Lead Opinion
In this consolidated appeal, Victor Wayne Hooks, an Oklahoma state prisoner facing the death penalty, appeals two orders of the district court denying him habeas relief. He seeks relief on three alternative grounds: (1) he is mentally retarded
Our disposition, in brief, is as follows: (1) in No. 10-6076, we AFFIRM the judgment of the district court denying habeas relief on all claims arising out of Mr. Hooks’s Atkins trial; and (2) in No. 03-6049, we (a) AFFIRM the judgment of the district court denying habeas relief as to Mr. Hooks’s 1989 conviction, but (b) REVERSE the judgment of the district court and conditionally grant the writ of habeas corpus as to his sentence.
I. Factual and Procedural Background
A.
At the time of her death, Shalimein Blaine was the common-law wife of Victor Hooks. The couple had lived together for four years. They were the parents of a one-year-old daughter, and Ms. Blaine was twenty-four-weeks pregnant with their second child.
On the evening of October 6, 1988, Mr. Hooks left his wife’s apartment and went to the home of her mother, Virginia Plumley, less than a block away. He told Ms. Plumley that Ms. Blaine had been beaten and raped and needed to be taken to the hospital. He then left. Ms. Plumley and her daughter, Amanda, followed Mr. Hooks back to the apartment, and when they arrived, they watched him load an
As they drove to the hospital, Ms. Plumley asked Mr. Hooks what happened. He said Ms. Blaine had gone for a walk and returned two hours later, beaten and bloodied. When Ms. Plumley asked why he had shaved Ms. Blaine’s head, Mr. Hooks responded that he had not done that and that it must have been done by the person who beat and raped her.
When Ms. Blaine arrived at St. Anthony Hospital in Oklahoma City, she was clinically dead. An ultrasound revealed that her unborn child was also dead, with a ruptured liver and bruising on its abdomen and head due to blunt-force trauma. Although doctors were initially able to reestablish Ms. Blaine’s heartbeat and pulse, she was pronounced officially dead the following morning.
After preliminary questioning by Oklahoma City police officers, Mr. Hooks agreed to let the officers search Ms. Blaine’s apartment. There, they discovered blood on the bed, on the carpet near the bed, and on several wash cloths and towels in a clothes hamper. They also found some hair in a trash can in the apartment. A search of a nearby dumpster revealed more bloody wash cloths, bloody clothing, and a large clump of hair.
Police brought Mr. Hooks to the Oklahoma City police station, where he was questioned by Detectives Eric Mullenix and Randy Scott. Mr. Hooks initially told detectives that Ms. Blaine had left the apartment for a walk, returned home, knocked on the door, and fell into his arms when he answered. He claimed she had been beaten and raped. According to Mr. Hooks, he then left the apartment to notify Ms. Plumley, and when he returned, Ms. Blaine was in the bathtub. He wrapped her in a blanket and took her to the hospital.
When detectives confronted Mr. Hooks with the bloody items and hair they had found, he began to cry and said he wanted to tell the truth. He told detectives that he and Ms. Blaine had been fighting: Ms. Blaine slapped him, and he then struck her, knocked her to the ground, and began kicking her in the stomach and face. He subsequently removed her clothing, placed her in the bathtub, and shaved a portion of her head. He did this, he claimed, because he was looking for head injuries. He then cleaned up the apartment. He also removed the blood from his one-year-old daughter, who had gotten it on her in the course of her mother’s beating. He placed the bloody clothing and clump of hair in the nearby dumpster.
B.
Mr. Hooks was charged by information in October 1988 with murder in the first degree of Shalimein Blaine and with manslaughter in the first degree for the death of the unborn quick child. At his trial in the District Court of Oklahoma County, Oklahoma, he was represented by Ronald Evans, a private attorney retained by Mr. Hooks’s mother, Clara Hooks. Mr. Evans, after consulting with experts, decided not to pursue an insanity defense, believing there was an insufficient factual basis for it. Instead, and in light of Mr. Hooks’s confession, he focused on obtaining a conviction for the lesser-included offense of second-degree murder or first-degree manslaughter with respect to Ms. Blaine. He sought to show that Mr. Hooks had acted in the heat of passion or with a depraved mind, not with malice aforethought.
The trial court, however, refused to instruct the jury on the lesser-included of
Post-trial proceedings followed a long and serpentine path through the state and federal judicial systems, which we briefly review below. To summarize, we have consolidated two separate appeals for our review. The first, No. 03-6049, concerns claims of ineffective assistance of trial counsel pertaining to both the guilt and sentencing phases of Mr. Hooks’s original trial. The second, No. 10-6076, involves several claims arising out of a subsequent trial in Oklahoma district court on whether Mr. Hooks is mentally retarded.
1.
Mr. Hooks’s conviction and sentence were affirmed on direct appeal by the Oklahoma Court of Criminal Appeals (“OCCA”). See Hooks v. State,
In December 1996, Mr. Hooks filed an application for writ of habeas corpus in the United States District Court for the Western District of Oklahoma, asserting numerous claims. His claims of ineffective assistance of trial counsel encompassed the claims he had raised before the OCCA on both direct appeal and postconviction review. The district court held an evidentiary hearing in April 1997. It subsequently denied habeas relief but granted a certificate of appealability (“COA”) on the ineffective-assistance claims. See Hooks v. Ward, No. CIV-96-732-M (W.D.Okla. Mar. 30, 1998) [hereinafter Hooks Habeas I].
On appeal to a panel of this court, the claims received bifurcated treatment. See Hooks v. Ward,
2.
In the meantime, the Supreme Court decided Atkins v. Virginia,
In June 2004, after a six-day trial, a jury concluded that Mr. Hooks is not mentally retarded, and the OCCA upheld that determination on appeal. See Hooks v. State,
We authorized Mr. Hooks to file a second or successive habeas petition to address his Atkins claims. See Order at 2, Hooks v. Sirmons, Nos. 03-6049, 06-6105 (10th Cir. Mar. 31, 2006). Mr. Hooks filed his second petition in April 2006, challenging the procedures and result of the Atkins trial. The district court entered a stay pending the OCCA’s collateral review of the claims. After the OCCA denied relief, Mr. Hooks filed an amended federal habeas petition in December 2006.
The district court denied habeas relief on the Atkins claims. See Hooks v. Workman,
Appeal No. 03-6049 (the ineffective-assistance claims) and Appeal No. 10-6076 (the Atkins claims) have been consolidated for our review.
II. Discussion
Mr. Hooks seeks habeas relief on three alternative grounds. With respect to his Atkins trial (Appeal No. 10-6076), he asserts (1) that he is mentally retarded and his execution would violate Atkins, and (2) that numerous procedural irregularities made his Atkins trial fundamentally unfair. With respect to his original trial (Appeal No. 03-6049), he asserts (3) that his counsel was ineffective during both the guilt and sentencing phases. As to grounds one and two, we agree with the district court that in light of AEDPA’s deferential standard, Mr. Hooks is not entitled to habeas relief. (See Parts II.B. and II.C. below.) As to ground three, our review is not constrained by AEDPA. We agree with the district court that counsel was not ineffective during the guilt phase of Mr. Hooks’s original trial. {See Part II.D.l. below.) However, we part ways with the district court regarding counsel’s performance during the sentencing phase. With respect to that aspect of the claim, we reverse the district court’s judgment
A. Standard of Review
AEDPA circumscribes our review of federal habeas claims that were adjudicated on the merits in state-court proceedings. See, e.g., Byrd v. Workman,
Under § 2254(d)(1), the threshold question is whether there exists clearly established federal law, an inquiry that focuses exclusively on holdings of the Supreme Court. House v. Hatch,
If clearly established federal law exists, a state-court decision is “contrary to” it “if the state court applies a rule different from the governing law set forth in [Supreme Court] cases, or if it decides a case differently than [the Supreme Court has] done on a set of materially indistinguishable facts.” Bell v. Cone,
Habeas relief is also warranted if the state court’s adjudication of a claim on the merits “resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(2). As the plain terms of the statute indicate, we also must not stray from the record before the state court in conducting this AEDPA inquiry. Furthermore, factual findings of the state court are presumed correct unless the applicant rebuts that presumption by “clear and convincing evidence.” 28 U.S.C. § 2254(e)(1); accord Welch v. Workman,
For federal habeas claims not adjudicated on the merits in state-court proceedings, we exercise our “independent judgment” and “review the federal district
B. Existence of Mental Retardation
Mr. Hooks first asks us to find that he is mentally retarded and that his execution is categorically prohibited by the Eighth Amendment. An Oklahoma jury (hereinafter the “Atkins jury”) found that Mr. Hooks is not mentally retarded, and that determination was upheld by the OCCA on both direct appeal and collateral review.
The essence of Mr. Hooks’s claim is a challenge to the sufficiency of the evidence. He argues:
The [Atkins ] jury’s conclusion was based on insufficient evidence and [Mr. Hooks] separately asserts the trial evidence, coupled with the additional evidence appropriately presented in habeas, demonstrates he is so impaired [that] he falls within the range of mentally retarded offenders for which there is a national consensus against his execution.
Aplt. Opening Br. at 20-21. The OCCA rejected this legal challenge, concluding that “a rational trier of fact could have found” that Mr. Hooks failed to show, by a preponderance of the evidence, that he is mentally retarded. Hooks Atkins Appeal,
As we will explain, the OCCA’s conclusion did not contravene clearly established federal law. We first set forth Oklahoma’s standard for finding a person mentally retarded within the meaning of Atkins. We then explain our standard of review in the habeas context for the unique sort of sufficiency challenge that Mr. Hooks presents here. Finally, we analyze whether the OCCA contravened clearly established federal law in its decision to uphold the Atkins jury’s finding, and we conclude that it did not.
1.
In Atkins, the Supreme Court held that in light of a national consensus and its own precedents, execution of mentally retarded criminal defendants violates the Eighth Amendment’s prohibition on “cruel and unusual punishments.” See
In response to Atkins, the OCCA in Murphy v. State promulgated the following definition of mental retardation for use in capital trials:
A person is “mentally retarded”: (1) If he or she functions at a significantly sub-average intellectual level that substantially limits his or her ability to understand and process information, to communicate, to learn from experience or mistakes, to engage in logical reason*1165 ing, to control impulses, and to understand the reactions of others; (2) The mental retardation manifested itself before the age of eighteen (18); and (3) The mental retardation is accompanied by significant limitations in adaptive functioning in at least two of the following skill areas: communication; self-care; social/interpersonal skills; home living; self-direction; academics; health and safety; use of community resources; and work. It is the defendant’s burden to prove he or she is mentally retarded by a preponderance of the evidence at trial. Intelligence quotients are one of the many factors that may be considered, but are not alone determinative. However, no person shall be eligible to be considered mentally retarded unless he or she has an intelligence quotient of seventy or below, as reflected by at least one scientifically recognized, scientifically approved, and contemporary intelligent quotient test.
Mr. Hooks does not challenge Murphy’s definition of mental retardation as inconsistent with Atkins. Indeed, Murphy’s definition closely tracks the AAMR (now AAIDD) definition discussed in Atkins. See
2.
