Robyn Leroy Parks v. Dan Reynolds, Warden, Oklahoma State Penitentiary, Susan B. Loving, Attorney General, State of Oklahoma

Accordingly, judgment district is AFFIRMED.

court PARKS, Petitioner,

Robyn Leroy Warden, REYNOLDS, Oklahoma

Dan Loving, Penitentiary, B. Susan

State General, Oklahoma,

Attorney State

Respondents.

No. 92-6082. Appeals, Court

United States

Tenth Circuit. 9, 1992.

March

Certiorari Denied March 1992. 112 S.Ct. 1310. Welch, (Mandy H. Burr

Richard Okla- Ass’n, Houston, Tex., Terry J. homa Bar Ass’n, Norman, Okl., Hull, Bar Oklahoma and Julius L. Chambers Steven W. Hawkins, Legal Defense and Edu- NAACP Fund, City, York him on cational New brief), Legal Defense and Edu- NAACP Fund, City, petition- York for cational New er. (Susan

Sandra D. Brimer Lov- Howard Oklahoma, ing, Atty. Gen. of with her on brief), Gen., Chief, Atty. Asst. Criminal Okl., Div., City, respondents. Oklahoma HOLLOWAY, TACHA, Before BRORBY, Judges. Circuit TACHA, Judge. Circuit Appellant Robyn appeals the dis- corpus trict court’s dismissal of his habeas request stay and denial of his for a execution. Parks contends the dis- dismissing trict court erred in his habeas petition challenging his murder conviction appeal, resulting death sentence. On arguments, including Parks raises several representation by attorney his ineffective guilt punishment phase both trial, impression his of a false creation prosecution, suppression fa- prosecution. vorable evidence Parks also asserts that it would be “a justice” to exe- fundamental jurisdiction cute him. We exercise under petition, dismiss Parks’ U.S.C. § deny request for a of execu- tion.

BACKGROUND Surrounding A. Facts the Murder Con- viction trial, government’s At the case-in- following. chief established the Abdullah Ibrahim, Bangladesh, at- a native of location, working tending away school in Oklahoma and which was miles from the gas in Oklahoma part-time at a Gulf station station, gas and recovered a .45 caliber morning City, Oklahoma. On the of Au- revolver, together awith holster and am- 17, 1977, gust stopped a motorist had who munition, Apparent- hidden under a bush. 4:30 a.m. at the Gulf station at around to ly, one shot had been fired from the revolv- attendant, buy cigarettes some found the er; cylinders the other five contained live Ibrahim, dead inside the station booth. ammunition. Parks was later arrested in by gunshot Ibrahim’s death was caused a California and extradited to Oklahoma. money wound in the chest. No or other taped telephone Both conversations property had been taken from the booth. played for jury. were However, investigating officers found gas charge slip an unused credit Gulf card trial, At in testified his own behalf figures in the booth with the letters and killing and denied Ibrahim. He testified “XZ-5710” written it and circled. The on killing that at the time of the he inwas police alpha-numeric checked out this com- witness, place, girlfriend, another and a his correspond- bination and ascertained that it explained corroborated his alibi. Parks ed with the license number of an automo- fact that the license of his number car was possesso- in bile which Parks at least had a found on the slip by unused credit card interest, ry legal if not strict title thereto. stating days that several before the homi- point in investigation Parks at this particular gas cide he had been in this prime suspect either became a or a material purchased gas station and had when he had witness, and it was ascertained that Parks money. no He said the attendant at that meantime, was then in In the California. number, time took down his license but Parks’, police had contacted a friend of that he had returned later on the same date Clegg, one James and enlisted the latter’s paid gas. explained and for the Parks also Oklahoma, Parks, Clegg, in aid. called presence in his California at the time of his California, occasions, and, on several by testifying subsequent arrest that consent, Clegg’s phone two conversations killing gone date of the he had to Kansas tape were recorded. In the first of these California, City, then in an to effort to conversations, two recorded Parks told buy marijuana. Parks also testified that Clegg that he went to the Gulf station girlfriend he confessed his and an- because intending get gas to with a stolen credit police being and that the other friend held card attendant came out of the were appeared booth and to write down his li- as material witnesses. He decided that if Fearing cense number. that the attendant Clegg, he confessed to who he believed was fearing would “call the law” and also informant, police girlfriend a his friend police caught they if the him would find released, family would be his would not be guns dynamite1 placed that he had in harassed, and he would later be able to car, trunk of his Parks decided to kill general clear his name. On this state of the attendant so that if “he don’t be around record, jury Parks of first- convicted nothing there ain’t he can tell them no- degree murder. Parks, way.” setting, according In this During penalty phase, the trial’s the de- he to the station and shot and went booth father, presented only fense Han- standing killed the attendant while he was up. ders Parks. Ilanders Parks testified guy” happy-go-lucky his son was “a taped telephone In Parks’ second conver- any problems. did not have He also stated Parks, California, Clegg, sation with still in that his son in a was involved scuffle disposed described where he had school, high but otherwise was not involved weapon. police, murder Thereafter the ac- companied by Clegg, in “any went to described kind of violence.” carrying dynamite 1. Parks stated that he was Codis Mims. up drug "supervisor,” blow house of his cross-examination, instructing disregard “sympa Parks ac- Ilanders

