Wood v. Workman
Filing
100
MEMORANDUM OPINION having rejected petitioner's grounds for relief his petition for writ of habeas corpus is denied along with his request for an evidentiary hearing...judgment will be entered accordingly. Signed by Honorable Joe Heaton on 10/30/2015. (lam)
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
TREMANE WOOD,
Petitioner,
vs.
ANITA TRAMMELL, Warden,
Oklahoma State Penitentiary,
Respondent.1
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NO. CIV-10-0829-HE
MEMORANDUM OPINION
Petitioner, a state court prisoner, has filed a petition for a writ of habeas corpus
seeking relief pursuant to 28 U.S.C. § 2254. Doc. 35. Petitioner challenges the convictions
entered against him in Oklahoma County District Court Case No. CF-2002-46. Tried by a
jury in 2004, petitioner was found guilty of first degree felony murder, robbery with firearms,
and conspiracy to commit a felony. Petitioner was sentenced to death for the murder. In
support of his death sentence, the jury found three aggravating circumstances: (1) petitioner
knowingly created a great risk of death to more than one person; (2) the murder was
especially heinous, atrocious, or cruel; and (3) the existence of a probability that petitioner
would commit criminal acts of violence that would constitute a continuing threat to society.
For his non-capital crimes, petitioner received consecutive life sentences (O.R. IV, 614-22,
756-61).2
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.
2
Although unnoted in the verdicts or the judgment, petitioner was charged with (and the jury
was instructed on) felony murder only (O.R. I, 1, 79; O.R. III, 538; O.R. IV, 648, 653-54).
Petitioner has presented ten claims for relief. Respondent has responded to the
petition and petitioner has replied. Docs. 35, 65, and 80. In addition to his petition,
petitioner filed several motions; however, with the exception of his request for an evidentiary
hearing, all of these motions have been determined. After a thorough review of the entire
state court record (which respondent has provided), the pleadings filed in this case, and the
applicable law, the court concludes that an evidentiary hearing is unwarranted and petitioner
is not entitled to habeas relief. 3
I. Procedural History.
Petitioner appealed his convictions and sentences to the Oklahoma Court of Criminal
Appeals (hereinafter “OCCA”). The OCCA affirmed in a published opinion. Wood v. State,
158 P.3d 467 (Okla. Crim. App. 2007), cert. denied, 552 U.S. 999 (2007). Petitioner also
filed two post-conviction applications, which the OCCA denied in unpublished opinions.
3
Petitioner objects to the page limits imposed on his petition and briefs by General
Order 10-1, arguing that the limit is an “arbitrary constraint” on his ability to present his case and
that it violates his due process rights. Petitioner cites no authority for that proposition, probably
because there isn’t any. As the Tenth Circuit observed several years ago in connection with a
similar argument: “Reduced to its pure form, petitioner’s argument is that due process entitles him
to file a brief of whatever length he believes is necessary to argue his case. He cites no authority
so holding, and we know of none.” Simpkins-Bey v. Henderson, No. 90-1378, 1991 WL 80745, at
*1 (10th Cir. May 16, 1991). Page limitations are routinely imposed by both trial and appellate
courts, with many being significantly more restrictive than those applied here. His direct appeal
was limited to 100 pages. Rule 9.3(A), Rules of the Oklahoma Court of Criminal Appeals, Title 22,
Ch. 18, App. Any appeal to the Tenth Circuit will be subject to limits of 30 pages for the opening
brief and 15 pages for a reply brief. Fed.R.App.P. 32(a)(7). Here, General Order 10-1 imposes a
limit of 100 pages for the petition or opening brief and 25 pages for the reply brief. In addition,
petitioner sought to file an oversize brief and was granted leave to exceed the limit by 10 pages.
Doc. 33. There is nothing in petitioner’s circumstances which plausibly suggests his obviously
capable counsel could not make all meritorious arguments in 135 pages or less. And if they weren't
meritorious, the deficiency can't be made up by volume.
2
Wood v. State, No. PCD-2011-590 (Okla. Crim. App. Sept. 30, 2011) (unpublished);
Wood v. State, No. PCD-2005-143 (Okla. Crim. App. June 30, 2010) (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 concludes that petitioner has not done so.4 Thus, as
determined by the OCCA, the facts are as follows:
[Petitioner] and three others were involved in and charged with the
murder of Ronnie Wipf and the robbery of Arnold Kleinsasser. Clarity requires
us to set forth the relationship between these defendants and the outcome of
their cases. In addition to [petitioner], the defendants include [petitioner’s]
older brother Zjaiton Wood, Zjaiton’s girlfriend Lanita Bateman, and the
mother of one of [petitioner’s] sons, Brandy Warden.[FN3] Brandy Warden
entered into a plea agreement, cooperated with the State and testified against
her co-defendants. She pled guilty to Accessory After the Fact and
Conspiracy. [FN4] Zjaiton and Lanita were each found guilty in separate trials
of felony murder, robbery with firearms, and conspiracy.[FN5]
FN3. Brandy had previously dated [petitioner], but was not in a
romantic relationship with him at the time this crime was committed.
FN4. The district court sentenced her to 45 years for accessory after the
fact and 10 years for conspiracy.
FN5. Zjaiton Wood was sentenced to life imprisonment without the
possibility of parole for felony murder and 60 years imprisonment for
robbery and conspiracy. [The OCCA] affirmed his convictions in
4
In his statement of the facts, petitioner attempts to tell the “untold story of the crime,” and
in doing so, he relies on information not presented to the jury, including an affidavit executed by one
of his co-defendants seven years after his trial. Petition, pp. 3-6.
3
Wood v. State, Case No. F–2005–246 (Okl.Cr., Dec. 20, 2006)
(unpublished opinion). Lanita Bateman was sentenced to life
imprisonment for felony murder, 101 years imprisonment for robbery
and 10 years imprisonment for conspiracy. [The OCCA] affirmed her
convictions in Bateman v. State, Case No. F–2003–647 (Okl.Cr.,
April 19, 2004) (unpublished opinion).
On New Years Eve 2001, Ronnie Wipf and Arnold Kleinsasser went to
the Bricktown Brewery in Oklahoma City where Zjaiton, [petitioner], Lanita
and Brandy were celebrating. Near closing time, Wipf and Kleinsasser met
Lanita and Brandy believing they were two ordinary girls celebrating the new
year together. Lanita and Brandy agreed to accompany Wipf and Kleinsasser
to a motel on the pretext of continuing to celebrate the new year. Brandy,
Lanita, [petitioner], and Zjaiton then made a plan whereby the women would
pretend to be prostitutes and the brothers Wood would arrive at the motel later
and rob Wipf and Kleinsasser.
Once in their room at a Ramada Inn, Lanita made a telephone call to
Zjaiton to let him know where they were, ending her conversation by saying,
“Mom, I love you” so the victims would not be suspicious. The call to “Mom”
was followed by some general conversation among the four which included a
discussion of what each did for a living. Lanita told Kleinsasser that “this” is
what she did and he realized that she meant she earned her living by having
sex with men. That revelation was followed by a negotiation whereby the two
women agreed to have sex with Wipf and Kleinsasser for $210.00. Since
neither man had that much money, Brandy drove Kleinsasser to a nearby
ATM. He gave her the money he withdrew and they returned to the room.
Back at the motel, the women went into the bathroom together, and
shortly after, someone pounded on the door and called out, “Brandy, are you
in there? Brandy, are you ready to go home?” Wipf refused to open the door
and urgently told Kleinsasser to call the police. Before he could reach the
phone, Lanita picked it up and pretended to call the police. Since it was now
clear that the women were not going to have sex with them, Wipf demanded
the return of their money. After a brief period of pandemonium in the room,
Wipf opened the door and the women ran out. Recognizing a white car as the
one Zjaiton and [petitioner] were driving, they got in and waited. Meanwhile,
two masked men rushed into the motel room, a larger man, subsequently
identified as Zjaiton Wood, holding a gun and a smaller man, subsequently
identified as [petitioner], brandishing a knife.[FN6] Zjaiton pointed the gun at
Kleinsasser’s head and demanded money. Kleinsasser gave him the rest of the
4
money in his wallet. Zjaiton then joined [petitioner] in his attack on Wipf. As
the three struggled, Kleinsasser heard one of the intruders say, “Just shoot the
bastard” and then a gunshot. [Petitioner] then turned his attention to
Kleinsasser, demanding more money. Kleinsasser showed him his empty
wallet, and [petitioner] hit him on the head with the knife. [Petitioner] rejoined
the struggle with Wipf and the fight moved into the bedroom area. Kleinsasser
could see Wipf was bleeding and knew that he was seriously injured. While
the two intruders struggled with Wipf, Kleinsasser escaped and sought help
from the motel office. Before anyone could unlock the office door and help
him, however, Kleinsasser fled to a nearby apartment complex to hide. From
his vantage point there, he watched the motel and saw a white car leave the
parking lot. He saw people come and go throughout the night, but, with no
sense of whom they were, remained in hiding. It was 6:00 a.m. before he
returned to the scene of the attack and learned of Wipf’s death from a police
detective.
FN6. Kleinsasser could not identify his attackers because they remained
masked throughout the entire incident so he described the men’s actions
distinguishing the men by their size. Zjaiton is the larger of the Wood
brothers. According to their mother’s estimates, Zjaiton is the taller of
the two brothers and outweighs [petitioner] by some 50 pounds, making
him easily distinguishable from [petitioner].
The medical examiner concluded that Wipf died as the result of a stab
wound to the chest. There was no evidence he had sustained any kind of
gunshot wound. Surveillance videotape from the motel’s camera showed
Brandy and Lanita renting the room with Wipf and Kleinsasser. The motel’s
phone records showed that three calls were made from the room to Zjaiton’s
pager and one to the house where [petitioner] lived. Surveillance videotape
from a local Wal–Mart showed Brandy, Lanita, Zjaiton, and [petitioner]
buying ski masks and gloves earlier in the evening.[FN7] As part of her plea
bargain, Brandy testified against [petitioner] detailing the events of the evening
from buying the masks and gloves through their actions the morning after the
murder.
FN7. Prior to going to the Bricktown Brewery, Zjaiton and [petitioner]
robbed a local pizza restaurant and attacked the owner, wearing the
masks and gloves they had just purchased and using the gun and knife
that they later used in the robbery-murder at the Ramada Inn.
According to the restaurant owner, the smaller man had the knife and
the larger man had the gun.
5
Zjaiton testified for the defense, against the advice of counsel. He said that it
was he who stabbed Wipf, aided in the crime by a man named Alex. Zjaiton
claimed that he took the knife from Alex and stabbed Wipf with it. He testified
that [petitioner] was not involved in the crime.
Wood, 158 P.3d at 471-72.
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).
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, 501 U.S.
at 729). “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.
6
C.
Merits.
When a petitioner presents a claim to this court, the merits of which have been
addressed in state court proceedings, 28 U.S.C. § 2254(d) governs his ability to obtain relief.
Cullen v. Pinholster, 563 U.S. 170, ___, 131 S.Ct. 1388, 1398 (2011) (acknowledging that
the burden of proof lies with the petitioner). Section 2254(d) provides as follows:
An application for a writ of habeas corpus on behalf of a person in custody
pursuant to the judgment of a State court shall not be granted with respect to
any claim that was adjudicated on the merits in State court proceedings unless
the adjudication of the claim-(1) resulted in a decision 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) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the State
court proceeding.
The focus of Section 2254(d) is on the reasonableness of the state court’s decision. “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. 86, 102 (2011).
Relief is warranted only “where there is no possibility fairminded jurists could disagree that
7
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. at 102-03 (citation omitted). When reviewing
a claim under Section 2254(d), review “is limited to the record that was before the state court
that adjudicated the claim on the merits.” Pinholster, 131 S.Ct. at 1398.
IV. Analysis.
A.
Claim One: Ineffective Assistance of Trial Counsel.
In his first claim, petitioner asserts that trial counsel was ineffective in the
investigation and presentation of mitigating evidence. Petitioner presented this claim to the
OCCA in his direct appeal opening brief and in a Rule 3.11 motion.5 The OCCA granted
petitioner’s Rule 3.11 motion, and the trial court conducted a three-day evidentiary hearing
during which twenty-five witnesses testified. After the hearing, the trial court made findings
of fact and conclusions of law, which the OCCA reviewed after supplemental briefing by the
parties. Applying Strickland v. Washington, 466 U.S. 668 (1984), the OCCA concluded that
petitioner was not denied constitutionally effective counsel because the evidence petitioner
faulted trial counsel for failing to present was not new evidence but only more detail of the
same evidence the jury heard. Wood, 158 P.3d at 479-81.
5
Rule 3.11(B)(3)(b), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18,
App., permit a defendant the opportunity to further develop a claim of ineffective assistance of trial
counsel “predicated upon an allegation of failure of trial counsel to properly utilize available
evidence or adequately investigate to identify evidence which could have been made available
during the course of the trial . . . .”
8
Because the OCCA addressed this claim on the merits, petitioner acknowledges that
review is governed by Section 2254(d). However, arguing that the OCCA’s decision is
contrary to or an unreasonable application of Supreme Court law and that it is also based on
unreasonable factual determinations, petitioner urges this court to review the claim de novo6
(along with numerous declarations, reports, and records which were not a part of the state
court record on direct appeal).7 Respondent argues that this claim must be reviewed with
triple deference (deference afforded the trial court in making credibility determinations,
deference afforded trial counsel by Strickland, and deference afforded the OCCA’s decision
by the AEDPA) and denied. The court agrees with respondent.
“[T]he Sixth Amendment does not guarantee the right to perfect counsel; it promises
only the right to effective assistance . . . .” Burt v. Titlow, 571 U.S.___, 134 S.Ct. 10,
18 (2013). Whether counsel has provided constitutional assistance is a question to be
reviewed under the familiar standard set forth in Strickland. To obtain relief, a petitioner is
required to show not only that his counsel performed deficiently, but that he was prejudiced
by it. Strickland, 466 U.S. at 687. The assessment of counsel’s conduct is “highly
6
See Panetti v. Quarterman, 551 U.S. 930, 953 (2007) (“When a state court’s adjudication
of a claim is dependent on an antecedent unreasonable application of federal law, the requirement
set forth in § 2254(d)(1) is satisfied. A federal court must then resolve the claim without the
deference AEDPA otherwise requires.”); Milton v. Miller, 744 F.3d 660, 670-71 (10th Cir. 2014)
(citing Panetti for the proposition that a petitioner’s satisfaction of Section 2254(d) does not in and
of itself require relief, but it does permit the habeas court to review the claim de novo).
7
Not only were they not a part of the direct appeal record, but almost half of petitioner’s
exhibits (Petitioner’s Exhibits 4-8, 12, 14-15, 19, 23-25, 27, 31, and 33) have never been presented
to the OCCA (even though petitioner filed two post-conviction applications after his direct appeal,
one of which was even filed after the filing of the petition in this case).
9
deferential,” and a petitioner must overcome the strong presumption that counsel’s actions
constituted sound trial strategy. Id. at 689. 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.
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, 562 U.S. at 101 (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. at 102.
[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 further.
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. at 102-03 (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
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
10
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, 562 U.S. at 105 (internal quotation marks and citations omitted).8
In denying petitioner relief on this claim, the OCCA held as follows:
In his sixth proposition, [petitioner] argues that he was denied his Sixth
Amendment right to effective counsel because his trial attorney failed to fully
investigate his background and present mitigating evidence at his capital
sentencing proceeding. . . . Pursuant to Rule 3.11(B)(3)(b), Rules of the
Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2005),
[petitioner] applied for an evidentiary hearing to supplement his ineffective
8
In his reply, Reply, pp. 2-3, petitioner argues against the application of Richter’s
“fairminded jurists” standard; however, it is applicable Supreme Court precedent on the AEDPA’s
standard of review, and it has been reaffirmed by the Supreme Court and applied by the Tenth
Circuit on multiple occasions. Woods v. Donald, 575 U.S. ___, 135 S.Ct. 1372, 1376 (2015);
White v. Woodall, 572 U.S. ___, 134 S.Ct. 1697, 1702 (2014); Titlow, 134 S.Ct. at 15-16; Parker v.
