Jones v. Workman
Filing
20
OPINION AND ORDER by Judge Terence Kern ; denying certificate of appealability; denying 1 Petition for Writ of Habeas Corpus (2241/2254) (vah, Chambers)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OKLAHOMA
WESLEY D. JONES,
)
)
)
)
)
)
)
)
)
Petitioner,
vs.
RANDY WORKMAN,
Respondent.
Case No. 09-CV-020-TCK-PJC
OPINION AND ORDER
Before the Court is the petition for writ of habeas corpus (Dkt. # 1) filed by Petitioner
Wesley D. Jones, a state inmate appearing pro se. Respondent filed a response (Dkt. # 9) and
provided the state court records (Dkt. ## 9, 10, and 11) necessary for adjudication of Petitioner’s
claims. Petitioner did not file a reply to Respondent’s response. For the reasons discussed below,
the Court finds the petition for writ of habeas corpus shall be denied.
BACKGROUND
Pursuant to 28 U.S.C. § 2254(e)(1), the historical facts found by the state court are presumed
correct. Following review of the record, including the trial transcripts, the Court finds that the
following factual summary by the OCCA is adequate and accurate. Therefore, the Court adopts this
portion of the OCCA’s summary as its own:
A few days before September 15, 2002, Murtaza Ali and Shafi Ahmed asked
Wesley Jones to kill the owner of the Lucky Trip convenience store, Mohamed
Rahaman. On September 15th, Ali drove Jones to the store and identified Rahaman.
Jones walked into the store, waited a few moments, then approached the counter and
shot and kill Rahaman. When store customer Sterling Mullis, standing nearby,
grabbed Jones, Jones also shot and killed him. Jones then fired through the glass
door of the store and ran around the corner to Ali’s waiting car and fled.
(Dkt. # 9, Ex. 1; Jones v. State, 134 P.3d 150, 153 (Okla. Crim. App. 2006)).
Based on those events, Petitioner and his co-defendant, Murtaza Ali,1 were both charged with
two counts of First Degree Murder in Tulsa County District Court, Case No. CF-2002-4910.
Petitioner was tried by a jury. At the conclusion of a two-stage trial, he was found guilty as charged
and sentenced to death on each conviction of First Degree Murder. At trial, Petitioner was
represented by attorneys Sid Conway and Marna Franklin from the Tulsa County Public Defender’s
Office.
Petitioner appealed his convictions and sentences to the Oklahoma Court of Criminal
Appeals (OCCA). On direct appeal, Petitioner was represented by attorney Stuart Southerland from
the Tulsa County Public Defender’s Office. On April 24, 2006, the OCCA affirmed the trial court’s
judgments but reversed the death sentences and remanded for resentencing. On January 14, 2008,
Petitioner waived his right to a second stage jury trial and was sentenced by the trial court to two
sentences of life without parole to be served consecutively.
On February 16, 2005, Petitioner filed an application for post-conviction relief at the OCCA.
See Dkt. # 9, Ex. 8. That application, filed in Case No. PCD-2005-144, was dismissed on June 13,
2006, after Petitioner received relief from his death sentences.
Petitioner commenced the instant habeas corpus action by filing his petition on January 15,
2009. See Dkt. # 1. In his petition, he identifies the following grounds of error:
Ground 1:
The jury selection process employed by the trial court violated Appellant’s
rights pursuant to the Sixth, Eighth and Fourteenth Amendments to the
United States Constitution, as well as corresponding provisions of the
Oklahoma Constitution.
1
On November 14, 2003, Petitioner’s co-defendant, Murtaza Ali, was convicted on his pleas
of guilty to two amended charges of Accessory After the Fact to First Degree Murder. He was
sentenced that day to twenty-five (25) years in custody on each count, to be served concurrently.
2
Ground 2:
It was reversible error to deny sequestered, individualized voir dire in the
instant case, violating Appellant’s rights pursuant to the Sixth, Eighth and
Fourteenth Amendments to the United States Constitution, as well as
corresponding provisions of Oklahoma law.
Ground 3:
It was reversible error to refuse defense counsel’s request to remove
prospective juror Piland for cause, denying Appellant a fair trial and due
process of law pursuant to the Sixth, Eighth and Fourteenth Amendments to
the United States Constitution, as well as relevant provisions of the
Oklahoma Constitution.
Ground 4:
It was reversible error to refuse to permit defense counsel to question
prospective jurors as to their ability to fairly consider all three sentencing
alternatives should they convict Appellant of two counts of First Degree
Murder. Appellant’s convictions violate the Sixth, Eighth and Fourteenth
Amendments to the United States Constitution, as well as relevant provisions
of Oklahoma law.
Ground 5:
Under the facts of this case, it was reversible error for the trial judge to refuse
to permit both defense attorneys to conduct voir dire of the prospective jury
panel. As a result, Appellant suffered ineffective assistance of counsel in
violation of the Sixth and Fourteenth Amendments to the United States
Constitution.
Ground 6:
Appellant’s video-taped statement was admitted into evidence in violation
of the Fourth, Fifth, Sixth and Fourteenth Amendments to the United States
Constitution.
