Smith v. Workman

Filing 67

MEMORANDUM OPINION that Petitioner is not entitled to the requested relief. Accordingly, Petitioner's 28 Petition and 35 Motion for Evidentiary Hearing are Denied. Signed by Honorable Timothy D. DeGiusti on 9/16/2014. (mb)

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

MICHAEL DEWAYNE SMITH,
Petitioner,
vs.
ANITA TRAMMELL, Warden,
Oklahoma State Penitentiary,
Respondent.1

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Case No. CIV-09-293-D

MEMORANDUM OPINION
Petitioner, Michael DeWayne Smith, a state court prisoner, has filed a Petition for a
Writ of Habeas Corpus seeking relief pursuant to 28 U.S.C. § 2254. Doc. 28. Petitioner,
who is represented by counsel, is challenging the convictions entered against him in
Oklahoma County District Court Case No. CF-2002-1329. Tried by a jury in August and
September of 2003, Petitioner was found guilty of Burglary in the First Degree (Count 1),
Murder in the First Degree (Counts 2 and 3), Robbery With Firearms (Count 4), and Arson
in the First Degree (Count 5). On Counts 1, 4, and 5, Petitioner received an aggregate
sentence of 85 years and a $25,000 fine. On Counts 2 and 3, the jury found that Petitioner
was a continuing threat and that the murders were especially heinous, atrocious, or cruel, and
Petitioner was sentenced to death on each count (J. Tr. 12, 91; J. Tr. 17, 68-69, 84-85).

1

Pursuant to Fed. R. Civ. P. 25(d), Anita Trammell, who currently serves as warden of the
Oklahoma State Penitentiary, is hereby substituted as the proper party Respondent in this case.

Petitioner has presented ten grounds for relief. Doc. 28. Respondent has responded
to the Petition and Petitioner has replied. Docs. 51 and 58. In addition to his Petition,
Petitioner sought leave to conduct discovery relating to his Ground One. Doc. 29. The Court
denied this request. Doc. 63. Petitioner has also requested an evidentiary hearing. Although
Petitioner’s primary contention is that his Grounds One through Four are matters of law that
warrant relief without a hearing, Petitioner makes an alternative request for an evidentiary
hearing on those grounds. Doc. 35. After a thorough review of the entire state court
record (which Respondent has provided), the pleadings filed herein, and the applicable law,
the Court finds that an evidentiary hearing is unwarranted2 and that Petitioner is not entitled
to the requested relief.
I. Procedural History.
In Case No. D-2003-1120, Petitioner appealed his convictions and sentences to the
Oklahoma Court of Criminal Appeals (hereinafter “OCCA”). In a published opinion,
Smith v. State, 157 P.3d 1155 (Okla. Crim. App. 2007), the OCCA affirmed. Petitioner
sought review of the OCCA’s decision by the United States Supreme Court. His petition for
writ of certiorari was denied on February 19, 2008. Smith v. Oklahoma, 552 U.S.
1191 (2008). Petitioner also filed two post-conviction applications, both of which the OCCA

2

“The purpose of an evidentiary hearing is to resolve conflicting evidence.” Anderson v.
Att’y Gen. of Kansas, 425 F.3d 853, 860 (10th Cir. 2005). If there is no conflict, or if the claim can
be resolved on the record before the Court, then an evidentiary hearing is unnecessary. Id. at 859.
Such is the case here.
2

denied. Smith v. State, 245 P.3d 1233 (Okla. Crim. App. 2010); Smith v. State, No. PCD2005-142 (Okla. Crim. App. Feb. 24, 2009) (unpublished).
II. Facts.
In adjudicating Petitioner’s direct appeal, the OCCA set forth a summary of the
presented evidence. Pursuant to 28 U.S.C. § 2254(e)(1), “a determination of a factual issue
made by a State court shall be presumed to be correct.” Although this presumption may be
rebutted by Petitioner, the Court finds that Petitioner has not done so, and that in any event,
the OCCA’s statement of the facts is an accurate recitation of the presented evidence. Thus,
as determined by the OCCA, the facts are as follows:
[Petitioner] was a member of the Oak Grove Posse, a subset of the Crips
gang in Oklahoma City. On November 8, 2000, three members of the Oak
Grove Posse attempted to rob Tran’s Food Mart in south Oklahoma City. The
three robbers were Teron “T–Nok” Armstrong, Kenneth “Peanut” Kinchion,
and Dewayne “Pudgy–O” Shirley. During the course of the robbery attempt,
the owner of the store shot and killed Armstrong. Kinchion and Shirley were
eventually arrested. [Petitioner] was not involved in the attempted robbery but
had close personal ties to Armstrong.
On Friday, February 22, 2002, two days before the trial of Kinchion and
Shirley was scheduled to start, [Petitioner] left his apartment in the Del Mar
Apartments in Oklahoma City early in the morning. His roommate, Marcus
Berry (also known as Marcus Compton), saw [Petitioner] take a .357 caliber
revolver with him. [Petitioner] went first to Janet Moore’s apartment looking
for her son Phillip Zachary who he believed was a police informant.
[Petitioner] had earlier told Berry that “snitches need to be dead.”
The evidence supports the conclusion that [Petitioner] arrived at
Moore’s apartment sometime before 6:30 a.m. Shoe prints indicated that
[Petitioner] kicked in her front door and then her bedroom door. Moore began
screaming, and, at approximately 6:30 a.m., a downstairs neighbor heard
arguing between a man and a woman and then a single “pop” followed by
footsteps.
3

Later that morning around 7:30 a.m. [Petitioner] arrived at A–Z Mart,
a convenience store approximately fifteen miles from the Del Mar Apartments.
A–Z Mart was immediately next door to Tran’s Food Mart, the site of the
earlier robbery attempt where Armstrong had been killed. The clerk on duty
that morning at A–Z Mart was Sarath “Babu” Pulluru. Pulluru was filling in
for the store owner who was taking the day off. [Petitioner] told detectives that
he emptied two pistols into Pulluru, took some money, and used bottles of
Ronsonol lighter fluid to start fires in the store. [Petitioner] said he set fire to
the cash register, Pulluru’s body, and a back room in order to destroy evidence.
Shoeprints at the scene tracked Pulluru’s blood from the cash register area,
where his body was found, down the aisle to where the Ronsonol lighter fluid
was displayed for sale. The bloody shoe prints at the A–Z Mart were similar
to the shoe prints found at Moore’s apartment.
At 1:00 or 2:00 a.m. the next morning, [Petitioner] returned to his
apartment and told Berry that he had killed Janet Moore. He also told Berry
that he had done something else to “take care of business,” that he had avenged
his family.
At 3:00 or 4:00 a.m., [Petitioner] went to Sheena Johnson’s apartment
and told her that he had killed two people that day. During that conversation,
[Petitioner] told her that he had killed Phillip Zachary’s aunt because Zachary
had been “snitching.” Johnson had already learned of Moore’s murder and told
[Petitioner] that the victim was Zachary’s mother, not his aunt. In response,
[Petitioner] shrugged his shoulders, and said “oh well.” [Petitioner] showed
Johnson how he held his gun when he shot Moore and went on to say that he
had also killed a person at a “chink” store. During his description of the second
homicide, [Petitioner] mentioned something about one of his fellow gang
members having his head blown off during a robbery. He said he would kill
anyone who crossed his family. [Petitioner] also mentioned that someone had
been on television “dissing” his set in regard to that robbery. Subsequently,
Johnson contacted CrimeStoppers and reported the conversation. When she
made that report, [Petitioner] was already in police custody on a different
matter.
Three days after [Petitioner] was detained, detectives interviewed him.
[Petitioner] was given Miranda warnings, waived them, and agreed to talk.
During the interview, [Petitioner] first denied committing the murders, then
admitted only to being present, and finally admitted committing both murders.
He explained he killed both victims in retaliation for wrongs done him or his
family. He told detectives he went to Moore’s apartment looking for her son,
4

that Moore panicked and started screaming, so he had to kill her. He said he
killed Pulluru in retaliation against the store owner who shot Armstrong and
in retaliation for disrespectful comments about Armstrong in the press
attributed to someone from the A–Z Mart Mart [sic]. According to [Petitioner],
as he fired off the initial barrage of bullets, Pulluru asked “what did I do?”
[Petitioner] told him: “[M]y mother-f* * * * * * little homey, my people on the
set, like, bam, bam, before he died I let him know, like this is for my little
homey that’s dead. Bam, bam, bam.” [Petitioner] also told detectives that he
had disposed of the clothes he had worn during the murders, that he had wiped
down Moore’s apartment to eliminate fingerprints, and that he set fire to
whatever he had touched in the A–Z Mart to destroy evidence.
Smith, 157 P.3d at 1160-62. Particular facts will be referenced herein as they relate to the
individual grounds for relief raised by Petitioner.
III. 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 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 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.”

5

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, 556 U.S. 449, 465 (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 authority 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
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
6

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). See Cullen v. Pinholster,
563 U.S. ___, 131 S. Ct. 1388, 1398 (2011) (acknowledging that Section 2254(d) places a
difficult burden of proof on the petitioner). “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.” Harrington v. Richter, 562 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).

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IV. Analysis.
A.

Ground One:

Exculpatory Evidence.

In his first ground for relief, Petitioner asserts that the State withheld exculpatory
evidence regarding two of the State’s witnesses, Sheena Johnson and Marcus Berry. In
affidavits obtained by habeas counsel over six years after Petitioner’s trial, both Ms. Johnson
and Mr. Berry make averments which call into question the validity of their testimony.3
From these affidavits, Petitioner makes four claims for relief. In his first and second claims,
Petitioner contends that he is entitled to relief due to the prosecution’s failure to disclose this
evidence and/or correct the witnesses’ perjured testimony. Petitioner additionally claims that
he was denied the right to an impartial judge and that his trial counsel was ineffective.
Petitioner raised these claims in his second post-conviction proceeding which was initiated
the same day he filed his Petition. The OCCA did not address the merits of the presented
claims, but applied procedural bars. Smith, 245 P.3d at 1238. The parties dispute whether
the applied procedural bars should be respected and enforced by this Court.
The OCCA addressed Petitioner’s claims as follows:
[Petitioner] claims his convictions and sentences are unreliable and
violate his rights to due process and a fair trial. [Petitioner] contends that
recently executed affidavits by trial witnesses Marcus Berry and Sheena
Johnson demonstrate that: (1) the State withheld exculpatory evidence; (2) the
trial judge was biased; and (3) the State failed to correct perjured testimony.

3

An affidavit from Ms. Johnson’s attorney was also obtained. Although Petitioner made
little mention of it in his second post-conviction application, it was, contrary to Respondent’s
assertion, provided to the OCCA. See Second Application for Post-Conviction Relief, Case
No. PCD-2010-150, p. 24 n.8.
8

In their affidavits, Berry and Johnson recant portions of their trial testimony
and claim that they testified falsely because they were threatened and coerced
by police and the trial judge. [Petitioner] contends that the evidence of
coercion and threats against these two witnesses was in the possession of the
police and prosecutors and that this information was exculpatory because it
would have shown that Johnson and Berry’s testimony was not credible.
Sheena Johnson’s affidavit is dated December 9, 2009. In the affidavit,
Johnson alleges that: (1) her children were taken away from her by the trial
judge to force her to testify against [Petitioner]; and (2) she testified falsely
about certain statements [Petitioner] made to her about the Pulluru murder and
that she did so using information police told her to include in her testimony.
Johnson’s allegation about her children being taken from her as coercion was
known at the time of [Petitioner’s] 2003 trial. It was discussed between
[Petitioner’s] trial attorney, the judge, and the prosecutor, in response to the
prosecutor’s objection to [Petitioner’s] cross-examination of Johnson, in which
defense counsel inquired into Johnson’s reasons for testifying.[FN7] Johnson’s
fear about losing her children was also known at the time of [Petitioner’s]
preliminary hearing in 2002, when she stated her belief that if she did not
testify “I would have got arrested and my—I have a three-month-old baby and
he would have—child welfare would have got him” (P.H. 54). Obviously,
Johnson’s fear of having her children taken away from her as retribution for
not testifying was information that was known at the time of [Petitioner’s] trial
and could have been used to raise this issue on direct appeal or in [Petitioner’s]
first application for post-conviction relief. This information cannot serve as the
factual basis for a second application for post-conviction relief.
22 O.S. Supp.2006, § 1089(D)(8).
FN7. See Tr. Vol. 8 at 84–86.
Additionally, the single piece of new information contained in
Johnson’s affidavit (i.e., that she lied about [Petitioner’s] statements
concerning the Pulluru murder under police direction) was certainly available
at the time the affidavit was executed on December 9, 2009, if not earlier.
Under our rules, a second application for post-conviction relief must be filed
within sixty days from the date a previously unavailable factual basis for an
application is discovered. Rule 9.7(G)(3), Rules of the Oklahoma Court of
Criminal Appeals, Title 22, Ch. 18, App (2010). Based on the date of the
affidavit, the factual basis for this claim was known for at least 132 days
before the instant application was filed. Thus this aspect of [Petitioner’s] claim
is also procedurally barred.
9

Marcus Berry’s affidavit is dated January 11, 2010. In the affidavit,
Berry alleges that he testified falsely on a number of points at [Petitioner’s]
trial. Again, under our rules, a second application for post-conviction relief
must be filed within sixty days from the date a previously unavailable factual
basis for an application is discovered. Rule 9.7(G)(3), Rules of the Oklahoma
Court of Criminal Appeals, Title 22, Ch. 18, App (2010). Based on the date of
the affidavit, the factual basis for this claim was known for at least 99 days
before the instant application was filed. This aspect of [Petitioner’s] claim is
procedurally barred.
Smith, 245 P.3d at 1238.
As set forth in its opinion, the OCCA declined to reach the merits of Petitioner’s
claims based on two separate and distinct procedural rules. The first was applied to
Ms. Johnson’s allegations that she was forced to testify at trial in order to get her children
back.4 The OCCA found that these circumstances were borne out by the district court record,
and in fact, they were. When Ms. Johnson testified at the preliminary hearing, she stated that
she came to court “[b]ecause if [she] didn’t, [she] would have gotten arrested . . . .”
Ms. Johnson explained that she had a three-month-old son and if she got arrested, “child
welfare would have got him” (P.H. Tr. 8/9/02, 54). On cross-examination, Ms. Johnson
testified that when she was served with the subpoena, police detectives told her that she could
get arrested if she failed to show up. However, she declined to adopt defense counsel’s
suggestion that she had been threatened by the police. Ms. Johnson testified that she was the
one who was thinking about the consequences for her son if she failed to comply with the
4

Although the OCCA did not specifically address the additional affidavit submitted by
Ms. Johnson’s attorney, it logically falls within the OCCA’s analysis here because the statements
made therein relate to Ms. Johnson’s allegations regarding her children. Presumably, the OCCA did
not reference this additional affidavit in its analysis because Petitioner himself made only scant
reference to the same in his application. See fn.3, supra.
10

subpoena (P.H. Tr. 8/9/02, 83-84). When Ms. Johnson testified at trial, she openly admitted
that she did not want to be there, but that she knew she would get in trouble if she ignored
the subpoena (J. Tr. 8, 26). On cross-examination, defense counsel explored Ms. Johnson’s
concerns that if she did not testify, her children5 might be taken away. Although defense
counsel was not allowed to explore the matter further in front of the jury, a transcribed bench
conference shows that defense counsel was fully aware that Ms. Johnson did not have
custody of her children when she testified (J. Tr. 8, 84-85).6 Applying Okla. Stat. tit. 22,
§ 1089 (D)(8), the OCCA declined to address Petitioner’s claims arising from these facts
because it is clear that any claims related thereto could have been presented on direct appeal
or in Petitioner’s original post-conviction application. The Tenth Circuit has repeatedly
recognized the application of a procedural bar to claims which could have been raised in an
initial post-conviction application but were not. See Bland v. Sirmons, 459 F.3d 999,
1012 (10th Cir. 2006); Medlock v. Ward, 200 F.3d 1314, 1323 (10th Cir. 2000);
Smallwood v. Gibson, 191 F.3d 1257, 1267 (10th Cir. 1999); Moore v. Reynolds, 153 F.3d
1086, 1096-97 (10th Cir. 1998).

5

By the time of trial, Ms. Johnson had two children (J. Tr. 8, 85).

6

Petitioner has provided an affidavit from one of his trial attorneys, L. Wayne Woodyard,
in which Mr. Woodyard states that “[a]t the time of [Ms. Johnson’s] testimony, [he] did not know
that [her] children were in DHS custody.” Petition Attachment 27, p. 1. Whether or not
Mr. Woodyard had actual knowledge of this fact is irrelevant because the record is abundantly clear
that Petitioner’s other attorney, Silas R. Lyman, had such knowledge (J. Tr. 8, 85) (“It goes to bias.
It’s why she’s here, why she’s saying that they’ve threatened her twice, once at the preliminary
hearing, and now and, in fact, it’s come to pass.”) (emphasis added).
11

When a state court applies a state procedural rule to preclude merits consideration of
a claim, a federal habeas court will follow suit if the rule is one which “is independent of the
federal question and adequate to support the judgment.” Coleman, 501 U.S. at 729. Whether
a state-applied procedural bar is adequate and independent is a federal question. Id. at 736
(“federal habeas courts must ascertain for themselves if the petitioner is in custody pursuant
to a state court judgment that rests on independent and adequate state grounds”).
Generally, the matter of adequacy presents the tougher question. English v. Cody,
146 F.3d 1257, 1259 (10th Cir. 1998). Whereas the issue of independence asks only whether
the state court decision rested on state law, as opposed to federal law, the adequacy inquiry
requires the habeas court to determine whether the applicable state procedural rule “is firmly
established and regularly followed.” Smith v. Workman, 550 F.3d 1258, 1274 (10th Cir.
2008). In Spears v. Mullin, 343 F.3d 1215 (10th Cir. 2003), the Tenth Circuit acknowledged
that assessing whether a state procedural-default rule is regularly and consistently applied
requires a court to determine “‘whether the [state] courts’ actual application of the particular
procedural default rule to all similar claims has been evenhanded in the vast majority of
cases.’” Spears, 343 F.3d at 1254 (citing Maes v. Thomas, 46 F.3d 979, 986 (10th Cir.
1995)). “[T]he fact that a state court has overlooked the procedural bar as an ‘occasional act
of grace’ is insufficient to conclude that the procedural bar is inadequate.” Cannon v. Gibson,
259 F.3d 1253, 1268 (10th Cir. 2001) (citing Andrews v. Deland, 943 F.2d 1162, 1190 (10th
Cir. 1991)). See Beard v. Kindler, 558 U.S. 53 (2009) (concluding that even a discretionary
state procedural rule can be adequate).
12

