MICHAEL DEWAYNE SMITH, Petitioner, vs. ANITA TRAMMELL, Warden, Oklahoma State Penitentiary, Respondent.
Case No. CIV-09-293-D
IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA
Petitioner, Michael DeWayne Smith, a state court prisoner, has filed a Petition for a Writ of Habeas Corpus seeking relief pursuant to
I. Procedural History.
In Case No. D-2003-1120, Petitioner appealed his convictions and sentences to the Oklahoma Court of Criminal Appeals (hereinafter “OCCA“). In a published opinion, Smith v. State, 157 P.3d 1155 (Okla. Crim. App. 2007), the OCCA affirmed. Petitioner sought review of the OCCA‘s decision by the United States Supreme Court. His petition for writ of certiorari was denied on February 19, 2008. Smith v. Oklahoma, 552 U.S. 1191 (2008). Petitioner also filed two post-conviction applications, both of which the OCCA
II. Facts.
In adjudicating Petitioner‘s direct appeal, the OCCA set forth a summary of the presented evidence. Pursuant to
[Petitioner] was a member of the Oak Grove Posse, a subset of the Crips gang in Oklahoma City. On November 8, 2000, three members of the Oak Grove Posse attempted to rob Tran‘s Food Mart in south Oklahoma City. The three robbers were Teron “T–Nok” Armstrong, Kenneth “Peanut” Kinchion, and Dewayne “Pudgy–O” Shirley. During the course of the robbery attempt, the owner of the store shot and killed Armstrong. Kinchion and Shirley were eventually arrested. [Petitioner] was not involved in the attempted robbery but had close personal ties to Armstrong.
On Friday, February 22, 2002, two days before the trial of Kinchion and Shirley was scheduled to start, [Petitioner] left his apartment in the Del Mar Apartments in Oklahoma City early in the morning. His roommate, Marcus Berry (also known as Marcus Compton), saw [Petitioner] take a .357 caliber revolver with him. [Petitioner] went first to Janet Moore‘s apartment looking for her son Phillip Zachary who he believed was a police informant. [Petitioner] had earlier told Berry that “snitches need to be dead.”
The evidence supports the conclusion that [Petitioner] arrived at Moore‘s apartment sometime before 6:30 a.m. Shoe prints indicated that [Petitioner] kicked in her front door and then her bedroom door. Moore began screaming, and, at approximately 6:30 a.m., a downstairs neighbor heard arguing between a man and a woman and then a single “pop” followed by footsteps.
At 1:00 or 2:00 a.m. the next morning, [Petitioner] returned to his apartment and told Berry that he had killed Janet Moore. He also told Berry that he had done something else to “take care of business,” that he had avenged his family.
At 3:00 or 4:00 a.m., [Petitioner] went to Sheena Johnson‘s apartment and told her that he had killed two people that day. During that conversation, [Petitioner] told her that he had killed Phillip Zachary‘s aunt because Zachary had been “snitching.” Johnson had already learned of Moore‘s murder and told [Petitioner] that the victim was Zachary‘s mother, not his aunt. In response, [Petitioner] shrugged his shoulders, and said “oh well.” [Petitioner] showed Johnson how he held his gun when he shot Moore and went on to say that he had also killed a person at a “chink” store. During his description of the second homicide, [Petitioner] mentioned something about one of his fellow gang members having his head blown off during a robbery. He said he would kill anyone who crossed his family. [Petitioner] also mentioned that someone had been on television “dissing” his set in regard to that robbery. Subsequently, Johnson contacted CrimeStoppers and reported the conversation. When she made that report, [Petitioner] was already in police custody on a different matter.
Three days after [Petitioner] was detained, detectives interviewed him. [Petitioner] was given Miranda warnings, waived them, and agreed to talk. During the interview, [Petitioner] first denied committing the murders, then admitted only to being present, and finally admitted committing both murders. He explained he killed both victims in retaliation for wrongs done him or his family. He told detectives he went to Moore‘s apartment looking for her son,
Smith, 157 P.3d at 1160-62. Particular facts will be referenced herein as they relate to the individual grounds for relief raised by Petitioner.
III. Standard of Review.
A. Exhaustion as a Preliminary Consideration.
The exhaustion doctrine is a matter of comity. It provides that before a federal court can grant habeas relief to a state prisoner, it must first determine that he has exhausted all of his state court remedies. As acknowledged in Coleman v. Thompson, 501 U.S. 722, 731 (1991), “in a federal system, the States should have the first opportunity to address and correct alleged violations of state prisoner‘s federal rights.” While the exhaustion doctrine has long been a part of habeas jurisprudence, it is now codified in
Beyond the issue of exhaustion, a federal habeas court must also examine the state court‘s resolution of the presented claim. “It is well established that federal courts will not review questions of federal law presented in a habeas petition when the state court‘s decision rests upon a state-law ground that ‘is independent of the federal question and adequate to support the judgment.‘” Cone v. Bell, 556 U.S. 449, 465 (2009) (quoting Coleman). “The doctrine applies to bar federal habeas when a state court declined to address a prisoner‘s federal claims because the prisoner had failed to meet a state procedural requirement.” Coleman, 501 U.S. at 729-30.
C. Merits.
In accordance with the Antiterrorism and Effective Death Penalty Act of 1996 (hereinafter “AEDPA“), the Court‘s authority to grant habeas corpus relief to state prisoners is limited. When a state prisoner presents a claim to this Court, the merits of which have been addressed in state court proceedings, the Court cannot grant habeas corpus relief upon the claim unless it determines that the state court proceedings resulted in a decision (1) “that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States” or (2) “that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.”
The focus of Section 2254(d) is on the reasonableness of the state court‘s decision. To obtain relief, a petitioner must show that the state court decision is “objectively
“Under
A. Ground One: Exculpatory Evidence.
In his first ground for relief, Petitioner asserts that the State withheld exculpatory evidence regarding two of the State‘s witnesses, Sheena Johnson and Marcus Berry. In affidavits obtained by habeas counsel over six years after Petitioner‘s trial, both Ms. Johnson and Mr. Berry make averments which call into question the validity of their testimony.3 From these affidavits, Petitioner makes four claims for relief. In his first and second claims, Petitioner contends that he is entitled to relief due to the prosecution‘s failure to disclose this evidence and/or correct the witnesses’ perjured testimony. Petitioner additionally claims that he was denied the right to an impartial judge and that his trial counsel was ineffective. Petitioner raised these claims in his second post-conviction proceeding which was initiated the same day he filed his Petition. The OCCA did not address the merits of the presented claims, but applied procedural bars. Smith, 245 P.3d at 1238. The parties dispute whether the applied procedural bars should be respected and enforced by this Court.
The OCCA addressed Petitioner‘s claims as follows:
[Petitioner] claims his convictions and sentences are unreliable and violate his rights to due process and a fair trial. [Petitioner] contends that recently executed affidavits by trial witnesses Marcus Berry and Sheena Johnson demonstrate that: (1) the State withheld exculpatory evidence; (2) the trial judge was biased; and (3) the State failed to correct perjured testimony.
Sheena Johnson‘s affidavit is dated December 9, 2009. In the affidavit, Johnson alleges that: (1) her children were taken away from her by the trial judge to force her to testify against [Petitioner]; and (2) she testified falsely about certain statements [Petitioner] made to her about the Pulluru murder and that she did so using information police told her to include in her testimony. Johnson‘s allegation about her children being taken from her as coercion was known at the time of [Petitioner‘s] 2003 trial. It was discussed between [Petitioner‘s] trial attorney, the judge, and the prosecutor, in response to the prosecutor‘s objection to [Petitioner‘s] cross-examination of Johnson, in which defense counsel inquired into Johnson‘s reasons for testifying.[FN7] Johnson‘s fear about losing her children was also known at the time of [Petitioner‘s] preliminary hearing in 2002, when she stated her belief that if she did not testify “I would have got arrested and my—I have a three-month-old baby and he would have—child welfare would have got him” (P.H. 54). Obviously, Johnson‘s fear of having her children taken away from her as retribution for not testifying was information that was known at the time of [Petitioner‘s] trial and could have been used to raise this issue on direct appeal or in [Petitioner‘s] first application for post-conviction relief. This information cannot serve as the factual basis for a second application for post-conviction relief.
22 O.S. Supp. 2006, § 1089(D)(8) .FN7. See Tr. Vol. 8 at 84–86.
Additionally, the single piece of new information contained in Johnson‘s affidavit (i.e., that she lied about [Petitioner‘s] statements concerning the Pulluru murder under police direction) was certainly available at the time the affidavit was executed on December 9, 2009, if not earlier. Under our rules, a second application for post-conviction relief must be filed within sixty days from the date a previously unavailable factual basis for an application is discovered. Rule 9.7(G)(3), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App (2010). Based on the date of the affidavit, the factual basis for this claim was known for at least 132 days before the instant application was filed. Thus this aspect of [Petitioner‘s] claim is also procedurally barred.
As set forth in its opinion, the OCCA declined to reach the merits of Petitioner‘s claims based on two separate and distinct procedural rules. The first was applied to Ms. Johnson‘s allegations that she was forced to testify at trial in order to get her children back.4 The OCCA found that these circumstances were borne out by the district court record, and in fact, they were. When Ms. Johnson testified at the preliminary hearing, she stated that she came to court “[b]ecause if [she] didn‘t, [she] would have gotten arrested . . . .” Ms. Johnson explained that she had a three-month-old son and if she got arrested, “child welfare would have got him” (P.H. Tr. 8/9/02, 54). On cross-examination, Ms. Johnson testified that when she was served with the subpoena, police detectives told her that she could get arrested if she failed to show up. However, she declined to adopt defense counsel‘s suggestion that she had been threatened by the police. Ms. Johnson testified that she was the one who was thinking about the consequences for her son if she failed to comply with the
Generally, the matter of adequacy presents the tougher question. English v. Cody, 146 F.3d 1257, 1259 (10th Cir. 1998). Whereas the issue of independence asks only whether the state court decision rested on state law, as opposed to federal law, the adequacy inquiry requires the habeas court to determine whether the applicable state procedural rule “is firmly established and regularly followed.” Smith v. Workman, 550 F.3d 1258, 1274 (10th Cir. 2008). In Spears v. Mullin, 343 F.3d 1215 (10th Cir. 2003), the Tenth Circuit acknowledged that assessing whether a state procedural-default rule is regularly and consistently applied requires a court to determine “‘whether the [state] courts’ actual application of the particular procedural default rule to all similar claims has been evenhanded in the vast majority of cases.‘” Spears, 343 F.3d at 1254 (citing Maes v. Thomas, 46 F.3d 979, 986 (10th Cir. 1995)). “[T]he fact that a state court has overlooked the procedural bar as an ‘occasional act of grace’ is insufficient to conclude that the procedural bar is inadequate.” Cannon v. Gibson, 259 F.3d 1253, 1268 (10th Cir. 2001) (citing Andrews v. Deland, 943 F.2d 1162, 1190 (10th Cir. 1991)). See Beard v. Kindler, 558 U.S. 53 (2009) (concluding that even a discretionary state procedural rule can be adequate).
Because the OCCA‘s application of Section 1089(D)(8) is both adequate and independent, the Court cannot consider the merits of the claims arising from Ms. Johnson‘s allegations that she was forced to testify at trial in order to get her children back unless Petitioner can satisfy an exception. A petitioner may overcome the application of a procedural bar if he can show either cause and prejudice or a fundamental miscarriage of justice. Petitioner argues both exceptions.
The first exception, cause and prejudice, requires Petitioner to demonstrate that some external objective factor, unattributable to him, prevented his compliance with the procedural
The second exception can be met by showing that a fundamental miscarriage of justice will occur if the claim is not heard. The fundamental miscarriage of justice exception
In summary, for the reasons set forth above, the Court finds that the portion of Petitioner‘s Ground One which is based on Ms. Johnson‘s allegations that she was forced to testify at trial in order to get her children back is procedurally barred. As a result, the entirety
The OCCA applied its own Rule 9.7(G)(3) to bar a merits review of the claims arising from the allegations contained in Mr. Berry‘s affidavit and the new allegations contained in Ms. Johnson‘s affidavit. This rule provides as follows: “No subsequent application for post-conviction relief shall be considered by [the OCCA] unless it is filed within sixty (60) days from the date the previously unavailable legal or factual basis serving as the basis for a new issue is announced or discovered.” Affording Petitioner the greatest deference, the OCCA used the execution dates of each affidavit as the starting time for the permitted 60-day filing period. Accordingly, Petitioner had until February 7, 2010, to file new claims based on Ms. Johnson‘s affidavit, and until March 12, 2010, to file new claims based on Mr. Berry‘s affidavit. Because Petitioner did not file his second post-conviction application until April 20, 2010, the OCCA applied Rule 9.7(G)(3) to bar a merits review of this newly discovered information. Smith, 245 P.3d at 1238.
