Hooper v. Sirmons
Filing
37
MEMORANDUM OPINION - After a thorough review of the entire state court record, the pleadings filed herein, and the applicable law, the Court finds that Petitioner is not entitled to his requested relief. Accordingly, Petitioner's Petition, Doc. 21, is hereby denied (as more fully set out in the Order). Signed by Honorable Vicki Miles-LaGrange on 5/20/2011. (ks)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
MICHAEL EDWARD HOOPER,
Petitioner,
vs.
RANDALL G. WORKMAN, Warden,
Oklahoma State Penitentiary,
Respondent.1
)
)
)
)
)
)
)
)
)
)
Case No. CIV-07-515-M
MEMORANDUM OPINION
Petitioner, Michael Edward Hooper, a state court prisoner currently incarcerated
pending the execution of three judgments and sentences of death, has filed a Petition for a
Writ of Habeas Corpus seeking relief pursuant to 28 U.S.C. § 2254. Doc. 21. This is
Petitioner’s second appearance before this Court. In a prior habeas action, Case No. CIV-981380-M, Petitioner challenged his convictions and sentences entered in Canadian County
District Court Case No. CF-93-601. Although the Court denied Petitioner habeas relief on
his convictions, it granted Petitioner relief from his death sentences. Finding that Petitioner
was denied the effective assistance of counsel in the second stage, the Court ordered the State
1
When this action was commenced, Marty Sirmons was the warden of the Oklahoma State
Penitentiary and the properly named Respondent. However, Randall G. Workman is the current
warden of the Oklahoma State Penitentiary and the state officer having present custody of Petitioner.
Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Mr. Workman should be substituted
for Mr. Sirmons as the proper party Respondent. See Rule 2(a) of the Rules Governing Section 2254
Cases in the United States District Courts (“If the petitioner is currently in custody under a statecourt judgment, the petition must name as respondent the state officer who has custody.”).
of Oklahoma to conduct a new sentencing proceeding. This decision was appealed to the
Tenth Circuit by both parties and affirmed. Hooper v. Mullin, 314 F.3d 1162 (10th Cir.
2002). Petitioner’s present Petition attacks the resentencing proceedings conducted by the
state court in 2004. As a result of those proceedings, Petitioner once again received three
death sentences.
In his Petition, Petitioner has presented five grounds for relief. Doc. 21. Respondent
has responded to the Petition and Petitioner has replied. Docs. 31 and 34. In addition to his
Petition, Petitioner also a filed motion for evidentiary hearing, which has been
denied. Docs. 22 and 35. The state court record has been provided.2 After a thorough
review of the entire state court record, the pleadings filed herein, and the applicable law, the
Court finds that, for the reasons set forth below, Petitioner is not entitled to his requested
relief.
I. History of the Case.
In December 1993, Petitioner killed his ex-girlfriend, Cynthia Jarman, and her two
children, five-year-old Tonya and three-year-old Timmy. Petitioner shot each victim twice
in the head and buried their bodies in a common grave. Hooper v. State, 947 P.2d 1090,
1096 (Okla. Crim. App. 1997). Petitioner was convicted by a jury of three counts of Murder
in the First Degree. Petitioner received a sentence of death for all three counts. Id. at 109596.
2
Relevant to the present action are the original record (O.R.) and the six transcripts of seven
hearings held in connection with Petitioner’s resentencing in 2004 (Tr.).
2
Petitioner’s convictions and sentences were upheld by the Oklahoma Court of
Criminal Appeals (hereinafter “OCCA”), id. at 1096, but, as noted above, this Court granted
Petitioner relief from his death sentences. After this Court’s decision was upheld by the
Tenth Circuit, Hooper, 314 F.3d at 1178, Petitioner sought review by the United States
Supreme Court. His petition for writ of certiorari was denied on October 6, 2003. Hooper v.
Mullin, 540 U.S. 838 (2003).
Resentencing proceedings began February 5, 2004. On that day, Petitioner appeared
with his habeas counsel, Mark Henricksen, before Canadian County District Judge Edward
Cunningham. Judge Cunningham determined Petitioner to be indigent, issued an order
appointing counsel, and set the matter for jury trial on September 13, 2004 (O.R. III, 606;
Tr. 2/5/04, 2-6).
On March 19, 2004, Petitioner filed a pro se motion entitled “Motion for Negotiated
Plea and Waiver of Rights.” Acknowledging that he was proceeding against the advice of
counsel, Petitioner requested the court to accept a guilty plea. In addition to his plea,
Petitioner stated his desire to waive resentencing and any further appeals (O.R. IV, 608-11).
In response to Petitioner’s motion, a hearing was held before Judge Cunningham on
April 15, 2004.
At this hearing, Petitioner appeared with court-appointed counsel,
Mr. Henricksen and Julie Gardner. In accordance with Fluke v. State, 14 P.3d 565,
567 (Okla. Crim. App. 2000),3 it was determined that Petitioner had to undergo an
3
In Fluke, 14 P.3d at 567, the OCCA held that an independent competency evaluation is
required in all death penalty volunteer cases.
3
independent competency evaluation before proceedings could continue (Tr. 4/15-16/04, 3-4).
To initiate this process, Mr. Henricksen filed an Application for Determination of
Competency (O.R. IV, 614-16). Mr. Henricksen advised the court that he had disagreements
with Petitioner on how to proceed, but that he was urging Petitioner to submit to the courtordered competency evaluation as well as a second evaluation to be conducted by an defenseretained licensed psychologist (Tr. 4/15-16/04, 5). Judge Cunningham discussed with
Petitioner the necessity of having a competency determination, and he urged Petitioner to
follow the advice of his counsel and submit to both evaluations (Tr. 4/15-16/04, 5-7).
Petitioner’s response was as follows:
Got no problems with the Court’s recommendations. I mean, I have no
problem complying with being seen by the Court’s - - you know, whoever the
Court orders. It’s just - - it’s the independent contracted from OIDS that I’d
like to refute. I just don’t feel that that’s conducive to the results I seek.
(Tr. 4/15-16/04, 7).
The next day, a second hearing was held.
At that time,
Judge Cunningham issued the order for a competency evaluation (O.R. IV, 622-23; Tr. 4/1516/04, 14).4 Mr. Henricksen advised the court that Petitioner was agreeable to the courtordered evaluation and an evaluation by Dr. Jeannie Russell (Tr. 4/15-16/04, 13, 15).
On July 22, 2004, a post-examination competency hearing was held. Admitted as
State’s Exhibit 1 was the eight-page report from Dr. R. Shawn Roberson, Ph.D., Director of
Psychology, Oklahoma Forensic Center, regarding his evaluation of Petitioner on June 21,
4
A second order for competency evaluation was issued on April 27, 2004, due to the
unavailability of the initially selected mental health evaluator (O.R. IV, 626-28).
4
2004 (Tr. 7/22/04, 3-4) (hereinafter cited as “Report of Dr. Roberson”). Dr. Roberson
concluded as follows:
[Petitioner] did not present with any symptoms of mental illness or a cognitive
disorder that impaired his ability to appreciate the nature of his conviction or
the potential penalties involved in sentencing. It is this examiner’s opinion
that he is fully able to understand the nature of the resentencing procedure. He
can participate in legal proceedings and conform his behavior to the
requirements of the courtroom, if he chooses to do so. He is fully capable of
discussing information related to his legal case and participating in his
allocution. He had a very favorable opinion of his attorney and is able to
discuss information regarding his case and rationally assist with the
development of legal strategy for resentencing.
(Report of Dr. Roberson, pp. 7-8). Although Petitioner had been evaluated by Dr. Russell
in May 2004, and was given the opportunity to present her evaluation, it was not presented.
With respect thereto, Mr. Henricksen advised the court, “I’m accepting this conclusion by
Dr. Roberson, at least to the extent that I have no evidence presently available to me with
which to contradict it” (Tr. 7/22/04, 4-7).5 Judge Cunningham found Petitioner competent
to proceed (Tr. 7/22/04, 7-8).