Petitioner asserts, however, that this Court should not recognize the OCCA’s
application of Section 1089(D)(8) because it is neither adequate nor independent. Petitioner
cites Ake v. Oklahoma, 470 U.S. 68 (1985), and Valdez v. State, 46 P.3d 703 (Okla. Crim.
App. 2002), in support of his argument. Petition, p. 97. However, recent cases from the
Tenth Circuit expressly reject Petitioner’s argument. In Black v. Workman, 682 F.3d 880,
914-19 (10th Cir. 2012), and Black v. Tramwell [sic], 485 F. App’x 335 (10th Cir. 2012)
(unpublished), cert. denied, ___ U.S. ___, 134 S. Ct. 73 (2013), the Tenth Circuit found that,
despite Valdez and the cases applying it, the OCCA’s procedural bar to claims presented in
a subsequent post-conviction application is both adequate and independent. In addition to
Black, two additional cases, Banks v. Workman, 692 F.3d 1133, 1144-47 (10th Cir. 2012),
cert. denied, ___ U.S. ___, 133 S. Ct. 2397 (2013), and Thacker v. Workman, 678 F.3d 820,
834-36 (10th Cir. 2012), reached similar conclusions. See also Spears, 343 F.3d at 1254-55.
In light of this authority, Petitioner’s argument fails.
Because the OCCA’s application of Section 1089(D)(8) is both adequate and
independent, the Court cannot consider the merits of the claims arising from Ms. Johnson’s
allegations that she was forced to testify at trial in order to get her children back unless
Petitioner can satisfy an exception. A petitioner may overcome the application of a
procedural bar if he can show either cause and prejudice or a fundamental miscarriage of
justice. Petitioner argues both exceptions.
The first exception, cause and prejudice, requires Petitioner to demonstrate that some
external objective factor, unattributable to him, prevented his compliance with the procedural
13

rule in question. Spears, 343 F.3d at 1255. Petitioner must also show that the failure resulted
in actual prejudice. Thornburg v. Mullin, 422 F.3d 1113, 1141 (10th Cir. 2005). Here
Petitioner asserts that his post-conviction counsel was ineffective. Petitioner contends that
he can rely on the ineffectiveness of his counsel in his first post-conviction application as
cause because one of his trial attorneys, Mr. Woodyard, represented him at trial and on
appeal. Petition, pp. 97-98; Reply, pp. 5-6. However, Respondent is correct that there is no
constitutional right to counsel in post-conviction proceedings, and therefore Petitioner cannot
overcome the application of a procedural bar by claiming that his post-conviction counsel
was ineffective. Coleman, 501 U.S. at 752 (because there is no constitutional right to
representation in state post-conviction proceedings, a petitioner “‘bear[s] the risk of attorney
error that results in a procedural default’”) (quoting Murray v. Carrier, 477 U.S. 478,
488 (1986)); Spears, 343 F.3d at 1255 (citing 28 U.S.C. § 2254(i), Coleman, and Smallwood,
191 F.3d at 1269, for the proposition that “ineffective representation in state post-conviction
proceedings is inadequate to excuse a procedural default”); Thomas v. Gibson, 218 F.3d
1213, 1222 (10th Cir. 2000) (relying on “well-established Supreme Court precedent” to reject
an allegation of cause based upon post-conviction counsel’s representation).7
The second exception can be met by showing that a fundamental miscarriage of justice
will occur if the claim is not heard. The fundamental miscarriage of justice exception

7

This remains unchanged by the Supreme Court’s recent decision in Martinez v. Ryan,
566 U.S. ___, 132 S. Ct. 1309 (2012). Hogan v. Trammell, 511 F. App’x 769, 775 (10th Cir. 2013)
(unpublished), cert. denied, ___ U.S. ___, 134 S. Ct. 645 (2013); Banks, 692 F.3d at 1147-48.
14

addresses those rare instances “where the State has convicted the wrong person of the crime.”
Sawyer v. Whitley, 505 U.S. 333, 340 (1992). Thus, to meet the exception, a petitioner must
make “a colorable showing of factual innocence.” Beavers v. Saffle, 216 F.3d 918, 923 (10th
Cir. 2000). This requires Petitioner to “show that it is more likely than not that no reasonable
juror would have convicted him in the light of the new evidence.” Schlup v. Delo, 513 U.S.
298, 327 (1995). “In the specific context of a sentencing challenge, the Supreme Court has
held actual innocence requires the petitioner to show ‘by clear and convincing evidence that
but for constitutional error, no reasonable juror would find him eligible for the death penalty
under [state] law.’” Brecheen v. Reynolds, 41 F.3d 1343, 1357 (10th Cir. 1994) (quoting
Sawyer, 505 U.S. at 348). See also Black, 682 F.3d at 915-16. Here Petitioner makes two
arguments. First, despite his videotaped confession, Petitioner contends that he is actually
innocent. Petitioner supports his allegation of innocence with three affidavits which amount
to nothing more than abject conjecture. Petition, p. 98 (referencing Petition Attachments 2426). This falls woefully below the standard required to establish a miscarriage of justice
based on actual innocence. Second, regarding his death sentences, Petitioner additionally
asserts that his mental retardation makes him death penalty ineligible. However, for reasons
discussed in Ground Two, infra, the Court finds that Petitioner has not made a sufficient
demonstration that he is mentally retarded.
In summary, for the reasons set forth above, the Court finds that the portion of
Petitioner’s Ground One which is based on Ms. Johnson’s allegations that she was forced to
testify at trial in order to get her children back is procedurally barred. As a result, the entirety
15

of Petitioner’s third claim, concerning the impartiality of the state court trial judge, is
procedurally barred because it is based on Ms. Johnson’s allegations regarding the taking of
her children (and the trial judge’s involvement therewith). Petitioner’s remaining three
claims will be considered hereinafter without consideration of this previously known
information.
The OCCA applied its own Rule 9.7(G)(3) to bar a merits review of the claims arising
from the allegations contained in Mr. Berry’s affidavit and the new allegations contained in
Ms. Johnson’s affidavit. This rule provides as follows: “No subsequent application for
post-conviction relief shall be considered by [the OCCA] unless it is filed within sixty (60)
days from the date the previously unavailable legal or factual basis serving as the basis for
a new issue is announced or discovered.” Affording Petitioner the greatest deference, the
OCCA used the execution dates of each affidavit as the starting time for the permitted 60-day
filing period. Accordingly, Petitioner had until February 7, 2010, to file new claims based
on Ms. Johnson’s affidavit, and until March 12, 2010, to file new claims based on
Mr. Berry’s affidavit. Because Petitioner did not file his second post-conviction application
until April 20, 2010, the OCCA applied Rule 9.7(G)(3) to bar a merits review of this newly
discovered information. Smith, 245 P.3d at 1238.
Although the OCCA’s 60-day rule is straightforward, operating like a statute of
limitations, the extensive arguments presented by the parties show that the issue of whether
Rule 9.7(G)(3) should be enforced as a procedural bar in this case is both complex and
debatable. In addition to whether the rule is adequate, there is also a question as to the effect
16

of the OCCA’s order granting Petitioner an extension of time to file his second postconviction application.8 Rather than address these “thorny procedural issues,” the Court
finds that the better course is to avoid these “procedural complications” and “dispose[] of
[Petitioner’s remaining claims] in straightforward fashion on substantive grounds.”
Revilla v. Gibson, 283 F.3d 1203, 1210-11 (10th Cir. 2002). See also Hooks v. Workman,
689 F.3d 1148, 1179 (10th Cir. 2012) (applying Revilla). De novo review applies. Wood v.
Milyard, 721 F.3d 1190, 1194 (10th Cir. 2013); Littlejohn v. Trammell, 704 F.3d 817,
861 (10th Cir. 2013).
As previously noted, in his first and second claims, Petitioner contends that he is
entitled to relief due to the prosecution’s failure to disclose exculpatory evidence and/or
correct perjured testimony. In his fourth claim, Petitioner additionally asserts that his trial
counsel was ineffective for either (1) “failing to investigate, uncover and present [the
exculpatory evidence] to [the] jury” or (2) failing to do something with the exculpatory
evidence if they in fact had knowledge of it. Petition, p. 19. Petitioner describes both
Ms. Johnson and Mr. Berry as key witnesses. Petitioner asserts that they were the reason his
murder charges were jointly tried, and that their testimony was used to corroborate his
confession and prove his guilt. Petition, p. 9.

8

Given the arguments presented in the Reply against the application of a procedural bar
based on Rule 9.7(G)(3), it would have been beneficial to receive an additional response from
Respondent.
17

Before delving into the merits of Petitioner’s claims, the Court must note its grave
doubt about the averments made by Ms. Johnson and Mr. Berry, especially under the facts
and circumstances of this case. As Justice Brennan once stated, “[r]ecantation testimony is
properly viewed with great suspicion. It upsets society’s interest in the finality of
convictions, is very often unreliable and given for suspect motives, and most often serves
merely to impeach cumulative evidence rather than to undermine confidence in the accuracy
of the conviction.” Dobbert v. Wainwright, 468 U.S. 1231, 1233-34 (1984) (Brennan, J.,
dissenting from the denial of certiorari and application for stay). At trial, both of these
witnesses made it abundantly clear that they did not want to testify against Petitioner.
Petitioner is a Crips gang member and the crimes he committed were gang related.
Ms. Johnson testified at trial that she was scared and that she was testifying against Petitioner
only because she was under court order to appear (J. Tr. 8, 26). Mr. Berry, who was only
fifteen years old when the crimes were committed and sixteen when he testified, was
Petitioner’s roommate. Mr. Berry described Petitioner as his “close friend, more like a
cousin.” Like Ms. Johnson, Mr. Berry was afraid to testify and the only reason he did was
because he had been subpoenaed. Mr. Berry’s reluctance to testify was so apparent that the
trial court permitted the prosecution to question him as a hostile witness (J. Tr. 5, 79-89,
119).
In Brady v. Maryland, 373 U.S. 83, 87 (1963), the Supreme Court held “that the
suppression by the prosecution of evidence favorable to an accused upon request violates due
process where the evidence is material either to guilt or to punishment, irrespective of the
18

good faith or bad faith of the prosecution.” Favorable evidence includes impeachment
evidence. United States v. Bagley, 473 U.S. 667, 676 (1985). “[E]vidence is material ‘if
there is a reasonable probability that, had the evidence been disclosed to the defense, the
result of the proceeding would have been different.” Strickler v. Greene, 527 U.S. 263,
280 (1999) (quoting Bagley, 473 U.S. at 682).
Regarding false testimony, “the [Supreme] Court has consistently held that a
conviction obtained by the knowing use of perjured testimony is fundamentally unfair, and
must be set aside if there is any reasonable likelihood that the false testimony could have
affected the judgment of the jury.” United States v. Agurs, 427 U.S. 97, 103 (1976)
(footnotes omitted). “The same result obtains when the State, although not soliciting false
evidence, allows it to go uncorrected when it appears.” Napue v. Illinois, 360 U.S. 264,
269 (1959).
Finally, claims of trial counsel ineffectiveness are governed by Strickland v.
Washington, 466 U.S. 668 (1984). To obtain relief under Strickland, a petitioner must show
that his counsel’s performance was deficient and that he was prejudiced by it. Strickland,
466 U.S. at 687. Beyond pointing to an error or omission on the part of trial counsel,
Strickland requires a showing of actual prejudice. Id. at 687. Petitioner “must show 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.

19

Applying the foregoing authority to Petitioner’s claims, the Court concludes that no
relief is warranted. Given all of the presented evidence, and particularly Petitioner’s
confession, the averments made by Ms. Johnson and Mr. Berry do not cause this Court to
question the outcome of Petitioner’s trial.9
Beyond the allegations regarding her children (which as discussed above have been
procedurally barred), Ms. Johnson makes two statements in her affidavit regarding her
testimony at trial. Ms. Johnson states that although Petitioner never made such comments
to her, police detectives told her to testify that Petitioner told her (1) he set the convenience
store clerk and the cash register on fire; and (2) why he shot the convenience store clerk.
Petition Attachment 12. In addition to discussing the circumstances surrounding his
videotaped statement to police, Mr. Berry asserts that the police told him what to say, both
before and during the interview. Particularly, Mr. Berry asserts that he was told that he
“shouldn’t say anything about PCP because it would make [Petitioner] look bad.” Mr. Berry
claims that he first learned of Phillip Zachary, Ms. Moore’s son, from the police, and that he
had “never heard [Petitioner] call him a snitch.” Mr. Berry additionally states that two of his
statements made during his interview were assumptions: (1) that he saw the butt of a .357
revolver on Petitioner’s person before the murders; and (2) that Petitioner told him that he
killed Ms. Moore. Finally, Mr. Berry asserts that although he was a member of Petitioner’s

9

This Court makes this determination without any consideration of the additional affidavits
produced by Respondent in opposition.
20

gang at the time of trial, he covered up a gang-affiliated tattoo at the request of the police in
order to “look presentable.” Petition Attachment 10.
Assuming that all of this new information had been made known to defense counsel
and presented to Petitioner’s jury, there is no reasonable probability or likelihood that the
jury’s verdicts would have been affected. First and foremost, Petitioner confessed, and his
confession was recorded on videotape. The recorded confession was shown to the jury
during stage one (in redacted form) and stage two (unredacted) of Petitioner’s trial (J. Tr. 10,
10-14; J. Tr. 14, 79-80, 85, 89; State’s Exhibits 85 and 124). In his confession, Petitioner
admits to killing both Ms. Moore and Mr. Pulluru. With respect to Ms. Moore, Petitioner
stated that he knew Ms. Moore’s son, Phillip; that Phillip was a snitch; that he told numerous
people that Phillip was a snitch; and that he did not like snitches. Petitioner stated that
Ms. Moore was killed because she was in the wrong place at the wrong time. Although he
was looking for Phillip and did not go to the apartment to kill Ms. Moore, Petitioner stated
that because she panicked, he had no choice. On the videotape, Petitioner demonstrates the
way he shot Ms. Moore, and the way he wiped down anything he had touched to remove
fingerprints. Petitioner went directly from Ms. Moore’s apartment to the convenience store.
Petitioner admitted to killing Mr. Pulluru in retaliation for statements made in the newspaper
about a fellow Crips gang member (T-Nok) who had been killed at a neighboring
convenience store during a robbery. Petitioner stated that he shot Mr. Pulluru with multiple
bullets from two .357 handguns. After the killing, Petitioner poured “gas” on Mr. Pulluru
and the cash register and set a fire to cover the evidence.
21

In light of Petitioner’s confession, Ms. Johnson’s post-trial averments that a portion
of her testimony was made at the urging of the police is without consequence. As noted
above, in his confession, Petitioner himself provides these details. In addition, and contrary
to Petitioner’s assertions, this portion of her testimony was not needed to establish
corroboration of his confession. See Smith, 157 P.3d at 1174 (citing Fontenot v. State,
881 P.2d 69, 77-78 (Okla. Crim. App. 1994), for the proposition that in order “[f]or a
confession to be sufficiently reliable to support a conviction, it must be supported by
substantial independent evidence tending to establish its trustworthiness”). Beyond other
testimony given by Ms. Johnson regarding not only the murder of Mr. Pulluru but Ms. Moore
as well, Petitioner’s confession was corroborated by the crime scene evidence, including
expert testimony that the same gun was used in both murders, and medical testimony
regarding the manner in which both victims were killed. In addition, there was the evidence
of Ms. Johnson’s calls to Crime Stoppers, a police hotline. Prior to Petitioner’s interview by
police, Ms. Johnson called the hotline and stated that Petitioner had committed both crimes.
At that point, the only other persons who knew the crimes were connected were Petitioner,
the police, and the ballistics expert (M. Tr. 5/12/03, 17-19; Defendant’s Exhibit 1) (J. Tr. 8,
42, 56-59; J. Tr. 9, 115-19, 190-91). This was significant and unchallenged evidence
connecting the crimes.

22

Regarding Mr. Berry’s post-trial averments, the Court views them with the utmost
skepticism.10 Mr. Berry’s affinity for Petitioner was ever-apparent at trial, where his struggle
to testify against Petitioner brought forth wavering and inconsistent testimony. As noted
above, after testifying on direct examination inconsistently with his videotaped interview,
Mr. Berry was declared a hostile witness. He was then impeached by the prosecution with
his videotaped statements several times (J. Tr. 5, 78-119). See Smith, 157 P.3d at 1172 n.14
(treating the prosecution’s use of the videotape as impeachment evidence). However, even
after being impeached on direct examination with his videotaped statements, Mr. Berry’s
testimony continued to oscillate. For example, Mr. Berry testified on direct examination that
Petitioner told him that “[s]nitches need to be in ditches,” but on cross-examination he
testified that Petitioner never said that. On redirect, Mr. Berry testified that Petitioner said,
“They just need to be dead” (J. Tr. 5, 106, 124, 137). In addition, regarding whether or not
Petitioner told Mr. Berry that he killed Ms. Moore, Mr. Berry testified on direct examination
that Petitioner both did and did not, then testified on cross-examination that he did not, and
then on redirect examination that he did (J. Tr. 5, 83, 111-13, 128-29, 138). Given this
history, Mr. Berry’s credibility has been impugned, making it impossible to determine which
version is the truth.

10

This skepticism is only heightened by a viewing of Mr. Berry’s videotaped interview with
a case investigator. In the interview, a female investigator questioned Mr. Berry in a conversational
tone, and Mr. Berry appeared reasonably relaxed and confident in his answers. No indications of
coaching or coercion are apparent in the interview.
23

In addition to the inherent credibility problem with Mr. Berry, the Court finds that like
Ms. Johnson, Mr. Berry’s post-trial averments do not cause the Court to question whether
this information would have affected the outcome of Petitioner’s trial. Again, this is a case
with a detailed confession. As outlined above, in his confession, Petitioner admits that he
killed both Ms. Moore and Mr. Pulluru, and Petitioner’s confession is overwhelmingly
corroborated by Ms. Johnson’s Crime Stoppers calls and her testimony at both the
preliminary hearing and trial, the physical evidence, and the expert testimony. See Smith,
157 P.3d at 1173 n.15 (finding that even if Mr. Berry’s testimony is entirely discounted,
Ms. Johnson’s testimony regarding Ms. Moore’s murder is sufficient to corroborate
Petitioner’s confession and link Petitioner to the murder).
For the foregoing reasons, the Court finds that Petitioner is not entitled to relief on the
first, second, and fourth claims presented in his Ground One. Having reviewed these claims
on the merits, the Court finds that Petitioner has failed to show that the prosecution withheld
material evidence, that his convictions were obtained through the use of perjured testimony,
or that his trial counsel was ineffective. Having previously determined that Petitioner’s third
claim is procedurally barred, the Court hereby denies Petitioner’s Ground One in its entirety.

24

B.