On (5) his knowledged thy”; incomplete misleading son had been convict- in high school. robbery aggravating force while on ed of struction circumstances vis circumstances; (6) also asked Ilanders Parks prosecution mitigating ineffec a-vis conviction, burglary his son’s about assistance of counsel at the tive knowing Parks admitted to Ilanders hearing; phase failure of the trial prosecution also introduced the about. hearing evidentiary to hold an court Bourn, David the victim the testimony of sentence claim Oklahoma’s death stat force. Bourn indicated that robbery by applied racially discriminatory are utes instigator main in the inci- Parks was Brown, 1496, 840 F.2d manner. Parks v. him in the face. In had struck his dent and (10th Cir.1987). Initially, we affirmed 1499 argument, prosecutor then used closing the district court’s decision. Id. 1524. penalty in the introduced all of the evidence However, sitting banc, rehearing on and en negative phase emphasize Parks’ charac- Parks’ death we reversed vacated sen jury. ter to the Brown, Parks 860 F.2d 1545 tence. v. Cir.1988). (10th subsequently sentenced The United States Su jury Parks granted preme certiorari re death. Court 484, Parks, v. 494 U.S. 110 versed. Saffle History the Murder B. Procedural 1257, (1990). 415 L.Ed.2d On Conviction remand, relief, we additional denied Saffle, Parks v. 925 F.2d Cir. af- conviction and sentence were 1991), Supreme and the States United appeal by the on direct Oklahoma firmed denied Parks Court further review. v. State, v. Appeals, of Criminal Parks Court Saf — 213, -, fle, U.S. 112 S.Ct. (Okla.Crim.App.1982),and the P.2d 686 (1991). L.Ed.2d 171 Supreme Court denied certio- States United Oklahoma, 1155, rari. Parks application Parks then filed a second for 800, (1983). 74 L.Ed.2d post-conviction County relief in Oklahoma sought post-conviction then relief Parks Court, denied. The District which was in courts Oklahoma. state the state Appeals Oklahoma Court of Criminal af- relief, denied and the Okla- district court applica- firmed the denial denied Parks’ Appeals of Criminal affirmed homa Court stay February tion to the execution. On unreported opinion. order and There- 28, 1992, application Parks third for filed a after, Supreme United States Court in the post-conviction relief Oklahoma Oklahoma, 467 denied certiorari. Parks v. Court, asserting County District it 1210, 2400, Eighth violate the Amendment to probably execute someone who is innocent. application pending This is still the state subsequently denied Parks habeas petition for courts. also filed a ha- States District corpus relief United corpus in the federal district court on District of Okla- beas Court for the Western 28, 1992, February the district court by November homa orders dated appeal preju- 1992 without February 1986. On to this dismissed March (1) court, arguments: petition contained Parks raised seven dice because the both the state trial court to instruct exhausted and unexhausted claims.2 The failure of offense; (2) permitted lesser then Parks to file a jury on a included district court prior corpus petition of a conviction of Parks for third for without the admission habeas fear; by improper force claim. The district court de- robbery unexhausted prosecu- 1992 as by comment to the the state nied this on March abu- hearing phase now penalty appeals at the sive and successive. Parks tor case; (4) court decision. Parks also error the trial in the district court’s Eighth Amendment to execute 2. The unexhausted claim is the same claim would violate post- application probably Parks raised in his third for who is innocent. someone courts, conviction relief in state i.e. that it City has filed a motion for of execution homa Police that a customer had driv- pending presentation the exhaustion and paying en off without gasoline three probable of his the district court claim of hours before Ibrahim was shot and that innocence. may Ibrahim have tried to write down this required vehicle’s license by op- number as DISCUSSION erating procedures station; (3) gas petition, In this Parks raises a number presented shown that Parks would have First, claims. he constitutional asserts credit only card to Ibrahim after he had that he was denied effective assistance of pumped gas, that there was no unaccount- Second, argues counsel at trial. he gasoline ed for credit card sale of prosecutor impression created a false night, and that none of the credit card sales Third, suppressed evidence. favorable Parks; (4) were transacted shown that Parks claims that he was denied effective picture supposedly by po- the State’s taken during assistance counsel vantage lice from the assailant’s point was Fourth, phase. he contends that he was ináccurate and that picture an accurate deprived sentencing of a fair and reliable would have shown that Parks could have prosecution determination because the slip seen the credit card with the license presented materially evidence inaccurate it; (5) number shown that Parks’ state- suppressed evidence favorable in ment his confession that Ibrahim was defense. standing straight up when he was shot was In his ineffective assistance of counsel at inaccurate because reconstruction of the argument, trial Parks asserts that effective entry scene and the of the bullet demon- representation would have the fol- shown over; (6) strate bending that Ibrahim was lowing during the trial. Parks asserts that shown that Parks had no kill reason to strategy his try persuade defense was to to put Codis Mims and witnesses on the stand telephone that his admissions were on that would have corroborated his close false, having up been made to deceive relationship Mims; (7) with shown that the Clegg, James and that he was at Elaine police only not discovered a .45 caliber during Sheets’ house the time the murder weapon but also discovered a .44 caliber place. took To strategy, effectuate this his weapon they that believed could have been counsel had to against address the evidence murder; (8) in expert used hired an to Parks, which included: the credit card form testify examine and that the fatal bullet tag that had Parks’ automobile number could have fired .44 been from either a it; telephone written on conversation (9) gun; caliber or .45 caliber that shown Clegg, in which Parks admitted to the Colt .45 was so that Parks’ defective killing Ibrahim because he went the sta- testimony gun that the was discarded