Inquiry was then made as to whether Petitioner wanted a jury trial. Mr. Henricksen
told the court that Petitioner had been advised to assert his right to trial by jury; however,
Petitioner had indicated his desire to proceed against the advice of counsel (Tr. 7/22/04, 810). Mr. Henricksen stated, “I strongly hope that he will change his mind and allow us to
5
Dr. Russell’s 2004 report is not a part of the record; however, in her subsequent 2005 report,
Dr. Russell notes that in 2004 she “found [Petitioner] able to appreciate the charges against him and
to rationally assist in his defense.” A copy of Dr. Russell’s 2005 report is contained in Exhibit One
to the Petition (hereinafter cited as “2005 Report of Dr. Russell”).
5
proceed” (Tr. 7/22/04, 10). Judge Cunningham addressed the question to Petitioner directly.
Petitioner requested a non-jury trial on September 8th (Tr. 7/22/04, 10-11).
Judge Cunningham advised Petitioner that if he changed his mind, it would be allowed and
the matter would be set for jury trial on April 4, 2005 (Tr. 7/22/04, 11-12).
Prior to the hearing on September 8th, Petitioner’s counsel filed a pleading entitled
“Defendant’s Tender of Mitigation Evidence.”
In this pleading, counsel detailed the
evidence available for the development of a mitigation case (O.R. X, 1681-96). Therein,
counsel stated, “[Petitioner] has demanded that he not be subjected to [ ] further resentencing proceedings in front of a jury” (O.R. X, 1682). Counsel further stated:
[Petitioner] has further forbidden counsel for [Petitioner] from
introducing any evidence which might tend to mitigate this court’s or a jury’s
imposition of a sentence other than death. [Petitioner] has refused to submit to
further diagnostic tests for mental health experts and has fully impeded the
development of the mitigation which might persuade this court or a jury to
impose a sentence other than death in these three first degree murder charges.
(O.R. X, 1682).
Judge Cunningham, after noting that he had previously found Petitioner to be
competent, began the September 8th hearing by questioning Petitioner about his right to a
jury trial and his right to present mitigating evidence. Petitioner reaffirmed that he did not
want a jury sentencing proceeding and that he understood his right to present mitigation
evidence (Tr. 9/8/04, 3-5). Judge Cunningham then asked Mr. Henricksen if he was satisfied
that Petitioner understood his right to present mitigation evidence. While acknowledging his
belief that Petitioner suffers from serious mental illness, Mr. Henricksen described
6
Petitioner’s current state as “perfectly cordial.” Reluctantly, Mr. Henricksen advised the court
that he believed that Petitioner “understands the nature, purpose, and consequence of this
hearing and the consequences of what he’s doing today” (Tr. 9/8/04, 5-6). In compliance
with Wallace v. State, 893 P.2d 504, 512-513 (Okla. Crim. App. 1995),6 Judge Cunningham
continued to question Petitioner about the nature of mitigation evidence, his right to present
it, and the three possible punishments he faced.
Petitioner continually affirmed his
understanding of his rights and the sentencing process. He told the court that he had thought
about it for ten years, that no one was forcing him to make this decision, and that he had
consulted with his counsel and family about it (Tr. 9/8/04, 6-9).
Mr. Henricksen continued to urge Petitioner to change his mind and request a jury
trial. Mr. Henricksen discussed how the preparation of a mitigation case had been thwarted
by Petitioner’s directive to counsel not to bother his family, friends, and teachers, and his
refusal to submit to mental health testing beyond what was required to establish his
competency (Tr. 9/8/04, 9-11). Judge Cunningham told Petitioner that the failure to present
mitigation evidence could result in him receiving the death penalty. Petitioner stated that he
understood, and he acknowledged that he had not allowed his counsel to contact witnesses
on his behalf. Petitioner made this statement even after Judge Cunningham told him that he
felt sure that Petitioner’s friends and family would willingly help him (Tr. 9/8/04, 11-12).
6
In Wallace, 893 P.2d at 508, the OCCA held that a defendant can waive the presentation
of mitigating evidence. Wallace sets forth guidelines to be followed in this situation. Id. at 512-13.
The guidelines “ensure the defendant has an understanding of his or her rights. . . .” Id. at 512.
7
At the conclusion of this questioning, Judge Cunningham asked Petitioner whether
he wanted to give up his right to present mitigation evidence.
Petitioner answered
affirmatively, acknowledging that he had visited with his attorneys about it several times and
knew that his decision was against their advice (Tr. 9/8/04, 12). Then the following
exchange occurred:
MR. HENRICKSEN:
Michael, would delaying this any further if
the Court were even to consider it - - I’ve tried to emphasize to you what a
deadline today is. You know there can’t be a bigger decision in one person’s
life. Would a little more time help you?
[PETITIONER]:
No. I think I’ve had sufficient time.
THE COURT:
Before you respond to that question, I will advise
you, if we need to have more time, I will grant you more time. I’m not going
to rush through this. But if we need more time, if you need to visit with
anybody else, if you want to visit with your counsel, we’ll do that.
[PETITIONER]:
Well, I do appreciate and I understand, but we’ve
discussed this many times, and my decision stands.
(Tr. 9/8/04, 13-14). Judge Cunningham then asked Petitioner again about a jury sentencing.
Petitioner affirmed that he wanted the court to conduct his sentencing (Tr. 9/8/04, 14).
Before making his findings as to waiver, Judge Cunningham wanted Petitioner to
listen to and consider the evidence that the State wanted to the court to consider, as well as
the evidence that his counsel wanted the court to consider.
After this discussion,
Judge Cunningham asked defense counsel if they needed to visit any further with their client.
Petitioner himself answered, “Thank you. No, Your Honor” (Tr. 9/8/04, 14-21). Then, after
some further discussion with counsel, Judge Cunningham found as follows:
8
[T]he Court at this time would find that [Petitioner] is competent based on the
record that is made since the remand coming back; that he is competent at this
time to understand the nature, purposes, and consequences of this proceeding;
that [Petitioner] in open court has affirmatively waived his right to have this
matter presented to a jury; that [Petitioner] has affirmatively requested that this
Court reconsider the sentencing in this matter; that [Petitioner] has, with the
record being made, prohibited, kept, his counsel from calling any further
witnesses for sentencing considerations; that [Petitioner’s] tender is a tender
of mitigation evidence of what [Petitioner] could have or would have
presented had [Petitioner] allowed his counsel to present that to the Court . . . .
....
[T]hat [Petitioner] understands the possibility of the assessment of the death
penalty on one or all of these counts, that [Petitioner] fully understands and is
competent to understand and appreciate the difference between a death penalty
and a life in prison without parole, or a life in prison, and that he is competent
to make those determinations and in assisting his counsel.
(Tr. 9/8/04, 27, 29).
The matter was then continued until September 30th so that
Judge Cunningham could have sufficient time to review the evidence requested by the parties
and make his decision. Before concluding, however, Judge Cunningham left open the
opportunity for Petitioner to change his mind and proceed with a jury sentencing (Tr. 9/8/04,
27-28, 33-34).
Judge Cunningham began the September 30th sentencing hearing by once again
addressing the issue of Petitioner’s competency. Judge Cunningham was advised that since
the last hearing, Petitioner had seen a mental health provider at the prison. He was told that
there had been some consideration of prescribing Petitioner some medication for his chronic
depression, but that currently Petitioner was not taking any medication that would affect his
judgment. When Mr. Henricksen was asked about Petitioner’s competency, he replied, “I
9
remain persuaded that [Petitioner] suffers from chronic and serious depression, but that I
cannot, as an officer of the Court, state that I do not think he is competent to participate in
these court proceedings, albeit suffering from mental illness.” The court then found as
follows:
Again, based on the record that has previously been made, based on my
observations of [Petitioner], his obvious thought process and the responses he
has given to the Court, at this time this Court would find that [Petitioner], is,
in fact, competent to assist counsel and to understand the nature, purpose, and
consequence of these proceedings . . .
(Tr. 9/30/04, 3-6).
