Fields v. USA

Filing 125

ORDER by Judge Ronald A. White denying Petitioner's Motion to Vacate, Set Aside or Correct a Sentence pursuant to 28 U.S.C. Section 2255 (Re: 1 Motion to Vacate, Set Aside or Correct Sentence (2255) ) (lal, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF OKLAHOMA
EDWARD LEON FIELDS,
Petitioner/Defendant,
vs.
UNITED STATES OF AMERICA,
Respondent/Plaintiff.

)
)
)
)
)
)
)
)
)

Case No. 10-CIV-115-RAW

OPINION AND ORDER
This is a proceeding initiated, on April 6, 2010, by the above-named petitioner’s
filing of a Motion to Vacate, Set Aside, or Correct Sentence.1 The motion to vacate
conviction and sentence is brought pursuant to 28 U.S.C. § 2255. The government has filed
a response by and through the United States Department of Justice and the United States
Attorney for the Eastern District of Oklahoma. On November 15, 2010, Petitioner filed his
reply.
PROCEDURAL HISTORY
On August 1, 2003, Petitioner was named in a six-count indictment. The indictment
charged Petitioner with Counts 1 and 3: First Degree Murder, in violation of 18 U.S.C. §§
1111(a) and (b), 7(3) and 13; Counts 2 and 4, Use of a Firearm in a Federal Crime of

1

The motion itself does not contain any of the grounds for relief. Rather, Petitioner states:

Mr. Fields raised ten grounds for relief. They are set forth in the pages
attached to the back of this form. To aid the Court, Mr. Fields includes an Index to
Grounds which is at the beginning of the attachment.
With respect to each of the ten grounds raised, none were raised on direct
appeal or in any other post-conviction proceeding.” Dkt. # 1, at p. 5.
Only nine grounds, however, are raised in the pages attached to the original motion to vacate.
Dkt. #s 1-2 and 1-3.

Violence Causing the Death of a Person, in violation of 18 U.S.C. §§ 924(c)(1)(A), (d), (j),
7(3) and 13; Count 5, Assimilative Crime – Robbery with a Firearm, in violation of 18
U.S.C. § 7(3) and 13; and Count 6, Assimilative Crime – Burglary of an Automobile, also
in violation of 18 U.S.C. § 7(3) and 13. On March 15, 2004, the government gave notice of
its intention to seek the death penalty in the event of a conviction on Counts 1 and/or 3.
On June 30, 2005, Petitioner appeared before this court and waived jury trial as to
stage one only and entered pleas of guilty to all of the six counts contained in the indictment.
Thereafter, on July 5, 2005, this court began death penalty qualification of potential jurors.
On July 13, 2005, the second stage jury trial was commenced. On July 22, 2005, the jury
unanimously returned a verdict of death. Cr. Dkt. # 228.
On November 8, 2005, the court sentenced Petitioner to death on Counts 1 and 3; 405
months on Counts 2 and 4, to be served consecutively to one another and consecutively to
any other term of imprisonment imposed; 405 months on Count 5; and 84 months on Count
6. Additionally, in the event of subsequent release, Petitioner was ordered to serve 36
months of supervised release. Petitioner was further ordered to pay restitution in the sum of
$15,323.84 and a $100 special assessment on each count, for a total special assessment of
$600. The judgment and commitment was filed of record on November 15, 2005.
Following his conviction, Petitioner filed a direct appeal. The following issues were
raised on appeal:
1. The federal government lacked subject-matter jurisdiction to prosecute
Fields for crimes committed in the Quachita National Forest.
2. The district court erred in sustaining the government’s challenge to a
potential juror for cause.
3.
Double-counting of the aggravator for substantial planning and
premeditation unconstitutionally skewed the weighing process because the
victims were killed in a single episode.
2

4. The single verdict of death on two counts of murder deprived Fields of a
unanimous verdict on each count.
5. The evidence was insufficient to prove substantial planning and
premeditation.
6. The non-statutory aggravating factor for future dangerousness is
unconstitutionally vague and overbroad, should have been limited to future
danger in the prison setting, and was not supported by the evidence.
7. Since the jury was not required to unanimously agree on the which factual
predicates applied to the future dangerousness aggravator, petitioner’s right to
a unanimous verdict was violated.
8. The non-statutory aggravator relating to the infliction of anguish or other
special suffering on the part of a victim is unconstitutionally vague and
overbroad and statutorily preempted.
9. The trial court improperly admitted evidence regarding the impact of the
murders on people unrelated to the victims.
10. The unanimous rejection of the severe disturbance mitigator was
prejudicial error.
11. The jury should have been required to find that the aggravating factor(s)
sufficiently outweigh the mitigating factors beyond a reasonable doubt.
12. The trial court’s decision to allow the “guilley suit” in the jury room
during deliberations was improper.
13. Cumulative error requires reversal.
After considering each of these issues, the Tenth Circuit Court of Appeals affirmed
Petitioner’s conviction. United States v. Fields, 516 F.3d 923 (10 th Cir. 2008), cert. denied,
129 S.Ct. 1905, 173 L.Ed.2d 1060 (2009).2
On April 6, 2010, Petitioner filed his Motion to Vacate pursuant to 28 U.S.C. § 2255
(Dkt. # 1). As previously indicated, Petitioner raised nine (9) grounds for relief. Seven of
those grounds contain Sixth Amendment claims that he received ineffective assistance of
counsel. In addition, he claims the Eighth Amendment was violated because the jury did not
2

Certiorari was denied on April 6, 2009.
3

find as mitigating factors any of the uncontested mental health-related mitigating factors
presented; the Eighth Amendment and international law bar his execution because he is not
competent to be executed and the death penalty is precluded due to his deteriorating mental
health; prosecutorial misconduct deprived him of due process and a fair trial; his Due Process
rights were violated because the government withheld exculpatory evidence; cumulative
errors deprived him of Due Process and a reliable sentencing hearing; and the manner of
Petitioner’s death, if carried out, would violate the Eighth Amendment.
Following extensive discovery of the issues herein, the record was expanded on
October 13, 2015, with the filing by Petitioner of a document styled: “Grounds in Support
of Amended Motion pursuant to 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct a
Sentence by a person in federal custody” (Dkt. # 106)3 and an Amended Appendix in support
thereof consisting of thirty-six (36) exhibits (Dkt. #s 106-1 & 106-2). Thereafter, the record
was further expanded on October 15, 2015, when the government filed a motion for summary
judgment (Dkt. # 110) containing thirty-nine (39) new exhibits. On January 6, 2016,
Petitioner filed his response adding thirteen (13) additional exhibits. Finally, on February
2, 2016, the government filed a reply (Dkt. # 122) containing eight (8) more exhibits. This
Court has reviewed the relevant trial court records associated with Case No. CR-03-73RAW, including pleadings, pretrial and trial transcripts as well as all of the pleadings and
exhibits filed herein.

3

This amended pleading contains the same nine grounds contained in the attachment to the
original motion.
4

STANDARD OF REVIEW
The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA” or the “Act”)
delineates the circumstances under which a federal court may grant collateral relief. Title 28,
section 2255 provides, in pertinent part, as follows:
A prisoner in custody under sentence of a court established by Act of Congress
claiming the right to be released upon the ground that the sentence was
imposed in violation of the Constitution or laws of the United States, or that
the court was without jurisdiction to impose such sentence, or that the sentence
was in excess of the maximum authorized by law, or is otherwise subject to
collateral attack, may move the court which imposed the sentence to vacate,
set aside or correct the sentence.
28 U.S.C. § 2255(a). A prisoner seeking post-conviction relief under this statute must allege
as a basis for relief: (1) lack of jurisdiction by the court entering judgment; (2) an error of
constitutional magnitude; (3) a sentence imposed outside the statutory limits; or (4) an error
of law or fact where the claimed error constitutes “a fundamental defect which inherently
results in a complete miscarriage of justice.” United States v. Addonizio, 442 U.S. 178, 185,
99 S.Ct. 2235, 2240, 60 L.Ed.2d 805 (1979).
Section 2255 is not a substitute for an appeal and is not available to test the legality
of matters which should have been challenged on appeal. United States v. Khan, 835 F.2d
749, 753 (10th Cir. 1987), cert. denied, 487 U.S. 1222 (1988). Failure to raise an issue on
direct appeal bars the movant/defendant from raising such an issue in a § 2255 Motion to
Vacate Sentence unless he can show “both good cause for failing to raise the issue earlier,
and that the court’s failure to consider the claim would result in actual prejudice to his
defense, . . .” Id. “An error of law [or fact] does not provide a basis for collateral attack
unless the claimed error constituted ‘a fundamental defect which inherently results in a
complete miscarriage of justice.’” United States v. Blackwell, 127 F.3d 947, 954 (10 th Cir.
1997) (citations omitted).
5

In United States v. Galloway, 56 F.3d 1239, 1242 (10 th Cir. 1995), the Tenth Circuit
held claims of constitutionally ineffective counsel should be brought on collateral review.
Consequently, no procedural bar will apply to ineffective assistance of counsel claims which
could have been brought on direct appeal but are raised in post-conviction proceedings. A
petitioner may also raise substantive claims which were not presented on direct appeal if he
can establish cause for his procedural default by showing he received ineffective assistance
of counsel on appeal.
A court considering a claim of ineffective assistance of appellate counsel for failure
to raise an issue is required to look to the merits of the omitted issue. Where the omitted
issues are meritless, counsel’s failure to raise it on appeal does not constitute constitutionally
ineffective assistance of counsel. Hooks v. Ward, 184 F.2d 1206, 1221 (10 th Cir. 1999). See
also, Smith v. Robbins, 528 U.S. 259, 288, 120 S.Ct. 746, 765, 145 L.Ed.2d 756 (2000).
Additionally, where claims have been raised and rejected on direct appeal, they can not be
relitigated in a § 2255 motion. United States v. Warner, 23 F.3d 287, 291 (10 th Cir. 1994).
STATEMENT OF THE FACTS
On appeal the Tenth Circuit accurately set forth the facts as relayed to the jury in this
case. Fields, 516 F.3d, at pp. 927-928. Therefore, this court will not recite them here. The
court will, however, discuss various facts as they become relevant to a particular issue. The
court would also note that during the sentencing stage of the proceedings, the government
presented twenty (20) witnesses and the defendant called nine (9) witnesses. Thereafter, the
government put on three (3) rebuttal witnesses. See, Tr. of Jury Trial, Vol. VIII-XIII.

6

PETITIONER’S CLAIMS FOR RELIEF
I. Ineffective Assistance of Counsel
Petitioner raises claims of ineffective assistance of counsel in Grounds One, Three,
Four, Five, Six and Seven. See, Dkt. #s 14 and 106. Claims of ineffective assistance of
counsel are governed by the now familiar two-part test announced by the Supreme Court in
Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The
performance prong requires a defendant to show “that counsel’s representation fell below an
objective standard of reasonableness.”

Id., 466 U.S., at 688. While the prejudice prong

requires a defendant to “show that there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different. Id., at 694.
Failure to establish either prong of the Strickland standard will result in a denial of
Petitioner’s Sixth Amendment claims. Id., at 696.
“There is a strong presumption that counsel provided effective assistance, and a
section 2255 defendant has the burden of proof to overcome that presumption.” United
States v. Kennedy, 225 F.3d 1187, 1196 (10th Cir. 2000) (quoting United States v. Williams,
948 F.Supp. 956, 960 (D.Kan. 1996), cert. denied, 522 U.S. 1033, 118 S.Ct. 636, 139
L.Ed.2d 615 (1997)). See also, Knowles v. Mirzayance, 129 S.Ct. 1411, 1420 (2009).
“Effective assistance does not mean victorious or flawless counsel. To be ineffective, the
representation must have been such as to make the trial a mockery, sham or farce, or resulted
in the deprivation of constitutional rights.” Dever v. Kansas State Penitentiary, 36 F.3d
1531, 1537 (10th Cir. 1994) (citations omitted). “The sixth amendment right to reasonably
effective counsel does not mean ‘errorless counsel’ or counsel judged ineffective by
hindsight.” Clark v. Blackburn, 619 F.2d 431, 433 (5 th Cir. 1980).