Although the OCCA‘s 60-day rule is straightforward, operating like a statute of limitations, the extensive arguments presented by the parties show that the issue of whether Rule 9.7(G)(3) should be enforced as a procedural bar in this case is both complex and debatable. In addition to whether the rule is adequate, there is also a question as to the effect
As previously noted, in his first and second claims, Petitioner contends that he is entitled to relief due to the prosecution‘s failure to disclose exculpatory evidence and/or correct perjured testimony. In his fourth claim, Petitioner additionally asserts that his trial counsel was ineffective for either (1) “failing to investigate, uncover and present [the exculpatory evidence] to [the] jury” or (2) failing to do something with the exculpatory evidence if they in fact had knowledge of it. Petition, p. 19. Petitioner describes both Ms. Johnson and Mr. Berry as key witnesses. Petitioner asserts that they were the reason his murder charges were jointly tried, and that their testimony was used to corroborate his confession and prove his guilt. Petition, p. 9.
In Brady v. Maryland, 373 U.S. 83, 87 (1963), the Supreme Court held “that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the
Regarding false testimony, “the [Supreme] Court has consistently held that a conviction obtained by the knowing use of perjured testimony is fundamentally unfair, and must be set aside if there is any reasonable likelihood that the false testimony could have affected the judgment of the jury.” United States v. Agurs, 427 U.S. 97, 103 (1976) (footnotes omitted). “The same result obtains when the State, although not soliciting false evidence, allows it to go uncorrected when it appears.” Napue v. Illinois, 360 U.S. 264, 269 (1959).
Finally, claims of trial counsel ineffectiveness are governed by Strickland v. Washington, 466 U.S. 668 (1984). To obtain relief under Strickland, a petitioner must show that his counsel‘s performance was deficient and that he was prejudiced by it. Strickland, 466 U.S. at 687. Beyond pointing to an error or omission on the part of trial counsel, Strickland requires a showing of actual prejudice. Id. at 687. Petitioner “must show that there is a reasonable probability that, but for counsel‘s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694.
Beyond the allegations regarding her children (which as discussed above have been procedurally barred), Ms. Johnson makes two statements in her affidavit regarding her testimony at trial. Ms. Johnson states that although Petitioner never made such comments to her, police detectives told her to testify that Petitioner told her (1) he set the convenience store clerk and the cash register on fire; and (2) why he shot the convenience store clerk. Petition Attachment 12. In addition to discussing the circumstances surrounding his videotaped statement to police, Mr. Berry asserts that the police told him what to say, both before and during the interview. Particularly, Mr. Berry asserts that he was told that he “shouldn‘t say anything about PCP because it would make [Petitioner] look bad.” Mr. Berry claims that he first learned of Phillip Zachary, Ms. Moore‘s son, from the police, and that he had “never heard [Petitioner] call him a snitch.” Mr. Berry additionally states that two of his statements made during his interview were assumptions: (1) that he saw the butt of a .357 revolver on Petitioner‘s person before the murders; and (2) that Petitioner told him that he killed Ms. Moore. Finally, Mr. Berry asserts that although he was a member of Petitioner‘s
Assuming that all of this new information had been made known to defense counsel and presented to Petitioner‘s jury, there is no reasonable probability or likelihood that the jury‘s verdicts would have been affected. First and foremost, Petitioner confessed, and his confession was recorded on videotape. The recorded confession was shown to the jury during stage one (in redacted form) and stage two (unredacted) of Petitioner‘s trial (J. Tr. 10, 10-14; J. Tr. 14, 79-80, 85, 89; State‘s Exhibits 85 and 124). In his confession, Petitioner admits to killing both Ms. Moore and Mr. Pulluru. With respect to Ms. Moore, Petitioner stated that he knew Ms. Moore‘s son, Phillip; that Phillip was a snitch; that he told numerous people that Phillip was a snitch; and that he did not like snitches. Petitioner stated that Ms. Moore was killed because she was in the wrong place at the wrong time. Although he was looking for Phillip and did not go to the apartment to kill Ms. Moore, Petitioner stated that because she panicked, he had no choice. On the videotape, Petitioner demonstrates the way he shot Ms. Moore, and the way he wiped down anything he had touched to remove fingerprints. Petitioner went directly from Ms. Moore‘s apartment to the convenience store. Petitioner admitted to killing Mr. Pulluru in retaliation for statements made in the newspaper about a fellow Crips gang member (T-Nok) who had been killed at a neighboring convenience store during a robbery. Petitioner stated that he shot Mr. Pulluru with multiple bullets from two .357 handguns. After the killing, Petitioner poured “gas” on Mr. Pulluru and the cash register and set a fire to cover the evidence.
For the foregoing reasons, the Court finds that Petitioner is not entitled to relief on the first, second, and fourth claims presented in his Ground One. Having reviewed these claims on the merits, the Court finds that Petitioner has failed to show that the prosecution withheld material evidence, that his convictions were obtained through the use of perjured testimony, or that his trial counsel was ineffective. Having previously determined that Petitioner‘s third claim is procedurally barred, the Court hereby denies Petitioner‘s Ground One in its entirety.
In Ground Two, Petitioner asserts that in accordance with the Supreme Court‘s decision in Atkins v. Virginia, 536 U.S. 304 (2002), his death sentences cannot stand because he is mentally retarded. Petitioner raised this claim for the first time in his second post-conviction application. Although the OCCA ultimately found Petitioner‘s claim to be procedurally barred, it did so only after concluding, through the lens of ineffective assistance of counsel, that the underlying claim was without merit. Smith, 245 P.3d at 1235-38. Because Petitioner‘s claim is easily disposed of, the Court elects to bypass the procedural bar issue, review Petitioner‘s claim de novo, and deny relief on the merits. Revilla, 283 F.3d at 1210-11.
Under Oklahoma law, mental retardation is defined as “significantly subaverage general intellectual functioning, existing concurrently with significant limitations in adaptive functioning.”
It is undisputed that Petitioner received two I.Q. scores of 76 or above. In 2001, at the age of 18, Petitioner received an I.Q. score of 76, and in 2003, in preparation for trial, Petitioner received an I.Q. score of 79. In accordance with Oklahoma law, these scores prevent Petitioner from being considered mentally retarded. Nevertheless, Petitioner contends that when these scores are adjusted for the Flynn Effect, they fall within Oklahoma‘s parameters for mental retardation. The problem with this argument, however, is that Oklahoma does not recognize the Flynn Effect, and to date, its consideration has not been mandated by the Supreme Court.13 See Hooks, 689 F.3d at 1169-70 (referencing the OCCA‘s decision in Petitioner‘s case; noting that ”Atkins does not mandate an adjustment for the Flynn Effect[;]” and acknowledging that even if the Circuit believed that the Flynn Effect should be considered, it could not so hold on habeas review); Smith, 245 P.3d at 1237 n.6 (noting that “[t]he Flynn Effect has not achieved universal acceptance in courts where
C. Ground Three: Miranda14 Waiver.
In Ground Three, Petitioner asserts that his confession should not have been admitted against him at trial because he did not knowingly, voluntarily, or intelligently waive his constitutional rights. Petitioner also claims that his trial, appellate, and post-conviction counsel were all ineffective for failing to fully investigate and present all evidence relevant to this claim. Petitioner presented these claims to the OCCA on direct appeal and in his second post-conviction application. The OCCA addressed the merits of the claims and denied relief.15 Smith, 245 P.3d at 1238-42; Smith, 157 P.3d at 1170-72. Therefore, the question is whether the OCCA‘s decisions are contrary to or an unreasonable application of Supreme Court law. The Court easily concludes that they are not.
In his Petition, Petitioner challenges the OCCA‘s direct appeal decision on several grounds. First, Petitioner asserts that the OCCA made an unreasonable determination of the facts by characterizing his behavior during the interrogation as calm. He also takes issue
Relevant to Petitioner‘s challenges, the OCCA on direct appeal held as follows:
In this proposition, [Petitioner] claims his in-custody extrajudicial confession should not have been admitted as evidence because his waiver of Miranda [FN10] rights was unknowing and involuntary. [Petitioner] also claims that the district court did not apply the correct constitutional standards in evaluating whether he voluntarily and knowingly waived his Miranda rights.
FN10. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
To determine whether a confession is the result of free and unconstrained choice we look to the totality of the circumstances surrounding it, including the defendant‘s character and the details of the interrogation. Salazar v. State, 1993 OK CR 21, ¶ 12, 852 P.2d 729, 733. The State must prove the validity of a Miranda waiver by a preponderance of the evidence. Le v. State, 1997 OK CR 55, ¶ 7, 947 P.2d 535, 542. Where sufficient evidence supports the trial court‘s in camera ruling that a defendant‘s statements are voluntary, we will not disturb that ruling. Id.
. . . .
[Petitioner] . . . argues that he was incapable of knowingly and voluntarily waiving his rights because he was under the influence of the drug Phencyclidine (PCP) at the time he was interrogated. [Petitioner] was arrested at 12:27 p.m. on February 24, 2002. Detectives conducted the interview in question three days later on February 27th at 8:30 p.m. At the Jackson v. Denno [FN11] hearing held to determine the admissibility of the videotaped confession, [Petitioner] put on evidence that he was a long term PCP user. Additionally, in the interview tape itself, [Petitioner] admits to being under the influence of the drug at the time of his arrest three days earlier. The arresting officer testified that at the time of arrest, [Petitioner] appeared to be under the influence of drugs. Jailers at the Oklahoma County Jail testified that
[Petitioner] appeared to be under the influence of drugs to such an extent that when he was initially processed into the facility he had to be restrained and placed in isolation. A day later, [Petitioner] was released into the general population, and the interrogation did not occur until at least one day after that. Thus, the interrogation in which [Petitioner] waived his Miranda rights took place three days after his arrest, and presumably, at least three days after he ingested his last dose of PCP. The interrogating officers testified that at the time of the interview, [Petitioner] did not appear to be under the influence of drugs or alcohol. The videotape of the confession interview displays a coherent [Petitioner] calmly conversing with detectives, giving rational answers to their questions, and apparently capable of understanding the Miranda warnings provided by the interrogating officers. This record provides more than sufficient evidence to support the district court‘s determination that [Petitioner] knowingly and voluntarily waived his rights under Miranda.[FN12]
FN11. Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964), established a defendant‘s right to an in camera hearing on the voluntariness of a confession.
FN12. In any event, even if [Petitioner] was still under some lingering effects of PCP at the time of his videotaped interview, “[s]elf-induced intoxication, short of mania, or such an impairment of the will and mind as to make the person confessing unconscious of the meaning of his words, will not render a confession inadmissible, but goes only to the weight to be accorded to it.” Coddington, 2006 OK CR 34, ¶ 38, 142 P.3d at 448 (quoting Moles v. State, 1974 OK CR 57, ¶ 6, 520 P.2d 822, 824).
[Petitioner] also argues that the district court failed to properly evaluate the validity of the Miranda waiver under the totality of the circumstances standard. [Petitioner‘s] specific complaint is that the judge refused to allow a neuropsychologist, Dr. Bianco, to testify at the suppression hearing as to his [[Petitioner‘s]] intelligence. According to [Petitioner], Dr. Bianco‘s testimony was necessary to establish that he was of low intelligence and as a result was unable to comprehend the nature or consequences of the rights he was waiving. [Petitioner] also complains that the trial judge improperly relied on her observations of him in the interrogation videotape in reaching her conclusion about his intelligence. He argues that the videotape improperly focused the attention of the judge on issues relating to his culpability rather than his ability to voluntarily waive his right to remain silent.
At the suppression hearing, [Petitioner] made a detailed offer of proof as to Dr. Bianco‘s proposed testimony. Specifically, [Petitioner] offered that Dr. Bianco would testify as to [Petitioner‘s] intelligence level as determined by various tests. [Petitioner] also proffered that the doctor would advise the court on his observations of the differences between [Petitioner‘s] conduct as depicted on the confession videotape and [Petitioner‘s] conduct during an interview conducted by the doctor over a year later. The Court rejected the offer of proof and ruled Dr. Bianco‘s testimony not relevant to the question of the validity of [Petitioner‘s] waiver.
We have reviewed the trial court‘s rationale for denying Dr. Bianco‘s testimony and agree that the proffered expert testimony was not relevant. Moreover, the numerous examples cited by the district court judge of her observations of various aspects of [Petitioner‘s] conduct and statements during the interview and the court‘s explanation of how those examples illustrated a sufficient level of intelligence convince us that the district court did not confuse the substance of the taped confession and its relevance to the issue of culpability with the substance of the tape as evidence of [Petitioner‘s] mental abilities. The record shows the trial court judge had sufficient evidence before her to find by a preponderance of evidence that [Petitioner] knowingly and voluntarily waived his Miranda rights. This proposition of error is denied.
Within its analysis, the OCCA specifically found that “[t]he videotape of the confession interview displays a coherent [Petitioner] calmly conversing with detectives, giving rational answers to their questions, and apparently capable of understanding the Miranda warnings provided by the interrogating officers.” Id. at 1171. This finding of fact is presumed correct absent a “clear and convincing” showing by Petitioner that it is incorrect.