be- buy gas tion to with a hot credit card and credible; right cause it did not tag number, work was Ibrahim wrote down his mak- (10) ing police him worried that that the in stop shown condition which the dynamite him and find the in his car only with Colt .45 was found—with five bullets Mims; planned which he to kill Codis gun in cylinder— a with a six-chambered gun the Colt .45 that Parks said used was was the recommended “full load” for a Colt to kill Ibrahim and analysis that firearms .45, suggesting gun that the had not been gun confirmed was at least similar to the shot, firing single discarded after but that fired the fatal bullet. loaded; fully rather had been discarded (11) witnesses, presented two in addition to attorney Parks first asserts that his girlfriend easily impeached, who was (1) following: should have done the hired a that would have corroborated Parks’ alibi handwriting expert tag determine "XZ-8710”;3 (2) by testifying spent that Parks the entire number was “XZ-5710” or reported night shown that Ibrahim to the Okla- that Elaine Sheets’ house and 8710,” handwriting expert A3. hired Parks has now and not "XZ-5710”—the license number probably determined that the number “XZ- is of Parks’ vehicle. car on character as evidenced a number of may have used Parks’ Clegg James family.5 relationships close with friends and murder.4 night of the Further, prose- contends that the Parks prosecution created claims Parks presented materially inaccurate evi- cution (1) he impressions: following false robbery by dence his conviction for about credit card form with not see the could testimony states that the force. Parks it at the station from where tag number on falsely portrayed Parks as the the victim (2) standing; that the fatal bullet he was pros- instigator. Parks also claims that the caliber; (3) the .45 caliber was was .45 suppressed ecution evidence favorable condition, except for the working good present the defense when it did pin; and num- missing cylinder police report robbery by force con- gun it was rounds in the when ber of live the vic- viction that would have discredited five, gun that would hold six found— of Parks’ role in the tim’s characterization the sixth bullet was bullets—meant Thus, argues that his coun- crime. pro- has fired at Ibrahim. Parks the one denied evidence that could have sel was of the above. supporting all vided affidavits impeach used to the victim’s testimo- been addition, show that the In the affidavits ny during penalty phase of the trial. ways: in four its defective Colt .45 was missing; out of cylinder pin it was legal analysis We now turn to the cylinder pin place; alignment with a even petition challenging his murder con Parks’ consistently in lock its hammer did not government contends that viction. The cocked; trigger and its re- place when entirely consists of succes only slight pressure to release the quired 9(b) claims. Rule sive and abusive hammer. cocked Governing gov Rules Section 2254 Cases petitions and abusive erns successive prosecution sup- that the Parks asserts provides: following evidence: pressed the favorable petition may A second or successive (1) may license number have been that the it judge dismissed if the finds that fails murder, the either written down before allege grounds or different for new driving off reported someone when Ibrahim prior relief and the determination was days paying gas or a few earli- without for or, the merits and different new a cus- er wrote down black when Ibrahim grounds alleged, judge the finds that are got tag and the customer tomer’s number petitioner to assert the failure of the angry supports Parks’ state- very —which grounds prior petition consti- those in a given had his license ment at trial that he an tuted abuse writ. he did days a earlier because number few pay gas; him to for money not have with claims, the regard With to the successive (2) police discovered a .44 petitioner is on the to show that burden was asso- weapon they believed caliber “although ground applica- of the new provid- has murder. Parks ciated with the against him on the tion was determined newspaper articles ed both affidavits prior application, the ends of merits on a supporting these contentions. justice by a redetermina- would be served ground.” tion of the v. United Sanders penalty phase, Parks as- Turning to the States, 1, 1068, 10 373 U.S. 83 S.Ct. have effective counsel would serts that (1963); 148 Kuhlmann v. L.Ed.2d see also (1) following: demonstrated the 2616, 436, Wilson, 91 robbery by involving the force con- incident (1986). L.Ed.2d product of the racial strife at viction was a School; (2) regard to the claims that High that Parks With John Marshall assault; (3) petition, in his earlier that Parks Parks did not raise did not initiate the pleading abuse state has the burden of may actively participated not have (4) state meets this assault; good a of the writ. Once the that Parks had support produced affidavits that 4. Parks has provided of individuals 5. Parks has affidavits support contentions. these contentions. who all of these burden, inquiry (1) for This petitioner prongs: must show cause involves three violation; (2) probable constitutional his failure to raise the claim earlier and ef jury’s determination; fect on the resulting prejudice from the default. See — First, the conviction of an innocent man. Zant, U.S. -, McClesky v. appeal only, for the sake of this we will 1454, 113 (1991). In McClesky, L.Ed.2d 517 deciding assume—without the al Supreme Court held that the cause and —that leged constitutional violations occurred. prejudice procedural used in de standard Second, appropriate we must decide on the “applies fault cases also to determine if “probably.” definition of the term We rec has of the writ there been abuse ognize Supreme recently Court has through neglect.” inexcusable Id. granted certiorari to question resolve this S.Ct. at 1470. In his memorandum of law regard penalty phase with to the of a trial. support of a of execution filed with (5th Sawyer Whitley, See v. 945 F.2d 812 court, the district Parks concedes that he — Cir.), U.S. -, granted, cert. McClesky. cannot cause under show 434, Because the Therefore, Parks’ claims that were not Supreme issue, soon Court will resolve this brought earlier are barred express opinion we no as appropriate he that a unless “can show fundamental However, purposes standard. of this miscarriage justice would result from a appeal only, operate we will stan claim.” failure entertain the Id. dard most petitioner favorable to the —the Supreme equated Because the probability” Court “fair or probabili “reasonable justice” inquiry ty” “ends of standard instead likely with the “funda- “more adopted by than not” standard justice inquiry” mental Ninth Eighth Circuits. McClesky, S.Ct. at we review Deutscher Whitley, 946 F.2d 1444-46 Cir. are both Parks’ claims that successive and 1991); Armontrout, Stokes v. 893 F.2d those that abuse the writ under the same (8th Cir.1989); Smith v. Armon Supreme standard. The Court cautioned in trout, (8th Cir.1989). 