Ground 7:
It was reversible error to fail to instruct the jury on a lesser-included offense
to First Degree Murder as alleged in Count II.
Ground 8:
Incorporation of first stage evidence to support aggravators fails to narrow
the class of offender subject to death, fails to properly channel the jury’s
discretion, and violates Appellant’s Sixth, Eighth and Fourteenth
Amendment rights.
Ground 9:
It was reversible error and a violation of the Sixth, Eighth and Fourteenth
Amendments to the United States Constitution to fail to define “life without
possibility of parole” for the jury.
Ground 10:
It was reversible error to admit evidence of prior bad acts, which were
ultimately used as aggravators and not as impeachment. The jury received
no instruction or direction as to the appropriate use for the prior felony and
other “bad act” testimony elicited by the prosecutor during his cross3
examination of Appellant’s mitigation expert. Appellant’s rights were
violated pursuant tot the Sixth, Eighth and Fourteenth Amendments to the
United States Constitution, as well as relevant provisions of Oklahoma law.
Ground 11:
As applied to the facts of this case, the “risk of death to more than one
person” aggravator sets a standard so vague as to fail to adequately channel
the sentencing decision patterns of the jury, rendering the aggravator
unconstitutional. The jury’s finding of the existence of the aggravator must
be reversed, requiring the reversal of the death sentence in Count I.
Ground 12:
The aggravating circumstance of killing to avoid further prosecution is vague
and overbroad and thus unconstitutional under state and federal law.
Appellant’s sentence in Count II must be reversed.
Ground 13:
Appellant’s rights under the Sixth, Eighth and Fourteenth Amendments were
violated by the trial court’s failure to instruct the jury that the death penalty
could not be imposed unless the jury first found that aggravation outweighed
mitigation beyond a reasonable doubt.
Ground 14:
The instructions on the issue of mitigation permitted the jurors to ignore
mitigating evidence, and seriously diminished the effect of the mitigating
evidence present in this case. The mitigation instructions violated
Appellant’s rights pursuant to the Fifth, Sixth, Eighth and Fourteenth
Amendments of the United States Constitution and Article II, §§ 7 and 9 of
the Oklahoma Constitution.
a.
The language of the instruction(s) relating to mitigation is misleading
and suggests that mitigation is a defense when it is not.
b.
The instructions to the jury did not require the consideration of
mitigation, even if evidence of mitigation was found to exist.
Ground 15:
The evidence was insufficient to support the alleged aggravator “risk of death
to more than one person.” Further, the mitigating evidence outweighed the
evidence in aggravation alleged by both aggravators, requiring the reversal
of Appellant’s sentence.
Ground 16:
Appellant’s conviction for Felony-Murder cannot stand, given the jury’s
finding that the two murders constituted an aggravating circumstance. His
conviction for felony murder violated the Fifth, Eighth and Fourteenth
Amendments to the Constitution, as well as corresponding provisions of
Oklahoma law.
Ground 17:
The verdict form -- aggravating circumstances -- fails to reveal which
aggravator(s) apply to which count(s). Should this Court find the “avoid
arrest or prosecution” aggravator invalid in Count II, Appellant’s sentence
4
of death must be reversed for it is impossible to know if the jury made the
appropriate finding as to the remaining aggravating circumstance in that
count.
Ground 18:
The use of identical evidence to support separate aggravators duplicates the
aggravators and is unconstitutional.
Ground 19:
The jury should have been permitted to consider the twenty-five year
sentence imposed upon co-defendant Murtaza Ali as mitigating evidence in
the second stage.
Ground 20:
Appellant received ineffective assistance of counsel, both at trial and on
appeal, in violation of the Sixth and Fourteenth Amendments to the United
States Constitution.
Ineffective assistance of counsel on appeal.
Ineffective assistance of counsel at trial.
a.
failure to provide a consistent defense in mitigation.
b.
failure to present evidence of the effects of PCP use.
c.
failure to offer the report of Dr. Cunningham and DHS
records as exhibits.
d.
failure to object to error at trial or request admonishment.
Ground 21:
Incidents of prosecutorial misconduct deprived Appellant of a fair trial/
sentencing proceeding in violation of the Sixth, Eighth and Fourteenth
Amendments to the United States Constitution.
a.
The prosecutor repeatedly elicited information from a prospective
juror which had no legitimate purpose other than to alarm the other
jurors.
b.
The prosecutor suggested that the sentencing option of life with
possibility of parole should not be considered by the jury.
c.
The prosecutor improperly suggested that the death penalty would
have been available even if only murder had been alleged.
d.
The prosecutor mischaracterized the consequences of the jury finding
mitigating evidence that outweighed the evidence of aggravation.
e.
The prosecutor asked for the jury to sympathize with the victims and
their families.
f.
The prosecutor was wrong to suggest that the defense expert was
testifying to whatever defense counsel paid him to say (and therefore
lying).
g.
The prosecutor intentionally misled the jury into believing that
Appellant’s knowledge of the difference between right and wrong
was non-statutory aggravator.
