Hooper v. Gibson

(3rd F.3d Cir.1993) (noting special

concerns about bench trials considering

judicial disqualification). Thus, Section compels vacation the judgment

this case.

CONCLUSION

Because acted Jackson as a lawyer in proceeding before Judge Molloy, Sec- 455(b)(5)(ii)

tion required his disqualifica- Judge

tion. Molloy was unaware of the

need to disqualify himself because of

Hoyt’s and Jackson’s materially misleading

affidavits and Timberline’s failure to bring

the relevant documents to his attention.

Now that all the facts have come to light,

however, we conclude Judge Molloy

was mandatorily disqualified under Section

455(b)(5)(ii). Accordingly, the district judgment

court’s is VACATED and this

case is REMANDED for a new trial be-

fore a different district judge.

VACATED AND REMANDED.

Michael HOOPER, Edward Petitioner-

Appellant-Cross-Appellee,

Mike MULLIN,* Warden, Oklahoma

State Penitentiary, Respondent-

Appellee-Cross-Appellant. 01-6238,

Nos. 01-6242.

United States Court of Appeals,

Tenth Circuit.

Dec. 2002.

* replaced Mike Mullin Gary Gibson as Warden March Oklahoma State Penitentiary effective (Lanita Henricksen L. Henricksen

Mark brief), & Henricksen him on with Reno, OK, Inc., El Lawyers, Henricksen Petitioner-Appellanh-Cross-Appellee. for Attorney Whittaker, Assistant L. Robert Edmondson, Attorney (W.A. Drew General Oklahoma, him on General OK, Respon- brief), City, Oklahoma denb-Appellee-Cross-Appellant. BALDOCK, SEYMOUR, and Before KELLY, Judges. Circuit BALDOCK, Judge. Circuit jury convicted An Oklahoma on three counts Hooper Edward Michael shooting in the murder degree of first former twenty-three-year-old his deaths two Jarman, and her Cynthia girlfriend, Timmy and Kay Jarman children, Tonya the death imposed Jarman. Glen The Oklahoma count. for each sentence Peti- affirmed Appeals of Criminal Court direct on sentences convictions tioner’s relief. post-conviction and denied appeal (Okla. State, 947 P.2d Hooper v. State, P.2d Hooper v. Crim.App.1997); denied, 524 cert. (Okla.Crim.App.), 2353, 141 L.Ed.2d 943, 118 S.Ct. U.S. review, dis the federal habeas On from relief granted court trict concluding de- after sentences his death fense representation during the Stremlow’s truck was found burning in a capital sentencing proceeding was constitu- field. The truck’s windows were broken tionally ineffective. See 28 U.S.C. § 2254. out. An accelerant had been used to set denied relief numerous other the truck on fire. claims in which Petitioner challenged both On December a police farmer and his convictions sentences. Peti- officers discovered the bodies of Jarman appealed tioner the district court’s denial and her two children buried 'in a shallow of habeas relief on his remaining claims. grave in another field. At grave site, The State cross-appealed the district police found broken glass, tracks, tire court’s grant of habeas relief from the footprint, shell casings, a child’s bloody death sentences. The district court grant- sock, a pool of blood near a tree with a ed certificate appealability as to three freshly broken branch. top On of the of Petitioner’s claims. This Court granted grave, police found a tree branch in which a COA as two additional claims.2 We a nine millimeter bullet was embedded. jurisdiction have pursuant to 28 U.S.C. The bullet pinned white fibers to the § 1291 § and 28 U.S.C. 2253. We affirm. branch. The fibers were consistent with the white fibers in Tonya jacket. Jarman’s I. jacket a had charred hole in the hood. Petitioner met Cynthia Jarman early in The branch appeared to have been broken 1992, they and dated through summer off of a tree near the pool of blood. Each of 1993. Their relationship was physically victim had suffered gunshot two wounds to violent, and Petitioner threatened to kill the face or head. Although investigators Jarman on several occasions. July In never bullets, recovered the the wounds 1993, Jarman began dating Petitioner’s were consistent with nine millimeter am- friend, Bill In November, Stremlow. three munition. weeks murders, before the Jarman began living with Police Stremlow. arrested Before moving in Petitioner and searched with Stremlow, parents’ Jarman confided in home. police a recovered friend that Petitioner nine had previously millimeter weapon Petitioner had pur- threatened kill her if she ever lived chased with several prior months to the mur- another man. ders. Police also recovered two shovels with soil consistent with 6, On soil from December Jarman confided site, grave gas cans, two in and friend broken glass that she wanted see Petition- consistent glass er with one last time. found in Tonya’s On the coat morning of De- and gate cember near the Jarman at the dropped field. Police Stremlow off at work officers and borrowed seized his truck for the Petitioner’s tennis rest of day. shoes. Jarman The shoes picked prints made up her similar to daughter, Tonya, at those school found at that scene, afternoon. the murder and DNA At time, Tonya’s teacher tests saw Tonya revealed the presence of blood con- get into Stremlow’s truck next to a sistent Cynthia white with Jarman’s blood on the man who was not Stremlow. Jarman shoes. At trial, a expert ballistics testified failed to pick up Stremlow from work that that shell casings from the crime scene evening planned. as Later that night, matched casings fired from Petitioner’s 2. Because Petitioner appeal filed his after the granted. been 2253(c)(1). § U.S.C. A effective date of the Antiterrorism and Effec- required COA not is for the repre- State or its tive Penalty Death (AEDPA), ofAct we sentative to appeal a district court order address claims for which a COA has granting relief. R.App. 22(b)(3). Fed. P. pro State presented testified wife former weapon. 2254(d)(1), We § 28 U.S.C. ceeding.” the field with was familiar Petitioner findings are found, that he court factual state presume and were the bodies where peti her on on correct, the burden the field with and place visited had previously with clear presumption to rebut occasions. tioner several 2254(e)(1). § Id. convincing evidence. and evidence, jury con- Based a claim not decide state courts If the first counts of three Petitioner victed procedur claim is not merits and on its sen- capital During degree murder. court’s barred, the district review we ally ag- two jury found tencing proceeding, its factual de novo conclusions legal respect with existed factors gravating v. Mul Hooker error. for (1) findings clear had creat- Petitioner victims: all three Cir.2002). lin, one than to more of death great risk ed a (2) a continu- person, Additionally, A. society. threat