Next, Judge Cunningham revisited the matter of a jury trial. Although Petitioner had
waived his right to a jury trial at the prior hearing, Judge Cunningham stated, “Again, I
advise counsel, if [Petitioner] wishes to exercise his right to a jury trial, I will not rush
through this, I will back this process up, and we will allow a jury trial at the earliest
opportunity” (Tr. 9/30/04, 6-7). Judge Cunningham then asked Petitioner directly if he
wanted to exercise his right to a jury trial. Petitioner responded:
In light of the facts, many that have been fabricated and grossly
distorted, I don’t see it necessary to dredge up these things and drag my family,
the victim’s family, or myself through the presentation of such. So I would
prefer that you sort through the relevant material and pronounce whatever
sentence you deem appropriate. I’m still standing on that.
(Tr. 9/30/04, 7). Petitioner affirmed his decision to waive jury sentencing and stood on his
previously filed motion for plea and waiver of rights (Tr. 9/30/04, 7-9).
10
After making a record of what evidence had been reviewed in preparation for
Petitioner’s sentencing, including the testimony of Petitioner’s parents presented in
mitigation in his prior trial, Judge Cunningham questioned Petitioner once again about his
right to present mitigation evidence. Petitioner acknowledged what his counsel desired to
do with respect to mitigation, but he affirmed that he wanted no further action
taken (Tr. 9/30/04, 9-12). Mr. Henricksen also stated once again that it was his “lay opinion”
that Petitioner was suffering from severe depression; however, he did “not believe that
[Petitioner] is incompetent in a legal sense. . . .” The court found Petitioner competent to
waive the presentation of any further mitigation evidence (Tr. 9/30/04, 12-14).
To
insure
complete
compliance
with
Wallace,
893
P.2d
at
512-513,
Judge Cunningham engaged Petitioner in an even more extensive dialogue about his
decision, the nature of mitigation evidence, his right to present it, and the three possible
punishments he faced. He then made the following findings:
I do believe that [Petitioner] understands the difference between mitigating and
aggravating circumstances, that [Petitioner] understands his right as a matter
of law to present mitigating evidence, that [Petitioner] has had the advice of
counsel who have advised him to be allowed to present their evidence, further
evidence, and to delve further into it before presentation pursuant to the tender
of mitigation evidence as filed for record on September 8th.
I am satisfied that he understands this process of mitigating versus
aggravating circumstances and evidence in support of both the position of the
State and [Petitioner]. I’ve asked him three or four times. I think, based on
my observations of [Petitioner], that he understands this situation, and that,
against legal advice, it is his direction to his counsel not to present, delve into
further or present, the mitigating evidence that counsel wish to present. I think
he understands the importance of mitigating evidence. I think he understands
11
that failure to present that mitigating evidence could result in the imposition
of one, two, or three death penalties. I think he understands the permanency,
based on questioning in a prior hearing on this matter, as well as his responses
today of the difference between life in prison, life in prison without parole, and
death being final.
I would make those as findings of facts in support of my determination
that he is competent to waive the presentation of mitigating evidence, as well
as to proceed further with this hearing.
(Tr. 9/30/04, 14-22). But even after this, Judge Cunningham advised Petitioner that in a prior
case like Petitioner’s, he had sentenced a man to death and in fact attended his execution.
With this knowledge, Judge Cunningham asked Petitioner again if he wanted to halt
proceedings and pursue a mitigation case. Petitioner replied, “No, I do not” (Tr. 9/30/04, 2223).
After hearing argument from counsel, the hearing was recessed for lunch and then
Judge Cunningham returned with his ruling (Tr. 9/30/04, 25-41). Judge Cunningham
resentenced Petitioner to death on three counts of Murder in the First Degree (Tr. 9/30/04,
42-54). On Count I, the murder of Cynthia Lynn Jarman, Judge Cunningham found two
aggravating circumstances supporting the death sentence, namely: (1) Petitioner knowingly
created a great risk of death to more than one person; and (2) the existence of a probability
that Petitioner would commit criminal acts of violence that would constitute a continuing
threat to society (Tr. 9/30/04, 42-44). On Counts II and III, the murders of Cynthia Lynn
Jarman’s children, Tonya Kay Jarman and Timmy Glen Jarman, Judge Cunningham found
the same aggravators supporting Count I, plus the additional aggravator that the murders
12
were committed for the purpose of avoiding or preventing a lawful arrest or
prosecution (Tr. 9/30/04, 44-49).
Formal sentencing was held on October 27, 2004. Again, at the beginning of the
hearing, Judge Cunningham inquired of Petitioner’s competence to proceed and his
understanding of his rights (Tr. 10/27/04, 3-13). Finding Petitioner competent, the death
warrants were then read (Tr. 10/27/04, 13-34). Petitioner then presented the court with a
declaration which read:
I hereby acknowledge that my counsel has advised me of my rights of
appeal. I am fully informed that in light of having received three sentences of
death by lethal injection, that this sentence is subject to mandatory review by
the Oklahoma Court of Criminal Appeals. However, I confirm that I have
directed my counsel not to file any other appeals, including a direct appeal nor
a post-conviction challenge.
(O.R. X, 1724; Tr. 10/27/04, 34-35). In accordance with Grasso v. State, 857 P.2d 802,
806 (Okla. Crim. App. 1993),7 Judge Cunningham then proceeded to question Petitioner
about the declaration and his understanding of his appellate rights. He then found him
competent and the waiver to be knowing and intelligent:
“I find, specifically, that
[Petitioner] has the understanding and the capacity, as a legal stance, to understand the
7
In Grasso, the OCCA adopted the following standard to be applied in cases where a capital
defendant seeks to waive his direct appeal right:
[A] defendant sentenced to death will be able to forego a state appeal only if he has
been judicially determined to have the capacity to understand the choice between life
and death and to knowingly and intelligently waive any and all rights to appeal his
sentence.
Grasso, 857 P.2d at 806 (quoting Franz v. State, 754 S.W.2d 839, 843 (Ark. 1988)).
13
difference between life and death and to knowingly and intelligently, realizing it is against
his counsel’s advice, but he has the right to waive his statutory right to a direct
appeal. . .” (Tr. 10/27/04, 35-40). The declaration was then executed by Petitioner and filed
of record (O.R. X, 1724; Tr. 10/27/04, 40).
In Case No. D-2004-1098, the OCCA reviewed Petitioner’s resentencing proceedings.
In a published opinion, Hooper v. State, 142 P.3d 463 (Okla. Crim. App. 2006), the OCCA
found no error warranting relief.8 Petitioner sought review of the OCCA’s decision by the
United States Supreme Court. His petition for writ of certiorari was denied on March 26,
2007. Hooper v. Oklahoma, 549 U.S. 1309 (2007).
II. Standard of Review.
A.
Exhaustion as a Preliminary Consideration.
The exhaustion doctrine is a matter of comity. It provides that before a federal court
can seek to grant habeas relief to a state prisoner, it must first determine that he has
exhausted all of his state court remedies. As acknowledged in Coleman v. Thompson,
501 U.S. 722, 731 (1991), “in a federal system, the States should have the first opportunity
to address and correct alleged violations of state prisoner’s federal rights.” While the
8
The OCCA conducts a mandatory sentence review for all cases in which the death penalty
is imposed. This review cannot be waived. Okla. Stat. tit. 21, § 701.13 (2001); Fluke, 14 P.3d at
567. In conducting a mandatory sentence review, the OCCA is tasked to determine whether (1) “the
sentence of death was imposed under the influence of passion, prejudice, or any other arbitrary
factor” and (2) “the evidence supports the jury’s or judge’s finding of a statutory aggravating
circumstance.” Okla. Stat. tit. 21, § 701.13(C) (2001).
14
exhaustion doctrine has long been a part of habeas jurisprudence, it is now codified in
28 U.S.C. § 2254(b). Pursuant to 28 U.S.C. § 2254(b)(2), “[a]n application for a writ of
habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to
exhaust the remedies available in the courts of the State.”
B.
Procedural Bar.
