. (Alverson I) (internal Crim.App.1999) omitted). paragraph numbers I.
A. background Factual Alverson’s appeal B. triаl and direct The underlying relevant facts Alverson, Wilson, Harjo and Brown case were outlined detail by the Okla- “charged ... conjointly with the (OCCA) homa Appeals Court of Criminal first degree and, crimes of malice murder in addressing Alverson’s direct appeal: alternative, in the degree felony first mur- co-defendant, (Count I) Michael O.S.1991, Wil- der of 21 violation
son, 701.7(A) (B) worked at the QuikTrip convenience robbery & with a dan- (Count store II) located 215 N. Road in gerous weapon Garnett in violation of 21 Tulsa, Alverson, Wilson, O.S.1991, § Oklahoma. 801 in the District Court of friends, Harjo two of their County, Richard and Tulsa Case No. CF-95-1024.” Id. Brown, Darwin QuikTrip went to the particulars State filed a bill of during early morning of Feb- hours three alleging aggravating circumstances: 19, 1999, heinous, July On the OCCA (1) hearing. especially that the murder (2) denying order Al- cruel; unpublished issued an that the murder was or atrocious State, applications. Alverson v. avoiding or verson’s purpose committed for 1999) (Alverson (July No. prosecution; PC-98-182 a lawful arrest preventing II). (3) probability existence of criminal acts of would commit Alverson D. continuing that would constitute
violence
proceedings
“Alverson and co-defen-
society.
threat
conjointly, but with
Harjo were tried
dant
initiated this federal habeas ac-
*4
fate.” Id. at
juries deciding their
separate
27, 2000, by filing
pro
a
se
tion on June
guilty
him
jury found
506. Alverson’s
proceed
pauperis
forma
and a
motion
robbery
with
degree
first
murder
of counsel. Alver-
appointment
motion for
At the conclusion of
weapon.
dangerous
and,
granted
son’s motions were
on Janu-
jury
stage,
punishment
[Alverson’s]
“the
9, 2001,
ary
appointed
Alverson’s
counsel
aggravating
of two
found the existence
petition
for writ of ha-
preliminary
filed
(1) that
the murder was
circumstances:
corpus asserting eighteen grounds
beas
for
heinous,
cruel; and
atrocious or
especially
ROA,
31,
January
relief.
Doc. 11. On
(2)
for the
that the murder was committed
2001,
appointed
Alverson’s
counsel filed an
a lawful
avoiding
preventing
purpose
petition asserting only eight
amended
jury re-
prosecution.” Id. The
arrest or
relief,
grounds
including
for
a claim of
continuing
aggravator.
threat
jected the
evidentiary
to a federal
hear-
entitlement
jury
pun-
his
Ultimately, Alverson’s
fixed
Id.,
ing.
petition
Doc. 12. The amended
degree mur-
at death for the first
ishment
it
expressly stated
was intended
imprisonment for
conviction and life
der
petition”
preliminary
“supersede []
trial
robbery conviction. The state
specifi-
and to “delete
claims and more
[ ]
in accordance
sentenced Alverson
court
cally
sup-
assert facts and authorities
jury’s verdict.
with the
at n.
the retained claims.” Id.
1.
port of
2008,
5,
December
the district
On
6, 1999,
affirmed
May
the OCCA
On
petition.
denied Alverson’s amended
On
and sentences on
Alverson’s convictions
date, the
court entered
that same
district
appeal. Id. at 522. Alverson filed
direct
respondent
in favor of
judgment
denied
rehearing,
for
which was
petition
against Alverson.
peti-
then filed a
by the OCCA. Alverson
of certiorari with the United
tion for writ
25, 2008, Alverson filed
On December
Court, which was denied
States
application
an
seek-
with the district court
10,
Alverson v. Okla-
January
on
2000.
(COA)
appealability
ing a certificate
homa,
1089, 120 S.Ct.
528 U.S.
(1)
to four issues:
whether
respect
(2000).
145 L.Ed.2d
trial court violated Alverson’s
the state
Oklahoma,
Ake v.
rights under
application
C.
for
(1985),
1087,
any, for clear error. II. at 1197. appeal gov-
Our review of Alverson’s provisions
erned
the Antiterror-
III.
Penalty
ism and Effective Death
Act of
funding
A. Denial of
(AEDPA).
Sirmons,
Snow
neuropsychological
(10th Cir.2007).
F.3d
Under
*5
examination
AEDPA,
of review applicable
the standard
particular
depends upon
to a
claim
how
process
contends that his due
by
that claim was resolved
the state
rights, as outlined in
the
Court’s
courts. Id.
Oklahoma,
decision in Ake v.
(1985),
unreаsonable determination of the facts in (2) defense; stage that he preju- light of presented the evidence in the State diced the lack qualified expert assis- 2254(d)(2). proceeding,” court id. tance. reviewing “When a state applica court’s law, tion of precluded we are from As we shall in greater discuss detail issuing simply below, the writ because we con the Ake claim was addressed independent clude our judgment sponte resolving OCCA sua applied and, state court the law erroneously result, direct appeal, as a the OCCA’s Abbott, or incorrectly.” McLuckie v. subject resolution of that claim is to review (10th Cir.2003). “Rather, F.3d under the deferential standards outlined in 2254(d). Further, we must be application convinced that the conclude objectively was also unreasonable.” Id. OCCA’s resolution of the Ake claim was “This require to, standard does not abject contrary our neither nor an unreasonable deference, of, but prohibits application clearly nonetheless us established federal from substituting our own judgment Finally, for law. because the OCCA reason- Snow, that of the claim, state court.” ably rejected F.3d Alverson’s Ake it is (internal quotation marks and cita unnecessary to reach the merits of Alver- omitted). tion arguments. son’s two related 1) penalty.” applica- for the death Id. The history procedural Relevant from ultimately “that ... requested tion Carlton court state trial ... to conduct all appointed be detail, recounting, some begin by We testify necessary tests and as to the re- at- history of Alverson’s testing of all on behalf.” [Alverson’s] sults neuropsy- funding for a tempts to obtain Id. On October chological examination. 20, 1997, day, That March same trial counsel filed with granted state trial court Alverson’s amend- “Appli- entitled pleading state trial court application funding ed and authorized for Study Psy- cation for Funds for Social “to psychological- Alverson to hire Carlton Defendant, eological Evaluation [sic] purpose pre- for the ly evaluate [him] Don Alverson.” State ROA 188. Billy on ... at the senting evidence behalf [his] alleged that Alverson’s application According of trial.” at 287. time unwilling pay “family unable or [wa]s record, proceeded to test and Carlton study ... Alver- costs of a social on reported evaluate Alverson and her find- son,” study imper- that a “social [wa]s ings to Alverson’s trial counsel. ... necessary insofar as Alver- ative and degree charged ... with a first 1, 1997, son [wa]s May On Alverson filed second trial capital case.” Id. The state murder “Application amended Appointment summarily denied the Expert Psyco- Assistance and Funds for a failed to that Alverson had ground logical Evaluation.” Id. at 327. The [sic] indigent. Carlton, alleged establish he was “as a result pleading *6 history testing during of her social 20, 1997, an Alverson filed