ing factor ex- aggravating third found a jury at- his two defense contends Peti- Tonya Jarman: respect to isted Lee, and Mitchell Krogh Richard torneys, to avoid the murder had committed tioner their constitutionally ineffective murder for the prosecution arrest evi- psychological use development considering Peti- After Jarman. Cynthia sentencing pro- capital during dence evidence, im- mitigating tioner’s of Crimi- Court Oklahoma ceeding. The each count. sentence the death posed Strickland, (OCCA), applying Appeals nal (1) ef- denied he was asserts but prejudicial, actions found counsels’ during sen- of counsel assistance fective dem- not Petitioner had determined prej- (2) misconduct prosecutorial tencing; based on performance deficient onstrated both jury’s deliberations udiced record. OCCA in the facts contained (3) his consti- stages; sentencing and guilt an eviden- request Petitioner’s denied by the State were violated rights tutional review, On habeas hearing. tiary impact state- victim of admission Court’s Petitioner agreed court district federal assis- (4) ments; effective denied he an evi- granted and prejudice established stage of during guilt of counsel tance the issue limited to hearing dentiary (5) of er- trial; the accumulation and his Af- sentencing. performance counsel’s proceed- infected the so in this case rors district hearing, evidentiary ter deprived he was unfairness ings with consti- found court sentencing. trial and reliable fair and of a Petition- deficient, granted tutionally sentences. his death from relief er II. portion cross-appeals Government Effective Antiterrorism Under order. court’s the district (AEDPA), aif Act of Penalty Death in state its merits adjudicated on is claim to federal entitled court, is petitioner murders, Petitioner Jarman Prior to the if he can establish relief habeas counseling. management anger received to, or contrary “was decision state of counsel- months after six April In of, application unreasonable an involved Ph.D., Adams, gave Petitioner ing, Russell law, as deter- Federal clearly established diag- tests neuropsychological several the United Court by Supreme mined and to disabilities learning possible nose an unreasonable States,” “was based and edu- career making in assist light of the facts in determination plans. cational According to Dr. Adams’ counsel agreed Dr. Murphy would not tes- report, cognitive functioning tify. But later day, the defense sub- was “largely adequate” and his intelligence poenaed him to testify the following morn- average, but his difficulty spelling might ing. be evidence of a learning disability. The During an in camera hearing, counsel tests also indicated that Petitioner had explained that they Dr. wanted Murphy to some emotional and psychological prob- authenticate report his they so could admit lems, and that he difficulty had controlling into evidence both his report, and the re- anger coping everyday with prob- port of Dr. Adams’ on which he relied. lems. The report noted that Petitioner’s Defense requested permission to ability to remain controlled stressful treat Dr. Murphy as a hostile witness in situations was “greatly improved.” light of the hostility extreme Dr. Murphy In August defense counsel re- directed toward defense counsel and court tained a psychologist, Philip Ph. Murphy, personnel. Counsel also admitted they D., to review Dr. report. Adams’ Based were afraid of what Dr. Murphy might say solely on Dr. findings, Adams’ Dr. Murphy on the witness stand. Defense counsel prepared a one-page summary report. In never spoke with either Dr. Murphy or Dr. his report, Dr. Murphy indicated there was Adams about reports prior to the sen- evidence of “mild but probable brain dam- tencing phase. age” that could increase the likelihood of During the capital sentencing proceed- violence, especially if Petitioner was under ing, Dr. Murphy identified both reports the influence of alcohol or other sub- and the trial judge admitted addition, stances. In each into Dr. Murphy noted evidence. Dr. Murphy jurors told might he suffer from á “serious- put not psychiatric “enormous stock” in thought his conclu- disorder.” Petitioner sions had a because he did psychological “profile personally evalu- often ... asso- ate ciated Petitioner. He psychotic further behavior ... testified that [and] Adams, definite Dr. having difficulties with interpersonal evaluated rela- person, tionships.” Dr. Murphy would qualified be in the position his “im- best to pressions” by noting address that both whether “possible Petitioner had brain dam- require disorders age. diagnostic further The State then inves- called Adams in Dr. tigation to confirm.” rebuttal. Contrary to Dr. Murphy’s limit- assertions, ed Dr. Adams testified Petition- Dr. Murphy sent this report to defense er had a mild learning disability, but no counsel in December .. 1994. He did not brain damage. In addition, Dr. hear Adams from defense again until June that, asserted although Petitioner after had jury the found guilty some psychological problems, of prob- those murdering Jarman and her two chil- lems would not cause dren. him That to lose afternoon, touch trial counsel Lee with reality or make called him incapable Dr. Murphy to of con- request his testimo- trolling himself ny at or anger. the his capital Dr. sentencing Adams proceeding found special “no problems.” scheduled for the following day. Dr. Mur- phy informed counsel he ethically could