888 F.2d McClesky grant- that such relief should be only “[tjhese ined “narrow cases” and that emphasize integral We that an extraordinary are instances when a consti- part three-pronged inquiry of this is the probably tutional violation has caused the showing only or of claim innocence. The conviction of one innocent of the crime. limited license for the courts to federal have this of We described class cases as proceed reach back into the multitude of implicating a fundamental of and, ings penalty inherent in a death case justice.” McClesky Id. at 1470. The Court especially, most into the sacrosanct arena explained justice inquiry that the ends of jury’s guilt or innocence determina “require[s] courts federal to entertain suc- pre tion is constitutional where violations petitions petitioner supple- cessive when a jury having cluded it the from before evi ments a constitutional claim a ‘color- with probably dence or that claims would have claim of able factual innocence.’ The mis- kept finding it from the inno defendant carriage justice exception of to cause Thus, cent. where the defendant shows no safeguard against ‘serves as an additional failing cause for to raise these claims earli compelling an innocent man to suffer an er, the defendant must show—at the ” liberty.’ unconstitutional loss of Id. at threshold —both a constitutional violation Powell, (quoting Stone v. showing and a colorable of factual inno (1976)). 49 L.Ed.2d 1067 cence. Factual innocence must mean at Thus, we must determine con- whether the least sufficient claims and facts that —had case, any probably stitutional violations this jury the considered would them— occurred, probably jury jury caused the to con- have convinced the that the defendant factually vict an innocent man. was innocent.6 -, analysis 6. Our should not be 117 L.Ed.2d 279 here confused with U.S. (1992). Collins, alleged the Fifth Circuit’s decision in viola- Herrera Parks has constitutional Cir.1992), — granted, jury F.2d the rt. tion that affected the evidence before ce 2667-68, showing of Parks This factual innocence that is a fair necessarily beyond the introduction of must demonstrate there or goes merely or claims that probability additional evidence reasonable that constitutional doubts that —had the suggest impose additional jury violations caused the the presented might been or evidence claims they death sentence when otherwise would — ju the far-reaches loomed have reviewing do so. have declined to After all they individually contem minds as rors’ penalty the of evidence admitted guilt beyond line that determines plated the phase, we that not a conclude there is fair showing of factu doubt. a reasonable probability jury or the reasonable stage pro of a at this habeas al innocence any would have sentenced Parks different incremental, than ceeding more must be ly. court, doubts. The federal set of additional petition, mainly In his Parks asserts that “probably prong applying the caused” of impeachment he was denied valuable mate- standard, only justify interference can give government rial when the did not him jury’s verdict where factual concerning police reports access rob- directly showing of claim is relat innocence bery by argues He force conviction. and is to the constitutional violation so ed changed could this information have that, probative strong had the excluded jury’s imposition of the death sentence. it, jury probably evidence been before First, ignores This contention two facts. have that the defendant would concluded police report one indicates that innocent.7 Parks’ co-assailants stated that Parks scrutinizing carefully all After Second, impor- kicked victim. and most argues petitioner should the evidence that Brown, tantly, we stated Parks v. presented jury and assum have been (10th Cir.1987), F.2d credible, ing that all this evidence is we jury refuse to believe that the would [w]e that there is a fair simply cannot conclude impose the death sentence because of probability the facts or reasonable al arising for a conviction crime out showing legedly innocence would have us, yard fight. of a fist To school it is is jury to find that Parks inno caused jury that a of twelve adults inconceivable proffered by cent. evidence influenced in manner merely defense evidence that corroborates testimony such end that such Although these rejected. facts defense, their on either would affect deliberation claims may bolster the these do question guilt or in a showing first- a threshold fac not amount to degree proceeding. murder We have tual innocence. jury system. more faith in the miscarriage fundamental of Therefore, way in no Parks’ contentions applies the justice standard also to sentenc satisfy miscarriage of jus- the fundamental ing phase of trial. See v. Mur the Smith 537-38, 527, 2661, 106 S.Ct. tice standard. ray, 477 U.S. therefore, and, jury’s probably the tion—that constitutional violations deliberations. This caused of innocent of the the conviction one places squarely his claim within the fundamen- cierne. miscarriage justice exception to the cause tal of prejudice standard. Parks can claim that We use because 7. an innocence standard McCle- probably violations have caused "constitutional sky by clearly such mandates a standard focus- the conviction of one innocent of the crime." ing of of on the conviction one innocent Rather, this Herrera cannot make assertion. crime, 1470, at see 111 S.Ct. and because lan- alleges that he has new evidence that Herrera guage body of Kuhlmann also indicates alleged he is innocent. His demonstrates con- appropriate. that an innocence standard is 477 stitutional claim arises from evidence that note, 454, U.S. at 106 S.Ct. at We how- 2627. presented jury, should have been but ever, quoted that exten- the Kuhlmann Court Eighth