7

While ensuring that criminal defendants receive a fair trial, considerable judicial
restraint must be exercised. As the Supreme Court cautioned in Strickland,
Judicial scrutiny of counsel’s performance must be highly deferential. It is all
too tempting for a defendant to second-guess counsel’s assistance after
conviction or adverse sentence, and it is all to easy for a court, examining
counsel’s defense after it has proved unsuccessful, to conclude that a particular
act or omission of counsel was unreasonable.
Id., at 689. In order to establish prejudice at the penalty stage of a capital trial, the defendant
must show “there is a reasonable probability that, absent the errors, the sentencer--including
an appellate court, to the extent it independently reweighs the evidence--would have
concluded that the balance of aggravating and mitigating circumstances did not warrant
death.” Id. In other words, deficient performance is prejudicial only where it is clear that
“but for trial counsel’s errors, there is a reasonable probability that the ultimate result would
have been different,” Washington v. Johnson, 90 F.3d 945, 953 (5 th Cir. 1996), cert. denied,
520 U.S. 1122, 117 S.Ct. 1259, 137 L.Ed.2d 338 (1997); so that, the “confidence in the
reliability of the verdict is undermined.” Id. Establishing prejudice imposes a heavier burden
on a petitioner than the harmless error test applied on direct appeal. United States v.
Haddock, 12 F.3d 950, 958 (10th Cir. 1993).

Moreover, “admissions of inadequate

performance by trial lawyers are not decisive in ineffective claims.” Walls v. Bowersox, 151
F.3d 827, 836 (8th Cir. 1998). Ineffectiveness is a question the court must decide. Id.

8

A. Failure to investigate, present and effectively argue mitigating mental health evidence
In his first ground for relief, Petitioner claims counsel were ineffective “with regard
to nearly every aspect of [his] mental health mitigation defense,” Dkt. 14, at p. 5,
enumerating six specific claims dealing with counsel’s alleged failures regarding
investigation, presentation and summation of mental health evidence. In essence, Petitioner
asserts his counsel ineffectively argued his mental health history and failed to request jury
instructions to the effect that his asserted mental conditions satisfied multiple mitigating
factors. Although conceding that counsel presented “significant mental health-related
mitigating evidence, including his pre-offense history of chronic depression and auditory
hallucinations and a post-offense diagnosis of bi-polar disorder” (Dkt. # 14, at p. 21);
substantial evidence of mental illness4 and argued his various conditions established specific
mitigating factors, petitioner complains because his lawyers did not argue that his mental
health issues satisfied multiple mitigating factors. Petitioner also argues counsel were
ineffective for failing to assert that his uncontested mental health history was mitigating and
the Eighth Amendment was violated because the jury did not find any of this uncontested
evidence was a mitigating factor in his case.
Petitioner further contends, despite the fact that in 2011 an MRI of his brain showed
it was “normal”,5 counsel were ineffective for failing to investigate and present evidence of
his organic brain damage. Petitioner also complains because counsel failed to call local

4

Declaration of trial counsel states, in pertinent part, “[w]e offered and argued to the jury the
existence of twenty-two mitigating factors. In the realm of mental health statutory mitigating factors:
that he suffered a severe mental or emotional disturbance and that his capacity to appreciate the
wrongfulness of his conduct and to conform his conduct to the requirements of the law, was
significantly impaired. . . . .one of the Government’s doctors (Mitchell) agreed that his history of
depression and voices was true, and the Government conceded that in argument.” Dkt. # 2-2 at pp.
11-12.
5

See, Dkt. # 110-23, at p. 78.
9

medical professionals to support his manic flip defense and to testify that his mental illness
was genuine. Additionally, petitioner states counsel were ineffective for eliciting damaging
testimony during the cross-examination of Dr. Price and for failing to investigate and present
evidence of compulsive aggression in effexor patients. Finally, petitioner complains trial
counsel ineffectively failed to thoroughly and properly prepare two mental health experts
who testified.
To support his claims, petitioner relies primarily upon an affidavit by Julia O’Connell,
Federal Public Defender for the Northern and Eastern Districts of Oklahoma and lead
defense counsel in the criminal proceedings from which this § 2255 action arose. Ms.
O’Connell indicates she was an Assistant Federal Defender at the time of appointment but
had never tried a federal death penalty case. Ms. O’Connell had, however, tried two state
capital cases while employed by the state public defender’s office. Dkt. # 2-2, at ¶ 2. While
counsel bemoans the fact she was overworked and didn’t have a clue what she was doing,
the record reveals there were actually four (4) attorneys who made appearances in this matter,
three of whom were from the local federal defender’s office and each of those attorneys had
substantial federal and/or state criminal trial experience.6 See also, Dkt. # 110-1 (email in
which Paul Brunton, Federal Public Defender advises Judy Clark, National Capital Resource
Counsel that his office has “very able lawyers both with lots of trial, motions and appeal
experience in state [death penalty] cases.” Brunton forwarded his email and the response

6

The docket sheet in this matter reflects Michael A. Able, Assistant Federal Public Defender
appeared at Fields initial appearance on July 21, 2003. Mr. Abel was admitted to practice in the
United States District Court for the Eastern District of Oklahoma on November 8, 1995 and he was
not terminated as counsel in this case until November 15, 2005, following Fields’ formal sentencing.
Additionally, on July 25, 2003, both Julia O’Connell and Barry L. Derryberry entered their
appearances on behalf of Fields. See, Dkt. #s 9 and 10, respectively. Finally, on August 12, 2003,
Mr. Isaiah S. Gant filed a Motion to appear pro hac vice on behalf of Fields. Dkt. # 19. On
September 9, 2003, the motion was granted. Dkt. # 29.
10

thereto to Michael Abel, Barry Derryberry and Rob Ridenour, three assistant federal public
defenders in his office. This would imply more counsel were available to assist on this case
than those who actually made a formal appearance in the case.)

Additionally, Ms.

O’Connell’s emails establish that she consulted numerous times with attorneys from the
National Capital Resource Counsel regarding the facts of this particular case and ideas on
how best to defend it. See, Dkt. #s 110-1-110-10.
Ms. O’Connell claims, despite the fact her client “remained insistent, and ultimately
pled guilty,” if Isaiah “Skip” Gant, counsel deemed “Learned Counsel by the Federal
National Resource Counsel Project” had joined her in counseling against the plea, together
they might have convinced Fields not to plead guilty. Id., at ¶¶ 6 and 7. To the extent she
admits Fields was insistent on pleading guilty, it is nothing more than wishful thinking to
speculate that one more attorney would have been able to convince Fields to follow counsel’s
advice. Ms. O’Connell continues her affidavit by claiming she had no tactical or strategic
reasons for everything which is challenged in the case. Id., at p.8 (¶¶s 11 and 12); p. 9 (¶¶s
13 and 14); p. 11 (¶ 17); p. 12 (¶ 18); p 13 (¶¶s 19 and 20); and p. 15 (¶¶s 22 and 23).
Statements by trial counsel in affidavits filed years after trial, where counsel in effect
“fall on their swords,” do not create credibility issues when trial counsel’s documented
contemporaneous statements show the contrary. Jackson v. United States, 638 F.Supp. 2d
514, 528 (W.D.N.C. 2009). See also, Allen v. Mullin, 368 F.3d 1220, 1240 (10 th Cir. 2004)
(court relied on contemporaneous court record to discount trial counsel’s testimony in
competency trial). The benchmark for judging any claim of ineffectiveness must be whether
counsel’s conduct so undermined the proper functioning of the adversarial process that the
trial cannot be relied on as having produced a just result.” Strickland, 466 U.S., at 686, 104
S.Ct., at 2064.
11

In this court’s opinion, the arguments made by petitioner are the kind of arguments
which the Supreme Court in Strickland cautioned against, those made with the advantage of
20/20 hindsight. Id., 466 U.S., at 689, 104 S.Ct., at 2065. A review of the record reflects,
despite the circumstances surrounding the murders of two individuals who were stalked like
animals before being killed in cold blood, defense counsel presented a strong case in
mitigation premised on several theories of mental illness, including the testimony of two
mental health experts, Brad Grinage and George Woods. Grinage, a forensic psychiatrist
testified Fields suffered from bipolar disorder and he described symptoms which led him to
his diagnosis as depression, rushing thoughts which were episodic in nature and
distractibility. See, Tr. of Jury Trial, Vol. XI at pp. 2778, 2790-2791, and 2794-2795.
Additionally, Grinage indicated Fields had the classic symptoms of mania with regard to
pleasure seeking behaviors and hypersexuality. Id., at pp. 2791-2792 and 2795. Moreover,
Grinage explained the most compelling evidence in his diagnosis was the fact Field’s primary
care doctor had documented that Fields suffered from auditory hallucinations prior to the
murders.

Grinage also explained to the jury that treating bipolar patients with

antidepressants, especially Effexor, carried an increased risk of causing mania or symptoms
of hypomania and/or enhancing any existing psychosis. Id., at p. 2780. Finally, Grinage
indicated, in his professional opinion, Fields was suffering from a “severe emotional mental
disturbance, mainly bipolar disorder with psychotic features” with the psychotic features
being auditory hallucinations. Id., at p. 2815.
The other defense expert, Dr. Woods, a neuropsychiatrist who specialized in
examining the relationship between a person’s brains and their behavior, testified that Fields
had suffered from a mood disorder for many years beginning in childhood. See, Tr. of Jury
Trial, Vol. XII at p. 2946. Woods also discussed Fields history of depression beginning at
12

age sixteen and the many different medications which had been tried. Woods further
indicated Fields had a history of mania which he described as being at “the other end of the
bipolar.” Id., at p. 2973. Woods continued by explaining the symptoms experienced by
Fields such as irritability, impaired judgment, hypersexuality, “anger and rage that’s come
out of nowhere,” impaired functioning, problems sleeping, problems with his appetite and
hearing voices both before and after the offenses. Id. Based upon his examination, Woods
diagnosed Fields with either a schizoaffective disorder or a bipolar disorder with psychotic
features which led Fields to display poor judgment and have erratic thinking. Id., at p. 29762977. Woods explained to the jury that the Effexor, which Fields was taking at the time of
the murders, could “flip” people with bipolar disorder from depression to mania, further
impairing his judgment.
Moreover, during closing argument, counsel addressed all aspects of Fields mental
health discussing his depression and how it affected everything in his life, his inability to
control what was going through his mind continually because of “rushing thoughts,” and
counsel implored the jury to show empathy for Fields since he had already accepted
responsibility for his actions. Tr. of Jury Trial, Vol. XIV, at pp. 3434-3436. Counsel
indicated his mental disease impaired his abilities. Id., at p. 3436. Counsel also emphasized
the bipolar flip theory, pointing out to the jury that the Effexor built up like it was supposed
to and then it hit a tipping point so bad that a girl friend of Fields called the prescribing
doctor worried about either suicidal or homicidal behavior. Thus, counsel argued when
Fields committed these offenses he was “under severe mental or emotional disturbances.”
Id., at p. 3440. Counsel also reminded the jury that all of the physicians who had treated
Fields endorsed the idea that the voices were credible. Id., at 3439.

13

While the right to effective assistance of counsel extends to closing arguments,
counsel still has wide latitude in deciding how best to represent their client, and deference
to counsel’s tactical decisions in their closing arguments is extremely important because of
the broad range of legitimate defense strategy at this stage of the case. Yarborough v.
Gentry, 540 U.S. 1, 4, 124 S.Ct. 1, 5, 157 L.Ed.2d 1 (2003). The purpose of closing
arguments is to “sharpen and clarify the issues for resolution by the trier of fact . . . . ”
Herring v. New York, 422 U.S. 853, 862, 95 S.Ct. 2550, 2555, 45 L.Ed.2d 593 (1975).
Closing arguments should “sharpen and clarify the issues for
resolution by the trier of fact,” but which issues to sharpen and
how best to clarify them are questions with many reasonable
answers. Indeed it might sometimes make sense to forgo
closing argument altogether.
Yarborough, supra. Therefore, as in all challenges to effectiveness of defense counsel’s
actions, this court’s review of a defense attorney’s summation is highly deferential.
Furthermore, in spite of petitioner’s claim counsel should have argued these alleged
mental issues satisfied multiple mitigators, the jury outright rejected this evidence, finding
petitioner did not commit the offenses under severe mental or emotional disturbance. Cr.
Dkt. # 229, at p. 6. To the extent the jury did not believe the mental health testimony was
mitigating, it is pure speculation to suggest the jury would have viewed the evidence
differently if counsel had argued it fit under several different mitigating factors. Ms.
O’Connell’s correspondence reveals she was aware she faced a difficult task to convince the
jury to rely on her mental health evidence. Dkt. # 110-7. Counsel’s criminal trial experience
clearly gave her the ability to make a strategic decision as to the best way to argue the mental
health evidence to the jury.

