Cole v. Trammell

Filing 11

OPINION AND ORDER by Chief Judge Gregory K Frizzell Case stayed to allow exhaustion of state court remedy. Stay is conditiioned on commencing a mandamus within 14 days., staying case (hbo, Dpty Clk)

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

BENJAMIN COLE,
Petitioner,
v.
ANITA TRAMMELL, Warden,
Oklahoma State Penitentiary,
Respondent.

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No. 15-CV-049-GKF-PJC

OPINION AND ORDER
This is a 28 U.S.C. § 2254 habeas corpus action. Petitioner Benjamin Cole is an Oklahoma
death row inmate and is represented by the Office of the Federal Public Defender. Cole’s execution
was set to take place on March 5, 2015. However, on January 28, 2015, the United States Supreme
Court granted certiorari to review the constitutionality of the State’s lethal injection protocol and
stayed Cole’s execution using the drug midazolam pending final disposition of the case. Glossip
v. Gross, 135 S. Ct. 1197 (2015). On June 29, 2015, the Supreme Court ruled that the Oklahoma
inmates, including Cole, had failed to establish that the use of midazolam violated the Eighth
Amendment. Glossip v. Gross, --- S. Ct. ---, 2015 WL 2473454 (2015). The docket sheet for Case
No. D-2004-1260 reflects that, on July 8, 2015, the Oklahoma Court of Criminal Appeals (OCCA)
reset Cole’s execution date for October 7, 2015.
In his petition, filed January 30, 2015 (Dkt. # 2), Cole asserts one ground for relief: pursuant
to Ford v. Wainwright, 477 U.S. 399 (1986), he is incompetent to be executed and his execution will
violate the Eighth and Fourteenth Amendments. On February 13, 2015, Respondent filed a response
(Dkt. # 6). On February 20, 2015, Cole filed a reply (Dkt. # 7). Respondent asserts that Cole’s