from a claim that it violates either the or sively opinion Judge Friendly, by from an to Fourteenth Amendment execute someone suggests doubt which reasonable standard Thus, 17, appropriate. who is he not fall within 106 S.Ct. at innocent. does is Id. 454 n. miscarriage justice excep- n. 2627 17. fundamental of

997 HOLLOWAY, Judge, finally dissenting: that a Circuit Parks contends in order to allow stay granted should be I of actual innoc him to exhaust his claim Collins, respectfully 954 F.2d I must dissent from the ence.8 Herrera v. de- — stay majority’s (5th Cir.1922), rejection nial of a and the granted, U.S. 1029 cert. appeal. grant temporary of this I -, 1074, 112 117 L.Ed.2d 279 S.Ct. stay give more consideration deliberate Parks states that he “can show troubling appeal. My to this reasons fol- crime, probably he is innocent of his low: Herrera, therefore has a claim under he also that a fundamental will establish significance of the issuance here of if he miscarriage justice of would occur probable of the certificate cause executed, overcoming any thereby judge light were district should be considered bar, including procedural abuse of the Supreme of the standard laid down unequivocally Estelle, 880, Parks’ contention Court v. writ.” U.S. Barefoot 893, 3383, 3394, 103 S.Ct. 77 L.Ed.2d 1090 equates probably innocent standard (1983). The Court there held that “a certif jus of the fundamental probable requires petitioner icate of cause Thus, regardless of tice standard. whether showing to make a ‘substantial of the deni Supreme Herr Court decides allow ” 893, right.’ al of federal Id. at [a] claims, stay granted. cannot era Parks’ be explained S.Ct. at 3394. The Court has already have determined that Parks We that this standard means that “the issues cannot demonstrate a fundamental miscar reason; among jurists are debatable of Therefore, riage justice. even if the that a court could resolve the issues a[in court, Herrera claim were before this manner]; questions different or that present does not “substantial ‘adequate encouragement are deserve grounds upon might grant which relief ” proceed further.’ Id. at 893 n. 880, 895, Estelle, ed.” v. 463 U.S. Barefoot (emphasis original). n. 4 S.Ct. at 3394 3383, 3396, 77 L.Ed.2d 1090 Circuit, course, applies The Tenth (1983), and the must be denied. v. Thorn same standard. See Stevenson Although we realize that the review of a Cir.1991). burgh, 943 F.2d perhaps the most serious death sentence is Supreme applied Recently, the Court anew undertakes, examination court ever we standard, quoted: it “A Barefoot cognizant Supreme also must be probable requires peti certificate of cause “ ‘[fjederal emphasized has Court showing of tioner to make a ‘substantial ” courts should not continue to tolerate— right.’ the denial of federal Lozada v. [a] — capital type even cases—this of abuse -, 860, 861, Deeds, ” corpus.’ McClesky, the writ habeas (1991) curiam). Thus, (per (quoting 111 S.Ct. at 1471 Woodward impact of the district we must consider Hutchins, light judge’s certificate in issuance curiam)). (per Accord- L.Ed.2d im controlling precedents. It is of these ingly, recognized for ha- plicit we DISMISS that he the issues corpus petition do make by as successive and abusive and raised Parks’ habeas beas showing.1 request stay such a DENY his for of execution. substantial 3383, 3393, stay grant- L.Ed.2d 8. Parks also asserts that a should be more time to ed in order to allow counsel disagree. presented prepare. The issues in We appeal presented significance grant have been in the state 1. of the of the certificate this reargued by judge probable the district is not courts and have been rebriefed and in cause stay by judge’s denial of a a brief diminished the district court. Parks also has filed denying pending appeal. In his Order this court. We have reviewed all of these execution Therefore, stay, judge merits of did not address the Parks has not suffered documents. any prejudice Instead, appeal. stay pending for a due to the time constraints of this the motion stay petitioner his No- proceeding "As has filed and is not entitled to a of execu- he stated that: Estelle, pend- Appeal appeal now ground. and his is thus on tice of tion this Barefoot holding reports until late 1991. The directly the stan leads analysis This deny requested stay state does not that Parks of a of execution issuance dard for the 1978, eight petition. this material in months before habeas or successive in a second trial, and that the evidence did not such second or Parks’ recognizes that Barefoot light is come to until 1991.2 present a different petitions successive For a petitions first habeas. sue from actuality, In there were statements with- should be petition, stay a of execution first police department records which are appeal in a first granted prevent reproduced Appendixes as NN and OO becoming moot. How case from habeas These filed this federal habeas case. ever, federal ha- second and successive upon concern the earlier assault David stay granting of a proceedings, “the beas high Bourn and Bourn at the school which presence of reflect the substantial should attended, and which could have been might grant grounds upon relief phase sentencing used at the for valuable 895, 103 S.Ct. 463 U.S. at Barefoot, ed.” key impeachment of Bourn. Bourn was a has made Recently, the Court at 3396. sentencing prosecution witness at test still follows the clear that it Barefoot phase of Parks’ trial. The first undisclosed fed for second or successive applicable as 2, 1972, by report, February Officer dated petitions in death cases. See eral habeas reported by Burrow a statement David Stokes, Delo v. ap- Bourn said that a “NM had Bourn. (vacat 1880, 1881, 109 L.Ed.2d leaving proached him and hit him as he was test). ing under the Barefoot one of the classroom areas and that anoth- subjects had also