14

Fields argues failure to find the uncontested mental health evidence 7 was mitigating
violates the Eighth Amendment. The government makes a compelling argument that this
claim has been procedurally defaulted. Whether or not the claim has been defaulted, this
court finds no authority to suggest that a jury is automatically required to find uncontested
mental health evidence automatically qualifies as a “mitigating factor.” Rather, the Supreme
Court has suggested complete jury discretion is constitutionally permissible so long as the
jury is not precluded from considering any relevant mitigating evidence offered by the
defendant to support a sentence less than death. See, Graham v. Collins, 506 U.S. 461, 508,
113 S.Ct. 892, 919, 122 L.Ed.2d 260 (1993) (citing Eddings v. Oklahoma, 455 U.S. 104, 102
S.Ct. 869, 71 L.Ed.2d 1 (1982)). The Eighth Amendment simply requires jurors be allowed
to consider and determine for themselves the existence and weight to be accorded alleged
mitigating factors. See, Mills v. Maryland, 486 U.S. 367, 108 S.Ct. 1860, 100 L.Ed.2d 384
(1988) and McKoy v. North Carolina, 494 U.S. 433, 110 S.Ct. 1227, 108 L.Ed.2d 369
(1990).
Additionally, regardless of the reasons counsel did not followup with an MRI,8 in light
of the results of a 2011 MRI, this court finds petitioner has failed to establish prejudice based
upon counsel’s failure to investigate and/or present evidence of his alleged organic brain
damage. While Petitioner urges this court to disregard the post-trial information of Dr. James
Seward regarding a peer-reviewed psychological and neuropsychological evaluation of

7

Fields argues “counsel’s single-minded focus on the manic flip prevented the jury from
finding and giving effect to the uncontested evidence of depression and the largely uncontested
evidence of hallucinations.” Dkt. # 106, at ¶ 16. There is nothing within the record to indicate the
jury was prevented from considering any of the evidence which they heard at trial.
8

In February, 2005, counsel advised the United States Attorney’s office that the cost of a PET
scan was $35,000 and suggested the prosecution team should absorb this cost. Thus, the cost of a
brain imaging scan clearly played a role in counsel’s decision to rely on their expert testimony and
forego conducting a brain scan. See, Dkt. # 106-8.
15

Fields, Dkt. # 110-23, because it did not exist at the time of trial,9 it is petitioner’s burden to
establish prejudice. The government’s burden is to rebut the arguments presented by
petitioner.
To support his argument that counsel was ineffective for failing to investigate and
present evidence of his organic brain damage, petitioner submitted a neuropsychological
examination report dated April 1, 2010, by Daniel A. Martell, Ph.D, Dkt. # 106-10. Dr.
Martell claims the report of Dr. Price unequivocally demonstrates organic impairment in the
frontal lobes. In that report, Dr. Martell indicates “any reasonable neuropsychologist looking
at Dr. Price’s neuropsychological data would have identified the presence of significant
impairments (sic) Mr. Fields’ brain functioning, primarily involving frontal lobe
functioning”, id., at p. 13, and “Mr. Fields has experienced a catastrophic loss of brain
function over the past five years.” Id., at p. 17. Dr. Martell goes on to state that “[t]his
apparent degenerative brain disease process also raises important questions about his
behavior at the time of the instant offense, as there is evidence in the test data from the time
of trial that there was something abnormal and deteriorating about his neurocognitve (sic)
functioning.” Id. In addition, petitioner submits an affidavit from Dr. Grinage, which state
“[i]t is highly likely that [Fields] has frontal lobe impairment that would affect his bipolar
behavior and treatment.” Dkt. # 106-4. To rebut Field’s argument that he has significant
brain impairments which trial counsel failed to follow up on, the government had the right
to rely on current psychological testing, including an MRI of his brain. To hold otherwise,
would allow post-conviction counsel to make arguments which could never have been
proven at trial even if trial counsel had taken the very steps which post-conviction counsel
argue they should have taken. While petitioner cites to, United States v. Gonzalez, 98
9

See, Dkt. # 119, at pp. 31-32.
16

Fed.Appx. 825, 832 (10th Cir. 2004),

an unpublished Tenth Circuit opinion, for the

proposition that this court cannot resolve differences among the parties mental health experts
without an evidentiary hearing, petitioner submits nothing to contradict or rebut the evidence
submitted by the government which shows an MRI conducted in 2011 was normal.
Fields further argues the trial counsel failed to object when the Government “brought
out harmful, but limited, testimony from Dr. Price regarding brain damage.” Dkt. # 106, at
p. 47. A review of the testimony, however, reveals interposing an objection to the limited
testimony elicited by the government which briefly indicated Fields “cognitive processes .
. . . . were intact”10 and Price’s statement he “thought there was probably going to be some
brain dysfunction”11 would have drawn the jury’s attention to the testimony.

Giving

counsel’s desire to limit the jury’s exposure to such testimony, this court finds counsel’s
decision to not object was a reasonable trial strategy. Again, to the extent Fields does not
have organic brain damage, counsel’s limited cross-examination of Dr. Price was not
ineffective. Nor did this brief testimony likely impact the outcome of the trial. Therefore,
this court finds petitioner has failed to establish prejudice.
Petitioner also is dissatisfied with counsel’s decision to not call his local medical
professionals, i.e., two psychiatrists who treated him while he was in custody - Joyce
Bumgardner and Larry Trombka - and a physician and physician’s assistant who treated
petitioner prior to the murders - Dean Anderson and R.L. Winters, respectively. This
testimony, however, was cumulative to the evidence, discussed above, which was presented

10

Tr. of Jury Trial, Vol. XII, at p. 3106.

11

Tr. of Jury Trial, Vol. XII, at p. 3154.
17

at trial through defense experts, Dr. Grinage12 and Dr. Woods.13 Moreover, trial counsel used
this evidence in closing arguments to remind the jury that Fields had reported auditory
hallucinations prior to the murders.14 Counsel’s failure to call witnesses whose testimony is
cumulative of evidence already presented at trial is not considered constitutionally deficient
performance. Snow v. Sirmons, 474 F.3d 693, 729 (10th Cir. 2007). Since evidence which
is essentially cumulative would not have led the jury to reach a different result in the
sentencing phase of a capital case, failure to present such evidence could not have prejudiced
the defendant. Humphreys v. Gibson, 261 F.3d 1016, 1021 (10 th Cir. 2001). Petitioner has
failed to establish his attorneys actions regarding this omitted testimony rendered their
assistance ineffective or that he was prejudiced thereby.
Petitioner further attacks counsel’s failure to investigate and present evidence
regarding how the use of Effexor correlates with compulsive aggression. Petitioner then cites
to an FDA public health advisory asking manufacturers of ten anti-depressant drugs,
including Effexor, to alter their labeling to include a “warning statement recommending
‘close observation’ of patients being treated with these drugs for increased depression or
suicidality and noting that ‘[a]nxiety, agitation, panic attacks, insomnia, irritability, hostility,
impulsivity, akathisia, hypomania, and mania . . . .’” Dkt. # 106, at p. 57 (bold in original).
Yet, the two experts presented by counsel attributed Fields behavior to the effects of Effexor.
First, Dr. Grinage opined Fields
. . . . . had gone for some time with a depression that alternated with bipolarlike symptoms and could probably have been diagnosed with bipolar had it
been recognized. And when given multiple fail trials of antidepressants which

12

Tr. of Jury Trial, Vol. XI, at pp. 2795-2810, 2821, 2893-2894.

13

Tr. of Jury Trial, Vol. XII, at pp. 2978 - 2995 and Vol. XIII, at pp. 3209-3210.

14

Tr. of Jury Trial, Vol. XIV, at p. 3442.
18

you might expect with a bipolar patient given an antidepressant with some
norepinephrine activity that he developed an irritable manic mania. He went
from depression or mixed depression manic state into a more irritable state.
He continued to have depressive symptoms, so, he was - - in essence, he may
have been completely in a mix, both depression and mania, but, he tended to
have more of a diagnosable irritable mania as he described classically an
increase in his rushing thoughts, hearing the voices more frequently and
having anxiety associated with the voice.
Tr. of Jury Trial, Vol. XI, at pp. 2814-2815. Thereafter, Dr. Woods discussed “mania” and
indicated that newer studies showed “often mania does not show up as – just pure grandiosity
but that it really shows up in irritability, in spontaneous anger, in kind of this inability to
control your anger.”

Id., Vol. XII, at p. 2953.

Dr. Woods further discussed the

pharmacological literature surrounding Effexor, testifying:
[w]hen you look at the literature - - not the PDR, not the Physicians Desk
Reference, because the Physicians Desk Reference is not a learned treatise by
any stretch of the imagination. But when you look at the actual literature,
pharmacological literature, you see that Effexor has a significant incidence of
flipping people into mania, of making that switch. When a person switches
into mania, they often become - - their judgment becomes increasingly
impaired.
Id., at p. 2990. Fields’ argument that counsel would have learned that patients treated with
Effexor “experience increased rates of compulsive aggression” is just another way of saying
what defense experts actually said, i.e. Effexor increases the incidence of causing
spontaneous anger, irritability or inability to control your anger. Therefore, this court finds
counsel were not ineffective for failing to hire more experts who would have said the same
things about the potential side effects of Effexor.
Finally, Petitioner states trial counsel failed to thoroughly and properly prepare their
mental health experts. While trial counsel failed to provide Dr. Grinage with the transcript
of Fields’ change of plea hearing or to inform Woods of a pertinent statutory mitigator, this
court finds petitioner has not established any prejudice occurred as a result of these
oversights. Rather, as noted by the government, both experts testified consistent with the
19

written opinions they rendered before Fields entered his guilty pleas and defended their
conclusions on cross-examination. Fields has failed to establish counsel was ineffective in
investigating, presenting and/or arguing his mitigating mental health evidence.

20

B. Failure to investigate, present and argue evidence rebutting aggravating factors
In his third ground for relief, Petitioner claims trial counsel’s failure to challenge the
statutory aggravating factor of substantial planning and premeditation and the non-statutory
mental anguish aggravator violated his right to effective assistance of counsel. Moreover,
Petitioner contends the government presented false and misleading testimony and argument
in support of the substantial planning and premeditation factor thereby violating his right to
due process guaranteed by the Fifth Amendment.
1. Substantial planning and premeditation
In regard to this aggravating factor, the jury was instructed as follows:
The government seeks to prove that the defendant committed the offense
of murder after substantial planning and premeditation to cause the death of
Charles Glenn Chick, Jr. and/or Shirley Elliot Chick. “Planning” means
mentally formulating a method for doing something or achieving some end.
“Premeditation” means thinking or deliberating about something and deciding
whether to do it beforehand. “Substantial planning” means planning that is
ample or considerable for the commission of the crime at issue.
Cr. Dkt. # 227, at p. 22.
Petitioner argues counsel was ineffective for failing to conduct a reasonable
investigation by asking his friend and government witness, Daniel Presley, about his
knowledge of ghillie suits and rifles with scopes. First, he claims Presley would have testified
that “ghillie suits and ghillied weapons were common among hunters in the area.” 15 He also
claims Presley “would have explained, if asked, that it was not unusual for hunters who ate
what they shot (such as Mr. Fields) to attach large scopes to their .22 rifles;” 16 and “Fields
attached the scope to his rifle at least a year before the homicides.” 17 Additionally, Fields

15

Dkt. # 14, at p. 50; Dkt. # 106, at p. 61; and Dkt. # 106-21, at p. 4.