A sufficiency-of-the-evidence challenge in a habeas petition presents a mixed question of fact and law. Brown v. Sirmons,
The typical sufficiency challenge in a habeas petition focuses on evidence of guilt for the crime charged. In Jackson v. Virginia,
In two respects, however, Mr. Hooks’s sufficiency challenge is somewhat atypical. First, the substantive law at the basis of his sufficiency challenge consists not of the “essential elements” of a state-law criminal offense, Jackson,
Second, the jury in Mr. Hooks’s Atkins trial was required to determine, not whether he is guilty of an offense beyond a reasonable doubt (a question on which the State would have borne the burden of proof), but whether he is mentally retarded by a preponderance of the evidence (a question on which Mr. Hooks bore the burden of proof). The different standard of proof requires us to tailor Jackson to fit this context. We hold that the relevant constitutional standard for the state appellate court was whether, viewing the evidence in the light most favorable to the prevailing party (the State), any rational trier of fact could have found Mr. Hooks not mentally retarded by a preponderance of the evidence. See Maynard,
Based on the foregoing, we find that the OCCA’s decision, on its face, applied the correct standard of appellate review. Reviewing Mr. Hooks’s sufficiency challenge, the OCCA concluded, “Taken in the light most favorable to the prevailing party, a rational trier of fact could have found that Hooks provided insufficient evidence to show he was mentally retarded.” Hooks Atkins Appeal,
“Because the OCCA applied the correct legal standard, our inquiry is limited to whether its determination that the evidence was sufficient to support the jury’s verdict was reasonable.” Young,
3.
The parties agree that Mr. Hooks meets the second prong of Murphy’s standard for mental retardation (that the deficiencies manifested themselves before the age of eighteen). See Hooks Atkins Appeal,
a. Sub-average intellectual ability
Under Murphy, a capital defendant’s IQ score is used both to establish
Mr. Hooks has been subjected to IQ testing throughout his life, and the Atkins jury was presented with nine of his IQ scores. These scores were obtained from tests administered over a thirty-four-year period, between 1970 and 2004, and they ranged from 53 to 80.
The experts agreed this range of scores put Hooks in a “gray area”. The tests of 70 and below all reflected some degree of lack of cooperation on Hooks’s part, from variable attention span to refusal to respond. Two of them were obtained after Hooks suffered the trauma of an accident and his father’s death, which could have caused him to test lower than his actual intellectual level. The expert witnesses agreed that the most reliable scores were those obtained by Dr. Gelbort and Dr. Cowardin, with results of 72 and 76. Neither of these scores meets the “seventy or below” requirement in Mwrphy, although Dr. Gelbort’s results are within that range using the standard error of measurement (a five-point range on either side). Given the other testimony, it was not unreasonable for jurors to determine that the most reliable IQ evidence offered did not fall within the first prong of the Murphy definition, functioning at a significantly sub-average intellectual level. A rational trier of fact could have found that Hooks failed to meet this burden by a preponderance of the evidence.
Hooks Atkins Appeal,
Mr. Hooks assails this conclusion in two ways. First, he contends that four of his IQ scores (scores of 80, 80, 61 and 76) “are of limited value and lack reliability.” Aplt. Opening Br. at 25. We shall call this group of scores the “First Group.” Second, after tossing out the above four scores, Mr. Hooks contends that the remaining five (scores of 70, 61, 57, 72, and 53
We note that the First Group includes the K-BIT score of 76 and the Second Group includes the WAIS-R score of 72, both obtained by Mr. Hooks’s own experts (Dr. Nancy Cowardin and Dr. Michael Gelbort, respectively) and deemed by the OCCA, based on the opinions of experts from both sides, to be the “most reliable” of all the IQ scores. Hooks Atkins Appeal,
Mr. Hooks asserts that the Second Group of scores, including the WAIS-R score of 72, must be downwardly adjusted for the Flynn Effect. The Flynn Effect is a phenomenon named for James R. Flynn, who discovered that the population’s mean IQ score rises over time, by approximately 0.3 points per year. Under his theory, if an individual’s test score is measured against a mean of a population sample from prior years, then his score will be inflated in varying degrees (depending on how long ago the sample was first employed) and will not provide an accurate picture of his IQ. See, e.g., Walton v. Johnson,
The OCCA’s failure to account for and apply the Flynn Effect was not “contrary to” or “an unreasonable application of’ clearly established federal law, 28 U.S.C. § 2254(d)(1), because the threshold requirement — the existence of clearly established federal law — is not met here. See House,
Even if this Circuit were prepared to take a side in this debate and hold that, under Atkins, the Flynn Effect must be considered in determining whether a defendant is mentally retarded, we could not do so on habeas review. “No decision of th[e Supreme] Court ... squarely addresses the issue.... ” Wright v. Van Patten,
We are left, then, with a number of IQ scores, some below and some above a score of 70. We do not believe this set of scores unquestionably qualifies Mr. Hooks as significantly sub-average in intellect. Given the reliability problems associated with many of the scores and the strong reliability of the scores of 72 and 76 from Mr. Hooks’s own experts, we agree that Mr. Hooks falls into a “gray area.” Hooks
b. Functional limitations
As an alternative basis for its holding, the OCCA also rejected Mr. Hooks’s -sufficiency-of-the-evidence challenge under the third prong of Murphy, which required Mr. Hooks to show that he has “significant limitations in adaptive functioning in at least two of [nine] skill areas.” Murphy,
Mr. Hooks argues that he satisfied Murphy’s third prong because of his deficiencies in two skills areas (communication and academics), and he assails the OCCA’s conclusion on two grounds. First, he faults the OCCA for focusing on his strengths rather than his limitations, which he contends was contrary to Atkins. Second and relatedly, he argues that a proper focus on his limitations, to the exclusion of his strengths, puts the existence of his mental retardation beyond dispute. We reject both arguments. Requiring the OCCA to focus only on Mr. Hooks’s limitations and to ignore his strengths is not clearly established federal law, and based on the evidence (limitations and strengths), a rational trier of fact could conclude that Mr. Hooks failed to satisfy the third prong of Murphy by a preponderance of the evidence.
Mr. Hooks first argues that the OCCA’s focus on his strengths rather than his limitations was objectively unreasonable because it is contrary to the “holistic approach” recommended by the AAIDD, which “focuses on the individual’s limitations.” Aplt. Opening Br. at 44 (quoting AAIDD, Intellectual Disability: Definition, Classification, and Systems of Supports 94 (11th ed.2010)) (internal quotation marks omitted). He continues; ‘When the Atkins [ ] Court determined there was a national consensus that offenders meeting the clinical definition of mentally retarded could not be executed, it essentially adopted the clinical definition of the condition. Further, the focus is on deficits, not strengths, as clearly established within the clinical community and by Atkins.” Aplt. Reply Br. at 10. We are not persuaded.
While Atkins is undoubtedly clearly established federal law, the precise
Mr. Hooks bases his argument to the contrary on language in the Atkins opinion such as the following: “[Cjlinical definitions of mental retardation require ... significant limitations in adaptive skills.” Atkins,
Furthermore, even if the AAIDD’s “holistic approach” requires a clinician to ignore functional strengths, as Mr. Hooks contends, the clinical standard is not a constitutional command. Section 2254(d)(1) refers to “clearly established Federal law, as determined by the Supreme Court of the United States,” and as we have explained, “Supreme Court holdings” are “the exclusive touchstone for clearly established federal law.” House,
That being so, Mr. Hooks’s second contention must fail. Having argued that evidence of his strengths should not be considered to support the Atkins jury’s conclusion, he selectively highlights those portions of the trial record that support his limitations in adaptive functioning. See Aplt. Opening Br. at 32-35, 39-41. But this was not the only evidence before the jury. For example:
• Some experts found that Mr. Hooks communicated well and could express his thoughts and feelings clearly. 5 M.R. Tr. at 32-33, 55 (Test, of Dr. Hall).
• Mr. Hooks read the Bible, 4 M.R. Tr. at 210 (Test, of Shanna Dinh); read other books in prison, id. at 125-26 (Test, of Dr. Cowardin); and could use a dictionary, id. at 125.
• Mr. Hooks wrote a number of letters in which he communicated his feelings forcefully and clearly. Id. at 126-32; see State’s Exs. 1-6 to M.R.11
*1173 • Mr. Hooks communicated with multiple landlords and filled out rental applications. 4 M.R. Tr. at 205 (Test, of Ms. Dinh); 5 M.R. Tr. at 31 (Test, of Dr. Hall); 5 M.R. Tr. at 167 (Test, of Eric Mullenix). He also negotiated with a car salesman to obtain the price he wanted on a vehicle. 4 M.R. Tr. at 206-07 (Test, of Ms. Dinh).
• Mr. Hooks lived independently and traveled to see his mother often. 2 M.R. Tr. at 184-85 (Test, of Clara Hooks); 5 M.R. Tr. at 30 (Test, of Dr. Hall); 5 M.R. Tr. at 169 (Test, of Mr. Mullenix). He talked about running errands, shopping, and having a loose muffler repaired. 5 M.R. Tr. at 167 (Test, of Mr. Mullenix).
• Mr. Hooks managed his money “just fíne” and paid his bills. Id. at 31 (Test, of Dr. Hall). He frequently pawned items or sold food stamps to earn cash for groceries and items for his child. Id.; 4 M.R. Tr. at 211 (Test, of Ms. Dinh); 5 M.R. Tr. at 168 (Test, of Mr. Mullenix).
• Mr. Hooks ran a prostitution ring, rented apartments for prostitutes, paid their rent, and collected money from them. 4 M.R. Tr. at 198-205 (Test, of Ms. Dinh).
The evidence concerning Mr. Hooks’s behavioral limitations was controverted, and resolving the limitations question “depended heavily on the factfinders’ appraisal of witness credibility and demeanor.” Bryan v. Gibson,
Mr. Hooks’s second claimed ground for habeas relief implicates the fundamental fairness of his Atkins trial. He asserts that a number of errors during trial violated his Fifth, Sixth, and Fourteenth Amendment rights. He puts forward the following six claims: (1) a potential juror was improperly removed for cause; (2) the trial court improperly prohibited cross-examination of Shanna Dinh, one of the State’s witnesses; (3) the State committed a Brady violation; (4) the trial court committed two state-law evidentiary errors that denied him due process; (5) his attorney at the Atkins trial was ineffective; and (6) the cumulative effect of these errors resulted in an unfair trial.
Some of these claims were adjudicated on .the merits by the OCCA, and some were not. We address the appropriate standard of review in the context of each claim. We ultimately reject all six claims and conclude that Mr. Hooks is not entitled to relief on these grounds.
Before proceeding, we pause to note that each of these claims is properly an “Atkins claim” subject to federal habeas review under 28 U.S.C. § 2254. See Ochoa,
1. Removal of Venire Member for Cause
Mr. Hooks asserts error based on the trial court’s removal for cause of a potential juror, Donna Paddock. Ms. Paddock was familiar with the clinical definition of mental retardation and suggested that if the clinical definition conflicted with the legal one, she might be unable to apply the latter impartially. See 1 M.R. Tr. at 105, 124, 159-63. The trial court granted the State’s motion and excluded her for cause. Id. at 167.