not testify because he had never personal- 2. ly evaluated Petitioner. He also informed To succeed on an ineffective assis counsel that he what say could claim, about Peti- tance Petitioner must establish both tioner likely would be aggravating rather that his attorneys’ representation was defi than mitigating. On phone, the defense cient and that this performance deficient questions “serious had raised v. titioner Strickland See his defense. prejudiced call Dr. decisions to counsel’s trial 668, 687, about 104 S.Ct. 466 U.S. Washington, re- the two medical admit (1984). Murphy and “The bench- L.Ed.2d counsel’s found trial the OCCA ports,” ineffective- of any claim judging for mark constitutionally defi- not so conduct counsel’s be whether ness must had that Petitioner the court noted functioning of cient. proper undermined pre- for reasons why be trial cannot shown not process adversarial evidence, or for just result.” senting psychological having produced on as relied Dr. Murphy ultimate Dr. speak with “[T]he 2052. failing 104 S.Ct. Id. at reports, fundamen- amounted on the regarding be Adams inquiry must of focus relief, denying In Id. assistance. proceeding.” ineffective of tal fairness however, AEDPA, request further also denied the OCCA 104 S.Ct. which hearing during review. See Bell evidentiary our habeas an circumscribes 1843, 1852, 685, 122 and chal- Cone, explored S.Ct. have could 535 U.S. Because prej- reasons for L.Ed.2d 914 trial counsel’s lenged law, federal the correct applied and omissions. OCCA acts udicial relief on Strickland, deny Petitioner review, the federal On habeas whether claim, consider we applica found the OCCA’s district reasonable objectively in an did so OCCA objectively unreason of Strickland tion 2254(d)(1); § see U.S.C. manner. record, agree we with light In able. Cone, at 1852. recognize “[t]here court. We the district relief, denying Petitioner In as effective ways provide countless are preju Strickland’s first addressed OCCA “[e]ven case” any given sistance use of this finding counsel’s inquiry, dice not attorneys would criminal defense best Petition prejudiced evidence psychological in the same client particular defend Dr. Neither agree. defense. We er’s 689, 104 2052. Accord S.Ct. way.” Id. any miti offered nor Adams Murphy Dr. inves whether counsels’ we consider ingly, testi their combined gating the psycholog presentation tigation de for Petitioner’s disastrous mony was capital during Petitioner’s ical evidence unchallenged left fense. the result proceeding sentencing not suf expert opinions that rather than strategy, trial reasonable particular no damage, had brain fer from erro or otherwise “neglectful” product and that temper, controlling his trouble v. Gib Sallahdin representation. neous have affected disability would learning Cir.2002). 1211, 1240 son, 275 F.3d ability to rea for violence capacity perfor so, counsel’s review doing In we circumstances. adverse son in consider We deference. great mance circumstances, every making effort all the ap in this issue The determinative of hind distorting effects to “eliminate the Strick applied the OCCA whether peal is from conduct to “evaluate sight,” and manner reasonable objectively in an land Strick the time.” at perspective counsel’s not establish concluding Petitioner 689, S.Ct. 2052. land, 104 466 U.S. constitutionally was counsels’ presump overcome “must determined the OCCA Although deficient. circumstances, that, under tion Murphy and Adams Drs. testimony of be considered might challenged action Petitioner,” that coun “was disastrous “the mere But Id. strategy.” trial sound prior Dr. Adams failure to talk sel’s insulate does not ‘strategy’ incantation “inexplicable” was testimony his trial Fisher review.” from attorney behavior that Pe- “overwhelmingly prejudicial,” Gibson, 1283, 282 F.3d Cir. of such an evaluation would be more harm- 2002). We must consider whether ful than helpful because a compre- more strategy objectively reasonable. See hensive might examination establish con- 1305; id. at Flores-Ortega, Roe v. 528 U.S. clusively that Petitioner did not suffer 470, 481, 1029, 145 L.Ed.2d 985 from brain damage. that, Lee reasoned (2000).3 by instead relying on Dr. Murphy’s report suggesting might have Defense counsel’s penalty-stage brain damage, the defense could still argue strategy present was to suggest that possibility in mitigation. He testified ing might have brain damage that he thought Dr. Murphy’s one-page which could have produced violent conduct. report going “was to be good as as it was Counsel also argued Petitioner’s frustra going to but get,” acknowledged that fur- tion with his mental limitations resulted in ther psychological testing could pro- have eruption violent culminating in the mur vided mitigating evidence.4 der of his former girlfriend and her two children. “[Sjtrategic choices made after Defense counsel’s strategic decision was thorough investigation of law and facts not based on a “thorough investigation of plausible relevant options are virtually law and facts plausible relevant op- unchallengeable.” Strickland, 466 U.S. at Strickland, tions.” 466 U.S. at Here, however, 104 S.Ct. 2052. de S.Ct. 2052. “Strategic choices made after fense counsel deliberately pursued this less than complete investigation are rea- strategy without conducting a in thorough sonable precisely to the extent that rea- vestigation. sonable professional judgments support

Mr. Lee testified at the federal eviden- limitations on investigation.” Id. at tiary hearing 690-91, that he intentionally did not 104 S.Ct. 2052. Under specif- have Murphy Dr. further evaluate Peti- ic case, facts of this counsel’s judgment tioner. Lee he claimed feared the result was not objectively reasonable.5 “A deci- 3.The suggests dissent trial counsel's making While explicit an credibility strategy cannot be deemed objectively unrea- finding, the district questioned lead sonable, deficient, and thus "no unless com- testimony strategy: "Upon about re- petent preceded counsel would have way case, flection of the record in ques- did,” Hooper's Cone, Mr. citing counsel tions by parties, asked and the Court's Carver, S.Ct. and Bullock v. observations of Mr. Lee's demeanor at the (10th Cir.2002). Neither Cone evidentiary hearing, the Court is not con- nor Bullock stand proposition for the by cited vinced Mr. Lee’s answers on cross-examina- the dissent. Cone reiterates Strickland’s tion regarding his 'tactical decision' to not strong presumption that counsel's conduct investigate pursue psychological further reasonable, but does any not contain testing opinions were his at the time of Peti- no-competent-counsel reference to the stan- tioner’s trial.” dard. quoted language appears in Bull- parenthetical ock in a to an Eleventh Circuit 5. We specifically do not address under what case no-competent citation. The counsel lan- circumstances constitutionally competent guage clearly in Bullock is dicta as Bullock psychological must seek evaluation of applies the objectively Strickland reasonable capital a case, defendant. In this defense reaching standard in holding. its AEDPA specifically counsel chose a strategy defense mandates this court to consider whether the required that presentation psychological of applied OCCA clearly Supreme established mitigation. evidence in Having made that precedent. Court objectively Strickland’s decision, strategic rea- presentation counsel’s of sonable standard clearly is the established evidence without investigation further and in Supreme precedent Court for ineffective assis- an unprepared ill-informed and manner re- claims, tance not ''no-competent-counsel” sulted in constitutionally ineffective assis- standard. tance.