On March organic background testing signs found Appointment for Application “Amended it impairment [wa]s brain and believe[d] and Funds for Social Expert Assistance way necessary by to confirm of additional Evaluation for Study Psycologieal [sic] and partic- evaluation.” Id. at 328. In expert Defendant, Billy Don Alverson.” Id. ular, pleading alleged that “[t]he sought the application The amended ... MMPI-2 test which took [Alverson] expert to do a social “appointment of an neuropsychological testing recommended study psychological and other evaluations organic impairment.” for brain Id. purposes mitiga- of “the of’ Alverson turn, application alleged that “[t]he support of the trial.” Id. stage tion testing would neuropsychological results of application alleged that request, and definitely prove any impairment brain Id. at 279. The indigent. Alverson was impinge extent that would to what trial coun- alleged further that application Id. Such influence behavior.” [Alverson’s] Carlton, with Jean sel discussed “ha[d] information, application alleged, “[wa]s worker], a clinical social L.C.S.W. [licensed very important placed to be crucial and [Alver- trained to test and evaluate person jury part as of [Alverson’s] before matters opinion their of such as to son] mitigation help determining punish- as in make- psychological such as [Alverson’s] Ultimately, ...” ment. if including testing [Al- to determine up, Ph.D., “requested Karfgin, that Lance be psychopath, suffered [or verson] [wa]s any necessary all to conduct appointed disorder, inadequate per- impulsive from] testify to the results of all tests and as im- sonality any physical disorders and/or testing on behalf.” Id. [Alverson’s] very material as that would be pairments 2, 1997, objec- May the state filed assistance to On mitigation evidence and/or applica- amended request tion to Alverson’s second defending the State’s [Alverson] Office, including her results from the alleged “ha[d] that Carlton tion. The state possesse[d] she or MMPI-2, not demonstrated that and the medical that records appropriate train- otherwise obtained ha[d] Carlton, and, were turned over to Ms. education, knowledge, or specialized ing, by again, Dis- [defense counsel] neuro-psychology expertise in the fields Attorney’s trict Office. And I don’t qualify her to draw rele- neurology or very know much about the MMPI ex- make recommenda- or to vant inferences cept what I tak- people read when have stated need for tions to [Alverson’s] as test, coming en the and it’s someone involving in these areas further evaluation court, before the I that but don’t think neurological functioning....” questions of giving from the of the MMPI Ms. that Further, allеged the state Id. at 343. else, anyone Carlton or I from what not been demonstrat- ha[d] MMPI-2 “[t]he test, give understand about the us could and valid assessment or ed to be a reliable a determination as to whether Mr. Al- screening in the fields of neurolo- measure verson neurological problems. has some gy neuro-psychology screening or inferring a basis for I providing any otherwise did not find in of the results neurological impairment,” the evidence of from the MMPI of the work that Ms. id., upon given the statements did, “[b]ased Carlton that Mr. Alverson has sus- family ... Carlton [Alverson] [his] any tained neurological impairment ..., [wa]s members there no indication warrants an evaluation. neurologi- ha[d] sustained [Alverson] addition, just prosecu- And [the as neurological to warrant impairment cal objection, said in tor] his motion of I and, fact, evaluation these statements any didn’t see written statements from id., contradictory,” re [we] “[b]ased any physicians of the that have attended reports provided upon the medical [Al- following any to Mr. Alverson of the
verson], any there no evidence from [wa]s you accidents that show that he sus- statements of attending phy- written tained that showed that he had type present following any sicians accidents *7 of neurological damage or that an evalu- by sustained that a [Alverson] referral for necessary. ation was As prosecu- [the neurological evaluation was indicated or just ago, said a tor] minute he had some necessary,” otherwise deemed id. at 344. childhood accidents and has done some short, alleged the state that “no evi- child, things maybe things as a some support dence ... exist[ed] [Alverson’s] others, more dangerous than but he’s request neurological testing,” and that things happen Alverson had failed to establish that he had some to him that any way prejudiced by “w[ould] be pretty seem be run-of-the-mill to me. lack of expert regard.” assistance Trial, Jury (May 5,1997), Tr. of I X Vol. of at 28-29. 5,1997, May day On the first of voir dire 9, 1997, May On plead- Alverson filed a proceedings, the state trial court held a ing entitled Appoint “Amended Motion to hearing on ap- Alverson’s second amended Psychological Expert” asking the state tri- plication and ultimately overruled it. al so, court “to reconsider the denial of the doing the state trial court stated: original motion.” ROA at 358. At- State I have reviewed the records that Ms. pleading tached to the was a letter from Carlton turned over to [defense counsel] Dr. Karfgin and that to defense counsel stated in turn [defense counsel] turned Attorney’s over to the District as follows: considering using my capacity prevent you
Thank or extricate himself expert witness Mr. from the capital a[s] services crime of which he was trial. I upcoming sentencing Alversoris I impor- convicted. believe it would be your motion that understand tant possibility to consider this in his provide me to this service appoint upcoming sentencing trial. citizen, rejected. a I As concerned Id. at 360. you nevertheless would like to make 13, 1997, May prior On to the introduc- may mitigat- aware of what I believe be evidence, tion of the state’s the state trial ing in this case. Had I circumstances court held an hearing in-chambers to ad- Mr. conducted formal evaluation of Alversoris dress amended Alverson, I would have addressed these seeking funding Karfgin. for Dr. My impressions issues in detail. at this state trial court noted it had examined the only a preliminary time are based submissions, parties’ including an exhibit psychosocial review of the evaluation of submitted containing the state Okla- Alverson, Mr. conducted Ms. Gene Department homa of Corrections’ records Carlton, LCSW. [sic] regarding prior periods Alverson and his During her clinical interview Ms. of confinement. The state trial court also Carlton found the defendant several noted it had taken into consideration “the times seemed to lose contact with her that it spent times in the court ha[d] room for minute or more. She believed Alverson, with Mr. both ... before than simply these incidents more hearing Jackson v. Denno and also when lapses in attention but them diffi- found [they] had the Jackson v. hearing.” Denno Mr. classify. cult to Since Alverson did Trial, Jury Tr. Vol. V of X (May having recount sustained several coneus- 