Matthews, 567 U.S. ___, 132 S.Ct. 2148, 2155 (2012); Hanson v. Sherrod, 797 F.3d 810, 825 (10th
Cir. 2015); Bonney v. Wilson, 754 F.3d 872, 880-81 (10th Cir. 2014); Frost v. Pryor, 749 F.3d
1212, 1223, 1225-26 (10th Cir. 2014) Howell v. Trammell, 728 F.3d 1202, 1213 (10th Cir. 2013);
Black v. Workman, 682 F.3d 880, 892-93 (10th Cir. 2012).
11
assistance of counsel claim, appending to his application, inter alia, numerous
records detailing his contacts with the Office of Juvenile Affairs and various
affidavits from individuals involved in his case or in his life. This Court found
that [petitioner] had met his burden to warrant a hearing on his ineffective
assistance of trial counsel claim and remanded the matter to the district court
for an evidentiary hearing.[FN24] The district court held an evidentiary
hearing and submitted written findings of fact and conclusions of law
concerning the availability of and use of the evidence that was presented in
[petitioner’s] application, the effect of any evidence not presented on the trial
proceedings, whether the failure to use the evidence was trial strategy, and
whether the evidence was cumulative or would have affected the verdict. The
district court found that the evidence presented in the application was available
to trial counsel and that trial counsel presented during [petitioner’s] trial
“substantially all of the credible evidence.” The district court found no overall
failure to investigate because “most” of the available mitigating evidence was
admitted through the testimony of the defense expert during [petitioner’s]
capital sentencing proceeding. The district court concluded that any evidence
omitted from the trial that was presented during the evidentiary hearing would
have had little or no effect on the outcome of the trial proceedings.
FN24. “Order Remanding to the District Court of Oklahoma County for
Evidentiary Hearing on Claim of Ineffective Assistance of Counsel,”
Case No. D–2005–171 (Nov. 16, 2005).
In reviewing the district court’s findings, we accord them “strong
deference.” Rule 3.11(B)(3)(b)(iv), Rules of the Oklahoma Court of Criminal
Appeals, Title 22, Ch. 18, App. (2006). We must, however, decide the ultimate
issue whether trial counsel was ineffective.
Ineffective assistance under Strickland is deficient performance by
counsel resulting in prejudice, with performance being measured
against an “objective standard of reasonableness,” “under prevailing
professional norms.” This case, like some others recently, looks to
norms of adequate investigation in preparing for the sentencing phase
of a capital trial, when defense counsel’s job is to counter the State’s
evidence of aggravated culpability with evidence in mitigation. In
judging the defense’s investigation, as in applying Strickland generally,
hindsight is discounted by pegging adequacy to “counsel’s perspective
at the time” investigative decisions are made, and by giving a “heavy
measure of deference to counsel’s judgments[.]”
12
Rompilla v. Beard, 545 U.S. 374, 380–81, 125 S.Ct. 2456, 2462, 162 L.Ed.2d
360 (2005) (citations omitted).
The crux of [petitioner’s] claim is that trial counsel failed to obtain his
juvenile records from the Office of Juvenile Affairs and consequently failed
to discover mitigation witnesses who could have testified about positive
relationships they had with him during his life or corroborate positive or
mitigating information about his background.
The district court concluded that trial counsel and the defense
psychological expert had possession of [petitioner’s] background records,
including his relevant juvenile records. This finding is supported by the record.
The psychological expert testified at trial that he had reviewed records from
the Department of Human Services, patient records from [petitioner’s] brief
stay at Meadow Lake Mental Health Hospital, prison records and police
records. He also referred to records from “juvenile sources” and testified about
[petitioner’s] placement in therapeutic foster care. He indicated that he had
reviewed records from [petitioner’s] placement in the Vision Quest
program [FN25] as well as [petitioner’s] juvenile petitions to adjudicate him
delinquent for various crimes. He testified that [petitioner] did well in his
juvenile placements and, in fact, had his best year ever while living in
therapeutic foster care. The defense psychologist was not called at the
evidentiary hearing on ineffective assistance of counsel to further identify the
records he had reviewed in preparation for the capital sentencing proceeding
in this case.
FN25. Dr. Hand did testify that he did not have [petitioner’s] records
from his placement in the COJAC program.
[Petitioner’s] trial attorney testified at the evidentiary hearing that he
believed he had the necessary records to put on his case in mitigation. He
referred to [petitioner’s] school records and his “growing up” records. Counsel
recalled specifically having records from the Office of Juvenile Affairs, the
Department of Human Services and Meadow Lake Mental Health
Hospital.[FN26] Counsel testified that he gave the records he had to his expert
and employed a mitigation strategy that had proved successful for him in the
past. The strategy consisted of presenting a psychologist to testify about
[petitioner’s] background, family history and the expert risk assessment of
[petitioner’s] future dangerousness,[FN27] along with testimony from family
witnesses.[FN28] Counsel testified that while he did not interview or speak
with any of [petitioner’s] foster family members or mentors that he was
13
assigned while in juvenile custody, he did speak with everyone [petitioner]
himself identified as a potential mitigation witness.[FN29]
FN26. The records custodian from the Office of Juvenile Affairs
testified at the evidentiary hearing that there had not been a records
request for [petitioner] prior to appellate counsel’s request. There was,
however, testimony that the Office of Juvenile Affairs was part of the
Department of Human Services until approximately 1995 and that there
was some records overlap. Trial counsel also had access to the
background records in Zjaiton’s case through the prosecutor’s open file
policy.
FN27. Counsel testified that he believed the expert was the key witness
in presenting a mitigation case and that family witnesses were not as
important.
FN28. Defense counsel presented [petitioner’s] godmother as the
defense’s first witness followed by the psychologist and then
[petitioner’s] mother. [Petitioner] told defense counsel not to put on any
other family witnesses after his mother’s testimony because he did not
want to subject them to such an emotional experience.
FN29. At the evidentiary hearing, the defense called the jury foreperson
at [petitioner’s] trial to testify, consistent with her affidavit, that her
verdict likely would have been different had she heard the omitted
testimony. Post trial, the juror was shown isolated affidavits by an
investigator for appellate counsel which were presented out of the
context of the State’s evidence and without benefit of
cross-examination and the jury process. The district court found that the
testimony of the juror was of little value given the circumstances. This
juror was an incompetent witness and her affidavit and testimony
should have been disallowed under 12 O.S.2001, § 2606(B). It is a well
settled rule that jurors may not impeach or contradict their verdict by
affidavits or testimony after they have been discharged from the jury.
Wacoche v. State, 1982 OK CR 55, ¶ 17, 644 P.2d 568, 572. The
reasoning behind the rule is simple. Were individual jurors allowed to
make affidavits or give testimony disclosing the manner of
deliberations and their reasons for rendering a particular verdict, there
would be no reasonable end to litigation. See Matthews v. State,
2002 OK CR 16, ¶ 14, 45 P.3d 907, 915. Jurors would be harassed by
both sides and find themselves being repeatedly questioned about their
14
decision. See id. Such an unsettled state of affairs would be a disservice
to the parties and an unconscionable burden upon citizens who serve on
juries. This rationale applies with equal weight when affidavits or
testimony by former jurors is offered in an attempt to show that
evidence not presented by counsel might well have produced a different
result because it requires jurors to reveal the mental processes
undertaken in deliberations. Any other result would potentially subject
jurors to a barrage of queries concerning how they would have voted if
presented any one of an inestimable number of pieces of evidence.
Since such testimony is inadmissible, we will not consider it in our
consideration of this claim.9
The standard for counsel’s performance is competence. The trial court
on remand for evidentiary hearing found that counsel’s representation did not
fall below that standard. Counsel presented evidence concerning [petitioner’s]
troubled background and about his childhood growing up in an abusive (both
physically and emotionally) household with little parental supervision or
guidance. He presented evidence that [petitioner] filled the void created by the
absence of his parents by following in the footsteps of his older unstable,
delinquent brother, whose affection and approval he sought. He presented
evidence that when [petitioner] was away from his brother’s influence, he
obeyed the rules set for him and did well. Trial counsel also presented
evidence through the psychologist about the risk factors in [petitioner’s]
background and how those factors affect development and behavior. He
presented evidence about the expert risk assessment of [petitioner] to contest
the State’s claim that [petitioner] constituted a continuing threat to society.
And he presented evidence that [petitioner] was a loving parent and that his
family cared for him and would maintain contact with him if he were given a
sentence of imprisonment.[FN30]
9
Petitioner asserts that the OCCA’s failure to consider this juror’s affidavit constitutes an
unreasonable application of Strickland and Wiggins v. Smith, 539 U.S. 510 (2003). Petition, pp. 24
n.25, 31 n.30. The OCCA refused to consider the affidavit based on a state evidentiary rule, and
petitioner has not shown that the OCCA acted unreasonably in doing so. See Matthews v. Workman,
577 F.3d 1175, 1183 (10th Cir. 2009) (“There is nothing in clearly established Supreme Court law
requiring states to take cognizance of evidence excludable under such common evidentiary rules.”).
Moreover, the fact that the OCCA did not consider this evidence does not mean that it unreasonably
applied Strickland’s prejudice prong. The OCCA is fully capable of making the objective
determination of whether “there is a reasonable probability that at least one juror would have
struck a different balance” without consideration of post-trial juror affidavits. Wiggins, 539 U.S.
at 537.
15
FN30. From the mitigation case presented by counsel, the district court
identified for the jury seventeen mitigating circumstances, including
that [petitioner’s] parents were divorced when he was young,
[petitioner] had no father figure during childhood and little support
from his natural father, [petitioner’s] mother was absent during most of
his childhood and he was faced with substitute parenting, [petitioner]
can live in a structured prison environment without hurting anyone,
[petitioner] spent time in foster care, and [petitioner] took directions
from his older brother Zjaiton. (O.R.634–35)
Evidence of [petitioner’s] chaotic home life and background was
presented to the jury through both an expert and lay witness. While other
witnesses not called at trial could have provided further detail to support the
mitigation evidence that [petitioner] did well in his juvenile placements, grew
up in an abusive home and was negatively influenced by his older brother,
credible evidence was presented covering these areas. We find the trial court
correctly concluded that the material testimony from those credible witnesses
not called at trial was nonetheless presented to the jury. We further find that
[petitioner] has failed to show that the outcome of his case would have been
different had the credible evidence developed at the evidentiary hearing been
presented during his capital sentencing proceeding.
Wood, 158 P.3d at 479-81.
Petitioner attacks the OCCA’s decision on multiple grounds. Petitioner’s first
argument is that the OCCA’s decision is unreasonable under both provisions of
Section 2254(d) due to an evidentiary ruling made by the trial judge who presided over the
state court evidentiary hearing. The ruling prevented petitioner from presenting a licensed
clinical social worker, Dr. Kate Allen, whom he asserts would have “contextualize[d] [his]
childhood” and “put all of [the] information from [his] lay witnesses in perspective.”
Petition, pp. 21, 23. The record reflects that the trial judge sustained the state’s objection to
16
this witness on two grounds, her qualifications to testify as a mental health expert10 and the
duplicative nature11 of her testimony (E.H. Tr. 2/27/06, 221). Petitioner asserts that the trial
judge made an unreasonable determination of the facts when he determined that the witness
was unqualified, and that without this expert testimony, the OCCA was unable to conduct
a proper legal analysis under Strickland.
In response to this argument, respondent faults petitioner for not challenging the trial
court’s ruling in his supplemental brief to the OCCA. Respondent asserts that because
petitioner did not complain to the OCCA about the trial court’s evidentiary ruling, the issue
is unexhausted and subject to procedural default. Although the court is not convinced that
petitioner’s failure to raise the issue in his supplemental brief results in the application of a
procedural bar,12 the court nevertheless concludes that the OCCA’s determination of
10
In her report, Dr. Allen, a licensed social worker with a doctorate in family sociology,
states that petitioner suffers from post-traumatic stress disorder and general anxiety disorder due
in large part to the domestic violence he witnessed between his parents. She further states that she
saw no evidence of paranoia or schizotypal personality traits, but that she “can certainly support
diagnostic impressions of rebellious attitude, immaturity, self-indulgence, depression, dependency,
generalized anxiety and PTSD . . . .” Petitioner’s Exhibit 18, pp. 3, 5-6.
11
Dr. Allen’s report discusses matters presented at petitioner’s trial including how
petitioner’s parents failed him, how his older brother assumed the parenting role, and how well
petitioner did during the periods of time he was removed from the home as a juvenile. Petitioner’s
Exhibit 18.
12
Respondent has not shown by court rule or case law authority that the OCCA applies a
waiver to issues not presented in a supplemental brief, and per court rule, supplemental briefs are
optional. See Rule 3.11(B)(3)(b)(vi), Rules of the Oklahoma Court of Criminal Appeals, Title 22,
Ch. 18, App. Moreover, despite petitioner’s failure to challenge the trial court’s exclusion of
Dr. Allen’s testimony, it is clear that petitioner’s claim, ineffectiveness of trial counsel, which was
presented to the OCCA on direct appeal and denied on the merits, is exhausted. The court notes,
however, that petitioner has not presented a direct challenge to the trial court’s evidentiary ruling.
Instead, he relies upon it here in an attempt to overcome the limitations of Section 2254(d), and in
17
petitioner’s trial counsel ineffectiveness claim cannot be deemed legally or factually
unreasonable based on Dr. Allen’s report and what testimony she might have given at the
state court evidentiary hearing.
“Federal courts sitting in habeas are not an alternative forum for trying facts and
issues which a prisoner made insufficient effort to pursue in state proceedings.” Williams v.
Taylor, 529 U.S. 420, 437 (2000). Section 2254(d)(1) “carries out ‘AEDPA’s goal of
promoting comity, finality, and federalism by giving state courts the first opportunity to
review [a] claim, and to correct any constitutional violation in the first instance.’” Pinholster,
131 S.Ct. at 1401 (quoting Jimenez v. Quarterman, 555 U.S. 113, 121 (2009)). Because “[i]t
would be strange to ask federal courts to analyze whether a state court’s adjudication resulted
in a decision that unreasonably applied federal law to facts not before the state court[,]”
Pinholster makes clear that a state-court decision is to be reviewed based on the record before
it. Pinholster, 131 S.Ct. at 1398, 1399. Section 2254(d)(1)’s “backward-looking language
requires an examination of the state-court decision at the time it was made.” Id. at 1398. Its
focus is “on what a state court knew and did.” Id. at 1399.13
The OCCA did not consider any issue related to Dr. Allen because it had no reason
to. Dr. Allen was precluded from testifying and her report was not admitted into evidence.
his Claim Three, he asserts that appellate counsel was ineffective for failing to raise the issue in the
supplemental brief.
13
Although Pinholster only addressed Section 2254(d)(1), the Supreme Court acknowledged
that by its plain language, Section 2254(d)(2) is limited to the state-court record as well. Pinholster,
131 S.Ct. at 1400 n.7.
18
Although the trial court did admit Dr. Allen’s report for the sole purpose of giving petitioner
an opportunity to have its ruling reviewed by the OCCA (E.H. Tr. 2/27/06, 220, 223),
petitioner made absolutely no mention of Dr. Allen or her report in the permitted
supplemental brief he filed. Consequently, in determining that petitioner was not denied the
effective assistance of counsel, the OCCA made absolutely no reference to Dr. Allen
either. Wood, 158 P.3d at 479-81. Despite these circumstances, petitioner asks this court
to find that the OCCA acted unreasonably in denying him relief on his trial counsel
ineffectiveness claim based on an issue which the OCCA was never called to rule upon. The
AEDPA does not permit this type of sandbagging. On direct appeal, the OCCA was not
presented with any claim of error related to Dr. Allen, and therefore, it was not even given
the opportunity to act unreasonably with respect to it.14 Petitioner’s first argument is
therefore denied.