5
Ground 22:
The accumulation of error in this case deprived Appellant of due process of
law and a reliable sentencing proceeding, therefore necessitating reversal
pursuant to the Eighth and Fourteenth Amendments to the United States
Constitution as well as Article II, §§ 7 and9 of the Oklahoma Constitution.
(Dkt. # 1). Significantly, the grounds for relief identified in the habeas petition are identical to the
claims raised in Petitioner’s direct appeal to the OCCA. See Dkt. # 9, Exs. 4 and 5. In response to
the petition, Respondent argues that many of Petitioner’s claims relate to his death sentences and
were rendered moot by the OCCA’s reversal of the death sentences. See Dkt. # 9. As to the
remaining claims, Respondent argues that Petitioner is not entitled to habeas corpus relief under 28
U.S.C. § 2254(d). Id.
ANALYSIS
A. Exhaustion
As an initial matter, the Court must determine whether Petitioner meets the exhaustion
requirements of 28 U.S.C. § 2254(b). See Rose v. Lundy, 455 U.S. 509, 510 (1982). Petitioner
presented his claims to the OCCA on direct appeal. Therefore, he has exhausted state court
remedies.
B. Evidentiary hearing
The Court finds that an evidentiary hearing is not warranted as Petitioner has not met his
burden of proving entitlement to an evidentiary hearing. See Williams v. Taylor, 529 U.S. 420
(2000); Miller v. Champion, 161 F.3d 1249 (10th Cir. 1998).
C. Claims related to imposition of death sentences are moot
With the exception of grounds 6, 7, 16, part of 20, and 22, all of Petitioner’s claims concern
events at trial affecting or resulting in the imposition of death sentences. However, as discussed
6
above, the OCCA reversed Petitioner’s sentences of death after finding merit to his claims raised
in grounds 3, 4, and 17.
“Article III of the United States Constitution only extends federal judicial power to cases or
controversies.” United States v. Meyers, 200 F.3d 715, 718 (10th Cir. 2000). “A habeas corpus
petition is moot when it no longer presents a case or controversy under Article III, § 2, of the
Constitution.” Aragon v. Shanks, 144 F.3d 690, 691 (10th Cir. 1998). To satisfy the case or
controversy requirement, the petitioner “must have suffered or be threatened with an actual injury
traceable to the respondents and likely to be redressed by a favorable judicial decision.” Spencer
v. Kemna, 523 U.S. 1, 7 (1998) (quoting Lewis v. Continental Bank Corp., 494 U.S. 472, 477
(1990)). A petitioner must “continue to have a personal stake in the outcome” of his case in order
to satisfy the case or controversy requirement of Article III. Spencer, 523 U.S. at 7.
In this case, the relevant inquiry as to any ground related to Petitioner’s original death
sentences is whether Petitioner is subject to collateral consequences adequate to meet the
injury-in-fact requirement of Article III. Spencer, 523 U.S. at 7; see also Gille v. Booher, No. 006106, 2000 WL 1174612 (10th Cir. Aug. 18, 2000) (unpublished).2 Clearly, grounds 3, 4, and 17
in this habeas actions are moot since the OCCA granted Petitioner’s requested relief. In addition,
grounds 1, 2, 5, 8-15, 18, 19, most of ground 20,3 and 21 all relate to second stage voir dire, second
2
This and other unpublished opinions are cited herein for persuasive value. See 10th Cir. R.
32.1(A).
3
In ground 20, Petitioner identifies four areas of ineffective assistance of trial counsel. The
first and third areas identify deficiencies in trial counsel’s performance that contributed to
imposition of the death sentences. Specifically, Petitioner claims that trial counsel performed
deficiently in failing to provide a consistent defense in mitigation during the sentencing phase and
in failing to offer expert’s report and DHS records as exhibits. In his second category of ineffective
assistance, Petitioner argues, in part, that trial counsel provided ineffective assistance in failing to
7
stage evidence, second stage instructions, aggravators and mitigators, and are relevant only when
considered in context with the death sentences originally imposed against Petitioner. Although the
OCCA did not specifically address those additional grounds in its order granting relief from the
death sentences, they are nonetheless moot as Petitioner has been resentenced to life without the
possibility of parole. In summary, the Court finds grounds 1-5, 8-15, 17-19, most of ground 20, and
21 are moot and shall be denied on that basis.
D. Claims adjudicated by the OCCA
The Antiterrorism and Effective Death Penalty Act (AEDPA) provides the standard to be
applied by federal courts reviewing constitutional claims brought by prisoners challenging state
convictions. Under the AEDPA, when a state court has adjudicated a claim, a petitioner may obtain
federal habeas relief only if the state decision “was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the Supreme Court of the United
States” or “was based on an unreasonable determination of the facts in light of the evidence
presented in the State court proceeding.” See 28 U.S.C. § 2254(d); Williams v. Taylor, 529 U.S.