Petitioner also takes issue with the state courts’ failure to consider and receive evidence about his level of intelligence. Petitioner faults the OCCA for not applying the complete Miranda standard for assessing the validity of a waiver, and he faults the state trial court for excluding expert testimony about his low intelligence. In Miranda, the Supreme Court held that a defendant may waive his Miranda rights “provided the waiver is made
First, the relinquishment of the right must have been voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception. Second, the waiver must have been made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it. Only if the “totality of the circumstances surrounding the interrogation” reveal both an uncoerced choice and the requisite level of comprehension may a court properly conclude that the Miranda rights have been waived.
Id. (citations omitted). The Court finds that Petitioner has not shown that the state courts’ determination that Petitioner effectuated a valid waiver of Miranda rights is contrary to or an unreasonable application of Supreme Court law.
First, from a plain reading of the OCCA‘s opinion, it is clear that the OCCA fully grasped the issue at hand and assessed it in light of constitutional principles. At the onset of its analysis, the OCCA set forth the following standard of review:
To determine whether a confession is the result of free and unconstrained choice we look to the totality of the circumstances surrounding it, including the defendant‘s character and the details of the interrogation. The State must prove the validity of a Miranda waiver by a preponderance of the evidence. Where sufficient evidence supports the trial court‘s in camera ruling that a defendant‘s statements are voluntary, we will not disturb that ruling.
Smith, 157 P.3d at 1170 (citations omitted). This standard is consistent with Supreme Court authority.
Second, although the OCCA found no error in the trial court‘s exclusion of expert testimony regarding Petitioner‘s purportedly low intelligence, it is clear that Petitioner‘s
- “I mean, having watched the tape [Petitioner] is very cocky. He is extremely verbal about how he tricks people and misleads them and has got them convinced how crazy he is. He obviously can read because he talks about how he read the newspaper that day to see the clerk‘s comments and as part of his retaliation” (M. Tr. 5/21/03, 39);
- “Now, the fact that he‘s a low intelligence I don‘t think is a huge surprise to anybody based on the fact that we all deal with criminal law and most of the Defendants who come in here are not rocket scientists. Is there any law that says that I am to take that into consideration in Jackson v. Denno? Even someone of low intelligence. He obviously was able to plan how to switch clothes with different people and conceal his identity, confuse people. I mean, I‘m thinking that‘s a pretty smart cookie, street smart anyway” (M. Tr. 5/21/03, 40);
- “[Petitioner] talks about how he was hiding at different places when the police were looking for him and he was able to conceal himself and persuade other people to help him in his conspiracy to remain free from arrest. I don‘t know a whole lot about gangs, but this is a guy who said he didn‘t have a job and the Crips are known to be a little more violent than some of the other gangs. And he‘s able to get apartments and to do this and to do that. I‘m thinking he got the money somewhere, so that would tell me that he‘s somewhat smart. And so if he‘s smart enough to do all of those different things, identify neighborhoods where different sets are at, talk about different kinds of gang activities, he knows all the gang task force. I mean, he talks openly about what he is willing to give up to the cops and what he isn‘t and, you know. I mean, I can‘t see that what you‘re going to tell me in regard to him being of low intelligence is going to establish that he didn‘t understand what he was doing when he waived Miranda” (M. Tr. 5/21/03, 40-41);
“So, we don‘t have a situation where in my opinion there‘s been an issue raised on the videotape that he clearly didn‘t understand. I can foresee a situation where perhaps someone in the interview process would be so clearly disoriented or unable to comprehend, that then the testimony would be relevant whether or not he possessed that ability. But, you know, I‘ve got an hour and a half to two hours of watching somebody who was extremely animated and disturbingly explanatory about the murders he committed and how they were other people‘s fault. So, I don‘t think that I see any relevance to what you‘re prepared to put before the Court for the purposes of this hearing” (M. Tr. 5/21/03, 41-42); - What I‘m saying is that the truth or the veracity of the statement or examples that I gave, I‘m giving you as examples of his ability to reason, make intelligent decisions, to co-op other people into his plan and to understand perfectly the consequences of his actions as he‘s trying to avoid capture. And I‘m saying nothing in that indicates to me that this is a person who doesn‘t understand or is - - raises the kinds of issues that would require me, I think, to hear the testimony of your expert” (M. Tr. 5/21/03, 42-43); and
- “Well, I‘m going to summarize by saying that I do believe that there are circumstances under which the testimony that you have proffered by this expert would be relevant. The State‘s Exhibit 1 that I watched, I don‘t believe causes those issues to arise here. I believe that there are many indicias [sic] demonstrated that this Defendant possessed intelligence and certainly I have no way of gauging his intelligence level or malingering. I don‘t purport to know any of those things, but over a two-hour period of time, he demonstrated in many different ways his understanding of what was going on. I don‘t believe that specific testimony regarding his specific IQ range would be relevant . . . (M. Tr. 5/21/03, 50).
From this record, it is clear that the trial judge considered Petitioner‘s “requisite level of comprehension” in determining the validity of the Miranda waiver. Moran, 475 U.S. at 421. It is also clear that the OCCA considered these examples of intellectual functioning to find that “the trial court judge had sufficient evidence before her to find by a preponderance of
Petitioner‘s final argument with respect to the OCCA‘s direct appeal opinion is that it conflicts with the Supreme Court‘s decision in Rogers. In Rogers, 365 U.S. at 543-44, the Supreme Court held that the veracity of confession is not to be considered in determining its admissibility.
[F]or purposes of the Federal Constitution, . . . the question [is] whether the behavior of the State‘s law enforcement officials was such as to overbear petitioner‘s will to resist and bring about confessions not freely self-determined—a question to be answered with complete disregard of whether or not petitioner in fact spoke the truth.
Id. at 544. Contrary to Petitioner‘s assertion, however, neither the trial court nor the OCCA violated the principle announced in Rogers. As the OCCA found, the Court agrees that the examples and explanations given by the trial judge show “that [she] did not confuse the substance of the taped confession and its relevance to the issue of culpability with the substance of the tape as evidence of [Petitioner‘s] mental abilities.” Smith, 157 P.3d at 1171.
Petitioner additionally asserts that his trial, appellate, and post-conviction counsel were all ineffective for failing to fully investigate and present all evidence relevant to the constitutional validity of his Miranda waiver. Specifically, Petitioner asserts that counsel should have (1) conducted further investigation regarding his PCP intoxication and (2) should have investigated and presented evidence of his organic brain damage and mental retardation. Petition, p. 45. Petitioner presented these arguments to the OCCA in his second
Regarding the PCP intoxication issue, the OCCA found that Petitioner was not prejudiced by counsel‘s failure to further develop this issue. Smith, 245 P.3d at 1239-41. Reviewing the evidence which trial counsel presented as well as the additional evidence Petitioner asserts should have been presented, the OCCA concluded as follows:
We find that this proffered evidence is insufficient to show that trial counsel was ineffective. Specifically, we are convinced that expert testimony such as that contained in these two reports would not have changed the district court‘s decision on the voluntariness of [Petitioner‘s] waiver or our opinion on direct appeal affirming that decision. See Strickland, 466 U.S. at 693-94, 104 S.Ct. at 2067-68 (holding that to establish prejudice sufficient to warrant finding of ineffective assistance, “[t]he defendant must show that there is a reasonable probability that, but for counsel‘s unprofessional errors, the result of the proceeding would have been different“).
In finding that [Petitioner] voluntarily waived his Miranda-warned rights, the district court had already heard Dr. Kupiec‘s testimony explaining that [Petitioner] could have been experiencing lingering effects of PCP intoxication when he was interviewed three days after his arrest. Dr. Saint Martin and Dr. Mash‘s reports add nothing new in this regard. The only things that Dr. Saint Martin and Dr. Mash add are their observations of [Petitioner‘s] conduct during the interview and their opinions based on those observations that [Petitioner] was of such limited intellectual functioning and so intoxicated by PCP at the time he waived his Miranda-warned rights that he could not understand what he was doing.
While the trial court sitting as the trier of fact in this instance did not have Dr. Mash or Dr. Saint Martin‘s opinions before her, she did hear a proffer from defense counsel that a neuropsychologist, Dr. Faust Bianco, would testify as to [Petitioner‘s] low intelligence and how his slowness in processing information would have been exacerbated by PCP. The court was also told that Dr. Bianco would testify as to the differences between [Petitioner‘s] behavior on the videotape and his behavior when Dr. Bianco interviewed him one year later.
After hearing the proffer and ruling that Dr. Bianco‘s testimony about [Petitioner‘s] intelligence and differing behavior in the two settings would be irrelevant, the district court judge explained in detail how her own observations of [Petitioner] during the two-hour videotaped interview showed a cocky and extremely verbal individual, who was able to mislead people, read a newspaper, persuade others to assist him in hiding and avoiding arrest, conceal his identity, obtain an apartment, and explain various gang activities. According to the judge, these observations convinced her that [Petitioner] demonstrated sufficient intelligence and sufficiently clear thinking for her to find that the State had met its burden of showing that [Petitioner‘s] waiver of rights was voluntary. On direct appeal, we concluded that the videotaped interview showed “a coherent [Petitioner] calmly conversing with detectives, giving rational answers to their questions, and apparently capable of understanding the Miranda warnings provided by the interrogating officers.” Smith v. State, 2007 OK CR 16, ¶ 46, 157 P.3d 1155, 1171.
Based on the district court‘s careful review of [Petitioner‘s] behavior on the interview tape, and in light of the fact that the district court heard expert testimony that [Petitioner] may have been suffering from the lingering effects of PCP intoxication at the time of this interview and received proffered evidence of [Petitioner‘s] low intelligence, we do not find a reasonable likelihood that testimony from Dr. Mash or Dr. Saint Martin (or both) would have changed the outcome of the judge‘s conclusion that [Petitioner] voluntarily waived his Miranda-warned rights. Nor do their opinions change our conclusion as stated in [Petitioner‘s] direct appeal that the trial court‘s finding was proper.
Because there is not a reasonable likelihood that Dr. Mash and Dr. Saint Martin‘s testimony would have changed the outcome of the trial court‘s decision on the voluntariness of [Petitioner‘s] Miranda waiver, [Petitioner] fails to show prejudice flowing from the alleged errors committed by trial, appellate, and post-conviction counsel. This claim does not qualify for relief under Strickland.
there is no reason for a court deciding an ineffective assistance claim to approach the inquiry in the same order [as did the Supreme Court in Strickland] or even to address both components of the inquiry if the defendant makes an insufficient showing on one. In particular, a court need not determine whether counsel‘s performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. The object of an ineffectiveness claim is not to grade counsel‘s performance. If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed.
Strickland, 466 U.S. at 697. A showing of prejudice under Strickland “is a reasonable probability that, but for counsel‘s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694. Evaluating the OCCA‘s decision in light of Strickland and the deference afforded it by the AEDPA, the Court finds that Petitioner has not met the high standard required for relief.17
In support of this claim, [Petitioner] relies on those portions of Dr. Mash and Dr. Saint Martin‘s 2010 reports that opine that [Petitioner] is mentally retarded and that [Petitioner‘s] substance abuse could have caused brain damage that impaired his cognitive functioning to the extent that he could not adequately comprehend the Miranda warnings given him by police or assess the consequences of a waiver of the rights covered by those warnings.
Again, to prevail on a claim of ineffectiveness of counsel, a defendant must show prejudice from the alleged error of counsel, Strickland, 466 U.S. at 687, 104 S.Ct. at 2064, and to establish prejudice, “[it] is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding,” id. at 693, 104 S.Ct. at 2067. Rather, a defendant must show “a reasonable probability that, but for counsel‘s [alleged] unprofessional errors, the result of the proceeding would have been different.” Id. at 694, 104 S.Ct. at 2068.
In this instance, despite argument and proffers of evidence from counsel about [Petitioner‘s] low intelligence and mental impairment from drug abuse, the trial court judge concluded that [Petitioner] had sufficient intellectual functioning to waive his Miranda-warned rights. To support her conclusion, the judge gave a detailed account of her own observations of [Petitioner‘s] behavior on the two-hour police interview videotape and explained how [Petitioner‘s] behavior on that tape convinced her that [Petitioner] possessed sufficient intelligence and cognitive functioning to voluntarily waive his Miranda-warned rights. Based on our review of the judge‘s rationale and the record of the Jackson v. Denno hearing, we are not persuaded that Dr. Mash and Dr. Saint Martin‘s opinions about [Petitioner‘s] mental retardation or cognitive functioning would have swayed the judge to a different result. Hence there was no prejudice and counsel were not ineffective.