14
The parties dispute whether or not Dr. Allen’s report was a part of the state court record.
Respondent contends that it was not because it was admitted for the sole purpose of permitting
appellate review and petitioner did not seek review of the trial court’s ruling in his supplemental
brief. Response, pp. 44-45. Petitioner contends that it was a part of the state court record because
the trial court admitted it for purpose of appellate review. Petitioner notes that in his first postconviction proceeding, the OCCA even acknowledged that appellate counsel had provided
Dr. Allen’s report on direct appeal. Reply, p. 6 & n.4. However, the court’s decision is not based
on this hair-splitting determination, and the court does not believe that Pinholster requires it. What
Pinholster requires is that this court step into the state-court’s shoes and review its determination
in light of the circumstances before it. Pinholster places the focus on what the “state court knew
and did.” Id. at 1399. The OCCA did not consider Dr. Allen’s report or any error related thereto
because it was not asked to, and no fairminded jurist could impute fault here. The OCCA was under
no obligation to search the trial court evidentiary hearing transcripts and sua sponte raise potential
errors which petitioner declined to do. It therefore follows that the OCCA cannot be said to have
acted unreasonably for something it was never asked to consider.
19
Next, petitioner asserts that the OCCA’s decision is based on four unreasonable
factual determinations. The AEDPA has two provisions which govern state-court factual
determinations. Section 2254(d)(2) permits habeas relief where the state court rendered “a
decision that was based on an unreasonable determination of the facts in light of the evidence
presented[,]” and Section 2254(e)(1) affords a presumption of correctness to state-court
factual determinations that can only be rebutted by clear and convincing evidence. Because
the Supreme Court has not yet decided the relationship between these provisions, the court
will assess petitioner’s factual arguments under Section 2254(d)(2), the one most favorable
to him. Titlow, 134 S.Ct. at 15; Wood v. Allen, 558 U.S. 290, 299-01 (2010); Grant v.
Trammell, 727 F.3d 1006, 1024 & n.6 (10th Cir. 2013). Even under Section 2254(d)(2),
however, petitioner’s ability to obtain relief is limited. Although Section 2254(d)(2) is less
deferential to the state court’s factual findings than Section 2254(e)(1), it is nevertheless
“restrictive.” Johnson v. Williams, 568 U.S. ___, 133 S.Ct. 1088, 1092 (2013). “[A] statecourt factual determination is not unreasonable merely because the federal habeas court
would have reached a different conclusion in the first instance.” Allen, 558 U.S. at 301.
Under Section 2254(d)(2), petitioner must also show that the OCCA based its decision on
the factual determinations he questions. Grant, 727 F.3d at 1023-24 (emphasizing the “based
on” language of Section 2254(d)(2) and noting that findings which “concerned only
subsidiary issues that the OCCA mentioned in passing” would not satisfy
Section 2254(d)(2)).
20
Two of the factual determinations challenged by petitioner relate to the credibility of
witnesses who testified at the state court evidentiary hearing. In its holding, the OCCA
referred to “those credible witnesses not called at trial” and “the credible evidence developed
at the evidentiary hearing.” Wood, 158 P.3d at 481. Although the OCCA did not specify
who the credible witnesses were or what the credible evidence was, the court assumes that
the credibility determinations challenged by petitioner formed a basis for the OCCA’s ruling.
Regarding witness credibility, respondent is correct that the trial court’s credibility
assessment is to be given great deference. As the Supreme Court acknowledged in
Anderson v. City of Bessemer City, N.C., 470 U.S. 564, 575 (1985), deference is warranted
because “only the trial judge can be aware of the variations in demeanor and tone of voice
that bear so heavily on the listener’s understanding of and belief in what is said.” See also
Wainwright v. Witt, 469 U.S. 412, 428 (1985) (noting that “determinations of demeanor and
credibility . . . are peculiarly within a trial judge’s province”); Marshall v. Lonberger,
459 U.S. 422, 434 (1983) (“28 U.S.C. § 2254(d) gives federal habeas courts no license to
redetermine credibility of witnesses whose demeanor has been observed by the state trial
court, but not by them.”).
Petitioner’s father, Raymond Gross, who did not testify at trial, testified at the
evidentiary hearing that his relationship with petitioner’s mother, Linda Wood, was “pretty
rocky” (E.H. Tr. 2/23/06, 17). In explaining his answer, Mr. Gross admitted to pushing
Ms. Wood one time during an argument. He also admitted that he once handcuffed her to
his car when he found her having sex with his nephew. Mr. Gross testified that petitioner
21
witnessed both of these events (E.H. Tr. 2/23/06, 18-19). Mr. Gross denied any further acts
of abuse toward Ms. Wood. In particular, he denied (1) tying her to a swing, pouring
gasoline on her, and threatening her with a match; (2) driving the car while Ms. Wood was
handcuffed to it; and (3) ever knocking out any of her teeth (E.H. Tr. 2/23/06, 24).
Regarding treatment of his boys, Mr. Gross admitted that he whipped them sore when they
needed to be corrected, but he denied ever “sadistically” beating his boys, whipping them in
inappropriate places, or punching them in the face (E.H. Tr. 2/23/06, 24-25).
The trial judge found Mr. Gross to be credible. He noted that Mr. Gross’s testimony
was consistent and not impeached. He determined that it would not have been helpful for
petitioner to call Mr. Gross as a mitigation witness in support of his contention that he grew
up in an abusive home. The trial judge additionally found that petitioner “provided no
evidence that corroborates the claim made by Linda Wood that [petitioner] had been abused
by his father” (E.H. O.R. II, 233-34) (emphasis added).
In support of his argument that these findings are unreasonable, petitioner’s first
assertion is that his brothers’ evidentiary hearing testimony support his mother’s claim that
she was abused by his father. Petition, pp. 33-34. This, however, does not contradict the
trial court’s findings. As set forth above, what the trial court found was that the evidence did
not support that petitioner was abused by his father as Ms. Wood claimed (E.H. Tr. 2/23/06,
118) (Ms. Wood testified on direct examination that Mr. Gross was abusive to her children,
although more emotionally and mentally than physically). Petitioner additionally faults the
trial court for finding, based on DHS records, that Ms. Wood had reported abuse which was
22
later determined to be “unfounded and vindictive” (E.H. Tr. 2/23/06, 233). Although the
DHS report to which the trial court referred was admitted at the state court evidentiary
hearing (State’s Exhibit 1) and clearly supports the trial court’s finding, petitioner alleges that
the trial court failed to fully consider the exhibit and note an admission by Mr. Gross therein
that he had been abusive to Ms. Wood in the past. Petition, p. 35. Once again, however,
petitioner misreads the trial court’s findings. The trial court simply found that Ms. Wood had
previously reported abuse to DHS that was later determined to be unfounded and vindictive.
The referenced report was made in response to a complaint by Ms. Wood regarding
Mr. Gross’s alleged abuse of petitioner’s brother, and it clearly supports the trial court’s
finding. After investigation into the matter, the DHS worker ruled out any abuse or neglect
and specifically noted that Ms. Wood “possibly made the referral to be vindictive” (State’s
Exhibit 1). For these reasons, petitioner has failed to show that these factual determinations
related to Mr. Gross’s testimony at the state court evidentiary hearing are unreasonable.
Petitioner’s second credibility challenge concerns two of petitioner’s friends, Leslie
James Welch and Michael Hiltzman, who testified at the evidentiary hearing.15 Although the
trial judge noted that both of them are convicted felons, petitioner complains that the judge
offered no further explanation as to why he found them incredible (E.H. O.R. II, 235-36).
15
In the trial court’s findings of fact and conclusions of law, the names of these witnesses
are correctly set forth in the list of presented witnesses, but incorrectly referenced thereafter as
“Wesley Welch” and “Michael Heitzman” (E.H. O.R. II, 232, 235-36).
23
Petitioner argues that “[t]o simply discredit the testimony of two witnesses for no reason
other than a felony conviction is unreasonable.” Petition, pp. 38-39.16
Leslie James Welch testified that petitioner was twelve years old when they met at
church. They attended school together as well. Mr. Welch testified that petitioner’s brother,
Zjaiton, was petitioner’s father figure and that Zjaiton had a negative influence on petitioner.
Mr. Welch described petitioner as “a good boy” and “a good student.” He recalled a time
when he saw petitioner take up for a boy who was getting picked on at school. Mr. Welch
testified that petitioner does not deserve a death sentence (E.H. Tr. 2/23/06, 50-52, 54-56).
On cross-examination, Mr. Welch acknowledged that petitioner had stood up to Zjaiton on
occasion, refused his demands, and exercised his own choices. Mr. Welch admitted that he
did not know the particular facts of petitioner’s crime but simply thought petitioner would
not have killed someone. Mr. Welch hesitantly admitted that he was a gang member and that
he had a prior felony conviction for assault and battery with a dangerous weapon (E.H.
Tr. 2/23/06, 58-59, 61-63). Regarding Mr. Welch, the trial court not only noted that he “is
a convicted felon who indicated he didn’t think his friend deserved the death penalty,” but
also that “Mr. Welch’s overall testimony, combined with his demeanor, appeared less
that [sic] reliable or credible. . .” (E.H. O.R. II, 236).
16
In support of his argument, petitioner also relies on his Exhibit 26; however, because this
exhibit was not presented to the OCCA on direct appeal, the court cannot consider it in conducting
its Section 2254(d) analysis. Pinholster, 131 S.Ct. at 1398.
24
Michael Hiltzman testified that he went to school with petitioner for about seven
years, and that petitioner was a good influence on him. Although he did not know Zjaiton
well, Mr. Hiltzman testified that petitioner looked up to Zjaiton. Mr. Hiltzman and petitioner
were in the same foster home at one time. He described petitioner’s behavior at the foster
home as a “responsible big brother.” Mr. Hiltzman testified that he loved and missed
petitioner (E.H. Tr. 2/27/06, 231-35). On cross-examination, Mr. Hiltzman admitted that he
had five felony convictions, including unauthorized use of a motor vehicle, burglary, false
declaration of ownership to a pawnbroker, obtaining merchandise by false pretenses, and
possession of methamphetamine with intent to distribute (E.H. Tr. 2/27/06, 236). Regarding
Mr. Hiltzman, the trial court noted his five felony convictions and found his testimony “not
credible” (E.H. O.R. II, 236).
Petitioner has not shown that the trial court’s credibility assessments of Mr. Welch
and Mr. Hiltzman are unreasonable. First, the trial court’s failure to provide more detail or
further explanation of its credibility determinations does not render them unreasonable. In
addition, it was reasonable for the trial court to consider the prior convictions of these men
in assessing their credibility. See Okla. Stat. tit. 12, § 2609 (permitting impeachment of a
witness for a prior conviction); Brown v. State, 487 P.2d 963, 965 (Okla. Crim. App. 1971)
(“conviction of a crime may be shown to affect credibility”). See also Morales v. Johnson,
659 F.3d 588, 606 (7th Cir. 2011) (“convicted felons have diminished credibility”). Finally,
the court notes that beyond the issue of his prior conviction, the trial court found that
Mr. Welch’s demeanor also affected his reliability, and deference is owed to this observation
25
which the trial court is best suited to make. Anderson, 470 U.S. at 575; Witt, 469 U.S. at
428. For these reasons, petitioner has failed to show that the trial court’s credibility
assessments of Mr. Welch and Mr. Hiltzman are unreasonable.
Next, petitioner asserts that the OCCA made two unreasonable factual determinations
related to trial counsel’s performance and preparation: (1) that trial counsel had his school
records; and (2) that trial counsel had all of his records from the Office of Juvenile
Affairs (OJA) and the Department of Human Services (DHS) (and that he gave these records
to Dr. Ray Hand, the psychologist he presented in mitigation). Petitioner asserts that these
findings are unreasonable because school representatives testified at the state court
evidentiary hearing that petitioner’s records had not previously been requested. Petitioner
additionally asserts that if trial counsel had his school records, he surely would have
introduced them (or they would have at least been referenced) to support Dr. Hand’s
testimony that petitioner did well in school while he was living in a foster home. Regarding
the OJA and DHS records, petitioner argues that if trial counsel did have all of these records
and gave them all to Dr. Hand, then Dr. Hand would not have testified on cross-examination
that petitioner did not have any violent weapons charges as a juvenile (because the records
show otherwise). Petitioner additionally argues that because trial counsel testified that he
had about two to three hundred pages of records, and over 1,100 pages of OJA records were
admitted at the state court evidentiary hearing, it was unreasonable for the OCCA to find that
trial counsel had all the OJA records. Petition, pp. 35-37.
26
Petitioner’s arguments fail to satisfy Section 2254(d)(2). First, petitioner has not
shown that the OCCA made the factual determinations he claims are unreasonable. In
support of his argument, petitioner cites page 24 of OCCA’s slip opinion.17 From that
reference, it is clear that petitioner relies on the portion of the OCCA’s opinion set out in
¶ 42. In that paragraph, the OCCA recounts trial counsel’s testimony at the state court
evidentiary hearing. The OCCA states that trial counsel “testified,” “believed,” “referred to,”
and “recalled.” These are not findings of fact but statements of fact, i.e., what trial counsel
testified to at the hearing, and petitioner does not assert that the OCCA misstated the content
of trial counsel’s testimony. In this referenced portion of its opinion, the OCCA draws no
conclusions from trial counsel’s testimony nor does it make any assessment of trial counsel’s
credibility. The OCCA does not affirm, adopt, or accept as true what trial counsel said. It
simply sets forth an accurate summary of his testimony. Second, even if the court were to
find that the OCCA determined the particular “facts” petitioner challenges, petitioner has not
shown that the OCCA based its decision on these “facts.” The OCCA denied petitioner relief
because trial counsel presented evidence which advised the jury of petitioner’s mitigating
circumstances. It found that “[w]hile other witnesses not called at trial could have provided
further detail to support the mitigation evidence that [petitioner] did well in his juvenile
placements, grew up in an abusive home and was negatively influenced by his older brother,
credible evidence was presented covering these areas.” Wood, 158 P.3d at 481. The
17
When referring to the OCCA’s published decision in petitioner’s direct appeal, the court
would have preferred citation to the official court reporter.
27
OCCA’s holding is not based on what particular records trial counsel did or did not have, but
on the mitigation case he presented at trial and the evidence which petitioner faults counsel
for not including.
Finally, petitioner takes issue with a portion of the OCCA’s summary of the
mitigation evidence presented at trial. In particular, petitioner challenges the following two
sentences contained in the OCCA’s direct appeal opinion:
Counsel presented evidence concerning [petitioner’s] troubled background and
about his childhood growing up in an abusive (both physically and
emotionally) household with little parental supervision or guidance. He
presented evidence that [petitioner] filled the void created by the absence of
his parents by following in the footsteps of his older unstable, delinquent
brother, whose affection and approval he sought.
Wood, 158 P.3d at 481. Petitioner contends that this summary is unreasonable because at
trial there was no evidence of (1) “confirmed” abuse by petitioner’s father to his mother;
(2) emotional abuse in the home; (3) limited parental supervision and guidance; and
(4) Zjaiton’s delinquency and petitioner’s need for his approval. Petition, pp. 38-39.
Petitioner’s contentions are completely without merit.