Ground Two:

Mental Retardation.11

In Ground Two, Petitioner asserts that in accordance with the Supreme Court’s
decision in Atkins v. Virginia, 536 U.S. 304 (2002), his death sentences cannot stand because
he is mentally retarded. Petitioner raised this claim for the first time in his second postconviction application. Although the OCCA ultimately found Petitioner’s claim to be
procedurally barred, it did so only after concluding, through the lens of ineffective assistance
of counsel, that the underlying claim was without merit. Smith, 245 P.3d at 1235-38.
Because Petitioner’s claim is easily disposed of, the Court elects to bypass the procedural bar
issue, review Petitioner’s claim de novo, and deny relief on the merits. Revilla, 283 F.3d at
1210-11.
Under Oklahoma law, mental retardation is defined as “significantly subaverage
general intellectual functioning, existing concurrently with significant limitations in adaptive
functioning.” Okla. Stat. tit. 21, § 701.10b(A)(1).12 Oklahoma law recognizes that “[a]n
intelligence quotient of seventy (70) or below on an individually administered, scientifically
recognized standardized intelligence quotient test administered by a licensed psychiatrist or
psychologist is evidence of significantly subaverage general intellectual functioning[,]” and
“[i]n determining the intelligence quotient, [Oklahoma law mandates that] the standard
11

For the reasons acknowledged by the Tenth Circuit in Howell v. Trammell, 728 F.3d 1202,
1206 n.1 (10th Cir. 2013), and Hooks, 689 F.3d at 1159 n.1, the Court will use the terms “mental
retardation” and “mentally retarded” in its discussion of Petitioner’s Ground Two.
12

Oklahoma law also requires that “the onset of the mental retardation must have been
manifested before the defendant attained the age of eighteen (18) years.” Okla. Stat. tit. 21,
§ 701.10b(B).
25

measurement of error for the test administrated . . . be taken into account.” Giving
consideration to the standard error of measurement, Oklahoma law additionally provides that
“in no event shall a defendant who has received an intelligence quotient of seventy-six (76)
or above on any individually administered, scientifically recognized, standardized
intelligence quotient test administered by a licensed psychiatrist or psychologist, be
considered mentally retarded . . . .” Okla. Stat. tit. 21, § 701.10b(C) (emphasis added).
It is undisputed that Petitioner received two I.Q. scores of 76 or above. In 2001, at
the age of 18, Petitioner received an I.Q. score of 76, and in 2003, in preparation for trial,
Petitioner received an I.Q. score of 79. In accordance with Oklahoma law, these scores
prevent Petitioner from being considered mentally retarded. Nevertheless, Petitioner
contends that when these scores are adjusted for the Flynn Effect, they fall within
Oklahoma’s parameters for mental retardation. The problem with this argument, however,
is that Oklahoma does not recognize the Flynn Effect, and to date, its consideration has not
been mandated by the Supreme Court.13 See Hooks, 689 F.3d at 1169-70 (referencing the
OCCA’s decision in Petitioner’s case; noting that “Atkins does not mandate an adjustment
for the Flynn Effect[;]” and acknowledging that even if the Circuit believed that the Flynn
Effect should be considered, it could not so hold on habeas review); Smith, 245 P.3d at 1237
n.6 (noting that “[t]he Flynn Effect has not achieved universal acceptance in courts where

13

In Hall v. Florida, 572 U.S. ___, 134 S. Ct. 1986 (2014), the Supreme Court recently found
Florida’s I.Q. test score cutoff of 70 to be unconstitutional. Unlike Oklahoma, Florida did not take
into consideration the standard error of measurement. Hall, 134 S. Ct. at 1994-96. Petitioner’s
request to file supplemental briefing on the applicability of Hall was denied. Doc. 66.
26

it has been raised” and that regardless of its validity, it is not a part of Oklahoma’s statutory
scheme). For these reasons, Petitioner’s Ground Two lacks merit and is hereby denied.
C.

Ground Three:

Miranda14 Waiver.

In Ground Three, Petitioner asserts that his confession should not have been admitted
against him at trial because he did not knowingly, voluntarily, or intelligently waive his
constitutional rights. Petitioner also claims that his trial, appellate, and post-conviction
counsel were all ineffective for failing to fully investigate and present all evidence relevant
to this claim. Petitioner presented these claims to the OCCA on direct appeal and in his
second post-conviction application. The OCCA addressed the merits of the claims and
denied relief.15 Smith, 245 P.3d at 1238-42; Smith, 157 P.3d at 1170-72. Therefore, the
question is whether the OCCA’s decisions are contrary to or an unreasonable application of
Supreme Court law. The Court easily concludes that they are not.
In his Petition, Petitioner challenges the OCCA’s direct appeal decision on several
grounds. First, Petitioner asserts that the OCCA made an unreasonable determination of the
facts by characterizing his behavior during the interrogation as calm. He also takes issue

14

Miranda v. Arizona, 384 U.S. 436 (1966).

15

Although Respondent asserts that Petitioner’s ineffectiveness claims were procedurally
barred by the OCCA, the Court disagrees. Because one of Petitioner’s attorneys represented him
at trial and on direct appeal, the OCCA addressed the merits of Petitioner’s claims through the lens
of ineffective assistance of post-conviction counsel. Nowhere in its disposition of Petitioner’s
ineffectiveness claims does the OCCA even reference, much less apply, its procedural rules.
Because the OCCA addressed Petitioner’s ineffectiveness claims on the merits, it is subject to
AEDPA deference. Richter, 131 S. Ct. at 784-85 (“[I]t may be presumed that the state court
adjudicated the claim on the merits in the absence of any indication or state-law procedural
principles to the contrary.”).
27

with the state courts’ failure to consider and receive evidence about his level of intelligence.
Finally, Petitioner contends that the OCCA’s decision is in conflict with Rogers v.
Richmond, 365 U.S. 534 (1961), “because the state courts impermissibly focused on the
substance of [his] statement in finding a waiver.” Petition, p. 44.
Relevant to Petitioner’s challenges, the OCCA on direct appeal held as follows:
In this proposition, [Petitioner] claims his in-custody extrajudicial
confession should not have been admitted as evidence because his waiver of
Miranda [FN10] rights was unknowing and involuntary. [Petitioner] also
claims that the district court did not apply the correct constitutional standards
in evaluating whether he voluntarily and knowingly waived his Miranda rights.
FN10. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d
694 (1966).
To determine whether a confession is the result of free and
unconstrained choice we look to the totality of the circumstances surrounding
it, including the defendant’s character and the details of the interrogation.
Salazar v. State, 1993 OK CR 21, ¶ 12, 852 P.2d 729, 733. The State must
prove the validity of a Miranda waiver by a preponderance of the evidence.
Le v. State, 1997 OK CR 55, ¶ 7, 947 P.2d 535, 542. Where sufficient
evidence supports the trial court’s in camera ruling that a defendant’s
statements are voluntary, we will not disturb that ruling. Id.
....
[Petitioner] . . . argues that he was incapable of knowingly and
voluntarily waiving his rights because he was under the influence of the drug
Phencyclidine (PCP) at the time he was interrogated. [Petitioner] was arrested
at 12:27 p.m. on February 24, 2002. Detectives conducted the interview in
question three days later on February 27th at 8:30 p.m. At the Jackson v.
Denno [FN11] hearing held to determine the admissibility of the videotaped
confession, [Petitioner] put on evidence that he was a long term PCP user.
Additionally, in the interview tape itself, [Petitioner] admits to being under the
influence of the drug at the time of his arrest three days earlier. The arresting
officer testified that at the time of arrest, [Petitioner] appeared to be under the
influence of drugs. Jailers at the Oklahoma County Jail testified that
28

[Petitioner] appeared to be under the influence of drugs to such an extent that
when he was initially processed into the facility he had to be restrained and
placed in isolation. A day later, [Petitioner] was released into the general
population, and the interrogation did not occur until at least one day after that.
Thus, the interrogation in which [Petitioner] waived his Miranda rights took
place three days after his arrest, and presumably, at least three days after he
ingested his last dose of PCP. The interrogating officers testified that at the
time of the interview, [Petitioner] did not appear to be under the influence of
drugs or alcohol. The videotape of the confession interview displays a coherent
[Petitioner] calmly conversing with detectives, giving rational answers to their
questions, and apparently capable of understanding the Miranda warnings
provided by the interrogating officers. This record provides more than
sufficient evidence to support the district court’s determination that [Petitioner]
knowingly and voluntarily waived his rights under Miranda.[FN12]
FN11. Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d
908 (1964), established a defendant’s right to an in camera hearing on
the voluntariness of a confession.
FN12. In any event, even if [Petitioner] was still under some lingering
effects of PCP at the time of his videotaped interview, “[s]elf-induced
intoxication, short of mania, or such an impairment of the will and mind
as to make the person confessing unconscious of the meaning of his
words, will not render a confession inadmissible, but goes only to the
weight to be accorded to it.” Coddington, 2006 OK CR 34, ¶ 38, 142
P.3d at 448 (quoting Moles v. State, 1974 OK CR 57, ¶ 6, 520 P.2d
822, 824).
[Petitioner] also argues that the district court failed to properly evaluate
the validity of the Miranda waiver under the totality of the circumstances
standard. [Petitioner’s] specific complaint is that the judge refused to allow a
neuropsychologist, Dr. Bianco, to testify at the suppression hearing as to his
[[Petitioner’s]] intelligence. According to [Petitioner], Dr. Bianco’s testimony
was necessary to establish that he was of low intelligence and as a result was
unable to comprehend the nature or consequences of the rights he was waiving.
[Petitioner] also complains that the trial judge improperly relied on her
observations of him in the interrogation videotape in reaching her conclusion
about his intelligence. He argues that the videotape improperly focused the
attention of the judge on issues relating to his culpability rather than his ability
to voluntarily waive his right to remain silent.

29

At the suppression hearing, [Petitioner] made a detailed offer of proof
as to Dr. Bianco’s proposed testimony. Specifically, [Petitioner] offered that
Dr. Bianco would testify as to [Petitioner’s] intelligence level as determined
by various tests. [Petitioner] also proffered that the doctor would advise the
court on his observations of the differences between [Petitioner’s] conduct as
depicted on the confession videotape and [Petitioner’s] conduct during an
interview conducted by the doctor over a year later. The Court rejected the
offer of proof and ruled Dr. Bianco’s testimony not relevant to the question of
the validity of [Petitioner’s] waiver.
We have reviewed the trial court’s rationale for denying Dr. Bianco’s
testimony and agree that the proffered expert testimony was not relevant.
Moreover, the numerous examples cited by the district court judge of her
observations of various aspects of [Petitioner’s] conduct and statements during
the interview and the court’s explanation of how those examples illustrated a
sufficient level of intelligence convince us that the district court did not
confuse the substance of the taped confession and its relevance to the issue of
culpability with the substance of the tape as evidence of [Petitioner’s] mental
abilities. The record shows the trial court judge had sufficient evidence before
her to find by a preponderance of evidence that [Petitioner] knowingly and
voluntarily waived his Miranda rights. This proposition of error is denied.
Smith, 157 P.3d at 1170-72.
Within its analysis, the OCCA specifically found that “[t]he videotape of the
confession interview displays a coherent [Petitioner] calmly conversing with detectives,
giving rational answers to their questions, and apparently capable of understanding the
Miranda warnings provided by the interrogating officers.” Id. at 1171. This finding of fact
is presumed correct absent a “clear and convincing” showing by Petitioner that it is incorrect.
28 U.S.C. § 2254(e)(1). Petitioner takes issue with the finding, asserting that he answered
“questions in an increasingly animated manner with multiple, aberrant vocal inflections,
inappropriate for the situation.” Petition, p. 42.

30

The Court finds that Petitioner has not overcome the presumption of correctness
because the OCCA’s characterization of his interview is accurate. Petitioner has repeatedly
asserted that he was under the influence of PCP at the time the interview was conducted;
however, his behavior in the interview is in stark contrast to the evidence Petitioner presented
regarding his behavior while under the influence of PCP. As detailed in his Petition, when
under the influence of PCP, Petitioner’s behavior has been described as “erratic,” “‘out of
control,’” “uncooperative,” “threatening,” “‘belligerent,’” “‘irrational,’” and “‘combative.’”
Petition, pp. 38-40 (citations omitted). Given this evidence, Petitioner’s behavior in the
interview was relatively calm. Petitioner was animated at some points during the interview,
but his behavior did not appear extraordinary or out of context for a gang member being
interviewed about multiple murders by two police detectives. It is interesting to note as well
that after questioning ended, Petitioner was videotaped for an extended period of time as he
sat alone in the room. Petitioner did not appear nervous or anxious during this time, but was
calm and waited patiently. When he needed something, he compliantly knocked on the door
and made his requests in a respectful manner. For these reasons, the Court finds that
Petitioner has failed to show that the OCCA made an unreasonable determination of the facts.
Petitioner also takes issue with the state courts’ failure to consider and receive
evidence about his level of intelligence. Petitioner faults the OCCA for not applying the
complete Miranda standard for assessing the validity of a waiver, and he faults the state trial
court for excluding expert testimony about his low intelligence. In Miranda, the Supreme
Court held that a defendant may waive his Miranda rights “provided the waiver is made
31

voluntarily, knowingly and intelligently.” Miranda, 384 U.S. at 444. In Moran v. Burbine,
475 U.S. 412, 421 (1986), the Supreme Court found that a Miranda waiver “has two distinct
dimensions.”
First, the relinquishment of the right must have been voluntary in the sense that
it was the product of a free and deliberate choice rather than intimidation,
coercion, or deception. Second, the waiver must have been made with a full
awareness of both the nature of the right being abandoned and the
consequences of the decision to abandon it. Only if the “totality of the
circumstances surrounding the interrogation” reveal both an uncoerced choice
and the requisite level of comprehension may a court properly conclude that
the Miranda rights have been waived.
Id. (citations omitted). The Court finds that Petitioner has not shown that the state courts’
determination that Petitioner effectuated a valid waiver of Miranda rights is contrary to or
an unreasonable application of Supreme Court law.
First, from a plain reading of the OCCA’s opinion, it is clear that the OCCA fully
grasped the issue at hand and assessed it in light of constitutional principles. At the onset of
its analysis, the OCCA set forth the following standard of review:
To determine whether a confession is the result of free and
unconstrained choice we look to the totality of the circumstances surrounding
it, including the defendant’s character and the details of the interrogation. The
State must prove the validity of a Miranda waiver by a preponderance of the
evidence. Where sufficient evidence supports the trial court’s in camera ruling
that a defendant’s statements are voluntary, we will not disturb that ruling.
Smith, 157 P.3d at 1170 (citations omitted). This standard is consistent with Supreme Court
authority.
Second, although the OCCA found no error in the trial court’s exclusion of expert
testimony regarding Petitioner’s purportedly low intelligence, it is clear that Petitioner’s
32

ability to comprehend his rights and effectuate a wavier thereof was fully considered by both
courts in their rulings. In its opinion, the OCCA acknowledged “the numerous examples”
referenced by the trial judge which convinced her that Petitioner was of sufficient
intelligence and that no expert testimony was necessary on that point. Smith, 157 P.3d at
1171. These examples included the following:
(1)

“I mean, having watched the tape [Petitioner] is very cocky. He is
extremely verbal about how he tricks people and misleads them and has
got them convinced how crazy he is. He obviously can read because he
talks about how he read the newspaper that day to see the clerk’s
comments and as part of his retaliation” (M. Tr. 5/21/03, 39);

(2)

“Now, the fact that he’s a low intelligence I don’t think is a huge
surprise to anybody based on the fact that we all deal with criminal law
and most of the Defendants who come in here are not rocket scientists.
Is there any law that says that I am to take that into consideration in
Jackson v. Denno? Even someone of low intelligence. He obviously
was able to plan how to switch clothes with different people and
conceal his identity, confuse people. I mean, I’m thinking that’s a
pretty smart cookie, street smart anyway” (M. Tr. 5/21/03, 40);

(3)

“[Petitioner] talks about how he was hiding at different places when the
police were looking for him and he was able to conceal himself and
persuade other people to help him in his conspiracy to remain free from
arrest. I don’t know a whole lot about gangs, but this is a guy who said
he didn’t have a job and the Crips are known to be a little more violent
than some of the other gangs. And he’s able to get apartments and to
do this and to do that. I’m thinking he got the money somewhere, so
that would tell me that he’s somewhat smart. And so if he’s smart
enough to do all of those different things, identify neighborhoods where
different sets are at, talk about different kinds of gang activities, he
knows all the gang task force. I mean, he talks openly about what he
is willing to give up to the cops and what he isn’t and, you know. I
mean, I can’t see that what you’re going to tell me in regard to him
being of low intelligence is going to establish that he didn’t understand
what he was doing when he waived Miranda” (M. Tr. 5/21/03, 40-41);

33

(4)

“So, we don’t have a situation where in my opinion there’s been an
issue raised on the videotape that he clearly didn’t understand. I can
foresee a situation where perhaps someone in the interview process
would be so clearly disoriented or unable to comprehend, that then the
testimony would be relevant whether or not he possessed that ability.
But, you know, I’ve got an hour and a half to two hours of watching
somebody who was extremely animated and disturbingly explanatory
about the murders he committed and how they were other people’s
fault. So, I don’t think that I see any relevance to what you’re prepared
to put before the Court for the purposes of this hearing” (M.
Tr. 5/21/03, 41-42);

(5)

What I’m saying is that the truth or the veracity of the statement or
examples that I gave, I’m giving you as examples of his ability to
reason, make intelligent decisions, to co-op other people into his plan
and to understand perfectly the consequences of his actions as he’s
trying to avoid capture. And I’m saying nothing in that indicates to me
that this is a person who doesn’t understand or is - - raises the kinds of
issues that would require me, I think, to hear the testimony of your
expert” (M. Tr. 5/21/03, 42-43); and

(6)

“Well, I’m going to summarize by saying that I do believe that there are
circumstances under which the testimony that you have proffered by
this expert would be relevant. The State’s Exhibit 1 that I watched, I
don’t believe causes those issues to arise here. I believe that there are
many indicias [sic] demonstrated that this Defendant possessed
intelligence and certainly I have no way of gauging his intelligence
level or malingering. I don’t purport to know any of those things, but
over a two-hour period of time, he demonstrated in many different ways
his understanding of what was going on. I don’t believe that specific
testimony regarding his specific IQ range would be relevant . . .
(M. Tr. 5/21/03, 50).

From this record, it is clear that the trial judge considered Petitioner’s “requisite level of
comprehension” in determining the validity of the Miranda waiver. Moran, 475 U.S. at 421.
It is also clear that the OCCA considered these examples of intellectual functioning to find
that “the trial court judge had sufficient evidence before her to find by a preponderance of

34

evidence that [Petitioner] knowingly and voluntarily waived his Miranda rights.” Smith,
157 P.3d at 1171-72.
Petitioner’s final argument with respect to the OCCA’s direct appeal opinion is that
it conflicts with the Supreme Court’s decision in Rogers. In Rogers, 365 U.S. at 543-44, the
Supreme Court held that the veracity of confession is not to be considered in determining its
admissibility.
[F]or purposes of the Federal Constitution, . . . the question [is] whether the
behavior of the State’s law enforcement officials was such as to overbear
petitioner’s will to resist and bring about confessions not freely selfdetermined—a question to be answered with complete disregard of whether or
not petitioner in fact spoke the truth.
Id. at 544. Contrary to Petitioner’s assertion, however, neither the trial court nor the OCCA
violated the principle announced in Rogers. As the OCCA found, the Court agrees that the
examples and explanations given by the trial judge show “that [she] did not confuse the
substance of the taped confession and its relevance to the issue of culpability with the
substance of the tape as evidence of [Petitioner’s] mental abilities.” Smith, 157 P.3d at 1171.
Petitioner additionally asserts that his trial, appellate, and post-conviction counsel
were all ineffective for failing to fully investigate and present all evidence relevant to the
constitutional validity of his Miranda waiver. Specifically, Petitioner asserts that counsel
should have (1) conducted further investigation regarding his PCP intoxication and
(2) should have investigated and presented evidence of his organic brain damage and mental
retardation. Petition, p. 45. Petitioner presented these arguments to the OCCA in his second

35

post-conviction application. The Court finds that the OCCA denied relief on the merits in
a thorough and well-reasoned application of the Strickland standard.
Regarding the PCP intoxication issue, the OCCA found that Petitioner was not
prejudiced by counsel’s failure to further develop this issue. Smith, 245 P.3d at 1239-41.
Reviewing the evidence which trial counsel presented as well as the additional evidence
Petitioner asserts should have been presented, the OCCA concluded as follows:
We find that this proffered evidence is insufficient to show that trial
counsel was ineffective. Specifically, we are convinced that expert testimony
such as that contained in these two reports would not have changed the district
court’s decision on the voluntariness of [Petitioner’s] waiver or our opinion on
direct appeal affirming that decision. See Strickland, 466 U.S. at 693–94,
104 S.Ct. at 2067–68 (holding that to establish prejudice sufficient to warrant
finding of ineffective assistance, “[t]he defendant must show that there is a
reasonable probability that, but for counsel’s unprofessional errors, the result
of the proceeding would have been different”).
In finding that [Petitioner] voluntarily waived his Miranda-warned
rights, the district court had already heard Dr. Kupiec’s testimony explaining
that [Petitioner] could have been experiencing lingering effects of PCP
intoxication when he was interviewed three days after his arrest. Dr. Saint
Martin and Dr. Mash’s reports add nothing new in this regard. The only things
that Dr. Saint Martin and Dr. Mash add are their observations of [Petitioner’s]
conduct during the interview and their opinions based on those observations
that [Petitioner] was of such limited intellectual functioning and so intoxicated
by PCP at the time he waived his Miranda-warned rights that he could not
understand what he was doing.
While the trial court sitting as the trier of fact in this instance did not
have Dr. Mash or Dr. Saint Martin’s opinions before her, she did hear a proffer
from defense counsel that a neuropsychologist, Dr. Faust Bianco, would testify
as to [Petitioner’s] low intelligence and how his slowness in processing
information would have been exacerbated by PCP. The court was also told that
Dr. Bianco would testify as to the differences between [Petitioner’s] behavior
on the videotape and his behavior when Dr. Bianco interviewed him one year
later.
36