362, 402 (2000); Neill v. Gibson, 278 F.3d 1044, 1050-51 (10th Cir. 2001). When a state court
present evidence during the sentencing phase of the effects of PCP use. Those claims all relate to
counsels’ omission of mitigation evidence, evidence that may have affected the jury’s decision to
recommend imposition of sentences of death. As Petitioner received relief from his death sentences,
those claims of ineffective assistance of counsel are moot. In his second category of ineffective
assistance, Petitioner also claims that trial counsel provided ineffective assistance in failing to
present evidence during the guilt/innocence phase of the effects of PCP use. That claim is not moot
and will be addressed herein. He further identifies a fourth category of ineffective assistance claims:
that counsel performed deficiently in failing to object at trial or to request that the jury be
admonished. Within that fourth category, Petitioner identifies eight (8) instances of trial counsel’s
failure to object or request admonishment. The instances identified as numbers 1, 2, 4, 5, 7, and the
part of 8 concerned with second stage objections all relate to the death sentences and are moot as
a result of the OCCA’s decision reversing the death sentences. Only instances numbered 3, 6, and
the part of 8 concerned with voir dire objections are not moot and will be addressed herein.
8
applies the correct federal law to deny relief, a federal habeas court may consider only whether the
state court applied the federal law in an objectively reasonable manner. See Bell v. Cone, 535 U.S.
685, 699 (2002); Hooper v. Mullin, 314 F.3d 1162, 1169 (10th Cir. 2002).
In this case, the OCCA affirmed the judgment of the trial court, thereby denying relief on
grounds 6, 7, 16, part of 20, and 22 on direct appeal. Therefore, those claims will be reviewed
pursuant to § 2254(d).
1. Admission of videotaped statement (ground 6)
As his sixth ground of error, see Dkt. # 1, Petitioner claims that his videotaped statement was
admitted in violation of his Fourth, Fifth, Sixth and Fourteenth Amendments to the United States
Constitution. The OCCA rejected this claim on direct appeal, as follows:
In Proposition VI, Jones claims he gave an involuntary and thus inadmissible
statement to police, and filed a pre-trial motion to suppress his statement. The trial
court found that the statement was in fact freely and voluntarily given after proper
Miranda warnings.
The evidence produced at a December 16, 2003 hearing shows that while
Jones initially invoked his right to counsel, he reinitiated the interrogation after
consulting with an attorney. The attorney consulted with Jones for approximately
twenty-five minutes, after which he advised Jones and the Tulsa Police Officers that
he would be representing Murtaza Ali and not Jones due to a conflict of interest. The
attorney also told the Tulsa Police Officers that he had instructed Jones not to speak
with them. Jones ignored the advice and reinitiated the interrogation.
Jones now claims that his statement was involuntary because the attorney
knew he had a conflict of interest when he gave Jones legal advice. First, Jones
waived this argument by failing to object at trial to the admission of the videotape.
Second, no evidence suggests that the attorney’s visit with Jones affected the
voluntariness of his confession. Third, the totality of evidence at the hearing
established that the statement was voluntary. Jones was properly Mirandized and
reinitiated the interrogation. No evidence shows that he was coerced or intoxicated,
and sufficient evidence supports the trial court’s ruling that the statements were
voluntary and admissible. This Proposition is denied.
See Dkt. # 9, Ex. 1 (Jones v. State, 134 P.3d at 153 (footnote omitted)).
9
Under the Due Process Clause a confession is involuntary “if the government’s conduct
causes the defendant’s will to be overborne and his capacity for self-determination critically
impaired.” United States v. McCullah, 76 F.3d 1087, 1101 (10th Cir. 1996) (internal quotation
marks omitted). Under Miranda,4 waiver of the right to counsel and the right to remain silent must
be knowing, voluntary and intelligent – “voluntary in the sense that it was the product of a free and
deliberate choice rather than intimidation, coercion, or deception” and “made with a full awareness
both of the nature of the right being abandoned and the consequences of the decision to abandon it.”
United States v. Brown, 287 F.3d 965, 973 (10th Cir. 2002). Both tests require a reviewing court to
consider the totality of the circumstances, including the individual characteristics of the defendant.
See McCullah, 76 F.3d at 1101; Brown, 287 F.3d at 973.
Nothing in the record suggests that Petitioner’s videotaped statement was either coerced in
violation of the Due Process Clause, or that his waiver of Miranda rights was not knowing,
voluntary, and intelligent. Prior to admission of the videotaped interview, the trial court conducted
a Jackson v. Denno5 hearing outside the presence of the jury. See Dkt. # 10-1, Tr. dated Dec. 16,
2003. Sergeant Mike Huff testified that after Petitioner was read his rights under Miranda, Petitioner
waived his rights, signed a rights waiver form, and requested that the detective contact attorney Rick
Dunn. Id. at 17. At around 3 p.m., Mr. Dunn came to the police station and spoke privately with
Petitioner for 20-25 minutes. Id. at 19, 22. Mr. Dunn then “stepped out of the room and said that
he represented Ali Murtaza or Murtaza Ali, and that this would be a conflict representing him, but
4
Miranda v. Arizona, 384 U.S. 436 (1966).
5
Jackson v. Denno, 378 U.S. 368, 376 (1964) (“A defendant objecting to the admission of
a confession is entitled to a fair hearing in which both the underlying factual issues and the
voluntariness of his confession are actually and reliably determined.”).