Dr. Hand testified that a part of petitioner’s family history and background was that
he had an older brother that he looked up to (J.Tr. 4/5/04, 43). The jury was introduced to
petitioner’s older brother, Zjaiton, when he testified in the first stage. Zjaiton, who is two
years older than petitioner, told the jury that “[a]ll of [his] life . . . [he] tried to raise
[petitioner]” (J.Tr. 4/2/04, 107). Through his first stage testimony, the jury learned that
Zjaiton was a Hoover Crip who had been in prison for six to eight years; that his convictions
28
included robbery by fear (1994), unlawful possession of a firearm (1995), and possession of
a firearm after former conviction of a felony (1998); and that he had only been out of prison
for approximately two and a half months when the crimes for which he and petitioner were
charged occurred (J.Tr. 4/2/04, 87, 89, 107, 111-12).18 Given the circumstances at home,
Dr. Hand testified that “there wasn’t anybody else [for petitioner] to follow except [Zjaiton],”
and petitioner got into trouble over and over again following Zjaiton (J.Tr. 4/5/04, 57).
Petitioner’s mother also testified to Zjaiton’s influence over petitioner (J.Tr. 4/5/04, 98-100).
The circumstances of petitioner’s home life were detailed by both Dr. Hand and
petitioner’s mother. In his testimony, Dr. Hand mentioned conflict in the home and how
petitioner had “one of his very best years” when he was in foster care. Detached from his
“chaotic family” and away from his brother, petitioner experienced “a little bit of stability
with some folks who were willing to set some limits and be consistent with
him” (J.Tr. 4/5/04, 44). Dr. Hand told the jury that petitioner’s life was shaped by certain
circumstances, which included, among other things, being raised in an “[e]motionally chaotic
family” with “[d]omestic violence” and divorce. As a result, petitioner experienced
unpredictable parenting and inconsistent parental contact and discipline (Defendant’s
Exhibit 3). Dr. Hand noted negativism between petitioner’s parents, the allegations of abuse
18
Petitioner was 21 years old at the time these crimes were committed. On November 5,
1998, at the age of 19, he committed the crime of knowingly concealing stolen property. Petitioner
pled guilty to this offense and received a two-year prison sentence (State’s Exhibits 118 and 118A).
Petitioner had been free from prison (and from further trouble) for some time prior to Zjaiton’s
release in October 2001 (J.Tr. 4/5/04, 59, 98-100).
29
going back and forth between them, and how this environment affected petitioner. In
particular, Dr. Hand testified:
So there is a lot of chaos here at four or five or six, seven, and eight when kids
are supposed to be developing good habits. When the rules get laid down.
When the structure of attitudes and behavior get set. Here is a young fellow,
little bitty guy. . . . Little bitty kid, five-years-old, who doesn’t know what to
expect. Doesn’t know who is going to be there for him and doesn’t know how
he is going to deal with life. Doesn’t know who to believe.
....
So he was already struggling at a young age. . . .[H]e was sure having a hard
time adapting. . . . There is a lot of unpredictability here. Not only in which
parent is going to be taking care of him, but which parent is going to do what
at what point. You know, there is - - there is this on-going history of anger
and frustration and what we wind up summing up with these two simple little
words called domestic violence. But what in reality is really traumatizing for
kids. For those of us that heard our moms and dads argue occasionally that is
not domestic violence. But when you are a kid and you see and hear fists
hitting bone between your parents, that leaves a mark on you, I promise.
(J.Tr. 4/5/04, 53, 55).
Petitioner’s mother testified that she divorced petitioner’s father when petitioner was
eight years old, but prior to that time, petitioner had seen a lot of violence in their
home (J.Tr. 4/5/04, 92-93). She testified that she and her boys were all afraid of petitioner’s
father, and she described her relationship with petitioner’s father as “very abusive.” She
testified that she “had been beaten many, many times in front of [her] children” (J.Tr. 4/5/04,
90, 91). In light of this testimony and the other evidence detailed above, petitioner’s
argument that the OCCA mischaracterized the mitigation case presented to the jury is
completely baseless. The OCCA’s summation of the mitigation case presented by trial
30
counsel is not “an unreasonable determination of the facts in light of the evidence
presented . . . .” 28 U.S.C. § 2254(d)(2).
For the foregoing reasons, the court concludes that petitioner has not shown that the
OCCA rendered a decision on his trial counsel ineffectiveness claim which is unreasonable
under Section 2254(d). Claim One is denied.
B.
Claim Two: Prosecutorial Misconduct.
In Claim Two, petitioner contends that he was denied a fair trial due to prosecutorial
misconduct. Petitioner’s claim is based on three allegations: (1) inconsistent theories
advanced by the prosecution at his trial and the trial of his brother a year later; (2) a comment
on his right to remain silent; and (3) the cumulative impact of these two complaints.
Petitioner presented these arguments to the OCCA in his first post-conviction application.
Finding that petitioner could have made these arguments on direct appeal, the OCCA did not
directly address the merits of petitioner’s prosecutorial misconduct claim. Wood, No. PCD2005-143, slip op. at 18. Both parties assert, however, that because the OCCA examined
whether petitioner’s trial and/or appellate counsel were ineffective for failing to preserve
and/or present these arguments on direct appeal, the OCCA in effect made a merits
determination on the underlying claims. Petition, p. 72; Response, p. 74; Reply, p. 13 n.18.
Irrespective of the procedural posture of this claim, the court concludes that even under de
novo review, petitioner is not entitled to relief. See Brown v. Sirmons, 515 F.3d 1072, 109293 (10th Cir. 2008) (quoting Snow v. Sirmons, 474 F.3d 693, 717 (10th Cir. 2007), and
acknowledging that “the interest of efficiency” is served by this suggested approach); Snow,
31
474 F.3d at 717 (“We can avoid deciding procedural bar questions where claims can readily
be dismissed on the merits.”).
Allegations of prosecutorial misconduct are given due process review. Stouffer v.
Trammell, 738 F.3d 1205, 1221 (10th Cir. 2013). The question is whether the prosecutor’s
actions or remarks “so infected the trial with unfairness as to make the resulting conviction
a denial of due process.” Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974). A
fundamental fairness inquiry “requires examination of the entire proceedings, including the
strength of the evidence against the petitioner, both as to guilt at that stage of the trial and as
to moral culpability at the sentencing phase.” Le v. Mullin, 311 F.3d 1002, 1013 (10th Cir.
2002). “The ultimate question is whether the jury was able to fairly judge the evidence in
light of the prosecutors’ conduct.” Bland v. Sirmons, 459 F.3d 999, 1024 (10th Cir. 2006).
Petitioner argues that he is entitled to a new trial, or at least a new sentencing hearing,
because the prosecution argued in his trial that he was the one who stabbed Ronnie Wipf and
then later argued in Zjaiton’s trial that Zjaiton was the actual killer. Citing Berger v. United
States, 295 U.S. 78 (1935), and Bradshaw v. Stumpf, 545 U.S. 175 (2005), petitioner
contends that the prosecution’s advancement of these inconsistent theories constitutes
misconduct warranting relief. In Berger, the Supreme Court acknowledged that a prosecutor
is the pursuer of justice. “It is as much his duty to refrain from improper methods calculated
to produce a wrongful conviction as it is to use every legitimate means to bring about a just
one.” Berger, 295 U.S. at 88. In Stumpf, 545 U.S. at 177-78, the Supreme Court addressed
the issue of inconsistent theories as it related to the validity of a defendant’s guilty plea and
32
sentence of death. The Court concluded that Stumpf’s plea was unaffected by what occurred
in the subsequent prosecution of his co-defendant. Regarding Stumpf’s sentence, however,
the Court did not foreclose the possibility of relief, and it remanded the issue for further
consideration.19 Id. at 186-88. Prior to Stumpf, the Supreme Court had “never hinted, much
less held, that the Due Process Clause prevents a State from prosecuting defendants based
on inconsistent theories.” Id. at 190 (Thomas, J., concurring).20
In support of his argument, petitioner has provided transcript excerpts from Zjaiton’s
trial. However, these excerpts confirm that even after petitioner’s trial, the prosecution
maintained its belief that petitioner “was in fact the stabber.” Petitioner’s Exhibit 28A.21
Reviewing Petitioner’s Exhibits 28B, 28C, and 28E,22 it is apparent that among the evidence
admitted against Zjaiton at his trial were letters he wrote confessing to killing Mr. Wipf (one
to co-defendant Brandy Warden and one to the prosecutor) and the testimony he gave at
petitioner’s trial in which he admitted to stabbing him. There is no indication that the state
19
On remand, the Sixth Circuit denied relief, and the Supreme Court declined to revisit the
case. Stumpf v. Robinson, 722 F.3d 739 (6th Cir. 2013), cert. denied, 134 S.Ct. 905 (2014).
20
Stumpf was decided after petitioner’s trial (and Zjaiton’s trial), but prior to the OCCA’s
determination of petitioner’s direct appeal.
21
Respondent has provided a complete copy of this transcript. Doc. 68. Repeatedly, the
state reaffirms its position that petitioner was the stabber, and the trial judge, the same judge who
presided over petitioner’s trial, makes it abundantly clear that he will not permit the state to argue
otherwise. Although the state was permitted to use Zjaiton’s own incriminating statements against
him, it was not allowed to present a theory that Zjaiton was the stabber, a theory inconsistent with
what the state asserted at petitioner’s trial (State v. Zjaiton Wood, Case No. CF-2002-46,
Tr. 9/20/04, 4-26).
22
Respondent has also provided a complete copy of this transcript. Doc. 68.
33
utilized this evidence to argue that Zjaiton stabbed Mr. Wipf, but Zjaiton’s statements were
relevant to the jury’s determination of whether Zjaiton was guilty as a principal to the felony
murder charge and to the jury’s determination of an appropriate sentence. Without question,
the state used Zjaiton’s own statements against him, but this course of action in no way
infringed petitioner’s due process rights. See Stumpf, 722 F.3d at 751 (“Making legal
arguments from the record . . . can hardly be called ‘chicanery,’ an ‘affirmative effort to
deceive the court,’ or ‘a refusal to correct known error.’”) (citation omitted).
Next, petitioner complains about the prosecutor’s second stage closing argument. In
particular, petitioner asserts that the prosecutor’s references to his lack of remorse amounted
to impermissible comments on his right to remain silent. See Donnelly, 416 U.S. at 643
(“When specific guarantees of the Bill of Rights are involved, . . . special care [is taken] to
assure that prosecutorial conduct in no way impermissibly infringes them.”); Paxton v.
Ward, 199 F.3d 1197, 1217 (10th Cir. 1999) (“[A] claim that the misconduct effectively
deprived the defendant of a specific constitutional right . . . may be the basis for habeas relief
without proof that the entire proceeding was unfair.”). In the first comment, the prosecutor
noted that petitioner’s mitigation expert, Dr. Hand, gave no testimony which indicated that
petitioner was sorry for what he did. The prosecutor then argued that Dr. Hand did not
mention remorse because petitioner did not have any (J.Tr. 4/5/04, 133). Thereafter, the
prosecutor made a second remark that petitioner was “[a] man who can kill an innocent
victim without mercy and without remorse” (J.Tr. 4/5/04, 139). Neither comment spurred
an objection from defense counsel.
34
Although petitioner labels these references as “egregious,” Petition, p. 71, the court
disagrees. The comments about which petitioner complains were made during the state’s
first penalty stage closing argument, and they were brief in nature. The comments did not
elicit an objection from defense counsel, and it is clear that counsel did not object because
the comments were permissible under Oklahoma law. The OCCA has repeatedly held that
a defendant’s lack of remorse is relevant to the continuing threat aggravator. Warner v.
State, 144 P.3d 838, 891 (Okla. Crim. App. 2006) (“Lack of remorse is an appropriate
consideration for the jury in the second stage of a capital trial.”); Powell v. State, 995 P.2d
510, 529 (Okla. Crim. App. 2000) (acknowledging that a “lack of remorse is a proper
subject” for second stage closing argument); Charm v. State, 924 P.2d 754, 762-63 (Okla.
Crim. App. 1996) (acknowledging that a defendant’s lack of remorse is one of “[t]he most
common grounds alleged to prove the continuing threat aggravator”). Because the state
alleged that petitioner was a continuing threat (O.R. I, 72-73), the prosecutor’s comments on
remorse were relevant, and no due process violation occurred. See Coleman v. Brown,
802 F.2d 1227, 1240 (10th Cir. 1986) (finding no error in the prosecutor’s argument because
the petitioner’s “failure to show regret or remorse for his actions may have helped the jury
determine whether he was likely to commit crimes in the future”). See also James v. Gibson,
211 F.3d 543, 559 (10th Cir. 2000) (finding that the continuing threat aggravator was
supported in part by the petitioner’s lack of remorse).
For the foregoing reasons, the court concludes that petitioner has not shown that he
was denied a fair trial due to prosecutorial misconduct. The court additionally concludes that
35
because neither of the complaints alleged by petitioner have merit, there is no reason to
consider their cumulative effect. Petitioner’s Claim Two is denied.
C.
Claim Three: Ineffective Assistance of Appellate Counsel.
In Claim Three, petitioner asserts that his appellate counsel was ineffective. Petitioner
not only faults his appellate counsel for omitting four issues from his direct appeal brief, but
he additionally contends that his appellate counsel failed him at the state court evidentiary
hearing and in the supplemental briefing which followed. Petitioner presented his third claim
to the OCCA in his first post-conviction application. Addressing the merits, the OCCA
denied relief. Wood, No. PCD-2005-143, slip op. at 8-18. Respondent argues that this claim
must be denied because petitioner has failed to meet the high standard for AEDPA relief.
The court agrees.
Claims regarding the effectiveness of appellate counsel are governed by Strickland.
Milton, 744 F.3d at 669 (citing Smith v. Robbins, 528 U.S. 259, 285 (2000)). In accordance
with Strickland, a petitioner alleging appellate counsel ineffectiveness must show (1) that his
appellate counsel’s actions on appeal were objectively unreasonable and (2) that, but for
counsel’s unreasonable actions, he would have prevailed on appeal. Robbins, 528 U.S. at
285-86; Miller v. Mullin, 354 F.3d 1288, 1297 (10th Cir. 2004) (quoting Ellis v. Hargett,
302 F.3d 1182, 1186-87 (10th Cir. 2002)). As previously discussed with respect to
petitioner’s first claim, both Strickland and the AEDPA are highly deferential standards, “and
when the two apply in tandem, review is ‘doubly’ so.” Richter, 562 U.S. at 105 (citation
omitted).
36
When an appellate counsel claim concerns omitted issues, Strickland’s first prong
requires a showing that counsel unreasonably omitted “nonfrivolous issues” from petitioner’s
direct appeal. Robbins, 528 U.S. at 285. When counsel has filed a brief on the merits, it is
difficult to show his incompetence for failing to raise a particular claim. Robbins, 528 U.S.
at 288. Appellate counsel does not have an obligation to raise every possible claim
irrespective of its merit. In fact, “the hallmark of effective appellate advocacy” is the
“process of ‘winnowing out weaker arguments on appeal and focusing on’ those more likely
to prevail.” Smith v. Murray, 477 U.S. 527, 536 (1986) (quoting Jones, 463 U.S. at 751-52).
“This has assumed a greater importance in an era when oral argument is strictly limited in
most courts–often to as little as 15 minutes–and when page limits on briefs are widely
imposed.” Jones, 463 U.S. at 752-53.