After hearing the proffer and ruling that Dr. Bianco’s testimony about
[Petitioner’s] intelligence and differing behavior in the two settings would be
irrelevant, the district court judge explained in detail how her own
observations of [Petitioner] during the two-hour videotaped interview showed
a cocky and extremely verbal individual, who was able to mislead people, read
a newspaper, persuade others to assist him in hiding and avoiding arrest,
conceal his identity, obtain an apartment, and explain various gang activities.
According to the judge, these observations convinced her that [Petitioner]
demonstrated sufficient intelligence and sufficiently clear thinking for her to
find that the State had met its burden of showing that [Petitioner’s] waiver of
rights was voluntary. On direct appeal, we concluded that the videotaped
interview showed “a coherent [Petitioner] calmly conversing with detectives,
giving rational answers to their questions, and apparently capable of
understanding the Miranda warnings provided by the interrogating officers.”
Smith v. State, 2007 OK CR 16, ¶ 46, 157 P.3d 1155, 1171.
Based on the district court’s careful review of [Petitioner’s] behavior
on the interview tape, and in light of the fact that the district court heard expert
testimony that [Petitioner] may have been suffering from the lingering effects
of PCP intoxication at the time of this interview and received proffered
evidence of [Petitioner’s] low intelligence, we do not find a reasonable
likelihood that testimony from Dr. Mash or Dr. Saint Martin (or both) would
have changed the outcome of the judge’s conclusion that [Petitioner]
voluntarily waived his Miranda-warned rights. Nor do their opinions change
our conclusion as stated in [Petitioner’s] direct appeal that the trial court’s
finding was proper.
Because there is not a reasonable likelihood that Dr. Mash and Dr. Saint
Martin’s testimony would have changed the outcome of the trial court’s
decision on the voluntariness of [Petitioner’s] Miranda waiver, [Petitioner]
fails to show prejudice flowing from the alleged errors committed by trial,
appellate, and post-conviction counsel. This claim does not qualify for relief
under Strickland.
Smith, 245 P.3d at 1240-41.16
16

Related to Petitioner’s PCP use, the OCCA gave separate consideration to Petitioner’s
claim that his attorneys “were ineffective in their challenge to the voluntariness of his statements
for not providing the trial court with expert evidence that ([Petitioner]) suffered from organic brain
damage and low intelligence (caused by his long term daily use of PCP).” Smith, 245 P.3d at 1241.
Here, the OCCA found that the record “belied” the assertion that counsel were ineffective in this
37

In disposing of this portion of Petitioner’s ineffectiveness claim on the prejudice
prong, the OCCA acted within the guidance given by the Supreme Court in Strickland. In
Strickland, the Supreme Court expressly held that
there is no reason for a court deciding an ineffective assistance claim to
approach the inquiry in the same order [as did the Supreme Court in
Strickland] or even to address both components of the inquiry if the defendant
makes an insufficient showing on one. In particular, a court need not determine
whether counsel’s performance was deficient before examining the prejudice
suffered by the defendant as a result of the alleged deficiencies. The object of
an ineffectiveness claim is not to grade counsel’s performance. If it is easier
to dispose of an ineffectiveness claim on the ground of lack of sufficient
prejudice, which we expect will often be so, that course should be followed.
Strickland, 466 U.S. at 697. A showing of prejudice under Strickland “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. Evaluating the OCCA’s decision in light of
Strickland and the deference afforded it by the AEDPA, the Court finds that Petitioner has
not met the high standard required for relief.17

respect. Because counsel had argued this very point to the trial court, the OCCA found that counsel
were not deficient. Id. at 1241-42. The Court finds that this determination by the OCCA is also not
contrary to or an unreasonable application of Strickland.
17

In support of this portion of his claim, Petitioner has provided several affidavits (Petition
Attachments 14-18 and 32), that he intentionally excluded from his second post-conviction
application. Smith, 245 P.3d at 1240 (referencing Petitioner’s Appendix of Exhibits and noting that
certain exhibits were removed because Petitioner deemed them irrelevant to the presented issues).
Because these affidavits were not presented to the OCCA, they have not been considered here. See
Pinholster, 131 S. Ct. at 1398 (2011) (review under the AEDPA is “limited to the record that was
before the state court that adjudicated the claim on the merits”).
38

The OCCA additionally found that Petitioner was not prejudiced by counsel’s failure
to challenge his Miranda waiver on grounds that “he was mentally retarded and suffering
organic brain damage from long-term drug abuse.” Smith, 245 P.3d at 1242. The OCCA
held as follows:
In support of this claim, [Petitioner] relies on those portions of Dr. Mash and
Dr. Saint Martin’s 2010 reports that opine that [Petitioner] is mentally retarded
and that [Petitioner’s] substance abuse could have caused brain damage that
impaired his cognitive functioning to the extent that he could not adequately
comprehend the Miranda warnings given him by police or assess the
consequences of a waiver of the rights covered by those warnings.
Again, to prevail on a claim of ineffectiveness of counsel, a defendant
must show prejudice from the alleged error of counsel, Strickland, 466 U.S. at
687, 104 S.Ct. at 2064, and to establish prejudice, “[it] is not enough for the
defendant to show that the errors had some conceivable effect on the outcome
of the proceeding,” id. at 693, 104 S.Ct. at 2067. Rather, a defendant must
show “a reasonable probability that, but for counsel's [alleged] unprofessional
errors, the result of the proceeding would have been different.” Id. at 694,
104 S.Ct. at 2068.
In this instance, despite argument and proffers of evidence from counsel
about [Petitioner’s] low intelligence and mental impairment from drug abuse,
the trial court judge concluded that [Petitioner] had sufficient intellectual
functioning to waive his Miranda-warned rights. To support her conclusion,
the judge gave a detailed account of her own observations of [Petitioner’s]
behavior on the two-hour police interview videotape and explained how
[Petitioner’s] behavior on that tape convinced her that [Petitioner] possessed
sufficient intelligence and cognitive functioning to voluntarily waive his
Miranda-warned rights. Based on our review of the judge’s rationale and the
record of the Jackson v. Denno hearing, we are not persuaded that Dr. Mash
and Dr. Saint Martin’s opinions about [Petitioner’s] mental retardation or
cognitive functioning would have swayed the judge to a different result. Hence
there was no prejudice and counsel were not ineffective.

39

Smith, 245 P.3d at 1242. Again, evaluating the OCCA’s decision in light of Strickland and
the deference afforded it by the AEDPA, the Court finds that Petitioner has not met the high
standard required for relief.
In conclusion, the Court finds that Petitioner is not entitled to relief on Ground Three.
While Petitioner has presented multiple challenges to the validity of his Miranda waiver, he
has not shown that the decisions rendered by the OCCA with respect to this ground are
contrary to or an unreasonable application of Supreme Court law. In denying Petitioner relief
on his Miranda-related claims, the OCCA and the state trial court relied heavily upon the
videotape of Petitioner’s confession, which is without question the best evidence to gauge
the validity of Petitioner’s Miranda waiver. An examination of the videotape reveals that the
assessments made of it by the trial judge and the OCCA are accurate and reasonable, as is
the analysis flowing from it. Under these circumstances, there is no persuasive argument that
an “extreme malfunction[]” warranting habeas relief has occurred. Richter, 131 S. Ct. at 786.
Relief on Ground Three is therefore denied.
D.

Ground Four:

Ineffective Assistance of Trial Counsel in the
Investigation and Presentation of Mitigation
Evidence.

In Ground Four, Petitioner alleges that his trial counsel were ineffective in the
investigation and presentation of mitigation evidence. Although Petitioner acknowledges
that trial counsel presented relevant mitigation evidence, Petitioner faults his trial counsel for
not presenting it effectively. Petitioner additionally asserts that trial counsel should have
done further investigation and presented evidence regarding his mental deficiencies,
40

including low intelligence, mental retardation, and organic brain damage. Petitioner
presented this claim in both his first and second post-conviction applications. Both times,
the OCCA addressed the claim on the merits and denied relief. Smith, 245 P.3d at 1242-43;
Smith, No. PCD-2005-142, slip op. at 6-8. Petitioner argues that the OCCA’s determinations
are unreasonable and he takes issue with Respondent’s assertion that under Richter relief
should be denied.
In Richter, the Supreme Court addressed not only the limitations of the AEDPA, but
how those limitations specifically apply to a claim of ineffective assistance of counsel that
a state court has denied on the merits. “A state court’s determination that a claim lacks merit
precludes federal habeas relief so long as fairminded jurists could disagree on the correctness
of the state court’s decision.” Richter, 131 S. Ct. at 786 (internal quotation marks and
citation omitted). The Supreme Court bluntly acknowledged that “[i]f this standard is
difficult to meet, that is because it was meant to be.” Id.
[The AEDPA] preserves authority to issue the writ in cases where there is no
possibility fairminded jurists could disagree that the state court’s decision
conflicts with [the Supreme] Court’s precedents. It goes no farther.
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. (internal quotation marks and citation omitted). When these limits imposed by the
AEDPA intersect with the deference afforded counsel under Strickland, a petitioner’s ability
to obtain federal habeas relief is even more limited.
Surmounting Strickland’s high bar is never an easy task. An
ineffective-assistance claim can function as a way to escape rules of waiver
41

and forfeiture and raise issues not presented at trial, and so the Strickland
standard must be applied with scrupulous care, lest intrusive post-trial inquiry
threaten the integrity of the very adversary process the right to counsel is
meant to serve. Even under de novo review, the standard for judging counsel’s
representation is a most deferential one. Unlike a later reviewing court, the
attorney observed the relevant proceedings, knew of materials outside the
record, and interacted with the client, with opposing counsel, and with the
judge. It is all too tempting to second-guess counsel’s assistance after
conviction or adverse sentence. The question is whether an attorney’s
representation amounted to incompetence under prevailing professional norms,
not whether it deviated from best practices or most common custom.
Establishing that a state court’s application of Strickland was
unreasonable under § 2254(d) is all the more difficult. The standards created
by Strickland and § 2254(d) are both highly deferential, and when the two
apply in tandem, review is doubly so[.] The Strickland standard is a general
one, so the range of reasonable applications is substantial. Federal habeas
courts must guard against the danger of equating unreasonableness under
Strickland with unreasonableness under § 2254(d). When § 2254(d) applies,
the question is not whether counsel’s actions were reasonable. The question is
whether there is any reasonable argument that counsel satisfied Strickland’s
deferential standard.
Richter, 131 S. Ct. at 788 (internal quotation marks and citations omitted).
As noted above, the OCCA addressed the merits of Petitioner’s Ground Four on two
occasions. Each time, the OCCA applied Strickland and denied relief because Petitioner
failed to show that he was prejudiced by any alleged deficiencies in trial counsel’s
representation. In its order denying Petitioner’s first application for post-conviction relief,
the OCCA held as follows:
[Petitioner] claims next that trial and appellate counsel were ineffective
for failing to investigate and present mitigating evidence during the sentencing
phase of trial. In support of this claim, [Petitioner] submits affidavits from his
mother and eleven relatives. He also submits copies of his father’s arrest
history and copies of protective order documents filed by [Petitioner’s] mother
against [Petitioner’s] father.
42

In total, these affidavits and documents establish a larger quantity of
mitigating evidence than was presented at trial, but cover little new ground.
The affidavits and accompanying materials show that [Petitioner’s] father was
an alcoholic, that he was abusive, and that [Petitioner] was a gang member.
These materials also show that [Petitioner] grew up in a neighborhood known
for gang activity, violence, and drug activity. This information, in one form
or another, was developed at trial. New information from [Petitioner’s]
mother, who did testify at trial, to the effect that [Petitioner] was delivered by
forceps, suffered a head injury as a small child by running into a table, and
suffered a broken leg and “minor head injury” in a bicycle accident, seem to
suggest that trial counsel was ineffective for failing to elicit this testimony as
evidence of brain damage, low intelligence, or mental retardation. Other than
offering his mother’s recollections of these childhood injuries, [Petitioner]
proffers no evidence that might have been developed by trial counsel and
actually used to connect the alleged injuries to the present time (e.g., current
medical diagnoses of brain damage, mental retardation, or impairment).
Furthermore, unlike the other affiants, [Petitioner’s] mother testified at trial,
yet [Petitioner] offers no explanation or evidence as to why trial counsel’s
failure to elicit this information from her was not sound trial strategy.
Because much of the information contained in the proffered affidavits
and other evidentiary materials had already been presented to the jury in some
form, and because the slight bit of new information contained in these
materials is tenuous at best, when the materials are viewed as a whole, we
cannot say there was a reasonable probability that but for the lack of this
information, the result of the sentencing proceeding would have been different.
See Wood v. State, 2007 OK CR 17, ¶ 36, 158 P.3d 467, 479 (holding that to
establish Strickland prejudice on ineffective assistance claim, petitioner must
demonstrate reasonable probability that but for counsel’s alleged error,
outcome would have been different); Slaughter v. State, 2005 OK CR 6, ¶ 4,
108 P.3d 1052, 1054 (explaining that focus in capital post-conviction
proceeding is on outcome determinative errors and factual innocence
questions). Trial and appellate counsel’s performance, therefore, did not deny
[Petitioner] of his right to reasonably competent assistance of counsel under
prevailing professional norms. See e.g., Murphy v. State, 2002 OK CR 32,
¶¶ 16-20, 54 P.3d 556, 564-65 (finding no ineffective assistance for failure to
investigate and present mitigating evidence where post-conviction affidavits
and other materials only provided more information about petitioner’s life
(e.g., violent father, violent neighborhood), but provided nothing new or so
compelling as to convince Court there was reasonable probability of different

43

result), overruled on other grounds by Blonner v. State, 2006 OK CR 1,
127 P.3d 1135.
Smith, No. PCD-2005-142, slip op. at 6-8. In its order denying Petitioner’s second postconviction application, the OCCA held as follows:
[Petitioner] claims that trial counsel were ineffective in presenting his
mitigation case at sentencing for failing to provide his jury with expert
evidence that he suffered from organic brain damage and low intelligence
caused by long-term daily use of the drug phencyclidine (PCP). Specifically,
[Petitioner] cites to Dr. Saint Martin’s report in which he states that:
(1) [Petitioner] suffers from a “brain insult” caused by substance abuse; and
(2) long term use of PCP inhibits the brain’s ability to learn new information;
(Appl. at 35-36, citing Att. 7 at 12-13). [Petitioner] also refers to Dr. Mash’s
report in which she stated that: (1) tests on [Petitioner] indicated “non-specific
brain damage affecting his attention, calculation, and short term memory [that]
could be due to [Petitioner’s] substance abuse”; and (2) [Petitioner’s] chronic
drug use contributed to “diffuse impairment of cognitive functioning” and
“undoubtedly contributed to development of brain abnormalities” (Appl. at 36,
citing Att. 4 at 3-5). [Petitioner] also cites to the April 4, 2003, report by
Dr. Faust Bianco in which Dr. Bianco reported that [Petitioner] began smoking
marijuana on a daily basis at age ten and started smoking PCP on a daily basis
at age eleven.
Assuming without deciding that counsel were deficient for failing to
present this type of mitigating evidence at the sentencing stage, [Petitioner]
cannot demonstrate a reasonable probability that the evidence would have
affected the jury’s weighing of the aggravating and mitigating evidence.
Specifically, as other courts have observed, evidence of this sort has a
“double-edged” quality. Wackerly v. Workman, 580 F.3d 1171, 1178 (10th
Cir.2009). That is, a jury presented with evidence that the defendant is a
chronic substance abuser might draw a negative inference from that evidence
just as easily as it might find it mitigating. See Davis v. Executive Dir. of
Dep’t of Corr., 100 F.3d 750, 763 (10th Cir.1996) (finding petitioner not
prejudiced by counsel’s failure to investigate and present expert testimony at
sentencing on nature and effects of his severe alcoholism because whatever the
mitigating effect of such evidence, it was equally possible that jury would have
faulted petitioner for repeated failures to address problem). In the current case
in particular, such evidence might bolster a conclusion that the defendant

44

represents a continuing threat to society, one of the aggravating circumstances
charged in this case. Cf. Wackerly, 580 F.3d at 1178 (reviewing cases).
Given the uncertainty about how a jury might receive this type of
evidence, we cannot find that [Petitioner] has demonstrated a reasonable
probability that the jury would have reached a different sentencing result if it
had been presented with evidence of [Petitioner’s] chronic use of PCP and its
allegedly attendant brain damage. [Petitioner’s] counsel were not ineffective.
See DeLozier v. Sirmons, 531 F.3d 1306, 1332 (10th Cir.2008) (finding that
appellate counsel’s decision not to argue that trial counsel was ineffective for
failing to put on evidence of petitioner’s substance abuse was not ineffective
assistance because such evidence can be considered a “two-edged” sword),
cert. denied, ––– U.S. ––––, 129 S.Ct. 2058, 173 L.Ed.2d 1138 (2009); Pace v.
McNeil, 556 F.3d 1211, 1224 (11th Cir.2009) (finding that trial counsel’s
failure to present evidence of petitioner’s substance abuse was not deficient in
part because “presenting evidence of a defendant’s drug addiction to a jury is
often a ‘two-edged sword’; while providing a mitigating factor, such details
may alienate the jury and offer little reason to lessen the sentence”) cert.
denied, ––– U.S. ––––, 130 S.Ct. 190, 175 L.Ed.2d 118 (2009); Jones v. Page,
76 F.3d 831, 846 (7th Cir.1996) (finding that counsel’s failure to introduce
evidence of petitioner’s drug abuse was reasonable strategic choice because
such evidence was “double-edged sword”).
Smith, 245 P.3d at 1242-43.
Having reviewed these decisions by the OCCA, the Court simply cannot conclude that
“all fairminded jurists would agree the [OCCA’s] decision[s] [were] incorrect.” Frost v.
Pryor, 749 F.3d 1212, 1225-26 (10th Cir. 2014) (“Under the test, if all fairminded jurists
would agree the state court decision was incorrect, then it was unreasonable and the habeas
corpus writ should be granted. If, however, some fairminded jurists could possibly agree with
the state court decision, then it was not unreasonable and the writ should be denied.”)
(emphasis added); Stouffer v. Trammell, 738 F.3d 1205, 1221 (10th Cir. 2013) (citing
Richter, 131 S. Ct. at 786, for the proposition that relief is warranted “only if all ‘fairminded

45

jurists’ would agree that the state court got it wrong”) (emphasis added). Petitioner’s
arguments are largely based on counsel’s performance and how counsel could have done a
better job if they would have just done something different. Petitioner appears to assert that
if the prosecutor was able to conduct a thoughtful cross-examination of any mitigation
witness, or use the testimony of any mitigation witness to argue a contrary point, then trial
counsel was at fault. In addition, while faulting counsel for “placing a morass of facts before
the jury without a unifying explanation or theme,” Petition, p. 55, Petitioner additionally
asserts that trial counsel should have thrown additional mitigation evidence into the mix.
This is clearly not the Strickland standard, as Strickland explicitly cautions against “secondguess[ing]” and assessing counsel’s actions through “the distorting effects of hindsight.”
Strickland, 466 U.S. at 689.
Moreover, beyond what counsel did or did not do, Strickland requires more.
Strickland requires a showing of “a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.” Id. at 694.
In denying Petitioner relief, the OCCA focused on Strickland’s prejudice prong, which
Strickland expressly permits. Id. at 697. Petitioner does not afford much argument to this
component of Strickland except to say that if trial counsel had done more, then perhaps one
juror would have voted against the death penalty. However, given Petitioner’s gang
affiliation and prior violent history, the evidence that he killed two innocent people in
separate incidents on the same day, and that the murders were gang related, the odds that
Petitioner would receive death verdicts were high. In the midst of these odds, trial counsel
46

presented a mitigation case which included not only expert evidence regarding gangs, but
evidence which demonstrated that Petitioner was born and raised in an environment where
the odds of life were stacked against him. Given these circumstances, the OCCA’s
determination that Petitioner’s arguments failed to satisfy the prejudice element required by
Strickland is reasonable. While Petitioner clearly disagrees with the OCCA’s conclusion,
he has not shown that he was the victim of an extreme malfunction in the criminal justice
system about which all fairminded jurists would agree. Richter, 131 S. Ct. at 786. Relief on
Ground Four is therefore denied.
E.

