Fitzgerald v. Workman

Filing 104

OPINION AND ORDER by Judge Gregory K Frizzell ; denying 89 Motion to Reconsider; denying 90 Motion for Summary Judgment (hbo, Dpty Clk)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OKLAHOMA

JAMES FITZGERALD,
Petitioner,
v.

RANDALL G. WORKMAN, Warden,
Oklahoma State Penitentiary,
Respondent.

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No. 03-CV-531-GKF-TLW

OPINION AND ORDER
This is a 28 U.S.C. § 2254 habeas corpus action initiated by Oklahoma death row inmate
James Fitzgerald. Before the Court for consideration is Respondent’s Motion to Reconsider
Evidentiary Hearing in Light of Recent Supreme Court Decisions (Dkt. # 89) or, in the Alternative,
Motion for Summary Judgment (Dkt. # 90). Respondent asks the Court to reconsider its decision
to grant an evidentiary hearing on Fitzgerald’s ineffective assistance of counsel claims in light of
recent decisions by the United States Supreme Court. In the alternative, Respondent asks this Court
to grant summary judgment for Respondent against Fitzgerald on the ineffective assistance of
counsel claims. Respondent argues that there is no genuine dispute as to any material fact relating
to those claims. Fitzgerald filed a response to Respondent’s motions (Dkt. # 100). After review of
the briefs of the parties and the evidence submitted, the Court finds that Respondent’s motions
should be denied for the reasons stated herein.
I.

Background

Fitzgerald filed an Amended Motion for Evidentiary Hearing (Dkt. # 62) relating to three
of the claims raised in his Petition for Writ of Habeas Corpus (Dkt. # 24), including his claim that

his trial counsel in his second sentencing trial was ineffective for failing to present certain mitigating
evidence regarding Fitzgerald’s brain damage, diabetes, and consumption of alcohol on the night
of the offense (ground seven of the petition).1 Specifically, Fitzgerald claims that trial counsel’s
decision to forego the presentation of expert witnesses, Drs. Jones and Bratcher, to explain how the
combination of Fitzgerald’s brain damage, alcohol intoxication and diabetes affected Fitzgerald’s
ability to control his actions at the time of the murder violated his constitutional rights. See id.; see
also Dkt. # 72.2 This Court held that an evidentiary hearing on ground seven was warranted in order
to determine whether Fitzgerald’s trial counsel had strategic reasons for failing to offer the
mitigating evidence that he had at his disposal and if so, whether that strategy was constitutionally
reasonable under the circumstances. Dkt. # 72 at 16. In his motions, Respondent argues that an
evidentiary hearing is no longer warranted in light of recent Supreme Court decisions, or
alternatively, in light of evidence recently developed through discovery conducted by the parties in
preparation for the evidentiary hearing. See Dkt. ## 89, 90.
II.

Motion to Reconsider

Respondent argues that two cases recently decided by the Supreme Court, Cullen v.
Pinholster, – U.S. –, 131 S.Ct. 1388 (2011) and Harrington v. Richter, – U.S. –, 131 S.Ct. 770
(2011), obviate the need to proceed any further with an evidentiary hearing in this case. Both
Pinholster and Richter involve the application of 28 U.S.C. § 2254(d)(1) of the Antiterrorism and
Effective Death Penalty Act of 1996 (“the AEDPA”) in a capital habeas corpus action.

1

In ground seven, Fitzgerald also alleged ineffective assistance of appellate counsel for
failing to raise the ineffective assistance of trial counsel claim in his direct appeal.
2

The Court’s order granting the evidentiary hearing (Dkt. # 72) contains a more detailed
summary of Fitzgerald’s ground seven claims and the procedural history relating thereto.
2