Beyond the issue of exhaustion, a federal habeas court must also examine the state
court’s resolution of the presented claim. “It is well established that federal courts will not
review questions of federal law presented in a habeas petition when the state court’s decision
rests upon a state-law ground that ‘is independent of the federal question and adequate to
support the judgment.’” Cone v. Bell, ___ U.S. ___, 129 S.Ct. 1769, 1780 (2009) (quoting
Coleman). “The doctrine applies to bar federal habeas when a state court declined to address
a prisoner’s federal claims because the prisoner had failed to meet a state procedural
requirement.” Coleman, 501 U.S. at 729-30.
C.
Merits.
In accordance with the Antiterrorism and Effective Death Penalty Act of
1996 (hereinafter “AEDPA”), the Court’s ability to grant habeas corpus relief to state
prisoners is limited. When a state prisoner presents a claim to this Court, the merits of which
have been addressed in state court proceedings, the Court cannot grant habeas corpus relief
upon the claim unless it determines that the state court proceedings resulted in a decision
(1) “that was contrary to, or involved an unreasonable application of, clearly established
15
Federal law, as determined by the Supreme Court of the United States” or (2) “that was based
on an unreasonable determination of the facts in light of the evidence presented in the State
court proceeding.” 28 U.S.C. § 2254(d).
The focus of Section 2254(d) is on the reasonableness of the state court’s decision.
To obtain relief, a petitioner must show that the state court decision is “objectively
unreasonable.” Williams v. Taylor, 529 U.S. 362, 409 (2000) (O’Connor, J., concurring but
delivering the opinion of the Court with respect to Part II). “The question under AEDPA is
not whether a federal court believes the state court’s determination was incorrect but whether
that determination was unreasonable - a substantially higher threshold.” Schriro v. Landrigan,
550 U.S. 465, 473 (2007).
“Under § 2254(d), a habeas court must determine what arguments or theories
supported . . . the state court’s decision; and then it must ask whether it is possible fairminded
jurists could disagree that those arguments or theories are inconsistent with the holding in a
prior decision of [the Supreme] Court.” Harrison v. Richter, ___ U.S. ___, 131 S.Ct. 770,
786 (2011). Relief is warranted only “where there is no possibility fairminded jurists could
disagree that the state court’s decision conflicts with [the Supreme Court’s] precedents.” Id.
The deference embodied in Section 2254(d) “reflects the view that habeas corpus is a ‘guard
against extreme malfunctions in the state criminal justice systems,’ not a substitute for
ordinary error correction through appeal.” Id. (citation omitted).
16
III. Analysis.
A.
Ground One.
In his Ground One, Petitioner challenges the adequacy of Oklahoma’s procedures to
determine his competence and his ability to make knowing and intelligent waivers of his right
to jury trial, right to present mitigation evidence, and right to appeal. Petitioner asserts that
Oklahoma’s procedures do not comport with the standard set forth in Rees v. Peyton,
384 U.S. 312 (1966). Although the OCCA found that its “requirements ensure that a capital
defendant’s waiver of rights comports with the general standard set forth [in Rees],” Hooper,
142 P.3d at 466, Petitioner disagrees, and asserts that the failure to employee the Rees’
standard resulted in an inconsistent determination that he was competent to waive his
constitutional rights, despite his depression. Petitioner claims that he is entitled to relief
under Section 2254(d) because the OCCA’s decision is both contrary to and an unreasonable
application of Rees and based on an unreasonable determination of the facts. Respondent
contends that Petitioner has failed to satisfy the requirements of Section 2254(d) and should
therefore be denied relief.
1.
The Rees Standard.
In Rees, a capital defendant seeking review of the denial of habeas relief sought to
withdraw his petition for certiorari. Given questions about his competency, the Supreme
Court directed the district court to determine the issue.
Rees, 384 U.S. at 312-14.
Specifically, the district court was instructed to determine “whether he has capacity to
17
appreciate his position and make a rational choice with respect to continuing or abandoning
further litigation or on the other hand whether he is suffering from a mental disease, disorder,
or defect which may substantially affect his capacity in the premises.” Id. at 314.
In Godinez v. Moran, 509 U.S. 389 (1993), a case which held that the standard used
to determine a defendant’s competence to stand trial, Dusky v. United States, 362 U.S.
402 (1960),9 is the same standard which applies to a defendant’s competence to plead guilty
or waive the right to counsel, the Supreme Court noted that the phrase “rational choice” as
used in Rees means the same as “rational understanding” as used in Dusky. Godinez,
509 U.S. at 398 n.9. Although the Rees standard differs from the Dusky standard, “both
standards inquire about the discrete capacity to understand and make rational decisions
concerning the proceedings at issue. . . .” Mata v. Johnson, 210 F.3d 324, 329 n.2 (5th Cir.
2000).
2.
Oklahoma’s Procedures.
As noted above, the OCCA found that Oklahoma’s procedures comport with
Rees. Hooper, 142 P.3d at 466.
This Court has carefully scrutinized cases in which a defendant
essentially volunteers for the death penalty, by waiving his rights to a jury trial,
presentation of mitigating evidence, and direct appellate review. We have
developed a strict procedure which must be followed in such cases. This is
ultimately designed to ensure that the defendant has the capacity to understand
9
In Dusky, the Supreme Court held that a defendant is competent to stand trial if he has
(1) “sufficient present ability to consult with his lawyer with a reasonable degree of rational
understanding” and (2) “a rational as well as factual understanding of the proceedings against him.”
Dusky, 362 U.S. at 402 (internal quotations omitted).
18
the choice between life and death, and to knowingly and intelligently waive his
right to appeal his sentence. Our requirements ensure that a capital defendant’s
waiver of rights comports with the general standard set forth by the United
States Supreme Court to determine whether a capital defendant may end his
appeals: “whether [the defendant] has capacity to appreciate his position and
make a rational choice with respect to continuing or abandoning further
litigation or on the other hand whether he is suffering from a mental disease,
disorder, or defect which may substantially affect his capacity in the premises.”
Id. (footnotes omitted) (quoting Rees). The OCCA detailed its procedures as follows:
Before permitting a waiver of the rights to jury trial and to present
mitigating evidence, the trial court must order an independent competency
evaluation. After making the determination that a defendant is competent to
waive a jury trial, a trial court must follow several steps to ensure a defendant
is knowingly and intelligently waiving the presentation of mitigating evidence.
(1) The court must inform the defendant of the right to present mitigating
evidence, and what mitigating evidence is.
(2) The court must inquire both of the defendant and his attorney (if not pro
se) whether he or she understands these rights.
(3) The court should also inquire of the attorney if he or she has attempted
to determine from the defendant whether there exists any evidence which
could be used to mitigate the aggravating circumstances proven beyond a
reasonable doubt by the prosecution.
(4) If such information has been given, the attorney must advise the court
what that mitigating evidence is; if the defendant has refused to cooperate,
the attorney must relate that to the court.
(5) The trial court must inquire of a defendant and make a determination
on the record whether the defendant understands the importance of
mitigating evidence in a capital sentencing scheme, understands such
evidence could be used to offset the aggravating circumstances proven by
the prosecution in support of the death penalty, and the effect of failing to
present that evidence.
19
(6) After being assured the defendant understands these concepts, the court
must inquire of the defendant whether he or she desires to waive the right
to present such mitigating evidence.
(7) Finally, the court should make findings of fact pursuant to Grasso of the
defendant’s understanding and waiver of rights.
Id. (footnotes omitted) (citing Fluke, 14 P.3d at 567, Wallace, 893 P.2d at 512-13, and
Grasso, 857 P.2d at 806). The OCCA complimented Judge Cunningham for “scrupulously
follow[ing] these steps.” Id.
3.
Trial Court’s Determination of Petitioner’s Competence.
The independent competency evaluation ordered by the court directed Dr. Roberson
to answer the following five questions:
(1)
Is [Petitioner] able to appreciate the nature of the charges against him?
(2)
Is [Petitioner] able to consult with his lawyer and rationally assist in the
preparation of his defense?
(3)
If the answer to question (1) or (2) is no, can [Petitioner] attain
competency within a reasonable time if provided with a course of
treatment, therapy, or training?
(4)
Is [Petitioner] a mentally ill person requiring treatment as defined by
Section 1-103 of Title 43A of the Oklahoma Statutes?
