Davis v. SharpDavis v. Sharp
Caroline Hunt, Assistant Attorney General (Mike Hunter, Attorney General, with her on the brief), Oklahoma City, Oklahoma, for Respondent-Appellee.
Before HARTZ, MORITZ, and EID, Circuit Judges.
MORITZ, Circuit Judge.
Background
One evening in January 2004, Davis went to an apartment where his former girlfriend, Tia Green, was visiting her sister, Chinetta Hooks.1 Seventeen-year-old Marcus Smith was also present in the apartment. Davis, wearing all black, knocked on the door and covered the peephole. Unable to see who was at the door, Smith asked who was there, but Davis did not respond. When Smith opened the door slightly, Davis forced his way inside. He was carrying a handgun loaded with 23 rounds, including one in the chamber, along with a box of extra ammunition. He pointed the gun at Smith, and Smith put his hands up and backed away.
As Green, Hooks, and Smith tried to reason with Davis, Davis twice lowered the gun. But he then raised it a third time and fired at Smith‘s head. Davis continued firing, and Green and Hooks ran into other rooms of the apartment. Davis ultimately
Davis eventually confessed to the shooting. According to Davis, he went to the apartment because Green said she wanted to talk to him, and he brought a gun because Green tried to hurt him in the past. Davis also said that he shot Smith in self-defense because Smith lunged at him.
Based on these events, a jury convicted Davis of one count each of first-degree murder and being a felon in possession of a gun and two counts of shooting with the intent to kill. At sentencing, Davis‘s trial counsel presented a mitigation case based on Davis‘s life story. Nine family-member witnesses asked the jury to spare Davis‘s life. They painted a picture of Davis‘s early childhood as a happy one, during which he lived with extended family on his grandparents’ farm. And they explained that he only later turned to a life of crime after his neglectful mother took him away from this idyllic setting. Unswayed by Davis‘s mitigation case, the jury ultimately found that the state proved three aggravating circumstances—that Davis “knowingly created a great risk of death to more than one person“; that Davis committed the murder while he was “serving a sentence of imprisonment on conviction of a felony“; and that there existed “a probability that petitioner would commit criminal acts of violence that would constitute a continuing threat to society“—and sentenced Davis to death for first-degree murder.2 R. 513–14.
On direct appeal to the OCCA, Davis raised 21 claims of error. Davis, 268 P.3d at 138. In one of those claims, Davis alleged that he received ineffective assistance of counsel (IAC) at trial. Specifically, he challenged the life story that trial counsel presented in mitigation and alleged that trial counsel should have called one of his brothers to testify that his entire childhood was one of deprivation and neglect and should have called an expert witness to more fully explain to the jury how Davis‘s negative life experiences affected his behavior (collectively, the life-experience IAC claim). Id. at 129–30.
The OCCA ordered the state trial court to conduct an evidentiary hearing on this claim. Id. at 132. During that hearing, appellate counsel clarified that (1) the life-experience IAC claim alleged trial counsel was ineffective in the manner in which she chose to present Davis‘s life story to the jury (first by characterizing his early childhood as positive and second by failing to call an expert to tie together the story of Davis‘s life) and (2) the life-experience claim did not allege that trial counsel was ineffective in failing to investigate or present evidence about Davis‘s mental health. Nevertheless, the hearing on the life-experience IAC claim yielded critical details about trial counsel‘s investigation into Davis‘s mental health. For instance, appellate counsel pointed out that trial counsel sought a mental-health evaluation from Terese
The OCCA reviewed the results of the evidentiary hearing and rejected the life-experience IAC claim. Davis, 268 P.3d at 132–38. It also rejected Davis‘s remaining claims and thus affirmed his convictions and sentence. Id. at 139.
Davis then sought postconviction relief in state court. There, he raised what we refer to respectively as the Trial PTSD Claim and the Appellate PTSD Claim (collectively, the PTSD Claims). See Davis v. State, No. PCD-2007-1201, slip op. at 3 (Okla. Crim. App. Jan. 25, 2012) (unpublished). Specifically, in the Trial PTSD Claim, he alleged that trial counsel was ineffective in failing to investigate, develop, and present evidence, at both the guilt and sentencing stages, that he suffered from PTSD. Id. In the Appellate PTSD Claim, he alleged that appellate counsel was ineffective in failing to investigate, develop, and raise this aspect of trial counsel‘s alleged ineffectiveness on appeal. Id. at 7. In support, Davis submitted a report from Lara Duke, a licensed psychologist who spent five hours with Davis, administered
Next, Davis filed a habeas petition in federal district court. See
Davis then sought to appeal to this court. We granted him a COA to appeal the district court‘s resolution of the Depression Claims and the PTSD Claims.