In conclusion, the Court finds that Petitioner is not entitled to relief on Ground Three. While Petitioner has presented multiple challenges to the validity of his Miranda waiver, he has not shown that the decisions rendered by the OCCA with respect to this ground are contrary to or an unreasonable application of Supreme Court law. In denying Petitioner relief on his Miranda-related claims, the OCCA and the state trial court relied heavily upon the videotape of Petitioner‘s confession, which is without question the best evidence to gauge the validity of Petitioner‘s Miranda waiver. An examination of the videotape reveals that the assessments made of it by the trial judge and the OCCA are accurate and reasonable, as is the analysis flowing from it. Under these circumstances, there is no persuasive argument that an “extreme malfunction[]” warranting habeas relief has occurred. Richter, 131 S. Ct. at 786. Relief on Ground Three is therefore denied.
D. Ground Four: Ineffective Assistance of Trial Counsel in the Investigation and Presentation of Mitigation Evidence.
In Ground Four, Petitioner alleges that his trial counsel were ineffective in the investigation and presentation of mitigation evidence. Although Petitioner acknowledges that trial counsel presented relevant mitigation evidence, Petitioner faults his trial counsel for not presenting it effectively. Petitioner additionally asserts that trial counsel should have done further investigation and presented evidence regarding his mental deficiencies,
In Richter, the Supreme Court addressed not only the limitations of the
[The
AEDPA ] preserves authority to issue the writ in cases where there is no possibility fairminded jurists could disagree that the state court‘s decision conflicts with [the Supreme] Court‘s precedents. It goes no farther.Section 2254(d) reflects the view that habeas corpus is a guard against extreme malfunctions in the state criminal justice systems, not a substitute for ordinary error correction through appeal.
Id. (internal quotation marks and citation omitted). When these limits imposed by the
Surmounting Strickland‘s high bar is never an easy task. An ineffective-assistance claim can function as a way to escape rules of waiver
Establishing that a state court‘s application of Strickland was unreasonable under
Richter, 131 S. Ct. at 788 (internal quotation marks and citations omitted).
As noted above, the OCCA addressed the merits of Petitioner‘s Ground Four on two occasions. Each time, the OCCA applied Strickland and denied relief because Petitioner failed to show that he was prejudiced by any alleged deficiencies in trial counsel‘s representation. In its order denying Petitioner‘s first application for post-conviction relief, the OCCA held as follows:
[Petitioner] claims next that trial and appellate counsel were ineffective for failing to investigate and present mitigating evidence during the sentencing phase of trial. In support of this claim, [Petitioner] submits affidavits from his mother and eleven relatives. He also submits copies of his father‘s arrest history and copies of protective order documents filed by [Petitioner‘s] mother against [Petitioner‘s] father.
In total, these affidavits and documents establish a larger quantity of mitigating evidence than was presented at trial, but cover little new ground. The affidavits and accompanying materials show that [Petitioner‘s] father was an alcoholic, that he was abusive, and that [Petitioner] was a gang member. These materials also show that [Petitioner] grew up in a neighborhood known for gang activity, violence, and drug activity. This information, in one form or another, was developed at trial. New information from [Petitioner‘s] mother, who did testify at trial, to the effect that [Petitioner] was delivered by forceps, suffered a head injury as a small child by running into a table, and suffered a broken leg and “minor head injury” in a bicycle accident, seem to suggest that trial counsel was ineffective for failing to elicit this testimony as evidence of brain damage, low intelligence, or mental retardation. Other than offering his mother‘s recollections of these childhood injuries, [Petitioner] proffers no evidence that might have been developed by trial counsel and actually used to connect the alleged injuries to the present time (e.g., current medical diagnoses of brain damage, mental retardation, or impairment). Furthermore, unlike the other affiants, [Petitioner‘s] mother testified at trial, yet [Petitioner] offers no explanation or evidence as to why trial counsel‘s failure to elicit this information from her was not sound trial strategy. Because much of the information contained in the proffered affidavits and other evidentiary materials had already been presented to the jury in some form, and because the slight bit of new information contained in these materials is tenuous at best, when the materials are viewed as a whole, we cannot say there was a reasonable probability that but for the lack of this information, the result of the sentencing proceeding would have been different. See Wood v. State, 2007 OK CR 17, ¶ 36, 158 P.3d 467, 479 (holding that to establish Strickland prejudice on ineffective assistance claim, petitioner must demonstrate reasonable probability that but for counsel‘s alleged error, outcome would have been different); Slaughter v. State, 2005 OK CR 6, ¶ 4, 108 P.3d 1052, 1054 (explaining that focus in capital post-conviction proceeding is on outcome determinative errors and factual innocence questions). Trial and appellate counsel‘s performance, therefore, did not deny [Petitioner] of his right to reasonably competent assistance of counsel under prevailing professional norms. See e.g., Murphy v. State, 2002 OK CR 32, ¶¶ 16-20, 54 P.3d 556, 564-65 (finding no ineffective assistance for failure to investigate and present mitigating evidence where post-conviction affidavits and other materials only provided more information about petitioner‘s life (e.g., violent father, violent neighborhood), but provided nothing new or so compelling as to convince Court there was reasonable probability of different
result), overruled on other grounds by Blonner v. State, 2006 OK CR 1, 127 P.3d 1135.
Smith, No. PCD-2005-142, slip op. at 6-8. In its order denying Petitioner‘s second post-conviction application, the OCCA held as follows:
[Petitioner] claims that trial counsel were ineffective in presenting his mitigation case at sentencing for failing to provide his jury with expert evidence that he suffered from organic brain damage and low intelligence caused by long-term daily use of the drug phencyclidine (PCP). Specifically, [Petitioner] cites to Dr. Saint Martin‘s report in which he states that: (1) [Petitioner] suffers from a “brain insult” caused by substance abuse; and (2) long term use of PCP inhibits the brain‘s ability to learn new information; (Appl. at 35-36, citing Att. 7 at 12-13). [Petitioner] also refers to Dr. Mash‘s report in which she stated that: (1) tests on [Petitioner] indicated “non-specific brain damage affecting his attention, calculation, and short term memory [that] could be due to [Petitioner‘s] substance abuse“; and (2) [Petitioner‘s] chronic drug use contributed to “diffuse impairment of cognitive functioning” and “undoubtedly contributed to development of brain abnormalities” (Appl. at 36, citing Att. 4 at 3-5). [Petitioner] also cites to the April 4, 2003, report by Dr. Faust Bianco in which Dr. Bianco reported that [Petitioner] began smoking marijuana on a daily basis at age ten and started smoking PCP on a daily basis at age eleven.
Assuming without deciding that counsel were deficient for failing to present this type of mitigating evidence at the sentencing stage, [Petitioner] cannot demonstrate a reasonable probability that the evidence would have affected the jury‘s weighing of the aggravating and mitigating evidence. Specifically, as other courts have observed, evidence of this sort has a “double-edged” quality. Wackerly v. Workman, 580 F.3d 1171, 1178 (10th Cir.2009). That is, a jury presented with evidence that the defendant is a chronic substance abuser might draw a negative inference from that evidence just as easily as it might find it mitigating. See Davis v. Executive Dir. of Dep‘t of Corr., 100 F.3d 750, 763 (10th Cir.1996) (finding petitioner not prejudiced by counsel‘s failure to investigate and present expert testimony at sentencing on nature and effects of his severe alcoholism because whatever the mitigating effect of such evidence, it was equally possible that jury would have faulted petitioner for repeated failures to address problem). In the current case in particular, such evidence might bolster a conclusion that the defendant
represents a continuing threat to society, one of the aggravating circumstances charged in this case. Cf. Wackerly, 580 F.3d at 1178 (reviewing cases). Given the uncertainty about how a jury might receive this type of evidence, we cannot find that [Petitioner] has demonstrated a reasonable probability that the jury would have reached a different sentencing result if it had been presented with evidence of [Petitioner‘s] chronic use of PCP and its allegedly attendant brain damage. [Petitioner‘s] counsel were not ineffective. See DeLozier v. Sirmons, 531 F.3d 1306, 1332 (10th Cir.2008) (finding that appellate counsel‘s decision not to argue that trial counsel was ineffective for failing to put on evidence of petitioner‘s substance abuse was not ineffective assistance because such evidence can be considered a “two-edged” sword), cert. denied, --- U.S. ----, 129 S.Ct. 2058, 173 L.Ed.2d 1138 (2009); Pace v. McNeil, 556 F.3d 1211, 1224 (11th Cir.2009) (finding that trial counsel‘s failure to present evidence of petitioner‘s substance abuse was not deficient in part because “presenting evidence of a defendant‘s drug addiction to a jury is often a ‘two-edged sword‘; while providing a mitigating factor, such details may alienate the jury and offer little reason to lessen the sentence“) cert. denied, --- U.S. ----, 130 S.Ct. 190, 175 L.Ed.2d 118 (2009); Jones v. Page, 76 F.3d 831, 846 (7th Cir.1996) (finding that counsel‘s failure to introduce evidence of petitioner‘s drug abuse was reasonable strategic choice because such evidence was “double-edged sword“).
Having reviewed these decisions by the OCCA, the Court simply cannot conclude that “all fairminded jurists would agree the [OCCA‘s] decision[s] [were] incorrect.” Frost v. Pryor, 749 F.3d 1212, 1225-26 (10th Cir. 2014) (“Under the test, if all fairminded jurists would agree the state court decision was incorrect, then it was unreasonable and the habeas corpus writ should be granted. If, however, some fairminded jurists could possibly agree with the state court decision, then it was not unreasonable and the writ should be denied.“) (emphasis added); Stouffer v. Trammell, 738 F.3d 1205, 1221 (10th Cir. 2013) (citing Richter, 131 S. Ct. at 786, for the proposition that relief is warranted “only if all ‘fairminded
Moreover, beyond what counsel did or did not do, Strickland requires more. Strickland requires a showing of “a reasonable probability that, but for counsel‘s unprofessional errors, the result of the proceeding would have been different.” Id. at 694. In denying Petitioner relief, the OCCA focused on Strickland‘s prejudice prong, which Strickland expressly permits. Id. at 697. Petitioner does not afford much argument to this component of Strickland except to say that if trial counsel had done more, then perhaps one juror would have voted against the death penalty. However, given Petitioner‘s gang affiliation and prior violent history, the evidence that he killed two innocent people in separate incidents on the same day, and that the murders were gang related, the odds that Petitioner would receive death verdicts were high. In the midst of these odds, trial counsel
E. Ground Five: Jury Questions.
In Ground Five, Petitioner asserts that his constitutional rights were violated when the trial court, during first stage deliberations, responded to two18 jury questions outside the presence of his counsel. Petitioner raised this claim on direct appeal and the OCCA denied relief. Smith, 157 P.3d at 1172-73. Petitioner raised the claim a second time in his second post-conviction application. The OCCA declined to reconsider its prior holding. Smith, 245 P.3d at 1243. The parties dispute how the federal aspects of this claim were presented to the OCCA. Petitioner contends that they were presented on direct appeal but overlooked by the OCCA. Accordingly, he contends that
Relative to this claim, the record reflects that the jury began first stage deliberations at 1:23 p.m. (J. Tr. 12, 90). At 3:32 p.m., the jury sent out a question asking if there was a videotape of Marcus Berry and if they could view it. The trial court gave a written response of “No.” (Court‘s Exhibit 7). At 6:01 p.m., the jury sent out a second question about its responsibilities in first stage deliberations. The trial court advised the jury to “assess punishment on all counts except if you find the defendant guilty of murder you will wait for the punishment stage on those 2 counts” (Court‘s Exhibit 8). The jury returned its first stage verdicts at 7:00 p.m. (J. Tr. 12, 90). After the jury was excused for the evening, an in camera hearing was held. At that time, the trial court advised the parties that they needed to make
We need to make a record in regard to State‘s Exhibit Number 133 pursuant to an agreement that we made at the time, which was that the State would move to withdraw that exhibit and then we would substitute in as a Court‘s exhibit a redacted version and I would ask you to, Mr. Siderias and Mr. Deutsch [the prosecutors], to make such motions.
MR. SIDERIAS: Judge, at this time we would move to withdraw State‘s Exhibit Number 133. We provided the Court with, I think what‘s going to be marked as Court‘s Exhibit 9, a redacted version of that tape which includes those parts played to the jury. . . .
THE COURT: All right. Anything from you all in regard to the substitution on Court‘s Exhibit 9 as we previously introduced?
MR. WOODYARD [defense counsel]: No, Your Honor.
(J. Tr. 12, 95-96). Immediately thereafter, the trial judge advised the parties of the questions received from the jury and her answers to them. Regarding the content of the questions, the trial judge stated, “They were not questions that I even felt like I needed to consult with counsel about.” Defense counsel made no comment or objection to the trial judge‘s announcement (J. Tr. 12, 96-97).