1997), at 4. The state trial court found injuries resulting sive in loss of con- that Mr. Alverson never demonstrated sciousness, might she concluded he be any of the symptoms that have been experiencing type some of seizure disor- alleged pres- while he was in the court’s der and recommended that he be evalu- ence; not when he testified and at no organic syndrome. ated for an mental time when he ha[d] been the court- Although temporal lobe seizure disor- [prior] room. None of these records der could account for such transient dis- symptoms, any indicate those my ruptions, based on discussion with symptoms. none of And the records Ms. Carlton I believe that Mr. Alverson indicate past problems that Mr. Al- might experiencing also be some form of verson had to have claimed had from *8 disorder, post-traumatic with dissocia- members, or family himself of his or manifesting danger- tive features in the else, anyone really, that’s had contact atmosphere ous and violent of a correc- him, up with until this time. tional institution. Ms. Carlton found the turn, concluded, the state trial court defendant to an history have extensive “based on the records and common [its] early physical parental abuse and al- sense and time that spent [it had] around coholism, peri- and tо be amnestic for a Alverson,” Mr. application that the should years od of several in middle childhood. be overruled. Id. psychic numbing and avoidance as- PTSD, trial, During penalty phase sociated with as well as a tenden- situations, cy presented testimony to disassociate in violent Alverson from twelve witnesses, including could have diminished Mr. Alversoris Carlton.1 On direct remaining general categories: 1. The eleven witnesses fell into two witnesses aimed rebut- described, irritable, antisocial, examination, moody, angry, impul- in exten- Carlton (b) detail, upbringing per- overreactive, and irrespon- sive Alversoris sive and that his life, particular emphasis a sonal regard sible actions were without to conse- three, at the presence, age Alversoris quences and could include violence and tumor, from a brain (c) death of his uncle activities, criminal had a other he low alcoholism, Alversoris father’s Alversoris difficulty for tolerance frustration and de- during years, his formative “clumsiness” (d) laying gratification, socially he was emotional, psychological and physical (e) lacking empathy, shallow and he acted father, inflicted on Alverson his abuse (f) typically poor judgment, out and had he good a Alversoris own efforts be significant had a need excitement and children. also father to his four Carlton pleasure exhibited extremes search of opinions psychological as to the offered stimulation, (g) and emotional he was experiences, effects of Alversoris childhood any inhibiting anxiety, worry free of including episodes, so-called dissociative guilt. Alverson would
during
purportedly
which
mentally
peri-
“absent” for a brief
become
2)
sponte analysis
OCCA’s sua
time,
possibility
that
od
Alverson
Ake
appeal
clam on direct
post-traumatic
from
suffered
stress disor-
OCCA,
appeal
his direct
to the
Alver-
der,
fact that Alverson
an-
dealt with
challenge
son did not
the state trial court’s
ger by suppressing
away
it or walking
funding
denial of his
to hire
conflict,
from
source of the
Alversoris
neuropsychologist
or his motion to recon-
self-esteem,
poor
identity
sense of
and low
sider
denial. Nor did he mention or
difficulty engaging
and Alversoris
in inde-
even cite to the
Court’s decision
pendent
being
actions and in turn
a follow-
Instead,
argued only,
Ake.
er.
the context of a multi-faceted ineffective
state,
On cross-examination
Carl-
claim,
assistance
that his trial counsel “was
ton
family
conceded
Alversoris
mem-
aware that
had
[Alverson]
received
head
bers, when interviewed after Alversoris
injury
youth,”
that,
“[g]iven
convictions,
prior
portrayed
family
their
fact that there
[wa]s
established rela-
good.
life as
Carlton further conceded
tionship between the existence of traumat-
that in one test she administered to Alver-
row,
injury
persons
ic head
on death
son,
gave
highest
she
him the
possi-
score
mitigation
a factor in
[wa]s
should
concerning pathological
ble on
checklist
have
explored.”
been
Alversoris Direct
lying. Carlton also conceded that she was
Appeal Br. at 31.
qualified
to administer the MMPI. Fi-
ruling
appeal,
When
on Alversoris direct
nally,
agreed that a person’s past
Carlton
rejected
the OCCA
on the merits Alver-
may
behavior
be the best indicator of their
claim
trial
future behavior.
soris
that his
counsel was inef-
failing
investigate
fective for
pur-
redirect,
On
Carlton testified she had
ported
injuries:
head
Karfgin
consulted with Dr.
Al-
regarding
*9
MMPI
Finally,
versoris
test results.
Alverson
On recross-
takes issue
examination,
investigate alleged
Carlton conceded
test
counsel’s failure
those
to
(a)
hostile,
results indicated
injuries
Alverson was
head
Alverson had received аs a
and,
ting
second-stage
essentially,
state's
evidence indicat-
who described Alverson
ing
engaged
prior
that Alverson had
acts of
jury
spare
asked the
Alverson's life.
violence;
family
members of Alverson
event,
request
child.
did
funds to hire
some evidence regarding
Counsel
issue,
injuries
presented
into this
which
head
was
expert
an
to look
second
stage
jury
for the
to consider.
by
denied
the trial court.
properly
was
testifying
acknowledged
witness
in-
presented
Alverson has
no evi-
Because
juries
relatively minor-only
were
one
support
dence to
his contention that or-
injury
football
required medical care
dinary injuries he received as a child
received,
which Alverson
with no nota-
in inorganic
damage,
resulted
brain
[sic]
tion that permanent or even serious
dispose
of this claim on a lack of
(Tr.IX
damage
158-59,
had resulted.
prejudice as well.
167,180-81)
(footnotes
I,
Alverson
I) disposed of Alverson’s Ake Federal bar Thus, claims. it is that decision that we Alverson contends that the OCCA’s turn in determining whether Alverson’s sponte sua on appeal discussion direct merits, may Ake claims be reviewed on the the state trial court’s denial of requests his barred, procedurally are instead for additional funding neuropsycho for a these federal proceedings. logical permits evaluation us to reach the merits of his Ake claims. Respondent, denying appli- its decision contrast, that, argues relief, notwithstanding post-conviction cation for the OCCA fact that the appeal OCCA direct sua concluded that Alverson’s Ake claims sponte recognized and addressed the deni “could appeal have been raised on direct issue, al of funding not,” Alverson’s own failure but were and were thus “waived” for present argue purposes post-conviction Ake claims on review. Alver- appeal direct bars federal habeas review of son II at 3. In concluding, so the OCCA those claims. specifically, respon- obviously More relying on Oklahoma’s capi-
1153
(1992) (de-
statute,
2114,
narrowly
which
and then later
proceeding
proce-
as
of the United States.” 28
post-conviction
Supreme
in a
Court
Bruce,
2254(d)(1). And,
Suрreme
Mathis v.