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he did tell Mr. Jones not to talk to us.” Id. at 22. At around 4 p.m., Petitioner reinitiated a
conversation with Sergeant Huff, by telling him he wanted to make a statement. Id. Sergeant Huff
testified that he “re-advised Petitioner of his Miranda rights and went over the fact that he reinitiated
this contact with me and that this was his choice.” Id. at 23. He further testified that Petitioner did
not appear to be under the influence of drugs or alcohol, he appeared to understand, and no threats
or promises were made. Id. at 25, 26. Petitioner proceeded to talk with Sergeant Huff about the
murders at the Lucky Trip convenience store. Id. at 26.
Upon consideration of the record, including the transcript of the Jackson v. Denno hearing,
the videotaped statement, and the trial testimony of Sergeant Huff, the Court finds that Petitioner
understood and voluntarily waived his rights to counsel and to remain silent when he reinitiated
contact with Sergeant Huff. There is no evidence of police coercion, trickery, or psychological
pressure. If the suspect himself reinitiates conversation after requesting counsel, law enforcement
authorities may question him. Edwards v. Arizona, 451 U.S. 477, 484-85 (1981) (holding that “an
accused . . . having expressed his desire to deal with the police only through counsel, is not subject
to further interrogation by the authorities until counsel has been made available to him, unless the
accused himself initiates further communication, exchanges, or conversations with the police”);
Miranda, 384 U.S. at 457-58; Stemple v. Workman, 418 Fed. Appx. 732 (10th Cir. 2011)
(unpublished). The Court finds Petitioner has failed to demonstrate that the OCCA’s adjudication
of this claim was contrary to, or an unreasonable application of, federal law as determined by the
Supreme Court. 28 U.S.C. § 2254(d). He is not entitled to habeas corpus relief on this claim.
11
2. Failure to issue lesser-included offense instructions as to Count II (ground 7)
As his seventh ground of error, Petitioner complains that fundamental error occurred when
the trial court refused to issue a lesser included instruction on First Degree Manslaughter With a
Dangerous Weapon, as to the murder of Sterling Mullis as charged in Count II, and as requested by
trial counsel. See Dkt. # 1 at 58-63. He also claims that the trial court erred in failing to sua sponte
instruct on the offense of Second Degree Murder as to Count II. Id. at 60. The OCCA rejected these
claims, as follows:
The First Degree Manslaughter/With a Dangerous Weapon instruction was
not supported by the evidence. Jones walked into the convenience store with the
intent to kill Rahaman. While doing so, he was grabbed by Mullis who was trying
to prevent that murder. Jones then shot and killed Mullis. Jones contends that he was
“scared” when Mullis grabbed him, causing him to act in the heat of passion. Heat
of passion requires adequate provocation. Being “scared” after being grabbed while
committing First Degree Murder does not suffice. Jones was not entitled to a First
Degree Manslaughter instruction. This argument is denied.
Likewise, the Second Degree Murder instruction was unsupported by the
evidence. The essential difference between First and Second Degree Murder is intent
to kill. First Degree Murder requires deliberate intent to end human life, which can
be instantly formed and inferred from the fact of the killing. Second Degree Murder
requires an eminently dangerous act, committed by one with a depraved mind. It
does not require intent to kill. A Second Degree Murder instruction demands
evidence that the defendant did not intend to kill the victim. No such evidence exists.
Jones was shooting Rahaman when Mullis grabbed him. Jones then shot Mullis in
the neck at close range. The evidence supports the inference that Jones intended to
kill Mullis. Thus, no Second Degree Murder instruction was warranted. This
Proposition is denied.
(Dkt. # 9, Ex. 1 (Jones v. State, 134 P.3d at 154 (footnotes omitted)).
As a preliminary matter, and as discussed above, Petitioner has been resentenced to life
without the possibility of parole and is no longer under a sentence of death. As a result, this is a
non-capital case. Tenth Circuit precedent establishes a rule of “automatic non-reviewability” for
claims based on a state court’s failure, in a non-capital case, to give a lesser included offense
12
instruction. Dockins v. Hines, 374 F.3d 935, 938 (10th Cir. 2004) (stating that neither the Tenth
Circuit nor the United States Supreme Court has ever recognized a federal constitutional right to a
lesser included offense instruction in non-capital cases). For that reason, Petitioner is not entitled
to habeas relief on his claim challenging the trial court’s failure to issue lesser-included offense
instructions.
In addition, it is well established that “[a]s a general rule, errors in jury instructions in a state
criminal trial are not reviewable in federal habeas corpus proceedings, ‘unless they are so
fundamentally unfair as to deprive petitioner of a fair trial and to due process of law.’” Nguyen v.
Reynolds, 131 F.3d 1340, 1357 (10th Cir. 1997) (quoting Long v. Smith, 663 F.2d 18, 23 (6th Cir.
1981)); see also Maes v. Thomas, 46 F.3d 979, 984 (10th Cir. 1995) (“A state trial conviction may
only be set aside in a habeas proceeding on the basis of erroneous jury instructions when the errors
had the effect of rendering the trial so fundamentally unfair as to cause a denial of a fair trial.”).