20
(5)
If [Petitioner] were released without treatment, therapy, or training,
would he probably pose a significant threat to the life or safety of
himself or others?
(O.R. IV, 627).10
Dr. Roberson answered the first question in the affirmative. He supported his
conclusion as follows:
[Petitioner] was well aware he was convicted of three counts of Murder in the
First Degree, and he understood the behavioral accusations against him. He
knew he was ordered for resentencing in this case, and he listed three possible
sentences he could receive, including “death penalty, life without parole, and
life.” He clearly understood the seriousness of his situation and the potential
penalties he could receive. [Petitioner] was motivated for a favorable
resolution to his case. However, he stated that when left with only two choices
(i.e., life in prison vs. the death penalty), he would prefer execution.
[Petitioner] cited numerous reasons for his belief that it would be better to be
executed than to spend the rest of his life in prison, such as his relationships
with other inmates, potential negative situations that could arise, etc. He
voiced no delusional beliefs (fixed false beliefs despite evidence to the
contrary) regarding what would occur were he executed. He understood it
would result in his physical death, although he noted that he was a Christian
and believed in an afterlife. [Petitioner] did not present with any symptoms of
mental illness or cognitive impairment that precluded his ability to appreciate
the nature of his conviction or the potential penalties involved in sentencing.
(Report of Dr. Roberson, p. 3).
Dr. Roberson answered the second question in the affirmative as well. Dr. Roberson
concluded that Petitioner understood the nature of the resentencing proceeding. Petitioner
10
In correspondence from the court, Dr. Roberson was provided with most of the background
information upon which he relied in conducting his evaluation (O.R. IV, 634-702; Tr. 7/22/04, 7).
In addition to this information, Dr. Roberson personally interviewed Petitioner. This interview and
evaluation occurred on June 21, 2004, and lasted an hour and thirty-five minutes (Report of
Dr. Roberson, p. 1).
21
told Dr. Roberson “that his attorney had two options for legal strategy in the resentencing,
and [he] provided a logical description for those options, as well as excellent definitions for
basic legal roles. . . .” Dr. Roberson noted that Petitioner’s behavior was “very well
controlled” and he had average cognitive ability. Petitioner told Dr. Roberson that he trusted
his legal counsel and he complimented Mr. Henricksen’s lawyering skills. Petitioner
acknowledged that Mr. Henricksen disagreed with his position to forego sentencing and
request the death penalty and had urged him to discontinue this course (Report of
Dr. Roberson, pp. 3-4). Given his affirmative answers to the first two questions, the third
question was inapplicable (Report of Dr. Roberson, p. 4).
Dr. Roberson answered the fourth question in the negative. After discussing his
review of the testimony given by Dr. J. R. Smith at an evidentiary hearing in 2001 regarding
a prior mental health evaluation of Petitioner, Dr. Roberson detailed the findings of his own
evaluation (Report of Dr. Roberson, pp. 4-6). Therein, Dr. Roberson noted the following:
[Petitioner] described his recent mood as “pretty good.” He stated he had not
cried in a very long time, although he occasionally felt sad. He reported no
impairment in sleep, energy level, or appetite. He stated he routinely
performed exercises and yoga to maintain fitness. [Petitioner] estimated he
slept between 5-6 hours each night. He conveyed that he “gave up hope” when
he received a resentencing and not a retrial, but he did not endorse any
substantial symptoms of depression or anxiety at the current time. He did not
evidence or display any symptoms of mania, such as hyperactivity, decreased
need for sleep, increased thought processes, elevated mood or pressured
speech. [Petitioner] denied any history of auditory or visual
22
hallucinations (sensory experiences in the absence of external stimuli). He did
not voice any paranoid or delusional ideations.
(Report of Dr. Roberson, p. 6). Dr. Roberson concluded that Petitioner was not in need of
inpatient psychiatric treatment because
[he] evidenced no signs, and endorsed no history of, symptoms of psychosis.
He did not endorse any history of substantial manic symptoms. He stated he
had suffered from depression and anxiety in the past, but currently, denied
such problems and his affect appeared euthymic (normal). [Petitioner] reported
no history of treatment for a serious mental illness or cognitive defects. His
intellectual functioning appeared to be at least in the Average Range based on
his responses throughout the evaluation.
(Report of Dr. Roberson, p. 6).
The final question was answered in the negative as well. Although Petitioner told
Dr. Roberson of a prior suicide attempt when he was a child, “[h]e denied any current
suicidal ideations and denied any plans to harm himself.” Petitioner did suggest that he
might consider suicide if he received a sentence other than death. Dr. Roberson noted that
this situation should be monitored (Report of Dr. Roberson, p. 7).
Dr. Roberson’s ultimate conclusion was that Petitioner was competent. Petitioner did
not show any signs of mental illness or cognitive impairment. With average intellectual
functioning, he had an understanding of the proceedings and was capable of assisting counsel
in legal discussions (Report of Dr. Roberson, pp. 7-8).
At the post-examination competency hearing, Dr. Roberson’s report was admitted and
the State relied upon the same to demonstrate Petitioner’s competence to proceed. Aware that
Petitioner had been evaluated by his own expert, the court asked if Petitioner had a report to
23
present for the court’s consideration. Mr. Henricksen advised that the defense had no
evidence to present and that it accepted Dr. Roberson’s findings because it had no evidence
with which to challenge it (Tr. 7/22/04, 4, 6-7). Although Petitioner had in fact had his own
evaluation done, evidence of the evaluation was not presented because the results were
consistent with Dr. Roberson’s findings.
On May 10, 2004, Dr. Russell met with Petitioner for three hours. She interviewed
him and conducted two competency tests, The MacArthur Competence Assessment Tool Criminal Adjudication (MACCAT-CA) and the Georgia Court Competency Test - Revised
1992 (GCCT). In addition, she reviewed the following mental health records:
Psychotherapy Notes for the period beginning August 18, 1992 through
May 25, 1993 - Richard A. Carothers, Ph.D.
MCMI-III computer generated report dated May 27, 1997
Neuropsychological test data from Dr. Adams report dated April 2, 1993
Review of transcript of testimony of Dr. J. R. Smith and Dr. Phillip Murphy
Neuropsychological Evaluation by Phillip Murphy, Ph.D. dated September 29,
1996
Neuropsychological Evaluation by Russell L. Adams, Ph.D. dated April 2,
1993
Report on testing by Vesta S. Gettys, Ph.D. dated June 18, 1997 including:
Minnesota Multiphasic Personality Inventory - 2 (MMPI-2), Adult
24
Basic Learning Examination, Level 2 (ABLE), Bender-Gesalt, and
Millon Clinical Multiaxial Inventory (MCMI-II)
(O.R. X, 1689). Consistent with Dr. Roberson, Dr. Russell also concluded that Petitioner
was competent (2005 Report of Dr. Russell, pp. 1, 3-4).
In addition to these mental health evaluations, Petitioner’s counsel, Mr. Henricksen,
asserted throughout the 2004 proceedings that, although Petitioner was, in his lay opinion,
depressed, he was nevertheless competent (Tr. 9/8/04, 5-6; Tr. 9/30/04, 5; Tr. 10/27/04, 4-5).
See Bryson v. Ward, 187 F.3d 1193, 1201 (10th Cir. 1999) (“Defense counsel is often in the
best position to determine whether a defendant’s competency is questionable.”). Moreover,
Petitioner appeared before Judge Cunningham seven times from February 2004 to
October 2004. Judge Cunningham had extensive interaction with Petitioner as he repeatedly
advised Petitioner of his rights, questioned his understanding of his rights, and determined
that Petitioner was competent to proceed and make knowing and intelligent waivers of his
constitutional rights (Tr. 7/22/04, 8; Tr. 9/8/04, 27, 29; Tr. 9/30/04, 6, 13-14, 51-52;
Tr. 10/27/04, 10-11, 37-40). See United States v. Cornejo-Sandoval, 564 F.3d 1225,
1234 (10th Cir. 2009) (noting that a court’s observation of a defendant’s “behavior and
demeanor are crucial to any proper evaluation of a cold appellate record”).
4.
Analysis.