148
durally
E.g.,
barred.
U.S.C.
Cir.2005) (consid-
(10th
732, 735
Fed.Appx.
obviously provides
in Ake
Court’s decision
rejected
by
on the merits
ering issue first
law” that
“clearly established Federal
appeal,
on direct
Appeals
Kansas Court of
assessing
we must consider
rejected by the
subsequently
and then
to federal habeas relief.
entitlement
Appeals
improper
as the
Kansas Court of
Ake,
Court held that
post-conviction proceed-
subject of state
brings
judicial power
a
its
“when State
Champion,
v.
288 F.3d
ing); Johnson
in a criminal
indigent
on an
defendant
bear
Cir.2002)
1215,
(considering is-
1226
steps to assure
proceeding, it must take
by
rejected
first
on the merits
OCCA
sue
opportunity
that the defendant has a fair
proceedings, and
post-conviction
in initial
470
at
present
his defense.”
U.S.
rejected
subsequently
then
going
far as
Turning to the facts Alverson’s ords, noting that none of the alleged it is true that the state doctors who his future him following examined “his dangerousness aggravating as an run-of-the- factor mill childhood accidents imposition pos- warranted of the death indicated the penalty. sibility they That had allegation danger- of future created neurological not, however, damage....” ousness was based state- evidence, sponsored psychiatric but rather history
on Alverson’s of violent criminal In appeal, argues, Alverson conduct, including his role the murder. agrees, the dissent that the state trial Thus, Ake, under the state trial court was court erroneously “required prove to [him] automatically required not to afford Alver- condition,” i.e., very organic brain son with the assistance of a mental health damage, “he expert needed assistance to expert any psychiatric to counter evidence Aplt. demonstrate.” Br. at 23. But Alver Instead, presented by the state. Alverson focus, son’s as dissent, well as that of the required to demonstrate the state misplaced. assessing In whether a state trial court that his mental health could be prisoner has established right his to feder significant factor at trial. Alverson was 2254(d), § al habeas relief under our re satisfy able this burden because the view examining is limited to whether the state trial court granted request his to highest state court’s resolution partic of a apрoint Carlton to conduct a study social to, contrary ular claim is or an unreason psychological Only evaluation. when of, clearly able established fed subsequently sought Alverson funding for McKune, eral law.4 See Johnson v. an additional neuropsychological evaluation Cir.2002) (“[W]e F.3d 1200-01 Karfgin Dr. did the state trial court examine highest the decision of the state deny requests. court to address each petition”). relevant words, In affirming the state trial other our focus court’s denial is on the OCCA’s requests of Alverson’s rationale for affirming additional fund- the state trial ing, the OCCA concluded that Alverson court’s denial of requests And, had failed to showing make sufficient additional funding.5 on that point, acknowledge, personally 4. The fails to any signs dissent let alone did not note of mental 2254(d). apply, the deferential standards of deficiency while Mr. Alverson was in court.” outlined, Dissent at 2. As we have the state we, dissent, 5. Even if like Alverson and the firmly court records establish that the were rulings, to focus on the state trial court’s variety trial court considered a of informa- persuaded they contrary we are not were tion, including testing, the results of Carlton's with, begin reject Ake. To the dissent’s records, medical and Alverson’s suggestion attempted that the state trial court records, concluding correctional that Al- “diagnose neurological disorders from the failed, Ake, [simply] bench” or "denied funds because he verson had under to establish his a de applying habeas case pre-AEDPA are silent. and the dissent Alverson review, the dis we extended Ake Alverson nor novo standard neither particular, conclusion present- the OCCA’s the state had dispute sent to a situation where invalid due to MMPI results indigent non-psychiatric evidence ed to adminis qualifications lack of Carlton’s dangerousness, future capital defendant’s test, cоnclusion that OCCA’s or the ter the likeli- the defendant established valid, results, if could even the MMPI condition could have hood that his mental neurological prob the existence indicate factor.6 Id. significant mitigating been or the dissent Nor do lems. however, the Su- Importantly, at 341. *14 erroneous, the clearly challenge, as considered, let never preme Court has Alverson’s childhood finding that OCCA’s of, extension of Ake. approved alone Liles’ any evidence void records were medical Thus, “clearly qualify not as Liles does may that Alverson finding support to AEDPA, federal law” under established neurological damage. See have suffered by the it was not “determined Su- since 2254(d)(2). § U.S.C. 28 of the States....”7 preme Court United challenges framed as to Although not 2254(d)(1). § Hawkins v. 28 U.S.C. See two ruling, Alverson asserts the OCCA’s Mullin, 658, n. 671 6 Cir. futile, ultimately argu- additional, but 2002) progeny (questioning whether Liles’ that, First, re- suggests ments. “clearly established” fed- qualify could as sufficiency of the evidence gardless 2254(d)(1)). §of purposes eral law for in state trial court to the presented he Second, Alverson contends he was “enti- funding, the for support requests of his psychiatric expert tled to a because future dan- allegation of his state’s mere alleged that the murder was prosecution alone, was sufficient standing gerousness, heinous, cruel,” atrocious or OCCA grant trial court to require the state aggravating held that circum- “has argu- problem with this requests. The can be established the defen- stance that it not on Ake. but grounded ment is is Br. at 25 Aplt. dant’s state of mind.” Saffle, in v. on our decision Liles instead (10th Cir.1991). Liles, State, 816, (citing Browning In 134 P.3d F.2d 945 333 State, funding Fitzgerald v. 972 P.2d for a neu- trials. entitlement to additional (“In (Okla.Crim.App.1998) absence ropsychological examination. Supreme any explicit limitation presented by compelling The most evidence any given Ake to Court and our extension of supрort requests fund- Alverson in of his for expert necessary adequate assistance for an ing Karfgin's letter. The statements was Dr. defense, qual- logic dictate that a and fairness letter, however, were based contained in that expert ified defendant should receive assis- upon Karfgin's Dr. own evaluation not any evidence of continu- tance to rebut State Alverson, upon observa- but rather Carlton’s threat.”). ing Alverson. The state tions and evaluation