16

Dkt. # 14, at p. 50; Dkt. # 106, at p. 68; and Dkt. # 106-21, at p. 5.

17

Dkt. # 14, at p. 50; Dkt. # 106, at pp. 68-69; and Dkt. # 106-21, at p. 6.
21

asserts Presley could have rebutted the government’s claim that he had tried to set up an alibi
for the night of the homicides by testifying that Fields had asked him to go snake hunting on
the night of the murders.

Finally, Fields argues a reasonable investigation, including

consulting with an independent crime scene investigator, would have found evidence to refute
the government’s allegations that Fields returned to the crime scene many hours after the
shooting to “stage” a robbery. Dkt. # 14, at p. 66; Dkt. # 106, at pp. 71-79; and Dkt. # 106-24.
According to Fields this additional testimony would have rebutted the substantial planning
and premeditation aggravating factor.
If this testimony had been elicited, however, it would not have changed the defendant’s
own statements regarding the what he had done on the evening of July 10, 2003, which were
introduced through Special FBI Agent Graff. In particular, Agent Graff begin by telling the
jury that the defendant originally denied having any firearms and stated that he did not hunt.
Tr. of Jury Trial, Vol. IX, at pp. 2249-2250. Additionally, Fields originally denied having
been to the Winding Stair campground and told the FBI agent he had made a ghillie suit
approximately four years before, but he had thrown it away about two or three years ago. Id.,
at pp. 2255-2256. Finally, Fields initially denied shooting the Chicks. Id., at pp. 2256-2257.
Once confronted with the facts known by Agent Graff,18 Fields changed his story and
admitted that he had killed the Chicks. Id. In his confession to the FBI, Fields stated he went
to the Winding Stair Campground on the evening of the 10th to use the bathroom. When he
arrived at the campground, “he observed the Chicks over at the vista, which was an overlook

18

These facts included: 1) defendant’s truck had been seen at Winding Stair on the evening
of the 9 ; 2) agents were in the process of searching his truck; 3) a .22 rifle had been found behind
the seat in his truck and it appeared to be consistent with the firearm that was used in the killings of
the Chicks; 4) a ghillie suit had been found in the back of his truck which contained fibers that
appeared to be consistent with fibers found at the crime scene and 5) items secluded under a blanket
in his truck appeared to be personal items which belonged to the Chicks, including a camera and a
portable Casio T.V. Id., at pp. 2257-2259.
th

22

which overlooks the valley to the north. And he described the vista as being approximately
seventy-five yards from their campsite.” Id, at p. 2261. Upon seeing the Chicks, Fields “put
on his ghillie suit and took his [.22 caliber] rifle and went over in the woods and secreted
himself in the woods near their campsite.” Id. Fields could not say how long he watched and
waited for them to come back from the vista; but he observed them for approximately fifteen
minutes after they had returned to the picnic table at their campsite before he crept up, on his
belly, closer to their campsite (taking another five minutes) and when he heard Mr. Chick say
he was going to the tent, he fired a shot into Mr. Chick’s head. Id., at pp. 2263-2267. After
shooting Mr. Chick, Fields told Agent Graff he moved closer to the campsite; Shirley Chick
had gotten up from the picnic table and was running towards the van, so he fired two to three
shots at her as she ran. Id., at pp. 2267-2268. Fields approached the van and shot Ms. Chick
in the head at least two times. Id. Thereafter, Fields told the FBI that he went back to the
picnic table and because he thought Mr. Chick might still be alive, he shot him in the head a
second time. Id., at p. 2268. Further, Fields stated he then removed forty dollars from Mr.
Chick’s pants pocket, which he kept. Id., at p. 2270. Fields continued his confession to the
FBI, indicating he went back to his truck, took off his ghillie suit and drove back to the
Chicks’ campsite, picked up a rock, broke the window of the van and took personal items of
the Chicks from the van. Id. Following his interview with the defendant, the FBI agent wrote
a synopsis of what Fields had said. It was introduced as Government’s Exhibit 131 and read
to the jury. The written confession stated the following:
I, Edward L. Fields, have been advised of my Miranda warnings
pursuant to my arrest for shooting Charles and Shirley Chick resulting in their
deaths. I waive my Miranda rights and voluntarily provide the following
written statement.
On approximately Tuesday, July 8th , 2003, I observed a man and woman,
whom I later determined to be Charles and Shirley Chick, camping at the
Winding Stair Campground. My purpose for being there was to use the
bathroom. The Chicks appeared to be using a tent and a blue van.
23

During the evening hours of July 10th , a Thursday, I returned to Winding
Stair Campground to use the bathroom. Just before dark, I observed the Chicks
at the vista approximately seventy-five yards from their campsite. I dressed
myself in a guillie (sic) suit, and with a .22 caliber rifle crept up close to their
campsite and waited for them to return.
I had been short of money all week and intended to rob the Chicks. The
main reason I was short of money was because of child support payments I have
to pay. My intent was to rob the Chicks at gunpoint, tie them up, and leave.
The Chicks returned from the vista and were sitting at the picnic table
at their campsite. I remained concealed in the woods for about fifteen minutes
after their returning to the campsite.
At one point Charles Chick said he was going to the tent. I shot Charles
Chick with one shot to the head. I then shot at Shirley Chick a couple of times.
I followed Shirley Chick to the van and shot her twice in the head. I then
returned to Charles Chick and shot him once in the head. I removed forty
dollars cash from Charles’ pants pocket.
I returned to my truck, a blue Chevrolet, parked about seventy-five yards
away, and brought my truck over to the Chicks’ campsite. I broke the driver’s
side window out of the Chicks’ van using a rock. I removed the Chick’s van -I removed from the Chicks’ van two backpacks, a camera with a long lens, a
mini television, Charles Chicks’ wallet, a battery charger, two mini flashlights
and a radar detector. One mini flashlight, the camera, the mini television, and
the radar detector remain in my truck at the present time. I disposed of one of
the backpacks, which included the battery charger at Kerr Lake. I disposed of
the other backpack which contained Charles Chick’s wallet, Shirley chick’s
purse and a rock in Lake Wister. I recovered $300 from Shirley Chick’s purse
before I disposed of it.
Both Charles and Shirley Chick were dead when I left their campsite the
evening of July 10th . After leaving the Chicks’ campsite, I returned to my
campsite located near Lake Wister. Between the hours of 7:00 and 8:00 a.m.
on Friday, July 11th , I purchased gasoline at the Wal-Mart in Poteau using
Charles Chick’s credit card.
During the week prior to July 10th , I had been very depressed. I had felt
suicidal. I had no money, and I felt desperate. Since shooting the Chicks, I
have felt very sick and very remorseful. I would like to tell the Chicks’ family
and relatives that I am sorry for this incident.
I make the above voluntarily. The above statement, Pages 1 through 3,
are true and accurate.
Signed by Edward Fields, 7-18-03, witnessed by myself, Agent Jones
and Donnie Long.
Id., at pp. 2280-2283.
In addition to the defendant explicitly admitting he had seen the Chicks two nights
prior to the murders, that he stalked them for at least fifteen minutes before shooting them like
animals, evidence supporting the substantial planning and premeditation aggravator was
24

introduced thru several other witnesses. First, Ms. Hairrell testified she helped make a “sniper
suit”19 for the defendant a few years before the murders. She asked the defendant several
times what the suit was for and the defendant never would answer. Id., at pp. 2326-2331. On
one occasion when Ms. Hairrell saw the defendant’s rifle, the defendant said “[h]e could shoot
anybody a hundred yards off.” Id., at pp. 2329.
Carol Lamb testified, on June 15, 2003, she accompanied the defendant to Atwoods
where he purchased gunny sacks. Later that day, Ms. Lamb helped the defendant cut the
gunny sacks into strips. When Ms. Lamb observed the defendant tying the strips to his rifle,
she asked him what he was doing and “[h]e just kind of laughed it off and said, ‘You don’t
want to know.’” Id., at pp. 2238 and 2340. Additionally, the defendant admitted to Ms. Lamb
that he had previously snuck up on a couple while wearing his ghillie suit. Id., at p. 2348.
On July 7, 2003, the defendant told his friend, Daniel Presley, he had seen a couple
parked in a car and he had snuck up on them in his ghillie suit. Id., at p. 2377. Another
witness, Brenda Stacy, also heard the defendant say “You don’t really want to know” when
asked what the ghillie suit in the bed of his truck was for. Id., p. 2421. Further, Marilyn
Presley testified on July 7, 2003, the defendant also told her, he had donned his ghillie suit and
watched a couple in a car for a few minutes. Id., Vol. X, at p. 2463.
Charles Love testified about the defendant telling him he had worn his sniper suit “on
Talimena Drive and had slipped upon on a couple of people on Talimena Drive.” Id., at p.
2487. This incident occurred sometime in the spring of 2003. Id., ap p. 2486. Mr. Love
indicated the defendant had told him that he got within 20 yards of this couple and they did

19

This was the term the defendant used to refer to the ghillie suit. Id., at p. 2331. See also,
Tr. of Jury Trial, Vol. X, at p. 2486.
25

not know he was there. Id. A couple of weeks after this incident, the defendant asked Mr.
Love about making a silencer. Id., at pp. 2487-2488.
Finally, Dawn Michelle Bond testified the defendant called her from the Poteau Police
Department to tell her “that he was in jail for murdering the people that I had joked with him
about murdering.” Id., at p. 2584. During the course of her testimony, Ms. Bond said the
defendant had told her he had watched the victims have sex in their car on some day prior to
the shootings. Id., at p. 2583.
All of this evidence establishes the defendant planned these murders for at least two
days, if not substantially longer, prior to actually committing them. Even if Presley had
testified about lawful uses of ghillie suits and rifles with scopes, that Fields had attached the
scope to his rifle at least a year before the murders or that “lots of guys who use ghillie suits
also ghillie their guns,”20 it would not have lessened the impact of the evidence the jury heard
regarding Fields ghillying his rifle less a month before the murders; his statements to so many
people that they didn’t want to know what his ghillie suit was for; the fact that the defendant
became proficient in sneaking up on people while wearing his “sniper suit;” or finally, his
statements that he drove to a secluded area, laid in wait for over fifteen minutes (even
crawling closer on his belly) before killing two unsuspecting campers in cold blood. Each of
these actions established the substantial and methodical planning and premeditation that went
into the murders of these two innocent campers which the defendant ultimately carried out on
July 10, 2003. Moreover, whether or not the defendant knew he was definitely going in for
the kill when he told Ms. Tipton he would not be over because he would be going “fishing”
with Presley, does nothing to lessen the substantial amount of planning which defendant
engaged in to finally fulfill this human hunting expedition.
20

Dkt. # 106, at p. 68 and Dkt. # 106-21 at p. 6.
26

Fields continues his attack on counsel’s investigation by arguing counsel was
ineffective for failing to consult an independent crime scene investigator. According to
Fields, if counsel had consulted with such an expert, counsel could have introduced evidence
contradicting an Oklahoma State Bureau of Investigation (O.S.B.I.) agent’s testimony that
Fields staged the robbery many hours after the shootings and/or suggested cross-examination
questions to challenge the accuracy of the testimony regarding glass fragments and/or blood
flow evidence at the scene. During the trial, Agent Dalley testified as a crime scene
investigator, having expertise in blood stain pattern analysis and crime scene reconstruction.
Tr. of Jury Trial, Vol. VIII, at p. 2080. Agent Dally indicated she was called to the scene on
July 11, 2003, at which time she took numerous photographs of both of the victims and
different areas of the victim’s van. Many of the photographs taken at the scene were
introduced in the trial. Agent Dalley explained each of the photographs to the jury and
discussed gravity blood flow patterns depicted within those photographs, including pooling
on the pavement , around the victims and in the victims’ clothing. The agent also described
blood spatter on Ms. Chick’s face and while the photograph depicting this blood was not
admitted into evidence, Dalley testified, after reviewing the photograph, she believed the only
source for the blood on Ms. Chick’s left cheek was from one of Mr. Chick’s wounds.
According to Dalley, Ms. Chick would have been approximately two feet from Mr. Chick
when he sustained a gunshot wound thereby spraying high velocity spatter onto Ms. Chick.
Id., at pp. 2082-2091. Dalley further testified she observed glass fragments at the scene of the
murders which were consistent with the broken driver’s window of the van. Dalley surmised,
because there was no blood stains on these fragments, that the glass had to have been
shattered, at least an hour, after the murder in order to allow the blood to dry enough that it
was not transferred to the glass on contact. Id., at p. 2099.
27