Ground Five:

Jury Questions.

In Ground Five, Petitioner asserts that his constitutional rights were violated when the
trial court, during first stage deliberations, responded to two18 jury questions outside the
presence of his counsel. Petitioner raised this claim on direct appeal and the OCCA denied
relief. Smith, 157 P.3d at 1172-73. Petitioner raised the claim a second time in his second
post-conviction application. The OCCA declined to reconsider its prior holding. Smith,
245 P.3d at 1243. The parties dispute how the federal aspects of this claim were presented
to the OCCA. Petitioner contends that they were presented on direct appeal but overlooked
by the OCCA. Accordingly, he contends that AEDPA deference does not apply and he seeks

18

Although Petitioner asserts that the trial court’s responses resulted in two separate
violations of his constitutional rights, he acknowledges that the trial court’s answer to the second
question did not misstate the law and he gives scant discussion of it. Petition, p. 65.
47

de novo review of the claim.19 Respondent, on the other hand, asserts that Petitioner’s direct
appeal claim focused on state law and particularly on the trial court’s failure to comply with
the requirements of Okla. Stat. tit. 22, § 894. Because Respondent asserts that the federal
aspects of Petitioner’s claim were not presented until his second post-conviction application,
Respondent argues for the application of a procedural bar.20 For the following reasons, the
Court finds that Petitioner’s Ground Five was presented to the OCCA on direct appeal, that
the OCCA’s merits determination is subject to AEDPA deference, and that Petitioner has
failed to show that the OCCA’s decision is contrary to or an unreasonable application of
Supreme Court law.
Relative to this claim, the record reflects that the jury began first stage deliberations
at 1:23 p.m. (J. Tr. 12, 90). At 3:32 p.m., the jury sent out a question asking if there was a
videotape of Marcus Berry and if they could view it. The trial court gave a written response
of “No.” (Court’s Exhibit 7). At 6:01 p.m., the jury sent out a second question about its
responsibilities in first stage deliberations. The trial court advised the jury to “assess
punishment on all counts except if you find the defendant guilty of murder you will wait for
the punishment stage on those 2 counts” (Court’s Exhibit 8). The jury returned its first stage
verdicts at 7:00 p.m. (J. Tr. 12, 90). After the jury was excused for the evening, an in camera
hearing was held. At that time, the trial court advised the parties that they needed to make
19

Alternatively, Petitioner argues that even if the AEDPA applies, he is still entitled to relief
because the OCCA’s decision is contrary to clearly established law and an unreasonable
determination of the facts. Petition, pp. 66-67.
20

Respondent presents argument on the merits as well. Response, pp. 68-72.
48

a record regarding State’s Exhibit 133, the videotape of Mr. Berry’s interview. The matter
was discussed as follows:
We need to make a record in regard to State’s Exhibit Number 133
pursuant to an agreement that we made at the time, which was that the State
would move to withdraw that exhibit and then we would substitute in as a
Court’s exhibit a redacted version and I would ask you to, Mr. Siderias and
Mr. Deutsch [the prosecutors], to make such motions.
MR. SIDERIAS: Judge, at this time we would move to withdraw
State’s Exhibit Number 133. We provided the Court with, I think what’s going
to be marked as Court’s Exhibit 9, a redacted version of that tape which
includes those parts played to the jury. . . .
THE COURT:
All right. Anything from you all in regard to the
substitution on Court’s Exhibit 9 as we previously introduced?
MR. WOODYARD [defense counsel]:

No, Your Honor.

(J. Tr. 12, 95-96). Immediately thereafter, the trial judge advised the parties of the questions
received from the jury and her answers to them. Regarding the content of the questions, the
trial judge stated, “They were not questions that I even felt like I needed to consult with
counsel about.” Defense counsel made no comment or objection to the trial judge’s
announcement (J. Tr. 12, 96-97).
On direct appeal, Petitioner’s claim centered around the trial court’s failure to follow
the procedure set forth in Okla. Stat. tit. 22, § 894. First and foremost, Petitioner challenged
the trial court’s failure to consult with his counsel prior to responding to the jury’s questions.
In connection therewith, Petitioner argued that the trial court “effectively den[ied] him his
constitutional right to counsel and due process of law. U.S. Const. Amends. VI, XIV. . . .”
Brief of Appellant, Case No. D-2003-1120, pp. 65-66. Petitioner also asserted that under
49

Wilson v. State, 534 P.2d 1325 (Okla. Crim. App. 1975), a violation of Section 894 results
in a presumption that he was prejudiced; that the trial court answered the videotape question
incorrectly; and that the trial court should have sent State’s Exhibit 133 back to the jury
room. Brief of Appellant, Case No. D-2003-1120, pp. 61-68.21
In denying Petitioner relief, the OCCA held as follows:
In his fifth proposition of error, [Petitioner] claims the trial court denied
his Sixth Amendment right to counsel and his right to due process when the
court answered two notes from the jury deliberating in the first stage without
first consulting with counsel and then bringing the jury into open court to
answer the questions. In the first note, the jury asked “Is there a video tape of
Marcus Berry? If so can we view it?” The trial court responded “No.” In the
second note, the jury asked “Are we to assess punishment at [this] time or just
guilt or innocence on every charge except the 2 murder charges?” The trial
court answered the question as follows: “assess punishment on all counts
except if you find the defendant guilty of murder you will wait for the
punishment stage on those 2 counts.”
In this proposition, [Petitioner] complains that his constitutional rights
to counsel and due process were violated by the trial court’s failure to
communicate with the jury in open court as required by 22 O.S.2001,
§ 894. [FN13] The record shows that the trial judge did indeed answer the
jury’s questions by return note, without consulting counsel, and without
bringing the jury back into court.
FN13. 22 O.S.2001, § 894 states: “After the jury have retired for
deliberation, if there be a disagreement between them as to any part of
the testimony or if they desire to be informed on a point of law arising
in the cause, they must require the officer to conduct them into court.
Upon their being brought into court, the information required must be
given in the presence of, or after notice to the district attorney and the
defendant or his counsel, or after they have been called.”

21

The Court notes that the brief submitted to the OCCA starts mid-argument with the header
and introductory portion of the proposition noticeably absent.
50

When a communication between judge and jury occurs after a jury has
retired for deliberations on a matter within the scope of § 894 and that
communication does not comport with § 894’s requirements, a presumption of
prejudice arises. Wilson v. State, 1975 OK CR 71, ¶¶ 5–6, 534 P.2d 1325,
1327. The presumption “may be overcome if, on appeal, this Court is
convinced that on the face of the record no prejudice to the defendant
occurred.” Id. Here, we agree with [Petitioner], that the district court erred by
answering the jury’s questions without notice to counsel. Nevertheless,
because we find that [Petitioner] was not prejudiced by the error, reversal is
not warranted.
With regard to the trial court’s answer about assessing punishment, by
instructing the jury that they must assess punishment on all counts unless they
found [Petitioner] guilty on the murder counts, in which case they must wait
for the punishment stage on those two counts, the trial court provided the jury
with a correct statement of the law. We are unable to discern how [Petitioner]
was prejudiced by the jury being instructed correctly on the applicable law.
We therefore find no merit in this claim.
The trial court’s answer to the jury’s question concerning the
videotaped interview of Marcus Berry, however, presents a more complicated
problem. [Petitioner] contends not only that the trial court’s one-word answer
“No” was factually incorrect with regard to the existence of the tape, but that
the judge erred by answering “No” to the jury’s request to review the tape.
The videotape in question, State’s Exhibit 133 (later changed to Court’s
Exhibit 9), was a recording of Marcus Berry’s interview with detectives. In
that interview, Berry recounted various incriminating statements made to him
by [Petitioner]. Portions of the tape were played for the jury during the course
of Berry’s testimony.[FN14] It appears from the trial transcript, however, that
sometime prior to the jury beginning its deliberations, the prosecution and
defense agreed that the exhibit would be withdrawn. The transcript of the
proceeding, after the jury returned its verdict in the guilt phase, memorializes
that earlier agreement as follows:
FN14. There is some confusion in the record as to whether the taped
excerpts were used for impeachment or whether they were used to
refresh Berry’s memory. It appears from the context surrounding each
instance, that the excerpts from the tape were used to refresh Berry’s
memory because each time an excerpt was played, it was in response
to his claim not to remember what he told police about a specific matter
51

during the course of the taped interview. Nevertheless, because
[Petitioner] asserts the videotape was used for impeachment and the
State advanced the same assertion at oral argument, we assume for
purposes of this appeal that the tape was used as impeachment
evidence.
THE COURT: We need to make a record in regard to State’s Exhibit
Number 133 pursuant to an agreement that we made at the time, which
was that the State would move to withdraw that exhibit and then we
would substitute in as a Court’s exhibit a redacted version and I would
ask you to, Mr. Siderias and Mr. Deutsch, to make such motions.
MR. SIDERIAS [prosecutor]: Judge, at this time we would move to
withdraw State’s Exhibit Number 133. We provided the Court with, I
think what’s going to be marked as Court’s Exhibit Number 9, a
redacted version of that tape which includes those parts played for the
jury. Also, I think we have marked as Court’s Exhibit Number 1 the
[Petitioner’s] full confession unredacted.
...
THE COURT: All right. Anything from you all in regard to the
substitution on Court’s Exhibit Number 9 as we previously introduced?
MR. WOODYARD [defense counsel]: No, Your Honor.
(Tr. 12 at 95–96).
On the basis of this record, the trial court judge’s decision not to consult
counsel was correct because, as she understood it, counsel had already been
consulted and the parties agreed the tape would be withheld from the jury. Any
prejudice flowing from the jury’s inability to review the tape, therefore, was
the result of [Petitioner’s] agreement that the tape be withdrawn. As such, the
error cannot serve as the basis for reversal. See e.g., Ellis v. State, 1992 OK
CR 45, ¶ 28, 867 P.2d 1289, 1299 (opinion on rehearing)(holding that error
invited by defense counsel cannot serve as basis for reversal because defendant
cannot invite error and then seek to profit from it); Pierce v. State, 1990 OK
CR 7, ¶ 10, 786 P.2d 1255, 1259 (“[w]e have often recognized the well
established principal that a defendant may not complain of error which he has
invited, and that reversal cannot be predicated on such error”).[FN15]

52

FN15. At oral argument, [Petitioner] elaborated on the alleged
prejudice flowing from the exclusion of the tape by advancing the
position that the tape was critical impeachment evidence and had Berry
been discredited by it, the remainder of the State’s case would have
collapsed as insufficient for lack of corroborating evidence of
[Petitioner’s] confession, the only other evidence linking him to the
Moore murder. We are not convinced [Petitioner] was prejudiced in this
way, even if it is assumed the videotape was improperly withheld from
the jury. Specifically, even if Berry’s testimony is discounted in its
entirety, [Petitioner] overlooks the testimony of Sheena Johnson.
Johnson’s testimony corroborated [Petitioner’s] confession to police
and provided the necessary linkage to the Moore murder. As noted
above, Johnson testified that [Petitioner] told her that he went to
Moore’s apartment and killed her. He also demonstrated the manner in
which he shot her, a manner consistent with the description he gave
detectives during the confession interview. This testimony is sufficient
to corroborate [Petitioner’s] admissions to police that he committed the
Moore murder. In light of Johnson’s testimony, therefore, it is not
possible to conclude that if the Berry videotape had been provided to
jurors and had discredited Berry completely, the outcome of the trial
would have been different. Because the outcome of the trial would have
been unaffected, the error, if any, was harmless. Furthermore, the trial
transcript shows that the State used the tape in open court to contradict
statements by Berry that he could not remember certain incriminating
admissions made to him by [Petitioner]. Thus, while the tape may have
impeached Berry’s credibility by contradicting his professed lack of
memory about [Petitioner’s] admissions, the portions of the tape that
were played for the jury consisted of statements made by Berry to
police in which he recounted statements made to him by [Petitioner]
admitting to the murders. Under these circumstances, where the
impeachment evidence against Berry also constituted damning
substantive evidence against [Petitioner], it is difficult to see how
[Petitioner] was prejudiced by the jury being denied the ability to replay
the tape in the jury room.
Smith, 157 P.3d at 1172-73.
“When a federal claim has been presented to a state court and the state court has
denied relief, it may be presumed that the state court adjudicated the claim on the merits in

53

the absence of any indication or state-law procedural principles to the contrary.” Richter,
131 S. Ct. at 784-85. See also Johnson v. Williams, 568 U.S. ___, 133 S. Ct. 1088,
1096 (2013) (“When a state court rejects a federal claim without expressly addressing that
claim, a federal habeas court must presume that the federal claim was adjudicated on the
merits. . . .”). As noted above, in his presentation of this claim to the OCCA, Petitioner cited
to the United States Constitution and he asserted that his constitutional rights to counsel and
due process were violated, and in its decision, the OCCA clearly acknowledged the federal
aspects of Petitioner’s claim. Under these circumstances, it is clear that the OCCA rendered
an adjudication on the merits as required for AEDPA deference under Section 2254(d). It
is without consequence that Petitioner did not more fully support and/or argue his federal
claim in his direct appeal brief because it is clear that this potential failing did not prevent
the OCCA from gleaning the federal aspects of Petitioner’s claim. It is also without
consequence that the OCCA did not elaborate on the federal aspects of Petitioner’s claim in
denying him relief because Section 2254(d) does not require a state court to “cite or even be
aware of” the applicable Supreme Court authority. Richter, 131 S. Ct. at 784 (citing Early v.
Packer, 537 U.S. 3, 8 (2002)).
Although the “adjudicated on the merits” presumption is a strong one, it is subject to
rebuttal. Johnson, 133 S. Ct. at 1096. As acknowledged in Richter, 131 S. Ct. at 785, “[t]he
presumption may be overcome when there is reason to think some other explanation for the
state court’s decision is more likely.” In the present case, however, the circumstances do not
question application of the presumption. In addition to the fact that the OCCA expressly
54

acknowledged Petitioner’s federal constitutional claims in its decision, Petitioner’s response
to the decision is additionally relevant. Although Petitioner sought rehearing of the OCCA’s
decision, he did not challenge the disposition of this particular claim. In addition, when
Petitioner subsequently asked the OCCA to reconsider the claim in his second postconviction application, he did not assert that some portion of his claim had been overlooked.
Instead, he expressly acknowledged that the claim had been raised and addressed on direct
appeal. Smith, 245 P.3d at 1243. See Johnson, 133 S. Ct. at 1099 (finding it unlikely that
the state court simply overlooked petitioner’s federal claim because petitioner failed to file
a petition for rehearing or otherwise allege in subsequent state and federal proceedings that
a mistake had occurred).
Having determined that the OCCA adjudicated Petitioner’s claim on the merits,
AEDPA deference applies and Petitioner can only obtain relief if he shows that the OCCA’s
decision is contrary to or an unreasonable application of Supreme Court law, or an
unreasonable determination of the facts. Beginning with Petitioner’s contention that the
OCCA unreasonably determined the facts, the Court finds that Petitioner has failed to make
this showing. Petitioner takes issue with the OCCA’s determination “that sometime prior to
the jury beginning its deliberations, the prosecution and defense agreed that [State’s
Exhibit 133] would be withdrawn.” Smith, 157 P.3d at 1172-73. Petitioner argues that the
post-verdict recording of this agreement does not support a finding that the agreement was
actually made pre-verdict. While Petitioner is correct that the pre-verdict record indicates
that the original intention was that the videotape, or at least the portion of it that was played
55

for the jury, would be admitted as an exhibit, the post-verdict discussion supports the
OCCA’s finding that at some point a different agreement was reached. The OCCA’s
determination that a change was made before the jury began deliberating is supported by the
failure of defense counsel to object to either the post-verdict record made or the trial court’s
response to the jury’s question about the videotape. The Court has no doubt that had defense
counsel believed that the exhibit should have gone back to the jury, he would have voiced
his objections at that time.22
Petitioner makes three challenges to the OCCA’s application of the law. He asserts
that it is contrary to or an unreasonable application of United States v. Cronic, 466 U.S.
648 (1984), Shields v. United States, 273 U.S. 583 (1927), and Hicks v. Oklahoma, 447 U.S.
343 (1980). For the following reasons, the Court finds that Petitioner has failed to show that
the OCCA’s decision is contrary to or an unreasonable application of these Supreme Court
cases.
In Cronic, 466 U.S. at 658-59, the Supreme Court held that prejudice is presumed
when an “accused is denied counsel at a critical stage of his trial.” Asserting that jury
deliberations are a critical stage, Petitioner contends that he was denied the effective
assistance of counsel and that he is entitled to relief without any showing of prejudice

22

The record reflects that while the State initially sought admission of State’s Exhibit 133,
defense counsel was against it from the start, or at least to “a carte blanc [sic] playing” of it (J. Tr. 5,
84). It can be assumed, therefore, that defense counsel was in favor of a subsequent agreement to
make the videotape a court’s exhibit as opposed to a jury exhibit. See Smith, 157 P.3d at 1173 n.15
(finding that the videotape “constituted damning substantive evidence against [Petitioner]”).
56

because the trial court denied his counsel’s presence when the questions came out from the
jury during deliberations.
The threshold issue then is whether the trial court’s interaction with the jury in this
case constituted a critical stage. A critical stage denotes a point in a criminal proceeding
which holds “significant consequences” for a defendant. Bell v. Cone, 535 U.S. 685,
696 (2002). It is a point “where counsel’s absence might derogate from the accused’s right
to a fair trial.” United States v. Wade, 388 U.S. 218, 226 (1967). The Supreme Court has
not addressed the issue of whether jury deliberations constitute a critical stage, but this is not
necessarily the end of the inquiry. As the Supreme Court recently noted,
This is not to say that § 2254(d)(1) requires an “‘identical factual
pattern before a legal rule must be applied.’” Panetti v. Quarterman, 551 U.S.
930, 953, 127 S.Ct. 2842, 168 L.Ed.2d 662 (2007). To the contrary, state
courts must reasonably apply the rules “squarely established” by this Court’s
holdings to the facts of each case. Knowles v. Mirzayance, 556 U.S. 111, 122,
129 S.Ct. 1411, 173 L.Ed.2d 251 (2009). “[T]he difference between applying
a rule and extending it is not always clear,” but “[c]ertain principles are
fundamental enough that when new factual permutations arise, the necessity
to apply the earlier rule will be beyond doubt.” Yarborough, supra, at 666,
124 S.Ct. 2140. The critical point is that relief is available under
§ 2254(d)(1)’s unreasonable-application clause if, and only if, it is so obvious
that a clearly established rule applies to a given set of facts that there could be
no “fairminded disagreement” on the question, Harrington, 562 U.S., at ––––,
131 S.Ct., at 787.
White v. Woodall, 572 U.S. ___, 134 S. Ct. 1697, 1706-07 (2014).
Petitioner relies on cases from the Sixth and Seventh Circuits to support his assertion
that jury deliberations constitute a critical stage. However, a review of these cases, as well

57

as others, demonstrate that there are circuit differences in the treatment of this issue.23 In the
first case cited by Petitioner, Siverson v. O’Leary, 764 F.2d 1208, 1214 (7th Cir. 1985), the
Seventh Circuit did find that jury deliberations are a critical stage; however, it ultimately
denied habeas relief by finding that the absence of counsel was harmless beyond a reasonable
doubt under Chapman v. California, 386 U.S. 18 (1967). Siverson, 764 F.2d at 1217-19. But
see Penson v. Ohio, 488 U.S. 75, 88 (1988) (acknowledging that Cronic error is not subject
to harmless error analysis); French v. Jones, 332 F.3d 430, 437-39 (6th Cir. 2003) (quoting
Penson and other Supreme Court authority for the proposition that Cronic error is never
harmless).
In French, the second case cited by Petitioner, the Sixth Circuit found that a defendant
was denied counsel in a critical stage when the trial court issued a supplemental jury
instruction to a deadlocked jury in the absence of his counsel. Id. at 438. While the Sixth
Circuit granted Cronic relief in that case, it has held that “not every statement to the jury goes
so far as to be a ‘critical stage’ instruction.” Peoples v. Lafler, 734 F.3d 503, 519 (6th Cir.