On appeal, the OCCA denied Mr. Hooks’s claim of error, citing the Supreme Court’s decision in Wainwright v. Witt,
Mr. Hooks claims that the OCCA’s decision was an unreasonable application of Witt because Ms. Paddock’s views would not have prevented or substantially impaired her performance as a juror. The State counters that Witt is not clearly established federal law because “the Supreme Court has not extended [Witt] to mental retardation proceedings,” Aplee. Br. at 35, and that, in any event, the OCCA’s application of Witt was not unreasonable.
At the outset, in the unique setting of an Atkins proceeding, we reject the State’s suggestion that Witt is not clearly established federal law solely because the Supreme Court has not expressly “extended” it to such proceedings. We And this argument to be unpersuasive under the rationale of our decision in Ochoa and, indeed, conclude that it is foreclosed by that precedent. See
In Witherspoon v. Illinois,
Important as it is, the Witherspoon-Witt rule is a narrow one. First, it does not apply outside the context of capital sentencing. See Lockhart v. McCree,
In light of the foregoing, we hold that there is no clearly established federal law entitling Mr. Hooks to relief. The Witherspoonr-Witt rule applies only in the capital-sentencing context, and only when a venire member is erroneously removed for cause “because of his or her views on capital punishment.” Witt,
2. Cross-Examination of Shanna Dinh
At the Atkins trial, Shanna Dinh, a witness for the State and a former friend of Mr. Hooks, testified at length about Mr. Hooks’s daily routine, numerous girlfriends, running of a prostitution ring, negotiation with landlords and a car salesman, and meticulous cleaning habits, among other things. See 4 M.R. Tr. at 194-215. On cross-examination, counsel sought to impeach Ms. Dinh’s credibility with prior inconsistent statements, including statements she made at Mr. Hooks’s original trial in 1989. The most notable inconsistency concerned Ms. Dinh’s living arrangements. She claimed at the 1989 trial to have lived with Mr. Hooks “for a couple of months,” 2 Trial Tr. at 413 (Test, of Ms. Dinh),
“The Confrontation Clause of the Sixth Amendment guarantees the right of an accused in a criminal prosecution ‘to be confronted with the witnesses against him.’ ” Delaware v. Van Arsdall, 475 U.S. 673, 678,
The OCCA rejected Mr. Hooks’s Confrontation Clause claim, resting its conclusion on the ground that, while Ms. Dinh may not have truthfully testified about her living arrangements, “[Mr.] Hooks offers no evidence to suggest that [Ms. Dinh’s] testimony regarding her observations during the time she did spend with him were inaccurate.” Hooks Atkins Appeal,
As the Court explained in Davis,
Cross-examination is the principal means by which the believability of a witness and the truth of his testimony*1178 are tested. Subject always to the broad discretion of a trial judge to preclude repetitive and unduly harassing interrogation, the cross-examiner is not only permitted to delve into the witness’ [s] story to test the witness’[s] perceptions and memory, but the cross-examiner has traditionally been allowed to impeach, i.e., discredit, the witness.
Because the OCCA unreasonably applied (what we have assumed to be) clearly established federal law, AEDPA deference does not apply. See Spears v. Mullin,
First, Mr. Hooks’s contention that the trial court “prohibited all inquiry into Ms. Dinh’s inconsistent statements,” Aplt. Opening Br. at 53, is simply inaccurate. On cross-examination, counsel was permitted to ask Ms. Dinh how long she had lived in foster care during the period of time she claimed to be living with Mr. Hooks. See 4 M.R. Tr. at 217-18, 220-21. Second, while the trial court did sustain several objections on grounds of relevancy, exceeding the scope of direct, and hearsay, it permitted counsel to rephrase her questions or ask questions more relevant to the jury’s assessment of Ms. Dinh’s credibility. See id. at 215-24. Finally, although Ms. Dinh’s testimony at the Atkins trial concerning how long she had lived with Mr. Hooks was indeed wildly inconsistent with her testimony in 1989, counsel never actually attempted to cross-examine Ms. Dinh concerning this precise issue, much less to drill down and explore it in detail.
On June 14, 2004, after the Atkins trial began, state prosecutor Pattye High gave counsel for Mr. Hooks, Vicki Werneke, a memorandum detailing a phone conversation between Ms. High and Pat Prater. At the time, Ms. Prater was an employee of the Oklahoma Department of Corrections and Mr. Hooks’s case manager and counselor. The memorandum stated:
When I asked [Ms. Prater] if she thought Victor Hooks was MR [mentally retarded], her response was, “I wouldn’t be surprised, because he talks like one”. “You know how they talk? He talks like that”. She could not give me any other detail, just that he “talks like one”. I just wanted to pass that along to you. She no longer works in H-Unit [where Mr. Hooks is housed], but I got her on the phone by calling [redacted phone number] and asking for her.
R., Vol. 1, pt. 2 at 418 (Memo, from Pattye High to Vicki Werneke, dated June 14, 2004).
Mr. Hooks claims that a Brady violation occurred as a result of the circumstances under which the prosecution disclosed this memo. See Brady v. Maryland,
Mr. Hooks’s Brady claim was not adjudicated on the merits by the OCCA. That court ruled that it was proeedurally defaulted and barred from consideration in collateral proceedings because it was not timely presented. Hooks Atkins Collateral, slip op. at 4-5. The State contends that we should not consider the merits of the claim. The district court, noting the convoluted procedural history of this case, reached the merits, ultimately rejecting the claim. See Hooks Habeas II,
Under Brady, “the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.”
“Evidence is not suppressed within the meaning of Brady if it is made
We have no trouble concluding that the State fulfilled its Brady obligation here. Ms. High disclosed to Ms. Werneke that she had spoken with Ms. Prater and that Ms. Prater had opined that Mr. Hooks was mentally retarded. Evidence favorable to Mr. Hooks was thus “made known and available” to his counsel. Wooten,
4. State-Law Evidentiary Errors
Mr. Hooks grounds two of his claims on errors of state law. First, he asserts that the trial court improperly prevented him from introducing evidence that Dr. Phillip Murphy, whose testing of Mr. Hooks in 1988 produced an IQ score of 80, had been subject to professional discipline. Second, he claims that the trial court admitted certain prejudicial and irrelevant evidence in violation of the OCCA’s decision in Lambert,
Of course, “[fjederal habeas review is not available to correct state law evidentiary errors.” Ochoa,
Reviewing Mr. Hooks’s claims of error, we conclude that he has failed to demonstrate the existence of a state-law error, much less a “grossly prejudicial” one. Revilla,
With respect to his second claim, Mr. Hooks objects to the admission of three items of evidence: (1) testimony that he ran a prostitution ring, (2) a tape-recorded interview of him that allowed the jury to infer that he had murdered Ms. Blaine, and (3) testimony concerning his previous run-ins with law enforcement. He claims admitting this evidence violated the OCCA’s Lambert decision. In his Atkins appeal, Mr. Hooks articulated this claim only with respect to the first two items of evidence. We exercise our discretion to consider all three items because the claim is without merit. See 18 U.S.C. § 2254(b); Revilla,
In Lambert, the OCCA held that the jury in an Atkins proceeding “should not hear evidence of the crimes for which [a defendant] was convicted, unless particular facts of the case are relevant to the issue of mental retardation.”
The OCCA’s factual findings are presumed correct under 18 U.S.C. § 2254(e)(1). Based on our independent review of the record, we conclude that the OCCA committed no error. At best, Mr. Hooks’s arguments amount to disagreement with the OCCA concerning the relevance and prejudicial effect of the evidence, but we are not persuaded that the OCCA was wrong.
First, the prostitution-ring evidence was highly relevant to the question of mental retardation and, in that light, not unfairly prejudicial. See 4 M.R. Tr. at 198-205 (Test, of Ms. Dinh); 5 M.R. Tr. at 57 (Test, of Dr. Hall). Second, the interview evidence was both relevant and not unfairly prejudicial. The portions of the interview presented to the jury were limited to statements by Mr. Hooks describing his daily activities and answering other questions about his life and relationships, and contained no reference to Ms. Blaine’s murder. See 5 M.R. Tr. at 164-73 (reading of interview transcript by Messrs.
With respect to the third item, which the O CCA did not consider, Mr. Hooks claims that the State was allowed to present testimony indicating that he had been convicted of armed robbery, arrested on a separate robbery charge, involved in many domestic disputes, and gotten into numerous fights in prison, all of which was “irrelevant to mental retardation.” Aplt. Opening Br. at 56. The testimony that Mr. Hooks has in mind is that of Dr. Hall. See 5 M.R. Tr. at 26-29. As the district court found, this portion of Dr. Hall’s testimony, which was never objected to, was Hooks Habeas II,
focused on notations regarding Petitioner’s activities while being evaluated at Eastern State Hospital and while in the custody of the Department of Corrections, events leading the hospital officials to suspect malingering by Petitioner, and evaluations that he not only was not mentally retarded but very intelligent, aggressive and dangerous. Dr. Hall’s testimony of Petitioner’s past evaluations and actions was not only relevant to her expert opinion, but also to demonstrate evidence countering Petitioner’s claims of limitations in adaptive functioning.
Thus, finding this rationale to be persuasive, we have no trouble concluding that Mr. Hooks has failed to demonstrate the existence of state-law error, much less a “grossly prejudicial” one. Revilla,
5. Ineffective Assistance of Atkins Counsel
We come, then, to Mr. Hooks’s claim that counsel at his Atkins trial was ineffective. Under this heading, he raises several arguments. He asserts that his counsel was constitutionally deficient for failing to (1) obtain an additional IQ score, (2) investigate his functioning in prison, (3) secure Pat Prater as a witness, (4) uncover evidence to impeach Shanna Dinh, (5) comply with a discovery order related to evidence of Dr. Murphy’s probationary status, and (6) seek redaction of crime facts from the State’s exhibits. Also, as a threshold matter, Mr. Hooks claims that the standard for counsel’s performance here is United States v. Cronic,
As we explain below, we reject the State’s threshold argument and hold that there is indeed a right to counsel in Atkins proceedings. We also reject Mr. Hooks’s initial argument regarding the appropriate analytical framework, and thus apply Strickland rather than Cronic, because counsel was an active, zealous participant
a. Right to Counsel in Atkins Proceedings
The State asserts at the outset that we need not review the merits of Mr. Hooks’s ineffective-assistance claim because he has no right to counsel in an Atkins proceeding:
[Tjhere is no clearly established federal law that guarantees Petitioner the right to counsel in a post-conviction mental retardation trial. The Sixth Amendment provides that “[i]n all criminal prosecutions, the accused shall enjoy the right ... to have the assistance of counsel for his defence.” Post-conviction review “is not part of the criminal proceeding itself, and is in fact considered to be civil in nature.” Murray v. Giarratano,492 U.S. 1 , 8 [109 S.Ct. 2765 ,106 L.Ed.2d 1 ] (1989). Therefore, the Supreme Court has held that “[tjhere is no constitutional right to an attorney in state postconviction proceedings^]” and, “[cjonsequently, a petitioner cannot claim constitutionally ineffective assistance of counsel in such proceedings.” Coleman v. Thompson,501 U.S. 722 , 752 [111 S.Ct. 2546 ,115 L.Ed.2d 640 ] (1991). Accordingly, Petitioner’s claim must fail.