claim is unexhausted and requests this Court to deny the petition on the merits because Oklahoma’s
procedure is constitutional and Cole has not demonstrated that he is insane for the purpose of
avoiding execution. For the reasons discussed below, the Court finds Cole has an available state
court remedy in the form of mandamus that should be exhausted before habeas corpus relief is
considered. This action shall be stayed while Cole exhausts his state court remedy.
BACKGROUND
Cole was convicted of First Degree Child Abuse Murder and sentenced to death in Rogers
County District Court, Case No. CF-2002-597. In the Opinion and Order denying habeas corpus
relief, filed in N.D. Okla. Case No. 08-CV-328-CVE-PJC, the Court summarized the history of
Cole’s pretrial challenges to his competence as follows:
Cole’s trial counsel first raised a question regarding Cole’s competency in July 2003
and filed an application for competency evaluation. O.R. Vol. I at 55-56. The trial
court ordered a competency evaluation. Id. at 62-63. Cole was evaluated by Samina
R. Christopher, Ph.D., of the Oklahoma Forensic Center and found to be competent
to stand trial. Id. at 62-63, 74; Tr. 8/22/03 at 2-4. At the post-evaluation competency
hearing, Cole’s trial attorneys stipulated to the finding that Cole was competent and
Cole waived a competency jury trial. O.R. Vol. I at 74; Tr. 8/22/03 at 2-7.
In July 2004, Cole’s trial counsel again filed an application for determination of
competency alleging in part: “Defendant’s mental state and communication abilities
are such that they seriously interfere with his understanding of the proceedings
against him and with his capability of aiding his attorney in preparation for trial.”
O.R. Vol. II at 239-40. The trial court again ordered an evaluation. Id. at 245. Cole
was again evaluated by Dr. Christopher and was found competent. Id. at 252-59.
This time there was a jury trial on the issue of Cole’s competency to stand trial. The
trial was held September 13-14, 2004. Cole’s attorneys presented Paula Monroe,
Ph.D., a licensed clinical psychologist, who testified that she believed Cole was
competent to stand trial. Tr. 9/13-14/04 at 128, 134-36. Likewise, the prosecution
presented the testimony of Dr. Christopher, the forensic psychologist from the
Oklahoma Forensic Center who had evaluated Cole twice pursuant to the trial court’s
orders. Dr. Christopher testified that she also believed Cole was competent to stand
trial. Tr. 9/13-14/04 at 244, 246. Two attorneys on Cole’s defense team testified as
to the difficulties the team had experienced representing Cole. See, e.g., Tr. 9/1314/04 at 156-58, 174, 182-184, 201-02. His defense team believed that Cole could
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not rationally assist counsel due to his obsession with his religious beliefs. See id.
The jury determined that Cole was competent to stand trial. See Tr. 9/13-14/04 at
284.
After the jury trial on the issue of competency and less than two weeks prior to trial,
Cole’s trial counsel filed a motion for continuance. O.R. Vol. II at 317-45. In that
motion, counsel requested a continuance in part because Cole was not cooperating
with defense counsel and, thus, impeding preparation for trial. Id. at 317-18. Cole’s
counsel did not allege in this motion that Cole was incompetent. See id. at 317-45.
At the hearing on the motion for continuance held on October 4, 2004, the trial court
had a discussion with Cole without counsel for either party present. In denying the
motion for continuance, the court noted that it was “unfortunate” that trial counsel
was not able to communicate effectively with Cole but expressed no concern
regarding his competency to stand trial. Tr. 10/4/04 at 23-24.
Cole’s jury trial commenced October 12, 2004. His competency was not raised
during his trial. As discussed above, the jury found Cole guilty of child abuse
murder and recommended a sentence of death.
Cole v. Workman, 2011 WL 3862143, at *7-8 (N.D. Okla. Sept. 1, 2011) (unpublished) (footnote
omitted).
In this case, both of Cole’s trial attorneys, Gordon Lynn Burch, III, and James C. Bowen,
provided affidavits describing Cole’s level of participation and demeanor during trial. (Dkt. ## 2-24,
2-27). According to Burch,
Mr. Cole was not engaged in a healthy manner in his case. He couldn’t see
the big picture. Instead, he would focus on details like having lawyers who were of
the Pentecostal faith. Mr. Cole’s behavior was beyond not cooperating. I believe he
can’t cooperate[.]
Mr. Cole was in the Rogers County jail for about two years before the trial.
He grew his hair and beard out. He would not cut his hair or shave for trial. He sat
throughout the trial virtually without moving. If his Bible was open when he sat
down, it stayed open to the same page. If the Bible was closed, it stayed closed. His
expression never changed, no matter what was going on in the courtroom. It was as
if he was completely detached from everything related to his case.
(Dkt. # 2-24 at 3, ¶¶ 12, 13. As discussed above, the jury found Cole guilty of child abuse murder
and recommended a sentence of death.
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While he omitted the issue of competency in his direct appeal, Cole alleged in his postconviction application that he was incompetent to stand trial. Attorney Vicki Werneke represented
Cole during his post-conviction proceeding. She provides an affidavit (Dkt. # 2-33), describing her
interaction with Cole after filing the application for post-conviction relief on February 28, 2007.
She states that:
I recall that first time we met him. He was tall and very thin. He had long hair. He
did not have a beard then, but he was not clean shaven either. We had a pleasant
conversation, but it was clear he did not want to discuss his case. We told him about
our investigator traveling to California to meet his family, but he did not appear
interested. At subsequent meetings, Mr. Cole appeared with an ever-growing beard
and hair. It was clear he never cut his hair or his beard.
....
Mr. Cole never talked about his case. I attempted to engage him in
conversation about the case by talking about his daughter. When I did say her name,
he would withdraw from any further conversation. Sometimes he would even start
rocking back and forth. At that point, I was not able to get him to reengage in any
conversation and usually the visit would end.
Id. at 1-2, ¶¶ 8, 11. In its order denying post-conviction relief, the OCCA performed a merits review
of Cole’s competency claim when it denied his ineffective assistance of appellate counsel claim for
failing to raise the competency issue on direct appeal1 and found as follows:
Accordingly, we find, first, that his claim has been waived, as it certainly could have
been raised on direct appeal. Secondly, we find that, to the extent that the claim was
raised on direct appeal. . . , it was rejected and is res judicata. Third, we find that, to
the extent that any of the claim survives, it fails. Both a jury of Petitioner’s peers and
health professionals found he was competent to stand trial, and the fact that appellate
counsel may not have directly raised this claim on appeal would not on this record
amount to ineffective assistance. While Petitioner’s extreme religious views may be
difficult to appreciate to the common man and may have led to some decisions that
few would make, we are not prepared to say counsels’ decision to forego review of