Despite all this evidence of his competency, including that of his own expert,
Petitioner asserts, as he did to the OCCA, that the inquiry conducted into his competence was
25
inadequate under Rees. It is Petitioner’s contention that in order to satisfy Rees, the
following questions must be answered:
(1) Is the person suffering from a mental disease or defect?
(2) If so, does it prevent him from understanding his legal position and
the options available to him? And,
(3) If the disease or defect does not prevent the person from
understanding his legal position and available options, does it nevertheless
prevent him from making a rational choice among his options?
Ross ex rel. Smyth v. Lantz, 392 F.Supp.2d 236, 238 (D.Conn. 2005) (citing Rumbaugh v.
Procunier, 753 F.2d 395, 398 (5th Cir. 1985), and Smith ex rel. Mo. Pub. Defender
Comm’n v. Armontrout, 812 F.2d 1050, 1057 (8th Cir. 1987)). Because these questions were
not explored, Petitioner contends that his depression was deemed irrelevant under
Oklahoma’s procedures. Relying on a second report prepared by Dr. Russell in 2005, a year
after his resentencing proceedings and a few months after he starting taking an antidepressant
medication, Petitioner asserts that had these questions been asked in 2004, the answers would
have demonstrated that his depression prevented him from making a rational choice among
his options.
26
The OCCA addressed Petitioner’s argument11 and found as follows:
Oklahoma’s combination of questions which must be asked to determine
competency, and which must be specifically asked where capital defendants
wish to waive their statutory rights to a jury trial, presentation of mitigating
evidence, and appeal, are comparable to [Petitioner’s] proposed questions. A
defendant whose mental disease or defect either prevents him from
understanding his legal position and available options, or prevents him from
making a rational choice among his options, will not be found competent under
our current law.
Hooper, 142 P.3d at 470 (footnote omitted). Granting Petitioner’s Rule 3.11 motion, the
OCCA considered Dr. Russell’s 2005 report and Petitioner’s assertion that once he was
medicated in 2005, he felt better and wanted to proceed with his appeals.12 Id. at 470 n.18.
However, the OCCA concluded that Petitioner had not shown that he “was unable to make
a valid waiver due to a mental illness.” Id. at 470.
The record does indicate that defense counsel and a defense expert believed
[Petitioner] to be suffering from chronic, serious depression. However, neither
counsel nor the defense expert believed that his condition affected
[Petitioner’s] ability to make a valid waiver. The expert who performed the
independent competency evaluation specifically found that [Petitioner], while
11
Petitioner takes issue with the OCCA’s characterization of his claim on appeal. As an
introduction to its discussion of the merits of Petitioner’s claim, the OCCA stated that Petitioner’s
primary contention is that “he is mentally ill and that his mental illness affected his ability to make
a valid waiver.” Hooper, 142 P.3d at 470. Petitioner contends that this statement is incorrect
because he did not claim that he was currently mentally ill, but that he was mentally ill in 2004.
Contrary to Petitioner’s assertion, this is clearly not an unreasonable determination of the facts.
Petitioner’s very claim is that he suffers from depression, a mental illness. That his condition may
be controlled by medication does not mean that he does not have the condition.
12
Petitioner argues that the OCCA did not properly consider this evidence; however, the
OCCA’s decision makes clear that the evidence presented his Rule 3.11 motion was “evidence of
his present mental health, bearing on his ability to make a valid waiver at the time of his resentencing
proceedings” and was considered by the OCCA as part of its mandatory sentence review. Hooper,
142 P.3d at 470 n.18.
27
depressed, did not present with symptoms of a mental illness, and offered a
rational basis for his decisions. Further, although the State’s expert evaluation
answers the standard competency questions, the evaluation itself explores
[Petitioner’s] competency specifically as it relates to the death penalty and
capital punishment issues. [Petitioner] presents this Court with affidavits
suggesting that now, after receiving medication and treatment, he would make
a different choice. This material tells the Court what [Petitioner] might do
now, faced with the same options he had at the time of his sentencing hearing.
However, it does not show that [Petitioner] was unable to make a valid waiver
at that time. The trial court thoroughly examined [Petitioner], and considered
the expert evaluation and [Petitioner’s] attorney’s information, before
determining [Petitioner] was competent to validly waive his rights to jury trial
and mitigating evidence, and to appeal. As we find above, our current
procedures protect the rights of a defendant who wishes to waive the rights to
jury trial, presentation of evidence and appeals. [Petitioner] was competent to
make a valid waiver. . . .
Id. at 470-71 (footnote omitted).
In order for Petitioner to obtain habeas relief on this claim, he must show that the
OCCA’s decision is contrary to or an unreasonable application of Rees. As the Supreme
Court continues to acknowledge, this is a high hurdle to overcome. See Cullen v. Pinholster,
___ U.S. ___, 131 S.Ct. 1388, 1398 (2011) (acknowledging that Section 2254(d) places a
difficult burden of proof on the petitioner); Richter, 131 S.Ct. at 786-87 (“As a condition for
obtaining habeas corpus from a federal court, a state prisoner must show that the state court’s
ruling on the claim . . . was so lacking in justification that there was an error well understood
and comprehended in existing law beyond any possibility for fairminded agreement.”);
Renico v. Lett, ___ U.S. ___, 130 S.Ct. 1855, 1866 (2010) (“AEDPA prevents
defendants-and federal courts-from using federal habeas corpus review as a vehicle to
second-guess the reasonable decisions of state courts.”); Woodford v. Visciotti, 537 U.S. 19,
28
24 (2002) (Section 2254(d) “demands that state-court decisions be given the benefit of the
doubt.”). Given the procedures employed and the in-depth inquiry conducted in Petitioner’s
case, the Court finds that Petitioner has not demonstrated his entitlement to relief.
The record discloses that the trial court “scrupulously followed” the comprehensive
procedures established by the OCCA to address the constitutional implications of a death
penalty volunteer. See Hooper, 142 P.3d at 466 (commending the trial court’s actions).
These procedures ensure that a capital defendant is competent and that his waivers are
knowing and voluntary. As discussed in Godinez, this two-part inquiry is what is required
in order for a defendant to waive his constitutional rights. “The focus of the competency
inquiry is the defendant’s mental capacity; the question is whether he has the ability to
understand the proceeding.” Id. at 401 n.12. Second, “a trial court must satisfy itself that the
waiver of his constitutional rights is knowing and voluntary.” Id. at 400. “The purpose of
the ‘knowing and voluntary’ inquiry . . . is to determine whether the defendant actually does
understand the significance and consequences of a particular decision and whether the
decision is uncoerced.” Id. at 401 n.12.
While Petitioner faults Oklahoma’s process for not mirroring or at least including
questions utilized in Ross by the United States District Court of Connecticut in its application
of Rees,13 the absence of these particular questions does not imply that Oklahoma’s process
13
Under the AEDPA, unreasonableness is judged according to Supreme Court authority.
“The decisions of lower federal courts applying Supreme Court precedent are not
determinative. . . .” Bland v. Sirmons, 459 F.3d 999, 1014 (10th Cir. 2006).
29
is invalid. Rees sets for the standard of competence required for a capital defendant to forego
his appeal. Although Rees acknowledges that application of the standard will necessarily
involve an evaluation of the defendant by a mental health expert, it does not mandate the
procedure by which the determination is to be conducted. Rees, 384 U.S. at 314. See
Godinez, 509 U.S. at 402 (acknowledging that “while States are free to adopt competency
standards that are more elaborate than the Dusky formulation, the Due Process Clause does
not impose these additional requirements”).
In the present case, Petitioner was evaluated by a mental health expert appointed by
the court. The questions posed to Dr. Roberson were the standard questions for determining
competency. Hooper, 142 P.3d at 469 n.14 (citing Okla. Stat. tit. 22, § 1175.3(E) (2001)).
Although Dr. Roberson answered these questions in detail, Petitioner contends that his focus
was impermissibly limited to “competency to be sentenced,” and he criticizes Dr. Roberson
for not conducting any psychological testing.14 Petition, p. 47. Petitioner also asserts that the
OCCA made unreasonable determinations of fact with respect to Dr. Roberson’s report.15
Petition, pp. 46-49.