Thus, the burden on a petitioner attacking a state court judgment based on a refusal to give a
requested jury instruction is especially great because “‘[a]n omission, or an incomplete instruction,
is less likely to be prejudicial than a misstatement of the law.’” Maes, 46 F.3d at 984 (quoting
Henderson v. Kibbe, 431 U.S. 145, 155 (1977)).
Petitioner has failed to demonstrate that the OCCA’s adjudication of these claims was
contrary to, or an unreasonable application of, clearly established federal law, or resulted in a
decision based on an unreasonable determination of the facts in light of the evidence presented at
trial. 28 U.S.C. § 2254(d)(1),(2). The Court agrees with the OCCA’s assessment that the evidence
did not support an instruction on either First Degree Manslaughter or Second Degree Murder as to
the murder of Sterling Mullis. Uncontroverted and unchallenged testimony presented at trial
13
demonstrated that Petitioner shot Mullis in the neck at close range after Mullis grabbed him in an
effort to stop the shooting. See Dkt. # 10-6, Tr. Trans. at 773-74. There was no evidence that
Petitioner acted in the “heat of passion,” as required to support an instruction on First Degree
Manslaughter. Nor did any evidence suggest that Petitioner did not intend to kill Mullis. Instead,
the medical examiner testified that Mullis died as a result of a contact gunshot wound to the neck.
See Dkt. # 10-7, Tr. Trans. at 953, 955. As a result, instructions on the lesser included offenses were
not warranted.
Petitioner’s trial was not rendered fundamentally unfair as a result of the trial
judge’s failure to issue lesser included offense instructions, either sua sponte or as requested by
Petitioner. Petitioner is not entitled to habeas corpus relief under § 2254(d) on ground 7.
3. Double jeopardy violation (ground 16)
In ground 16, Petitioner alleges that the State’s use of the same evidence to support his
conviction for First Degree Felony Murder in Count II and the aggravating circumstances found by
the jury to support imposition of the death penalty for Count II violates the prohibition against
double jeopardy. See Dkt. # 1. Specifically, Petitioner argues that the fact that he was convicted
of two murders cannot support both the felony murder conviction in Count II and the aggravators,
which both rely on the existence of two murder convictions. See id. at 91-92. The relief sought by
Petitioner on direct appeal was reversal of his conviction for First Degree Felony Murder in Count
II. Id. at 92. The OCCA addressed the merits of this claim as it affected the guilt/innocence stage
of trial. On direct appeal, the OCCA applied the Supreme Court’s holding in Lowenfield v. Phelps,
484 U.S. 231, 246 (1988) (use of same evidence to prove guilty and impose punishment does not
offend double jeopardy), and found as follows:
Jones argues in Proposition XVI that double jeopardy and 21 O.S.2001, § 11
were violated when the same evidence was used to support his conviction for First
14
Degree Felony Murder in Count II and the aggravating circumstances found by the
jury supporting the death penalty. It follows, he argues that his conviction for First
Degree Felony Murder in Count II must be reversed. Jones concedes that the
Supreme Court has rejected this argument when it specifically found that the use of
identical evidence to support both an element of the crime for which the defendant
was convicted and an aggravating circumstance found by the jury at sentencing does
not violate the Constitution. We agree. This Proposition is denied.
(Dkt. # 9-1, Ex. 1 (Jones v. State, 134 P.3d at 154 (footnotes omitted)).
To the extent this claim is not moot because of the sentencing relief granted as to the death
sentences, the Court finds Petitioner is not entitled to habeas relief under 28 U.S.C. § 2254(d).
Nothing in the petition suggests that the OCCA’s ruling was contrary to, or an unreasonable
application of, controlling Supreme Court precedent. The Court finds that the OCCA identified the
correct Supreme Court case, Lowenfield, and reasonably applied the holding of that case. There was
no double jeopardy violation. Petitioner is not entitled to habeas corpus relief on this claim.
4. Ineffective assistance of counsel (ground 20)
Petitioner claims that he received ineffective assistance of both trial and appellate counsel.
See Dkt. # 1. However, Petitioner fails to provide a factual basis for any claim of ineffective
assistance of appellate counsel.6 Allegations that are conclusory in nature and not supported with
factual averments will not support a claim of ineffective assistance of counsel. United States v.
6
In response to the petition, see Dkt. # 9, Respondent explains that in a separate motion filed
at the OCCA, appellate counsel asked to withdraw from representing Petitioner due to a conflict of
interest. Respondent provides appellate counsel’s motion to withdraw wherein counsel explained
that an actual conflict of interest existed or may have existed due to the fact that he was employed
by the same office that employed trial counsel. See Dkt. # 9-13, Ex. 12. The OCCA denied the
motion to withdraw and directed appellant’s brief to be filed as scheduled. See Dkt. # 9-14, Ex. 13.
To the extent Petitioner intended his ineffective assistance of appellate counsel claim as raised in
his habeas petition to mirror the conflict of interest claim presented to the OCCA, nothing filed by
Petitioner in this habeas corpus action suggests that he is entitled to relief under § 2254(d).