1171 transcript revealed trial things, be deemed cannot investigate to not sion ex- counsel’s] Fisher, [defense “throughout most uninformed.” it is if reasonable idea ... he had no Strickland, of witnesses amination 466 (citing at F.3d ques- his receive to he what would answers 2052); also Bat see 104 S.Ct. at U.S. result, ques- tions;” counsel’s a defense as 1215, 1229 Gibson, F.3d tenfield “essentially petitioner’s undermined” tions Cir.2001) counsel’s (holding defense defense). not to undertake A “decision any result investigate rendered to failure in- investigation pretrial substantial unreasonable). de Although strategy ing during the the case ‘investigate’ to stead investigation further feared counsel fense uninformed, patent- it [i]s trial not [i]s to arguing might prevent Fisher, at F.3d ly unreasonable.” Lee damage, have brain might Petitioner no idea what that he had also admitted Lee was reveal. testing might

additional not addition, defense did although the In includ background, Petitioner’s aware of mitigation Adams as a call Dr. intend to early age, at an abduction Petitioner’s ing fore- witness, have counsel should defense vis and several attempts, suicide previous use him re- might the State seen that which professionals, health its to mental relied specifically the defense after buttal psycho had suggested strongly Had mitigating evidence. report as on his report Murphy’s Dr. problems. Dr. logical testimony, this not offered counsel from suffered suggested privi- remained would have report Adams spe report problems. psychological inadmissible. leged and diagnostic further cifically recommended case, conclude this we the facts Under investigation. un- objectively an counsel made defense chose specifically Dr. Mur- rely Defense counsel decision reasonable evidence, possi- Dr. mitigating testimony Murphy’s as and Dr. present, phy’s have brain might inves- adequately that Petitioner without bility reports, Adams’ Further, problems. defense psychological and other that evidence.6 damage tigating decision, in an un- how- this evidence strategic presented Having made counsel uninformed, presented then and disastrous ever, counsel prepared, reasons, agree investi- we further any For these without this evidence manner. that Peti- and ill-informed federal district unprepared with the an gation, result, attorneys’ counsel’s defense defense tioner’s manner. As and, thus, and Adams unreasonable Murphy objectively Drs. examination OCCA’s constitutionally never deficient. Defense counsel disastrous. objec- an constitutes contrary conclusion Dr. Adams Murphy Dr. to either spoke of Strick- application unreasonable tively what these no idea and had to trial prior the district affirm We therefore witness stand. land. say on the would experts habeas granting decision Fisher, (grant- court’s See sentences.7 his death relief from where, other among habeas relief ing decision strategic choice. The uninformed defense asserts that 6. The dissent by coun- was influenced present the evidence be cannot present this evidence decision prepara- investigation inadequate sel's "so does not the decision because deficient tion, strategic by considerations. rather than not outweigh! the alternative of clearly ]” an would be That evidence. presenting the claim, we need our resolution making 7. Given inquiry if appropriate remaining claims address Petitioner’s plausi- several choice between fully informed at sentenc- effectiveness challenging counsel's Cone, 1853- alternatives. ble Fisher, See, F.3d at 1289-90. e.g., 282 however, ing. Here, an made Defense 54. 1172

B. went the beyond ment evidence admitted at trial. asserts the prosecu Petitioner also closing argument, during tor’s both the and The OCCA the district court im guilt penalty stages, trial’s and these held remarks were reasonable infer (1) proper prosecutor because the misstat agree. ences drawn from the record. We by Tonya escaped ed arguing the evidence prosecutor presented The evidence that coldly and her down Petitioner chased and police pool located a of blood some dis (2) face; shot the the prosecutor her in tance from the tire and tracks broken impermissibly sympathy solicited for the glass, grave. and a short distance from the by elaborating theory;

victims on this jacket with Tonya’s Fibers consistent were (3) comments, prosecutor’s when com near pool found blood. DNA ex bined with victim impact testimony, perts could Tonya Cynthia not exclude egregious so that Petitioner is entitled to as the source of the blood. Police found a any preju showing relief without further spent casing matching the bullets in Peti challenged dice.8 Because these remarks gun pool tioner’s near the A blood. do implicate specific constitutional on top grave branch of the was embedded right, is entitled habeas relief with a bullet fired from gun. Petitioner’s only if can prosecu he establish pinned embedded bullet had fibers argument, light tor’s in viewed of the trial Tonya’s with jacket consistent into the whole, as a a fundamentally resulted in Tonya’s branch. coat a hole in had unfair proceeding. Donnelly v. De hood which appeared by to be caused a hot 637, 643, 645, Christoforo, 416 U.S. 94 object going through it. This evidence 1868, (1974); S.Ct. 40 431 L.Ed.2d Neill v. Cir.2001),collectively supported the (10th prosecutor’s ar Gibson, 1044, F.3d 278 1058 — gument. The denied, -, prosecutor properly may rt. U.S. 123 ce 145, 154 S.Ct. comment on the L.Ed.2d 54 circumstances of the crime made known during trial. During guilt-stage argu closing Ward, 1302, See Fowler v. 200 F.3d 1312 ment, argued prosecutor that when (10th Cir.2000), overruled on other Cynthia Petitioner shot and Timmy Jar- McDaniel, grounds by Slack v. 529 U.S. man, Tonya escaped Jarman from the 473, 1595, 146 L.Ed.2d 542 truck fled. prosecutor asserted (2000); also, Gibson, Clayton see v. Tonya, chased firing a shot (10th Cir.1999); F.3d Moore v. pierced jack missed child but her Gibson, (10th 195 F.3d Cir. hood, her, catching et then shot her 1999). The prosecutor possesses rea twice in the face and head. The prosecu sonable latitude drawing inferences Tonya tor also asserted that “was left from the Reynolds, record. See Duvall die in the there woods while her blood was Cir.1998); Moore, 139 F.3d spilling ground.” onto ar gues F.3d at eyewitnesses prosecutor’s that because no 1172. The argu ob murders, served prosecutor’s argu- evidence, ment was a fair comment on the dence, Although we affirm the district order second-stage court's another claim we also granting See, Petitioner habeas relief from e.g., Battenfield, must address. sentences, death we address chal- (addressing propriety 1235-36 lenges prosecutor’s to the remarks dur- made prosecutor’s second-stage argument, despite ing capital sentencing proceeding. This granting petitioner habeas relief from his may again during resentencing issue arise attorney’s repre- death sentence because his and, event, any is intertwined Peti- deficient). sentation was constitutionally challenge tioner's victim-impact to the evi- to die girl that little and left this shot then on the district we affirm and spill- with her blood in the woods alone issue. ground. the ing onto prose the argues next challenges prosecutor’s the sympathy solicited improperly cutor why this understand “[t]o that statements second-stage clos During the victims. the young, two innocent murdered Defendant more argued prosecutor the argument, ing depth of his fully is to realize the children Tonya that in detail dramatically more and cold, evil his stone ruthlessness behind her down hunted escaped and Petitioner may never be able and of us eyes,” “[s]ome prosecutor her. The callously shot and pho- of the haunting images escape to the stated: and Tim- Tonya and tographs Cynthia of get managed Tonya point, At some did what this Defendant which show my, The mo- woods. flee into the away and in doing the capable he’s and what and truck from that Tonya stepped ment future.” woods, worst everyone’s for the headed you If true for her. came