Aplee. Br. at 50 (alterations in original). As far as we can tell, this is a question of first impression in the federal courts. We reject the State’s argument.
We have held that the Fourteenth Amendment’s Due Process Clause applies as fully to an Atkins proceeding as to any other jury trial. See Ochoa,
The State seeks to deflect this conclusion by analogizing an Atkins proceeding to state postconviction proceedings where, it is true, “[t]here is no constitutional right to an attorney.” Coleman v. Thompson,
We come, then, to the question of clearly established federal law. We have concluded that defendants in Atkins proceedings have the right to effective counsel secured by the Sixth and Fourteenth Amendments. But that does not perforce answer the question of whether that right is clearly established. Based on our analysis below of the nature of the right and its nexus to the proceedings allowable under Atkins, however, we further conclude that the right to counsel flows directly from, and is a necessary corollary to, the clearly established law of Atkins. Cf. Ochoa,
We “should not be ignorant as judges of what we know as” human beings. Watts v. Indiana,
[The defendant] requires the guiding hand of counsel at every step in the proceedings against him. Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence. If that be true of men of intelligence, how much more true is it of the ignorant and illiterate, or those of feeble intellect.
Powell v. Alabama,
Therefore, we hold that defendants in Atkins proceedings have the right to effective counsel secured by the Sixth and Fourteenth Amendments — a right that stems directly from, and is a necessary corollary to, Atkins. For that reason, we further hold that the right to counsel in Atkins proceedings is “clearly established Federal law, as determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1).
b. The relevant standard: Strickland
Because there is a right to counsel in Atkins proceedings, we must next determine which standard governs counsel’s performance. Generally, ineffective-assistance-of-counsel claims are analyzed under the rubric of Strickland. See Byrd,
Standing alone, these circumstances do not warrant a presumption of prejudice. When the Court in Cronic spoke of “a breakdown in the adversarial process,” it envisioned a situation in which “counsel entirely fails to subject the prosecution’s case to meaningful adversarial testing.”
This is simply not a case in which counsel “entirely fail[ed] to subject the prosecution’s case to meaningful adversarial testing.” Cronic,
Because we find that counsel for Mr. Hooks actively and zealously participated in all phases of the trial proceedings, we will not presume prejudice under Cronic. Strickland, therefore, remains the appropriate standard for evaluating counsel’s performance. See Hooks,
“[0]ur review of counsel’s performance under the first prong of Strickland is a ‘highly deferential’ one.” Id. at 1168 (quoting Hooks,
A state prisoner in the § 2254 context faces an even greater challenge. Byrd,
The second prong of Strickland — prejudice — requires an applicant to show “that there is a reasonable probability that, but for the counsel’s error, ‘the result of the proceeding would have been different.’ ” Challoner,
With one exception, which relates to counsel’s failure to redact certain letters, the OCCA denied relief on all of the instances of ineffective assistance alleged by Mr. Hooks under the second (prejudice) prong of Strickland. This was an entirely appropriate mode of analysis. Indeed, the Supreme Court in Strickland intimated that resolving ineffective-assistance claims on prejudice grounds may be preferable: “The object of an ineffectiveness claim is not to grade counsel’s performance. If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed.”
In this case, save for one instance—which relates to Mr. Hooks’s counsel’s failure to comply with a discovery order—we believe the performance prong of Strickland provides “a more certain basis” for resolving Mr. Hooks’s ineffective-assistance claim, even though the state court rested its conclusions on lack of prejudice. Pondexter v. Quarterman,
c. Failure to obtain an additional IQ score
Mr. Hooks argues that his Atkins counsel was deficient for failing to obtain a more recent IQ score. He points to testing done in 2006, two years after the Atkins proceeding, that pegged his IQ at 67. On collateral review, the OCCA found that Mr. Hooks was not prejudiced by counsel’s failure to order additional testing. See Hooks Atkins Collateral, slip op. at 9-10.
Applying de novo review, we conclude that counsel did not act unreasonably in failing to order an additional IQ test. A wide range of IQ scores was already available for presentation at trial, some low and some high. Indeed, the jury was presented with nine IQ scores ranging from 53 to 80. Mr. Hooks’s counsel was almost certainly aware that IQ scores remain fairly stable over a person’s lifetime, see Ochoa,
d. Failure to investigate functioning in prison
Mr. Hooks asserts that counsel was deficient for failing to investigate his “adaptive functioning during his fifteen year stay on death row,” which would have revealed that he had help writing the letters on which the State relied to show his communicative abilities and that he had not in fact participated in an allegedly improper scheme involving the use of the mails to solicit and obtain money from women that supposedly he describes in one of the letters. Aplt. Opening Br. at 67-68. With respect to letter-writing assistance, Mr. Hooks points to post-trial affidavits from fellow prisoners Walanzo Robinson and Paris Powell, both of whom state that they have assisted Mr. Hooks from time to time in reading and writing letters. See R., Vol. 1, pt. 2 at 435-36 (Aff. of Walanzo Robinson, dated Mar. 9, 2003); id. at 438-42 (Aff. of Paris Powell, dated Dec. 29, 2004). With respect to the scheme, Mr. Hooks points to prison records tending to show that he was not involved. See Aplt. Opening Br. at 67. The OCCA resolved this aspect of Mr. Hooks’s claim by concluding that he was not prejudiced by counsel’s failure in light of “other significant evidence bearing on Hooks’s intellectual and adaptive functioning.” Hooks Atkins Collateral, slip op. 10-12. We resolve this issue de novo under the first prong of Strickland.
We “must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance,” and that “the challenged action ‘might be considered sound trial strategy.’” Strickland,
Finally, there is at least a suggestion that relying on testimony of fellow prisoners would have been not only fruitless, but also harmful. See Burger v. Kemp,
e. Failure to call Pat Prater as a witness
Mr. Hooks alleges that counsel performed deficiently when she failed to secure Pat Prater as a witness after seeing the memorandum from Ms. High. (As earlier discussed, the memorandum summarized a conversation between Ms. High and Ms. Prater regarding the latter’s observations of and interactions with Mr. Hooks.) Mr. Hooks believes that “Ms. Prater would have provided objective evidence of Petitioner’s significant adaptive deficits and an opinion he was mentally retarded.” Aplt. Opening Br. at 68. The OCCA resolved this claim on prejudice grounds, concluding that “there is not a reasonable probability that, with this evidence, jurors would have found Hooks was mentally retarded.” Hooks Atkins Collateral, slip op. at 14. We resolve this issue de novo under the first prong of Strickland.
Trial counsel does not act unreasonably in failing to call every conceivable witness that might testify on a defendant’s behalf. See Crittenden v. Ayers,
f. Failure to uncover evidence to impeach Shanna Dinh
Mr. Hooks claims that counsel was ineffective because she failed to contact Shanna Dinh’s ex-husband, Cue Van Dinh, who could have testified that he and Ms. Dinh lived together during the time that she claimed to have been living with Mr. Hooks. The OCCA resolved the claim on prejudice grounds, concluding that “[w]hether Dinh lived with Hooks for months or years, her testimony went to her observations of his behavior and mental ability.” Hooks Atkins Collateral, slip op. at 15. We resolve this issue de novo under the first prong of Strickland.
It is worth noting that Ms. Dinh’s story appears to be so convoluted that unraveling the truth is impossible on the record before us. Ms. Dinh claimed at the Atkins trial that she lived with Mr. Hooks “90 percent of the time” between 1984 and 1987. 4 M.R. Tr. at 198. In 1989, during the murder trial, she claimed to have lived with him for “a couple of months” during that period. 2 Trial Tr. at 413 (Test, of Ms. Dinh). Meanwhile, Mr. Hooks’s counsel was aware of a presentence investigation report indicating that Ms. Dinh was in foster care during that same time period. See 4 M.R. Tr. at 218 (statement of Ms. Werneke to the court). To muddy the waters further, the affidavit of Cue Van Dinh states that Ms. Dinh was living with him during that time period and not “with anyone else.” R., Vol. 1, pt. 2 at 477 (Aff. of Cue Van Dinh, dated Jan. 19, 2005). Finally, on direct appeal from Mr. Hooks’s Atkins trial, the OCCA stated that “[subsequent investigation indicates that [Ms.] Dinh’s husband had [later] filed for divorce, claiming abandonment.” Hooks Atkins Appeal,
No doubt, counsel for Mr. Hooks was as confused as we are. We note, however, that she did not neglect to impeach Ms. Dinh. On cross-examination, she sought to highlight one of these discrepancies in Ms. Dinh’s story, asking twice whether Ms. Dinh was in foster care at the time she claimed to have been living with Mr. Hooks. See 4 M.R. Tr. at 217, 220-21. Ms. Dinh denied the allegation both times.
Counsel was not unreasonable for choosing to focus on only one of the discrepancies in Ms. Dinh’s story. Indeed, counsel could have reasonably believed that bringing Cue Van Dinh’s putative testimony to light would have undermined her own strategy. Specifically, if counsel had suggested that Ms. Dinh was both in foster care and living with her husband during the relevant period, the jury may have perceived the conflict. Moreover, if counsel was aware that Cue Van Dinh had claimed abandonment in his divorce proceedings, she reasonably could have concluded that Mr. Dinh was likely susceptible to strong impeachment by the State, which would have further weakened Mr. Hooks’s case. Because there is good reason to believe that counsel made a reasonable, strategic decision not to seek the testimony of Cue Van Dinh, we conclude that her performance was not unreasonable under Strickland.
g. Failure to comply with a discovery order
Mr. Hooks alleges that counsel was constitutionally deficient because her failure to comply with a discovery order disabled her from introducing evidence that Dr. Murphy had been professionally
To show prejudice under the second prong of Strickland, Mr. Hooks must establish “that there is a reasonable probability that, but for the counsel’s error, ‘the result of the proceeding would have been different.’ ” Challoner,
h. Failure to seek redaction of crime facts from the State’s exhibits
Mr. Hooks asserts ineffective assistance for counsel’s failure to redact “crime facts” from letters written by Mr. Hooks and admitted at trial. Aplt. Opening Br. at 71. Specifically, he claims that “[t]he letters contained references to Petitioner’s victim and the fact she was no longer ‘out there’ to care for her daughter.” Id. The OCCA did not review the letters because Mr. Hooks did not attach them as exhibits to his habeas application. See Hooks Atkins Collateral, slip op. at 16. However, relying on a portion of a letter that Mr. Hooks quoted in his postconviction application, the OCCA found that there were “no references to the facts of murder of which Hooks was convicted.” Id. Accordingly, the OCCA concluded that “[n]othing properly before this Court suggests that the jury was informed of the facts of the crime,” and that it would “not find counsel was ineffective for failing to ... redact information in the letters.”