In denying petitioner relief related to counsel’s failure to raise particular claims, the
OCCA held in pertinent part as follows:
A review of [petitioner’s] complaints shows that he can neither show
that counsel’s decision on which claims to include on direct appeal was
unsound strategy nor that the outcome of his appeal would have been different
had appellate counsel raised these issues. Appellate counsel has a duty to raise
relevant issues for this Court’s consideration, but there is no obligation to raise
every available non-frivolous issue. See Martinez v. State, 1999 OK CR 47,
¶ 22, 992 P.2d 426, 432. It appears to us that appellate counsel presented to
this Court those claims, he believed, in light of his professional judgment, had
the best chances for success that would fit within this Court’s page limitation
in a capital case. Appellate counsel raised seven propositions of error that
filled his allotted 100 pages of brief space, dedicating more than a quarter of
his brief to a claim of ineffective assistance of trial counsel. Appellate
counsel’s efforts resulted in this Court remanding the matter for an evidentiary
hearing to investigate the ineffective assistance of trial counsel claim. On this
record, we cannot find that [petitioner] has shown that his appellate counsel’s
37
performance in presenting ineffective assistance of trial counsel claims was
deficient or that he was prejudiced thereby. For this reason, his claim that
appellate counsel was ineffective must be denied.
Wood, No. PCD-2005-143, slip op. at 17-18.
Before addressing the merits of the claims he believes appellate counsel should have
raised, petitioner presents two initial challenges to the OCCA’s holding. First, petitioner
challenges the following sentence: “It appears to us that appellate counsel presented to this
Court those claims, he believed, in light of his professional judgment, had the best chances
for success that would fit within this Court’s page limitation in a capital case.” Dissecting
the 100-page brief filed by appellate counsel, petitioner asserts that it does not support the
OCCA’s conclusion that his appellate counsel exercised professional judgment in
determining what claims to present.23 Petitioner argues it was clearly unreasonable for
appellate counsel to use forty percent of the brief to argue general challenges to the death
penalty (and a significant portion of this forty percent to challenge the constitutionality of the
three aggravators the jury found to support petitioner’s death sentence).24 Second, petitioner
23
Petitioner also makes a footnote reference to an affidavit executed by appellate counsel
in June 2011. Petitioner’s Exhibit 10. In the affidavit, appellate counsel acknowledges the many
ways in which he failed in his representation of petitioner. Because this affidavit was executed some
four years after the OCCA adjudicated petitioner’s first post-conviction application, the court
cannot consider it in conducting its Section 2254(d) analysis. Pinholster, 131 S.Ct. at 1398.
24
Although petitioner claims that appellate counsel’s constitutional challenges to the
aggravators were for naught because the OCCA has repeatedly rejected their merit, petitioner is
nevertheless requesting habeas relief on the ground that Oklahoma’s continuing threat aggravator
is unconstitutionally vague and overbroad (Claim Four, infra). Much like appellate counsel on
direct appeal, petitioner argues for relief while acknowledging that the Tenth Circuit has previously
rejected this argument.
38
takes issue with the OCCA’s acknowledgment that appellate counsel devoted more than a
quarter of the direct appeal brief to an ineffective assistance of trial counsel claim, which
ultimately resulted in the grant of an evidentiary hearing. Here, petitioner faults appellate
counsel for his lengthy presentation of this claim, given that he also filed a Rule 3.11 motion
which covered the same information. Petition, pp. 78-80.
Through his critique of the brief appellate counsel prepared, petitioner has
undoubtedly shown areas in which it might have been improved. However, this is not the
standard for relief. Strickland warns against hindsight assessments, id. at 689, and the
question this court must answer is whether all fairminded jurists would agree that the OCCA
acted unreasonably when it concluded that appellate counsel was not deficient in his
representation of petitioner on appeal (and that in any event no prejudice resulted). See
Frost, 749 F.3d at 1225-26 (“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, 738 F.3d at 1221 (citing Richter, 562 U.S. at 101, for the proposition that relief is
warranted “only if all ‘fairminded jurists’ would agree that the state court got it wrong”)
(emphasis added). Appellate counsel filed a brief focused largely on second stage issues,
which, given the strong evidence of guilt (including testimony from a surviving victim and
a co-defendant), was reasonable. As noted by petitioner, appellate counsel did utilize forty
pages in support of his third proposition of error, but therein counsel presented nine various
39
claims challenging the aggravating and mitigating circumstances. These nine claims
included challenges to the jury instructions, the constitutionality of the aggravators, and the
sufficiency of the evidence, Brief of Appellant, No. D-2005-171, pp. 20-61, and the court
notes that petitioner has even presented four of these claims in support of his request for
federal habeas relief. See Claim Four, infra. Regarding the OCCA’s acknowledgment that
appellate counsel was successful in obtaining an evidentiary hearing on trial counsel
ineffectiveness, the OCCA does not remand cases for an evidentiary hearing on a routine
basis, and therefore the fact that appellate counsel was able to achieve this result suggests the
merit of counsel’s approach. See Fairchild v. Workman, 579 F.3d 1134, 1142 (10th Cir.
2009) (noting that that the OCCA remands cases for an evidentiary hearing on ineffective
assistance of trial counsel “[i]n limited circumstances”). In addition, appellate counsel
cannot be faulted for presenting the the ineffective assistance of trial counsel claim in both
the brief-in-chief and in the Rule 3.11 motion when the same is required by OCCA rule. See
Rule 3.11(B)(3)(b), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App.
Beyond the foregoing arguments, petitioner presents four issues which appellate
counsel failed to raise. All four issues relate to trial counsel’s ineffectiveness. Petitioner
asserts that had these issues been raised on appeal, “there is a reasonabl[e] probability that
the OCCA would have granted relief.” Petition, p. 80. When examining omitted issues, the
Tenth Circuit has provided the following guidance:
If the omitted issue is so plainly meritorious that it would have been
unreasonable to winnow it out even from an otherwise strong appeal, its
omission may directly establish deficient performance; if the omitted issue has
40
merit but is not so compelling, the case for deficient performance is more
complicated, requiring an assessment of the issue relative to the rest of the
appeal, and deferential consideration must be given to any professional
judgment involved in its omission; of course, if the issue is meritless, its
omission will not constitute deficient performance.
Cargle v. Mullin, 317 F.3d 1196, 1202 (10th Cir. 2003) (footnote omitted) (citations
omitted).
First, petitioner asserts that appellate counsel should have raised an ineffectiveness
claim based on trial counsel’s failure to object to jurors moving their vehicles. In both stages
of trial, after closing arguments but before the jury began deliberating, the trial court
permitted jurors to move their cars from garages which would soon be closed. The trial court
issued strong admonishments to the jurors on both occasions, and trial counsel, who was
present, failed to object either time (J.Tr. 4/2/04, 199-214; J.Tr. 4/5/04, 159-63). Petitioner
asserts that the trial court’s actions constituted violations of Okla. Stat. tit. 22, § 857, which
sets forth the procedure for handling the jury after the charge, i.e., submission of the case.25
Section 857 provides as follows:
After hearing the charge, the jury may either decide in court, or may retire for
deliberation. If they do not agree without retiring, one or more officers must
be sworn to keep them together in some private and convenient place, and not
to permit any person to speak to or communicate with them, nor do so
themselves, unless it be by order of the court, or to ask them whether they have
agreed upon a verdict, and to return them into court when they have so agreed,
or when ordered by the court.
25
Submission of the case occurs after the jury has been instructed and closing arguments
have been heard. Johnson v. State, 93 P.3d 41, 46-47 (Okla. Crim. App. 2004). In both instances
here, the case had been submitted to the jury within the meaning of Section 857.
41
With reliance on two OCCA cases applying this statutory provision, Bayliss v. State,
795 P.2d 1079, 1080-81 (Okla. Crim. App. 1990), and Johnson, 93 P.3d at 46-48, petitioner
asserts that had trial counsel objected, prejudice would have been presumed, and he would
have prevailed on appeal. Petition, pp. 80-82.26
Petitioner is correct that in both Bayliss and Johnson, the OCCA found reversible
error due to a violation of Section 857. However, in both cases, the trial court permitted the
jury to separate over defense counsel’s objection. Johnson, 93 P.3d at 46-48; Bayliss,
795 P.2d at 1080-81. Johnson is clear that prejudice will be presumed only when the
defendant objects to the separation, and when an objection is made, the state is then given
the opportunity to prove otherwise. Johnson, 93 P.3d at 47. In Bayliss, 795 P.2d at 1081,
the OCCA granted relief because the state made no attempt to rebut the presumption, and in
Johnson, 93 P.3d at 47, the OCCA found that the minimal admonishments the trial court gave
to the jury were insufficient to overcome the presumption. Of course, petitioner’s very
argument here is that trial counsel failed to object. Had counsel objected, the court agrees
that prejudice would have been presumed; however, the record is insufficient to conclude that
reversal would have been warranted. Without an objection and without any development of
the claim by petitioner,27 petitioner’s ineffectiveness claim can be evaluated only by the
26
Here again, petitioner makes reference to appellate counsel’s affidavit which the OCCA
did not consider in making its decision. Petition, p. 81. The court has not considered the affidavit
in adjudicating this claim. See n.23, supra.
27
Respondent aptly notes that petitioner could have developed this claim by presenting
affidavits from jurors or other persons indicating that the trial court’s admonishments were not
followed. Response, p. 83. Although petitioner takes respondent to task for this assertion, Reply,
42
existing record, which shows that the separation occurred before any deliberations took
place, that the breaks were brief and for the sole purpose of having the jurors move their cars,
and that the trial court’s admonishments were both strong and clear. Under these
circumstances, the court cannot conclude that the OCCA unreasonably determined that
appellate counsel was not ineffective for failing to raise this claim.28
The second and third claims that petitioner contends appellate counsel should have
raised concern trial counsel’s actions related to Zjaiton and his first stage testimony that he,
not petitioner, stabbed Mr. Wipf. Petitioner contends that trial counsel was ineffective for
(1) failing to introduce co-defendant Lanita Bateman’s pre-sentence investigation
report (PSI) in support of Zjaiton’s testimony; (2) failing to object and/or request a Daubert29
hearing with respect to the testimony of the state’s handwriting expert, who testified that
p. 16 n.20, the court does not interpret respondent’s argument as contrary to Pinholster. The court
knows of no reason why petitioner could not have further developed this claim in the manner
respondent suggests in petitioner’s pursuit of post-conviction relief. Had petitioner presented such
information to the OCCA in his post-conviction application, the court could have considered the
same in accordance with Pinholster.
28
In a footnote, petitioner makes an additional assertion that the record is silent as to
whether the bailiff was sworn as required by Section 857. Petition, p. 81 n.67. This does not change
the court’s analysis. The OCCA has repeatedly held that it “will not assume error from a silent
record.” Glossip v. State, 157 P.3d 143, 155 (Okla. Crim. App. 2007). See also Welch v. State,
968 P.2d 1231, 1245 (Okla. Crim. App. 1998); Wilson v. State, 871 P.2d 46, 49 (Okla. Crim.
App. 1994); Hain v. State, 852 P.2d 744, 750 (Okla. Crim. App. 1993).
29
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). Oklahoma applies
the standards set forth in Daubert to determine the admissibility of novel expert testimony. Harris v.
State, 84 P.3d 731, 745 (Okla. Crim. App. 2004).
43
petitioner wrote a letter which contained damaging evidence of his guilt;30 (3) failing to list
as a mitigating circumstance that Zjaiton admitted to killing Mr. Wipf; and (4) failing to
request an Enmund/Tison31 instruction. Petition, pp. 82-85. For the following reasons, the
court concludes that petitioner has failed to show that the OCCA made an unreasonable
determination that appellate counsel was not ineffective for failing to raise these claims.
At petitioner’s urging, and against the advice of counsel for both petitioner and his
brother, Zjaiton testified in the first stage of petitioner’s trial. Zjaiton testified that he was
the one who stabbed Mr. Wipf and that he was accompanied by a man named Alex. He
testified that petitioner was not present when Mr. Wipf was murdered, nor was he involved
in any way (J.Tr. 4/2/04, 60-136). Wood, 158 P.3d at 472. In addition to the fact that
Zjaiton’s testimony was inconsistent with the presented evidence (and particularly with the
testimony of co-defendant Brandy Warden),32 Zjaiton’s testimony was clearly questionable
30
In this letter to Zjaiton, petitioner responds to Zjaiton’s intention to enter a guilty plea.
He questions how Zjaiton will explain petitioner’s DNA being on a glove found at the scene and he
offers an explanation that Zjaiton might use (State’s Exhibit 112).
31
Tison v. Arizona, 481 U.S. 137 (1987); Enmund v. Florida, 458 U.S. 782 (1982). “The
central concern of Enmund and Tison is whether a conviction for felony murder contains an
adequate determination of defendants’ culpability such that imposition of the death penalty does not
violate the Eighth Amendment’s prohibition against cruel and unusual punishment.” Malicoat v.
Mullin, 426 F.3d 1241, 1254 (10th Cir. 2005).
32
The most obvious difference was her testimony that it was petitioner, not someone named
Alex, who along with Zjaiton, Ms. Warden, and Ms. Bateman committed the charged crimes. For
another example, Zjaiton testified that he and Alex came to the motel and left the motel in Alex’s
light blue Altima (J.Tr. 4/2/04, 92, 95). Ms. Warden testified that the four of them drove petitioner’s
girlfriend’s car before and after the commission of the crimes (J.Tr. 4/1/04, 141, 142, 168-71). This
car was a white 2000 Chrysler Sierra (J.Tr. 4/1/04, 79). In addition to the testimony given by the
surviving victim (Arnold Kleinsasser) regarding a white car (J.Tr. 3/31/04, 143), two witnesses at
the motel recalled seeing four people leave in a white car. One of the witnesses noted that her
44
from the standpoint of credibility. Beyond the bias inherent in an older brother attempting
to spare his younger brother’s life, Zjaiton’s testimony about Alex was sketchy. Zjaiton
testified that Alex, a white man whose height and weight was similar to that of petitioner,
was an associate and/or boyfriend of co-defendant Ms. Bateman, and Zjaiton admitted that
he and Alex had previously sold drugs together. However, Zjaiton did not know Alex’s last
name, nor did he know his current whereabouts, and he testified that he had not seen Alex
since the murder occurred (J.Tr. 3/31/04, 132; J.Tr. 4/1/04, 34; J.Tr. 4/2/04, 89, 101-02, 10304). Additionally relevant to Zjaiton’s believability was the fact that this was not the first
murder he had admitted to. Zjaiton previously confessed to murdering Rob Andrew, the
murder for which Andrew’s wife, Brenda, and her paramour, James Pavatt, were both
convicted (J.Tr. 4/2/05, 108-10; State’s Exhibit 128). See Andrew v. Moham, No. CIV-08832-R, 2015 WL 5254525 (W.D. Okla. Sept. 9, 2015); Pavatt v. Trammell, No. CIV-08-470R, 2014 WL 1745019 (W.D. Okla. May 1, 2014). Although Zjaiton had written a letter to
the prosecutor confessing to the murder of Andrew, Zjaiton admitted at petitioner’s trial that
he had never in the three years since the murder occurred told the district attorney’s office
or the police that he had committed this murder–a confession which had the potential, if true,
to exonerate his own brother. Zjaiton had no explanation except to say, “I’m here now telling
you” (J.Tr. 4/2/04, 110-11). By finding petitioner guilty of felony murder, the jury clearly
rejected Zjaiton’s testimony.
attention was drawn to the car because the tires were squealing as it left the parking
lot (J.Tr. 3/31/04, 217-18, 233-34).
45
In her PSI, Ms. Bateman states she was with Zjaiton (a/k/a Jake) following the crimes
against Mr. Wipf and Mr. Kleinsasser when she heard his mother ask him what he had done.
Ms. Bateman heard Zjaiton tell “her that he thought he killed a guy” (O.R. III, 501).