15
Fisher, 38 F.3d 1144, 1147 (10th Cir. 1994). For that reason, the Court finds Petitioner is not
entitled to habeas corpus relief on his claim of ineffective assistance of appellate counsel.
As to the claims of ineffective assistance of trial counsel, the Court has stated above that
almost all of the claims were rendered moot when the OCCA granted relief to Petitioner from his
death sentences. However, four instances of ineffective assistance identified by Petitioner go to the
validity of his convictions for First Degree Murder. Specifically, Petitioner’s claims that trial
counsel provided ineffective assistance in failing to present evidence of PCP use during the
guilt/innocence phase, in failing to object to the admission of his videotaped confession, in failing
to request that the jury be instructed on the lesser included offense of Second Degree Murder, and
in failing to ask that the jury be admonished after objections were sustained during voir dire are not
moot. Although the OCCA did not analyze Petitioner’s claims of ineffective assistance of trial
counsel, that court nonetheless affirmed Petitioner’s convictions thereby denying relief on these
claims. In Aycox v. Lytle, 196 F.3d 1174 (10th Cir. 1999), the Tenth Circuit determined that a state
court’s result is owed § 2254(d) deference “even if its reasoning [was] not expressly stated.” Id. at
1177. Consequently, this Court is required to uphold the OCCA’s decision, unless “independent
review of the record and pertinent federal law persuades us that its result contravenes or
unreasonably applies clearly established federal law, or is based on an unreasonable determination
of the facts in light of the evidence presented.” Id. at 1178.
To be entitled to habeas corpus relief on his claim of ineffective assistance of counsel,
Petitioner must demonstrate that the OCCA’s adjudication of this claim was an unreasonable
application of Strickland v. Washington, 466 U.S. 668 (1984). Under Strickland, a defendant must
show that his counsel’s performance was deficient and that the deficient performance was
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prejudicial. Strickland, 466 U.S. at 687; Osborn v. Shillinger, 997 F.2d 1324, 1328 (10th Cir. 1993).
A defendant can establish the first prong by showing that counsel performed below the level
expected from a reasonably competent attorney in criminal cases. Strickland, 466 U.S. at 687-88.
There is a “strong presumption that counsel’s conduct falls within the range of reasonable
professional assistance.” Id. at 688. In making this determination, a court must “judge . . . [a]
counsel’s challenged conduct on the facts of the particular case, viewed as of the time of counsel’s
conduct.” Id. at 690. Moreover, review of counsel’s performance must be highly deferential. “[I]t
is all too 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. To establish the second
prong, a defendant must show that this deficient performance prejudiced the defense, to the extent
that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different. A reasonable probability is a probability sufficient to
undermine confidence in the outcome.” Id. at 694; see also Sallahdin v. Gibson, 275 F.3d 1211,
1235 (10th Cir. 2002); Boyd v. Ward, 179 F.3d 904, 914 (10th Cir. 1999). This Court’s review of
the OCCA’s decision on ineffective assistance of counsel claims is “doubly deferential. “ Cullen v.
Pinholster, 131 S. Ct. 1388, 1403 (2011) (noting that a habeas court must take a “highly deferential”
look at counsel’s performance under Strickland and through the “deferential” lens of § 2254(d)).
In this case, Petitioner has failed to demonstrate entitlement to relief under § 2254(d).
Petitioner stated in his videotaped statement that he had been smoking PCP and that he “was out of
[his] mind” at the time of the murders. Therefore, it may have been prudent for trial counsel to
present evidence concerning the effects of PCP use. However, even assuming counsel performed
deficiently, the Court finds that, in light of the overwhelming evidence of premeditation and
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deliberation and the lack of evidence, other than Petitioner’s own statement, of any diminished
capacity due to PCP use, Petitioner cannot demonstrate that he was prejudiced by trial counsel’s
failure to present evidence regarding the effects of PCP use during the guilt/innocence phase.
Petitioner argues that the evidence of PCP use was relevant to the issue of intent. However, the jury
heard evidence that Petitioner understood, at least three days before the murders, that his purpose
in going to the Lucky Trip convenience store was to shoot and kill Mohamed Rahaman. See Dkt.
# 10-6, Tr. Trans. at 866-870. In addition, the evidence demonstrating that Sterling Mullis died as
a result of a close contact gunshot wound to the neck, see Dkt. # 10-7 at 953, reflects Petitioner’s
deliberate intent to cause the death of Mullis. The jury also heard Petitioner’s girlfriend, Shawnitra
Purnell, testify that Petitioner “looked normal” when she saw him at Genesis Club shortly after the
murders. See id. at 892. In light of that evidence, Petitioner cannot demonstrate a reasonable
probability that, but for counsel’s failure to present first stage evidence of the effects of PCP use,
the result of the first stage proceeding would have been different.