In Pinholster, the Supreme Court held that “review under §2254(d)(1) is limited to the record
that was before the state court that adjudicated the claim on the merits.” 131 S.Ct. at 1398. Thus,
“evidence introduced in federal court has no bearing on §2254(d)(1) review. If a claim has been
adjudicated on the merits by a state court, a federal habeas petitioner must overcome the limitation
of §2254(d)(1) on the record that was before that state court.” Id. at 1400. In Pinholster, the Court
declined to decide whether a district court may ever hold an evidentiary hearing before it determines
that the state court’s decision was contrary to or an unreasonable application of clearly established
federal law. Id. at 1411 n.20. The Court did not have to decide that issue because Pinholster had
failed to demonstrate that the adjudication of his claim based on the state-court record resulted in
a decision “contrary to” or “involv[ing] an unreasonable application of federal law.” Id. As
discussed below, this case is different than Pinholster because, in this case, the state court deviated
from the controlling standard under federal law.
Pursuant to Richter, a habeas court’s review of a state court’s denial of an ineffective
assistance of counsel claim under the AEDPA is “doubly deferential.” Richter, 131 S.Ct. at 788.
The court must determine what arguments or theories supported, or could have supported, the state
court’s decision and grant relief only if fairminded jurists could not disagree that the state court’s
decision is inconsistent with Supreme Court precedent. Id. at 786. Pursuant to the AEDPA, the
question is not whether counsel’s actions were reasonable, but rather “whether there is any
reasonable argument that counsel satisfied Strickland’s deferential standard.” Id. at 788. Further,
“[a]lthough courts may not indulge in ‘post hoc rationalization’ for counsel’s decisionmaking that
contradicts the available evidence of counsel’s actions, neither may they insist counsel confirm
every aspect of the strategic basis for his or her actions.” Id. at 790 (quoting Wiggins v. Smith, 539

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U.S. 510, 526-27 (2003)).
The Court declines to reconsider its decision to grant an evidentiary hearing on Fitzgerald’s
ineffective assistance of counsel claims because neither of these recent Supreme Court cases are
applicable to those claims. As this Court has previously stated, it must review Fitzgerald’s
ineffective assistance of counsel claim de novo, rather than apply the deferential standards of the
AEDPA.
In Fitzgerald’s post-conviction proceeding (from his second sentencing trial), the OCCA
rejected his claim of ineffective assistance of appellate counsel, which he presented as both an
independent ground for relief and as cause for his failure to raise an ineffective assistance of trial
counsel claim on direct appeal. Thus, the OCCA considered Fitzgerald’s ineffective assistance of
trial counsel claim as part of his ineffective assistance of appellate counsel claim. The OCCA
reasoned as follows:
Fitzgerald claims that trial and appellate counsel were ineffective for failing
to present mitigating evidence . . . .
Our review of ineffective assistance follows the three-tiered test enunciated
in Walker v. State. Did appellate counsel commit the alleged predicate act? If so, was
counsel’s performance deficient under Strickland v. Washington’s two-pronged test?
We consider mishandled claims on their merits only if the post-conviction petitioner
sustains the initial heavy burden of proving deficient performance.
Fitzgerald claims in Proposition I that trial and appellate counsel were
ineffective for failing to present available mitigating evidence. As appellate counsel
did fail to raise this issue, Fitzgerald’s claims satisfy the first prong of Walker.
Nevertheless, he has not established that the omission amounts to deficient
performance: that counsel breached any duties owed him or that counsel’s judgment
was unreasonable and fell beyond an acceptable range of professional assistance.
Because Fitzgerald failed to meet the precondition of showing deficient attorney
performance, the claim is denied.
Fitzgerald v. State, Order Denying Application for Post-Conviction at 3-4, Case No. PCD-2002-626