14
Petitioner does not state what testing should have been done. In any event, it is unlikely
that Petitioner would have submitted to any such testing. While Petitioner agreed to an assessment
of his competency, he adamantly refused any psychological, neuropsychological, or psychiatric
testing (O.R. X, 1682; Tr. 9/8/04, 10; 2005 Report of Dr. Russell, p. 3).
15
It is unnecessary to specifically address each of Petitioner’s contentions of unreasonably
determined facts. For the reasons set forth herein, the Court finds that the OCCA reasonably
determined the facts and rendered a decision which is not contrary to or an unreasonable application
of Rees.
30
Dr. Roberson answered the questions posed by the court and provided the court with
needed information about his mental health.16 Judge Cunningham noted that Dr. Roberson’s
report was one of the most detailed reports he had ever reviewed. “I’ve read these reports for
going on 24 years, . . . but I was surprised by the length of the report, by the detail of the
report, by the cooperation of [Petitioner] with Dr. Roberson. I think this report addresses
everything that we needed to have addressed in the nature of a forensic expert’s statements
to the Court based on his evaluation” (Tr. 7/22/04, 7). As the OCCA found, “although
[Dr. Roberson’s] evaluation answers the standard competency questions, the evaluation itself
explores [Petitioner’s] competency specifically as it relates to the death penalty and capital
punishment issues.” Hooper, 142 P.3d at 470.
Contrary to Petitioner’s assertion, the fact that Petitioner was depressed during his
resentencing proceeding does not foreclose a finding under Rees that he had the “capacity
to appreciate his position and make a rational choice with respect to continuing or
abandoning further litigation. . . .” Rees, 384 U.S. at 314. Rees states that any mental
disorder must “substantially affect his capacity in the premises.” Id. Thus, “the presence or
absence of mental illness or brain disorder is not dispositive.” Mata, 210 F.3d at 329 n.2.
16
While Dr. Roberson’s evaluation was undoubtedly an important part of the competency
determination, it was not the definitive conclusion. As even Rees acknowledges, Petitioner’s
competence was a matter for the court. Rees, 384 U.S. at 314. See also United States v. Ghane,
593 F.3d 775, 779 (10th Cir. 2010) (“In assessing a defendant’s competency, the district court may
consider various factors, including expert medical opinions and its own observations of the
defendant during the proceedings.”) (emphasis added). Thus, while Petitioner targets Dr.
Roberson’s evaluation for alleged deficiencies, it was but a part of the relevant evidence considered
by the court in determining Petitioner’s competence to proceed.
31
See also United States v. Mackovich, 209 F.3d 1227, 1233 (10th Cir. 2000) (the Tenth
Circuit has long recognized that a defendant is not necessarily incompetent simply because
he suffers from a mental disorder); Miles v. Dorsey, 61 F.3d 1459, 1474 (10th Cir. 1995)
(“Petitioner’s history of mental problems, low intelligence, psychotropic medication, and
substance abuse do not establish that he was incompetent to plea.”).
In Smith, the Eighth Circuit rejected an interpretation of Rees that would find a
defendant incompetent upon a showing of only a “mere possibility that a mental disorder
substantially affected the decision.” Smith, 812 F.2d at 1057.
[T]here is necessarily an area of overlap between the category of cases in
which at the threshold we see a possibility that a decision is substantially
affected by a mental disorder, disease, or defect, and that of cases in which,
after proceeding further, we conclude that the decision is in fact the product
of a rational thought process.
Furthermore, we think it probable, given the circumstances that perforce
accompany a sentence of death, that in every case where a death-row inmate
elects to abandon further legal proceedings, there will be a possibility that the
decision is the product of a mental disease, disorder, or defect. Yet, Rees
clearly contemplates that competent waivers are possible, . . . and there is little
point in conducting a competency inquiry if a finding of incompetency is
virtually a foregone conclusion.
Id. (citation omitted). In Smith, the Eighth Circuit affirmed the district court’s finding of
competency despite a consensus among the experts that the petitioner suffered from
borderline personality disorder, antisocial personality disorder, and chronic mild-to-moderate
depression. Id. at 1054-55, 1058. See also Lochnar v. Zant, 978 F.2d 637, 642 (11th Cir.
1992) (finding a depressed petitioner competent under Rees).
32
In addition, there is no indication, as Petitioner suggests, that his depression was
deemed irrelevant in the assessment of his competency. As previously noted, Petitioner’s
counsel repeatedly advised the court of his opinion that Petitioner was depressed. In
addition, both experts who evaluated Petitioner were aware of his history of depression. Yet,
all reached the same conclusion that Petitioner was competent. If Petitioner was in fact
“malingering well,” as his habeas counsel now asserts, he malingered very well. From all
points of observation, from his counsel to his own expert, from the court-appointed expert
to the court, Petitioner repeatedly demonstrated that he had the capacity to appreciate his
position as well as a rational understanding of the decisions he was making. Like the
petitioner in Rumbaugh, 753 F.2d at 403, who was also found competent to forego further
legal proceedings, Petitioner “[strove] mightily to prove his mental competence to make legal
decisions.”
Moreover, as the OCCA found, Petitioner’s subsequently developed evidence
regarding his depression is insufficient to overcome the vast evidence of his competence at
the time of his resentencing proceedings. See Hooper, 142 P.3d at 470 (“This material . . .
does not show that [Petitioner] was unable to make a valid waiver at [the time of his
sentencing hearing].”). Petitioner’s primary evidence in this regard is the re-evaluation
conducted by Dr. Russell in 2005. Although Dr. Russell found Petitioner to be in essentially
the same condition as when she evaluated him in 2004, she states that “in working with
[Petitioner] knowing what I now know, I obviously would have approached the case
33
differently.” The only reported difference, however, between the first evaluation and the
second is that Petitioner had been on an antidepressant medication for approximately two
months before the second interview, and that, “[d]espite a previously reported normal mood,”
Petitioner told Dr. Russell that the medicine makes him “‘feel[] better” and makes him now
want to pursue an appeal (2005 Report of Dr. Russell, pp. 4-6). Based on this information
supplied by Petitioner, Dr. Russell’s most recent conclusion is that when Petitioner’s
depression is symptomatic, as she now opines it was in 2004, he is unable to make a rational
choice among his options (2005 Report of Dr. Russell, p. 5).
“[A] state court’s conclusion regarding a defendant’s competency is entitled to [] a
presumption [of correctness on federal habeas review].” Demosthenes v. Baal, 495 U.S. 732,
735 (1990). See Bryan v. Gibson, 276 F.3d 1163, 1170 (10th Cir. 2001) (citing Baal and
28 U.S.C. § 2254(e)(1)). To overcome the presumption, a petitioner must present “clear and
convincing evidence that [he] was in fact incompetent. . . .” Bryan, 276 F.3d at 1170.
Judge Cunningham found Petitioner competent and the OCCA affirmed this finding.
Petitioner’s “new” evidence, evidence which was even considered by the OCCA, is
insufficient to overcome these determinations.
The only Tenth Circuit case applying Rees is Hays v. Murphy, 663 F.2d 1004 (10th
Cir. 1981). While Petitioner contends that Hays supports his request for relief, the Court
disagrees. In addition to the fact that Hays is a pre-AEDPA case, where deference to the
OCCA was not implicated, Hays is distinguishable on its facts.
34
In Hays, there was
significant evidence indicating that Hays suffered from a serious mental disorder. Hays’s
mental problems, which predated his crime, resulted in “several mental commitment
proceedings over a period of years. . . .” Id. at 1009. Hays had “suicidal tendencies, lengthy
alcoholism, and . . . delusions.” Id. at 1009-10 (footnote omitted). Hays had a history of
paranoid schizophrenia, and he exhibited bizarre, inappropriate, and possibly psychotic
behavior. Id. at 1010.
There were two state court judicial inquiries into Hays’s desire to forego further legal
proceedings; however, neither addressed his competency. The first was conducted by a
special referee appointed by the OCCA. Because Hays remained silent and refused to answer
the questions posed by the referee, the referee concluded that Hays did not affirmatively
waive his right to appeal. Id. at 1006 & n.1. The second was a hearing before the OCCA.