Next, trial counsel did not perform deficiently in failing to object to the admission of his
videotaped statement or in failing to request that the jury be instructed on the lesser included offense
of Second Degree Murder. As discussed in Part D(1) above, a Jackson v. Denno hearing was held
prior to trial and the trial judge determined that the videotaped statement was voluntary. Petitioner
has failed to demonstrate that his videotaped statement was either coerced in violation of the Due
Process Clause, or that his waiver of Miranda rights was not knowing, voluntary, and intelligent. As
a result, there was no basis for an objection and trial counsel did not perform deficiently in failing
to lodge an objection. Similarly, Petitioner’s claim concerning lesser included offense instructions,
as discussed in Part D(2) above, lacks merit. The evidence presented at trial did not support the
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issuance of a Second Degree Murder instruction as to the murder of Sterling Mullis. Therefore, trial
counsel did not perform deficiently in failing to request a Second Degree Murder instruction as to
Count II.
Lastly, Petitioner cannot demonstrate that he suffered prejudice as a result of trial counsel’s
failure to request that the jury be admonished after objections to the prosecutor’s voir dire questions
were sustained. As noted by Respondent, this is not a case where inadmissible or prejudicial
evidence erroneously came before the jury resulting in a possibly tainted verdict. Instead, after trial
counsel objected to the prosecutor’s questions and the objections were sustained, no answers were
allowed. See Dkt. # 10-5, Tr. Trans. at 442-43, 460-61, 574. Therefore, no admonishments to
disregard were necessary. Petitioner cannot satisfy the prejudice prong of Strickland.
In summary, Petitioner has failed to demonstrate that the OCCA’s rejection of his claims of
ineffective assistance of trial counsel was contrary to, or an unreasonable application of federal law
as determined by the Supreme Court. 28 U.S.C. § 2254(d). He is not entitled to habeas corpus relief
on this claim.
5. Cumulative error (ground 22)
In ground 22, Petitioner alleges that the accumulation of error deprived him of due process
of law and a reliable sentencing proceeding. Although the OCCA did not specifically address
Petitioner’s claim of cumulative error, that court’s decision to affirm Petitioner’s convictions is
entitled to deference under the AEDPA. Aycox, 196 F.3d at 1177-78.
In analyzing a cumulative error claim, the proper inquiry “aggregates all the errors that
individually might be harmless [and therefore insufficient to require reversal], and it analyzes
whether their cumulative effect on the outcome of the trial is such that collectively they can no
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longer be determined to be harmless.” United States v. Wood, 207 F.3d 1222, 1237 (10th Cir. 2000)
(quotation omitted). Cumulative error analysis is applicable only where there are two or more actual
errors. Workman v. Mullin, 342 F.3d 1100, 1116 (10th Cir. 2003). Cumulative impact of non-errors
is not part of the analysis. Le v. Mullin, 311 F.3d 1002, 1023 (10th Cir. 2002) (citing United States
v. Rivera, 900 F.2d 1462, 1471 (10th Cir. 1990)). Having found no error in this case, the Court finds
no basis for a cumulative error analysis. Therefore, Petitioner has failed to demonstrate that the
OCCA’s rejection of this claim is contrary to, or an unreasonable application of, federal law as
determined by the Supreme Court. 28 U.S.C. § 2254(d). He is not entitled to habeas corpus relief
on this ground.
E. Certificate of appealability
Rule 11, Rules Governing Section 2254 Cases in the United States District Courts, instructs
that “[t]he district court must issue or deny a certificate of appealability when it enters a final order
adverse to the applicant.” Pursuant to 28 U.S.C. § 2253, the court may issue a certificate of
appealability “only if the applicant has made a substantial showing of the denial of a constitutional
right,” and the court “indicates which specific issue or issues satisfy [that] showing.” A petitioner
can satisfy that standard by demonstrating that the issues raised are debatable among jurists, that a
court could resolve the issues differently, or that the questions deserve further proceedings. Slack
v. McDaniel, 529 U.S. 473, 483-84 (2000) (citing Barefoot v. Estelle, 463 U.S. 880, 893 (1983)).
In addition, when the Court’s ruling is based on procedural grounds, Petitioner must demonstrate
that “jurists of reason would find it debatable whether the petition states a valid claim of the denial
of a constitutional right and that jurists of reason would find it debatable whether the district court
was correct in its procedural ruling.” Slack, 529 U.S. at 484.
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After considering the record in this case, the Court concludes that a certificate of
appealability should not issue. Nothing suggests that the Tenth Circuit would find that this Court’s
application of deference to the decision by the OCCA was debatable amongst jurists of reason. See
Dockins v. Hines, 374 F.3d 935 (10th Cir. 2004). As to those claims denied as moot, Petitioner has
failed to satisfy the second prong of the required showing, i.e., that the Court’s ruling resulting in
the denial of the petition on procedural grounds was debatable or incorrect. The record is devoid of
any authority suggesting that the Tenth Circuit Court of Appeals would resolve the issues in this
case differently. A certificate of appealability shall be denied.
CONCLUSION
After carefully reviewing the record in this case, the Court concludes that the Petitioner has
not established that he is in custody in violation of the Constitution or laws of the United States.
ACCORDINGLY, IT IS HEREBY ORDERED that the petition for a writ of habeas
corpus (Dkt. # 1) is denied. A separate judgment shall be entered in this matter. A certificate of
appealability is denied.
DATED THIS 21st day of June, 2012.
__________________________________________
TERENCE C. KERN
UNITED STATES DISTRICT JUDGE
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