nightmare ... “expanded this The held that OCCA the back, us had many of children think solicitation improper argument approaches to, the referring I’m that nightmare victim, it is based but sympathy for something running from nightmare therefore, and, presented” the evidence on As away from. get you cannot that The district court warrant relief. did not in children, in dreams many of us those decision was reasonable. held OCCA’s by chased being nightmares those 2254(d). Although agree. § We 28 U.S.C. Jarman, that on Tonya monster. an evil improper, remarks were prosecutors a real- become nightmare this night, had of the trial light in argument, viewed chased being was ity for her. She whole, fundamen- result not as a monster by an the woods evil through facts of tally proceeding. unfair did, her, he which killing on bent even absent sympathy itself invoke crime you imagine I want did. Defendant Moore, 195 argument. See prosecutorial little that for a moment what with me Duvall, at 795. 1172; 139 F.3d F.3d at from as she moved through went girl murders theory of the prosecution’s woods with through the and ran car In ad- evidence. was based substantial It obvious her. was after Defendant jury to base dition, instructed the court get that she did from received, only on the evidence decision its was before, point, she at some very far affect its sympathy allow and not to whizzing at, that bullet and went fired fol- presume We deliberations. coat, through the hood through her Hale v. Gib- instructions. See these lowed Now, branch. into a tree her coat and Cir.2000). son, passed long a time know how we don’t prosecu asserts the Finally, Petitioner was the time she shot between particu egregious, were so tor’s comments must have caught, but it she time when, victim-im with the larly considered terribly terribly, terribly, like a seemed evidence, be entitled that he should pact the horror Imagine time. long any further show requiring without relief when, from the she as ran Tonya felt Abraham See Brecht prejudice. ing of Defendant, and turned caught she n. son, 507 U.S. again looked once around and he did not Brecht 123 L.Ed.2d 353 just her face shot girl little in an unusual possibility that, “foreclose he then After eye. left her below egregious especially case, a deliberate the second well with her as executes 1174 ” might integrity holding Payne ... so infect the

error and remains valid.’ Hain, grant as to warrant the proceeding (quoting Payne, 287 F.3d 1238-39 relief, 2597). even if not 2, habeas it did substantial- 501 830 n. 111 U.S. at S.Ct. But, ly jury’s Id. influence verdict.” as Therefore, by trial court erred admit above, prosecutor’s we stated remarks ting victim-impact testimony during this largely are based on reasonable inferences capital sentencing proceeding. Petitioner’s error Any from the evidence. was not Nonetheless, See id. at this 1239. consti egregious sufficiently to warrant habeas tutional error harmless because it did relief. not injurious have a “substantial effect determining jury’s influence in ver