er two or three male kicking II jumped in and assisted NM in him. He stated that he did know [] petition, Parks al- In the instant habeas subjects other were white or colored.” [] concerning po- leges that critical evidence Thus, did not iden- Bourn’s first statement Bourn, princi- with David lice interviews tify principal assail- Parks as his initial and sentencing phase of pal witness ant, contrary testimony at the to Bourn’s Although trial, not revealed. Parks’ penalty phase. Bourn was also unable trial, murder requested Parks’ well before number, race, identify names of the or by revealed reports were not these in these 1972 statements to other assailants Appel- of 1991. Brief of state until the fall police shortly officers after the alterca- PC-92-79, (No. Okla.Crim.App.); lant at 56 tion.3 (No. Appellant at 16 n. 13 PC-92- Brief of Appendix 78, Okla.Crim.App.). report, the state com- The second OO While petition, report is a on the plains delay presenting new federal habeas about this re- evidence, undisputed by with- same incident Officer Wolf. That it overlooks August specif- Appeals motion ing Court of for the motion on 1987. That in the United States Circuit, application ically require filed in this court Tenth disclosure of asked the court to is denied.” recordings transcriptions statements Langwell... ... William David Bourn and IKS. Appellant in PC- the Brief of No. Attached to 2. sworn or unsworn statements [and] (Okla.Crim.App.), to Produce is a "Motion 92-79 Exculpatory regarding particular this case state has its file Evidence,” with a certificate of impeaching all information the cred- ... and ... Attorney mailing County of Oklahoma to the District (em- ibility any potential state’s witness [.]” 23, 1978, eight January months be- added). phasis September 1978. The mo- fore trial in requested specifically "all information of tion importance early statements to the 3. The form, or nature which tends to source whatever police, given eight days all within after the as- through exculpate the indica- him either [Parks] 2/2/72, Bourn on is shown the time through sault on potential or tion of his innocence lapse February from 1972 until Parks’ murder impeachment state witness ... and all of credibility impeaching years September the information ... any ed). trial over six later in (emphasis add- potential gave very testimony. state witness [.]” Ob- when Bourn different early special impor- viously, the statements bear proceeding post-conviction in the District In a tance. County, pro filed a se Court of Oklahoma Parks prosecutor said: “But also Principal W.L. Assistant port says [Parks’ father] that give you impression the tried to that ... Langwell stated: got along everybody, and he with [Parks] in mind and suspects that he had some [ ] get fights problems, he didn’t had no into his of- BOURN had called DAVID participated any.” Tr. 705-06. never He stated make identification. fice to argued prosecutor The that the incident he had in mind suspects that that the just fight, stating a by that not that: not identified DAVID was were [bu]t GARY saw the DAVID get charge that kind of you don’t [rob- defendant in the sitting RAY WAYNE bery by fight, a so it was not a force] office that he was the immediately said [] just fight. boys It was three beat originally had struck assailant up get money. his David Boren [sic] 2-2-72. him in the get? lousy And did he A six cents. face what gave the statement victim you imagine knocking [T]he [Bourn] a man to the Can started fol- suspect RAY GARY him, hitting stomping ground, him and main hall at the lowing him down the him, kicking turning pockets in- got they end of the school when north lousy for a six cents? side out courtyard. The and into ... the outside Tr. 699. up besided suspect [Ray] walked [sic] Bourn, testimony which could not eye right him in the and struck him statements, the impeached without at this knocking him down with his fists arguments prosecutor of the are also the suspects jumped on his two other time on the significant because of their effect kicking began one him. back and process weighing the evidence of the added). (emphasis Appendix 00 at the aggravating circumstance found—that significance of the unre- The critical purpose for the murder was “committed police reports is that their nondisclo- vealed arrest avoiding preventing or a lawful or impeaching evidence kept important sure of Bourn and prosecution.” The evidence attorneys at the hands of Parks’ out of the impeach- the argument, the unanswered point, prosecu- phase. At that penalty Parks was not ing statements that effectively to counter the Bourn tor used assailant, primary enhanced initial and mitigating introduced for only evidence Parks as a violent man jury’s picture of testimony “got that he father’s Parks —his undoubtedly damaging to Parks was problems.... along everybody, had no weighing aggravating circumstance neighborhood we live ... in the where help mitigating evidence. With violence, fights and always there was reports, the defense could police of the that; things like and he never did [Parks] damage considerably. this have minimized any fights anything or like that.” get in the facts outlined In connection with added). (emphasis Tr. 668 above, police and the statements sentencing in the When Bourn testified 1991,1 light until the fall did not come to contrary his statements to the phase, panel opinion in in our earlier note that his initial assailant was police, he said that Brown, 840 F.2d 1496 Cir. Parks v. Parks: 1987), assault evi panel viewed the Q. you the side Who struck significant dence as face? panel, the record before phase based on ... had been A. The time it was first jury to find the noting the failure Parks. Robyn being of Parks aggravating circumstance right. All Q. Robyn Parks. However, society. continuing threat added). (emphasis Tr. 687-88 apparent points that are now there are two First, the panel. that were not before denigrated mitigating prosecutor fully informed as panel “the was said from Parks’ father with obvious evidence giving rise to the rob Af- to the circumstances testimony by Bourn. support from this now know charge.” Id. at 1503. We bery going the father’s statements that ter over developed fully were not youth, the facts happy-go-lucky 1000 a death penalty phase of police reports. of the undisclosed of