of court, upon all the operate "clearly trial based its review of as es- 7. Even if Liles could it, purposes before found Carlton's obser- information law” for tablished credible, 2254(d)(1), persuaded § and Alverson has not that it vations less than are Alverson. More attempted challenge deter- be of benefit to that factual would Thus, 2254(d)(2). effectively specifically, trial court Dr. the state mination under Karf- by granting requirement Alver- Liles’ gin's satisfied statements must also be discounted. Thus, request funding Carlton. for son’s neuropsy- funding approximately seeking six 6. In December additional examination, appeal chological Alverson was left to direct was months before Alverson's decided, satisfy evidentiary burden outlined adopted the normal the OCCAfollowed suit and capital in Ake. standard for use in Oklahoma Liles quires capital punishment “ There is no to be (Okla.Crim.App.2006)). based on ” indication, however, that Alverson ‘individualized consideration’ of a de- ever culpability. Aplt. fendant’s Br. at 44 argument to the presented this OCCA. Ohio, (quoting Lockett v. and, U.S. Thus, the claim is unexhausted (1978)). L.Ed.2d turn, un- undoubtedly procedurally barred turn, Alverson asserts that his death state law. Even if the claim der Oklahoma part sentence based substantial on merits, it is could be considered jury’s second-stage finding that particular, less. merit heinous, especially murder was atrocious appointment that the Court has never held however, or cruel. Alverson argues, expert necessary of a mental health prosecution presented no evidence allegation rebut the murder personally “participate[d] he in beat- heinous, issue was atrocious or cruel. victim,” ing the or that he even “intro- Moreover, a trial transcript review of the [the duced into the cooler area....” bat] firmly establishes that this case Aplt. Br. at “Accordingly,” he argues, heinous, aggravator atrocious or cruel presented “insufficient evidence was *15 mind, upon state of based not Alverson’s heinous, support the atrocious or cruel ag- rather the brutal manner in which the but gravating in circumstance” his case. Id. victim was killed. words, at 47. In other argues, Alverson Eighth permit “[t]he Amendment does not 6) claims Alverson’s Ake-related finding the of the manner-specific hei- claim, In addition to his Ake Alverson nous[,] atrocious or cruel aggravating cir- two related claims in this federal asserts cumstance for a defendant who does not (1) that incom- appeal: he received kill, personally absent evidence establish- petent mental health assistance from Carl- ing that the specific defendant intended a (2) ton; prejudiced by that he was the killing.” manner of at Id. 45. (i.e., qualified expert lack of assistance the lack a a psychologist neurop- of to conduct a) Clearly established law sychological testify evaluation and then Two lines of Supreme precedent Court evaluation). about the results of that Be- supply “clearly the established federal cause, however, Alverson’s Ake claim lacks First, law” applicable to this claim. in merit, unnecessary we find it to reach 307, Virginia, v. Jackson 443 U.S. 99 S.Ct. claims, these two related since both would 2781, (1979), 61 Supreme L.Ed.2d 560 the if only be relevant the state trial court that, evaluating Court held in the constitu- by deny- were found to Ake have violated sufficiency tional of supporting evidence a ing requests for additional conviction, question criminal “the relevant funding. whether, viewing after the evidence light most prosecution, favorable to the Sufficiency
B.
ag-
evidence—RAC
of
any rational trier of fact could have found
gravator
the essential elements of the
beyond
crime
Alverson next mounts what he frames
319,
a reasonable doubt.” Id. at
99 S.Ct.
heinous,
challenge
as a
to the
atrocious or
Second,
(emphasis
original).
2781
aggravator
jury
Florida,
cruel
found
782,
his Enmund v.
458 U.S.
102
case,
ultimately appears
3368,
but his contention
(1982),
S.Ct.
conviction
defendant's]
adequate
[a]
determination
presented
Alverson
a similar version of
of the
imposition
such
culpability
partic-
on
In
argument
appeal.
this
direct
Eighth
does not violate
penalty
death
ular,
that,
argued
“to make [him]
cruel and
prohibition against
Amendment’s
penalty,
for the death
eligible
State
v. Mul-
Workman
punishment.”
unusual
required
prove at least that
to]
[was
[he]
Cir.2003).
lin,
killing
substantially participated in the
Enmund,
held that
Court
degree
that he exhibited reckless indif-
disproportional
penalty was
the death
to the loss
life.”
ference
of human
State
punishment for a defendant who was
Arizona,
Tison
(citing
Br. at 50-51
Aplt.
robbery, not on
actor in an armed
“minor
S.Ct.
L.Ed.2d
scene,
to kill nor
neither intended
who
(1985)).
that,
argued
Alverson further
mental
any culpable
to have had
was found
using
con-
illegally
[his]
obtained
“[e]ven
Tison,
107 S.Ct.
state.”
U.S.
as its main
of evidence of
fession
source
Enmund).
reaching
(describing
involvement,
prove
the Statе failed
in Enmund
conclusion, the
this
Court
of Tison
v. Arizona
to justify
the elements
clearly
[opposite]
with the
case:
“also
dealt
imposition
penalty
death
[him].”
killed,
actually
murderer
felony
who
Id. at 51.
kill,
to kill.” attempted
intended
respect
With
rejected
argu-
The OCCA
murder,
felony
the Court
category
ments:
penalty was a
held that
the death
valid
*16
argues
Alverson
in the alternative
the
penalty
Eighth
under
Amendment.
if the
that even
evidence is sufficient to
into En-
Id.
significance
falling
“The
of
heinous,
support the
atrocious and cruel
felony
murder-
category
mund's
when a
it
aggravator,
legally
is
insufficient to
‘actually
er has
killed’ his victim is that the
he
physical
show
inflicted the serious
Eighth
culpability
Amendment’s
determi-
place.
abuse or
that
it take
intended
imposition
penalty
nation
the death
disagree.
We
The evidence showed Al-
Workman,
has then been satisfied.”
participant
verson was a
in
substantial
Tison,
F.3d at 1111.
the Court ad-
He actively participated
the murder.
in
Eighth
dressed “whether the
Amendment
the initial attack
the victim
wherein
prohibits
penalty
the death
in the interme-
into the
dragged
cooler. Alverson came
diate case of the
did not
[who
defendant
straighten up
out of the cooler to
store
kill under Enmund
partic-
whose
but]
merchandise that he and his cohorts
ipation
felony] major
the
is
and whose
[in
during
had knocked off the shelves
the
is one of
indifference
mental state
reckless
attack, then
the cooler. Al-
re-entered
to
at
the value of human life.” 481 U.S.
actively
in
participated
bringing
verson
“precisely
er when
events
in the
Accordingly,
QuikTrip
day
find the
occurred
on the
of the
ministered.