23

The Tenth Circuit has not specifically addressed this issue in the context of Cronic. In
Smallwood, 191 F.3d at 1279, a habeas petitioner claimed that his Sixth, Eighth, and Fourteenth
Amendment rights were violated when the trial judge had ex parte communications with the jury
during sentencing deliberations. Citing Rushen v. Spain, 464 U.S. 114, 117 (1983), the Tenth
Circuit acknowledged that a defendant has a constitutional right to be present during critical stages
of trial, but found no constitutional error where the jury’s note was unanswered. Id. at 1279-80. In
Esnault v. Colorado, 980 F.2d 1335, 1336-37 (10th Cir. 1992), the Tenth Circuit relied upon
Snyder v. Massachusetts, 291 U.S. 97, 105-06 (1934), overruled in part on other grounds by
Malloy v. Hogan, 378 U.S. 1 (1964), to find no constitutional error where the trial court conferred
with defense counsel, but without petitioner being present, before answering a jury question. See
also Valdez v. Gunter, 988 F.2d 91, 92-94 (10th Cir. 1993) (citing Esnault and denying relief where
petitioner was absent when an audio tape exhibit was replayed for the jury in response to a jury
question submitted during deliberations).
58

2013). In Peoples, the Sixth Circuit declined to grant habeas relief where the state appeals
court found that the trial court’s communication was “‘administrative’ and outside of the
class of ‘critical stage’ jury instructions that subjects a defendant to prejudice if made without
counsel.” Id. The Sixth Circuit noted that “[g]iving a jury information it already has heard
is not necessarily a critical stage.” Id. (citing Hudson v. Jones, 351 F.3d 212, 216 (6th Cir.
2003)).
Regarding this issue, the Third Circuit has acknowledged the “conflicting views
among several courts of appeals as to whether mid-deliberation communication with the jury
constitutes a critical stage under Cronic.” Smith v. Kerestes, 414 F. App’x 509, 511 (3rd Cir.
2011) (unpublished). In Smith, the court discussed its prior holding in United States v.
Toliver, 330 F.3d 607 (3rd Cir. 2003). Id. In Toliver, the Third Circuit did not apply Cronic,
finding that the trial judge did not “‘instruct’” the jury by providing “verbatim specifically
excerpted record testimony that the jury itself had requested.” In reaching its conclusion, the
court noted that the circumstances were unlike cases where a trial court, without consultation
with defense counsel, “clarif[ied] the substantive elements of the charged offense (Curtis [v.
Duval, 124 F.3d 1 (1st Cir. 1997)]) or instruct[ed] a deadlocked jury (French). . . .” The
court noted Cronic’s applicability in those cases where the trial court “affirmatively guides
jurors as to how they should fulfill their decisionmaking function.” Toliver, 330 F.3d at 614.
In Smith, the Third Circuit also noted that not every court has applied this distinction
as to when Cronic applies. Smith, 414 F. App’x at 511. For example, in Musladin v.
Lamarque, 555 F.3d 830, 841 (9th Cir. 2009), the Ninth Circuit concluded that “any
59

communication to the jury during deliberations carries significant consequences.” In
Musladin, however, the Ninth Circuit was constrained by the AEDPA to deny relief.
Although under de novo review the court would have reached a different result, it could not
conclude that the state court acted unreasonably “in holding that a mid-deliberations
communication to the jury that does no more than refer the jury back to the original jury
instructions is not a ‘critical stage’ under Cronic.” Musladin, 555 F.3d at 842-43. The Ninth
Circuit reasoned as follows:
Although defense counsel plays a crucial role in formulating any
mid-deliberation communication to the jury by the trial judge, where the judge
simply directs the jury to his previous instructions, the potential impact of
defense counsel’s inability to participate is significantly lessened, because
defense counsel played a role in the formulation of those instructions. In such
circumstances, the jury receives only such information as was formulated with
defense counsel’s participation. Although we do not believe that defense
counsel’s prior participation is sufficient to render a mid-deliberation
communication to the jury less ‘critical’ for purposes of the Cronic analysis,
we cannot say that it would be unreasonable for a state court to so conclude.
Accordingly, we are not free to hold that the state court’s decision to require
a demonstration of prejudice resulting from the denial of counsel here was
objectively unreasonable.
Id. at 843 (footnote omitted).
In the absence of Supreme Court authority that jury deliberations constitute a critical
stage for purposes of Cronic, and because a survey of the circuits reveals no consensus on
the issue either, this is clearly an issue where fairminded jurists could disagree. See White,
134 S. Ct. at 1707 (AEDPA relief is not available where “there are reasonable arguments on
both sides” of an issue). In the present case, the trial court’s denial of the jury’s request to
view Mr. Berry’s videotape was consistent with an agreement between the parties that it
60

would be admitted only as a court exhibit. Under these circumstances, it is not unreasonable
for the OCCA to have found that Petitioner was not denied his right to counsel. Smith,
157 P.3d at 1173 (“On the basis of this record, the trial court judge’s decision not to consult
counsel was correct because, as she understood it, counsel had already been consulted and
the parties agreed the tape would be withheld from the jury.”). Such circumstances could
lead reasonable jurists to conclude that it was not a critical stage where Cronic applies.
Cronic, therefore, does not support Petitioner’s claim for relief.24
Petitioner also asserts that the OCCA’s decision is contrary to or an unreasonable
application of Shields which he contends is factually indistinguishable and stands for the
proposition that he and his counsel were entitled to be present for the trial court’s reinstruction of the jury. Petition, pp. 70-72. In Shields, the parties requested that the trial
court hold the jury in deliberation until a verdict could be reached. Shields, 273 U.S. at 584.
During deliberations, the trial court interacted with the jury on more than one occasion
without the defendant or his counsel. These interactions revealed “a marked difference in
the views which the jury had as to the guilt of the various defendants.” Ultimately, the jury
found Shields guilty, but with a recommendation of mercy. Id. at 584-85, 588. The Supreme
Court found that although the defense had agreed to allow the trial court to hold the jury in
deliberation until a verdict could be reached, that agreement did not encompass the exclusion

24

In a footnote to his Cronic argument, Petitioner makes an additional assertion that he was
denied his right to be present personally when the trial court responded to the jury’s questions.
Petition, p. 69 n.14. Finding this footnote assertion to be a clearly inadequate presentation of a
constitutional claim, the Court declines to address it.
61

of the defendant and/or his counsel where it was clear that the jury was struggling with the
verdict. The Court found that the prior agreement “did not justify exception to the rule of
orderly conduct of jury trial entitling the defendant, especially in a criminal case, to be
present from the time the jury is impaneled until its discharge after rendering the verdict.”
Id. at 588-89.
Although Petitioner characterizes the Supreme Court’s holding in Shields as a blanket
rule warranting automatic relief whenever a defendant and/or his counsel are absent from any
part of the jury trial proceedings, Petitioner’s interpretation is much too broad, as
demonstrated by subsequent Supreme Court authority. In Snyder, 291 U.S. at 105-06, the
Supreme Court held that a defendant “has the privilege under the Fourteenth Amendment to
be present in his own person whenever his presence has a relation, reasonably substantial,
to the fullness of his opportunity to defend against the charge.” However, a due process
violation occurs only when “a fair and just hearing would be thwarted by his absence,” and
there is no violation where a defendant’s “presence would be useless, or the benefit but a
shadow.” Id. at 106-07, 108. In Rushen, 464 U.S. at 117, the Supreme Court held that
harmless error applies to an ex parte communication between a trial judge and juror.
Referencing Shields, the Court acknowledged that “[w]hen an ex parte communication
relates to some aspect of the trial, the trial judge generally should disclose the
communication to counsel for all parties.” Rushen, 464 U.S. at 119 & n.4 (emphasis added).
The Court additionally noted as follows:

62

Our cases recognize that the right to personal presence at all critical stages of
the trial and the right to counsel are fundamental rights of each criminal
defendant. “At the same time and without detracting from the fundamental
importance of [these rights], we have implicitly recognized the necessity for
preserving society’s interest in the administration of criminal justice. Cases
involving [such constitutional] deprivations are [therefore] subject to the
general rule that remedies should be tailored to the injury suffered ... and
should not unnecessarily infringe on competing interests.” United States v.
Morrison, 449 U.S. 361, 364, 101 S.Ct. 665, 667, 66 L.Ed.2d 564 (1981); see
also Rogers v. United States, 422 U.S. 35, 38–40, 95 S.Ct. 2091, 2094–2095,
45 L.Ed.2d 1 (1975). In this spirit, we have previously noted that the
Constitution “does not require a new trial every time a juror has been placed
in a potentially compromising situation ... [because] it is virtually impossible
to shield jurors from every contact or influence that might theoretically affect
their vote.” Smith v. Phillips, 455 U.S. 209, 217, 102 S.Ct. 940, 946,
71 L.Ed.2d 78 (1982). There is scarcely a lengthy trial in which one or more
jurors do not have occasion to speak to the trial judge about something,
whether it relates to a matter of personal comfort or to some aspect of the trial.
The lower federal courts’ conclusion that an unrecorded ex parte
communication between trial judge and juror can never be harmless error
ignores these day-to-day realities of courtroom life and undermines society’s
interest in the administration of criminal justice.
Id. at 118-19 (footnotes omitted). See also United States v. Gagnon, 470 U.S. 522, 52627 (1985) (discussing both Snyder and Rushen).
In addition, the facts in Shields are distinguishable from the present case. In Shields,
the trial court interacted with the jury on more than one occasion without consulting defense
counsel when it was clear that the jury was struggling with the issue of guilt. The trial court
in effect nudged the jury to a guilty verdict. In these circumstances, it is clear that the
absence of the defendant and/or his counsel was detrimental to the defendant. In Petitioner’s
case, the trial judge imparted no additional knowledge to the jury. The judge’s responses to
the jury’s questions were legally correct and in accordance with the agreement of the parties.

63

With respect to State’s Exhibit 133 in particular, because defense counsel had already been
heard as to his position regarding the exhibit, it cannot be said that his absence (or
Petitioner’s absence for that matter) was detrimental to Petitioner. For these reasons, the
Court finds that Petitioner has not shown that the OCCA’s decision is contrary to or an
unreasonable application of Shields.
Petitioner’s final argument is that the OCCA’s decision is contrary to or an
unreasonable application of Hicks. In Hicks, 447 U.S. at 346, the Supreme Court found a
due process violation where the State arbitrarily denied a defendant his state law right to jury
sentencing. To establish a due process violation occasioned by a state’s failure to follow its
own law, a habeas petitioner must show that the deprivation was “‘arbitrary in the
constitutional sense’; that is, it must shock the judicial conscience.” Aycox v. Lytle,
196 F.3d 1174, 1180 (10th Cir. 1999) (citation omitted). While it is clear that Petitioner is
dissatisfied with the OCCA’s treatment of his claim, Petitioner’s arguments do not support
a finding that the OCCA acted arbitrarily in its application of Okla. Stat. tit. 22, § 894 and
Wilson, 534 P.2d at 1327.
In conclusion, for all of the reasons set forth above, Petitioner has failed to
demonstrate his entitlement to relief. Ground Five is therefore denied.
F.

Ground Six: Batson.

In Ground Six, Petitioner alleges a violation of Batson v. Kentucky,
476 U.S. 79 (1986). Petitioner challenges the prosecution’s use of a peremptory challenge
to remove an African-American from the panel of alternate jurors. Petitioner raised this
64

claim on direct appeal. The OCCA addressed the merits of the claim and denied relief. As
to be expected, the parties are at odds over whether the OCCA’s decision is an unreasonable
application of Batson.
Batson stands for the well-established principle that the prosecution cannot use a
peremptory challenge to remove a potential juror “solely on account of their race.” Batson,
476 U.S. at 89. In Batson, the Supreme Court set forth the standard to evaluate such claims.
First, the defendant must make a prima facie showing that the prosecutor has
exercised peremptory challenges on the basis of race. Second, if the requisite
showing has been made, the burden shifts to the prosecutor to articulate a
race-neutral explanation for striking the jurors in question. Finally, the trial
court must determine whether the defendant has carried his burden of proving
purposeful discrimination.
Hernandez v. New York, 500 U.S. 352, 358-59 (1991) (citing Batson) (citations omitted).
Regarding the second step, it is clear that the prosecution “must present a comprehensible
reason”; however, the explanation given need not be either persuasive or plausible. “[S]o
long as the reason is not inherently discriminatory, it suffices.” Rice v. Collins, 546 U.S.
333, 338 (2006). In the final step, the trial court evaluates the prosecution’s given
explanation, and it is here “that the persuasiveness of the justification becomes
relevant . . . .” Purkett v. Elem, 514 U.S. 765, 768 (1995). With the understanding “that the
ultimate burden of persuasion regarding racial motivation rests with, and never shifts from,
the opponent of the strike[,]” it is here that the trial court “determines whether the opponent
of the strike has carried his burden of proving purposeful discrimination.” Id.

65

Because the trial court’s decision is in essence an assessment of the prosecutor’s
credibility, it is a factual determination afforded great deference. Batson, 476 U.S. at 98
n.21. As noted in Hernandez,
the decisive question will be whether counsel’s race-neutral explanation for a
peremptory challenge should be believed. There will seldom be much
evidence bearing on that issue, and the best evidence often will be the
demeanor of the attorney who exercises the challenge.
Hernandez, 500 U.S. at 365. In the habeas context, this deference is not only acknowledged
but magnified by the provisions of the AEDPA. As a question of fact, both 28 U.S.C.
§ 2254(e)(1) and 28 U.S.C. § 2254(d)(2) are implicated. Thus, in order to prevail before this
Court, Petitioner “must demonstrate that a state court’s finding of the absence of purposeful
discrimination was incorrect by clear and convincing evidence, . . . and that the
corresponding factual determination was ‘objectively unreasonable’ in light of the record
before the court.” Miller-El v. Cockrell, 537 U.S. 322, 348 (2003) (citation omitted).
In denying Petitioner relief, the OCCA held as follows:
In his first assignment of error, [Petitioner] contends that the State’s
proffered race-neutral reasons for striking a potential alternate juror with a
peremptory challenge was pretextual, and that the juror’s excusal from the jury
violated the Equal Protection Clause of the United States Constitution under
Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).
Batson establishes the following three part analysis: (1) the defendant
must make a prima facie showing that the prosecutor exercised peremptory
challenges on the basis of race; (2) after the requisite showing is made, the
burden shifts to the prosecutor to articulate a race-neutral reason related to the
case for striking the juror in question; and (3) the trial court must then
determine whether the defendant carried his burden of proving deliberate
discrimination. 476 U.S. at 96–98, 106 S.Ct. at 1723–24, 90 L.Ed.2d at 87–88.
As for the second requirement, the United States Supreme Court noted the
66

race-neutral explanation by the prosecutor need not rise to the level justifying
excusal for cause, but it must be a “clear and reasonably specific” explanation
of his “legitimate reasons” for exercising the challenges. Neill v. State,
1994 OK CR 69, ¶ 17, 896 P.2d 537, 546 (quoting Batson, 476 U.S. at 98,
n. 20, 106 S.Ct. at 1723, n. 20, 90 L.Ed.2d at 88–89, n. 20). The trial court’s
findings as to discriminatory intent are entitled to great deference, id., and our
review is for clear error only. Pennington v. State, 1995 OK CR 79, ¶ 29,
913 P.2d 1356, 1365. We review the record in the light most favorable to the
trial court’s ruling. Neill, 1994 OK CR 69, ¶ 17, 896 P.2d at 546.
The record here shows the prosecutor offered several explanations for
striking the potential alternate juror. A neutral explanation in the context of
this analysis means one based on something other than the race of the juror.
Short v. State, 1999 OK CR 15, ¶ 13, 980 P.2d 1081, 1091. At this step in the
inquiry, the issue is the facial validity of the prosecutor’s explanation. Id.
Unless a discriminatory intent is inherent in the prosecutor’s explanation, the
reason given is deemed race neutral. Id. (quoting Hernandez v. New York,
500 U.S. 352, 360, 111 S.Ct. 1859, 1866, 114 L.Ed.2d 395, 406 (1991));
Purkett v. Elem, 514 U.S. 765, 768, 115 S.Ct. 1769, 1770–71, 131 L.Ed.2d
834, 839 (1995).
Here, the prosecutor used a peremptory challenge to excuse the
venireman. In exercising the challenge, the prosecutor explained that:
He [the juror] does not want to sit on this jury. His initial questions.
We’re also concerned about the tattoos on his neck. That’s generally a
commonplace where gang members do tattoos of their initials or letters.
They are kind of done in sort of a calligraphy, which again is common
among gang members. When the Court asked him questions about gang
activity, even though the Court had done that not in the presence of rest
of the jury, and we’re also concerned with his age and his ability to sit
on a case of this magnitude. Those are all reasons together that we have
kicked or excused him.
(Tr. 3 at 167).
Over defense counsel’s objection, the trial court judge explained that
she had inquired of the juror concerning the tattoo prior to the prosecutor
exercising his peremptory challenge, and noted that in her experience, people
get tattoos for gang related reasons and many do not. The judge then
explained:
67

I do believe that he [the juror] has stated that he would prefer not to be
here. I do believe that that is a reason that is race-neutral because I
think it’s clear he would prefer not to be here and I think he has stated
that. So, I don’t believe that your striking him is for an illegal purpose
or for the purpose of excluding, quote, unquote, ‘minority’ members of
the jury.
(Tr. 3 at 167).
On the basis of this record, we agree with the trial court’s finding that
the prosecutor’s explanation (the juror’s expressed reluctance to sit) provided
a facially valid reason that in itself does not reveal an intent to discriminate on
the basis of race. We move now to the next stage of the Batson analysis.
Once a race-neutral explanation for the peremptory strike has been
advanced, the opponent of the strike bears the burden of proving purposeful
discrimination. Batson, 476 U.S. at 98, 106 S.Ct. at 1724, 90 L.Ed.2d at 88–89;
Purkett, 514 U.S. at 768, 115 S.Ct. at 1771, 131 L.Ed.2d at 839. A trial court’s
decision on the issue of discriminatory intent will not be overturned unless we
are convinced the determination is clearly erroneous. Short, 1999 OK CR 15,
¶ 17, 980 P.2d at 1092. Here the trial court chose to believe the prosecutor’s
proffered race neutral explanation. There is no evidence in this record
establishing that the prosecutor in this case had a history of purposeful
discrimination against jurors on the basis of race or that race was even an issue
in the case. No allegations were made that the commission of the offenses or
[Petitioner’s] prosecution for them were in any way racially or ethnically
motivated. We find no error in the trial court’s determination that [Petitioner]
failed to carry his burden of showing purposeful discrimination.
[Petitioner] also raises two arguments that were not raised below in an
attempt to demonstrate that the prosecutor’s proffered justification for striking
the juror was a pretext for purposeful racial discrimination. In the first, he
claims the prosecutor’s expressed concern about the juror’s potentially
gang-related tattoo was in itself evidence of an improper desire to exclude him
based solely on race because, according to [Petitioner], gang membership is
typically associated with minority races.[FN2] In the second, he claims that the
prosecutor’s proffered explanation was pretextual because the prosecutor did
not strike two other potential alternate jurors who suggested that they preferred
not to serve on the jury. We find neither argument persuasive.