Analysis
On appeal, Davis argues the district court erred in denying relief on both the Depression Claims and the PTSD Claims. In evaluating his arguments, we review the
I. The Depression Claims
Davis‘s
We agree. The Depression Claims are unexhausted because Davis never presented such claims in state court, either on direct appeal or in his postconviction application. See
Resisting the conclusion that he never raised the Depression Claims in state court, Davis suggests in passing that he adequately presented these claims during the postconviction proceedings because the psychological report he submitted in support of his postconviction claims mentioned symptoms of depression. But the mere appearance of the word “depression” in a report that Davis submitted to support an IAC claim about PTSD was insufficient to exhaust IAC claims about depression that did not appear in Davis‘s postconviction application. See Fairchild v. Workman, 579 F.3d 1134, 1147 (10th Cir. 2009) (finding that petitioner did not exhaust specific IAC claims arising from acute brain syndrome and counsel‘s failure to order additional neurological testing by advancing more general IAC claim related to unspecified cognitive deficiencies in state court); Bland, 459 F.3d at 1011 (explaining that for purposes of exhaustion, “‘[f]air presentation’ requires more than presenting ‘all the facts necessary to support the federal claim’ to the state court” (quoting Anderson v. Harless, 459 U.S. 4, 6 (1982) (per curiam))).
Further, if Davis were to return to state court and present the Depression Claims now, the state court would find them procedurally barred. That is because Davis could have brought the Trial Depression Claim on direct appeal. See Logan, 293 P.3d at 973 (providing that in postconviction proceeding, “issues that were not raised previously on direct appeal, but which could have been raised, are waived“).
Davis advances no argument against applying an anticipatory procedural bar. Nor does he argue that this court should overlook the procedural bar based on cause and prejudice or manifest injustice. See English v. Cody, 146 F.3d 1257, 1259 (10th Cir. 1998) (“On habeas review, this court does not address issues that have been defaulted in state court on an independent and adequate state procedural ground, unless the petitioner can demonstrate cause and prejudice or a fundamental miscarriage of justice.“). Accordingly, we conclude that the Depression Claims are unexhausted and subject to an anticipatory procedural bar. We therefore affirm the
II. The PTSD Claims
In these claims, Davis asserts that trial counsel deficiently and prejudicially failed to investigate and present evidence of PTSD at trial and that appellate counsel deficiently and prejudicially failed to investigate and raise trial counsel‘s alleged ineffectiveness on direct appeal. To the extent the OCCA adjudicated these claims on their merits, we must give its decisions “the benefit of the doubt.” Cullen v. Pinholster, 563 U.S. 170, 181 (2011) (quoting Woodford v. Visciotti, 537 U.S. 19, 24 (2002)). More specifically, under the Antiterrorism and Effective Death Penalty Act (AEDPA) of 1996, we may only grant Davis habeas relief on a claim the OCCA adjudicated on the merits if he can meet certain “difficult” standards set forth in
Here, Davis first raised the PTSD Claims in his application for postconviction relief. The OCCA rejected the Trial PTSD Claim on procedural grounds, finding it waived because Davis could have brought it on direct appeal. Davis, slip op. at 6; see also
In his
On appeal, Davis does not challenge the district court‘s conclusion that because he could have raised the Trial PTSD Claim on direct appeal but failed to do
“Cause for a procedural default exists where ‘something external to the petitioner, something that cannot fairly be attributed to him[,] . . . “impeded [his] efforts to comply with the [s]tate‘s procedural rule.“‘” Id. (first three alterations in original) (quoting Coleman v. Thompson, 501 U.S. 722, 753 (1991), modified, Martinez v. Ryan, 566 U.S. 1 (2012)). And “[i]t has long been the rule that attorney error is an objective external factor providing cause for excusing a procedural default“—provided that the “error amounted to a deprivation of the constitutional right to counsel.” Davila, 137 S. Ct. at 2065. That is, an attorney‘s error can constitute cause to excuse a procedural default if it satisfies both prongs of the test for IAC: deficient performance (i.e., “that counsel‘s representation fell below an objective standard of reasonableness“) and prejudice (i.e., “there is a reasonable
We turn, then, to Davis‘s alleged cause: whether, as he alleges in the Appellate PTSD Claim, appellate counsel was ineffective in failing to investigate, develop, and raise on appeal the issue of trial counsel‘s alleged ineffectiveness in failing to investigate, develop, and present evidence, at both the guilt and sentencing stages, that Davis suffers from PTSD. Because the OCCA rejected this claim on its merits, AEDPA limits our review. See Duckett v. Mullin, 306 F.3d 982, 996, 998 (10th Cir. 2002) (holding that petitioner‘s appellate IAC claim did not establish cause because OCCA‘s rejection of claim was not contrary to Supreme Court precedent under
To succeed on an IAC claim premised on the failure to raise an issue on appeal, a petitioner must show both that (1) appellate counsel performed deficiently in failing to raise the particular issue on appeal and (2) but for appellate counsel‘s deficient performance, there exists a reasonable probability the petitioner would have prevailed on appeal. See Neill, 278 F.3d at 1057. Yet “the Sixth Amendment does not require an attorney to raise every nonfrivolous issue on appeal.” Banks v. Reynolds, 54 F.3d 1508, 1515 (10th Cir. 1995). Indeed, appellate attorneys frequently “‘winnow out’ weaker claims in order to focus effectively on those more likely to prevail.” Id. (quoting Smith v. Murray, 477 U.S. 527, 536 (1986)). Thus, in evaluating an argument that appellate counsel performed deficiently in failing to raise an issue on appeal, this court typically “examine[s] the merits of the omitted issue.”6 Id. If the omitted “issue is meritless, its omission will not constitute deficient performance.” Miller v. Mullin, 354 F.3d 1288, 1298 (10th Cir. 2004) (quoting Cargle v. Mullin, 317 F.3d 1196, 1202 (10th Cir. 2003)).