Although
even if Al- murder.
the actual
is
clearly showed that
murder
evidence
himself,
on the
depicted
tape,
since the cooler
did not deliver the blows
verson
observed,
area of
store cannot
take
the
be
the
place
knew the murder was to
he
tape does show the four
sur-
actively
codefendants
participated in it.
and
Yost,
him,
rounding
attacking
drag-
I,
(emphasis in
Alverson’s contentions are refut- by, Moreover, ed turn the OCCA’s decision9 is ar- Enmund/Tison directly supported by, Exhibit guments effectively by State’s are the foreclosed copy which is a surveil- jury’s first-stage guilt Number verdicts of of both "heinous, challenged suggests Respondent 8. Alverson also the atro- that made the OCCA aggravator appeal by or cruel” on direct findings” cious presumed "factual must be cor- arguing presented that "the State insufficient 2254(e)(1) rect 28 U.S.C. re- under unless to show evidence the victim was conscious for by convincing clear butted evidence. significant length losing of time con- before Aplee. at 41 n.7. Br. This is incorrect. The so as to render death 'one sciousness his making legal instead OCCAwas determina- physical preceded torture or serious presented the evidence the tion of whether I, at 515. Al- abuse’....” Alvеrson 983 P.2d State was to establish that Alverson sufficient does verson not raise this issue in his federal participated the murder. appeal. habeas body and blood near his on the floor first de- blood murder and felony degree first the ceiling murder. State on the walls aforethought spatters gree malice witness, reach turn, Roy In order to police at 432-33. one ROA cooler. Court verdict, jury had to find the swung latter Heim, person who opined that and, in victim’s death Alverson caused definitely have been at Yost would the bat to so, intent had deliberate doing “[t]he pre- The state also with blood. splattered ” (jury life.... a human take Mandy Rumsey, testimony from sented afore- defining “malice instruction a friend of hers that she and who testified has made no Notably, Alverson thought”). early in the morn- QuikTrip at the stopped sufficiency challenge attempt 26, 1995. When February ing hours ap- findings in this federal these store, entered the Rumsey and her friend peal. working the cash they Wilson observed victim, Yost, register, meaning d) Harjo’s role in the Co-defendant already dragged been point had at that murder Rum- and beaten to death. into the cooler brief, appellate of his Ake section that, remaining sey testified after language panel from the quotes hour, one she QuikTrip approximately Sirmons, 536 F.3d opinion Wilson Harjo left the store with and her friend (10th Cir.2008), stating that co-defen- nearby apartments, and walked to some “ from Harjo ‘received a life sentence dant they approximately remained for where youth, because of jury, presumably returning to the thirty minutes before Harjo] one he was the though [Mr. even by Har- QuikTrip. cross-examination On to death with a base- who the victim beat counsel, that she had jo’s Rumsey testified ” Aplt. (quoting Br. at 43-44 bat....’ ball clearly everything see opportunity 1095).10 Wilson, Al- Although Harjo she did not recall wearing, rely support does not on Wilson verson or dark stains on his observing blood that the evidence was insufficient his claim hands, face, or trousers. On cross- shirt jury’s finding of the “hei- support counsel, by Alverson’s Rum- examination nous, aggravator, or cruel” atrocious sey that she would not have been testified neverthe- quoted statement from Wilson if there were blood able to determine at least brief discussion be- less deserves clothing. body stains on in this case indicates that cause the record may together, this evidence Considered is inaccurate. statement jury imposed a sen- explain why well *18 trial court conducted two tri- The state Alverson, but not for tence of death co-defendants in this case: als for the four Harjo. jury could rea- particular, Harjo, one trial for Alverson and one this evidence sonably have inferred from At the trial trial for Wilson and Brown. Harjo carried the bat into although Harjo, present- the state for Alverson codefendants, cooler, other one of the police evidence from ed uncontroverted Alverson, took the bat including possibly they significant observed a witnesses kill Harjo it to strike and from and used in the area where amount of blood cooler murdered, including pool of Yost. Yost was (noting that nei- gar- F.3d at 1070 quoted language Wilson vich. See 536
10. from
McConnell,
support
only Judge
Judge Tymkovich joined
Judge
nered the
of
ther
Hartz nor
majority opinion,
III(E)
and was
opinion).
the author of the
Judge McConnell’s
Part
Tymko-
joined by Judge
Judge
Hartz or
2)
rejection
C.
assistance
counsel—(cid:127)
OCCA’s
the claim
Ineffective
investigate
head trauma
failure
On direct appeal, Alverson asserted a
multi-faceted claim of ineffective assistance
Alverson next contends that his trial
among
counsel. Included
arguments
counsel,
Fransein,
constitutionally
Jim
follоwing:
was the
“[T]here was evidence
failing
properly
ineffective for
investi-
that defense counsel
Billy
was aware that
gate and evaluate the head trauma that
Alverson had
injury
received head
in his
Alverson suffered as a child.
In support
(O.R.360)
youth.
Given the fact that there
claim,
of this
Alverson asserts that Fran-
is an established relationship between the
sein “knew before trial that
... Alverson
existence of traumatic head injury and
injuries,”
had suffered head
but ultimately
row,
persons on death
this is a
factor
“failed to investigate the effects of’ those
mitigation that
should have been ex-
injuries “on
Aplt.
behavior.”
[Alverson’s]
plored.”
Aplt.
State
Br. at 31. The
Br. at 53.
rejected
OCCA
arguments
those
on the
merits, stating:
1) Applicable clearly established federal
Finally, Alverson takes issue with
law
counsel’s
investigate
failure to
alleged
injuries
head
correctly
Alverson
Alverson had
notes that the “clear-
received as a
child. Counsel
ly
request
did
funds to
applicable
established federal
law”
hire
an expert
issue,
to look
claim
into this
which
Supreme
is the
Court’s decision
properly
denied
the trial
Washington,
Strickland v.
court.
466 U.S.
(1984).