On direct appeal, Petitioner‘s claim centered around the trial court‘s failure to follow the procedure set forth in
In denying Petitioner relief, the OCCA held as follows:
In his fifth proposition of error, [Petitioner] claims the trial court denied his Sixth Amendment right to counsel and his right to due process when the court answered two notes from the jury deliberating in the first stage without first consulting with counsel and then bringing the jury into open court to answer the questions. In the first note, the jury asked “Is there a video tape of Marcus Berry? If so can we view it?” The trial court responded “No.” In the second note, the jury asked “Are we to assess punishment at [this] time or just guilt or innocence on every charge except the 2 murder charges?” The trial court answered the question as follows: “assess punishment on all counts except if you find the defendant guilty of murder you will wait for the punishment stage on those 2 counts.”
In this proposition, [Petitioner] complains that his constitutional rights to counsel and due process were violated by the trial court‘s failure to communicate with the jury in open court as required by
22 O.S.2001, § 894 . [FN13] The record shows that the trial judge did indeed answer the jury‘s questions by return note, without consulting counsel, and without bringing the jury back into court.FN13.
22 O.S.2001, § 894 states: “After the jury have retired for deliberation, if there be a disagreement between them as to any part of the testimony or if they desire to be informed on a point of law arising in the cause, they must require the officer to conduct them into court. Upon their being brought into court, the information required must be given in the presence of, or after notice to the district attorney and the defendant or his counsel, or after they have been called.”
When a communication between judge and jury occurs after a jury has retired for deliberations on a matter within the scope of
§ 894 and that communication does not comport with§ 894‘s requirements, a presumption of prejudice arises. Wilson v. State, 1975 OK CR 71, ¶¶ 5–6, 534 P.2d 1325, 1327. The presumption “may be overcome if, on appeal, this Court is convinced that on the face of the record no prejudice to the defendant occurred.” Id. Here, we agree with [Petitioner], that the district court erred by answering the jury‘s questions without notice to counsel. Nevertheless, because we find that [Petitioner] was not prejudiced by the error, reversal is not warranted.With regard to the trial court‘s answer about assessing punishment, by instructing the jury that they must assess punishment on all counts unless they found [Petitioner] guilty on the murder counts, in which case they must wait for the punishment stage on those two counts, the trial court provided the jury with a correct statement of the law. We are unable to discern how [Petitioner] was prejudiced by the jury being instructed correctly on the applicable law. We therefore find no merit in this claim.
The trial court‘s answer to the jury‘s question concerning the videotaped interview of Marcus Berry, however, presents a more complicated problem. [Petitioner] contends not only that the trial court‘s one-word answer “No” was factually incorrect with regard to the existence of the tape, but that the judge erred by answering “No” to the jury‘s request to review the tape.
The videotape in question, State‘s Exhibit 133 (later changed to Court‘s Exhibit 9), was a recording of Marcus Berry‘s interview with detectives. In that interview, Berry recounted various incriminating statements made to him by [Petitioner]. Portions of the tape were played for the jury during the course of Berry‘s testimony.[FN14] It appears from the trial transcript, however, that sometime prior to the jury beginning its deliberations, the prosecution and defense agreed that the exhibit would be withdrawn. The transcript of the proceeding, after the jury returned its verdict in the guilt phase, memorializes that earlier agreement as follows:
FN14. There is some confusion in the record as to whether the taped excerpts were used for impeachment or whether they were used to refresh Berry‘s memory. It appears from the context surrounding each instance, that the excerpts from the tape were used to refresh Berry‘s memory because each time an excerpt was played, it was in response to his claim not to remember what he told police about a specific matter
during the course of the taped interview. Nevertheless, because [Petitioner] asserts the videotape was used for impeachment and the State advanced the same assertion at oral argument, we assume for purposes of this appeal that the tape was used as impeachment evidence.
THE COURT: We need to make a record in regard to State‘s Exhibit Number 133 pursuant to an agreement that we made at the time, which was that the State would move to withdraw that exhibit and then we would substitute in as a Court‘s exhibit a redacted version and I would ask you to, Mr. Siderias and Mr. Deutsch, to make such motions.
MR. SIDERIAS [prosecutor]: Judge, at this time we would move to withdraw State‘s Exhibit Number 133. We provided the Court with, I think what‘s going to be marked as Court‘s Exhibit Number 9, a redacted version of that tape which includes those parts played for the jury. Also, I think we have marked as Court‘s Exhibit Number 1 the [Petitioner‘s] full confession unredacted.
. . .
THE COURT: All right. Anything from you all in regard to the substitution on Court‘s Exhibit Number 9 as we previously introduced?
MR. WOODYARD [defense counsel]: No, Your Honor.
(Tr. 12 at 95–96).
On the basis of this record, the trial court judge‘s decision not to consult counsel was correct because, as she understood it, counsel had already been consulted and the parties agreed the tape would be withheld from the jury. Any prejudice flowing from the jury‘s inability to review the tape, therefore, was the result of [Petitioner‘s] agreement that the tape be withdrawn. As such, the error cannot serve as the basis for reversal. See e.g., Ellis v. State, 1992 OK CR 45, ¶ 28, 867 P.2d 1289, 1299 (opinion on rehearing)(holding that error invited by defense counsel cannot serve as basis for reversal because defendant cannot invite error and then seek to profit from it); Pierce v. State, 1990 OK CR 7, ¶ 10, 786 P.2d 1255, 1259 (“[w]e have often recognized the well established principal that a defendant may not complain of error which he has invited, and that reversal cannot be predicated on such error“).[FN15]
FN15. At oral argument, [Petitioner] elaborated on the alleged prejudice flowing from the exclusion of the tape by advancing the position that the tape was critical impeachment evidence and had Berry been discredited by it, the remainder of the State‘s case would have collapsed as insufficient for lack of corroborating evidence of [Petitioner‘s] confession, the only other evidence linking him to the Moore murder. We are not convinced [Petitioner] was prejudiced in this way, even if it is assumed the videotape was improperly withheld from the jury. Specifically, even if Berry‘s testimony is discounted in its entirety, [Petitioner] overlooks the testimony of Sheena Johnson. Johnson‘s testimony corroborated [Petitioner‘s] confession to police and provided the necessary linkage to the Moore murder. As noted above, Johnson testified that [Petitioner] told her that he went to Moore‘s apartment and killed her. He also demonstrated the manner in which he shot her, a manner consistent with the description he gave detectives during the confession interview. This testimony is sufficient to corroborate [Petitioner‘s] admissions to police that he committed the Moore murder. In light of Johnson‘s testimony, therefore, it is not possible to conclude that if the Berry videotape had been provided to jurors and had discredited Berry completely, the outcome of the trial would have been different. Because the outcome of the trial would have been unaffected, the error, if any, was harmless. Furthermore, the trial transcript shows that the State used the tape in open court to contradict statements by Berry that he could not remember certain incriminating admissions made to him by [Petitioner]. Thus, while the tape may have impeached Berry‘s credibility by contradicting his professed lack of memory about [Petitioner‘s] admissions, the portions of the tape that were played for the jury consisted of statements made by Berry to police in which he recounted statements made to him by [Petitioner] admitting to the murders. Under these circumstances, where the impeachment evidence against Berry also constituted damning substantive evidence against [Petitioner], it is difficult to see how [Petitioner] was prejudiced by the jury being denied the ability to replay the tape in the jury room.
“When a federal claim has been presented to a state court and the state court has denied relief, it may be presumed that the state court adjudicated the claim on the merits in
Although the “adjudicated on the merits” presumption is a strong one, it is subject to rebuttal. Johnson, 133 S. Ct. at 1096. As acknowledged in Richter, 131 S. Ct. at 785, “[t]he presumption may be overcome when there is reason to think some other explanation for the state court‘s decision is more likely.” In the present case, however, the circumstances do not question application of the presumption. In addition to the fact that the OCCA expressly
Having determined that the OCCA adjudicated Petitioner‘s claim on the merits,
Petitioner makes three challenges to the OCCA‘s application of the law. He asserts that it is contrary to or an unreasonable application of United States v. Cronic, 466 U.S. 648 (1984), Shields v. United States, 273 U.S. 583 (1927), and Hicks v. Oklahoma, 447 U.S. 343 (1980). For the following reasons, the Court finds that Petitioner has failed to show that the OCCA‘s decision is contrary to or an unreasonable application of these Supreme Court cases.
In Cronic, 466 U.S. at 658-59, the Supreme Court held that prejudice is presumed when an “accused is denied counsel at a critical stage of his trial.” Asserting that jury deliberations are a critical stage, Petitioner contends that he was denied the effective assistance of counsel and that he is entitled to relief without any showing of prejudice
The threshold issue then is whether the trial court‘s interaction with the jury in this case constituted a critical stage. A critical stage denotes a point in a criminal proceeding which holds “significant consequences” for a defendant. Bell v. Cone, 535 U.S. 685, 696 (2002). It is a point “where counsel‘s absence might derogate from the accused‘s right to a fair trial.” United States v. Wade, 388 U.S. 218, 226 (1967). The Supreme Court has not addressed the issue of whether jury deliberations constitute a critical stage, but this is not necessarily the end of the inquiry. As the Supreme Court recently noted,
This is not to say that
§ 2254(d)(1) requires an “‘identical factual pattern before a legal rule must be applied.‘” Panetti v. Quarterman, 551 U.S. 930, 953 (2007). To the contrary, state courts must reasonably apply the rules “squarely established” by this Court‘s holdings to the facts of each case. Knowles v. Mirzayance, 556 U.S. 111, 122 (2009). “[T]he difference between applying a rule and extending it is not always clear,” but “[c]ertain principles are fundamental enough that when new factual permutations arise, the necessity to apply the earlier rule will be beyond doubt.” Yarborough, supra, at 666. The critical point is that relief is available under§ 2254(d)(1)‘s unreasonable-application clause if, and only if, it is so obvious that a clearly established rule applies to a given set of facts that there could be no “fairminded disagreement” on the question, Harrington, 562 U.S., at ----, 131 S.Ct., at 787.
White v. Woodall, 572 U.S. ___, 134 S. Ct. 1697, 1706-07 (2014).
Petitioner relies on cases from the Sixth and Seventh Circuits to support his assertion that jury deliberations constitute a critical stage. However, a review of these cases, as well
In French, the second case cited by Petitioner, the Sixth Circuit found that a defendant was denied counsel in a critical stage when the trial court issued a supplemental jury instruction to a deadlocked jury in the absence of his counsel. Id. at 438. While the Sixth Circuit granted Cronic relief in that case, it has held that “not every statement to the jury goes so far as to be a ‘critical stage’ instruction.” Peoples v. Lafler, 734 F.3d 503, 519 (6th Cir.
Regarding this issue, the Third Circuit has acknowledged the “conflicting views among several courts of appeals as to whether mid-deliberation communication with the jury constitutes a critical stage under Cronic.” Smith v. Kerestes, 414 F. App‘x 509, 511 (3rd Cir. 2011) (unpublished). In Smith, the court discussed its prior holding in United States v. Toliver, 330 F.3d 607 (3rd Cir. 2003). Id. In Toliver, the Third Circuit did not apply Cronic, finding that the trial judge did not “‘instruct‘” the jury by providing “verbatim specifically excerpted record testimony that the jury itself had requested.” In reaching its conclusion, the court noted that the circumstances were unlike cases where a trial court, without consultation with defense counsel, “clarif[ied] the substantive elements of the charged offense (Curtis [v. Duval, 124 F.3d 1 (1st Cir. 1997)]) or instruct[ed] a deadlocked jury (French). . . .” The court noted Cronic‘s applicability in those cases where the trial court “affirmatively guides jurors as to how they should fulfill their decisionmaking function.” Toliver, 330 F.3d at 614.
In Smith, the Third Circuit also noted that not every court has applied this distinction as to when Cronic applies. Smith, 414 F. App‘x at 511. For example, in Musladin v. Lamarque, 555 F.3d 830, 841 (9th Cir. 2009), the Ninth Circuit concluded that ”any
Although defense counsel plays a crucial role in formulating any mid-deliberation communication to the jury by the trial judge, where the judge simply directs the jury to his previous instructions, the potential impact of defense counsel‘s inability to participate is significantly lessened, because defense counsel played a role in the formulation of those instructions. In such circumstances, the jury receives only such information as was formulated with defense counsel‘s participation. Although we do not believe that defense counsel‘s prior participation is sufficient to render a mid-deliberation communication to the jury less ‘critical’ for purposes of the Cronic analysis, we cannot say that it would be unreasonable for a state court to so conclude. Accordingly, we are not free to hold that the state court‘s decision to require a demonstration of prejudice resulting from the denial of counsel here was objectively unreasonable.
Id. at 843 (footnote omitted).