The letters are available in the record before us. Only two of the six letters mention Ms. Blaine. Those letters were the focus of Mr. Hooks’s arguments before
In the first letter, Mr. Hooks scolded his daughter for some trouble she had found herself in, and he stated, “I know for a fact if Shalimein was out there she would of kick-yo-ass all the way to the berry house. Cause she love you and don’t want nothing bad to happen to you Shalimar. You already know if I was out there you wouldn’t be caught-up in no shit like that none.” State’s Ex. 2 to M.R. In the second letter, Mr. Hooks states that a particular look from his daughter
would tear-at-my-heart cause your “mom” would look at me the same way. “LORD” know’s I done everything I could do to protect [and] “save her.” Shalimar if I had a choice she would be with you now. “I love you all that way.” I wish I hadn’t loved her. Maybe she would still be out there, I don’t know.
State’s Ex. 6 to M.R.
The two letters contain no reference to the murder of Ms. Blaine. Both letters referred to Ms. Blaine as not being “out there,” although in the first letter, Mr. Hooks also referred to himself as not being “out there.” A juror could infer that Mr. Hooks was talking about the death of Ms. Blaine in these references (as opposed to, for example, talking about her being in prison like Mr. Hooks). Even so, it would require a further inferential leap to conclude that Mr. Hooks was responsible for her death, especially since he pledged that he had “done everything [he] could to pro
6. Cumulative Error
Finally, Mr. Hooks asserts cumulative error arising out the numerous constitutional errors that he alleges occurred during his Atkins trial. The parties dispute whether the OCCA addressed cumulative error. Mr. Hooks asserts that it did not. See Aplt. Opening Br. at 71-72. The State urges that the OCCA did address it, but the State’s argument focuses only on cumulative error in the context of the ineffective-assistance claim. See Aplee. Br. at 65-66. Even if the State is right that the OCCA assessed cumulative error pursuant to the ineffective-assistance claim, Mr. Hooks’s cumulative-error claim is clearly broader and encompasses all of the alleged errors arising out of the Atkins trial, not just errors allegedly committed by counsel. See Cargle,
“A cumulative-error analysis aggregates all errors found to be harmless and analyzes whether their cumulative effect on the outcome of the trial is such that collectively they can no longer be determined to be harmless.” Id. (quoting United States v. Toles,
D. Fairness of the Original Trial
Mr. Hooks’s third and final ground for habeas relief is that counsel was ineffective during the guilt and sentencing phases of his original trial in 1989. This claim comes to us in Appeal No. 03-6049 and was not adjudicated on the merits in state court. Accordingly, we do not view the claim through the lens of AEDPA and instead exercise our “independent judgment.” McCracken,
The familiar two-prong standard of Strickland applies to Mr. Hooks’s ineffective assistance claim. He “must show both that his counsel’s performance ‘fell below an objective standard of reasonableness’ and that ‘the deficient performance prejudiced the defense.’” Byrd,
1. Counsel’s Performance During the Guilt Phase
Mr. Hooks claims that counsel was ineffective during the guilt phase of his trial because counsel failed (1) to pursue an insanity defense, and (2) to secure witness Carol Hill. We conclude that counsel was not ineffective during the guilt phase.
a. Failure to pursue an insanity defense
Mr. Hooks argues that counsel was deficient for failing to investigate and pursue an insanity defense. In his view, such a defense, even if ultimately unsuccessful, would have opened the door to expert testimony on his mental state, which in turn would have helped establish that he had killed in the heat of passion rather than with malice aforethought. In particular, according to Mr. Hooks, his counsel was ineffective because he misunderstood the legal standard for insanity.
All such testimony was ultimately excluded, however. The State objected to Officer Cannon’s testimony on the ground that Mr. Hooks’s statement (“I didn’t mean to kill her”) was self-serving hearsay, and the trial court sustained the objection. See id. at 442-43. When Mr. Evans began direct examination of Dr. Murphy, the State objected to his testimony, as well as to the proposed testimony of Dr. King, on the ground that it would invade the province of the jury. See id. at 447-56, 473-74. The trial court sustained those objections, too. See id. at 456, 474. The court recognized that psychiatric testimony was permissible to help establish a defendant’s insanity, but because an insanity defense was not being pursued, Mr. Hooks’s state of mind was “a question of fact peculiarly left within the exclusive province of the jury.” Id. at 455.
Mr. Hooks vigorously argues that the information available to Mr. Evans should have prompted a reasonable attorney to pursue an insanity defense and that he was prejudiced by Mr. Evans’s failure to do so because, even if he did not prevail on his insanity defense, “[t]here is a reasonable probability the insanity evidence would have eliminated an intent finding, the essential requisite for a first degree murder conviction.” Aplt. Opening Br. at 81. Indeed, there was no dispute that Mr. Hooks killed Ms. Blaine; the salient question was whether he acted with the requisite intent to constitute first-degree murder. See Hooks v. Ward,
We conclude, however, that Mr. Hooks cannot prevail on this claim of error. Mr. Evans had considered presenting an insanity defense but opted not to because, as he would later explain at the federal evidentiary hearing, he “didn’t think that there was a factual basis for it.” Fed. Evid. Hr’g Tr. at 173 (Test, of Mr. Evans). Oklahoma follows the M’Naghten rule, under which “[t]he defendant must demonstrate at trial that during the commission of the crime he was suffering from a mental disease or defect rendering him unable to differentiate between right and wrong, or unable to understand the nature and consequences of his acts.” Jones v. State,
The M’Naghten test consists of two elements which logically can be separated. The first portion [concerning an inability to understand the nature and consequences of one’s actions] relates to an accused who is psychotic to an extreme degree. It assumes an accused who, because of mental disease, did not know the nature and quality of his act; he*1197 simply did not know what he was doing. For example, in crushing the skull of a human being with an iron bar, he believed that he was smashing a glass jar. The latter portion of M’Naghten [involving an inability to differentiate between right or wrong] relates to an accused who knew the nature and quality of his act. He knew what he was doing; he knew that he was crushing the skull of a human being with an iron bar. However, because of mental disease, he did not know that what he was doing was wrong. He believed, for example, that he was carrying out a command from God.
2 Charles E. Torcia, Wharton’s Criminal Law § 101, at 12-17 (15th ed.1994) (footnotes omitted); see also 22 C.J.S. Criminal Law § 99, at 128 (1989) (noting that under the M’Naghten test “there exist two distinct and independent bases upon which a verdict of not guilty by reason of insanity might be returned”).
Ordinarily, we indulge a “ ‘a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance,’ and that ‘the challenged action might be considered sound trial strategy.’ ” Fairchild,
First, Mr. Hooks’s initial lies to cover up the murder, his attempt to hide evidence, and his seeking medical attention for Ms. Blaine indicate that he knew right from wrong.
However, with respect to M’Naghten’s second theory, the picture is more complicated. Mr. Evans was apparently unaware of this theory. At the federal evidentiary hearing, he described the M’Naghten rule as “basically not knowing the difference between right and wrong.” Fed. Evid. Hr’g Tr. at 173 (Test, of Mr. Evans). It was pointed out to him that the definition is disjunctive and also includes an inability to understand the nature and consequences of one’s actions, to which he responded, “I think that goes hand-in-hand with not knowing right from wrong.” Id. When his understanding was corrected, he admitted, “I guess I was wrong.” Id. at 174.
The ordinary presumption discussed above — that an attorney’s conduct falls within the wide range of reasonable professional assistance and that his conduct might be deemed sound trial strategy — dissipates when an attorney has a “demonstrated ignorance of law directly relevant to a decision.” Bullock v. Carver,
Nonetheless, we need not opine on Mr. Evans’s performance with regard to his failure to advance M’Naghten’s nature- and-consequences insanity theory. Even if we were to conclude that, because of his apparent lack of knowledge of this M’Naghten theory, Mr. Evans could not have made a reasonable decision not to pursue it, and thus his representation in this regard was constitutionally deficient, we would determine under Strickland’s second prong that Mr. Hooks did not suffer any prejudice from this deficient representation.
Giving appropriate consideration to the OCCA’s findings, the record would not have supported a jury verdict of insanity under the M’Naghten’s nature-and-consequences theory (which was apparently beyond Mr. Evans’s ken). In support of his claim, Mr. Hooks relies heavily on the testimony of Dr. Murphy. Among other things, Dr. Murphy apparently was prepared to testify that Mr. Hooks was “suffering from a severe chronic psychosis, which has a recurrent and episodic nature,” 3 Trial Tr. at 459, and that when he killed Ms. Blaine, “[h]e acted in the heat of passion in a delusional state,” id. at 463. However, in upholding the trial court’s exclusion of the guilt-stage testimony of Dr. Murphy, as well as Dr. King, the OCCA found:
Both doctors’ testimony significantly omitted an assessment of Hooks’ sanity, i.e., whether, at the time of the murder, he had the mental capacity to distin*1199 guish right from wrong or to understand the nature and consequences of his acts. Dr. Murphy testified Hooks was probably not in touch with reality when he murdered Ms. Blaine, but did not say whether Hooks could have distinguished right from wrong or appreciated the nature and consequences of his acts. Dr. King testified Hooks has a “tendency not to pay attention to consequences but just impulsively to act.” Choosing to ignore consequences is clearly different from being incapable of understanding those consequences.
Hooks v. State,
These factual findings of the OCCA are entitled to a presumption of correctness, rebuttable only by “clear and convincing evidence.” 28 U.S.C. § 2254(e)(1); see Hooks v. Ward,
With an insufficient factual foundation under M’Naghten’s nature-and-consequences theory, Mr. Hooks would not have been allowed to place “insanity evidence,” Aplt. Opening Br. at 81, supportive of this theory before the jury. Nor could a rational trier of fact possibly have concluded under this theory that Mr. Hooks was insane. Thus, even if Mr. Evans’s ignorance of the second half of the M’Naghten rule rendered his representation objectively unreasonable, Mr. Hooks has failed to establish that he was prejudiced.
b. Failure to secure Carol Hill as a witness
Mr. Hooks also alleges that his attorney was deficient for failing to secure Carol Hill as a witness. According to Mr. Hooks, Ms. Hill was a friend of his who would have testified favorably for him and undermined the damaging testimony of Shanna Dinh, one of the witnesses for the prosecution. Mr. Evans spoke with Ms. Hill on several occasions prior to trial and took detailed notes of their conversations. See Fed. Evid. Hr’g Tr. at 180-87 (Test, of Mr. Evans). Mr. Evans thought Ms. Hill was “very interested in his case,” and he expected her to testify. Id. at 187 (“She never expressed an unwillingness to come to court, to my memory.”). But when the time came, Ms. Hill did not appear. Mr. Evans “was surprised when she didn’t show up” and concedes he “should have subpoenaed her.” Id.
The district court found that Mr. Evans’s failure to subpoena Ms. Hill “was not professionally unreasonable” because “[t]here is no evidence that Evans knew, or should have known, that Hill would not be available to testify at the trial.” Hooks Habeas I, slip op. at 9. However, we plant our conclusion on different ground and hold that Mr. Hooks was not prejudiced by Ms. Hill’s absence.