C. Brecht, 637, dict.” 507 U.S. at 113 S.Ct. next We address Petitioner’s (further omitted); quotation 1710 see also by claim admitting the trial court erred Willingham, 296 F.3d at 931 (applying victim-impact testimony during the capital Brecht’s analysis harmless-error to similar proceeding. Pursuant 22 sentencing claim). 984(1), permit § Okla. Stat. the trial court Payne provides that victim- ted three members of the victims’ families impact unduly that prejudi evidence is “so to testify capital sentencing at the pro cial that it fundamentally renders the trial ceeding they that believed Petitioner de unfair” deprives capital defendant of due Although served to die. the OCCA con process. 825, 501 U.S. at 111 S.Ct. 2597. trial properly cluded the admitted victim-impact Because the not testimony, agree we with Petitioner here, however, have that effect the OCCA that the trial court’s to admit decision reasonably denied Petitioner relief on this clearly testimony contrary is established due-process Willingham, claim. See 296 Supreme precedent. See Court 28 U.S.C. 931; F.3d at United v. States Chantha 2254(d)(1). § dara, 1237, 1273-74 Cir. Supreme Court has held that 2000). “if the chooses permit State the admis Finally, because the trial court’s con- impact sion of victim prose- evidence and stitutional in admitting error this victim- subject, cutorial argument harmless, impact evidence was and this Eighth per Amendment no se erects bar.” evidence did not result otherwise in a 808, Tennessee, 827, Payne v. 501 U.S. 111 trial, unfair fundamentally defense coun- (1991). 2597, S.Ct. 115 L.Ed.2d In 720 so sel were constitutionally ineffective holding, the Court overruled its earlier object for failing to Accordingly, to it. decisions in Booth v. Maryland, 482 U.S. reasonably OCCA also denied Peti- 496, 2529, (1987), 107 S.Ct. 96 L.Ed.2d 440 tioner relief on this ineffective-assistance Gathers, and South 490 Carolina U.S. claim. 2207, 109 104 L.Ed.2d S.Ct. Payne, 811, 817, U.S. D. Nonetheless, S.Ct. we have argues Petitioner also defense recognized “Payne significant left one attorneys abandoned his defense portion during of Booth untouched.... por [T]he the guilt stage and tion were otherwise prohibiting family of Booth ineffec- members tive under stating Relying victim from Strickland. on United ‘characterizations Cronic, crime, about the States v. opinions the defen 466 U.S. dant, (1984), appropriate and the sentence’ during L.Ed.2d 657 the penalty of a trial phase capital survived first argues defense counsel abandoned an effort joining state tively re- habeas defense, warranting conviction,” such that any- [a] to show attain for him the need without lief se ineffec- per be deemed OCCA can Because prejudice. resulting claim, we Dep’t v. Executive Dir. address Davis specifically tive. did not of of Romano, 278 F.3d 750, n. Corr., & 757 3 it de novo. See F.3d 756-57 100 review omitted). Cir.1996) (further (10th quotation 1150. at that even if his contends Petitioner next is de defendant criminal A his completely not abandon attorneys to did right Sixth Amendment of his prived defense, representation entirely guilt-stage their “if counsel representation effective constitutionally to To case ineffective. prosecution’s still subject the was to fails claims, must testing, adversarial on these meaningful succeed pre itself adversary process attorneys’ represen- mak[ing] the his both that establish Cronic, 466 U.S. sumptively deficiency unreliable.” that the tation was deficient and Cone, at. 2039; 122 659, S.Ct. Strickland, 104 at S.Ct. his defense. See prejudiced and adopts attorney who 1850-51. “[A]n 687, To 2052. estab- at 104 S.Ct. 466 U.S. should be his client upon a belief acts show “there Petitioner must prejudice, lish any mean function to ‘fail[s] convicted that, absent the probability is a reasonable adver the Government’s as ingful sense have had a errors, would the factfinder F.2d 861 Shillinger, v. Osborn sary.’” at Id. respecting guilt.” reasonable doubt Cronic, Cir.1988) (10th 612, (quoting 625 695, Because OCCA 104 S.Ct. 2039). 666, 104 Nonethe at S.Ct. 466 U.S. standard, Strick- applied appropriate under less, presumed will be prejudice claims, fur- land, AEDPA these denying “ fails to entirely ‘if counsel only Cronic Cone, See our review. circumscribes ther meaning case subject prosecution’s AEDPA, we 1852. Under 122 at S.Ct. ” Cone, 122 S.Ct. testing.’ ful adversarial applied the OCCA consider whether 659, Cronic, 466 U.S. (quoting 1851 reasonable objectively in an Strickland added). 2039; emphasis 104 S.Ct. Cone, Pe- 122 at 1852. S.Ct. manner. See support record does not of his examples several raises titioner entirely counsel defense conclusion that during the alleged ineffectiveness case to subject prosecution’s failed in turn. examine each stage. guilt We or that testing, adversarial meaningful counsel argues first believed he or on Petitioner turned counsel warrant quash his arrest move failed to Defense convicted. have been should as a re seized suppress the and guilt- the State’s counsel cross-examined v. Although Stone that arrest. sult witnesses, objections to made stage 3037, Powell, 428 U.S. evidence, some evidence presented State’s (1976) generally precludes L.Ed.2d defense, opening and made in Petitioner’s reviewing a court from habeas federal v. Cooks arguments. See closing Fourth of a court’s resolution state Cir.1998) Ward, challenge to lawfulness Amendment not (holding counsel’s seizure, consider will we or a search denial constructive amount to actual ineffective counsel defense whether pre be prejudice should counsel such Amend a Fourth assert such failing conducted defense sumed where place. in the first challenge ment cross-examination, evidentia made limited Morrison, 477 U.S. Kimmelman argument). closing gave objections ry 91 L.Ed.2d 368, 382-83, 106 S.Ct. attorneys did defense prejudice Strickland To establish ... effec- duty loyalty [their] “abandon claim, on this Petitioner must show tionally both ineffective in waiving previous- that his Fourth Amendment claim chal- ly preserved objections. The OCCA held lenging the arrest warrant is meritorious Petitioner failed to any prejudice show be- probability a reasonable exists cause Petitioner never attempted to chal- that the would have been verdict different lenge these photographs appeal. on direct absent the excludable evidence. Id. at The district found this conclusion 375, 106 S.Ct. 2574. The OCCA held de- reasonable, and we concur. Defense coun- fense counsel not constitutionally inef- challenged sel’s comments did not waive failing fective for to challenge the arrest any claim Petitioner sought later to pur- warrant because the affidavit accompany- sue. Nor jury did the these hear com- ing provided enough the warrant informa- ments, which counsel made at sidebar. tion to form a proba- substantial basis for Thus, Petitioner has failed to demonstrate ble cause. The district court found this any prejudice from his counsel’s com- objectively conclusion was reasonable. We (cid:127)ments. agree. The affidavit is a four-page, single- Petitioner alleges also his counsel spaced containing document dates of inter- ineffectively handled the testing and pre views and describing the investigation. sentation of DNA evidence. When the The sworn affidavit names all informants. police Petitioner, arrested the officers no The information contained therein connect- ticed appeared what to be blood stains on ed Petitioner the to crimes with sufficient his left shoe. The State’s expert DNA was particularity satisfy probable cause unable any to recover blood from the left standard. We have little affirm- difficulty shoe, however, expert found blood on ing the district court’s denial of relief on right Petitioner’s shoe that was consistent point, particularly because Petitioner Cynthia with Jarman’s blood and inconsis fails any to identify why reason the war- tent with 99.999%of the rest the Cauca rant was defective. sian population. argues Petitioner next his counsel At the defense attorneys’ request, waiving ineffective the issue of defense DNA expert only tested Petition- whether the trial court admit improperly er’s shoe. Unlike the State’s DNA left ted photographs of the graves. Over de expert, the expert defense found blood on fense objection, the trial court the left shoe. The blood Petition- admitted photographs of the victims’ bod er’s, but could have Cynthia been Jar- ies at the grave site and permitted further addition, man’s. In expert defense the State to projector use slide to show another, found unidentified person’s blood jury Later, these photographs. how on that shoe. Because defense counsel ever, defense counsel in concurred the trial asked the expert defense compare observation, judge’s made outside blood she found on the left jury’s shoe presence, that he did not observe Cynthia Jarman, any “reactions that the' de- were out of ordi fense expert testified she nary by the in could not jury elimi- looking at pic these Tonya nate either I they Timmy tures. don’t think Jarman offended in as any way.” source of this Defense other counsel also blood. noted for the record that the trial court’s decision argues expert’s defense permitting the State to use pro the slide testimony failed to support his defense jector was appropriate. and, instead, bolstered the State’s DNA Petitioner now asserts that defense argues “He also defense counsel evidence. counsel, remarks, with these was constitu- failed to seek adequate state funds to in- victims, kill move time to enough and defense testing, .have DNA thorough sure a half truck, the seven and expert DNA and walk selecting a counsel erred de- hours. The OCCA house three underqualified. miles back to his who was defense’s assertions, relief because Thus, contrary nied Petitioner Petitioner’s did not its DNA evidence presentation theory. Simply explored this his counsel district The Petitioner. prejudice the de- accept did not because the was reason- this determination concluded not mean the facts does version of fense’s expert al- The State’s agree. We able. counsel was ineffective. blood consistent ready established asserts defense Finally, Petitioner one of was on blood Cynthia Jarman’s ineffectively cross-examined State expert’s defense shoes. chal specifically witnesses. blood Cynthia Jarman’s testimony that cross-ex guilt-stage lenges only counsel’s shoe other been on the might have wife, former Ste of Petitioner’s amination to the State’s anything more to add fails Duncan called Duncan. State phanie addition, other deal of great In case. had visit and Petitioner testify that she killings. to the Petitioner linked evidence found field where the bodies ed the exists Therefore, probability reasonable no occasions. On cross- previous Peti- acquitted on several would have that examination, however, testified expert not defense counsel defense had the tioner Cynthia Jar- blood consistent that Petitioner testimony that elicited Duncan’s left both Petitioner’s was on man’s blood during their her abused physically had Moreover, fails Petitioner right and shoe. for the the door marriage. opened This DNA additional different any assert testi resulting in Duncan’s inquiry State’s in presented have been that could evidence kill her had tried to mony that Petitioner DNA qualified defense, how a more nor several occasions. defense. in his have assisted expert would defense whether Regardless of counsel argues defense Petitioner constitutionally deficient performance was failing question ineffective reasonable testimony, eliciting this no in exact concerning the examiner medical jurors not that had probability exists contends Petitioner victims died. time the testimony, they would Duncan’s heard the defense explore failed to counsel trial record al Petitioner. acquitted have time to com- enough have that he did not evidence deal of great ready included Contrary to Petitioner’s mit the murders. murders to the Jarman linking Petitioner assertions, counsel questioned defense vio pattern detailing Petitioner’s and on this point, examiner medical Moore Cynthia Jarman. lence toward give a was unable examiner medical Cir.2001) Marr, Further, Petitioner’s definite answer. 1068, 122 S.Ct. denied, 534 U.S. rt. ce did not argue that Petitioner counsel did (2001) (Defendant 151 L.Ed.2d During the murders. time to commit have effective assistance not denied from Peti- trial, testimony elicited counsel failure to of counsel’s as result counsel Petitioner that he saw stepfather tioner’s was over where there impeach witness p.m., and that at home 3:20 defendant, in against whelming evidence vic- p.m. around 6:30 home returned testimony). Like of witness’ dependent p.m., 3:45 around tims were last seen that probability exists wise, no reasonable discovered burning truck was Stremlow’s if acquitted Petitioner have jury would During evening. p.m. that 9:00 around Duncan’s impeached had counsel defense closing arguments, stage guilt had been she credibility with did not argued stealing accused of from Petitioner’s III. friend, had been arrested 1992 for em- In light of defense counsel’s constitution- bezzlement, fights had initiated physi- ally handling ineffective of the defense’s cally beaten during their rela- mitigating evidence, psychological we AF- tionship, and had her own struck mother. FIRM the district court granting order agree