In the absence of Supreme Court authority that jury deliberations constitute a critical stage for purposes of Cronic, and because a survey of the circuits reveals no consensus on the issue either, this is clearly an issue where fairminded jurists could disagree. See White, 134 S. Ct. at 1707 (
Petitioner also asserts that the OCCA‘s decision is contrary to or an unreasonable application of Shields which he contends is factually indistinguishable and stands for the proposition that he and his counsel were entitled to be present for the trial court‘s reinstruction of the jury. Petition, pp. 70-72. In Shields, the parties requested that the trial court hold the jury in deliberation until a verdict could be reached. Shields, 273 U.S. at 584. During deliberations, the trial court interacted with the jury on more than one occasion without the defendant or his counsel. These interactions revealed “a marked difference in the views which the jury had as to the guilt of the various defendants.” Ultimately, the jury found Shields guilty, but with a recommendation of mercy. Id. at 584-85, 588. The Supreme Court found that although the defense had agreed to allow the trial court to hold the jury in deliberation until a verdict could be reached, that agreement did not encompass the exclusion
Although Petitioner characterizes the Supreme Court‘s holding in Shields as a blanket rule warranting automatic relief whenever a defendant and/or his counsel are absent from any part of the jury trial proceedings, Petitioner‘s interpretation is much too broad, as demonstrated by subsequent Supreme Court authority. In Snyder, 291 U.S. at 105-06, the Supreme Court held that a defendant “has the privilege under the Fourteenth Amendment to be present in his own person whenever his presence has a relation, reasonably substantial, to the fullness of his opportunity to defend against the charge.” However, a due process violation occurs only when “a fair and just hearing would be thwarted by his absence,” and there is no violation where a defendant‘s “presence would be useless, or the benefit but a shadow.” Id. at 106-07, 108. In Rushen, 464 U.S. at 117, the Supreme Court held that harmless error applies to an ex parte communication between a trial judge and juror. Referencing Shields, the Court acknowledged that “[w]hen an ex parte communication relates to some aspect of the trial, the trial judge generally should disclose the communication to counsel for all parties.” Rushen, 464 U.S. at 119 & n.4 (emphasis added). The Court additionally noted as follows:
Our cases recognize that the right to personal presence at all critical stages of the trial and the right to counsel are fundamental rights of each criminal defendant. “At the same time and without detracting from the fundamental importance of [these rights], we have implicitly recognized the necessity for preserving society‘s interest in the administration of criminal justice. Cases involving [such constitutional] deprivations are [therefore] subject to the general rule that remedies should be tailored to the injury suffered ... and should not unnecessarily infringe on competing interests.” United States v. Morrison, 449 U.S. 361, 364, 101 S.Ct. 665, 667, 66 L.Ed.2d 564 (1981); see also Rogers v. United States, 422 U.S. 35, 38–40, 95 S.Ct. 2091, 2094–2095, 45 L.Ed.2d 1 (1975). In this spirit, we have previously noted that the Constitution “does not require a new trial every time a juror has been placed in a potentially compromising situation ... [because] it is virtually impossible to shield jurors from every contact or influence that might theoretically affect their vote.” Smith v. Phillips, 455 U.S. 209, 217, 102 S.Ct. 940, 946, 71 L.Ed.2d 78 (1982). There is scarcely a lengthy trial in which one or more jurors do not have occasion to speak to the trial judge about something, whether it relates to a matter of personal comfort or to some aspect of the trial. The lower federal courts’ conclusion that an unrecorded ex parte communication between trial judge and juror can never be harmless error ignores these day-to-day realities of courtroom life and undermines society‘s interest in the administration of criminal justice.
Id. at 118-19 (footnotes omitted). See also United States v. Gagnon, 470 U.S. 522, 526-27 (1985) (discussing both Snyder and Rushen).
In addition, the facts in Shields are distinguishable from the present case. In Shields, the trial court interacted with the jury on more than one occasion without consulting defense counsel when it was clear that the jury was struggling with the issue of guilt. The trial court in effect nudged the jury to a guilty verdict. In these circumstances, it is clear that the absence of the defendant and/or his counsel was detrimental to the defendant. In Petitioner‘s case, the trial judge imparted no additional knowledge to the jury. The judge‘s responses to the jury‘s questions were legally correct and in accordance with the agreement of the parties.
Petitioner‘s final argument is that the OCCA‘s decision is contrary to or an unreasonable application of Hicks. In Hicks, 447 U.S. at 346, the Supreme Court found a due process violation where the State arbitrarily denied a defendant his state law right to jury sentencing. To establish a due process violation occasioned by a state‘s failure to follow its own law, a habeas petitioner must show that the deprivation was “‘arbitrary in the constitutional sense‘; that is, it must shock the judicial conscience.” Aycox v. Lytle, 196 F.3d 1174, 1180 (10th Cir. 1999) (citation omitted). While it is clear that Petitioner is dissatisfied with the OCCA‘s treatment of his claim, Petitioner‘s arguments do not support a finding that the OCCA acted arbitrarily in its application of
In conclusion, for all of the reasons set forth above, Petitioner has failed to demonstrate his entitlement to relief. Ground Five is therefore denied.
F. Ground Six: Batson.
In Ground Six, Petitioner alleges a violation of Batson v. Kentucky, 476 U.S. 79 (1986). Petitioner challenges the prosecution‘s use of a peremptory challenge to remove an African-American from the panel of alternate jurors. Petitioner raised this
Batson stands for the well-established principle that the prosecution cannot use a peremptory challenge to remove a potential juror “solely on account of their race.” Batson, 476 U.S. at 89. In Batson, the Supreme Court set forth the standard to evaluate such claims.
First, the defendant must make a prima facie showing that the prosecutor has exercised peremptory challenges on the basis of race. Second, if the requisite showing has been made, the burden shifts to the prosecutor to articulate a race-neutral explanation for striking the jurors in question. Finally, the trial court must determine whether the defendant has carried his burden of proving purposeful discrimination.
Hernandez v. New York, 500 U.S. 352, 358-59 (1991) (citing Batson) (citations omitted). Regarding the second step, it is clear that the prosecution “must present a comprehensible reason“; however, the explanation given need not be either persuasive or plausible. “[S]o long as the reason is not inherently discriminatory, it suffices.” Rice v. Collins, 546 U.S. 333, 338 (2006). In the final step, the trial court evaluates the prosecution‘s given explanation, and it is here “that the persuasiveness of the justification becomes relevant . . . .” Purkett v. Elem, 514 U.S. 765, 768 (1995). With the understanding “that the ultimate burden of persuasion regarding racial motivation rests with, and never shifts from, the opponent of the strike[,]” it is here that the trial court “determines whether the opponent of the strike has carried his burden of proving purposeful discrimination.” Id.
the decisive question will be whether counsel‘s race-neutral explanation for a peremptory challenge should be believed. There will seldom be much evidence bearing on that issue, and the best evidence often will be the demeanor of the attorney who exercises the challenge.
Hernandez, 500 U.S. at 365. In the habeas context, this deference is not only acknowledged but magnified by the provisions of the AEDPA. As a question of fact, both
In denying Petitioner relief, the OCCA held as follows:
In his first assignment of error, [Petitioner] contends that the State‘s proffered race-neutral reasons for striking a potential alternate juror with a peremptory challenge was pretextual, and that the juror‘s excusal from the jury violated the Equal Protection Clause of the United States Constitution under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).
Batson establishes the following three part analysis: (1) the defendant must make a prima facie showing that the prosecutor exercised peremptory challenges on the basis of race; (2) after the requisite showing is made, the burden shifts to the prosecutor to articulate a race-neutral reason related to the case for striking the juror in question; and (3) the trial court must then determine whether the defendant carried his burden of proving deliberate discrimination. 476 U.S. at 96–98, 106 S.Ct. at 1723–24, 90 L.Ed.2d at 87–88. As for the second requirement, the United States Supreme Court noted the
race-neutral explanation by the prosecutor need not rise to the level justifying excusal for cause, but it must be a “clear and reasonably specific” explanation of his “legitimate reasons” for exercising the challenges. Neill v. State, 1994 OK CR 69, ¶ 17, 896 P.2d 537, 546 (quoting Batson, 476 U.S. at 98, n. 20). The trial court‘s findings as to discriminatory intent are entitled to great deference, id., and our review is for clear error only. Pennington v. State, 1995 OK CR 79, ¶ 29, 913 P.2d 1356, 1365. We review the record in the light most favorable to the trial court‘s ruling. Neill, 1994 OK CR 69, ¶ 17, 896 P.2d at 546. The record here shows the prosecutor offered several explanations for striking the potential alternate juror. A neutral explanation in the context of this analysis means one based on something other than the race of the juror. Short v. State, 1999 OK CR 15, ¶ 13, 980 P.2d 1081, 1091. At this step in the inquiry, the issue is the facial validity of the prosecutor‘s explanation. Id. Unless a discriminatory intent is inherent in the prosecutor‘s explanation, the reason given is deemed race neutral. Id. (quoting Hernandez v. New York, 500 U.S. 352, 360 (1991)); Purkett v. Elem, 514 U.S. 765, 768, 115 S.Ct. 1769, 1770–71, 131 L.Ed.2d 834, 839 (1995).
Here, the prosecutor used a peremptory challenge to excuse the venireman. In exercising the challenge, the prosecutor explained that:
He [the juror] does not want to sit on this jury. His initial questions. We‘re also concerned about the tattoos on his neck. That‘s generally a commonplace where gang members do tattoos of their initials or letters. They are kind of done in sort of a calligraphy, which again is common among gang members. When the Court asked him questions about gang activity, even though the Court had done that not in the presence of rest of the jury, and we‘re also concerned with his age and his ability to sit on a case of this magnitude. Those are all reasons together that we have kicked or excused him.
(Tr. 3 at 167).
Over defense counsel‘s objection, the trial court judge explained that she had inquired of the juror concerning the tattoo prior to the prosecutor exercising his peremptory challenge, and noted that in her experience, people get tattoos for gang related reasons and many do not. The judge then explained:
I do believe that he [the juror] has stated that he would prefer not to be here. I do believe that that is a reason that is race-neutral because I think it‘s clear he would prefer not to be here and I think he has stated that. So, I don‘t believe that your striking him is for an illegal purpose or for the purpose of excluding, quote, unquote, ‘minority’ members of the jury.
(Tr. 3 at 167).
On the basis of this record, we agree with the trial court‘s finding that the prosecutor‘s explanation (the juror‘s expressed reluctance to sit) provided a facially valid reason that in itself does not reveal an intent to discriminate on the basis of race. We move now to the next stage of the Batson analysis.
Once a race-neutral explanation for the peremptory strike has been advanced, the opponent of the strike bears the burden of proving purposeful discrimination. Batson, 476 U.S. at 98, 106 S.Ct. at 1724, 90 L.Ed.2d at 88–89; Purkett, 514 U.S. at 768, 115 S.Ct. at 1771, 131 L.Ed.2d at 839. A trial court‘s decision on the issue of discriminatory intent will not be overturned unless we are convinced the determination is clearly erroneous. Short, 1999 OK CR 15, ¶ 17, 980 P.2d at 1092. Here the trial court chose to believe the prosecutor‘s proffered race neutral explanation. There is no evidence in this record establishing that the prosecutor in this case had a history of purposeful discrimination against jurors on the basis of race or that race was even an issue in the case. No allegations were made that the commission of the offenses or [Petitioner‘s] prosecution for them were in any way racially or ethnically motivated. We find no error in the trial court‘s determination that [Petitioner] failed to carry his burden of showing purposeful discrimination.
[Petitioner] also raises two arguments that were not raised below in an attempt to demonstrate that the prosecutor‘s proffered justification for striking the juror was a pretext for purposeful racial discrimination. In the first, he claims the prosecutor‘s expressed concern about the juror‘s potentially gang-related tattoo was in itself evidence of an improper desire to exclude him based solely on race because, according to [Petitioner], gang membership is typically associated with minority races.[FN2] In the second, he claims that the prosecutor‘s proffered explanation was pretextual because the prosecutor did not strike two other potential alternate jurors who suggested that they preferred not to serve on the jury. We find neither argument persuasive.
FN2. [Petitioner] cites numerous extra-record sources to support his position that “common usage of the word ‘gang’ or term ‘Crips’ in Oklahoma County courtrooms is well-documented as applying overwhelmingly to African–American defendants.” Even if we were to accept [Petitioner‘s] contention that peremptorily striking a juror for gang membership is the same as striking him for his race, the fact is, potential gang membership or sympathy was just one of several reasons offered by the prosecutor as a basis for the strike. Where a prosecutor offers a discriminatory explanation for a strike among a number of other permissible and plausible race-neutral reasons, and the trial court bases its decision on one of the race-neutral explanations, there is no Batson violation. Rice v. Collins, 546 U.S. 333, 338, 126 S.Ct. 969, 975–76, 163 L.Ed.2d 824 (2006). Here, the record reflects that in addition to gang concerns, the prosecutor also voiced concerns related to the potential juror‘s unwillingness to serve on the jury as well as his age. Disregarding the proffered gang rationale, the trial court judge clearly decided the issue on the basis of the race-neutral reason that the juror did not want to serve on the jury. Under the Rice rationale, therefore, even if the proffered gang reason was discriminatory, because the judge disregarded that reason and based her decision instead on one of the other race-neutral reasons, there is no Batson error here. Additionally, as noted, the prosecutor in this instance also explained that he was concerned about the juror‘s age and his resulting ability to sit on a case of this magnitude. In Rice, 126 S.Ct. at 975, the Supreme Court found that a prosecutor‘s concern about a juror‘s youth was a valid race-neutral explanation for a peremptory strike because “[i]t is not unreasonable to believe the prosecutor remained worried that a young person with few ties to the community might be less willing than an older, more permanent resident to impose a lengthy sentence for possessing a small amount of controlled substance.”