68

FN2. [Petitioner] cites numerous extra-record sources to support his
position that “common usage of the word ‘gang’ or term ‘Crips’ in
Oklahoma County courtrooms is well-documented as applying
overwhelmingly to African–American defendants.” Even if we were to
accept [Petitioner’s] contention that peremptorily striking a juror for
gang membership is the same as striking him for his race, the fact is,
potential gang membership or sympathy was just one of several reasons
offered by the prosecutor as a basis for the strike. Where a prosecutor
offers a discriminatory explanation for a strike among a number of
other permissible and plausible race-neutral reasons, and the trial court
bases its decision on one of the race-neutral explanations, there is no
Batson violation. Rice v. Collins, 546 U.S. 333, 126 S.Ct. 969, 975–76,
163 L.Ed.2d 824 (2006). Here, the record reflects that in addition to
gang concerns, the prosecutor also voiced concerns related to the
potential juror’s unwillingness to serve on the jury as well as his age.
Disregarding the proffered gang rationale, the trial court judge clearly
decided the issue on the basis of the race-neutral reason that the juror
did not want to serve on the jury. Under the Rice rationale, therefore,
even if the proffered gang reason was discriminatory, because the judge
disregarded that reason and based her decision instead on one of the
other race-neutral reasons, there is no Batson error here. Additionally,
as noted, the prosecutor in this instance also explained that he was
concerned about the juror’s age and his resulting ability to sit on a case
of this magnitude. In Rice, 126 S.Ct. at 975, the Supreme Court found
that a prosecutor’s concern about a juror’s youth was a valid
race-neutral explanation for a peremptory strike because “[i]t is not
unreasonable to believe the prosecutor remained worried that a young
person with few ties to the community might be less willing than an
older, more permanent resident to impose a lengthy sentence for
possessing a small amount of controlled substance.”
[Petitioner’s] first argument misses the mark. The record indicates that
the State intended to show that [Petitioner’s] involvement in at least one of the
murders was related to his gang activities and that gang-related matters would
permeate the trial. The motive for the Pulluru murder in particular was linked
to [Petitioner’s] desire to seek revenge against a convenience store owner he
believed made disparaging comments to the media about Teron “T–Nok”
Armstrong, a fellow gang member who was killed during the course of the
attempted robbery at Tran’s Food Mart in 2000. Also, the prosecutor certainly
knew before trial that the defense intended to call an expert witness to testify
in the penalty phase of the trial about the history, sociology, and dynamics of
69

gangs in Oklahoma in an effort to provide mitigating evidence on [Petitioner’s]
behalf. With gang activity and gang-related matters at issue in this case, any
concern the prosecutor showed in the possible gang involvement of a
prospective juror was reasonable and race neutral.[FN3]
FN3. Additionally, allowing a gang member to serve on a jury when
another gang member is on trial for gang-related criminal activity could
compromise the accused’s right to a fair trial if the gang-member juror
turned out to be a member of a rival gang, or was in sympathy with a
rival gang. Moreover, allowing a gang member to participate in jury
deliberations in a gang-related case could place the jurors themselves
in jeopardy. Indeed, the jurors in this case expressed concerns about the
possibility of gang reprisals against themselves (See District Court’s
Findings of Fact Re: Order Sealing Records at 4 (Supp. Rec. filed
Sep. 10, 2004)). As a result, the trial court judge placed all juror
identity information under seal. Under the circumstances, therefore,
where the subject matter of the trial revolved around gang-related
criminal activities, the prosecutor’s concerns that a juror might have
gang connections or sympathies were reasonable.
We are also unpersuaded by [Petitioner’s] argument that the
prosecutor’s failure to strike two other potential alternate jurors who also
suggested that they did not want to serve constituted evidence of a pretext. The
fact that the prosecution failed to challenge other potential jurors who also said
they did not want to sit does not erode the legitimacy of the race-neutral
explanation for challenging one juror. Cf. Short, 1999 OK CR 15, ¶ 15,
980 P.2d at 1092 (holding that “[t]he fact that this reason, criminal records by
family members, was not used in every instance in which it arose to excuse
potential jurors, does not lessen its legitimacy as a race-neutral explanation”).
Further, [Petitioner’s] claim on this score is factually infirm. The record shows
that contrary to [Petitioner’s] suggestion, the two jurors did not express an
unwillingness to serve on the jury, much less do it in the same blunt terms as
the excused juror. Instead, the record of voir dire shows the responses of the
other two jurors were equivocal. Saying that sitting on a jury in a capital case
“is not an easy thing,” or that being surprised at receiving a summons for jury
duty, or that deciding between life without parole and death “would be hard
choices to make” do not indicate an unwillingness to serve that is equivalent
in any way to the sentiment expressed by the excused potential juror who said
“I really don’t want to be here.” [FN4]

70

FN4. An earlier round of questioning during voir dire included this
exchange between the prosecutor and the excused potential alternate
juror:
[Q.] Have you ever wanted to sit on a jury?
[A.] No.
[Q.] Still feel that way?
[A.] Yeah.
[Petitioner] also asserts that exclusion of this minority juror undermined
the reliability of his death sentence under the Eighth Amendment of the United
States Constitution. [Petitioner] raises this claim in a single-sentence assertion.
He makes no attempt at developed argument, cites no authority, and points to
no portion of the record for factual support. The Eighth Amendment prohibits
excessive bail, excessive fines, and imposition of cruel and unusual
punishment. Because [Petitioner] offers no explanation of how exclusion of the
potential juror violated this constitutional provision, his mere assertion is
insufficient to demonstrate the existence of legal error, much less demonstrate
that the alleged error had a substantial effect on the outcome of the trial or
sentencing proceeding.
Smith, 157 P.3d at 1162-64.
Petitioner challenges the OCCA’s decision on two grounds. First, Petitioner asserts
that the OCCA, inconsistent with Batson, impermissibly placed a higher burden on him with
respect to the prima facie showing. With a partial quotation of a sentence in the OCCA’s
opinion, Petitioner argues that the OCCA imposed upon him a requirement to prove that “the
prosecutor in [his] case had a history of purposeful discrimination . . . .” Petitioner argues
that Batson does not impose this standard and that it allows for a prima facie showing to be
satisfied “based solely on the evidence concerning the State’s use of peremptory challenges
in his own case.” Petition, p. 80 (citing Batson, 476 U.S. at 95). The problem with
Petitioner’s contention lies in his failure to fully quote the referenced sentence. What the
OCCA stated was this: “There is no evidence in this record establishing that the prosecutor
71

in this case had a history of purposeful discrimination against jurors on the basis of race or
that race was even an issue in the case.” Smith, 157 P.3d at 1163 (emphasis added). In
context, it is clear that the OCCA did not alter or misapply the Batson standard.
Second, Petitioner asserts that the OCCA did not properly apply Batson’s third step.
Here, Petitioner contends, as he did on direct appeal, that because there were other jurors
who expressed a desire not to serve, the prosecutor’s use of this reason to remove the Batsonchallenged juror was pretextual.25 On direct appeal, Petitioner supported his argument with
reference to two jurors who were a part of the alternate selection process, Juror F, who
ultimately served as one of the alternate jurors, and Juror M. Here, Petitioner adds an
additional juror, Juror A, who actually sat on the jury.
Although Petitioner faults the OCCA for including a statement26 which appears to
downplay, if not disregard, the relevance of comparative juror analysis in assessing whether
purposeful discrimination has occurred, the OCCA did not foreclose relief to Petitioner on
this basis but ultimately analyzed and rejected Petitioner’s comparisons as “factually infirm.”

25

As the OCCA noted, Petitioner did not present this argument to the trial court, but raised
it for the first time on appeal. Smith, 157 P.3d at 1163.
26

The statement to which Petitioner takes issue is as follows: “The fact that the prosecution
failed to challenge other potential jurors who also said they did not want to sit does not erode the
legitimacy of the race-neutral explanation for challenging one juror.” Smith, 157 P.3d at 1164.
While the Supreme Court has not mandated that comparative juror analysis be performed when
conducting a Batson analysis, it has nevertheless found it to be a useful tool in determining whether
purposeful discrimination has occurred. See Murray v. Schriro, 745 F.3d 984, 1005 (9th Cir. 2014)
(“Batson and the cases that follow it do not require trial courts to conduct a comparative juror
analysis. Rather, what Miller–El [v. Dretke, 545 U.S. 231 (2005),] established is that a comparative
juror analysis is an important means for federal courts to review a trial court’s ruling in a Batson
challenge.”).
72

Smith, 157 P.3d at 1164. Reviewing the statements made by Juror F and Juror M, the OCCA
concluded that they “did not express an unwillingness to serve on the jury, much less do it
in the same blunt terms as the excused juror.” Id. The Court finds that Petitioner has failed
to show that this determination by the OCCA is “incorrect by clear and convincing evidence”
and that it is “‘objectively unreasonable’ in light of the record before the court.” Miller-El,
537 U.S. at 348 (citation omitted).
In response to a question from the prosecutor about what Juror F thought about sitting
on the case, the following exchange took place:
PROSPECTIVE JUROR F: At first I was against it but as I sat back
there and listened to it - [PROSECUTOR]: You were against sitting on a trial, you were
against the death penalty, what?
PROSPECTIVE JUROR F: No, I wasn’t against the death penalty. I
was just nervous to sit here. I didn’t mind back there but I was dreading it up
here.
[PROSECUTOR]: Now that you’re up here , what do you think?
PROSPECTIVE JUROR F: I’m getting a little easier. It’s not an easy
thing, I guess, if you understand what I’m getting at. I can’t explain myself
real good.
(J. Tr. 3, 154-55). With Juror M, the prosecutor asked her if she had ever sat on a jury
before, to which she replied, “No.” The prosecutor followed up with a question as to how
she felt when she received her summons. She responded, “I was surprised” (J. Tr. 3, 157).
In contrast, the Batson-challenged juror stated that he had never wanted to sit on a jury and
that he still felt that way, followed by a second comment of “I really don’t want to be
73

here” (J. Tr. 3, 150, 157). This record supports the OCCA’s determination that the comments
by Juror F and Juror M were not “equivalent in any way to the sentiment expressed by the
excused potential juror . . . .” Smith, 157 P.3d at 1164. Moreover, Petitioner’s reference to
the comments of a third juror, Juror A, does not undercut the OCCA’s reasonable finding.
Like Juror M, Juror A stated that he was surprised when he received his summons. Juror A
further stated that while he had never really wanted to sit on a jury, “It’s a new
experience” (J. Tr. 1, 164). Like Juror F and Juror M, Juror A’s comments are not of the
same caliber as those expressed by the excused juror.
In conclusion, for the reasons set forth above, the Court finds that Petitioner has failed
to demonstrate his entitlement to relief on this ground. Ground Six is therefore denied.
G.

Ground Seven:

Joinder of Offenses.

In Ground Seven, Petitioner asserts that he was denied a fair trial by being tried for
the crimes against Ms. Moore and Mr. Pulluru in a single trial. Petitioner raised this claim
on direct appeal and was denied relief. Petitioner asserts that the OCCA’s decision is an
unreasonable application of federal law as well as an unreasonable determination of the facts.
Respondent contends that much of Petitioner’s claim is unexhausted; however, Respondent
additionally asserts that Petitioner has failed to show that the OCCA’s decision is an
unreasonable determination of the facts or that it is contrary to or an unreasonable application
of United States v. Lane, 474 U.S. 438 (1986), the applicable Supreme Court authority.
Initially, the issue of exhaustion must be addressed. Respondent contends that
Petitioner did not raise any federal claim on direct appeal, but instead argued only a violation
74

of state law. Although much of Petitioner’s claim on direct appeal was founded on
Oklahoma statutes and case law, Petitioner asserted in his opening brief that he had been
denied a fair trial, and through supplemental authority filed after oral argument, he cited
federal case law in support of his claim. Petitioner’s pleadings resulted in the OCCA
acknowledging the federal claim, but finding that Petitioner had failed to demonstrate a
“constitutional theory of misjoinder.”

Smith, 157 P.3d at 1168 n.7.

Under these

circumstances, the Court finds that the federal claim has been exhausted.27
Respondent additionally asserts that Petitioner has supported his habeas claim with
new arguments which are not properly before the Court. On this point, the Court agrees. In
Pinholster, 131 S. Ct. at 1398, the Supreme Court held that review under AEDPA is “limited
to the record that was before the state court that adjudicated the claim on the merits.” In
support of his joinder claim, Petitioner has relied upon the affidavits of Ms. Johnson and
Mr. Berry as well as others; however, this evidence was not presented to the OCCA at the

27

The Court notes that Petitioner has presented his argument in accordance with the factors
considered under Oklahoma law and as set forth by the OCCA in Glass v. State, 701 P.2d 765 (Okla.
Crim. App. 1985). However, the Court is not considering Petitioner’s state law claim because “it
is not the province of a federal habeas court to reexamine state-court determinations on state-law
questions.” Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). See Webber v. Scott, 390 F.3d 1169,
1177 n.5 (10th Cir. 2004) (“To the extent [petitioner] is arguing that the joinder is improper under
state law, such a claim is not a basis for federal habeas relief.”) (citing Fox v. Ward, 200 F.3d 1286,
1292 (10th Cir.2000)).
75

time of Petitioner’s direct appeal.28 Consequently, the Court will not consider this evidence
in its determination of this claim.
In Lane, the Supreme Court acknowledged that “[i]mproper joinder does not, in itself,
violate the Constitution. Rather, misjoinder would rise to the level of a constitutional
violation only if it results in prejudice so great as to deny a defendant his Fifth Amendment
right to a fair trial.” Lane, 474 U.S. 438, 446 n.8 (1986). See Cummings v. Sirmons,
506 F.3d 1211, 1239 (10th Cir. 2007) (quoting Lane and requiring a habeas petitioner to
show the denial of a fundamentally fair trial in order to obtain relief for improper joinder);
Lucero v. Kerby, 133 F.3d 1299, 1314 (10th Cir. 1998) (same). “Such prejudice may arise
when there is a great disparity in the amount of evidence supporting the charges or when the
jury is likely to confuse the evidence or infer a criminal disposition on the part of the
defendant.” Webber, 390 F.3d at 1178 (citing Lucero).
In his attack of the OCCA’s opinion, Petitioner argues that the murders of Ms. Moore
and Mr. Pulluru were separate and distinct crimes. Although relying heavily on the affidavits
of Ms. Johnson and Mr. Berry (which the Court is not considering, see fn.28, supra),
Petitioner argues against the OCCA’s finding that the murders were gang-related. Petitioner
additionally asserts that the murders were not geographically related, nor did they evidence

28

The affidavits, which are included as attachments to the Petition (Attachments 10, 12, 24,
and 32) were not even in existence at the time of Petitioner’s direct appeal. The Court notes that
although Petitioner also makes reference to Petition Attachment 16, the reference appears to be in
error as it does not support the assertion made. Petition, p. 89. In any event, as it was also executed
after Petitioner’s direct appeal, it, too, is excluded from the Court’s consideration.
76

a common scheme or plan. Finally, Petitioner asserts that evidence of both crimes29 made
it difficult for the jury to “sort out and separate the evidence relating to the separate crimes,”
and that it “allow[ed] the State to provide the illusion of a greater deal of proof, and proof
of a higher quality, than would have been possible in separate trials.” Petition, pp. 86, 89.
In denying Petitioner relief on this claim, the OCCA held in pertinent part as follows:
In this instance, the two murders were properly joined. Evidence for
each murder consisted of [Petitioner’s] confession tape, the testimony of
Detectives Sterling and McNutt, as well as the testimony of Marcus Berry and
Sheena Johnson. The confession tape and witness testimony contained
admissions and statements made by [Petitioner] during the course of
conversations that simultaneously covered both murders. Trying each murder
separately by presenting the same confession tape and witness testimony,
therefore, would result in waste of judicial resources. Furthermore, because the
tape and testimony contained admissions and statements made by [Petitioner]
during the course of conversations that simultaneously covered both murders,
wrenching the relevant admissions and statements from the context in which
they were uttered would likely render the testimony unintelligible to a jury.
Because the proof of each murder was inextricably intertwined with proof of
the other, severance would have been impractical.