Petitioner now claims
Agent Dalley’s testimony that the glass fragments found resting on a dried pool
of Mrs. Chick’s blood were not stained with blood was contradicted by both
Agent Dalley’s own investigative report and photographs taken at the crime
scene. In her report, Agent Dalley recorded no observations about these glass
fragments, nor did she note whether she examined the fragments at the scene
or collected them for later examination.
Dkt. # 14, at p. 66. See also, Petitioner’s Exh. # 22, Dkt. # 106-23. Defense counsel,
however, got Dalley to admit on cross-examination that she did not collect any of these glass
fragments. Tr. of Jury Trial, Vol. IX, at p. 2216-2217.
Petitioner further claims the government argued he left the campground after shooting
the Chicks and returned several hours later to stage a robbery and that this argument “was
critical to the Government’s case that the shootings were the result of substantial planning
because it purportedly showed that Mr. Fields’ true objective had been to kill, not steal.” Dkt.
# 106, at p. 71. Based upon the evidence in this trial, the court does not believe the length of
time after the murders the robbery occurred was relevant to the jury’s finding beyond a
reasonable doubt that the “substantial planning and premeditation” aggravator applied to these
murders. The defendant admitted in his confession that he took $40 from Mr. Chick’s pocket
right after the murders, then he left the victim’s campsite, returning with his truck to complete
the robbery. Nowhere does his confession indicate the length of time he was in his truck
before he returned to the victim’s campsite and completed the robbery, Tr. of Jury Trial, Vol.
IX, at pp. 2281-2282; but, again, this was not relevant. As a result, the court finds it was not
unreasonable for defense counsel to not consider hiring experts to contest evidence related to
the robbery.
Next, petitioner argues trial counsel should have “attacked the Government’s claim that
Mr. Chick’s body must have been moved from the picnic table to the ground six hours or
more after he was shot.” Dkt. # 106, at p. 76. Nowhere does Fields state that he advised
28

counsel that this evidence was not accurate; yet, Fields would have been the one person who
would have known how long after the murders he moved the bodies. If counsel did not know
of facts which would alert her to the need to conduct a particular investigation, a failure to
investigate does not amount to deficient performance. Alcala v. Woodford, 334 F.3d 862, 892
(9th Cir. 2003). Moreover, the opinions now proffered by Robert Tressel regarding blood flow
and lividity do not convince this court that any reasonable probability exists that his
conclusions would have altered the jury’s decision in this particular case regarding the
substantial planning and premeditation aggravator. Since Tressel concedes Mr. Chick was
found in full rigor 24 hours after his killing, there is no basis for this court to find Tressel’s
estimations regarding rigor would have undermined the testimony that the body was moved
about six hours after death. In fact, the testimony at trial noted various factors which could
have altered the timeline before full rigor mortis occurred and defense counsel adequately
cross-examined the witnesses. See, Tr. of Jury Trial, at Vol. VIII, at pp. 2047- 2054; Vol. IX,
at pp. 2196-2224; and Vol. XI, at pp. 2639-2650. Based on the record before the court, this
court finds failure to hire an expert, like Robert Tressel, did not so undermine the proper
functioning of the adversarial process such “that the trial cannot be relied on as having
produced a just result.” Strickland, 466 U.S., at 686, 104 S.Ct., at 2064. Once again, how
long it took the victim to “bleed out” and whether or not the victim was moved from the
picnic table within an hour or after six hours is irrelevant to whether or not the defendant
engaged in “substantial planning and premeditation” in relation to the actual murders.
Regardless of the government’s closing argument, what occurred after the victims were killed
was relevant only to establish the defendant’s mental state and/or state of mind after the
murders.

29

2. Mental anguish
Petitioner also argues his attorneys were ineffective for not contesting the source of the
blood spatter on Ms. Chick’s face since it could have come from her own head wounds as
opposed to being from Mr. Chick’s head wounds. Petitioner claims this testimony would have
rebutted the mental anguish aggravating factor because it was the only evidence used by the
government, in conjunction with what he claims was “sheer speculation designed to inflame
the passions of the jury,”21 to provide a basis for the jury to find the mental anguish
aggravating factor. Fields fails, however, to consider many of the facts known both by
defense counsel, as she considered how to best defend this case, and the totality of the
evidence heard by the jury. The evidence indicated the campground where these murders
occurred was fairly rural and isolated. Tr. of Jury Trial, Vol. IX, at p. 2210. Defendant
admitted that the victims were sitting at a picnic table when he silently approached and shot
Mr. Chick in the head. Corroborating this confession, investigators found two partially empty
beverage containers at the picnic table. Id., at pp. 2118-2119. The jury could use their
common sense in determining that Ms. Chick would likely have heard the shot and seen her
husband fall seconds before she began to run for her life, only to be shot in the foot as she
attempted to escape to her van. She probably caught a glimpse of the ghillied up creature
shortly before her death. While the prosecutor mentioned the blood spatter evidence in regard
to this aggravator, his focus was on Ms. Chick’s perceptions in the final moments of her life
trying in vain to escape death. See, id., at Vol. XIV, pp. 3415-3418. These facts clearly
allowed the jury to find beyond a reasonable doubt that Ms. Chick suffered mental anguish
in the last moments of her life. Putting on an expert to opine as to the source of blood spatter

21

Dkt. # 20, at p. 41.
30

on Ms. Chick’s face would not have altered the jury’s finding regarding the mental anguish
aggravating factor.
Just as mitigating evidence can be important in a capital sentencing trial, defense
counsel can not overlook the real risk of offending the jury by contesting points that, based
upon a totality of the facts, are insignificant. This is never more important than in a case like
this where the defendant is trying to convince the jury that his actions were the result of a
manic flip from taking legally prescribed drugs, he has accepted full responsibility, and he
wants the jury to believe that his apology to the victims’ family was sincere.
There is no question that defense counsel could have hired more experts to contest the
government’s case. In the last twenty years, defense of criminal cases, especially capital
cases, has become much more complex. Experts have sprung up for virtually every aspect of
every case. Still all the high dollar experts money could buy would not have overcome the
insurmountable task of convincing the jury in this particular case that the defendant deserved
anything less than death for these two murders. The emails from defense counsel recognize
she knew she was fighting an uphill battle to convince jurors to believe her mental health
experts as jurors tend to distrust/discount expert testimony. Dkt. # 110-7. To have contested
either the length of time which elapsed between the killings and the robbery or the source of
the blood spatter on Ms. Chick’s face with expert witnesses, would have been counterproductive in convincing the jury that the defendant deserved a sentence less than death if the
murders were solely the result of a manic flip from taking a prescription drug. Accordingly,
this court finds counsel was not ineffective in failing to investigate or present evidence to
rebut these aggravating factors. Moreover, despite counsel “falling on her sword” and
swearing she had absolutely no trial strategy, counsel’s decision regarding her closing remarks
fall within the broad range of reasonable trial conduct under Strickland. Counsel emphasized
31

the evidence she wanted the jury to remember in the jury room. Accordingly, no prejudice has
been shown.

C. Failure to present defendant’s social history through mitigation specialist or mental heath
expert
Fields further argues counsel’s presentation of his social history “was disjointed,
incomplete and unpersuasive.” Dkt. # 106, at p. 90. Fields admits trial counsel was aware
that the defense mitigation specialist “had collected compelling evidence” that he “was raised
in a highly dysfunctional family, and that dysfunction had a profound impact on his life, his
mental health and his adult functioning.” Id., at pp. 90-91. While it is relatively easy in
hindsight to look at an unsuccessful trial strategy and recreate various scenarios of all the
things which could have been done differently, this is the exact type of post-trial exercise the
Supreme Court in Strickland cautioned courts from becoming entangled in. The defendant
has a “heavy burden”22 to “overcome the presumption that, under the circumstances, the
challenged action ‘might be considered sound trial strategy.’” Strickland, 466 U.S., at 689,
104 S.Ct., at 2065 (citation omitted). This court recognizes that “counsel is strongly presumed
to have rendered adequate assistance and made all significant decisions in the exercise of
reasonable professional judgment.” Id., 466 U.S., at 690, 104 S.Ct., at 2066. “For counsel’s
performance to be constitutionally ineffective, it must have been ‘completely unreasonable,
not merely wrong, so that it bears no relationship to a possible defense strategy.’” Le v.
Mullin, 311 F.3d 1002, 1025 (10 th Cir. 2002) (citations omitted).
Counsel’s duty in regard to mitigation was to conduct a reasonable investigation since
professional decisions and informed legal choices can only be made after an investigation of

22

Bullock v. Carver, 297 F.3d 1036, 1046 (10th Cir. 2002).
32

the options. In this case, there is no question that counsel had fully investigated petitioner’s
social history. Thus, despite Ms. O’Connell’s affidavit that she had no strategic reason for
not submitting Fields history through one of his doctors or through her mitigation specialist,23
it is clear counsel fulfilled her duty to conduct a reasonable investigation into petitioner’s
social history. Decisions regarding which witnesses to call at trial are “quintessentially a
matter of strategy for the trial attorney.” Boyle v. McKune, 544 F.3d 1132, 1139 (10 th Cir.
2008). Where it is shown that a particular decision was, in fact, an adequately informed
strategic choice, the presumption that the attorney’s decision was objectively reasonable
becomes “virtually unchallengeable.” Strickland, 466 U.S., at 690, 104 S.Ct., at 2066.
Moreover, submission of the evidence which Fields now suggests should have been
introduced into evidence would not have changed the jury’s verdict. Rather, it would have
actually undermined the defense theory that the Effexor caused an anomaly, a one-time switch
to flip in Petitioner’s brain thereby leading an otherwise law abiding citizen to commit these
horrific murders. The decision not to submit evidence that these murders were, in some way,
the product of a long-standing lack of socialization or empathy, caused by a less than idyllic
family life approximately twenty years earlier, would have diluted the defense theory that the
crime was Effexor driven as opposed to the product of the defendant’s sociopathic tendencies.
Furthermore, evidence Fields was emotionally estranged from his family would have directly
contradicted the defense arguments that the death of defendant’s father and his mother’s
illness caused the defendant to experience severe emotional disturbances. Similarly, evidence
the defendant had difficulty forming relationships would have undermined the notions that
the defendant was remorseful and that he was a loved relative and friend. Simply put,
presentation of additional evidence that petitioner had a dysfunctional upbringing, or was
23

Dkt. # 106-2, at pp. 13-14.
33

cruel and violent toward his relatives, would have substantially weakened, as opposed to
strengthening, the defense’s mitigation case. Fields has not met his burden to establish
counsel’s decision to not call the mitigation specialist or put more social history evidence
before the jury through a mental health expert was an unreasonable trial strategy.