[Petitioner‘s] first argument misses the mark. The record indicates that the State intended to show that [Petitioner‘s] involvement in at least one of the murders was related to his gang activities and that gang-related matters would permeate the trial. The motive for the Pulluru murder in particular was linked to [Petitioner‘s] desire to seek revenge against a convenience store owner he believed made disparaging comments to the media about Teron “T–Nok” Armstrong, a fellow gang member who was killed during the course of the attempted robbery at Tran‘s Food Mart in 2000. Also, the prosecutor certainly knew before trial that the defense intended to call an expert witness to testify in the penalty phase of the trial about the history, sociology, and dynamics of
gangs in Oklahoma in an effort to provide mitigating evidence on [Petitioner‘s] behalf. With gang activity and gang-related matters at issue in this case, any concern the prosecutor showed in the possible gang involvement of a prospective juror was reasonable and race neutral.[FN3] FN3. Additionally, allowing a gang member to serve on a jury when another gang member is on trial for gang-related criminal activity could compromise the accused‘s right to a fair trial if the gang-member juror turned out to be a member of a rival gang, or was in sympathy with a rival gang. Moreover, allowing a gang member to participate in jury deliberations in a gang-related case could place the jurors themselves in jeopardy. Indeed, the jurors in this case expressed concerns about the possibility of gang reprisals against themselves (See District Court‘s Findings of Fact Re: Order Sealing Records at 4 (Supp. Rec. filed Sep. 10, 2004)). As a result, the trial court judge placed all juror identity information under seal. Under the circumstances, therefore, where the subject matter of the trial revolved around gang-related criminal activities, the prosecutor‘s concerns that a juror might have gang connections or sympathies were reasonable.
We are also unpersuaded by [Petitioner‘s] argument that the prosecutor‘s failure to strike two other potential alternate jurors who also suggested that they did not want to serve constituted evidence of a pretext. The fact that the prosecution failed to challenge other potential jurors who also said they did not want to sit does not erode the legitimacy of the race-neutral explanation for challenging one juror. Cf. Short, 1999 OK CR 15, ¶ 15, 980 P.2d at 1092 (holding that “[t]he fact that this reason, criminal records by family members, was not used in every instance in which it arose to excuse potential jurors, does not lessen its legitimacy as a race-neutral explanation“). Further, [Petitioner‘s] claim on this score is factually infirm. The record shows that contrary to [Petitioner‘s] suggestion, the two jurors did not express an unwillingness to serve on the jury, much less do it in the same blunt terms as the excused juror. Instead, the record of voir dire shows the responses of the other two jurors were equivocal. Saying that sitting on a jury in a capital case “is not an easy thing,” or that being surprised at receiving a summons for jury duty, or that deciding between life without parole and death “would be hard choices to make” do not indicate an unwillingness to serve that is equivalent in any way to the sentiment expressed by the excused potential juror who said “I really don‘t want to be here.” [FN4]
FN4. An earlier round of questioning during voir dire included this exchange between the prosecutor and the excused potential alternate juror:
[Q.] Have you ever wanted to sit on a jury?
[A.] No.
[Q.] Still feel that way?
[A.] Yeah.
[Petitioner] also asserts that exclusion of this minority juror undermined the reliability of his death sentence under the Eighth Amendment of the United States Constitution. [Petitioner] raises this claim in a single-sentence assertion. He makes no attempt at developed argument, cites no authority, and points to no portion of the record for factual support. The Eighth Amendment prohibits excessive bail, excessive fines, and imposition of cruel and unusual punishment. Because [Petitioner] offers no explanation of how exclusion of the potential juror violated this constitutional provision, his mere assertion is insufficient to demonstrate the existence of legal error, much less demonstrate that the alleged error had a substantial effect on the outcome of the trial or sentencing proceeding.
Petitioner challenges the OCCA‘s decision on two grounds. First, Petitioner asserts that the OCCA, inconsistent with Batson, impermissibly placed a higher burden on him with respect to the prima facie showing. With a partial quotation of a sentence in the OCCA‘s opinion, Petitioner argues that the OCCA imposed upon him a requirement to prove that “the prosecutor in [his] case had a history of purposeful discrimination . . . .” Petitioner argues that Batson does not impose this standard and that it allows for a prima facie showing to be satisfied “based solely on the evidence concerning the State‘s use of peremptory challenges in his own case.” Petition, p. 80 (citing Batson, 476 U.S. at 95). The problem with Petitioner‘s contention lies in his failure to fully quote the referenced sentence. What the OCCA stated was this: “There is no evidence in this record establishing that the prosecutor
Second, Petitioner asserts that the OCCA did not properly apply Batson‘s third step. Here, Petitioner contends, as he did on direct appeal, that because there were other jurors who expressed a desire not to serve, the prosecutor‘s use of this reason to remove the Batson-challenged juror was pretextual.25 On direct appeal, Petitioner supported his argument with reference to two jurors who were a part of the alternate selection process, Juror F, who ultimately served as one of the alternate jurors, and Juror M. Here, Petitioner adds an additional juror, Juror A, who actually sat on the jury.
Although Petitioner faults the OCCA for including a statement26 which appears to downplay, if not disregard, the relevance of comparative juror analysis in assessing whether purposeful discrimination has occurred, the OCCA did not foreclose relief to Petitioner on this basis but ultimately analyzed and rejected Petitioner‘s comparisons as “factually infirm.”
In response to a question from the prosecutor about what Juror F thought about sitting on the case, the following exchange took place:
PROSPECTIVE JUROR F: At first I was against it but as I sat back there and listened to it - -
[PROSECUTOR]: You were against sitting on a trial, you were against the death penalty, what?
PROSPECTIVE JUROR F: No, I wasn‘t against the death penalty. I was just nervous to sit here. I didn‘t mind back there but I was dreading it up here.
[PROSECUTOR]: Now that you‘re up here , what do you think?
PROSPECTIVE JUROR F: I‘m getting a little easier. It‘s not an easy thing, I guess, if you understand what I‘m getting at. I can‘t explain myself real good.
(J. Tr. 3, 154-55). With Juror M, the prosecutor asked her if she had ever sat on a jury before, to which she replied, “No.” The prosecutor followed up with a question as to how she felt when she received her summons. She responded, “I was surprised” (J. Tr. 3, 157). In contrast, the Batson-challenged juror stated that he had never wanted to sit on a jury and that he still felt that way, followed by a second comment of “I really don‘t want to be
In conclusion, for the reasons set forth above, the Court finds that Petitioner has failed to demonstrate his entitlement to relief on this ground. Ground Six is therefore denied.
G. Ground Seven: Joinder of Offenses.
In Ground Seven, Petitioner asserts that he was denied a fair trial by being tried for the crimes against Ms. Moore and Mr. Pulluru in a single trial. Petitioner raised this claim on direct appeal and was denied relief. Petitioner asserts that the OCCA‘s decision is an unreasonable application of federal law as well as an unreasonable determination of the facts. Respondent contends that much of Petitioner‘s claim is unexhausted; however, Respondent additionally asserts that Petitioner has failed to show that the OCCA‘s decision is an unreasonable determination of the facts or that it is contrary to or an unreasonable application of United States v. Lane, 474 U.S. 438 (1986), the applicable Supreme Court authority.
Initially, the issue of exhaustion must be addressed. Respondent contends that Petitioner did not raise any federal claim on direct appeal, but instead argued only a violation
Respondent additionally asserts that Petitioner has supported his habeas claim with new arguments which are not properly before the Court. On this point, the Court agrees. In Pinholster, 131 S. Ct. at 1398, the Supreme Court held that review under AEDPA is “limited to the record that was before the state court that adjudicated the claim on the merits.” In support of his joinder claim, Petitioner has relied upon the affidavits of Ms. Johnson and Mr. Berry as well as others; however, this evidence was not presented to the OCCA at the
In Lane, the Supreme Court acknowledged that “[i]mproper joinder does not, in itself, violate the Constitution. Rather, misjoinder would rise to the level of a constitutional violation only if it results in prejudice so great as to deny a defendant his Fifth Amendment right to a fair trial.” Lane, 474 U.S. 438, 446 n.8 (1986). See Cummings v. Sirmons, 506 F.3d 1211, 1239 (10th Cir. 2007) (quoting Lane and requiring a habeas petitioner to show the denial of a fundamentally fair trial in order to obtain relief for improper joinder); Lucero v. Kerby, 133 F.3d 1299, 1314 (10th Cir. 1998) (same). “Such prejudice may arise when there is a great disparity in the amount of evidence supporting the charges or when the jury is likely to confuse the evidence or infer a criminal disposition on the part of the defendant.” Webber, 390 F.3d at 1178 (citing Lucero).
In his attack of the OCCA‘s opinion, Petitioner argues that the murders of Ms. Moore and Mr. Pulluru were separate and distinct crimes. Although relying heavily on the affidavits of Ms. Johnson and Mr. Berry (which the Court is not considering, see fn.28, supra), Petitioner argues against the OCCA‘s finding that the murders were gang-related. Petitioner additionally asserts that the murders were not geographically related, nor did they evidence
In denying Petitioner relief on this claim, the OCCA held in pertinent part as follows:
In this instance, the two murders were properly joined. Evidence for each murder consisted of [Petitioner‘s] confession tape, the testimony of Detectives Sterling and McNutt, as well as the testimony of Marcus Berry and Sheena Johnson. The confession tape and witness testimony contained admissions and statements made by [Petitioner] during the course of conversations that simultaneously covered both murders. Trying each murder separately by presenting the same confession tape and witness testimony, therefore, would result in waste of judicial resources. Furthermore, because the tape and testimony contained admissions and statements made by [Petitioner] during the course of conversations that simultaneously covered both murders, wrenching the relevant admissions and statements from the context in which they were uttered would likely render the testimony unintelligible to a jury. Because the proof of each murder was inextricably intertwined with proof of the other, severance would have been impractical.
Furthermore, despite [Petitioner‘s] arguments that the two murders were unrelated, and therefore not properly joined, we are convinced that the proof related to each murder did overlap, and that it did so in such a way as to show a common scheme or plan. Specifically, the forensic evidence showed that at least one of the handguns used in the Moore murder was also used in the Pulluru murder. Additionally, [Petitioner‘s] admissions showed that in both instances he attempted to conceal his identity by eliminating fingerprint evidence at the scene (albeit in Moore‘s case he did so by wiping down the apartment and in Pulluru‘s case he did so by setting fire to portions of the convenience store where he touched things). Moreover, [Petitioner‘s] statements to police, to fellow gang member Marcus Berry, and to Sheena Johnson overlapped sufficiently to create a logical connection between the two murders. [Petitioner‘s] statements established the requisite nexus by tying both murders together as part of a common plan to take care of business that day by exacting revenge or retaliation against persons who had either wronged him directly or wronged him indirectly through his gang family.
In the case of the Moore murder, for example, [Petitioner] told Marcus Berry several days before the killings that Janet Moore‘s son was a “snitch” and that “snitches need to be dead.” On the morning of the day following the killings, [Petitioner] told Berry that: (1) he had done something he had to do; (2) he had handled his business; and (3) he had gotten revenge on people who “crossed his family.” In a separate conversation, [Petitioner] told Sheena Johnson “[t]hat bitch ass n* * * * * [Moore‘s son] sent the police to my house, my apartment” and that as a result, he had gone to Moore‘s apartment looking for the son. [Petitioner] told her that once he was in Moore‘s apartment, she started screaming so he shot and killed her.
The Pulluru murder was likewise shown to be part of [Petitioner‘s] plan to “take care of business” through retaliation. Evidence supporting this motive included the facts that [Petitioner] professed to have been very close to gang member Armstrong who was killed in the Tran‘s Food Mart robbery attempt. Specifically, [Petitioner] claimed to have brought Armstrong into the gang, paid his funeral expenses, and told Armstrong‘s mother that he would avenge Armstrong‘s death. Furthermore, [Petitioner] wore Armstrong‘s nickname “T–Nok” as a tattoo, and shouted “this is for my little homey that is dead” as he fired multiple shots into Pulluru.