We with the district court Peti- Petitioner relief from his death sentences. tioner cannot the prejudice establish com- We also AFFIRM the district court’s deni- ponent of Strickland and that the OCCA any al of further habeas relief. reasonably denied relief on this claim. KELLY, JR., PAUL Circuit Judge,

E. concurring part and dissenting in part. Finally, Petitioner claims cumula I concur in opinion, the court’s with the tive error warrants habeas relief. Because exception the resolution of the claim of we affirm the district grant court’s order representation ineffective during sentenc- ing Petitioner relief from his death sen ing. I respectfully dissent from this tences, however, we consider Petitioner’s holding court’s that the OCCA’s determi- cumulative-error argument only with re nation that Mr. Hooper’s counsel did not spect to guilt the trial’s stage. Although render deficient performance constitutes we found the trial errors Petitioner identi an unreasonable application of Strickland harmless, individually fied the “cumulative v. Washington, U.S. effect of two or more individually harmless 2052, (1984). 80 L.Ed.2d 674 See 28 errors potential has the prejudice a 2254(d)(1). § U.S.C. fully record sup- defendant to the same extent as a single ports the OCCA’s holding on the lack of reversible error.” Duckett v. Mullin 306 deficient so it cannot be an 982, Cir.2002) F.3d 992 (quoting unreasonable application of Stnckland. Rivera, United v. 1462, States There are two of levels deference here. (10th Cir.1990)). 1469 “A cumulative-error First, only if we could conclude that the analysis merely aggregates all the errors application OCCA’s of Strickland was ob- that individually been have found to be jectively unreasonable —not merely erro- harmless, and reversible, therefore not and neous, incorrect, contrary or to what we it analyzes whether their cumulative effect might decide on appeal direct habeas —is on the outcome of the trial is that such relief on this claim warranted. See Bell v. collectively they can longer no be deter Cone, 685, 535 122 U.S. S.Ct. mined to be harmless.” Id. (2002); 152 L.Ed.2d 914 Tay- v. Williams