D. Failure to object to the government’s closing argument deprived the petitioner of his right
to individualized sentencing, due process and a fair trial
Petitioner claims the Government misstated the law regarding the weighing of
mitigating and aggravating circumstances so as to improperly increase the defense’s burden
of persuasion and decrease its own burden; it denigrated the jury’s discretion to show mercy;
and it invited the jury to sentence Fields to death based upon irrelevant and inflammatory
societal concerns. Dkt. # 14, at pp. 89-90; and Dkt. # 106, at p. 102. Additionally, petitioner
claims the prosecutor improperly vouched for its own expert witnesses while denigrating
defense witnesses; launched ad hominem attacks against petitioner that were irrelevant to any
issues in the trial; misrepresented the record and the testimony of witnesses; made arguments
not supported by the evidence; and recited Biblical scripture at length. Thus, petitioner claims
because this was a “close case,”24 these alleged errors, individually and cumulatively, resulted
in a fundamentally unfair trial thus rendering his death sentence “arbitrary and capricious.”
Most of the alleged prosecutorial conduct which Petitioner now challenges was not objected
to at trial. Of course, “many lawyers refrain from objecting during opening and closing
argument, absent egregious misstatements.” United States v. Necoechea, 986 F.2d 1273, 1281
(9th Cir 1993). One reason to refrain from objecting is counsel may simply be calling the
jury’s attention to something which counsel, observing live jury reaction to, is not overly
24

Petitioner defines “close case” as one in which he “presented a significant case for life and
the jury found mitigation to exist.” Dkt. # 14, at p. 103.
34

concerning. Phyle v. Leapley, 66 F.3d 154 (8th Cir. 1995). As a result, the failure to object
during closing argument is considered within the “wide range” of permissible professional
legal conduct. Necoechea, 986 F.2d, at 1281. In an effort to overlook this arguably
permissible conduct, petitioner asserts appellate counsel were ineffective for failing to raise
these issues on direct appeal. Petitioner further argues, because of counsel’s ineffective
assistance, he was “deprived of his right under the Eighth Amendment to have a jury consider
and give effect to all relevant mitigating evidence.” Id. Petitioner also argues his Fifth
Amendment rights were violated because the government presented false and misleading
testimony to support the substantial planning aggravating factor. The government argues
Fields’ claims of prosecutorial misconduct are procedurally barred.
In an effort to bolster his ineffective assistance of counsel claims, Petitioner complains
of prosecutorial misconduct. Inappropriate prosecutorial comments, standing alone, will not
justify reversal since the statements must be reviewed in context. United States v. Young, 470
U.S. 1, 11, 105 S.Ct. 1038, 1048, 84 L.Ed.2d 1 (1985).

In a § 2255 action, relief for

prosecutorial misconduct is only appropriate “when the prosecutor’s misconduct ‘so infected
the trial with unfairness as to make the resulting conviction a denial of due process.’”
Donnelly v. DeChristoforo, 416 U.S. 637, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974). “[F]or due
process to have been offended, the prosecutorial misconduct must be of sufficient significance
to result in the denial of the defendant’s right to a fair trial.” Greer v. Miller, 483 U.S. 756,
765, 107 S.Ct. 3102, 3109, 97 L.Ed.2d 618 (1987).
To establish that a prosecutor’s remarks were so inflammatory that they
prejudiced substantial rights, a petitioner must overcome a high threshold: he
or she must demonstrate either persistent and pronounced misconduct or that
the evidence was so insubstantial that absent the remarks, the jury would not
have imposed the death penalty.
Short v. Sirmons, 472 F.3d 1177, 1195 (10 th Cir. 2006).
35

As previously indicated, however, § 2255 “is not available to test the legality of matters
which should have been raised on appeal.” United States v. Khan, 835 F.3d 749, 753 (10 th
Cir. 1987), cert. denied, 487 U.S. 1222, 108 S.Ct. 2881, 101 L.Ed.2d 915 (1988). As can be
seen, to overcome this procedural bar, petitioner argues he received ineffective assistance of
appellate counsel. The Sixth Amendment does not require an attorney to raise every
nonfrivolous argument on appeal. Rather, the relevant questions in this proceeding are
whether appellate counsel was “objectively unreasonable” in failing to raise these issues on
direct appeal and, if so, whether there is a reasonable probability that, but for his counsel’s
unreasonable failure to raise these claims, he would have prevailed in his direct appeal. Neill
v. Gibson, 278 F.3d 1044, 1057 (10th Cir. 2001). When considering a claim of ineffective
assistance of appellate counsel for failure to raise an issue on appeal, the court considers the
merits of the omitted issue. Id. (citations omitted). Therefore to resolve this claim, this court
will focus on the merits of the alleged prosecutorial-misconduct claims.
Initially, Fields argues the prosecutor misstated the law regarding the weighing of
mitigating and aggravators, this court erred in overruling the objection of trial counsel and
appellate counsel was ineffective for failing to raise this issue on appeal. The specific rebuttal
portion of the closing arguments challenged by Fields contained the following statements:
MR. SPERLING: . . . . . . . . . . .Let’s remember and honor the two people who
are unable to be here. The aggravating factors have been proved beyond a
reasonable doubt. The mitigating factors, even if accepted as proved, cannot
outweigh the premeditated murder of Charlie. The mitigating factors - (Interrupted)
MR. DERRYBERRY:

Objection to that based on the law.

THE COURT:

Overruled.

MR. SPERLING:

The mitigating factors - - and I submit all of this to you
based on the evidence that has been admitted - - do not
begin to outweigh just one of the steps that Shirley took in
a terrorized flight from the Defendant. She sought to
36

escape the monstrous form the Defendant had chosen to
assume in the final moments of her life.
Tr. of Jury Trial, Vol. XIV, at pp. 3462-3463.
While petitioner argues the prosecutor’s comments seemed to imply the mitigating
factors had to outweigh the aggravating factors, taken in context this does not appear to be
what the prosecutor was saying. Rather, the prosecutor was attempting to emphasize how,
despite the mitigating evidence, the crime was so calculatingly heinous that the jury should
easily find the aggravating factors outweighed all mitigating factors. Moreover, the court
properly instructed the jury on how to weigh the aggravating and mitigating evidence, stating:
The second step involves a weighing process. You must decide whether
the proved aggravating factors outweigh the proved mitigating factors
sufficiently to justify the death sentence. (If you do not find any mitigating
factors, you still must decide whether the aggravating factors are sufficient to
justify imposition of a death sentence). If you determine as a result of this
weighing process that the factors do not justify a death sentence, such a
sentence may not be imposed, and your deliberations are over.
Cr. Dkt. # 227, at p. 6; Tr. of Jury Trial, Vol. XIV, at p. 3384. The court also instructed the
jury: “You must determine whether the proven aggravating factor[s] sufficiently outweigh any
proven mitigating factor[s] to justify a sentence of death.” Id., at p. 28; and p. 3403.
Therefore, this court finds counsel’s failure to raise this issue on direct appeal was not
objectively unreasonable.
Next, Fields argues his counsel was ineffective for failing to object to prosecutorial
comments during closing arguments regarding defendant’s plea for mercy. In particular,
Fields focuses on the following comments of the prosecutor:
Ladies and gentlemen, in closing, just remember the victims in this case,
Charles and Shirley and their family and what they went through. The defense
is going to talk to you and they’re going to ask you to show mercy for this
Defendant. What I want you to do is think back on July 10 th of 2003. How
much mercy was shown then? The Defendant wants you to look at this
Defendant and what he’s done for the last two and a half years and say, oh,
37

there’s a life that can be had. This case is about what happened on July 10 th of
2003, not what happened since then.
Tr. of Jury Trial, Vol. XIV, at p. 3430. Thereafter, during rebuttal, the prosecutor said:
Well, can justice be served by life in prison? The Defendant wants to
be sent to his room as punishment. If he’s allowed to live, he will have their
percs, (sic) like workouts and visitors and phone calls and mail and tv and
recreation. Don’t let this Defendant be a hero to his incarcerated criminal
inmates. All with a civilized core must recoil with revulsion of what the
Defendant did to act as the executioner of the innocent. Don’t give this
Defendant what he wants. In the name of justice, give him what he deserves.
The Defendant wants to choose a sentence. He wants to live. Now,
how unjust is that? Just what choice did he give Charles Chick? Just what
choice did he give Shirley Chick? You know, the Defendant made Shirley do
something she would never have done, never have done, unless she knew there
was absolutely nothing she could do for her dying husband, her best friend.
This Defendant made her do something she would never have done unless she
knew her life was in absolute, absolute jeopardy. And if we have to go much
farther down the aggravating factor road that (sic) Shirley’s fightingly horrible
murder, there is something really wrong with us. This disturbing criminal
conduct is far beyond the capital line. The Defendant didn’t need to commit
this murder. Even if we concede that the robbery was the motive, he said he
had $500 in Michelle’s panty drawer. Danny said he had seen the Defendant
more broke. Michelle told him that he could move in within a day or so. He
wanted the thrill of the kill. And even if we concede that robbery was a motive,
the most we could argue is that he thought with premeditation and deliberation
if I’m going to rob them and kill them, I may as well kill them and rob them.
That’s no excuse.
Sympathy. It’s hard not to feel sympathy for the Defendant’s family
members. He abandoned them though. He abandoned them. Only resurrecting
contact with them conveniently now that he’s in jail. . . . . What did his former
wife say about him? Do you remember that one word? Selfish. Selfish.
Narcicisstic. (sic) It’s all about him. That’s an understatement. He would have
left them all perhaps by the easy way out. Typical for him. The Defendant
wouldn’t help his on (sic) widowed mother move halfway across this country.
Remember this, here in court the Defendant continues to victimize his own
family by reducing them to props in an effort to escape justice. Remember also
that Charlie didn’t get an opportunity to plead for his life. We can only imagine
what Shirley must have said in the waning moments of her life. She came face
to face with a killer who wore this suit. The Defendant’s best friend now is
down to a monthly phone call. Whatever he does for other people is far
outweighed by what he has done. He has paid for membership in the club of
the most hardened, the worst group of criminals. Remorseless, wanton,
senseless, without any empathy or feeling, no emotion for a wonderful man and
woman whose lives he extinguished that with six semi-automatic gun shots.
Id., at p. 3457-3459 (emphasis added by petitioner).
38

Petitioner argues these comments urged the jury to reject mercy based on the evidence
and invited the jurors to sentence him to death simply for exercising his Eighth Amendment
right to individualized sentencing. This court disagrees. These comments simply focused the
jury’s attention on the aggravating nature of these crimes and was based upon the evidence
before the jury. Moreover, the jury was instructed they could consider mercy (and petitioner’s
own trial counsel advised the jury - “Mercy is not precluded.”),25 the defendant’s lack of
remorse, the mental anguish the defendant inflicted on Shirley Chick, his value as a friend,
his value as a family member and the impact his death would have on his relatives and friends.
See, Cr. Dkt. # 227, at pp. 6, 23, and 25-26. Attorneys are given wide latitude during closing
arguments and challenged remarks must be evaluated in the context of the trial as a whole.
United States v. Lawrence, 735 F.3d 385, 431 (6th Cir. 2013). Since each of these subjects
were before the jury, the court finds they were proper topics for the prosecutor to touch upon
during closing arguments and such comments did not result in a fundamentally unfair trial.
Fields continues his challenge to the prosecutor’s closing arguments by alleging the
prosecutors improperly “invoked societal concerns about lenient sentences and recidivism.”
Dkt. # 106, at p. 105. Fields focuses this argument on the following comments of the
prosecutors:
Ladies and gentlemen, when you look around this courtroom you see a lot of
people. They haven’t come here to see me or Mr. Sperling or defense counsel
or not even the judge. They’ve come here to see justice. They’ve come here
to see what you are going to do today. Because today you are justice. You
decide what is right. You decide what is wrong. You can’t ever walk out of
here again and say, boy, I can’t believe they gave such a light sentence or I
can’t believe they gave such a heavy sentence. I can’t believe they gave
probation to a child molester. You know (sic) longer have that luxury. We ask
you to do what’s right, ladies and gentlemen.