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(Okla. Crim. App. March 13, 2003) (footnotes omitted).
Because the OCCA denied Fitzgerald’s claims of ineffective assistance of appellate counsel
on the merits, ordinarily this Court’s review would be limited to determining whether the petitioner
can show that the state court’s disposition is “contrary to, or involved an unreasonable application
of, clearly established Federal law, as determined by the Supreme Court of the United States.” 28
U.S.C. § 2254(d)(1); see also Cargle v. Mullin, 317 F.3d 1196, 1202 (10th Cir. 2003). However,
this deferential standard of review does not apply if the state court employed the wrong legal
standard in deciding the merits of the federal issue. Cargle, 317 F.3d at 1202 (citing Revilla v.
Gibson, 283 F.3d 1203, 1220 n.14 (10th Cir. 2002)). The OCCA applied the wrong standard here.
The proper standard for assessing a claim of ineffectiveness of appellate counsel is that set
forth in Strickland v. Washington, 466 U.S. 668 (1984). Thus, the petitioner must show both (1)
constitutionally deficient performance, by demonstrating that his appellate counsel’s conduct was
objectively unreasonable, and (2) resulting prejudice, by demonstrating a reasonable probability that,
but for counsel’s unprofessional error(s), the result of the proceeding – in this case the appeal –
would have been different. Smith v. Robbins, 528 U.S. 259, 285 (2000) (applying Strickland). A
claim of appellate ineffectiveness can be based on counsel’s failure to raise a particular issue on
appeal, although it is difficult to show deficient performance under those circumstances because
counsel “need not (and should not) raise every nonfrivolous claim, but rather may select from among
them in order to maximize the likelihood of success on appeal.” Id. at 288 (following Jones v.
Barnes, 463 U.S. 745 (1983)). Thus, in analyzing an appellate ineffectiveness claim based upon the
failure to raise an issue on appeal, the Court “looks to the merits of the omitted issue.” Neill v.
Gibson, 278 F.3d 1044, 1057 (10th Cir. 2001) (quotation omitted). “If the omitted issue is so plainly

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meritorious that it would have been unreasonable to winnow it out even from an otherwise strong
appeal, its omission may directly establish deficient performance; if the omitted issue has merit but
is not so compelling, the case for deficient performance is more complicated, requiring an
assessment of the issue relative to the rest of the appeal, and deferential consideration must be given
to any professional judgment involved in its omission; of course, if the issue is meritless, its
omission will not constitute deficient performance.” Cargle, 317 F.3d at 1202.
The OCCA, in its order denying Fitzgerald’s application for post-conviction relief, made
mention of Strickland’s two-prong inquiry when it addressed Fitzgerald’s ineffective assistance of
appellate counsel claim. But the OCCA ignored the mandate of Strickland and Smith and their
progeny when it disregarded the merits of the omitted claim. In Cargle, the Tenth Circuit explicitly
disavowed the OCCA’s application of the Walker standard as inconsistent with Strickland. The
circuit court explained:
Walker’s step-two truncation of the Strickland test [has] enable[d] the OCCA
to reject appellate ineffectiveness allegations without any assessment of the merits
of underlying predicate claims, so that the OCCA has been able to declare that a
“failure to raise even a meritorious claim does not, in itself, constitute deficient
performance.” Slaughter v. State, 969 P.2d 990, 996 (Okla.Crim.App.1998) . . . .
....
It is clearly wrong, as a matter of federal law, to require as a necessary
condition for relief under Strickland, something beyond the obvious merit of the
omitted claim. The very focus of a Strickland inquiry regarding performance of
appellate counsel is upon the merits of omitted issues, and no test that ignores the
merits of the omitted claim in conducting its ineffective assistance of appellate
counsel analysis comports with federal law. A sufficiently meritorious omitted claim
certainly can, by itself (or in relation to other issues that counsel did pursue),
establish constitutionally deficient performance by appellate counsel.
Cargle, 317 F.3d at 1204-05.
Although the OCCA’s order denying post-conviction relief does not specifically state that
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the OCCA relied on the repudiated “regardless of merit” standard to support its finding that
“Fitzgerald failed to meet the precondition of showing deficient attorney performance,” it referenced
the Walker standard and expressly recognized, “We consider mishandled claims on their merits only
if the post-conviction petitioner sustains the initial heavy burden of proving deficient performance.”
See Order Denying Application for Post-Conviction at 3-4, Case No. PCD-2002-626. Those
statements, combined with the fact that the OCCA failed to discuss or analyze the merits of the
omitted claim leads the Court to conclude that the OCCA’s analysis necessarily “deviated from the
controlling federal standard ... [and] is [therefore] not entitled to deference,” Cargle, 317 F.3d at
1205.3 Accordingly, the Court will not defer to the OCCA’s ruling on this issue, and will instead
review the claim de novo.4 Because the Court reviews these claims de novo, the AEDPA and the
Pinholster and Richter cases do not apply to Fitzgerald’s ineffective assistance of counsel claims.
Therefore, Respondent’s motion to reconsider is denied.