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The OCCA looks to the merits of the omitted issue when it determines appellate counsel
effectiveness. Hooks v. State, 902 P.2d 1120, 1123 (Okla. Crim. App. 1995).
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this claim – that Petitioner’s religious beliefs rendered him incompetent – was
ineffective, or for that matter even wrong, based upon this record. Nor do the exhibits
attached to the post-conviction application convince us that an evidentiary hearing
is needed on this issue.
Cole v. State, Opinion Denying Application for Post-Conviction Relief at 4, Case No. PCD-2005-23.
On May 15, 2009, Cole filed his federal petition for writ of habeas corpus in N.D. Okla. Case
No. 08-CV-328-CVE-PJC. Cole’s habeas attorney, Kenneth Lee, provides his affidavit (Dkt. # 234), describing his interactions with Cole over a five-year period. He states that:
After Dr. Morris’s evaluation [on December 15, 2008], Mr. Cole began to
isolate himself further. This was particularly troubling since Mr. Cole never left his
cell to go to the yard or to go shower. By the end of December 2008 and continuing
into the following years, Mr. Cole began refusing meeting with members of his team.
The investigators, the other attorneys, and I continued to try to meet with Mr.
Cole. I believe I met with him a total of three times in 2009, for a total of about two
hours. After 2009, a distinct pattern developed. If Mr. Cole came out to meet with
any of the team, he would refuse to sit down, or would sit for only a few minutes.
Mr. Cole was emaciated, and hair and beard were long and somewhat unkempt.
Most of our meetings were very brief lasting less than five minutes. During these
rare occurrences, Mr. Cole barely spoke, and appeared distracted and disheveled –
in that he did not seem to understand what was being said to him, and could only
focus on the one thing he needed . . . .
...
During the five years I represented Mr. Cole, I was never able to have a
substantive conversation with him about his case, the death of his daughter, his
personal history, or any other relevant topic. He has never been engaged at all about
his case, and he never assisted us in the legal proceedings. This was entirely
frustrating. After reviewing all of the information we could find about Mr. Cole and
his case, I believe he wanted us to continue with the defense he gave his trial
attorneys – that unto God all things are possible. See Matthew 19:26 (KJV).
Over the course of five years, Mr. Cole’s condition has deteriorated
significantly. Initially, he could write letters with full sentences. As Mr. Cole began
to decompensate, his letters disintegrated into abrupt, incomplete notes on scraps of
paper, usually asking for spare change and wanting us to pick up papers that were
never left for us.