because Deland, v. Andrews 943 F.2d See must focus case. Moreover, point we the added (10th Cir.1991). 1162, altered trial of Bourn’s 1186 effect is the mitigating evi- sole Parks’ testimony on Here, primary claims Parks asserts three testimony that he had father’s dence —his judge The district held for habeas relief.4 points These in violence. not been involved an abuse of the the first claim constituted picture than our very different present writ, remaining suc- two were and that sentencing jury or the in 1987 panel had previously asserted and de- claims cessive had in 1978. petition. in Parks’ first federal habeas nied Ill ruling presents a most serious The deci- us is the district court’s question for upon showing cause rely Parks does not concerning second claim —that Parks’ sion default or procedural prejudice false and improperly state introduced Instead, he asserts of the writ. abuse evidence, distorting Parks’ role misleading miscarriage justice” of will a “fundamental Bourn, in during incident the sen- are not claims constitutional occur Napue Illi- v. tencing phase in violation of to the to exception bars This considered. 1173, nois, 264, 3 L.Ed.2d 360 U.S. 79 S.Ct. mentioned review has been federal habeas (1959), prosecution sup- 1217 and that in a series of cases. Supreme Court by the — U.S. -, Zant, police reports prevented pressed 111 McCleskey v. See (1991); 1470, impeachment penalty-phase 517 of Bourn’s 1454, 113 L.Ed.2d Wilson, 436, n. 477 U.S. 454 incident in vio- Kuhlmann v. testimony pertaining to that 17, 2616, 83, 91 L.Ed.2d Brady Maryland, v. 17, 2627 n. of 373 U.S. 106 S.Ct. lation Carrier, (1986); Murray v. (1963). 477 U.S. 1194, 83 S.Ct. 2649-50, 2639, 495-96, 478, claim, 106 S.Ct. concluded that Parks’ district court Murray, Smith v. (1986); L.Ed.2d 397 hinged solely on his assertion 2661, 2667-69, 537-39, 527, penalty, did of the death factual innocence Adams, (1986); Dugger v. L.Ed.2d 434 showing” neces- present a “colorable not 412 n. finding innocence” sary for a of “actual n. 103 L.Ed.2d Whitley, 946 F.2d 1443 Deutscher v. under Cir.1991). judge denied district Moreover, this fundamental had claim because he held this has been translated justice exception arguments for the sole rejected “the state’s phase for death sentencing into the over to the rob- aggravating circumstance which Murray, Smith penalty cases. relevant, it refused to find bery was when (consid 537-38, 106 S.Ct. at 2667-68 U.S. at probability there was guilty of petitioner was ering whether in the future circumstance). commit criminal acts This court aggravating continuing threat to constitute a mis that would applied the fundamental has likewise society.”5 Order at 13-14. analysis the context carriage justice penal- incorrectly deprived district court dismissed are: he was three claims 4. Parks’ (a) Napue ty phase-related Brady his counsel was ineffec- claims as because a fair trial investigate failing various factual presented tive in other case, "successive." These claims were phase guilt-innocence of his aspects (not light coming to until in the first impres- (b) prosecutor created false Also, therefore, 1991); they are not successive. evidence, (c) prose- about the trial sions gener- Parks’ second the district court dismissed exculpatory suppressed evidence neces- cutor evidentiary hearing on his without an al claim trial; (2) prosecutorial misconduct sary regard- allegations prosecutorial misconduct determination; sentencing denied him a fair alleged Brady ing material the nondisclosure of (3) sentencing was ineffective in counsel Unlike his dismis- comment at all. without sentencing investigate failing facts relative to claim, general the district sal of Parks’ first mitigating appropriate failing present and in this that on the face of court did not state evidence. prosecu- not show that the record Parks could knowingly presented false evidence tion important concerns 5. In addition to the more below, sentencing phase trial. Parks' expressed be noted that it should 1001 sum, claims, Napue In the Brady significance rejecting the for This basis police reports on the undisclosed police in bottomed evidence the undisclosed are, revealed, raise issues which under reasoning, dis now the is similar to reports standard, prong in the first above, panel opinion Parks in our cussed Barefoot among jurists 1496, (1987). reason.” Brown, 1503 We “debatable F.2d 840 v. Moreover, Brady the claim the however, not satisfies know, now giv prong of the