III.

Motion for Summary Judgment

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The OCCA’s approval and citation to Le v. State, 953 P.2d 52 (Okla. Crim. App. 1998) is
noteworthy because the express language in Le conclusively establishes the OCCA rejected the
Strickland standard for the evaluation of ineffective assistance of appellate counsel claims. See
Fitzgerald, Order Denying Application for Post-Conviction at 3 n.7, 4 n.10, Case No. PCD-2002626. The OCCA in Le stated, “[Petitioner] Le suggests only that Strickland provides the better
standard and speculates that the Walker scheme may result in confusion. This Court must reject
Le’s repeated suggestion that the test would be easier if we returned to the Strickland standard; the
language of the statute [Okla. Stat. tit. 22, §1089] forbids that course.” Le, 953 P.2d at 55.
4

Respondent is correct that Rule 9.7(D)(1)(a), Rules of the Oklahoma Court of Criminal
Appeals, Tit. 22, Ch. 18, App., suggests that the OCCA likely did review the extra-record evidence
submitted by Fitzgerald in his post-conviction proceeding in support of his ineffective assistance of
counsel claims, and thus, Wilson v. Workman, 577 F.3d 1284 (10th Cir. 2009) (en banc) should not
provide a basis for de novo review in this instance.
7

Respondent in his motion for summary judgment claims that the deposition of Fitzgerald’s
lead trial counsel, Silas Lyman, leaves no genuine dispute as to whether trial counsel made a
reasonable strategic decision not to present the evidence in question.5 Respondent claims that, as
such, Fitzgerald cannot succeed on the deficient performance prong of Strickland, and thus,
summary judgment is warranted.
The Court may grant summary judgment “if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a); see also Thomas v. Metropolitan Life Ins. Co., 631 F.3d 1153, 1160 (10th Cir.
2011). When reviewing a motion for summary judgment, the Court must view the evidence in the
light most favorable to the nonmoving party. Thomas, 631 F.3d at 1160. “However, the nonmoving
party may not rest on its pleadings but must set forth specific facts showing that there is a genuine
issue for trial as to those dispositive matters for which it carries the burden of proof.” Applied
Genetics Int’l, Inc. v. First Affiliated Sec., Inc., 912 F.2d 1238, 1241 (10th Cir. 1990) (citation
omitted). The mere existence of an alleged factual dispute, however, does not defeat an otherwise
properly supported motion for summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
247-48 (1986). “An issue of fact is material if under the substantive law it is essential to the proper
disposition of the claim.” Thomas, 631 F.3d at 1160 (internal quotation marks and citation omitted).
When reviewing a motion for summary judgment it is not the judge’s function to weigh the evidence
and determine the truth of the matter but only to determine whether there is a genuine issue for trial.
Anderson, 477 U.S. at 249.

5

It is undisputed that Mr. Lyman was the attorney who made the decision not to present the
challenged evidence. See Dkt. # 100, Ex. 2, ¶ 4; see also Dkt. # 93, Lyman Depo. at 92 (Ex. 1 to
Respondent’s motion for summary judgment).
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To prevail on an ineffective assistance of trial counsel claim, the petitioner must show: (1)
that counsel’s performance was deficient; and (2) that such deficient performance prejudiced the
defense. Strickland, 466 U.S. at 687. A defendant can establish the first (deficient performance)
prong by showing that counsel performed below the level expected from a reasonably competent
attorney in criminal cases. Id. at 687-88. The Court must “indulge a strong presumption that
counsel’s conduct falls within the wide range of reasonable professional assistance and that
counsel’s conduct was not the result of error or omission but derived instead from trial strategy.”
Sallahdin v. Gibson, 275 F.3d 1211, 1235 (10th Cir. 2002) (quoting Elliott v. Williams, 248 F.3d
1205, 1208 (10th Cir. 2001)). But “the mere incantation of ‘strategy’ does not insulate attorney
behavior from review.” Fisher v. Gibson, 282 F.3d 1283, 1296, 1305 (10th Cir. 2002) (citation
omitted). This Court must consider whether that strategy was objectively reasonable. See id. at 1305.
If Fitzgerald is unable to show either “deficient performance” or “sufficient prejudice,” his claim
of ineffective assistance fails. Strickland, 466 U.S. at 700. Respondent’s motion for summary
judgment alleges that there is no genuine dispute as to any material fact relating to the deficient
performance prong of Strickland, and thus, summary judgment should be entered for Respondent
and against Fitzgerald on this issue.
Respondent contends that evidence obtained during Mr. Lyman’s deposition shows that he
made a strategic decision not to introduce the challenged evidence and that his decision was a
reasonable one. In his response, Fitzgerald does not dispute that trial counsel made a strategic
decision not to introduce the disputed evidence. In fact, Fitzgerald does not appear to dispute any
of the material facts asserted by Respondent. Rather, Fitzgerald cites to additional evidence and
provides legal authorities supporting the proposition that Respondent is not entitled to judgment as