Mr. Han Vo provided additional linkage between the 2000 robbery and the revenge-retaliation aspect of the Pulluru murder. Mr. Vo was the owner of Tran‘s Food Mart and was the victim of the attempted robbery in which
Armstrong was killed. Mr. Vo testified that his convenience store was located immediately adjacent to the store where Pulluru was killed. He testified further that on the Friday morning of the Pulluru homicide, he was in the district attorney‘s office preparing for the trial of the two surviving would-be robbers. By showing that the Pulluru murder occurred within yards of the location where Armstrong was killed, and that the Pulluru murder occurred within two days of the trial of the surviving robbers, Mr. Vo‘s testimony provided evidence supporting an inference that the Pulluru murder was part of a plan to exact revenge for the events surrounding Armstrong‘s gang-related death. In summary, the evidence available to the district court judge at the time she ruled on [Petitioner‘s] joinder claims, and the development of that evidence at trial showed the Moore and Pulluru killings: (1) occurred within a relatively short period of time (i.e., one-and-a-half hours); (2) occurred in approximately the same location (i.e., south Oklahoma City); and (3) overlapped in such a way as to indicate a common scheme or plan (i.e., a plan to retaliate against persons [Petitioner] perceived to have wronged him or his gang or his fellow gang members). This evidence was sufficient to link the two murders together as a series of related criminal acts. The district court judge did not abuse her discretion in overruling [Petitioner‘s] objection to joinder or denying his motion for severance.
[Petitioner] also claims that combining two separately charged murders, one of which he contends was supported by weak or nonexistent evidence, resulted in prejudicial joinder sufficient to deny him a fair trial. [Petitioner] argues that joining the Moore case, which he characterizes as supported by weak or insufficient evidence, with the Pulluru case and its gruesome gang-related evidence, increased the likelihood that the jury would return a guilty verdict in both cases by: (1) relying on the proof of the stronger Pulluru murder to convict on the weaker Moore murder; or (2) inflaming the jury so much on evidence of the gang-related Pulluru murder that the jury reached a guilty verdict on the Moore murder on the basis of passion or prejudice.
Some courts have recognized that joinder of offenses in a single trial may be prejudicial if there is great disparity in the amount of evidence underlying the joined offenses.[FN7] Contrary to [Petitioner‘s] assertions, however, this is not one of those cases. In this claim, [Petitioner] focuses exclusively on the evidence of the Pulluru murder and argues that the weight of its evidence overpowered weak or nonexistent evidence in the Moore case. [Petitioner] ignores, however, the strong independent evidence supporting the Moore verdict. In particular, he gives no consideration to his videotaped
confession and ignores the fact the confession was well corroborated by admissions made separately to Sheena Johnson and Marcus Berry. The Moore murder was proved by separate and distinct evidence sufficient to support a guilty verdict. We find no merit to [Petitioner‘s] claim of prejudicial misjoinder based on disparities in the quanta of evidence. FN7. In a post-oral argument notice of supplemental authority, [Petitioner] calls our attention to two cases discussing this theory of misjoinder. Specifically, [Petitioner] refers us to Lucero v. Kerby, 133 F.3d 1299 (10th Cir.1998) and United States v. Foutz, 540 F.2d 733 (4th Cir.1976). To the extent these cases establish a cognizable constitutional theory of misjoinder, for the reasons set out in the main text, we find that [Petitioner] fails to show that he suffered this type of misjoinder.
[Petitioner] also asserts that the jury reached its verdict in the Moore murder on the basis of passions inflamed by the egregious facts of the Pulluru murder, especially facts relating to his gang activities. [Petitioner] points to nothing in the record, however, indicating that the jury was unable to compartmentalize the evidence with regard to each count. Furthermore, [Petitioner‘s] jury was specifically instructed to give separate consideration to each offense as follows:
EVIDENCE—SEPARATE CONSIDERATION FOR EACH OFFENSE
You must give separate consideration for each offense. The defendant is entitled to have his case decided on the basis of the evidence and law which is applicable to each offense. The fact that you return a verdict of guilty or not guilty on one offense should not, in any way, affect your verdict regarding any one of the other offenses.
(Instruction No. 6 (citing OUJI–CR 9–6))(emphasis added). [Petitioner] does not point to anything in the record tending to show that the jury failed to follow this instruction. With nothing but a bare allegation of prejudice, and in light of the fact that the jury was specifically instructed to give separate consideration to each offense, we cannot conclude that joinder of the Moore and Pulluru murders resulted in prejudice so great as to deny [Petitioner] a fair trial.
Smith, 157 P.3d at 1167-69 (heading omitted).
H. Ground Eight: Ineffective Assistance of Trial and Appellate Counsel Relating to the Prosecution‘s Multiple References to Petitioner as “Hoover Killer.”
In Ground Eight, Petitioner asserts that he was denied the effective assistance of counsel at trial and on appeal with respect the prosecution‘s multiple references to him as “Hoover Killer” throughout both stages of trial. Petitioner faults his trial counsel for not making objections at trial and he faults his appellate counsel for not raising the claim on appeal. Petitioner raised this claim in his first application for post-conviction relief. Because one of Petitioner‘s trial lawyers also represented Petitioner on direct appeal, the OCCA did not apply a procedural bar to the claim, but instead addressed it on the merits. Petitioner
In denying Petitioner‘s claim, the OCCA held as follows:
[Petitioner] claims first that trial and appellate counsel were constitutionally ineffective for failing to object at trial or argue on appeal that the prosecutor committed misconduct by referring to him as “Hoover Killer” or “H.K.” To obtain relief for ineffective assistance of trial or appellate counsel, a petitioner bears the burden of showing: (1) that counsel‘s performance was constitutionally deficient; and (2) that counsel‘s deficient performance prejudiced the defense by depriving him of a fair trial with a reasonable result. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 123 L.Ed.2d 674 (1984).
Name-calling by a prosecutor is an unwarranted expression of personal opinion. Browning v. State, 2006 OK CR 8, ¶ 38, 134 P.3d 816, 839. Where the names are supported by the evidence, or the characterizations inherent in the names are reasonably inferred from the evidence, however, there is no error. See e.g., Browning, 2006 OK CR 8, ¶ 38, 134 P.3d at 839 (finding that prosecutor‘s references to defendant as cold-blooded killer and wolf in sheep‘s clothing were not error because they were reasonable inferences from the record); Malicoat v. State, 2000 OK CR 1, ¶ 32, 992 P.2d 383, 401 (finding no plain error in prosecutor‘s repeated use of terms monster and evil to describe defendant); Hammon v. State, 2000 OK CR 7, ¶¶ 56, 60, 999 P.2d 1082, 1095-96 (finding no error in prosecutor‘s reference to defendant as “Ruthless Richard” where name was one defendant used to describe himself as shown by signature on letter he wrote from jail).
Evidence at trial showed that [Petitioner] identified himself as “Hoover Killer” and adopted that name as part of his street persona. During his interview with detectives, for example, [Petitioner] admitted that he used the nickname and proudly displayed a tattoo consisting of the initials “H.K.” Additionally, [Petitioner‘s] roommate testified that he knew [Petitioner] by the names “Hoover Killer” and “H.K.,” and [Petitioner‘s] female confidant, to whom he admitted details of the homicide, knew him only by these nicknames. Because there is evidence that [Petitioner] chose the names for himself, and because there is evidence supporting his use of the names, there was no error
in the prosecutor‘s use of the names when referring to him. Consequently, had trial counsel objected to use of the names, or had appellate counsel raised the issue on direct appeal, the objection or claim would have been denied.[FN1] Neither trial nor appellate counsel were ineffective for failing to raise a meritless issue. Pavatt v. State, 2007 OK CR 19, ¶ 66, 159 P.3d 272, 292. [FN1] This Court rejected [Petitioner‘s] nearly identical claim in his appeal of an unrelated second-degree murder conviction. In Smith v. State, No. F-2004-290, Op. at 17 (Jun. 29, 2006) (not for publication), this Court found that the prosecutor‘s use of the name “Hoover Killer” was not error where the nickname was chosen voluntarily by [Petitioner], and the use of the name, when viewed in context, did not appear excessive or in bad faith.
Furthermore, on this record, we fail to see how [Petitioner] was prejudiced, even if the prosecutor‘s use of the nickname is assumed to be error. Specifically, we are not convinced that had the prosecutor simply referred to [Petitioner] by his birth name rather than his nickname, the jury would have overlooked the otherwise very strong evidence of guilt (e.g., videotaped confession to police and incriminating statements to third parties), or overlooked the strong evidence supporting the death penalty aggravating factors. See Strickland, 466 U.S. at 691, 104 S.Ct. at 2067 (“[a]n error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment“).
Smith, No. PCD-2005-142, slip op. at 3-5. Because the OCCA addressed Petitioner‘s claim on the merits, applied Strickland, and denied Petitioner relief in a well-reasoned opinion, Petitioner‘s ability to obtain relief is significantly minimized. See Ground Four, supra (discussing Richter and the high deference afforded Strickland claims under the AEDPA).
In support of his argument that the OCCA‘s decision is contrary to federal law, Petitioner addresses the propriety of the underlying prosecutorial misconduct claim, asserting that the OCCA unreasonably determined that it was a meritless issue. Petitioner references two Supreme Court cases, Donnelly v. DeChristoforo, 416 U.S. 637 (1974), and Dawson v. Delaware, 503 U.S. 159 (1992). In Donnelly, the Supreme Court set forth the standard for assessing claims of prosecutorial misconduct. Generally, it is a due process test, i.e., whether the prosecutor‘s conduct “so infected the trial with unfairness as to make the resulting conviction a denial of due process.” Donnelly, 416 U.S. at 643. However, “[w]hen specific guarantees of the Bill of Rights are involved, . . . special care [is taken] to assure that prosecutorial conduct in no way impermissibly infringes them.” Id. Petitioner then relies on Dawson to support his claim that the prosecution infringed a specific right, namely his First Amendment freedom of association, when they referred to him by a gang-related name. Dawson, 503 U.S. at 163 (acknowledging “that the First Amendment protects an individual‘s right to join groups and associate with others holding similar beliefs“).
Respondent is correct that Petitioner did not argue to the OCCA that his First Amendment right of association was infringed. See Original Application for Post Conviction Relief, Case No. PCD-2005-142, pp. 21-24. Nevertheless, it is clear that this argument lacks merit. See
Petitioner additionally takes issue with the OCCA‘s prejudice determination, which included the OCCA‘s assessment that the evidence supporting Petitioner‘s convictions and death sentences was strong. Id. With reference to his first ground for relief, Petitioner argues that the evidence against him was not as strong as the OCCA found. Respondent asserts that this argument is unexhausted as well; however, the Court disagrees. This allegation is not a new claim, but an appropriate argument directed at the reasonableness of
In summary, for the reasons set forth above, the Court finds that Petitioner is not entitled to relief on Ground Eight. Because Petitioner has not shown that the OCCA acted unreasonably in the determination of his claim, his Ground Eight is hereby denied.
I. Ground Nine: Jury‘s Weighing of Aggravating and Mitigating Circumstances.
In Ground Nine, Petitioner asserts that Ring v. Arizona, 536 U.S. 584 (2002), requires Oklahoma capital juries to find beyond a reasonable doubt that the aggravating circumstances outweigh the mitigating circumstances. Petitioner presented this claim to the OCCA on direct appeal. Having repeatedly rejected similar claims, the OCCA denied Petitioner relief. Smith, 157 P.3d at 1179. Although Petitioner reasserts the claim here, he acknowledges the Tenth Circuit‘s decision in Matthews v. Workman, 577 F.3d 1175, 1195 (10th Cir. 2009), which is consistent with OCCA precedent. In light of Matthews, as well as the Tenth Circuit‘s recent decision in Lockett, 711 F.3d at 1252-55,30 the Court finds that Petitioner has
J. Ground Ten: Cumulative Error.
In his final ground, Petitioner asserts that he is entitled to relief upon a claim of cumulative error. Petitioner unsuccessfully raised a cumulative error claim to the OCCA on direct appeal and in both of his applications for post-conviction relief. Respondent‘s initial contention is that the absence of Supreme Court authority on the viability of a claim of cumulative error prevents relief. However, Respondent additionally asserts that Petitioner‘s claim must be denied because the OCCA reasonably denied relief.
Without addressing Respondent‘s initial contention, the Court finds that Petitioner is simply not entitled to relief on a cumulative error theory. In the state court review of Petitioner‘s convictions, the OCCA found only one error and that was due to the trial court‘s failure to comply with the procedural requirements of a state statute. Smith, 157 P.3d at 1172 (finding that the trial court erred by responding to jury notes without notice to defense counsel). With only one error (which the OCCA ultimately determined was harmless), the OCCA‘s conclusion on direct appeal, and thereafter in post-conviction review, was that because there was only one error, there could be no cumulative error claim. Smith, 245 P.3d at 1243; Smith, No. PCD-2005-142, slip op. at 8; Smith, 157 P.3d at 1179. Because the
V. Conclusion.
After a thorough review of the entire state court record, the pleadings filed herein, and the applicable law, the Court finds that Petitioner is not entitled to the requested relief. Accordingly, Petitioner‘s Petition (Doc. 28) and motion for an evidentiary hearing (Doc. 35) are hereby DENIED. A judgment will enter accordingly.
IT IS SO ORDERED this 16th day of September, 2014.
TIMOTHY D. DEGIUSTI
UNITED STATES DISTRICT JUDGE