Because Alverson
presented
has
no evi-
however, reassert the same attempt to arguments he raised contends that “the cumu assistance Alverson effective (and had, even if he in his appeal on direct of the errors asserted lative effect” have presumably not evidence would new re corpus “warrant habeas appellate brief analysis of the first the OCCA’s altered sentencing pro of a new lief the form Thus, the Strickland prong).11 OCCA In the Br. at 54. ceeding.” Aplt. “ ruling to reconsider its never asked context, cumulative-error ‘[a] To the extent of the new evidence. light all er analysis aggregates [constitutional] current reliance on that Alverson’s analyzes harmless and rors found to be as his ineffective “transform[s] evidence effect on the out whether their cumulative ... sig claim into one of counsel sistance collectively the trial is such come of substantial,” different,” “more nificantly longer be determined to be they can no Price, ” v. unexhausted, Demarest and thus Sirmons, v. harmless.’ Brown 515 F.3d (10th Cir.1997) (internal 922, 939 130 F.3d Cir.2008) (10th (quoting United omitted), it in turn is quotation marks Toles, 959, 972 v. States “that, attempt to clear [Alverson] Cir.2002)). claim to thе present Oklahoma now rejected have each of Alver- Because we courts in a second of constitutional substantive claims relief, son’s it would be deemed post-conviction error. error, can be no cumulative Cummings Sir- there barred.” procedurally time, Murphy's affidavit sub- argued, It is doubtful instead for the first 11. stantially ineffective for fail- transforms the claim in that his trial counsel was bolsters or parte hearings manner, ing and obtain ex given to seek fact that particularly neuropsy- funding applications for continuing aggra- jury rejected the threat claim, chological examination. That howev- vator. er, ap- not at issue in this federal habeas peal. *20 Thus, Request evidentiary E. hearing there was no need for a federal evidentiary hearing. Finally, Alverson contends the The judgment of the district court is “by failing district erred to hold an AFFIRMED. evidentiary hearing concluding before proffered mitigation evidence was harm TYMKOVICH, Circuit Judge, (all Aplt. less.” Br. at 56 capitals origi concurring. case). nal modified to lower Alverson does Although agree I Judge with Briscoe’s not, however, identify which of his claims analysis, merits in my view we apply must proposed evidentiary hearing would independent and adequate state have related to. Presumably, he is assert ground doctrine to the Ake claims.1 When ing evidentiary hearing would have reviewing prisoner’s a state petition for a pertained to his Ake and Afce-related writ corpus, of habeas federalism and com- claims. ity require us to respect give effect to petition “Because gov- [Alversoris] procedural state rules. Because Alverson AEDPA, erned can he obtain an evi- failed to raise a claim based on Ake v. dentiary hearing [only] by federal court Oklahoma, 68, 470 U.S. 105 S.Ct. (1) showing he diligent developing (1985), L.Ed.2d 53 on appeal direct —and the factual basis for his claim in state because the Oklahoma Court of Criminal court, 2254(e)(2) § (2000); 28 U.S.C. Appeals upon procedural relied a state law 420, 429-31, Taylor, Williams v. 529 U.S. dispose of the post-convic- Ake claim on 1479,146 (2000), 120 S.Ct. L.Ed.2d 435 and tion review—we are barred from consider- (2) asserting that, true, a factual basis if ing the claim. ____” would entitle him to habeas relief Ulibarri, Sandoval v. 548 F.3d I. (10th Cir.2008). “Consistent with this Court has suggest- never standard, ‘an evidentiary hearing is unnec- may ignore ed we procedural state law if essary if the claim can be resolved on the it is raised defensively in federal habeas ” (quoting record.’ Att’y Anderson v. litigation. contrary, To the the Court has Kan., Gen. compared state bars to limits .2005)). Cir judicial power: assuming Even diligent Alverson was in Without [independent and adequate developing the factual basis of ground doctrine], his claims in state a federal district court, state he “has not shown that an court would be able to indo habeas what evidentiary hearing would have aided his review; Court could not do on direct cause.” Id. In particular, Al- resolving habeas would offer prisoners state claims, versoris Ake and Afte-related there custody whose supported by inde- are no unresolved issues of fact pendent to be adequate grounds Rather, determined. hinge those claims end run around the limits of this Court’s on the clearly jurisdiction established and a means undermine law to an uncontroverted set of facts. the State’s interest in enforcing its laws. join I in all but Part Regarding ably apply III.A.4. disposing federal law in merits of Alverson’s claim homa, claim, under Ake v. Okla- adjudicate nor did it the claim in a contrary manner to federal law. See 28 (1985), entirely agree L.Ed.2d 53 Judge I 2254(d)(1). U.S.C. Briscoe that the state court did not unreason-
1164
not,” and it
722,
appeal
direct
but
was
[was]
501
730-
Thompson,
U.S.
Coleman v.
(1991).
law.
31,
2546,
therefore
under state
Al-
Romano failing to counsel was ineffective for raise (10th Cir.2001); Cummings see also v. Sir- appeal.2 the claim on direct (10th Cir.2007) mons, Nonetheless, appeal because on direct (describing “anticipatory the doctrine of no the OCCA mentioned that evidence bar”). procedural Here we need not raise supported while Al- denying an Ake claim procedural sponte, bar Oklahoma sua verson’s ineffective assistance claim—and procedural as question default referred to Ake in an alternative holding squarely raised below was raised Judge on collateral Briscoe con- review— again to this our appeal court. But procedural tends the bar has been state apply applicable willingness Supreme In light overridden. Court procedural bar —even where the state however, disagree I precedent, opportunity court has not had the to do contention. important so—underscores the role state procedural plays law re- First, has Court directed view. to look state court us to the last decision cases, claim, not capital only disposing claims of a federal Oklahoma some decision, not and could have been intermediate to determine wheth- “[w]ere appeal” are the claim barred. eligible procedurally raised in a direct er See Coleman, review. 111 S.Ct. state collateral Okla. Stat. 501 U.S. (1999) 1089(C)(1) added). Reed, 255, 263, (emphasis (quoting §Ann. Hams v. (1989)). disposed When it of Alverson’s 103 L.Ed.2d post-convic- Only opinion tion held if the petition, the OCCA that Alver- last state court to ad- ignores claim “could have on dress the claim bar son’s Ake been raised appellate claim. argument, his counsel noted at oral Al- assistance of counsel As abandoned verson has since his ineffective
1165
263,
may
109
and reaches the merits
we follow suit. 489 U.S.
S.Ct. 1038 (quoting
Nunnemaker,
797,
320,
501 U.S.
v. Mississippi
327,
See Ylst v.
Caldwell
4:72U.S.
(1991)
2590,
801, 111
115
706
2633,
(1985)).
S.Ct.
L.Ed.2d
105 S.Ct.
erroneous conclusion in Cooper to the case
In denying a claim on the merits instead
thereby
hand and
taint our own circuit’s of addressing
“thorny”
“complex”
precedent.6
procedural question,
state
we do no vio-
course,
6. Of
if a state
conspicuously
suggests
procedur-
state court decision
a valid
potentially-applicable
refuses to invoke a
here,
might apply.
state
al default
See id. But
as in
rule,
procedural
and instead
Cooper,
addresses
fed-
the last state сourt to address the
merits,
eral claim on the
a federal court has
explicitly
relevant federal claim
upon
relied
duty
apply
"no
pro-
procedural
concomitant
state
[the]
law. Coleman and Harris
-
Bell,
-,
cedural bar[].” Cone v.