After a brief question and answer session, the OCCA concluded that Hays affirmatively
waived his rights and it denied a stay of execution. Id. at 1007 & n.3. Regarding the OCCA’s
actions with respect to Hays’s competency, the Tenth Circuit noted as follows:
After some evidence and comments concerning competence were presented to
it, the Court of Criminal Appeals ruled that such evidence was irrelevant to the
proceedings before it. Thus, the state court actually did not make a competency
finding, or a finding on the sufficiency of the evaluations of Mr. Hays’s
competence.
Id. at 1007 n. 4 (citation omitted).
The Tenth Circuit found “that the examinations and evaluations of Mr. Hays were
insufficient for a determination on the critical question of competency.” Id. at 1009. The
35
Court noted that “[m]anifestations of schizophrenia ‘are present one day and not the next.
They are revealed to one examiner and not to another. . . . A complete account of a patient’s
symptomatology, therefore, demands that he be observed over an extended period of
time.’” Id. at 1012 n.13 (citation omitted). Thus, although Hays had been seen by mental
health experts “over a long period of time, none [of their contact with Hays] revealed the type
of extended, close observation in a proper setting which is generally recognized as essential
for the psychiatric and psychological evaluations required [to diagnose schizophrenia].” Id.
at 1011-12 (footnote omitted). The Court also noted that “‘[i]n most clinical centers certain
psychological test batteries are routinely used to indicate, confirm, or rule out a diagnosis of
schizophrenia.’” Id. at 1012 n.14 (citation omitted). The record did not show that Hays had
been administered any psychological tests. Id. at 1012. Because of these deficiencies, the
Tenth Circuit remanded the matter for further evaluation. Id. at 1013.
Petitioner’s case is different from Hays in two major respects. First, in Hays, the state
court did not make any determination of competency. In fact, the issue of Petitioner’s
competence was all but overlooked. The OCCA even acknowledged in Petitioner’s case that
“the minimal state procedures used to uphold competency [in Hays] would not be adequate
under current law.” Hooper, 142 P.3d at 470 n.17. Unlike Hays, the inquiry into Petitioner’s
competence and his ability to make knowing and intelligent waivers of his constitutional
rights was thoroughly and repeatedly explored. Petitioner was evaluated by two mental health
experts at the time of his resentencing and both concluded that he was competent. This is in
36
addition to the representations of Petitioner’s counsel and the observations of the trial court.
Second, the facts are markedly different. In Hays, the petitioner had a long history of
schizophrenia. One expert found that this mental illness “impair[ed] [his] ability . . . to
appreciate reality and to exercise sound judgment, to the point where in certain areas his
judgment may be based entirely on irrational delusion which the patient himself cannot
perceive and over which he has no control.” Hays, 663 F.2d at 1010 n.10. Another expert
noted that Hays did “‘not seem to understand that he is going to die.’” Id. at 1010 n.11. In
Petitioner’s case, there was a complete lack of evidence that Petitioner was irrational or
delusional. Just the opposite, there was abundant evidence that he understood the nature and
consequences of his resentencing proceeding and made rational decisions in the course
thereof.
Having reviewed the OCCA’s decision in light of the deference to which it is entitled,
the Court finds that Petitioner has failed to show that it is an unreasonable application of
Rees and/or an unreasonable determination of the facts. As applied in this case, Oklahoma’s
procedure for death penalty volunteers is constitutionally sound and consistent with Rees.
Accordingly, Petitioner is not entitled to relief on his Ground One.
B.
Grounds Two, Three, and Four.
In his Grounds Two, Three, and Four, Petitioner raises claims relating to the manner
in which his resentencing was conducted, particularly the court’s consideration of evidence
presented at his first trial. In Ground Two, Petitioner asserts that the court should not have
37
been permitted to review and rely upon the transcripts from his first trial without a showing
by the State that the witnesses were unavailable. In Ground Three, Petitioner asserts that he
was denied his right to a fair trial, right to be present, and right to counsel by the court’s outof-court consideration of the transcript evidence, and in Ground Four, Petitioner complains
about hearsay testimony contained in the transcripts. Petitioner presented these claims to the
OCCA, but the OCCA found that the claims were waived due to Petitioner’s waiver of his
appellate rights. Hooper, 142 P.3d at 471. Respondent asserts that these grounds are
procedurally barred. Petitioner, referring back to his Ground One, asserts that his waiver was
invalid and therefore these grounds should not be procedurally barred, but should be
addressed on the merits. Having denying Petitioner relief on his Ground One, the Court finds
that Petitioner’s Grounds Two, Three, and Four are procedurally barred.
In denying Petitioner relief on his Grounds Two, Three, and Four, the OCCA held as
follows:
We have found that [Petitioner] entered a valid waiver of his right to a
direct appeal from his sentences of death. Simply put, by this waiver
[Petitioner] gave up the right to contest evidentiary issues arising in the
resentencing trial. In Propositions II, III, and IV [Petitioner] complains of
particular evidence, or categories of evidence, which he argues the trial court
should not have considered. [Petitioner] has waived these claims and we do
not consider them.
Id. (footnote omitted). “Claims that are defaulted in state court on adequate and independent
state procedural grounds will not be considered by a habeas court, unless the petitioner can
demonstrate cause and prejudice or a fundamental miscarriage of justice.”
38
Smith v.
Workman, 550 F.3d 1258, 1274 (10th Cir. 2008). Petitioner does not challenge the adequacy
or independence of the state procedural rule applied in his case. Petitioner’s only challenge
to the application of a procedural bar to his Grounds Two, Three, and Four is the adequacy
of the waiver of his appellate rights. See Reply, p. 31 (“[T]he resolution of Ground One is
determinative of the issues in Ground[s] Two, Three, and Four.”). Therefore, having found
that the OCCA did not unreasonably determine that Petitioner knowingly and intelligently
waived his right to appeal, the procedural bar to his Grounds Two, Three, and Four is valid
as well and precludes this Court from consideration of their merits. Grounds Two, Three,
and Four are denied.
C.
Ground Five.
In his Ground Five, Petitioner requests cumulative review of his Grounds One through
Four. Although Petitioner acknowledges that this claim is unexhausted, the Court finds that
dismissal of the claim on the merits is the easier course. See 28 U.S.C. § 2254(b)(2) ( “An
application for a writ of habeas corpus may be denied on the merits, notwithstanding the
failure of the applicant to exhaust the remedies available in the courts of the State.”).
Smith v. Mullin, 379 F.3d 919, 927 (10th Cir. 2004) (“Where an issue ‘may be more easily
and succinctly affirmed on the merits,’ judicial economy counsels in favor of such a
disposition.’”) (citation omitted).
“Cumulative-error analysis applies where there are two or more actual errors.” Hoxsie
v. Kerby, 108 F.3d 1239, 1245 (10th Cir. 1997). See United States v. Rivera, 900 F.2d 1462,
39
1469 (10th Cir. 1990) (“The cumulative effect of two or more individually harmless errors
has the potential to prejudice a defendant to the same extent as a single reversible error. The
purpose of a cumulative-error analysis is to address that possibility.”). Because the Court has
found no error, cumulative-error analysis has no application, and Petitioner’s Ground Five
is denied. See Bunton v. Atherton, 613 F.3d 973, 990 (10th Cir. 2010) (“[T]he cumulative
error doctrine does not apply here because we have not found the existence of two or more
actual errors.”); Alverson v. Workman, 595 F.3d 1142, 1162 (10th Cir. 2010) (“Because we
have rejected each of [Petitioner’s] substantive claims of constitutional error, there can be
no cumulative error.”).
IV. Conclusion.
After a thorough review of the entire state court record, the pleadings filed herein, and
the applicable law, the Court finds that Petitioner is not entitled to his requested relief.
Accordingly, Petitioner’s Petition, Doc. 21, is hereby DENIED. A judgment will enter
accordingly.
IT IS SO ORDERED this 20th day of May, 2011.
40
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?