29

Within this ground for relief, Petitioner also attacks the quality and substance of the
presented evidence. In particular, Petitioner asserts that his confession is suspect and possibly false,
that the shoe prints were “circumstantial at best,” and that the forensic analysis of the bullets “went
beyond the realm of science.” Petition, pp. 86-88. The Court finds these arguments unpersuasive.
Regarding his confession, Petitioner’s challenge to its admission is addressed in Ground Three.
Therein, the Court has found that the OCCA did not act unreasonably in determining its
voluntariness and proper admission. With respect to the shoe prints, Petitioner simply states the
obvious when he states that the shoe print evidence was circumstantial. Finally, regarding the
testimony of firearms examiner Terrance Higgs, Petitioner has not shown that his testimony was
invalid or patently unreliable. The record reflects that Mr. Higgs was a qualified expert in his field,
whose opinion was only lightly challenged on cross-examination. Since the record reflects that the
defense was permitted its own examination of the evidence (J. Tr. 9, 39), it can be assumed from the
limited cross-examination of Mr. Higgs, as well the defense’s failure to present their own expert,
that the defense did not discover any significant holes in Mr. Higgs’ opinion.
77

Furthermore, despite [Petitioner’s] arguments that the two murders were
unrelated, and therefore not properly joined, we are convinced that the proof
related to each murder did overlap, and that it did so in such a way as to show
a common scheme or plan. Specifically, the forensic evidence showed that at
least one of the handguns used in the Moore murder was also used in the
Pulluru murder. Additionally, [Petitioner’s] admissions showed that in both
instances he attempted to conceal his identity by eliminating fingerprint
evidence at the scene (albeit in Moore’s case he did so by wiping down the
apartment and in Pulluru’s case he did so by setting fire to portions of the
convenience store where he touched things). Moreover, [Petitioner’s]
statements to police, to fellow gang member Marcus Berry, and to Sheena
Johnson overlapped sufficiently to create a logical connection between the two
murders. [Petitioner’s] statements established the requisite nexus by tying both
murders together as part of a common plan to take care of business that day by
exacting revenge or retaliation against persons who had either wronged him
directly or wronged him indirectly through his gang family.
In the case of the Moore murder, for example, [Petitioner] told Marcus
Berry several days before the killings that Janet Moore’s son was a “snitch”
and that “snitches need to be dead.” On the morning of the day following the
killings, [Petitioner] told Berry that: (1) he had done something he had to do;
(2) he had handled his business; and (3) he had gotten revenge on people who
“crossed his family.” In a separate conversation, [Petitioner] told Sheena
Johnson “[t]hat bitch ass n* * * * * [Moore’s son] sent the police to my house,
my apartment” and that as a result, he had gone to Moore’s apartment looking
for the son. [Petitioner] told her that once he was in Moore’s apartment, she
started screaming so he shot and killed her.
The Pulluru murder was likewise shown to be part of [Petitioner’s] plan
to “take care of business” through retaliation. Evidence supporting this motive
included the facts that [Petitioner] professed to have been very close to gang
member Armstrong who was killed in the Tran’s Food Mart robbery attempt.
Specifically, [Petitioner] claimed to have brought Armstrong into the gang,
paid his funeral expenses, and told Armstrong’s mother that he would avenge
Armstrong’s death. Furthermore, [Petitioner] wore Armstrong’s nickname
“T–Nok” as a tattoo, and shouted “this is for my little homey that is dead” as
he fired multiple shots into Pulluru.
Mr. Han Vo provided additional linkage between the 2000 robbery and
the revenge-retaliation aspect of the Pulluru murder. Mr. Vo was the owner of
Tran’s Food Mart and was the victim of the attempted robbery in which
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Armstrong was killed. Mr. Vo testified that his convenience store was located
immediately adjacent to the store where Pulluru was killed. He testified further
that on the Friday morning of the Pulluru homicide, he was in the district
attorney’s office preparing for the trial of the two surviving would-be robbers.
By showing that the Pulluru murder occurred within yards of the location
where Armstrong was killed, and that the Pulluru murder occurred within two
days of the trial of the surviving robbers, Mr. Vo’s testimony provided
evidence supporting an inference that the Pulluru murder was part of a plan to
exact revenge for the events surrounding Armstrong’s gang-related death.
In summary, the evidence available to the district court judge at the time
she ruled on [Petitioner’s] joinder claims, and the development of that
evidence at trial showed the Moore and Pulluru killings: (1) occurred within
a relatively short period of time (i.e., one-and-a-half hours); (2) occurred in
approximately the same location (i.e., south Oklahoma City); and
(3) overlapped in such a way as to indicate a common scheme or plan (i.e., a
plan to retaliate against persons [Petitioner] perceived to have wronged him or
his gang or his fellow gang members). This evidence was sufficient to link the
two murders together as a series of related criminal acts. The district court
judge did not abuse her discretion in overruling [Petitioner’s] objection to
joinder or denying his motion for severance.
[Petitioner] also claims that combining two separately charged murders,
one of which he contends was supported by weak or nonexistent evidence,
resulted in prejudicial joinder sufficient to deny him a fair trial. [Petitioner]
argues that joining the Moore case, which he characterizes as supported by
weak or insufficient evidence, with the Pulluru case and its gruesome
gang-related evidence, increased the likelihood that the jury would return a
guilty verdict in both cases by: (1) relying on the proof of the stronger Pulluru
murder to convict on the weaker Moore murder; or (2) inflaming the jury so
much on evidence of the gang-related Pulluru murder that the jury reached a
guilty verdict on the Moore murder on the basis of passion or prejudice.
Some courts have recognized that joinder of offenses in a single trial
may be prejudicial if there is great disparity in the amount of evidence
underlying the joined offenses.[FN7] Contrary to [Petitioner’s] assertions,
however, this is not one of those cases. In this claim, [Petitioner] focuses
exclusively on the evidence of the Pulluru murder and argues that the weight
of its evidence overpowered weak or nonexistent evidence in the Moore case.
[Petitioner] ignores, however, the strong independent evidence supporting the
Moore verdict. In particular, he gives no consideration to his videotaped
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confession and ignores the fact the confession was well corroborated by
admissions made separately to Sheena Johnson and Marcus Berry. The Moore
murder was proved by separate and distinct evidence sufficient to support a
guilty verdict. We find no merit to [Petitioner’s] claim of prejudicial
misjoinder based on disparities in the quanta of evidence.
FN7. In a post-oral argument notice of supplemental authority,
[Petitioner] calls our attention to two cases discussing this theory of
misjoinder. Specifically, [Petitioner] refers us to Lucero v. Kerby,
133 F.3d 1299 (10th Cir.1998) and United States v. Foutz, 540 F.2d
733 (4th Cir.1976). To the extent these cases establish a cognizable
constitutional theory of misjoinder, for the reasons set out in the main
text, we find that [Petitioner] fails to show that he suffered this type of
misjoinder.
[Petitioner] also asserts that the jury reached its verdict in the Moore
murder on the basis of passions inflamed by the egregious facts of the Pulluru
murder, especially facts relating to his gang activities. [Petitioner] points to
nothing in the record, however, indicating that the jury was unable to
compartmentalize the evidence with regard to each count. Furthermore,
[Petitioner’s] jury was specifically instructed to give separate consideration to
each offense as follows:
EVIDENCE—SEPARATE
OFFENSE

CONSIDERATION

FOR

EACH

You must give separate consideration for each offense. The defendant
is entitled to have his case decided on the basis of the evidence and law
which is applicable to each offense. The fact that you return a verdict
of guilty or not guilty on one offense should not, in any way, affect
your verdict regarding any one of the other offenses.
(Instruction No. 6 (citing OUJI–CR 9–6))(emphasis added). [Petitioner] does
not point to anything in the record tending to show that the jury failed to
follow this instruction. With nothing but a bare allegation of prejudice, and in
light of the fact that the jury was specifically instructed to give separate
consideration to each offense, we cannot conclude that joinder of the Moore
and Pulluru murders resulted in prejudice so great as to deny [Petitioner] a fair
trial.
Smith, 157 P.3d at 1167-69 (heading omitted).
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Despite Petitioner’s arguments to the contrary, the Court finds that the OCCA’s
decision is a reasonable application of the law and a reasonable determination of the facts.
While it may be inherently prejudicial to be tried in the same trial for two gang-related
crimes, the “fault” for the joinder of offenses must fall on Petitioner, as it was he who
connected what appeared to be too separate crimes by making admissions to third parties as
well as to the police. Moreover, it is completely disingenuous for Petitioner to argue that the
murders and attendant crimes were not gang related, when it was Petitioner himself, as a
member of the Crips gang, who set out on February 22, 2002, with a mission to right wrongs
he felt had been committed against him and his gang family. Under these circumstances, it
simply cannot be said that “all ‘fairminded jurists’ would agree that the [OCCA] got it
wrong.” Lockett v. Trammel [sic], 711 F.3d 1218, 1231 (10th Cir. 2013) (quoting Richter).
Relief on Ground Seven is therefore denied.
H.

Ground Eight:

Ineffective Assistance of Trial and Appellate Counsel
Relating to the Prosecution’s Multiple References to
Petitioner as “Hoover Killer.”

In Ground Eight, Petitioner asserts that he was denied the effective assistance of
counsel at trial and on appeal with respect the prosecution’s multiple references to him as
“Hoover Killer” throughout both stages of trial. Petitioner faults his trial counsel for not
making objections at trial and he faults his appellate counsel for not raising the claim on
appeal. Petitioner raised this claim in his first application for post-conviction relief. Because
one of Petitioner’s trial lawyers also represented Petitioner on direct appeal, the OCCA did
not apply a procedural bar to the claim, but instead addressed it on the merits. Petitioner
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asserts that the OCCA’s merits denial is contrary to federal law. In light of AEDPA
deference and the deference afforded to Strickland claims, Respondent contends that
Petitioner has failed to demonstrate his entitlement to relief.
In denying Petitioner’s claim, the OCCA held as follows:
[Petitioner] claims first that trial and appellate counsel were
constitutionally ineffective for failing to object at trial or argue on appeal that
the prosecutor committed misconduct by referring to him as “Hoover Killer”
or “H.K.” To obtain relief for ineffective assistance of trial or appellate
counsel, a petitioner bears the burden of showing: (1) that counsel’s
performance was constitutionally deficient; and (2) that counsel’s deficient
performance prejudiced the defense by depriving him of a fair trial with a
reasonable result. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct.
2052, 123 L.Ed.2d 674 (1984).
Name-calling by a prosecutor is an unwarranted expression of personal
opinion. Browning v. State, 2006 OK CR 8, ¶ 38, 134 P.3d 816, 839. Where
the names are supported by the evidence, or the characterizations inherent in
the names are reasonably inferred from the evidence, however, there is no
error. See e.g., Browning, 2006 OK CR 8, ¶ 38, 134 P.3d at 839 (finding that
prosecutor’s references to defendant as cold-blooded killer and wolf in sheep’s
clothing were not error because they were reasonable inferences from the
record); Malicoat v. State, 2000 OK CR 1, ¶ 32, 992 P.2d 383, 401 (finding no
plain error in prosecutor’s repeated use of terms monster and evil to describe
defendant); Hammon v. State, 2000 OK CR 7, ¶¶ 56, 60, 999 P.2d 1082, 109596 (finding no error in prosecutor’s reference to defendant as “Ruthless
Richard” where name was one defendant used to describe himself as shown by
signature on letter he wrote from jail).
Evidence at trial showed that [Petitioner] identified himself as “Hoover
Killer” and adopted that name as part of his street persona. During his
interview with detectives, for example, [Petitioner] admitted that he used the
nickname and proudly displayed a tattoo consisting of the initials “H.K.”
Additionally, [Petitioner’s] roommate testified that he knew [Petitioner] by the
names “Hoover Killer” and “H.K.,” and [Petitioner’s] female confidant, to
whom he admitted details of the homicide, knew him only by these nicknames.
Because there is evidence that [Petitioner] chose the names for himself, and
because there is evidence supporting his use of the names, there was no error
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in the prosecutor’s use of the names when referring to him. Consequently, had
trial counsel objected to use of the names, or had appellate counsel raised the
issue on direct appeal, the objection or claim would have been denied.[FN1]
Neither trial nor appellate counsel were ineffective for failing to raise a
meritless issue. Pavatt v. State, 2007 OK CR 19, ¶ 66, 159 P.3d 272, 292.
[FN1] This Court rejected [Petitioner’s] nearly identical claim in his
appeal of an unrelated second-degree murder conviction. In Smith v.
State, No. F-2004-290, Op. at 17 (Jun. 29, 2006) (not for publication),
this Court found that the prosecutor’s use of the name “Hoover Killer”
was not error where the nickname was chosen voluntarily by
[Petitioner], and the use of the name, when viewed in context, did not
appear excessive or in bad faith.
Furthermore, on this record, we fail to see how [Petitioner] was
prejudiced, even if the prosecutor’s use of the nickname is assumed to be error.
Specifically, we are not convinced that had the prosecutor simply referred to
[Petitioner] by his birth name rather than his nickname, the jury would have
overlooked the otherwise very strong evidence of guilt (e.g., videotaped
confession to police and incriminating statements to third parties), or
overlooked the strong evidence supporting the death penalty aggravating
factors. See Strickland, 466 U.S. at 691, 104 S.Ct. at 2067 (“[a]n error by
counsel, even if professionally unreasonable, does not warrant setting aside the
judgment of a criminal proceeding if the error had no effect on the judgment”).
Smith, No. PCD-2005-142, slip op. at 3-5. Because the OCCA addressed Petitioner’s claim
on the merits, applied Strickland, and denied Petitioner relief in a well-reasoned opinion,
Petitioner’s ability to obtain relief is significantly minimized. See Ground Four, supra
(discussing Richter and the high deference afforded Strickland claims under the AEDPA).
In support of his argument that the OCCA’s decision is contrary to federal law,
Petitioner addresses the propriety of the underlying prosecutorial misconduct claim, asserting
that the OCCA unreasonably determined that it was a meritless issue. Petitioner references
two Supreme Court cases, Donnelly v. DeChristoforo, 416 U.S. 637 (1974), and Dawson v.

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Delaware, 503 U.S. 159 (1992). In Donnelly, the Supreme Court set forth the standard for
assessing claims of prosecutorial misconduct. Generally, it is a due process test, i.e., whether
the prosecutor’s conduct “so infected the trial with unfairness as to make the resulting
conviction a denial of due process.” Donnelly, 416 U.S. at 643. However, “[w]hen specific
guarantees of the Bill of Rights are involved, . . . special care [is taken] to assure that
prosecutorial conduct in no way impermissibly infringes them.” Id. Petitioner then relies
on Dawson to support his claim that the prosecution infringed a specific right, namely his
First Amendment freedom of association, when they referred to him by a gang-related name.
Dawson, 503 U.S. at 163 (acknowledging “that the First Amendment protects an individual’s
right to join groups and associate with others holding similar beliefs”).
Respondent is correct that Petitioner did not argue to the OCCA that his First
Amendment right of association was infringed. See Original Application for Post Conviction
Relief, Case No. PCD-2005-142, pp. 21-24. Nevertheless, it is clear that this argument lacks
merit. 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.”). In Dawson, the Supreme Court found that admission
of evidence that the defendant was a member of the Aryan Brotherhood was prohibited by
the First and Fourteenth Amendments. Dawson, 503 U.S. at 160. However, the Dawson
Court did not find that this type of evidence was completely inadmissible, and it specifically
held “that the Constitution does not erect a per se barrier to the admission of evidence
concerning one’s beliefs and associations at sentencing simply because those beliefs and
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associations are protected by the First Amendment.” Id. at 165. The distinguishing factor
in Dawson was that the Aryan Brotherhood evidence had “no bearing on the issue being
tried,” and was therefore irrelevant. Id. at 160, 168. Such is not the case here, where there
is no question that the murders committed by Petitioner were gang related. By his own
admission, Petitioner’s actions were motivated by revenge and retaliation for wrongs
committed against him or his gang family. Smith, 157 P.3d at 1167 (“[Petitioner’s]
statements established the requisite nexus by tying both murders together as part of a
common plan to take care of business that day by exacting revenge or retaliation against
persons who had either wronged him directly or wronged him indirectly through his gang
family.”). Because Petitioner’s association with the Crips gang was intertwined with the
commission of his crimes, it is clear that the prosecution’s references to Petitioner’s gang
name did not deny Petitioner’s First Amendment rights. See Smith, No. PCD-2005-142, slip
op. at 5 (“Because there is evidence that [Petitioner] chose the names for himself, and
because there is evidence supporting his use of the names, there was no error in the
prosecutor’s use of the names when referring to him.”).
Petitioner additionally takes issue with the OCCA’s prejudice determination, which
included the OCCA’s assessment that the evidence supporting Petitioner’s convictions and
death sentences was strong. Id. With reference to his first ground for relief, Petitioner
argues that the evidence against him was not as strong as the OCCA found. Respondent
asserts that this argument is unexhausted as well; however, the Court disagrees. This
allegation is not a new claim, but an appropriate argument directed at the reasonableness of
85

the OCCA’s holding. Nevertheless, it is unavailing. In addition to finding that Petitioner is
not entitled to relief on his Ground One, the Court additionally concurs with the OCCA’s
assessment of the evidence. The evidence against Petitioner was in fact strong, particularly
in light of his confession and open acknowledgment of his gang involvement.
In summary, for the reasons set forth above, the Court finds that Petitioner is not
entitled to relief on Ground Eight. Because Petitioner has not shown that the OCCA acted
unreasonably in the determination of his claim, his Ground Eight is hereby denied.
I.

Ground Nine:

Jury’s Weighing of Aggravating and Mitigating
Circumstances.

In Ground Nine, Petitioner asserts that Ring v. Arizona, 536 U.S. 584 (2002), requires
Oklahoma capital juries to find beyond a reasonable doubt that the aggravating circumstances
outweigh the mitigating circumstances. Petitioner presented this claim to the OCCA on
direct appeal. Having repeatedly rejected similar claims, the OCCA denied Petitioner relief.
Smith, 157 P.3d at 1179. Although Petitioner reasserts the claim here, he acknowledges the
Tenth Circuit’s decision in Matthews v. Workman, 577 F.3d 1175, 1195 (10th Cir. 2009),
which is consistent with OCCA precedent. In light of Matthews, as well as the Tenth
Circuit’s recent decision in Lockett, 711 F.3d at 1252-55,30 the Court finds that Petitioner has
30

All of Oklahoma’s federal district courts have similarly held. Fitzgerald v. Trammell,
No. 03-CV-531-GKF-TLW, 2013 WL 5537387, at *59 (N.D. Okla. Oct. 7, 2013); Jackson v.
Workman, No. 08-CV-204-JHP-FHM, 2013 WL 4521143, at *27 (N.D. Okla. Aug. 26, 2013);
Cole v. Workman, No. 08-CV-328-CVE-PJC, 2011 WL 3862143, at *51-52 (N.D. Okla. Sept. 1,
2011); Dodd v. Workman, No. CIV-06-140-D, 2011 WL 3299101, at *55-57 (W.D. Okla. Aug. 2,
2011), overruled on other grounds by Dodd v. Trammell, 753 F.3d 971 (10th Cir. 2013);
Primeaux v. Workman, No. CIV-05-224-C, 2010 WL 3942395, at *32-33 (W.D. Okla. Oct. 7,
2010); DeRosa v. Workman, No. CIV-05-213-JHP, 2010 WL 3894065, at *32-33 (E.D. Okla. Sept.
86

failed to demonstrate his entitlement to relief. Based on the rationale set forth in Matthews
and Lockett, Petitioner has not shown that the OCCA’s denial of his claim is contrary to or
an unreasonable application of Ring. Ground Nine is therefore denied.
J.

Ground Ten:

Cumulative Error.

In his final ground, Petitioner asserts that he is entitled to relief upon a claim of
cumulative error. Petitioner unsuccessfully raised a cumulative error claim to the OCCA on
direct appeal and in both of his applications for post-conviction relief. Respondent’s initial
contention is that the absence of Supreme Court authority on the viability of a claim of
cumulative error prevents relief. However, Respondent additionally asserts that Petitioner’s
claim must be denied because the OCCA reasonably denied relief.
Without addressing Respondent’s initial contention, the Court finds that Petitioner is
simply not entitled to relief on a cumulative error theory. In the state court review of
Petitioner’s convictions, the OCCA found only one error and that was due to the trial court’s
failure to comply with the procedural requirements of a state statute. Smith, 157 P.3d at 1172
(finding that the trial court erred by responding to jury notes without notice to defense
counsel). With only one error (which the OCCA ultimately determined was harmless), the
OCCA’s conclusion on direct appeal, and thereafter in post-conviction review, was that
because there was only one error, there could be no cumulative error claim. Smith, 245 P.3d
at 1243; Smith, No. PCD-2005-142, slip op. at 8; Smith, 157 P.3d at 1179. Because the

27, 2010); Murphy v. Sirmons, 497 F.Supp.2d 1257, 1277-78 (E.D. Okla. 2007).
87

OCCA correctly found that a single error will not support a claim for cumulative error, and
because this Court has found no additional errors in its review of Petitioner’s grounds for
relief, Petitioner’s Ground Ten is hereby denied. See Hooks, 689 F.3d at 1195 (cumulative
error analysis is required “only if there are at least two errors”).
V. 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 the requested relief.
Accordingly, Petitioner’s Petition (Doc. 28) and motion for an evidentiary hearing (Doc. 35)
are hereby DENIED. A judgment will enter accordingly.
IT IS SO ORDERED this 16th day of September, 2014.

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