Petitioner contends that his trial counsel should have admitted the PSI to support Zjaiton’s
testimony that he, not petitioner, was the one who actually stabbed Mr. Wipf. Petitioner
makes this assumption while acknowledging that the state attempted to present Ms. Bateman
in their case-in-chief but was precluded from doing so based on Ms. Bateman’s invocation
of her Fifth Amendment right not to testify (J.Tr. 4/1/04, 205-20).33 Petition, p. 82.34
Respondent argues that even if counsel had wanted to admit the PSI, admission would have
been denied on hearsay grounds. Respondent additionally asserts that admission of the PSI
would not have benefitted petitioner’s defense as petitioner contends. Response, p. 85. The
court agrees. The very reason the state sought to admit Ms. Bateman’s report in its case-inchief was for its incriminating nature. In the PSI, Ms. Bateman implicates petitioner
(erroneously referred to in the report as “Jermane”) in the crimes. Consequently, it would
33
In seeking admission of Ms. Bateman’s PSI, the prosecutor advised the trial court that
Ms. Bateman had not been interviewed by the state and that the state’s desire to have Ms. Bateman
testify was based solely on her version of events contained in her PSI (J.Tr. 4/1/04, 216).
34
Petitioner additionally asserts in a footnote that Ms. Bateman would have been willing to
provide mitigating testimony had trial counsel investigated the matter further. Petition, p. 83 n.70.
Although petitioner pleads this additional claim among the ineffective assistance of appellate
counsel claims he raised in his first post-conviction application, petitioner did not raise this claim
in his first post-conviction application and the affidavit supporting the claim was not even made
until almost a year after his first post-conviction application was decided. See Petitioner’s
Exhibit 9. The court declines to address this unexhausted, unsupported, and ineptly pled singlesentence claim.
46
have been inconsistent with, not supportive of, Zjaiton’s testimony that he committed the
crimes with Alex. Trial counsel was therefore not ineffective for failing to seek admission
of Ms. Bateman’s PSI, appellate counsel was not ineffective for failing to raise the claim on
direct appeal, and the OCCA did not act unreasonably in its denial of this claim.
Next, petitioner claims that his trial counsel was ineffective for failing to challenge
the testimony of the state’s handwriting expert, David Parrett. Mr. Parrett, a “questioned
document examiner” for the district attorney’s office, testified about his training and
experience and the principles of handwriting identification (J.Tr. 4/1/04, 268-73), and he
detailed for the jury his examination and comparison of known writing samples from both
petitioner and Zjaiton to the “kite” letter35 found in Zjaiton’s jail cell (J.Tr. 4/1/04, 221-27,
273-94; State’s Exhibits 112 and 119). From noted characteristics in the writings, Mr. Parrett
expressed his opinion as follows:
And as a result of a comparison of the class characteristics and the individual
characteristics in both [petitioner’s] handwriting, . . . and Zjaiton Wood’s
handwriting . . . , I noted numerous, significant, individual differences in the
handwriting between Zjaiton Wood and the [kite letter], leading to the opinion
of excluding Zjaiton Wood as the writer of the [kite letter].
In comparing the handwriting characteristics of [petitioner], the
individual and the class characteristics in total of [petitioner] to the [kite letter],
35
A kite letter is a note sent from one inmate to another outside of the regular mail system.
It is considered contraband (J.Tr. 4/1/04, 225-26).
47
I found a sufficient number of significant, individual similarities to conclude
that . . . [petitioner] prepared the text on the [kite letter].
(J.Tr. 4/1/04, 293-94).
With reference to a 2009 scientific report (issued five years after petitioner’s trial) and
two federal district court cases (applying Fed. R. Evid. 702), petitioner contends that had trial
counsel challenged Mr. Parrett’s testimony, he could have barred or at least “severely limited
[the] nature and tenor” of Mr. Parrett’s testimony. Petition, pp. 83-84. However, the court
concludes that petitioner has failed to show that trial counsel was ineffective for failing to
object to Mr. Parrett’s testimony. The authority cited by petitioner fails to demonstrate a
reasonable probability that he would have prevailed on appeal had appellate counsel argued
this claim to the OCCA,36 and thus he fails to show that the OCCA unreasonably denied this
portion of his ineffective assistance of appellate counsel claim.
Based on Zjaiton’s testimony, petitioner also faults his trial counsel for failing to
include as a mitigating circumstance Zjaiton’s admission that he killed Mr. Wipf. Petitioner
cites Lockett v. Ohio, 438 U.S. 586, 604 (1978), for the proposition that relevant mitigation
evidence includes any circumstance which might serve “as a basis for a sentence less than
death.” Petition, p. 84. However, the court concludes that the OCCA reasonably determined
that appellate counsel was not ineffective for failing to raise this claim. As detailed above,
36
The court notes respondent’s reference to Pavatt v. State, No. PCD-2004-25 (Okla. Crim.
App. Apr. 11, 2008), attached as Respondent’s Exhibit 2, wherein the OCCA rejected a similar
challenge to a handwriting expert through the lens of ineffective assistance of appellate counsel.
Response, p. 87. There the OCCA noted the lack of “controlling authority which would require
exclusion of [the] evidence.” Pavatt, slip. op. at 7 n.8 (emphasis added).
48
Zjaiton’s testimony lacked credibility and, by its first stage verdict, it is clear that the jury
rejected it. Therefore, had trial counsel included Zjaiton’s admission of guilt as a mitigating
circumstance, there is a strong possibility that the jury would have viewed it as disingenuous.
In addition, even though this additional circumstance was not specifically listed, the jury was
well aware of Zjaiton’s testimony, and in accordance with the instructions, if the jury wanted
to consider Zjaiton’s testimony as a mitigating circumstance, it was permitted to do
so (O.R. IV, 634-35) (“In addition, you may decide that other mitigating circumstances exist,
and if so, you should consider those circumstances as well.”). Finally, the jury was instructed
regarding seventeen specific mitigating circumstances supported by the evidence (O.R. IV,
634-35), and the court concludes that petitioner has not shown a reasonable probability that
had this additional circumstance be added, the jury would have returned a different sentence.
Petitioner additionally asserts that trial counsel was ineffective for failing to request
an Enmund/Tison instruction.37 In Enmund, 458 U.S. at 797, the Supreme Court held that
the Eighth Amendment prohibits the imposition of a death sentence on a defendant “who
37
Oklahoma’s uniform Enmund/Tison instruction, OUJI-CR (2d) 4-71, provides as follows:
In determining whether a person found guilty of murder in the first degree
shall be punished by death, imprisonment for life without the possibility of parole,
or imprisonment for life with the possibility of parole, you are required to give
individualized consideration to the defendant’s degree of participation and focus on
the defendant’s individual culpability in the killing.
You are further instructed that you may not impose the death penalty unless
you determine beyond a reasonable doubt that the defendant either: 1) killed a
person, 2) attempted to kill a person, 3) intended a killing to take place, 4) intended
the use of deadly force, or 5) was a major participant in the felony committed and
was recklessly indifferent to human life.
49
does not himself kill, attempt to kill, or intend that a killing take place or that lethal force will
be employed.” In Tison, 481 U.S. at 158, the Supreme Court found that Enmund’s
culpability requirement is satisfied where the defendant was a major participant in the felony
committed and acted with reckless indifference to human life. See Banks v. Workman,
692 F.3d 1133, 1141 (10th Cir. 2012) (Tison is “clear that capital punishment for felony
murder charges is both constitutional and not infrequently imposed when the defendant was
present during the murder and acted with reckless disregard for human life”); Wilson v.
Sirmons, 536 F.3d 1064, 1107 (10th Cir. 2008) (“Under Enmund and its progeny, when the
defendant did not himself strike the blows that killed the victim, in order to be eligible for
the death penalty he must either have intended to kill or have been a major participant in the
felony who acted with a reckless indifference to human life.”). Based on Zjaiton’s testimony,
petitioner argues that because there was conflicting evidence as to who killed Mr. Wipf, “[a]
reasonable juror could have determined that [he] did not exhibit a reckless indifference to
human life.” Petition, p. 85.
In the first instance, if a defendant is the actual killer, then there is no Enmund/Tison
issue. See Harmon v. State, 248 P.3d 918, 938 (Okla. Crim. App. 2011) (citing both
Supreme Court and Oklahoma authority and acknowledging that “[t]he United States
Supreme Court and [the OCCA] have held that the Eighth Amendment permits the execution
of a defendant who actually perpetrated a killing during the commission of a felony”). Here,
the state’s evidence supported the conclusion that petitioner was the actual killer. The only
evidence to the contrary was Zjaiton’s testimony that he and Alex did it. However, since the
50
jury found petitioner guilty of felony murder, the jury clearly did not accept Zjaiton’s
testimony that petitioner had no involvement in the crimes. By rejecting Zjaiton’s version
of events, the jury in effect determined that petitioner and his brother were the two men who
accosted the victims in the hotel room. Whether petitioner was, as the state’s evidence
showed, the one who actually stabbed Mr. Wipf, the evidence showed that both men burst
into the motel room wearing black ski masks and gloves, that one had a knife and the other
had a gun, and that both participated in the assault and robbery of the victims. So whether
or not petitioner was the one who actually killed Mr. Wipf, there is no doubt that he was a
major participant who acted in reckless disregard of human life. Accordingly, trial counsel
was not ineffective for failing to request an Enmund/Tison instruction and the OCCA did not
act unreasonably in denying this claim.
The final claim that petitioner contends his appellate counsel should have presented
on direct appeal is trial counsel’s failure to object to the prosecutor’s arguments which he
contends violated his right to remain silent. In Claim Two, supra, the court conducted a de
novo review of the prosecutor’s comments and concluded that no relief was warranted.
Given the lack of merit to the underlying claim, trial counsel cannot be deemed ineffective
for failing to object, appellate counsel cannot be found ineffective for failing to raise the
argument, and the decision of the OCCA rejecting this claim cannot be judged unreasonable
so as to warrant AEDPA relief. Hanson, 797 F.3d at 837, 839 (refusing to analyze a
petitioner’s ineffectiveness claim based on trial counsel’s failure to object to instances of
prosecutorial misconduct where the underlying instances of alleged misconduct were without
51
merit). See Freeman v. Attorney General, 536 F.3d 1225, 1233 (11th Cir. 2008) (“A lawyer
cannot be deficient for failing to raise a meritless claim . . . .”); Snow, 474 F.3d at 724-25
(trial counsel was not ineffective for failing to object to certain evidence that the OCCA
found admissible); Spears v. Mullin, 343 F.3d 1215, 1249 (10th Cir. 2003) (trial counsel was
not ineffective for failing to object to the giving of a flight instruction where the OCCA
found that sufficient evidence supported the giving of the instruction).
Petitioner also claims that his appellate counsel was ineffective at the state court
evidentiary hearing and in the supplemental briefing which followed. In particular, petitioner
argues that his appellate counsel was ineffective for failing (1) to discredit the testimony of
petitioner’s father, Mr. Gross; (2) to use information with respect to his trial counsel; and
(3) to raise certain issues in the supplemental brief. Petition, pp. 87-89. Petitioner asserts
that the court should not give deference to the OCCA’s decision because the OCCA
unreasonably applied Strickland. Petitioner argues that although the OCCA reviewed the
merit of each of his claims under Strickland, he faults the OCCA for not addressing the
cumulative nature of the errors in conducting its prejudice assessment.38 Petition, pp. 86-87.
38
Petitioner raised an expansive appellate counsel ineffectiveness claim in his first postconviction application. The OCCA addressed each claim in detail, guided by the principles set forth
in Strickland. Wood, No. PCD-2005-143, slip op. at 8-18. In Strickland, the Supreme Court offered
the following guidance with respect to the prejudice analysis:
In making this determination, a court hearing an ineffectiveness claim must
consider the totality of the evidence before the judge or jury. Some of the factual
findings will have been unaffected by the errors, and factual findings that were
affected will have been affected in different ways. Some errors will have had a
pervasive effect on the inferences to be drawn from the evidence, altering the entire
evidentiary picture, and some will have had an isolated, trivial effect. Moreover, a
52
Petitioner argues that “[t]he resultant prejudice is apparent” because appellate counsel’s
failures affected the trial court’s credibility determinations of both Mr. Gross and petitioner’s
trial counsel, and had appellate counsel not made these errors, petitioner asserts that “the
OCCA would have likely granted relief.” Petition, pp. 89-90. For the reasons set forth
below, the court concludes that the OCCA did not unreasonably apply Strickland.
Petitioner faults his appellate counsel for not discrediting his father when he testified
at the evidentiary hearing. He argues that appellate counsel should have used certain records,
including divorce records, criminal records, protective orders, and medical records to show
that his father abused his mother more than he was willing to admit at the evidentiary
hearing. Petition, pp. 87-89. In denying petitioner relief on this claim, the OCCA held as
follows:
[Petitioner] also claims appellate counsel failed to present evidence at
the evidentiary hearing in support of [petitioner’s] claim that his father,
Raymond Gross, Jr., was abusive to his wife and children. [Petitioner]
contends appellate counsel should have used documents related to
verdict or conclusion only weakly supported by the record is more likely to have
been affected by errors than one with overwhelming record support. Taking the
unaffected findings as a given, and taking due account of the effect of the errors on
the remaining findings, a court making the prejudice inquiry must ask if the
defendant has met the burden of showing that the decision reached would reasonably
likely have been different absent the errors.
Strickland, 466 U.S. at 695-96. As this paragraph in Strickland makes clear, every ineffectiveness
claim inherently involves consideration of the totality of the circumstances–what was done, what
could have been done, and whether what could have been done rises to the level of undermining the
court’s confidence in the proceeding. The court is convinced by the OCCA’s analysis that this
consideration was given, and the court declines to conclude, as petitioner contends, that the OCCA
unreasonably applied Strickland by failing to add a supplementary, conclusory paragraph with
further elaboration on the cumulative effect of non-prejudicial errors.
53
[petitioner’s] parents’ divorce and to Gross’ criminal conviction for
feloniously pointing a weapon at [petitioner’s] mother to corroborate
[petitioner’s] mother’s testimony of abuse and to discredit Gross’ testimony.
The documents [petitioner] provides now and claims should have been
used at the evidentiary hearing are insufficient to convince us that appellate
counsel was ineffective. The divorce petition filed by [petitioner’s] mother
contained nothing more than allegations that Ms. Wood was seeking a divorce
in part because of Mr. Gross’ “extreme cruelty” and stated that he was a
“violent man.” The divorce decree shows the divorce was granted on the
grounds of incompatibility; it notes only that Ms. Wood was entitled to a
permanent restraining order against Gross without listing any facts or reasons
for the provision. Ms. Wood’s requests for protective orders offer no proof
that abuse occurred as they memorialize only her allegations in support of her
petition. The fact that emergency protective orders were issued is of little
consequence since such orders are routinely issued upon complaints; the orders
were rendered practically meaningless here because all were later dismissed
for failure to prosecute. We fail to see how the allegations of abuse contained
in these documents would have bolstered Ms. Wood’s testimony or changed
the trial court’s findings of fact or the outcome of the evidentiary hearing.
Wood, No. PCD-2005-143, slip op. at 12-13.
Petitioner has not shown that this determination by the OCCA was unreasonable. In
the first instance, petitioner urges relief based in part on information which was not presented
to the OCCA in its determination of this claim, including affidavits from his appellate
counsel (Petitioner’s Exhibits 10 and 11), Ms. Wood’s medical records (Petitioner’s
Exhibits 21 and 22), and additional criminal records for Mr. Gross (Petitioner’s Exhibit 30).
Consideration of these exhibits is prohibited by Pinholster, 131 S.Ct. at 1398. Reviewing the
OCCA’s ruling in light of the arguments and information before it, it was not unreasonable
for the OCCA to characterize petitioner’s new information as mere allegations. The
information which petitioner presented to the OCCA showed only allegations, not judicially
54
determined facts, and in any event, the information was simply more of the same. On direct
appeal, and following the evidentiary hearing, the OCCA ultimately denied petitioner relief
on his ineffective assistance of trial counsel claim (Claim One) because it found that trial
“[c]ounsel presented evidence concerning [petitioner’s] . . . childhood growing up in an
abusive (both physically and emotionally) household,” and that petitioner’s new information,
the information he presented at the evidentiary hearing and faulted trial counsel for not
utilizing in presentation of the mitigation case, was simply “further detail to support the
mitigation evidence that [petitioner] . . . grew up in an abusive home. . . .” Wood, 158 P.3d
at 481. The additional information petitioner later presented on post-conviction review went
to this same issue–the abuse which petitioner was exposed to in the home. Therefore, even
if trial counsel had utilized this additional information, it was not unreasonable for the OCCA
to conclude that the outcome of the evidentiary hearing and its ultimate determination of
petitioner’s trial counsel ineffectiveness issue would not have been different.