standard because the circumstances second informed as to the fully im- Instead, availability reports at trial of the for now robbery. the we ing rise to jury’s resulted in the peachment could have statements recorded that there were know “in resolving sentencing a different man- robbery in shortly the incident very after Thus, correctly district court ner.” the identify Parks as his did not which Bourn probable cause. granted a certificate of assailant, but instead principal initial least, very Gary Ray. At the identified so here, light I in of the Bra conclude that given power reports would have police the claims, Napue there are dy and “substan in to Parks the impeaching evidence ful upon might grounds tial which relief be testimony counter Bourn’s penalty phase to Stokes, granted.” Delo v. 110 S.Ct. at 1881 only mitigating ev challenged Parks’ 895, 463 at 103 (quoting Barefoot, U.S. youth. nonviolent It he was a idence—that 3396). at Unlike the circumstances S.Ct. undisclosed evidence appears the Delo, here the abuse of the writ does not showing thus a substantial would make apply recently the disclosed evi because from Deutscher under the standard supports Brady Napue the dence record judge; the district adopted considering those consti claims so that not support to Parks’ gives now substantial “funda tutional claims would result error infected claim “that constitutional justice.” v. mental Smith degree that it sentencing process to such a 537-38, 106 S.Ct. at Murray, 477 U.S. that, for probable more than but is 2667-68. error, the sentence of death constitutional support stay, even As additional for h imposed.” not have Deutsc been application of the standard Deutscher er, 946 F.2d at 1446.6 adopted proper in this ultimately is not as argues prose that “the forcefully circuit, appeals split in the courts inaccurate, presented materially gauge cution appropriate standard to over testimony ... violation of “actually false is innocent” whether a defendant stay Eighth penalty and Fourteenth indicates that a of the death Amendments.]” Support granted. of Motion Memorandum of Law review should be See for further 812, (citing Stay Whitley, Execution at 29 Town 945 F.2d 815 Sawyer v. — 736, 1252, U.S. -, Burke, Cir.), 112 S.Ct. granted, 68 S.Ct. send v. cert. (1991). Additionally, (1948); Mississip 434, 92 L.Ed. 1690 Johnson 578, 1981, Napue claim demon 100 Parks’ substantial pi, 486 U.S. Illinois, stay necessary is to deter (1988); 360 strates that a Napue v. L.Ed.2d 575 hearing is re evidentiary 264, 1173, L.Ed.2d 1217 mine whether U.S. received a cited, quired Parks has never (1959)). if the because precedents Under evidentiary hearing” on this fair presented false evi “full and prosecutor knowingly Sain, sentencing required by as Townsend v. dence, be claim validity of Parks’ 293, 312, grant of a cer highly suspect. comes Harris v. Vas L.Ed.2d 770 cause was thus war probable tificate of (9th Cir.) (opinion given F.2d quez, must and full consideration ranted Noonan, J.), application to vacate constitutional claims. aggravat- Oklahoma, mitigating such con- found or if it is found evidence 6. In finding ing outweighed by cerning critical nonviolent nature was of circumstance is circumstances, weighing penalty phase mitigating importance of one or more provide that: process. imposed. Oklahoma statutes not be death shall (1991) (footnote omit- 701.11 statutory aggravat- § Okla.Stat. tit. ted). at least one of the Unless ing act is so enumerated in this circumstances denied, (1990) (granting stay for an

L.Ed.2d 781 court). in the district

evidentiary hearing denial from the

I must dissent of this serious disposition final deliberate considera-

appeal without more

tion. Hurst, E. and William

Wanda G. HURST

Individually Administrator and as Hurst, Roy a mi- Everett

the Estate

nor, Plaintiffs-Appellants, RAILROAD

UNION PACIFIC Cox, L.B.

COMPANY

Defendants-Appellees. 91-6091.

No. Appeals, States Court

United

Tenth Circuit. 10, 1992.

March

Terry (Bradley West C. West with W. briefs) West, Terry him Inc. on the W. & Shawnee, Okl., Associate, plaintiffs-ap- pellants. Armstrong (Jeannie Henry C.

Tom L. him on S. Landers with David

Case Details

Case Name: Robyn Leroy Parks v. Dan Reynolds, Warden, Oklahoma State Penitentiary, Susan B. Loving, Attorney General, State of Oklahoma

Court Name: Court of Appeals for the Tenth Circuit

Date Published: Mar 10, 1992

Citation: 958 F.2d 989

Docket Number: 92-6082

Court Abbreviation: 10th Cir.