When counsel’s failure to call or subpoena a witness can be traced to a reasoned strategic judgment, we generally find counsel’s performance reasonable under the first prong of Strickland. See, e.g., Bunton v. Atherton,
In Snow v. Sirmons, for example, we held that it was unreasonable for counsel to fail to call three witness, all of whom would have testified that a certain Mr. Allen, rather than the defendant, committed the murder in question.
When a witness is “crucial” to the defense, failure to secure that witness is often both unreasonable and prejudicial. This is especially true when the witness is an alibi witness or a disinterested bystander with exculpatory information, or when the government’s case rests primarily on eyewitness testimony that would have been directly refuted by the witness’s own testimony. See Hodgson v. Warren,
Based on our review of the record, we do not believe that Ms. Hill was a crucial witness or that there is a reasonable probability that her testimony would have altered the outcome of the trial. Although Mr. Hooks argues that her testimony would have “completely undermined” the testimony of Shanna Dinh, Aplt. Opening Br. at 83, we disagree. Admittedly, Ms. Dinh’s testimony on behalf of the prosecution was damaging to Mr. Hooks. She testified that she had a child with him, prostituted for him, turned over her welfare checks to him, and received beatings from him (one of which caused her to have a miscarriage). See 2 Trial Tr. at 410-15 (Test, of Ms. Dinh). She also testified that Mr. Hooks beat Ms. Blaine and did not want her to have his child. See id. at 416-20. In the main, this testimony concerned Ms. Dinh’s personal interactions with Mr. Hooks and her personal observations of his relationship with Ms. Blaine.
Ms. Dinh mentioned Ms. Hill a few times in her testimony. According to Ms. Dinh, Ms. Hill was one of Mr. Hooks’s girlfriends and prostituted for him, id. at 416-17, and also received beatings from him, id. at 417. By contrast, Ms. Hill apparently would have testified that she had a good relationship with Mr. Hooks, was not one of his girlfriends, did not receive beatings from him, and never saw him act violently toward Ms. Blaine. See Fed. Evid. Hr’g Tr. at 182, 184-85 (Test, of Mr. Evans). She also would have told the jury that Ms. Dinh was “a dirty little girl” and “want[ed] revenge on Victor.” Id. at 181-82 (internal quotation marks omitted).
Based upon this evidence, we would be hard-pressed to conclude that Ms. Hill would have undermined Ms. Dinh’s testimony and credibility in anything but minor
We therefore affirm the district court’s denial of habeas relief as to Mr. Hooks’s conviction.
2. Counsel’s Performance During the Sentencing Phase
While we entertain “a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance,” Matthews,
Counsel has a duty to conduct a “thorough investigation — in particular, of mental health evidence — in preparation for the sentencing phase of a capital trial.” Wilson,
First, the question is not whether counsel did something; counsel must conduct a full investigation and pursue reasonable leads when they become evident. Second, to determine what is reasonable investigation, courts must look first to the ABA guidelines, which serve as reference points for what is acceptable preparation for the mitigation phase of a capital case. Finally, because of the crucial mitigating role that evidence of a poor upbringing or mental health problems can have in the sentencing phase, defense counsel must pursue this avenue of investigation with due diligence. Our*1202 own Circuit has emphasized this guiding principle. In Smith v. Mullin,379 F.3d 919 , 942 (10th Cir.2004), we held that it was “patently unreasonable” for trial counsel to fail to present evidence of Smith’s borderline mental retardation, brain damage, and troubled childhood, and stated that this type of mitigating evidence “is exactly the sort of evidence that garners the most sympathy from jurors.”
Wilson,
If we find that counsel’s performance at sentencing was deficient, we must then analyze the prejudicial effect on Mr. Hooks’s defense. Prejudice means “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland,
Based on these principles, we find that counsel’s performance during the sentencing phase was woefully inadequate. Not only did he mount “an extraordinarily limited case in mitigation,” Anderson v. Sirmons,
a. Counsel’s mitigation case
The sentencing phase was brief. It began shortly after the guilt phase had concluded. The State sought the death penalty, positing three aggravating circumstances: (1) Mr. Hooks’s previous conviction for a felony involving the use or threat of violence, (2) the “especially heinous, atrocious or cruel” nature of the murder, and (3) the probability that Mr. Hooks constituted a continuing threat to society. 3 Trial Tr. at 501-02. The State successfully moved to incorporate all evidence presented during the guilt phase. Id. at 509. In addition, it called a single witness, Idabel, Oklahoma police officer Buck Ray, who testified that Mr. Hooks had been convicted on a charge of armed robbery of a liquor store in 1982. Id. at 507 (Test, of Mr. Ray). His testimony suggested that in the course of the robbery, Mr. Hooks had cut the store clerk’s hand with a knife. See id. at 508. The State then rested. Id. at 509.
Mr. Evans then called three witnesses: Mr. Hooks’s sister, Vargus Hooks; his mother, Clara Hooks; and Dr. Murphy. Vargus Hooks’s testimony fills little more than a page of the trial transcript. See id. at 511-12 (Test, of Vargus Hooks). After preliminaries, Mr. Evans asked Vargus just four questions: whether she would stay in contact with Mr. Hooks if the jury spared his life, whether she would visit him in prison, whether she and Mr. Hooks were close growing up, and whether she had stayed in touch with Victor over the past few years. Id. She answered affirmatively to all four questions then stepped down. Id.
Clara Hooks’s testimony was only slightly less brief. See id. at 512-14 (Test, of Clara Hooks). Mr. Evans asked her about a car accident in which Mr. Hooks was
Finally, Mr. Evans called Dr. Murphy, who testified about psychological examinations of Mr. Hooks that he had administered. Dr. Murphy opined that Mr. Hooks suffered “from a chronic form of psychosis, where he’s going to have recurrent repeated episodic breaks with his ability to tell reality from fantasy.” Id. at 518 (Test, of Dr. Murphy). He described Mr. Hooks as “violent,” id. at 522, and “crazy,” id. at 519, 530, and said he occasionally exhibited a “crazy grin” or “smirk” characteristic of psychotic patients, id. at 523. Dr. Murphy also detailed a number of psychotic and delusional symptoms that Mr. Hooks exhibited while spending time at a mental health facility in 1981 and 1982. Id. at 522-26. Dr. Murphy noted that these past mental-health problems were consistent with his own evaluation. Id. at 526-29. At the end of his testimony, Dr. Murphy opined that, given his diagnosis of chronic psychosis and Mr. Hooks’s detachment from reality, it was “difficult to imagine” that Mr. Hooks could, “in a fully rational, cold-blooded, premeditated fashion, ... have a plan to murder.” Id. at 529. On cross-examination, Dr. Murphy admitted that he had not read the police reports pertaining to Ms. Blaine’s murder, had not listened to Mr. Hooks’s tape-recorded confession, and had not seen any of the photographs in the case that depicted Ms. Blaine after her death. Id. at 531. He stated only that the photographs had been orally described to him by Mr. Evans. Id.
Following Dr. Murphy’s testimony, the defense rested its mitigation case. See id. at 536.
b. Counsel’s failures
Mr. Evans’s mitigation case failed to meet the standards we have set out for counsel in capital-sentencing proceedings. Indeed, -the presentation was sub-par in almost every relevant respect. Evidence of family and social history was sorely lacking; the mental-health evidence presented was inadequate and quite unsympathetic; and Mr. Evans not only failed to rebut the prosecution’s case in aggravation but actually bolstered it by his own statements.
Family and social history. The testimony by Mr. Hooks’s family members was perfunctory, to put it mildly. Mr. Evans made no attempt to educate the jury, through the testimony of Clara and Vargüs Hooks, on Mr. Hooks’s life circumstances and his.tragic, chaotic upbringing. Even the most minimal investigation would have uncovered a life story worth telling: a premature birth, an openly abusive father, frequent moves, educational handicaps, and personal family tragedies.
Mental-health evidence. While Dr. Murphy’s testimony may have helped the jury see that Mr. Hooks suffered from mental problems, it was troubling in a number of respects. First, throughout the testimony, Mr. Evans made little effort to connect Dr. Murphy’s diagnosis to the circumstances of the crime. The importance of counsel’s role in this regard cannot be overstated, as we have repeatedly recognized. Counsel in capital cases must explain to the jury why a defendant may have acted as he did — must connect the dots between, on the one hand, a defendant’s mental problems, life circumstances, and personal history and, on the other, his commission of the crime in question. See Fairchild,
Absent this explanation, Dr. Murphy’s testimony at several points actually worked in the State’s favor. See Anderson,
Even more importantly, Mr. Hooks’s premature birth, the head injury he suffered in an eighteen-wheeler accident, and the problems he experienced thereafter were clear markers for organic brain damage. See Alverson,
Responding to the prosecution’s case in aggravation. The State called Officer Ray to testify as to Mr. Hooks’s prior armed-robbery conviction, one of three aggravating circumstances presented by the prosecution. Even a cursory investigation into the circumstances surrounding this crime would have revealed a much less sordid tale than the one suggested in Officer Ray’s testimony. At a liquor store in 1982, Mr. Hooks took $35 from a cash
For his part, Mr. Evans bolstered the prosecution’s case in aggravation by effectively conceding the continuing-threat aggravator in his opening statement. As he prepared the jury to hear from Dr. Murphy, Mr. Evans noted:
Some of the things that Dr. Murphy will tell you will scare you about Victor, in all honesty. Some of the things that Victor will tell you will indicate to you that he’s a continuing threat to society.... Some of the things that Dr. Murphy will tell you will indicate that Victor is a continuing threat to society, which is one of the allegations against him.
3 Trial Tr. at 504-05. Subsequently, not only would the jury hear of Mr. Hooks’s armed-robbery conviction, unaccompanied by any description of its mitigating context; it would also hear from Dr. Murphy that Mr. Hooks was both “crazy” and “very, very violent.” Id. at 522, 530 (Test, of Dr. Murphy). We recognize that conceding a continuing-threat aggravator is not necessarily deficient performance and may even help build credibility with the jury. See Hooker v. Mullin,
Conclusion. With so much mitigating evidence available and so little of it unearthed by counsel, we are compelled to conclude that Mr. Hooks was denied constitutionally effective assistance of counsel and, thus, a fair sentencing. Counsel did not undertake the reasonable investigation that our decisions require. See Wilson,
These deficiencies were only punctuated by counsel’s failure to respond to the State’s case in aggravation. The State was able to present Mr. Hooks’s armed-robbery conviction as evidence of his dangerousness and tendency toward violence, but the jury never heard the rest of the story from Clara Hooks. Further, counsel’s effective concession that Mr. Hooks was a “continuing threat to society” was not grounded in any strategic calculus and was particularly damaging in light of the otherwise paltry mitigation case.