The errors lor, identified 362, 410-11, 529 U.S. 120 S.Ct. not, did even accumulated, when have a 146 L.Ed.2d 389 That is because prejudicial sufficient effect to deny Peti federal “[t]he habeas scheme pri- leaves tioner a fair trial. Extensive sup mary evidence responsibility the state courts ported jury’s the finding guilt. of rea No for these judgments, and authorizes feder- sonable probability exists that jury al-court intervention when a state- would acquitted have absent court decision is objectively unreasonable.” — agree errors. We with the district Visciotti, court -, U.S. Woodford that Petitioner is not entitled 357, 361, to relief S.Ct. (2002) 154 L.Ed.2d 279 (per based on curiam). cumulative error and Second, that Strickland, under a re- OCCA reasonably denied relief on this viewing presumes that counsel’s de- claim. cisions were an exercise of pro- reasonable for the offense. Had way responsible all of the and considers judgment fessional succeeded, or had the that efforts circumstances, in mind counsel’s keeping bring trial is a Dr. Adams been unable to is whether state inquiry ultimate rebuttal, testing process.” have counsel would adversarial forward “reliable 688-90, 104 S.Ct. ar- jury another present been able U.S. mitigation. support gument standards, made counsel these Applying choice after less strategic a reasonable simply is The decision of OCCA facts. investigation given full than application of Strickland an unreasonable evidence suggests scant record trial entire correctly considered the because it dam- from brain suffered Hooper Mr. that and concluded sentencing proceeding might disability that learning age case, just mitigation present counsel calculat- to his contributed have somehow hind- with 20-20 Hooper, not the one Mr. the victim and vicious murder ed and Hooper, sight, would have selected. counsel Hooper’s Mr. children. her two conclusion P.2d at 1115. The OCCA’s scrutiny to close state’s case subjected the on this score any deficiencies of counsel were, by counsel choices made complete not constitute a simply did circumstances, good as about as under testing pro- of the adversarial breakdown expected. could be (and defi- therefore did not constitute cess determines Essentially, this court This is not is correct. performance) cient the sen- before attempt get (not option conténded a case where Hooper’s Mr. tencing evidence introducing Murphy Dr. and not calling limitations, first determin- without mental investiga- further reports the medical after addi- likelihood after of success ing the tion) the course tak- clearly outweighs” “so deficient constitutes investigation, tional as to render by defense en in- summary Murphy’s Dr. performance. objectively unreasonable. decision OCCA’s Dr. Adams that he dicating “believed (on Bell, re- collateral brain probable but ‘mild found evi- view, put mitigating a failure to ” jury by placed before damage,’ and waiver of sentencing phase in dence 1090, State, 947 Hooper v. P.2d counsel. performance). closing was not deficient Had coun- (Okla.Ct.Crim.App.1997). 1114 impair- to raise “mental effort Counsel’s report placed not the substance sel mitigation one of several ment” was but (because scant evi- there was in ultimately un- all of which attempts, it), have counsel support would dence not a “do trial of a case is successful. ineffective? deemed been exercise, it is rather by the numbers” it is a defense-ori- Obviously, Murphy Dr. what one has. one uses uncertain he expert witness. Was professional ented not, works, and sometimes it Sometimes Dr. in his own embellishment caught say counsel could experienced trial but no testified on Dr. Adams report? Adams’ pro- have would competent no counsel that no evidence that “he found rebuttal did. Hooper’s Mr. way ceeded at 1114. Hooper, 947 P.2d damage.” brain Carver, id.; v. Bullock that counsel’s the OCCA held Although Cir.2002) objective (applying 1048-49 having Murphy Dr. calling in actions in de- standard Strickland reasonableness was “di- admitted reports two medical suggest- analysis ficient prej- and constituted Strickland sastrous” performance, establish ing that to deficient 1115, was udice, at it 947 P.2d Hooper, successfully urge petitioner must habeas that Mr. apparent it because only so pro- would have competent counsel that no any impairments had no mental Hooper did). ceeded in the manner that his counsel “ CORP.; RUTTER & WILBANKS Elliott competent ‘no counsel’ standard” Riggs; Thurston, A. William R. Trust by identified descrip- court is mere ee; Tanner; Gordon Walter K. Ar disputes tion'—no one ultimate Trust; Wells; buckle B. Eric Kevin C. inquiry in the perfor- Strickland deficient Wells; Wiggins; Charles R. Ken Ka analysis performed mance by the OCCA is mon, Plaintiffs-Appellees, representation whether counsel’s was ob- jectively In concluding reasonable. representation “counsel’s fall below COMPANY; SHELL OIL Shell Western objective reasonableness,” an standard of Inc.; P, E & Corporation; Mobil Oil Strickland, at U.S. S.Ct. Producing Mobil Texas & New Mexi objectively OCCA’s decision is not un- co, Inc.; Exploration Mobil & Produc precisely reasonable because the OCCA ing, U.S., Inc.; Mobil, Inc.; Exxon considered the representation as a whole Pipeline Cortez Company, partner a and determined that representa- ship; Company, Ltd., Shell a Tex CO2 tion was within that range” “wide of com- Morgan partnership; as limited Kinder petence satisfying Amendment, the Sixth Company, a Texas limited C O2 “mak[ing] i.e. testing adversarial pro- partnership, Defendants-Appellees, cess work in particular case.” See Strickland, Brelsford; 2052; W.M. U.S. Funk; Judith Walker Reed Hooper, 947 P.2d at 1115. Gilmore, Jr., Gilmore And W.H. recently As by representative Supreme articulated capacities their Court in a as similar reversing grant case co-executors of the Estate of W.H. by habeas Circuit, Gilmore, the Ninth Dorothy state court’s Gilmore; Sr. and determi- R. Peggy Stuart; “given nation must be Antelope B. benefit of Energy Co., LLC; doubt” Antelope and “a federal may habeas court Co.; Production not issue the writ simply Kemp Bench, William G. because that and Marie J. representative in their independent court concludes in its judg- capacities as ment the state-court of the applied decision co-trustees Bernard M. Bench Family Trust, incorrectly.” Visciotti, Strickland Objectors-Appellants. Here, S.Ct. the OCCA carefully Margaret Ainsworth; Ann Charles M. applied finish, Strickland from start Company; McAfee & Dorothy Gail finding prejudice, but not perfor- deficient Chappell; Larry Clark; John Nelda mance—what we have disagree- is mere Barlow; Troy Lee Oliver; M. Shor ment. I Accordingly, would reverse the Oliver; Poverty lene Properties, Point grant district court’s of habeas relief. L.P.; Miller; H. Renay; John Dee Ha Neely; Ingrid

zel Hartley; J. Joann Carson, Llc; Olivia Gray; Ina F. Bar Glazner; bara Glazner; E. John H. Cundiff; Clara Estate of Velma Henderson; Louise Gray; Louis M. Kip Makeever; Delight E. Edith James; Kennedy; Laura H. Charles R. Wiggins; Gorsuch; Elva Kamon; Ken Jerry Chaffin; Dorothy Chaffin; Duran; Duran; Johnnie E. Victor Le-

Case Details

Case Name: Hooper v. Gibson

Court Name: Court of Appeals for the Tenth Circuit

Date Published: Dec 19, 2002

Citation: 314 F.3d 1162

Docket Number: 01-6238, 01-6242

Court Abbreviation: 10th Cir.