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a matter of law on his ineffective assistance of counsel claims. In addition, Fitzgerald argues that
summary judgment is not appropriate because there remain unresolved issues of fact relating to
those claims.6 Fitzgerald avers that discovery relating to his ineffective assistance claims has not
been completed. At this time, the discovery deadline in the matter is December 1, 2011. See Dkt.
# 103.
This Court finds that summary judgment pursuant to Fed.R.Civ.P. 56(a) is inappropriate in
this instance. Rule 12, Rules Governing Section 2254 Cases, provides: “The Federal Rules of Civil
Procedure, to the extent that they are not inconsistent with any statutory provisions or these rules,
may be applied to a proceeding under these rules.” (emphasis added). Here, the Court pursuant to
Rule 8, Rules Governing Section 2254 Cases, determined that an evidentiary hearing is warranted
on Fitzgerald’s ground seven ineffective assistance of counsel claims. Dkt. # 72 at 16. Respondent
essentially seeks to circumvent Rule 8 and again asks the Court to reconsider its decision that an
evidentiary hearing is warranted in light of evidence developed during discovery. The discovery
was permitted by the Court in order for the parties to prepare for the evidentiary hearing. Moreover,
Rule 8(a) provides that to determine if an evidentiary hearing is warranted, the judge must review
“the answer, any transcripts and records of state-court proceedings, and any materials submitted
under Rule 7. . . .” The material submitted by Respondent in support of his motion for summary
judgment, the deposition of Mr. Lyman, is not part of the state court record, nor part of Respondent’s

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Fitzgerald also argues that Lyman, by stating in his deposition that he did not believe that
Dr. Bratcher would come across as the best witness and that Dr. Jones could be a better witness for
the state than for the petitioner, disputes the veracity of the experts’ affidavits and value as
witnesses. See Seamons v. Snow, 206 F.3d 1021, 1026 (10th Cir. 2000) (“It is axiomatic that a judge
may not evaluate the credibility of witnesses in deciding a motion for summary judgment.”). He
contends that this issue can only be resolved in an evidentiary hearing. He also indicates that he has
not yet had the opportunity to interview Dr. Bratcher.
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answer, nor material submitted under Rule 7.7 Thus, under Rule 8, this material should not be
considered by the Court in determining whether an evidentiary hearing is warranted. Respondent
may certainly present the relevant information gained during Mr. Lyman’s deposition at the
evidentiary hearing. Thus, the Court determines that the procedures described by Fed.R.Civ.P. 56
are inconsistent with the Rules Governing Section 2254 Cases in this particular instance. The Court
declines to apply Fed.R.Civ.P. 56 here. For these reasons, the Court finds that Respondent’s motion
for summary judgment (Dkt. # 90) shall be denied.
ACCORDINGLY IT IS HEREBY ORDERED that:
1.

Respondent’s motion to reconsider (Dkt. # 89) is denied.

2.

Respondent’s motion for summary judgment (Dkt. # 90) is denied.

DATED this 25th day of August, 2011.

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Under Rule 7(a), Rules Governing Section 2254 Cases, the judge “may direct the parties
to expand the record by submitting additional materials relating to the petition.” The Court did not
order the parties to submit additional materials here.
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