We conclude, moreover, that counsel’s unreasonable performance prejudiced Mr. Hooks within the meaning of Strickland. “There is no doubt that the ... murderf] in this case w[as] callous and brutal.” Id. at 1146. But in his painfully brief case for mitigation, Mr. Evans missed the opportunity to “humanize and explain,” to “individualize,” Mr. Hooks to the jury. Romano v. Gibson,
III. Conclusion
The statutory basis for the federal courts’ authority to grant the writ of habeas corpus authorizes us to “dispose of the matter as law and justice require.” 28 U.S.C. § 2243; accord Paxton v. Ward,
In Appeal No. 10-6076, we AFFIRM the judgment of the district court denying habeas relief as to claims arising out of Mr. Hooks’s Atkins trial. In Appeal No. 03-6049, we AFFIRM the judgment of the district court denying habeas relief as to Mr. Hooks’s 1989 conviction, but REVERSE the judgment of the district court denying habeas relief as to his sentence. We therefore grant the writ with respect to Mr. Hooks’s sentence, subject to the condition that the State of Oklahoma re-sentence him within a reasonable time.
Notes
. We take note of the following: In 2006, the American Association on Mental Retardation ("AAMR”) changed its name to the American Association on Intellectual and Developmental Disabilities ("AAIDD”). "Intellectual disability,” rather than "mental retardation,” is now the preferred terminology. See World's Oldest Organization on Intellectual Disability Has a Progressive New Name, Am. Ass’n on Intellectual & Developmental Disabilities (Nov. 2, 2006), available at http://www.aamr. org/content_1314.cfm. Also, recently enacted federal legislation known as Rosa's Law, Pub.L. No. 111-256, 124 Stat. 2643 (2010), mandates the use of the term "intellectual disability” in place of “mental retardation” in all federal enactments and regulations. Nonetheless, throughout this opinion, we employ the old terminology because the legal sources relevant to our analysis, including Oklahoma law, our own prior opinions, and the opinions of the Supreme Court, use the terms "mental retardation” and “mentally retarded.”
. This decision is attached in slip-opinion form to Mr. Hooks’s opening brief as Attachment 1. Citations herein are to the slip opinion.
. This decision is attached in slip-opinion form to Mr. Hooks’s opening brief as Attachment 5. Citations herein are to the slip opinion.
. The OCCA's decision in Murphy was a stopgap measure. The court adopted a judicial definition of mental retardation "only after the other branches of the government were unable to reach a meeting of the minds on the issue.” Murphy v. State,
. As the district court noted, ”[t]he only significant difference between Oklahoma’s definition and the [AAIDD] definition is that the [AAIDD] includes a tenth possible deficit in the area of leisure.” Hooks Habeas II,
For this reason, our "tailoring” of Jackson’s standard to meet the context of this case does not hold the OCCA to something other than clearly established federal law. Jackson’s rational-trier-of-fact standard is clearly established federal law. See Cavazos v. Smith, - U.S. -,
. In Maynard, we faced a closely analogous sufficiency-of-the-evidence challenge. In that case, the OCCA upheld a jury verdict finding the habeas applicant competent to stand trial.
We recognize that the unusual nature of Mr. Hooks's sufficiency challenge creates a semantic anomaly. In the typical case, a habeas applicant challenges the sufficiency of the evidence as to a question on which the other party — the prosecution — has the burden of proof at trial. The allegation is that the evidence was legally insufficient to meet the prosecution's burden. In a case like this, by contrast, the party challenging the verdict and the party that had the burden of proof at trial
. The nine IQ scores presented to the jury and the OCCA on appeal were as follows (identified by year, the type of IQ test, and the score): 1970 SB score of 80, 1972 WISC score of 70, 1978 WAIS score of 61, 1979 WAIS score of 57, 1982 BETA-II score of 61, 1988 WAIS score of 80, 1994 WAIS-R score of 72, 2002 K-BIT score of 76, and 2004 WAIS-III score of 53.
Mr. Hooks also points us to a WAIS-III score of 67, obtained in testing in 2006. However, because this evidence was not before the OCCA on direct appeal, we are barred from considering it. See Pinholster,
. As noted, Mr. Hooks also points to the additional IQ score of 67 obtained in 2006, but we do not consider it. See supra note 7.
. Throughout this opinion, we employ the abbreviation “[volume number] M.R. Tr.” to refer to a particular volume of the six-volume transcript of the Atkins trial.
. Some of the evidence that Mr. Hooks highlights in his opening brief was not before the OCCA. This includes statements by Pat Prater, a counselor at Oklahoma State Penitentiary; statements by Walanzo Robinson and Paris Powell, fellow prisoners of Mr. Hooks; and the supplemental report of Dr. Cowardin. See Aplt. Opening Br. at 35-37, 41-42. We are barred from considering this evidence. See Pinholster,
. There is a dispute over whether Mr. Hooks had help writing these letters. None of the letters mentioned that Mr. Hooks had received help until after the evidentiary hearing on his Atkins claim, where Dr. Gelbort testified that the relevance of the letters to the question of mental retardation depended on whether Mr. Hooks wrote them himself. Following Dr. Gelbort’s testimony, Mr. Hooks's next letter stated, "I'm having some help write [sic] this letter.” State’s Ex. 6 to M.R. There are two possible interpretations of this evidence. Under one interpretation, Mr. Hooks had in fact received writing assistance
. Before the district court, Mr. Hooks argued that he has adaptive behavioral limitations in four skill areas: communication, academics, health and safety, and self-direction. See Hooks Habeas II,
If we were to entertain the argument, however, it would not warrant a different result. As with communication and academics, a rational trier of fact could conclude, based on the record before it, that Mr. Hooks did not have significant limitations in health and safety and self-direction. In that regard, as our discussion of the record reveals, there was
. Throughout this opinion, we employ the abbreviation “[volume number] Trial Tr.” to refer to a particular volume of the three-volume transcript of the original trial.
. Mr. Hooks also points us to allegedly inconsistent statements by Ms. Dinh concerning whether Ms. Blaine worked for Mr. Hooks as a prostitute. Our independent review of the record reveals no inconsistency in this regard, so we do not address it further. Compare 2 Trial Tr. at 415-16 (Test, of Ms. Dinh) (stating that Mr. Hooks tried to persuade Ms. Blaine to work as a prostitute for him but "[s]he wouldn't”), with 4 M.R. Tr. at 222 (Test, of Ms. Dinh) (stating that Ms. Blaine engaged in prostitution "once and she didn't like it and whenever [Mr. Hooks] tried to make her do it again[,] she didn't do it”).
. To the extent that Mr. Hooks asks us to consider evidence not before the OCCA, we are precluded from doing so. See Pinholster,
. At one point, counsel asked Ms. Dinh to confirm her testimony suggesting that she had lived with Mr. Hooks "90 percent of the time” between 1984 and 1987. 4 M.R. Tr. at 217. When Ms. Dinh confirmed, counsel followed up by asking, "[W]ere you living with Mr. Hooks at the time you were in foster care?” Id. Ms. Dinh responded, "No, I was in foster care.” Id. Counsel then proceeded to a question about whether Ms. Dinh had gotten married in 1988. See id.
. In fact, in the interview, Mr. Hooks refers to Ms. Blaine in the present tense. See 5 M.R. Tr. at 166 ("She is 21 years of age.”); id. (answering "Yes, sir” to the question "And is your wife pregnant now?”).
. We wonder, too, whether the retroactive applicability of Atkins to cases on collateral
. Our decision in Danny Hooks v. Workman,
. We also take note of the OCCA's finding that “the record reflects that counsel is qualified and able to represent defendants in capital mental retardation proceedings.’’ Hooks Atkins Collateral, slip op. at 8. That finding is presumed correct under § 2254(e)(1), and Mr. Hooks has not rebutted it.
. We reiterate that there was nothing improper about the OCCA's tackling most of counsel’s alleged errors on prejudice, rather than performance, grounds.
. Mr. Hooks asserts that "[tjrial counsel admitted she did not review the letters prior to trial.” Aplt. Opening Br. at 71. Actually, counsel has stated that she did review the letters prior to trial, just not immediately pri- or. See R., Vol. 1, pt. 2 at 462 (“At the time of the evidentiary hearing, I had read [the letters] thoroughly. However, I failed to review them again before the trial.”).
. In its pre-Pinholster decision, the district court did consider all of the letters. However, it found that "the letter set out here and at the OCCA by Petitioner is the only one with any allegedly questionable language referring to the murder,” Hooks Habeas II,
. We note that there is a split in the circuits on whether the need to conduct a cumulative-error analysis is clearly established federal law under § 2254(d)(1). Compare Williams v. Anderson,
. The first portion of the M’Naghten rule discussed in the quoted passage above customarily is stated using the phrase “nature and quality,” when referring to a defendant’s understanding of his actions, whereas Oklahoma uses the phrase “nature and consequences.” However, the term "quality” and “consequences” are apparently intended to embrace the same concept, focusing on a defendant’s comprehension of the "harmfulness” of his actions. 22 C.J.S. Criminal Law § 103, at 134.
. Mr. Hooks disputes this, pointing out that insanity is judged at the time that one commits an offense, not afterwards. However, the actions one takes immediately after committing a crime are surely probative of one’s legal sanity at the time of the act. See Frederick v. State,
. Mr. Hooks does not articulate a separate cumulative-prejudice claim with respect to the alleged errors of trial counsel during the guilt phase. Cumulative error is a substantive claim just like any other and must be affirmatively raised by a party. See Smith,
. Mr. Hooks was bom premature and spent his first three months in a hospital. Fed. Evid. Hr’g at 10 (Test, of Clara Hooks). His childhood was traumatic and chaotic. His father was physically abusive toward both him and his mother, prone to binge-drinking, and often hauled away by police after abusive episodes. Id. at 11-15; id. at 45-46 (Test, of Victor Hooks). As a result of the abuse, Clara left her husband a number of times and moved to California, only to return home later. See id. at 16. She would take the chil
Mr. Hooks’s life was also shaped by personal tragedy. When he was a young teenager, his brother Michael, with whom he was close, was killed in a motorcycle accident. Id. at 9, 47-48. A few years later, Mr. Hooks and his father were in a severe car accident with an eighteen-wheeler. Id. at 28, 50-51. Mr. Hooks almost went through the front window and suffered a head injury. Id. Thereafter, he was unable to play sports and began to experience headaches, nightmares, and trouble sleeping. Id. Tragedy struck again in 1978 when his father died in a car accident. Id. at 16-17. A year later, Mr. Hooks saw his brother Evan come home, covered in blood, and pass out. Id. at 18-20. He had been shot, and both Mr. Hooks and his mother (mistakenly) thought Evan was dead. Id. at 19. At the federal evidentiaiy hearing, Clara described Mr. Hooks’s fear and panic as he pleaded with a comatose Evan to "please wake up.” Id. at 19 (internal quotation marks omitted). Thereafter, Mr. Hooks’s mental and emotional problems continued, and he suffered from depression. Id. at 21-22. Clara took him to see a psychiatrist, and he was later hospitalized. Id.