Next, petitioner asserts that appellate counsel was ineffective for failing to advise the
OCCA that trial counsel had been suspended from the practice of law in the weeks following
the evidentiary hearing. Petitioner additionally claims that appellate counsel was ineffective
at the evidentiary hearing by failing to make trial counsel’s affidavit a part of the record and
have trial counsel affirm the statements he made therein. However, petitioner makes no
argument in support of these claims. Petitioner states only that appellate counsel had “no
strategic reason for failing to do these things,” and he supports this statement with affidavits
55
from appellate counsel which the court cannot consider.39 Petition, p. 89. The OCCA
addressed the merits of both of these claims, ultimately concluding (1) that petitioner had not
shown that “trial counsel’s subsequent personal and professional difficulties” affected its
direct appeal determination “that trial counsel rendered effective assistance” and (2) that
“[a]ppellate counsel did, in fact, put trial counsel’s performance and the affidavit in issue.”
Wood, No. PCD-2005-143, slip op. at 3-6, 13. Because petitioner has failed to demonstrate
that the OCCA acted unreasonably in denying these claims, relief is denied.
Petitioner’s final challenge to appellate counsel’s representation relates to the
supplemental brief filed after the evidentiary hearing. With reference to Claim One,
petitioner asserts that appellate counsel was ineffective for failing to raise “numerous
inaccuracies from the district court’s findings of fact.” Petitioner additionally contends that
appellate counsel should have challenged the trial court’s exclusion of his mitigation expert,
Dr. Allen. Petition, p. 89. In denying both of these claims, the OCCA held as follows:
[Petitioner] argues that appellate counsel was ineffective for failing to
cite all of the factual inaccuracies he asserts exist in the trial court’s findings
of fact and conclusions of law. Appellate counsel filed a ten page supplemental
brief after the evidentiary hearing in accordance with this Court’s order
remanding the case for evidentiary hearing. Appellate counsel went through
each question this Court asked the district court to consider and explained why
the district court’s findings and conclusions were wrong. Appellate counsel
outlined as many inconsistencies within the limitations imposed by the page
constraint set by this Court allowed. [Petitioner] has not shown that appellate
counsel’s decision about what to include in his limited space was anything but
a sound strategic decision. We will not second-guess that decision.[FN8] See
Hanson v. State, 2009 OK CR 13, ¶ 37, 206 P.3d 1020, 1032.
39
See n.23, supra.
56
[FN8] We note that appellate counsel in the supplemental brief raised
complaints that the trial court’s finding that trial counsel had all the
records was erroneous and that the trial court’s findings concerning the
testimony of a former juror was wrong.
[Petitioner] contends appellate counsel was ineffective for failing to
raise a claim in the supplemental brief about the exclusion of the defense
mitigation expert at the evidentiary hearing. [Petitioner] concedes that
appellate counsel preserved the claim by admitting the expert’s report for
appeal, but argues he failed to present the claim in his brief and failed to
“provide what she [the expert] would have testified to had she been allowed.”
As noted above, appellate counsel went through the questions the district court
considered and addressed the district court’s findings and conclusions.
Appellate counsel chose to utilize the ten page limit to challenge the trial
court’s decision that counsel was effective with evidence presented at the
hearing rather than attack the trial court’s decision excluding his expert. This
was a reasonable strategy. Furthermore, appellate counsel did provide this
Court with the expert’s findings by admitting the expert’s report below. This
claim, like [petitioner’s] other claims, must fail, because he can show neither
deficient performance nor prejudice.
Wood, No. PCD-2005-143, slip op. at 13-14.
Petitioner has failed to show that the OCCA acted unreasonably in denying relief on
these claims. Here, petitioner has once again supported his claims with reference to an
affidavit from appellate counsel (Petitioner’s Exhibit 10) executed almost six years after the
OCCA decided his first post-conviction application. In denying petitioner relief in 2005, the
OCCA found that appellate counsel performed effectively within the limited pages permitted
for a supplemental brief. The OCCA acknowledged that given the page restrictions,
appellate counsel was required to make strategic decisions as to what matters would be
included. Because appellate counsel filed a solid brief which addressed the subject matter
of the evidentiary hearing, the OCCA could not fault appellate counsel for the strategy
57
employed. In claiming that the OCCA acted unreasonably, it is all too convenient for
petitioner to rely upon a 2011 affidavit from appellate counsel in which appellate counsel
denies having any strategic reason for failing to raise certain claims. This is the very reason
why Pinholster prevents consideration of later-developed evidence. The OCCA decided
petitioner’s claims on the merits, and its decision is due appropriate deference, deference
evaluated based “on what [the OCCA] knew and did.” Pinholster, 131 S.Ct. at 1399.
Because petitioner has failed to demonstrate that the OCCA acted unreasonably in denying
these claims, relief is denied.
In conclusion, for the foregoing reasons, the court concludes that petitioner has not
shown that the OCCA unreasonably denied his challenges to appellate counsel’s performance
on direct appeal, including his representation at the evidentiary hearing and the supplemental
brief filed. Accordingly, petitioner’s Claim Three is denied in its entirety.
D.
Claim Four: Aggravating Circumstances.
In Claim Four, petitioner challenges all three of the aggravating circumstances
supporting his death sentence. In particular, petitioner contends that the instruction on the
especially heinous, atrocious, or cruel (HAC) aggravator was inadequate, that the HAC
aggravator and the great risk of death aggravator are not supported by sufficient evidence,
and that the continuing threat aggravator is both unconstitutionally vague and overbroad.
Petitioner presented all of these claims to the OCCA on direct appeal. The OCCA denied
relief on the merits. Wood, 158 P.3d at 475-77. Petitioner asserts that the OCCA’s
resolution of these claims is both legally and factually unreasonable, and he requests de novo
58
review and relief. Respondent argues that AEDPA deference applies, and that in light of the
stringent AEDPA standard, relief must be denied.
Regarding the HAC aggravator, the instruction given to the jury was in fact
incomplete because it omitted the word “physical” from the defining language “serious
physical abuse” (O.R. IV, 628). The OCCA acknowledged the trial court’s error but found
that relief was unwarranted “because the State’s evidence, particularly the photographs,
clearly showed that Wipf suffered serious physical abuse prior to his death.” Wood, 158
P.3d at 476-77. In denying petitioner’s insufficiency claim, the OCCA elaborated on this
evidence as follows:
Kleinsasser testified that while Zjaiton pointed a gun at his head and
robbed him, [petitioner], armed with a knife, struggled with Wipf. Zjaiton later
joined [petitioner] in the attack, and both men struggled with Wipf who was
screaming. Just before Kleinsasser fled the room, the struggling men moved
closer to him and he could see blood all over Wipf’s body. He never saw
Zjaiton and [petitioner] switch weapons. Photographs depicting Wipf’s injuries
from being beaten and stabbed were admitted. Wipf also had defensive
wounds (cuts) on his hands, showing that he was consciously resisting his
attackers by putting his hands up in an effort to ward off blows and knife jabs.
The fatal stab wound penetrated five inches into Wipf’s chest; he eventually
died from blood loss caused by this wound. The evidence showed that both
Zjaiton and [petitioner] struggled with Wifp [sic] individually and together.
Any rational jury could find beyond a reasonable doubt that Wipf’s death was
preceded by serious physical abuse, while he was still conscious, and that
[petitioner] inflicted a significant portion of the harm done to him.
Id. at 476 (footnote omitted). The OCCA’s assessment of the presented evidence, and
particularly the photographs, is more than reasonable, and in similar circumstances, the Tenth
Circuit has denied habeas relief for this instructional misstatement of state law. See
Turrentine v. Mullin, 390 F.3d 1181, 1195-96 (10th Cir. 2004) (noting that the omission of
59
the word “physical” was a violation of state law, but harmless under Eighth Amendment
jurisprudence given the presented evidence); Miller, 354 F.3d at 1299-1301 (finding that
even without the word “physical,” the given instruction “still performed its required
narrowing function and imposed restraint upon the sentencer”). Accordingly, relief is denied
here as well.
When reviewing the sufficiency of evidence supporting an aggravating circumstance,
the OCCA applies the standard of review set forth in Jackson v. Virginia, 443 U.S. 307,
319 (1979). Thus, the OCCA “reviews the evidence in the light most favorable to the State
to determine if any rational trier of fact could have found the aggravating circumstance
beyond a reasonable doubt.” Wood, 158 P.3d at 476. Jackson applies on habeas review as
well. Lewis v. Jeffers, 497 U.S. 764, 781 (1990). “Like findings of fact, state court findings
of aggravating circumstances often require a sentencer to ‘resolve conflicts in the testimony,
to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.’”
Id. at 782 (quoting Jackson, 443 U.S. at 319). Thus, the court “‘must accept the jury’s
determination as long as it is within the bounds of reason.’” Lockett v. Trammel [sic],
711 F.3d 1218, 1243 (10th Cir. 2013) (quoting Boltz v. Mullin, 415 F.3d 1215, 1232 (10th
Cir. 2005)). In addition to the deference afforded a jury’s verdict, the AEDPA adds another
layer of deference to the court’s review of a sufficiency claim. See Hooks v. Workman,
689 F.3d 1148, 1166 (10th Cir. 2012) (“We call this standard of review ‘deference
squared.’”) (citation omitted). When reviewing the evidentiary sufficiency of an aggravating
60
circumstance under Jackson, the court looks to Oklahoma substantive law to determine its
defined application. Hamilton v. Mullin, 436 F.3d 1181, 1194 (10th Cir. 2006).
Petitioner asserts that both the HAC aggravator and the great risk of death aggravator
lack sufficient constitutional evidence to stand. In addressing petitioner’s challenge to the
HAC aggravator, the OCCA noted as follows:
This Court upholds a jury’s finding of the “especially heinous, atrocious, or
cruel” aggravating circumstance when it is supported by proof of conscious
serious physical abuse or torture prior to death; evidence that a victim was
conscious and aware of the attack supports a finding of this aggravator. Davis,
2004 OK CR 36, ¶ 39, 103 P.3d at 81; Black v. State, 2001 OK CR 5, ¶ 79,
21 P.3d 1047, 1074.
Wood, 158 P.3d at 476. The OCCA then listed the evidence supporting the aggravator (as
set forth above), finding that the evidence supported the jury’s verdict. Id. Petitioner’s
argument here is nothing more than what he argues with respect to the HAC instruction, and
because it is abundantly clear that Mr. Wipf suffered much more than a single stab wound,
the court concludes that the OCCA’s resolution of this claim was likewise reasonable, both
legally and factually.
Regarding the great risk of death aggravator, the court reaches the same conclusion.
In denying this claim on direct appeal, the OCCA stated as follows:
To determine if a defendant knowingly created a great risk of death to
more than one person, this Court reviews the evidence to determine if the
defendant’s conduct endangered someone other than the deceased in close
proximity, in terms of time, location, and intent to the murder. Harris,
2004 OK CR 1, ¶ 53, 84 P.3d at 751; Matthews, 2002 OK CR 16, ¶ 45,
45 P.3d at 922. Liability for this aggravating circumstance can attach for a
co-defendant’s act that a defendant has aided and abetted. Matthews, 2002 OK
61
CR 16, ¶ 45, 45 P.3d at 922. Under these standards, the evidence here was
sufficient.
[Petitioner] and Zjaiton conspired to rob at knifepoint and gunpoint
Wipf and Kleinsasser. When Wipf opened the door of the motel room,
[petitioner] and Zjaiton rushed in and confronted their victims. Zjaiton pointed
his gun at Kleinsasser’s head and took his money. Wipf resisted and struggled
with [petitioner] by the sink, fending off blows and knife jabs. When Zjaiton
joined [petitioner] in the struggle with Wipf, [petitioner] told Zjaiton to shoot
Wipf. Shortly thereafter Kleinsasser heard a gunshot and smelled burning
gunpowder. [Petitioner] then confronted Kleinsasser and hit him on the head
with the knife when he produced an empty wallet. The struggle with Wipf
occurred only a few feet from Kleinsasser in the small motel room. Any
rational jury could have found that [petitioner] and Zjaiton’s conduct during
the robbery and murder put Kleinsasser at great risk of death. This claim is
denied.
Wood, 158 P.3d at 477. Petitioner argues that this decision is unreasonable because
Mr. Kleinsasser did not suffer any injuries. Petitioner additionally contends that because the
motel room had a partial partitioning wall between the beds and the bathroom sink,
Mr. Kleinsasser was never in any real danger from the struggle which ensued among
Mr. Wipf and the Wood brothers. Petition, pp. 94-96. Petitioner’s arguments fall far short
of demonstrating that the OCCA acted unreasonably in its determination of this claim. As
noted in the OCCA’s opinion, the aggravator is supported if petitioner’s “conduct
endangered someone other than the deceased in close proximity, in terms of time, location,
and intent to the murder.” Wood, 158 P.3d at 477. As the facts relied upon by the OCCA
clearly demonstrate, the Wood brothers accosted both Mr. Wipf and Mr. Kleinsasser within
the confines of a small motel room, and Mr. Kleinsasser was “endangered” because he was
“in close proximity, in terms of time, location, and intent to the murder” of Mr. Wipf. Even
62
if this claim lacked the layers of deference afforded to it, the court would nevertheless
conclude that relief was unwarranted. It therefore follows that when appropriate deference
is given, denial of petitioner’s claim is a foregone conclusion.
Petitioner’s final challenge to the aggravating circumstances is to the constitutionality
of the continuing threat aggravator. Although petitioner acknowledges that the Tenth Circuit
has upheld its constitutionality, petitioner nevertheless asserts that it is both overbroad and
vague. Petition, pp. 96-97. The OCCA rejected the merits of this claim on direct appeal.
Wood, 158 P.3d at 475.
In order to satisfy the Eighth Amendment, an aggravating circumstance must meet two
requirements: (1) it may not apply to every defendant convicted of murder; and (2) it may
not be unconstitutionally vague. Tuilaepa v. California, 512 U.S. 967, 972 (1994). In
petitioner’s case, the jury was instructed that the continuing threat aggravating circumstance
required a finding beyond a reasonable doubt “that [petitioner’s] behavior has demonstrated
a threat to society” and “a probability that this threat will continue to exist in the
future” (O.R. IV, 629). Petitioner has not shown that this aggravating circumstance violates
the Tuilaepa standard for constitutionality, and given that the Tenth Circuit has repeatedly
upheld this aggravating circumstance in light of numerous constitutional challenges, the court
concludes that relief must be denied. See Wilson v. Sirmons, 536 F.3d at 1109 (“We have
repeatedly upheld the constitutionality of this aggravator.”); Brown v. Sirmons, 515 F.3d at
1092 (“We have repeatedly upheld the constitutionality of this aggravating factor, finding
it neither unconstitutionally vague nor overbroad.”); Sallahdin v. Gibson, 275 F.3d 1211,
63
1232 (10th Cir. 2002) (“Tenth Circuit precedent forecloses [petitioner’s] argument that
Oklahoma’s application of the continuing threat aggravator is unconstitutional.”); Medlock v.
Ward, 200 F.3d 1314, 1319 (10th Cir. 2000) (“Our Circuit has repeatedly upheld the facial
constitutionality of [the continuing threat aggravator] as ‘narrowed’ by the State of
Oklahoma, and we are bound by that body of precedent.”).