25

Tr. of Jury Trial, Vol. XIV, at p. 3443.
39

Tr. of Jury Trial, Vol. XIV, at p. 3431. These comments were made right as the prosecutor’s
first closing arguments concluded. Although the court does not really understand the
reference to giving “probation to a child molester,” it is clear all the prosecutor was telling the
jury was that the decision as to an appropriate sentence in the case was solely their decision.
Fields continues, however, that “these sentiments were echoed in later comments, invoking
popular opinion that prison was to easy on criminals.” Dkt. # 106, at p. 105. The rebuttal
comments to which Fields objects seem designed to convince the jury that petitioner’s crimes
warranted greater punishment than lifetime incarceration and have already been discussed by
this court. Furthermore, this court finds the prosecutor’s comments suggesting incarceration
would be an inadequate sentence, was an appropriate response not only to the defense
counsel’s suggestion that life imprisonment would be spent in a space smaller than the jury
box26 but also to the testimony during trial of Daniel Presley27 which described various things
inmates could do in prison such as working, receiving visitors, receiving and sending mail,
reading and watching television.
Claiming the mental health experts’ credibility was a “critical aspect of the trial,”
Petitioner continues his attacks on the prosecutor’s closing arguments by arguing the
prosecutor improperly embellished and bolstered the testimony of its mental health experts
and improperly vouched for their credibility, while denigrating the defense experts. Dkt. #
106, at p. 106. To support his argument, petitioner highlights terms contained in the
prosecutors’ arguments, such as “high dollar shrinks,” “hired guns,” “from the left coast,” “an
axe to grind” and “an honest opinion.” Dkt. 14, at p. 80.

26

Tr. of Jury Trial, Vol. XIV, at p. 3442.

27

Tr. of Jury Trial, Vol. IX, at pp. 2405-2406 and 2408-2409.
40

To the extent that there is no bright red line separating acceptable advocacy from
improper advocacy, prosecutors have sometimes breached their duty to refrain from
overzealous conduct by commenting on a defendant’s guilt or offering unsolicited personal
views on the evidence. United States v. Young, 470 U.S. 1, 7-8, 105 S.Ct. 1038, 1042, 84
L.Ed.2d 1 (1985). As a result, the federal courts have been required to police prosecutorial
misconduct. In order to assist the courts, the legal profession has developed Codes of
Professional Responsibility. Id. The American Bar Association’s Standing Committee on
Standards for Criminal Justice has complemented these efforts by developing Criminal Justice
Standards, one of which states:
The prosecutor should not express his or her personal belief or opinion as to the
truth or falsity of any testimony or evidence or the guilt of the defendant.
ABA Standards for Criminal Justice 3-5.8 (b)(3rd ed. 1993). The Unites States Attorney acts
as a representative of a sovereignty whose obligation is to govern impartially. Berger v.
United States, 295 U.S. 78, 88, 55 S.Ct. 629, 632, 79 L.Ed. 1314 (1935). In this role, a federal
prosecutor becomes a
servant of the law, the twofold aim of which is that guilt shall not escape or
innocence suffer. He may prosecute with earnestness and vigor-indeed, he
should do so. But, while he may strike hard blows, he is not a liberty to strike
foul ones. It is as much his duty to refrain from improper methods calculated
to produce a wrongful conviction as it is to use every legitimate means to bring
about a just one.
Id.
Use by a prosecutor of “we know” statements in closing arguments should generally
be avoided because such statements can blur the line between improper vouching and
legitimate summary. United States v. Younger, 398 F.3d 1179, 1191 (9 th Cir. 2005). An
argument will be considered improper vouching “only if the jury could reasonably believe that
the prosecutor is indicating a personal belief in the witness’ credibility, either through explicit
41

personal assurance of the witness’ veracity or by implicitly indicating that information not
presented to the jury supports the witnesses’ testimony.” United States v. Magallanez, 408
F.3d 672, 680 (10th Cir. 2005)(quoting United States v. Bowie, 892 F.2d 1494, 1498 (10 th Cir.
1990)). “[I]t is not improper for a prosecutor to direct the jury’s attention to evidence that
tends to enhance or diminish a witness’s credibility.” Thornburg v. Mullin, 422 F.3d 1113,
1132 (10th Cir. 2005).
The prosecutor in this case said the following, during the first closing remarks, in
regard to the expert witnesses:
Our doctors came in, ladies and gentlemen, and told you a number of
different things also and I’ll just run through those quickly because obviously
they had a different opinion. They thought most of the Defendant’s problems
were based upon his depression. Kind of look at - - who do I believe? Which
is the one for me? Who am I going to believe out of this? What does Dr. Price
tell you? He tells you he’s done hundreds of these things. And over half the
time, 60 percent of the time, he testifies for the defendant. He told you he fully
expected to find some type of mental illness here but didn’t. He has a lot of
credibility. He’s not somebody who every time comes in and testifies for the
defendant. We didn’t have to go out to the left (sic) coast to find somebody
who testified for the defense every time. We got people in our own back yard
who were credible, who would give an honest opinion who were not hired guns.
Dr. Mitchell - - and he may be the best one of all, one because he’s never been
a witness before in a criminal case. He’s in charge of a well-recognized
psychiatric care center. He comes in and he says I’ve never testified before.
I’m just doing the best I can. But I did this evaluation and, yeah, I did give
some credence to the voices. I thought the voices may be part of his problem.
Whether or not he actually heard them I can’t tell you, but they may be part of
it. He even tells you with that knowing with the voices, he had the ability to
conform his conduct to the requirements of the law. These were volitional
choices on this Defendant’s part. Dr. Mitchell who has no axe to grind here,
ladies and gentlemen.
Tr. of Jury Trial, Vol. XIV, at pp. 3429-3430. During rebuttal arguments, the prosecutor
returned to topic of experts stating:
. . . . The facts here clearly compel the conclusion the Defendant was entirely
responsible and not impaired by his volitionally, his purposefully, acquired
sadness. He was just emotionally variable. Even united bipolarities, Dr. Price,
I’m mostly on the low side, he says. High dollar shrinks were hired by the
defense and we paid ours as well. I respectfully submit, thought (sic), that
42

Randy Price and Jeff Mitchell were straight shooters. Not hired guns. The
defense got to substantially determine the parameters, we were told, of Dr.
Price’s exam. They both came into this case with an open mind, open to the
prospect that the defense might be right. They found them wrong. Sure, the
Defendant was depressed, but no evidence exists of bipolarity or mania. He
now wants us to bail him out after he wrecked his life. People who experience
traumatic, even depressing circumstances in their life are obligated at a
minimum not to lash out at innocent people. The defense experts, one from far
away, with a 60 to zero record, he has never testified for the Government.
Every single time he testifies, sixty to zip, is for the Defendant. There’s no
evidence of mania here. The spending spree was a rational criminal effort to
impress Michelle.
Id., at p. 3452.
While this court might have sustained an objection, if it had been made as soon as the
prosecutor stated, in regards to Dr. Price: “He has a lot of credibility”;28 the comment was
immediately followed by a statement derived from evidence in the record which established
that Dr. Price did not always testify for the defense. In context, this statement was not error.
The prosecutor went farther, however, by stating: “We got people in our own back yard who
were credible, who would give an honest opinion who were not hired guns.” Id. This
statement shows how quickly an argument can enter into the “gray zone”29 between acceptable
and improper advocacy. When considered, however, in context with the evidence introduced
in this particular case this court finds the prosecutor’s comments did not render petitioner’s
trial fundamentally unfair. Rather, this court concludes the comments, as a whole, were
designed to remind the jury of its duty to scrutinize and weigh all of the witnesses’ testimony,
including that of the experts. See, United States v. Franklin-El, 555 F.3d 1115, 1127 (10 th Cir.
2009) (finding no prosecutorial misconduct where the prosecutor stated in rebuttal, “The
defendants had to go all the way to Missouri to find some blow hard expert who talked a lot

28

Tr. of Jury Trial, Vol. XIV, at p. 3429.

29

United States v. Young, 470 U.S., at 7, 105 S.Ct., at 1042.
43

but said very little of significance in this case.”) As can be seen, the government began by
urging the jury to decide who was the most believable. To focus the jury’s thoughts, the
prosecutor discussed the experts’ experience based upon testimony presented in the trial.30
In particular, the evidence established that Dr. Price was licensed to practice in the field of
psychology in Texas and Oklahoma. Tr. of Jury Trial, Vol. XII, at p. 3094. Dr. Price had
extensive experience in murder cases, having consulted on close to 200 cases. Id, at p. 3097.
Dr. Price indicated he was retained by the defense in about 60% of those cases. Id. Dr. Price
testified he began his evaluation of Fields anticipating that there was
probably going to be some brain dysfunction, something there to have people
evaluating him for this. And I thought there was going to be a mental illness
there, probably more than the depression. I thought there was going -- you
know, I didn’t know what effect it was going to - - it would have had on the
crime, but I thought there was going to be evidence of those things.
Id., at 3154. And, he was open to considering that the defense experts might be right. Id.
The evidence further established Dr. Mitchell was a clinical assistant professor at the
University of Oklahoma College of Medicine, practicing at Laureate, a large psychiatric
hospital in Tulsa, Oklahoma, and vice president of St. Francis Health Care System. Id., Vol.
XIII, at pp. 3248-3250. Dr. Mitchell testified he had never previously testified in a criminal
case for either side. Id., at p. 3352. Dr. Mitchell indicated he gave Fields the benefit of the
doubt regarding whether or not he was hearing voices. Id., at p. 3284. It was proper for the
prosecutor to contrast this evidence with the testimony of the defense expert, Dr. Woods, who
testified his primary office was in Oakland, California. Id., at Vol. XII, at p. 3000.
Additionally, Dr. Woods testified approximately 40% of his practice was devoted to forensics
and he had been qualified as an expert approximately 60 times. Id., at p. 3001. Dr. Woods
indicated he had never been retained by the United States or by a state government in a
30

Tr. of Jury Trial, Vol. XII, at pp. 2938-3068; 3091-3162; Vol. XIII, at pp. 3171-3356.
44

criminal prosecution. Id., at p. 3002. After commenting on the differences in the doctors’
qualifications, it was not inappropriate for the prosecutor to say that Dr. Mitchell had no “axe
to grind” and this court finds the comment was not “improper vouching.” Rather, it was
simply one way for the prosecutor to direct the jury’s attention to evidence from which the
jury could determine the expert witnesses’ credibility. Similarly, while stating the defense
hired “high dollar shrinks,” the government immediately admitted they too had paid their
shrinks. Thus, it could not have unfairly characterized only the defense experts. While it is
true, not all defense experts were from the west coast, this court finds, based upon the
evidence at trial, that it was not improper for the government to emphasize that the expert
from the west coast had always testified on behalf of the defense.
Fields also argues the government “grossly misrepresented the testimony of Dr.
Woods, Dr. Grinage and other witnesses on several factual issues critical to the assessment
of Mr. Fields’ mental state.” Dkt. # 14, at p. 81. After reviewing the closing arguments in
light of the evidence presented at trial, this court finds the comments of the government
attacked by Fields were supported by the record or appropriate inferences to be made
therefrom.
Finally, petitioner argues the government improperly invoked Biblical Authority in
support of a sentence of death. Dkt. # 14, at p. 84. The comments, which petitioner
complains of were contained in the following passage of the rebuttal argument of the
government:
Thousands of years ago the kind of the world’s greatest then existent
civilization and most powerful empire held a great feast for thousands of his
ruling friends. They ate, they drank from golden and silver goblets that they
had stolen from the temple of a subdued and now enslaved nation. They drank
wine and they worshiped pagan idols. All of a sudden the fingers of a hand
began to write on the palace wall. The king saw the hand and was so
frightened, he was so scared, that his clothing literally came loose. He became
white. He shook. His knees banged together. He cried out: Bring the
45

astrologers, bring the wise men of the nation. Whoever interprets this saying
on the wall will become the third most powerful member of my government.
He will have great riches. The wise men came in. They studied, they
deliberated, they conversed, they conferred and they thought. But they couldn’t
read much less interpret the writing on the wall. The king’s face turned ashen.
The queen, though, remembered a forgotten man. She called for him after
talking to the king. And the king made the man the same offer. The man,
though he turned down all of the riches, all the honor and all of the prestige.
The man bravely interpreted the writing on the wall. And the writing on the
wall said in three words, your kingdom has come to an end, your kingdom will
be divided and given to your neighboring enemies, and then the prophet said the
writing said you have been weighed in the balance and found wanting. Sure
enough, that night the king was killed. His kingdom was separated among his
neighboring enemies.
The Defendant weighed his options on July 10, 2003. Under the Court’s
instructions and the law given by the court, the Defendant should be, as it were,
weighed in the balance and found wanting.
Tr. of Jury Trial, Vol. XIV, at pp. 3466-3467.
Fields argues these remarks were similar to an arguments held improper and highly
prejudicial in Sandoval v. Calderon, 241 F.3d 765, 775 (9th Cir. 2000).31 In Sandoval, the
prosecutor’s language was “eloquent, powerful, and unmistakably Biblical in style.” id., at
778; “[t]he lay juror would readily understand the words as referring to Scripture”, id.; and
the message was clear: those who have opposed the ordinance of God should fear the swordbearing state, whose task, as an avenging minister of God, is to bring wrath upon those who,
like Sandoval, practice evil.” Id. The Sandoval court recognized that “[t]hose learned in the
New Testament would recognize the argument as closely following the thirteenth chapter of
the Book of Romans.” Id. Additional comments made by the prosecutor following this
31