Applying these principles, the OCCA found that appellate counsel did not perform deficiently in failing to raise the Trial PTSD Claim. The OCCA concluded that (1) Davis failed to “rebut[] the presumption that [appellate] counsel acted as competent counsel and fully investigated the issue and purposefully omitted the claim from the direct appeal“; and (2) “[a]ppellate counsel appropriately sorted through potential claims of error and raised only those with the best chances for relief.”
The district court reviewed the OCCA‘s decision and determined that the OCCA‘s conclusion that appellate counsel did not perform deficiently was not unreasonable. In so doing, the district court confirmed the OCCA‘s implicit finding, in which it rejected the Trial PTSD Claim. That is, the district court affirmatively found that because the record indicated trial counsel did not perform deficiently, appellate counsel‘s decision not to argue otherwise was indeed a strategic one.
Specifically, the district court pointed to the mental-health evaluation from clinical psychologist Terese Hall, in which Hall concluded that Davis suffered from antisocial personality disorder and characterized him as “a psychopath.” R. 530. Then, reasoning that trial counsel need not conduct endless investigations, only reasonable investigations, the district court concluded that when trial counsel‘s mental-health investigation “revealed that [Davis‘s] mental health would not be helpful to his defense, trial counsel reasonably and strategically pursued other lines of defense.” Id. at 533; see also Jones v. Sec‘y, Fla. Dep‘t of Corr., 834 F.3d 1299, 1313 (11th Cir. 2016) (“[W]e have often observed that evidence of a defendant‘s antisocial personality disorder can negatively impact the jury.“); Stafford v. Saffle, 34 F.3d 1557, 1565 (10th Cir. 1994) (noting that evidence of antisocial behavior plays into jury‘s assessment of continuing-threat aggravator). Thus, the district court
We now turn to Davis‘s argument on appeal—whether the Appellate PTSD Claim establishes cause to excuse the procedural default of the Trial PTSD Claim.
Davis first argues that the OCCA unreasonably applied Strickland‘s performance prong in adjudicating the Appellate PTSD Claim because its decision was based wholly on the absence of an affidavit from trial counsel. See, e.g., Wilson v. Sirmons, 536 F.3d 1064, 1090 (10th Cir. 2008) (“There is no support for the proposition that the absence of an affidavit from trial counsel is fatal to a habeas petitioner‘s claim of [IAC].“). But Davis mischaracterizes the OCCA‘s ruling. Although the OCCA mentioned the absence of such an affidavit, that was not the sole basis for its ruling. See Davis, slip op. at 7. Instead, the OCCA stated more generally that Davis failed to “provide[] any support for his claim that appellate counsel did not fully investigate the psychological evidence.” Id. The OCCA then simply pointed to the absence of an affidavit as an example of that failure. See id. Thus, we reject Davis‘s argument that the OCCA‘s decision was unreasonable because it turned solely on the absence of an affidavit from trial counsel.
Next, and more substantially, Davis argues that appellate and trial counsel failed to adequately investigate his mental health. See Anderson, 476 F.3d at 1145 (stating that “question” before us in that case was not “whether trial counsel made a tactical or strategic decision not to include the omitted mitigation evidence at trial,
In support, Davis asserts that “it is common for symptoms of PTSD to be misdiagnosed as [antisocial personality disorder].” Aplt. Br. 56. As such, he contends, Hall‘s diagnosis of antisocial personality disorder should have triggered further mental-health investigation. Additionally, Davis points out that Hall neither conducted any actual testing before reaching this conclusion nor prepared an actual report. And he argues that it is not reasonable for counsel to rely on an opinion from a mental-health professional that was not based on any formal testing. Cf. Postelle v. Carpenter, 901 F.3d 1202, 1216 (10th Cir. 2018) (noting that counsel should not “abdicate all responsibility for handling scientific or technical evidence” to experts), cert. denied, 139 S. Ct. 2668 (2019).