. On the record before us, it is not clear where the handgun came from. Clara Hooks testified that the handgun was under the cashier’s counter and that Mr. Hooks grabbed it when he swiped the $35. Fed. Evid. Hr’g Tr. at 32 (Test, of Clara Hooks). The Slate calls this "not credible,” although it offers no alternative explanation. Aplee. Br. at 80. This dispute has no bearing on our analysis. There is also a dispute about the source of the cut on the cashier’s hand in connection with the robbery. At trial, Officer Ray offered an elliptical account of the events, saying only that he saw the cashier's cut and the knife blade lying on the floor. 3 Trial Tr. at 508 (Test, of Mr. Ray). Mr. Hooks suggests that the knife was "laying on the counter” and the cut was an accident. Aplt. Opening Br. at 94. The State calls this “highly improbable.” Aplee. Br. at 80. Again, this dispute has no bearing on our analysis.
. The State suggests that Mr. Hooks’s confession to his mother would have been inadmissible hearsay at the sentencing proceeding under Olda. Stat. tit. 12, §§ 2801-2802. Section 2802 makes hearsay — an out-of-court statement "offered in evidence to prove the truth of the matter asserted,” id. § 2801(A)(3) — generally inadmissible, id. § 2802. We think Clara Hooks’s testimony as to her son's confession would have been admissible non-hearsay on at least two bases. First, it would have been admissible for the fact of confession, regardless of the truth or falsity of its constituent statements, in order to show Mr. Hooks’s remorse and to humanize him to the jury. Second, it would have been admissible to explain Clara’s reaction to the events, specifically her marching her son up to the Idabel police station to tell the chief of police what happened. See Dodd v. State,
. We recently reached a contrary conclusion in DeRosa v. Workman,
Concurrence Opinion
concurring in part and dissenting in part:
I agree with much more of the court’s very fine opinion than not, and I join all but its discussion whether Mr. Hooks enjoyed a constitutional right to counsel at his post-conviction Atkins proceeding, see Maj. Op. § II.C.5.a, and its holding that Mr. Hooks’s counsel was constitutionally ineffective at the sentencing phase of his original trial, see Maj. Op. § II.D.2.
I
On the first score, Mr. Hooks argues that he did not receive effective assistance from his appointed counsel at the post-conviction Atkins proceeding convened to determine whether he is mentally retarded. See Atkins v. Virginia,
But because I agree with this much, I would decline Mr. Hooks’s invitation to address the novel constitutional question whether a right to counsel exists in post-conviction Atkins proceedings, a question my colleagues take up in § II.C.5.a. I would decline to offer an opinion on this question because there is no need to do so and many reasons to hesitate.
Caution is always warranted when venturing down the road of deciding a weighty question of first impression and recognizing a previously unrecognized constitutional right. And surely caution must be doubly warranted when nothing turns on it. After all, “[a] fundamental and longstanding principle of judicial restraint requires that courts avoid reaching constitutional questions in advance of the necessity of deciding them.” Lyng v. Nw. Indian Cemetery Protective Assn.,
Adding caution to caution to my mind is the fact it’s not obvious an opinion on the question Mr. Hooks poses will ever be necessary. Today, Atkins challenges are routinely handled before or at trial with the constitutionally assured aid of counsel. Mr. Hooks’s Atkins claim was presented on collateral review only because Atkins issued after his conviction became final and Atkins represents what this court has called one of the “rare instances in which the Supreme Court has announced a new rule of constitutional law that it has also expressly made retroactively applicable to cases on collateral review.” Ochoa v. Sirmons,
Finally, my reluctance to reach the novel constitutional question is informed by the fact that it is pitted with problems. Those problems begin with the fact our approach to the question in this particular case comes by way of AEDPA, as my colleagues acknowledge. So the question before us isn’t “just” whether to recognize an entirely new constitutional right to counsel in post-conviction Atkins proceedings. It’s whether such a right is already “clearly established” by the holdings of the United States Supreme Court. 28 U.S.C. § 2254(d)(1).
And for his part, Mr. Hooks fails to explain how we might confidently say so much. After all, when it comes to post-conviction habeas proceedings, the Supreme Court’s teachings have been consistent, clear, and categorical — holding that a constitutional right to counsel does not exist. Murray v. Giarratano,
The difficulty here is Mr. Hooks doesn’t explain how this recharacterization process is clearly compelled by Supreme Court precedent. In deciding whether to apply a new constitutional rule retroactively, the Supreme Court has always spoken of the question as whether the new rule should apply “to cases on collateral review.” See, e.g., Teague v. Lane,
This leaves Mr. Hooks to reply only that, if the Sixth Amendment doesn’t clearly compel counsel, the Due Process Clause might. But here again unexplained complications soon emerge. The Due Process Clause applies to all kinds of proceedings — including other post-conviction proceedings, see, e.g., Dist. Attorney’s Office for the Third Judicial Dist. v. Osborne,
In raising these concerns, I hardly mean to suggest that competent counsel shouldn’t be provided in the lingering cases where Atkins is enforced through collateral proceedings. Indeed, counsel in these circumstances clearly serve a critical function, and the State of Oklahoma recognized as much by providing Mr. Hooks with a lawyer in his Atkins proceeding. A lawyer who, this court acknowledges, met every standard the Constitution might conceivably command even in a pre-conviction setting. See Murray,
II
My other point of departure from the court’s thorough opinion is its conclusion that Mr. Hooks’s trial counsel was constitutionally ineffective at the sentencing phase of his original trial. See Maj. Op. § II.D.2. As my colleagues observe, our review on this question is de novo because the state courts never passed on its merits. Even so, I agree with the district court’s assessment that counsel’s alleged deficiencies did not prejudice Mr. Hooks. Like the district court, I would hold that there is no “reasonable probability” that, had counsel acted just as Mr. Hooks now wishes, the jury “would have concluded that the balance of aggravating and mitigating circumstances did not warrant death.” Strickland v. Washington,
Mr. Hooks first complains that counsel failed to produce certain evidence about his family history. But that history is a mixed bag for him. Mr. Hooks says, for example, that the jury should have learned his father abused him. But the evidence of abuse is based on testimony that Mr. Hooks’s father disciplined him by spanking him with a belt and, on one occasion, when Mr. Hooks was talking while his father was attempting to say grace before a meal, his father smacked him very hard in the mouth. Fed. Evid. Hr’g at 14-15. According to Mr. Hooks himself, for the most part he had a “great” relationship with his father and “liked to be around him.” Id. at 44, 47. And Mr. Hooks’s mother remembered her husband generally as a “wonderful person” and “excellent provider.” Id. at 11. Mr. Hooks separately but relatedly complains that the jury didn’t hear about his premature birth, his father’s death in a car crash and his half-brother’s death in a motorcycle accident, his father’s abuse of his mother, or his family’s frequent moves and the difficulty he had in school. But these difficulties, too, while no doubt very real, are a far cry from the sort of “nightmarish” personal histories that courts have faulted counsel for failing to illuminate at trial. Williams v. Taylor,
Given the comparatively equivocal nature of the unproduced evidence in this case, it is hard to see how it would have mitigated for anyone on the jury the fact Mr. Hooks brutally beat his pregnant wife to death over the course of approximately two hours, leaving her body barely recognizable and his unborn child dead. Or how it would have offset the other aggravating evidence that Mr. Hooks previously robbed a liquor store and routinely beat his wife and two other girlfriends, causing (another) one of them to have a miscarriage. Much more likely, any attempt to blame Mr. Hooks’s crimes on his surely imperfect but not particularly unusual childhood would have done him more harm than good with the jury.
The same sort of problem recurs with all the other facts Mr. Hooks now says his lawyer should have presented.
After the prosecution presented aggravating evidence about his liquor store robbery, Mr. Hooks says his trial counsel should have introduced evidence that he (Mr. Hooks) confessed the crime to his mother, who then forced him to turn himself in. But none of this undermines the fact that Mr. Hooks committed the robbery, or suggests he would have confessed without his mother’s influence. And much of the other testimony that Mr. Hooks claims his mother could have provided about the robbery — that Mr. Hooks didn’t bring any gun to the robbery but found one in the store and took it home, and that the clerk cut her hand “accidentally” when Mr. Hooks knocked a knife lying on the counter onto the floor — would have been inadmissible hearsay, and some of it of questionable credibility at that.
When it comes to the mitigating evidence about his mental health, Mr. Hooks faults his counsel for calling Dr. Murphy to testify that he suffered from severe mental illnesses instead of another psychologist who would have diagnosed organic brain damage. It’s doubtful, however, if this amounted even to deficient performance, given that it appears Dr. Murphy was virtually the only available psychiatrist willing to testify. Fed. Evid. Hr’g at 175. But even assuming the performance here was deficient, it’s still hard to see how a diagnosis of organic brain damage would have been materially more helpful than the mental health evidence Dr. Murphy offered. Dr. Murphy testified, after all, that Mr. Hooks was “borderline mentally retarded” and that he suffers from a chronic psychotic disorder. 3 Trial Tr. at 518-22, 528. The doctor explained that this disorder causes Mr. Hooks to have “recurrent repeated episodic breaks with his ability to tell reality from fantasy.” Id. at 518, 521-22. Dr. Murphy then expressly proceeded to “connect the dots” between this mental illness and Mr. Hooks’s murder. He testified that, given Mr. Hooks’s chronic psychotic disorder, it was very unlikely Mr. Hooks could have murdered Ms. Blaine “in a fully rational, cold-blooded, premeditated fashion.” Id. at 529. And he suggested that, at the time of the murder, Mr. Hooks must have been in a “catatonic” and “extremely regressive state” which caused him to have poor impulse control and left him less than competent. Id. In light of all this, it’s hard to see how Mr. Hooks might have been aided significantly by a diagnosis of organic brain damage. In fact, testimony along those lines would
Mr. Hooks separately asserts that Dr. Murphy’s testimony was ineffectual because the doctor “knew almost nothing about Mr. Hooks’s case.” Maj. Op. at 1204. But while Dr. Murphy admitted that he had not read the police reports or viewed Mr. Hooks’s videotaped confession, these are hardly the only ways of learning about Mr. Hooks’s crime. In fact, Dr. Murphy’s testimony reflects that he discussed the crime both with Mr. Hooks and with trial counsel and knew all the pertinent details. 3 Trial Tr. at 458-59, 527, 531. Similarly, Mr. Hooks complains that Dr. Murphy’s testimony was undercut by his statements that Mr. Hooks would, at times, become “crazy” and “violent.” But Mr. Hooks was undeniably “very, very violent” when he beat his wife to death, and it was a perfectly reasonable — even a wise— mitigation strategy to have Dr. Murphy admit this fact and argue the behavior was attributable to Mr. Hooks’s mental illness and incompetence rather than a product of deliberation.
Much the same holds true with his counsel’s acknowledgment during the sentencing phase that Mr. Hooks was a dangerous person. Mr. Hooks complains that his counsel shouldn’t have admitted as much. But counsel has explained that it was his strategy to make this admission in an attempt “to build some credibility with the jury,” Fed. Evid. Hr’g at 194, and Mr. Hooks has failed to overcome the “strong presumption” that this strategy was reasonable. See Strickland v. Washington,
These are all the alleged deficiencies of trial counsel Mr. Hooks cites in his effort to overturn his death sentence. There are no more. Respectfully, I agree with the district court that they are not sufficient to warrant displacing the jury’s considered
. In Martinez v. Ryan, - U.S. -,