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Id. at 2-3, ¶¶ 7, 8, 11, 12. This Court denied habeas corpus relief on fourteen claims, including
Cole’s claims that he was incompetent to stand trial and to assist in his appeal. Cole, 2011 WL
3862143. Cole appealed. The Tenth Circuit Court of Appeals denied relief. Cole v. Trammell, 755
F.3d 1142 (10th Cir. 2014). The United States Supreme Court denied certiorari review. Cole v.
Trammell, 135 S. Ct. 224 (2014). As stated above, Cole’s execution was set for March 5, 2015.
However, on January 28, 2015, the Supreme Court stayed Cole’s execution, see Glossip v. Gross,
2015 WL 341655 (2015), pending resolution of a challenge to Oklahoma’s lethal injection protocol.
On January 30, 2015, Cole filed this habeas corpus action. On June 29, 2015, the Supreme Court
ruled that the Oklahoma inmates, including Cole, had failed to establish that the use of midazolam
violated the Eighth Amendment. Glossip v. Gross, --- S. Ct. ---, 2015 WL 2473454 (2015). Cole’s
execution date is October 7, 2015.
ANALYSIS
A federal district court cannot grant habeas corpus relief unless the petition has exhausted
available state remedies before filing his habeas petition. 28 U.S.C. § 2254(b). Respondent asserts
that, in this case, Cole has not exhausted available state remedies. Cole claims that the state court
process is inadequate.
The Court agrees with Respondent that Cole has not exhausted an available state court
remedy. Under Oklahoma law, the question of a defendant’s sanity to be executed is a question for
jury trial. The governing statute provides as follows:
If, after his delivery to the warden for execution, there is good reason to believe that
a defendant under judgment of death has become insane, the warden must call such
fact to the attention of the district attorney of the county in which the prison is
situated, whose duty is to immediately file in the district or superior court of such
county a petition stating the conviction and judgment and the fact that the defendant
is believed to be insane and asking that the question of his sanity be inquired into.
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Thereupon, the court must at once cause to be summoned and impaneled from the
regular jury list a jury of twelve persons to hear such inquiry.
Okla. Stat. tit. 22, § 1005. When, as in this case, the warden has communicated her opinion that
Cole is competent to be executed, Cole may file a petition for writ of mandamus in Pittsburg County
District Court requesting the court to direct the warden to act. In addition, should the state district
court deny mandamus relief, Cole may file a mandamus appeal at the OCCA. The OCCA will
independently determine the existence of “good reason to believe” that Cole has become insane.
See Ochoa v. Trammell, 504 F. App’x 705, 709 (10th Cir. Dec. 3, 2012) (unpublished) (citing Allen
v. Workman, 500 F. App’x 708, 710-12 (10th Cir. Oct. 18, 2012) (unpublished)).
Cole argues that the remedy provided under Oklahoma law is inadequate because placement
of the warden, the executive official responsible for carrying out the execution, as the gatekeeper
of the process violates Ford, 477 U.S. at 416, 427. As a result, Cole contends that “[a]ny redress for
a violation of Mr. Cole’s constitutional rights must be sought through a habeas corpus action in this
Court.” (Dkt. # 2 at 43). However, the Tenth Circuit has determined that “the state’s use of the
warden as gatekeeper for the process was permissible in light of the availability of mandamus to
provide judicial oversight of the warden’s performance of that critical role.” Ochoa, 504 F. App’x
at 708. The Court acknowledges that both Ochoa and Allen are unpublished opinions and have no
precedential value. Nonetheless, the opinions are persuasive authority and convince the Court that
Cole has an available state court remedy, a petition for writ of mandamus, that must be exhausted.
In light of Cole’s failure to exhaust an available state court remedy, this Court may dismiss
the petition to allow Cole to exhaust the available remedy, stay this action while Cole exhausts, or
deny the petition on the merits, notwithstanding Cole’s failure to exhaust state court remedies. See
Rhines v. Weber, 544 U.S. 269, 276 (2005); Doe v. Jones, 762 F.3d 1174, 1181 (10th Cir. 2014).
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Cole’s claim is not clearly lacking in merit. Furthermore, based on Cole’s arguments concerning
the constitutionality and adequacy of Oklahoma’s state court remedy, the Court finds good cause
for Cole’s failure to exhaust before filing his federal habeas petition. Therefore, the Court exercises
its discretion to stay this action while Cole exhausts his state court remedy and authorizes counsel
to represent Cole in the state mandamus proceedings.

ACCORDINGLY, IT IS HEREBY ORDERED that Cole failed to exhaust an available
state court remedy before filing this action. This action is stayed while Cole exhausts the state court
remedy. The stay of this action is conditioned on Cole commencing a mandamus action in Pittsburg
County District Court within fourteen (14) days of the entry of this Order and returning to this Court
within fourteen (14) days once exhaustion is completed. Cole’s current counsel are authorized to
represent Cole in the state mandamus proceedings.

DATED this 8th day of July, 2015.

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