We disagree. “[C]ounsel is not required to keep hiring experts until the most favorable one possible is found.” DeLozier v. Sirmons, 531 F.3d 1306, 1333 (10th Cir. 2008). And “a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel‘s judgments.” Strickland, 466 U.S. at 691. The circumstances here include an
Moreover, Hall did not recommend any further testing.7 And this simple fact—among others—meaningfully distinguishes the primary cases Davis relies upon to support his argument that his attorneys’ investigations were constitutionally deficient. For example, in Bemore v. Chappell, 788 F.3d 1151, 1159 (9th Cir. 2015), a forensic psychologist reported to trial counsel that petitioner suffered from several mental-health conditions, including organic brain impairment, bipolar disorder, and antisocial personality disorder, and specifically recommended further testing to confirm a mental-health diagnosis. Id. But because counsel believed this report conflicted
Davis also relies on Hooper v. Mullin, 314 F.3d 1162 (10th Cir. 2002). There, defense counsel received a one-page report from a psychologist who indicated the petitioner suffered from possible brain damage and recommended additional mental-health testing. Id. at 1168. Rather than follow that recommendation, counsel decided to present an undeveloped defense based on the mere possibility of brain damage. See id. at 1170. We held that this was unreasonably deficient performance (and that the OCCA unreasonably concluded otherwise), stating, “[d]efense counsel specifically chose to present, as mitigating evidence, the possibility that [p]etitioner might have brain damage and other psychological problems. Having made that strategic decision, however, [p]etitioner‘s counsel then presented this evidence without any further investigation, in an unprepared and ill-informed manner” and
The facts of the third case that Davis relies on, Anderson, 476 F.3d 1131, are even less analogous. There, applying de novo review, we found counsel performed deficiently by conducting “only the most rudimentary investigation of [petitioner‘s] background” and by presenting a “skeletal” mitigation case to the jury. See id. at 1142, 1144–45. Here, by contrast, trial counsel indisputably investigated Davis‘s background and presented a mitigation case that, unlike in Anderson, “offer[ed] the jury a potential explanation” for Davis‘s actions. Id. at 1144.
Thus, none of Davis‘s cases are persuasive. And in light of Hall‘s experience and the certainty of her conclusions, we conclude that trial counsel did not perform deficiently when she relied on Hall‘s evaluation of Davis and ceased investigating Davis‘s mental health. See Strickland, 466 U.S. at 691 (“[A] particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel‘s judgments.“); Duckett, 306 F.3d at 998 (applying Strickland to evaluate merits of trial IAC claim omitted from appeal as part of deciding whether appellate IAC claim had merit and thus established cause to overcome procedural default of trial IAC claim). Indeed, “the duty to investigate does not force defense lawyers to scour the globe on the off chance something will
We therefore conclude that reasonable jurists could agree that appellate counsel did not perform deficiently when she omitted the Trial PTSD Claim from Davis‘s appeal. See Duckett, 306 F.3d at 997–98 (holding that OCCA did not unreasonably apply Strickland when it rejected claim that appellate counsel was ineffective in failing to allege trial counsel was ineffective in failing to pursue drug-and-sex-abuse mitigation case; noting that trial counsel‘s decision to instead pursue PTSD mitigation case was strategic and based on reasonable investigation, and reasoning that “[b]ecause trial counsel was not ineffective, appellate counsel correlatively [could not] be ineffective for failing to raise a dependent ineffectiveness claim“). Further, we conclude reasonable jurists could agree that appellate counsel did not perform deficiently when, like trial counsel, she relied on Hall‘s evaluation and ceased investigating Davis‘s mental health. See Richter, 562 U.S. at 105 (“When
In sum, we cannot say that “all ‘fairminded jurists’ would” disagree with the OCCA‘s adjudication of the performance prong of the Appellate PTSD
Conclusion
The Depression Claims are subject to an anticipatory procedural bar. And because the Appellate PTSD Claim lacks merit, it does not excuse the procedural default of the Trial PTSD Claim or constitute an independent basis for granting the writ. We therefore affirm the district court‘s order denying habeas relief. As a final matter, we deny Davis‘s request for an expanded COA to appeal the district court‘s order denying relief on three additional claims he presented in his