Petitioner also cites to Cunningham v. Zant, 928 F.2d 1006, 1020 (11th Cir. 1991) to support
his argument that the prosecutor’s analogy was improper. While the Cunningham court condemned
the prosecutor’s closing arguments, the case was reversed for other reasons. Further, the closing
arguments in Cunningham were significantly worse than any comments in this case where statements
found offensive included comments that the prosecutor was “‘offended’ that Cunningham had
exercised his Sixth Amendment right to a trial by jury in the guilt-innocence phase of the trial;”
“improperly implied that Cunningham had abused our legal system in some way by exercising his
Sixth Amendment right to a jury trial;” “questioned whether Cunningham was even entitled to his
Sixth amendment rights;” and “made numerous appeals to religious symbols and beliefs, at one point
even drawing an analogy to Judas Iscariot.” Id. (footnote omitted).
46

portion of his summation told the jury they were “not playing God” but were “doing what God
says.” Id., at 779.
Despite religious arguments being condemned by both state and federal courts, relief
is not warranted unless the remarks prejudiced Fields chances of receiving life without the
possibility of parole instead of the death penalty. Coe v. Bell, 161 F.3d 320 (6 th Cir.
1998)(recognized argument that Bible condones capital punishment was inappropriate, but
did not constitute reversible error). The remarks in this case are clearly distinguishable from
those discussed by the court in Sandoval. While the analogy given by the prosecutor may
have been paraphrased from the “writing on the wall” sermon in the Book of Daniel, the
argument was not delivered in biblical style. The prosecutor did not argue that God or any
other religious authority justified the death penalty in this case. Rather, the prosecutor used
a story devoid of any religious connotation, to emphasize the defendant knew what could
happen to him when he decided his course of action on July 10, 2003 and it was now up to the
jury to impose the appropriate sentence based upon the court’s instructions, which included
a balancing (i.e., weighing) of the aggravating and mitigating factors. Moreover, unlike
Sandoval, where the jury deliberated over three days before advising “it was hopelessly
deadlocked,” id., only to later return to court with a unanimous verdict; this was a case where
the defendant pled guilty to murdering two people by randomly stalking them while wearing
a ghillie suit; shooting them while hidden in the woods; and then stealing from them. The jury
rendered their sentencing verdict in less than four hours. See, Criminal Docket sheet minutes
for July 22, 2005, indicating the bailiff was sworn at 11:40 a.m. and the jury returned its
verdict in open court at 3:38 p.m.

47

Accordingly, this court finds none of the prosecutorial arguments, either individually
or collectively, would have warranted reversal of the sentence on appeal. Therefore, appellate
counsel was not ineffective for failing to raise these issues on appeal.
E. Failure to object to instructions and verdict form
Fields claims in his sixth ground for relief that trial counsel were ineffective for failing
to object to the jury instructions and the use of a single verdict form which allowed the jury
to approve a general verdict of death based on the combined weighing of aggravating factors
applicable to two separate murder counts. According to Fields, the jury was allowed to
consider all seven of the aggravating factors argued by the Government, including five factors
which applied to only one of the two counts of murder thereby allow the jury to improperly
aggregate factors in their weighing analysis.
As the Government points out in its motion for summary judgment, however, the thrust
of the defense was to characterize the murders as a single behavioral irregularity caused by
the manic-flip nature of the psychotropic drug - Effexor. See, Dkt. # 110-20, at p. 1; and Dkt.
# 110-2, at p. 37. Separating the verdict form would have emphasized the separate protracted
nature of the two murders. Moreover, separate verdict forms would have required the jury to
focus more on the aggravating facts of the case since they would have been required to
consider them twice. Thus, this court finds it was a sound strategic choice by defense counsel
to request a unitary verdict form.
Furthermore, since Fields pled guilty to both murders, this is not a case where one
count could have been reversed on appeal and the sentence on that count had to be vacated.
The jury was given a single basis for imposing a death sentence and they unanimously found
that the aggravators outweighed the mitigators. If the jury had been required to make separate
findings, it is possible the jury could have returned a sentence of life without possibility of
48

release on one of the murders and a death sentence on the other. But, as pointed out by the
Tenth Circuit,
[t]he jury was not presented with alternative routes to the death penalty; it was
given a single basis for imposing a death sentence – the jury had to
unanimously find that the aggravators (themselves unanimously found)
collectively outweighed the mitigators. Thus, we know what the basis for the
jury’s verdict was and that it was unanimous.
United States v. Fields, 516 F.3d at 939-40. There can be no question that all twelve jurors,
after weighing the aggravating factors that they found to exist, concluded Fields should be put
to death for at least one, if not both, of the murders. The suggestion by counsel that the jury
might have returned two life sentences had it used separate verdict forms has no basis in fact
and is nothing more than unsupported conjecture and speculation. Even assuming counsel
was ineffective for failing to request two separate verdict forms, this court finds petitioner has
failed to establish prejudice. Accordingly, this claim is denied.
II. Alleged Brady violations
The seventh ground for relief alleges the government withheld exculpatory, material
evidence from the defense in violation of due process and trial counsel was ineffective for
failing to investigate and present exculpatory evidence. Specifically, petitioner argues certain
evidence would have corroborated the defense’s argument that Fields had taken an increased
dose of Effexor before the offense and emails and other items on his computer would have
tended to help establish he was mentally ill. Finally, petitioner argues the government
withheld certain witness statements or interviews which would have been helpful to his
defense. To the extent the government had no duty to disclose this evidence, petitioner claims
his counsel were ineffective for failing to investigate, discover and present this evidence.
The Supreme Court has held “that the suppression by the prosecution of evidence
favorable to an accused upon request violates due process where the evidence is material
49

either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.”
Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196-1197, 10 L.Ed.2d 215 (1963). In
Strickler v. Green, 527 U.S. 263, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999), the Supreme Court
identified three components or essential elements of a Brady prosecutorial misconduct claim
as follows: “[t]he evidence at issue must be favorable to the accused, either because it is
exculpatory, or because it is impeaching; that evidence must have been suppressed by the
[government], either willfully or inadvertently; and prejudice must have ensued.” Id., 527
U.S., at 281-282, 119 S.Ct., at 1948.

To show evidence was ‘material,’ there must be “a

reasonable probability that, had the evidence been disclosed to the defense, the result of the
proceeding would have been different.” Kyles v. Whitley, 514 U.S. 419, 433, 115 S.Ct. 1555,
1565, 131 L.Ed.2d 490 91995). “A ‘reasonable probability’ is a probability sufficient to
undermine confidence in the outcome.” United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct.
3375, 3383, 87 L.Ed.2d 481 (1985). “The question is not whether the defendant would more
likely than not have received a different verdict with the evidence, but whether in its absence
he received a fair trial, understood as a trial resulting in a verdict worthy of confidence.”
Kyles, 514 U.S., at 434, 115 S.Ct., at 1566.
If a defendant knew or should have known the essential facts permitting him to take
advantage of the exculpatory evidence, Brady does not compel disclosure because no
suppression occurred. United States v. Erickson, 561 3d 1150, 1163 (10 th Cir. 2009). See
also, Coe v. Bell, 161 F.3d 320, 344 (6th Cir. 1998)(Brady violation does not occur when
defendant “knew or should have known the essential facts permitting him to take advantage
of exculpatory information” or where the evidence was available to him from another source).

50

A. Bottle of effexor pills
In his reply (Dkt. # 20) and in his answer to government’s motion for summary
judgment, petitioner concedes “[t]he bottle containing the remaining prescription pills was
provided to Muskogee County Detention Center by the FBI after it was found in Petitioner’s
truck.” Dkt. # 119, at p. 49. Petitioner goes so far in his reply to state that the “fourteen
Effexor pills he consumed while at the Muskogee County Detention Center came from the
bottle in his truck.” Dkt. # 20, at p. 70. Petitioner has not established that the government
took an inventory of the number of pills contained within the pill bottle prior to delivering the
same to the jail and then failed to release that information to them. The government had no
obligation to provide information to the petitioner that was never collected. Moreover, Fields
is the only one who can say exactly how many pills from that the bottle he actually took. As
a result, the information regarding the Effexor pills was information the defendant knew or
should have known. Accordingly, this court finds no Brady violation occurred in relation to
this bottle of Effexor pills.
Furthermore, assuming counsel was ineffective for failing to inspect the bottle of pills
pre-trial and/or submit the bottle as evidence in trial to establish that Fields had taken the
prescribed amount of pills or possibly more, this court finds Petitioner has failed to establish
prejudice.

51

B. Seized computers
Fields summarily claimed in his motion to vacate that the “hard drives . . . . contain
exculpatory mental health and other evidence that should have been disclosed to the defense,
including information in the almost 16,000 documents and 7,000 emails.” Dkt. # 1-3, at p.
62. Additionally, he stated the “exculpatory evidence withheld by the Government was
material.” Id., at p. 63. During the course of these proceedings, Fields has made no effort to
supplement these conclusory statements with any facts which would establish what
information contained on these computers, if any, was relevant to his criminal case.
Therefore, this court finds petitioner has failed to establish any Brady violation in regard to
the two seized computers.

III. Execution issues
In ground two of his amended motion, Petitioner argues he is not competent to be
executed and, therefore, his execution would violate the Eighth Amendment to the United
States Constitution and international law. In his ninth ground for relief, Petitioner argues his
execution would violate the Eighth Amendment to the United States Constitution. Petitioner
submits no facts to support these claims. Moreover, Petitioner admits these issues are not
ripe for review.
Article III of the United States Constitution only extends the judicial power of this
court to real cases or controversies. U.S. Const. art. III, § 1. “Under Article III of the
Constitution, [this court] may hear only cases involving a live case or controversy, and this
requirement adheres at all stages of judicial proceedings.” United States v. QuezadaEnriquez, 567 F.3d 1228, 1231 (10th Cir. 2009) (citations omitted). Courts have routinely held
that claims of incompetency are not ripe for review until the execution is imminent. See,
52

Stewart v. Martinez-Villareal, 523 U.S. 637, 118 S.Ct. 1618, 140 L.Ed.2d 849 (1998). Further,
even if the claims were justiciable, Petitioner has failed to identify any facts which might give
rise to relief under the Eighth Amendment. Accordingly, these claims are denied.
IV. Cumulative Errors
Cumulative-error analysis evaluates only the effect of matters determined to be error,
not the cumulative effect of non-errors. U.S. v. Rivera, 900 F.2d 1462 (10 th Cir. 1990). In
considering cumulative error, the Tenth Circuit has indicated a reviewing court should
conduct the same inquiry as for individual errors – were the defendant’s substantial rights
affected; with the focus being on “the underlying fairness of the trial.” United States v.
Woods, 207 F.3d 1222, 1237 (10th Cir. 2000). Since this court has found Petitioner has failed
to prevail on any of the claims he raises, cumulative-error analysis is not appropriate.
Accordingly, this claim is denied.
CONCLUSION
For the reasons stated herein, the Petitioner’s Motion to Vacate, Set Aside, or Correct
a Sentence, pursuant to 28 U.S.C. § 2255, is hereby denied. Furthermore, this Court finds
the Petitioner has failed to establish that he has been deprived of any constitutional rights. 28
U.S. § 2253(c)(2). Therefore, pursuant to Rule 11 of the Rules Governing Section 2255
Proceedings, this Court hereby declines to issue a certificate of appealability.

Dated this 15 th day of December, 2016.
J4h4i0

53