U.S.
require
respect
therefore
us to
the decision of
1769, 1782,
129 S.Ct.
been procedural adequate state and
pendent us precedent commands Court can demon- petitioner ground, unless that Al- conclusion respect to the OCCA’s a fundamen- or prejudice and strate cause ” he failed claim when waived his Ake add- verson justice.’ (emphasis miscarriage of tal in Nothing appeal. it present to on direct ed) Cody, 146 F.3d English v. (quoting rule Cir.1998))). Sallahdin, procedural (10th suggests record 1259 infirm, and applied is somehow OCCA of a constitutional the merits we addressed eligible for argued he is Alverson has not given the had the OCCA claim because ade- independent to the and exception an it on direct to raise permission petitioner To honor quate ground state doctrine. to failed address yet inexplicably appeal, comity that and principles federalism 1227. 275 F.3d at the claim. jurisprudence, corpus our underlie Here, suggests the in the record nothing Harris, and heed Coleman we must invoked is some- bar the OCCA law state decision allow OCCA’s previously have inapplicable. how We stand. at procedural bar the Oklahoma held that a adequate” as “independent is issue in KELLY, concurring Judge, Circuit applied when matter of federal law dissenting part. part and Ake, has not claims based on except for opinion I in the court’s concur See Smith Work- argued otherwise. 111(A)(5), claim. Part the Ake Cir.2008) man, 1267 F.3d 550 I dissent. part, As to that must (“We substantive that Petitioner’s agree person competence a because he could Ms. Carlton’s To execute or incom- $2,050 only an can up employ petence grant- not come with the factor favor of expert plainly ing mental health funds. Either Ms. Carlton incom- appropriate process. petent, upon due such that violates reliance her alone right Mr. compe- violated to a Oklahoma, S.Ct. Ake v. expert, tent was competent, she such (1985), 1087, L.Ed.2d 53 is clear. When her recommendation merited funds “men- parte ex shows that his defendant Ake, neurological expert. for a 470 U.S. at be a may “significant tal condition” well 78-79, 105 if reports S.Ct. 1087. And her sentencing, factor” at defendant has insufficient, surely neuro-psychol- “readily due apparent” process right testing, ogist’s recommendation for sub- psychiatrist “a who competent will conduct pro mitted bono and as concerned citi- appropriate examination and assist zen, made the showing minimal of need. 2 evaluation, preparation, presentation at State R. 360. Silent records cannot Ake, 82-83, the defense.” U.S. at out these suspicions. cancel 1087. S.Ct. It clear trial judge ignored that the expert Mr. Alverson merited assistance experts. Mr. Alverson’s He denied funds Ake, prop- under and the trial court personally he because did not note Carlton, erly authorized for Jean $750 signs mental deficiency while Alver- Mr. social worker. Ct. 25. But Op. after 57, 63; son was court. 4 State Tr. at symptoms Ms. a ma- Carlton identified State Tr. *26 disorder, jor wrongly brain trial court the the trial judge diagnose That could not rejected requests Mr. for funds neurological from disorders the is a bench neuro-psychologist. for a totally improper and insufficient to basis That Ms. not competent Carlton was to deny the modest funds needed properly to brain diagnose injury negate did not Mr. an indigent defend 1 defendant.1 State Tr. showing testing. need for of Though court suggests 28-29. this that Mr. Alverson’s counsel submitted Ms. the trial court considered oth- several they evaluations raised Carlton’s because funds, er the denying sources additional disorder, strong suspicions of brain and he simply negate these sources cannot the way had prove no other to Mr. Alverson’s suspicions raised the need further and for investigation. need further 1 for State Tr. investigation by competent a qualified (transcripts); 2 State R. at 328 professional Thus, neuro-psychologist. (pleadings). that Al- this court’s comment neither Mr. nor verson the dissent have addressed The State demanded more evidence. of in upholding rationale OCCA But it withheld the funds that would en- findings denial funds is not correct-the provide Requiring able Mr. Alverson to it. justify the OCCA cannot its result. advance, a prove, defendant to he what money gets needed the to it prove back- district court also concluded wards. not that the violation did have “substantial 1157, intervening (Okla.Crim.App.1998). In an case between Mr. Alver- P.2d 1166-68 appeal, ignored apparently precedent son's trial and his direct the OCCA The OCCA this required provision jumped it reaffirmed Ake when to decide this issue without briefing requested criticized same services and the benefits of or a full recitation of State, 498, illegal judge using heightened for trial facts. Alverson v. P.2d State, 1999). Fitzgerald showing (Okla.Crim.App. standard. v. a few and to save the State dollars or influence deter- to injurious effect verdict,” would sentence Mr. jury penalty] ensure
mining jury’s [death 623, Abrahamson, 619, psychopath. to death as a Alverson Brecht v. (1993), 123 L.Ed.2d compe- If Mr. Alverson had received (1) rejected Alver- jury Mr. because evaluation, very well have tent he could aggrava- an dangerousness as son’s future psy- he was presented evidence that not (2) any evidence mitigating factor ting he suffered an un- chopath and that from neurologi- from a could resulted have diagnosed organic reduсing brain disorder not have affected cal examination would culpability for his behavior. Affidavit his aggra- of the other two jury’s finding Murphy, Application Dr. Philip J. Sirmons, v. No. vating Alverson factors. at Ex. Post-Conviction Relief 00-CV-528-TCK-SAJ, 2008 WL State, (Okla.Crim.App. No. PC-98-1182 2008). (NJD.Okla. Dec. This at *10-12 1999). evidence have April This would that Mr. Alverson merited overlooks a mitigation Mr. Alverson case provided (1) culpa- demonstrate his expert’s aid to well in a tipped and could have scales (2) crime, to the two bility disprove for the jury’s choice of a final sentence. implicating mental factors aggravating If to to going Oklahoma is continue seek (3) state, against a death sen- mitigate to punishment, ought exact the ultimate it to tence, (4) help jury upon decide pay ensuring the cost that it does a final sentence. vengeance its carry quest out apparently agrees This court with who, assistance, person appropriate with only that the trial court State’s observation spared. be might evaluation and that Ms. denied “additional” I would remand the case the district atOp. adequately Carlton testified. Ct. conditionally instructions 13-15, 25, 29; 29-30, Br. at 34-35. Aplee the writ. grant patently incorrect. This observation is examination, revealed On cross the State *27 Ms. so unqualified Carlton noth-
incompetent testimony that her said psy- Mr.
ing whatsoever about 176-219;
chology. Tr. at 10 State 9 State through
Tr. at 37. The marched State harrowing Mr. mental list of America, UNITED STATES traits, personality and Ms. Carlton Plaintiff-Appellant, time that traits agreed time after these Tr. at 203- psychopathic. State “adequate” Besides this tes- 230-232. Andy SELTZER, Eugene timony, mitigating Mr. Alverson had no Defendant-Appellee. speak case to of. 3 State R. at 422. No. 08-1469. hand, up
On the one State holds “proof’ initial social worker’s evaluation as of Appeals, United States Court he help that Mr. Alverson received the Tenth Circuit. hand, needed. the other the State On 17, 2010. Feb. jury great lengths went to convince totally inept that Ms. Carlton merely
unqualified. doublespeak, All this is