Petitioner’s Claim Four is denied in its entirety.
E.
Petitioner’s Remaining Claims (Claims Five Through Ten).
In Claims Five through Ten, petitioner raises claims which, at the time of filing his
petition, had not been presented to the OCCA. In Claim Five, petitioner asserts that the trial
court impermissibly coerced the jury to return a death sentence. Petition, pp. 97-100. In
Claim Six, petitioner alleges that his trial counsel was ineffective for failing to challenge the
medical examiner’s testimony. Petition, pp. 100-03. In Claim Seven, petitioner claims he
was denied due process at the state court evidentiary hearing because the prosecution
withheld certain records and created “a materially false impression.” Petition, pp. 103-05.
In Claim Eight, petitioner alleges that his counsel in his first post-conviction proceeding was
ineffective. Petition, pp. 105-08. In Claim Nine, petitioner presents an additional claim that
he was denied due process at the state court evidentiary hearing based on the “defensive
testimony” given by his trial counsel at the hearing. Petition, pp. 108-10. In Claim Ten,
petitioner alleges a violation of Brady v. Maryland, 373 U.S. 83 (1963), related to the
prosecution’s failure to disclose certain evidence regarding Ms. Warden, his co-defendant
and state’s witness. Petition, p. 110. In the week following the filing of his petition,
64
petitioner returned to state court and filed a second application for post-conviction relief
containing these claims. With the exception of Claim Eight, the OCCA declined to address
the merits of these claims because it concluded that they all could have been raised on direct
appeal or in petitioner’s first post-conviction application. Wood, No. PCD-2011-590, slip
op. at 3-8. With the exception of Claim Eight, which respondent asserts fails to state a claim
upon which federal habeas corpus relief may be granted, respondent argues for the
application of a procedural bar to petitioner’s remaining claims. Response, pp. 101-17.
In his reply, petitioner asserts that the claims should not be procedurally barred
because the procedural rule applied by the OCCA, Okla. Stat. tit. 22, § 1089(D)(8), is neither
adequate nor independent. Reply, pp. 20-21.40 Petitioner additionally contends that (1) with
respect to Claim Six, his default should be excused based on the ineffectiveness of his
appellate counsel and first post-conviction counsel, and (2) with respect to Claims Seven and
Ten, his default should be excused due to prosecutorial misconduct. Reply, pp. 22-23.
Regarding Claim Eight, petitioner, with reference to the Supreme Court’s decision in
Martinez v. Ryan, 566 U.S. ___, 132 S.Ct. 1309 (2012), argues that this court should address
the merits of his post-conviction counsel ineffectiveness claim. Reply, pp. 24-25. For the
reasons set forth below, the court concludes that the merits of petitioner’s Claims Five, Six,
40
In a footnote, petitioner, with reference to Sawyer v. Whitley, 505 U. S. 333 (1992), states
that he “may also alleviate a procedural default by demonstrating a miscarriage of justice.” Reply,
p. 20 n.23. However, because petitioner makes absolutely no argument in support of this bare
statement, the court concludes that it is insufficient to raise the miscarriage of justice exception to
the application of a procedural bar to his claims.
65
Seven, Nine, and Ten are procedurally barred from review and that petitioner’s Claim Eight
fails to state a claim for which this court can grant relief.
In declining to address the merits of petitioner’s Claims Five, Six, Seven, Nine, and
Ten, the OCCA, referencing Section 1089(D)(8), found that these claims were not among the
“[f]ew issues [that] may be reviewed in a subsequent post-conviction application.” Because
these claims “could have been raised either on direct appeal or in [petitioner’s] original
application for post-conviction relief[,]” the OCCA determined that they were waived. The
OCCA held as follows:
The law favors the legal principle of finality of judgment and [petitioner] has
not shown that his claims are reviewable at this time. The information
contained in the affidavits in support of [petitioner’s] claims was discoverable
through the exercise of reasonable diligence well before now. Under our rules,
[petitioner’s] claims are procedurally barred.
Wood, No. PCD-2011-590, slip op. at 2-4.
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. “To be
independent, the procedural ground must be based solely on state law.” Thacker v.
Workman, 678 F.3d 820, 835 (10th Cir. 2012) (citing English v. Cody, 146 F.3d 1257,
1259 (10th Cir. 1998)). “To be adequate, the procedural ground ‘must be strictly or regularly
followed and applied evenhandedly to all similar claims.’” Thacker, 678 F.3d at 835
(quoting Sherrill v. Hargett, 184 F.3d 1172, 1174 (10th Cir. 1999)).
66
Although the Tenth Circuit has repeatedly recognized the OCCA’s application of a
procedural bar to claims which could have been raised in an initial post-conviction
application but were not,41 its validity has been questioned in recent years, as petitioner has
asserted in this case, based on the OCCA’s decision in Valdez v. State, 46 P.3d 703 (Okla.
Crim. App. 2002), and subsequent cases in which the OCCA has reached the merits of
certain claims raised in subsequent post-conviction applications. The Tenth Circuit has
determined, however, that despite the OCCA’s decision in Valdez and its application of
Valdez in post-conviction review, the procedural rule applied by the OCCA to bar claims
which could have been raised in a petitioner’s first post-conviction remains both adequate
and independent. Fairchild v. Trammell, 784 F.3d 702, 719 (10th Cir. 2015) (acknowledging
the independence of the rule); Williams v. Trammell, 782 F.3d 1184, 1213-14 (10th Cir.
2015) (acknowledging the adequacy and independence of the rule); Black v. Tramwell [sic],
485 F. App’x 335, 335-37 (10th Cir. 2012) (rejecting an independence challenge and
reaffirming the adequacy of the rule, following certification of a question to the OCCA);
Banks, 692 F.3d at 1144-47 (rejecting a challenge to the adequacy and independence of the
rule); Black v. Workman, 682 F.3d at 914, 916-19 (rejecting an adequacy challenge to the
rule and certifying a question to the OCCA regarding independence of the rule); Thacker,
678 F.3d at 834-36 (finding the rule both independent and adequate); Spears, 343 F.3d at
1254-55 (addressing the adequacy of the rule). In light of this circuit precedent, the court
41
See Bland, 459 F.3d at 1012; Medlock, 200 F.3d at 1323; Smallwood v. Gibson, 191 F.3d
1257, 1267 (10th Cir. 1999); Moore v. Reynolds, 153 F.3d 1086, 1096-97 (10th Cir. 1998).
67
rejects petitioner’s challenges to the OCCA’s application of Section 1089(D)(8) to bar merits
review of his Claims Five, Six, Seven, Nine, and Ten.
Because the OCCA’s application of Section 1089(D)(8) is both adequate and
independent, the court cannot consider the merits of petitioner’s Claims Five, Six, Seven,
Nine, and Ten unless petitioner can satisfy an exception. Petitioner may overcome the
application of a procedural bar to these claims if he can show either cause and prejudice or
a fundamental miscarriage of justice. Coleman, 501 U.S. at 750. As previously noted, see
n.40, supra, petitioner has failed to sufficiently plead the fundamental miscarriage of justice
exception. In addition, with respect to his Claims Five and Nine, petitioner has not asserted
any cause to excuse his default of these claims.42 Failing to satisfy an exception to the
application of a procedural bar to these claims, the court concludes that Claims Five and Nine
are procedurally barred. With respect to his Claims Six, Seven, and Ten, petitioner has made
cause allegations. However, for the following reasons, the court nevertheless concludes that
these claims are procedurally barred as well.
The cause and prejudice exception requires petitioner to demonstrate that some
external objective factor, unattributable to him, prevented his compliance with the procedural
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).
42
In his reply, pp. 21-22, petitioner argues against respondent’s assertion that he has failed
to demonstrate prejudice with respect to his Claim Five, but he makes no argument for cause. With
respect to Claim Nine, petitioner makes no attempt in his reply to satisfy the cause and prejudice
exception.
68
As noted above, petitioner’s sixth claim is a trial counsel ineffectiveness claim
concerning trial counsel’s failure to challenge the medical examiner’s testimony.43 In an
effort to excuse his failure to present it in his first post-conviction application, petitioner
blames both his appellate counsel and his first post-conviction counsel. Reply, p. 22.
However, ineffective assistance of appellate counsel does not excuse petitioner’s failure to
present his Claim Six in his first post-conviction application, and post-conviction counsel
ineffectiveness cannot serve as cause. 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’”) (citation omitted);
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
43
In his reply, pp. 22-23, petitioner attempts to recast his Claim Six as a claim alleging
appellate counsel ineffectiveness as well. The claim pled in his petition, however, is one against his
trial counsel only. It contains no mention of appellate counsel. Petition, pp. 100-03. The court
notes that in his Claim Three petitioner asserts that his appellate counsel was ineffective for failing
to raise four trial counsel ineffectiveness claims on direct appeal, but the specific trial counsel
ineffectiveness claim pled in his Claim Six is not included therein. Petition, pp. 80-86. The court
additionally notes that in his Claim Eight petitioner alleges that his first post-conviction counsel
“failed to assert trial and appellate IAC failure to hire a forensic pathologist to challenge the
autopsy findings[,]” and as a footnote to this allegation, petitioner states that he is
“incorporat[ing] . . . a claim of appellate IAC in failing to raise this claim during his appeal.”
Petition, p. 107 & n. 86. However, this footnote is insufficient to raise a freestanding claim of
appellate counsel ineffectiveness based on trial counsel’s failure to hire an expert to challenge the
medical examiner’s testimony. For all of these reasons, the court concludes that petitioner has not
sufficiently pled, in his Claim Six or elsewhere in his petition, a claim that appellate counsel was
ineffective for failing to raise a trial counsel ineffectiveness claim based on trial counsel’s failure
to challenge the medical examiner’s testimony.
69
Cir. 2000) (relying on “well-established Supreme Court precedent” to reject an allegation of
cause based upon post-conviction counsel’s representation).44 Because petitioner has not
demonstrated sufficient cause and prejudice to overcome the imposition of a procedural bar
to his Claim Six, the court concludes that this claim is procedurally barred.
As noted above, petitioner’s Claim Seven relates to the state court evidentiary hearing
held on his trial counsel ineffectiveness claim. Petitioner asserts a prosecutorial misconduct
claim based on the state’s failure to disclose certain medical records (of his mother) and
certain criminal records (of his father) relating to the domestic abuse suffered by his
mother (Petitioner’s Exhibits 21, 22, and 30). In addition to the state failing to disclose these
records, petitioner alleges that because the prosecution possessed this information, its crossexamination of witnesses on the subject of his mother’s abuse was misleading. Petition,
pp. 104-05. In Claim Ten, petitioner asserts that the state may have had a deal with state’s
witness and co-defendant Ms. Warden that it did not disclose.45 Petitioner, with reference
to a deferred sentence Ms. Warden received in another county, notes that even though
Ms. Warden was on probation when she participated with petitioner in the crimes against
Mr. Wipf and Mr. Kleinsasser, she was never prosecuted for this probation violation.
44
This remains unchanged by the Supreme Court’s decisions in Trevino v. Thaler,
569 U.S. ___, 133 S.Ct. 1911 (2013), and Martinez v. Ryan, 132 S.Ct. 1309 (2012). Fairchild,
784 F.3d at 719-23; Banks, 692 F.3d at 1147-48.
45
The court notes that Ms. Warden’s deal with the state for her participation in the crimes
against Mr. Wipf and Mr. Kleinsasser was disclosed during her testimony. Charged as a codefendant, Ms. Warden agreed to testify truthfully in exchange for pleading guilty to accessory to
murder after the fact and conspiracy to commit a felony. Her plea resulted in a 45-year
sentence (J.Tr. 4/1/04, 131-32).
70
Petition, p. 110. Citing Scott v. Mullin, 303 F.3d 1222, 1227-30 (10th Cir. 2002), petitioner
asserts that due to the prosecution’s misconduct, he could not have raised these claims in his
first post-conviction application. Reply, p. 23.
In Scott, the Tenth Circuit found that the petitioner had demonstrated sufficient cause
and prejudice to overcome the imposition of a procedural bar to his Brady claim because the
state failed to disclose information obtained by police investigators prior to trial regarding
admissions by another person that he (and not Scott) had committed the murder for which
Scott had been charged. Because this evidence was suppressed by the state, and because
Scott did not discover it until he was preparing his first post-conviction application, Scott had
no knowledge of it at the time of his direct appeal. Because Scott raised the claim in his first
post-conviction application, his first opportunity to do so, his failure to raise the claim on
direct appeal was therefore excused. Scott, 303 F.3d at 1226-30.
Unlike Scott, petitioner has not shown that the prosecutor’s actions prevented him
from raising Claims Seven and Ten in his first post-conviction application. First, in his
petition, petitioner himself asserts that both his appellate counsel and his post-conviction
counsel were at fault for not obtaining his mother’s medical records and his father’s criminal
records. Petition, pp. 88 & n.73 and 106. By faulting his counsel in this regard, petitioner
concedes that these records could have been previously discovered. Second, at the state court
evidentiary hearing held during the pendency of petitioner’s direct appeal, petitioner’s
71
investigator testified regarding her efforts to obtain Ms. Wood’s medical records46 and
criminal records relating to Mr. Gross.47 Although she was unsuccessful in obtaining all of
the records she politely requested by letter, she acknowledged that she could have obtained
the records via subpoena power once the case was remanded for the evidentiary
hearing (E.H. Tr. 2/27/06, 309-10, 320-21, 325-26). The investigator’s testimony reveals that
the relevance of these records was known at the time of petitioner’s direct appeal and that
petitioner had the ability to obtain all of the relevant information via subpoena power. And
finally, because petitioner raised similar claims based on similar records in his first postconviction application, it is clear that petitioner could have presented his Claims Seven and
Ten in his first post-conviction application.48 Petitioner having failed to demonstrate cause
for the default of his Claims Seven and Ten, the claims are procedurally barred.
With respect to Claim Eight, respondent is correct that this court cannot grant relief
on the ground that post-conviction counsel was ineffective. Section 2254(i) plainly states
that “[t]he ineffectiveness or incompetence of counsel during Federal or State collateral
post-conviction proceedings shall not be a ground for relief in a proceeding arising under
46
The investigator obtained a medical release from Ms. Wood (E.H. Tr. 2/27/06, 325-26).
47
The investigator admitted that she did not search the public court records for this
information (E.H. Tr. 2/27/06, 310).
48
In his first post-conviction application, petitioner claimed that his appellate counsel was
ineffective at the state court evidentiary hearing because he failed to (1) investigate Mr. Gross’s
criminal background; (2) request records detailing the abuse Ms. Wood suffered; and (3) present
evidence regarding Ms. Warden’s Payne County conviction. Amended Application for PostConviction Relief - Death Penalty Case, Case No. PCD-05-143, pp. 11-15, 25-26 and Exhibits 12AC, 15, 19A-C, and 21.
72
section 2254[,]” and in Coleman, 501 U.S. at 752, the Supreme Court expressly
acknowledged that
[t]here is no constitutional right to an attorney in state post-conviction
proceedings. Pennsylvania v. Finley, 481 U.S. 551, 107 S.Ct. 1990, 95 L.Ed.2d
539 (1987); Murray v. Giarratano, 492 U.S. 1, 109 S.Ct. 2765, 106 L.Ed.2d
1 (1989) (applying the rule to capital cases). Consequently, a petitioner cannot
claim constitutionally ineffective assistance of counsel in such proceedings.
See Wainwright v. Torna, 455 U.S. 586, 102 S.Ct. 1300, 71 L.Ed.2d
475 (1982) (where there is no constitutional right to counsel there can be no
deprivation of effective assistance).
Contrary to the argument of petitioner, the Supreme Court’s decision in Martinez does not
affect the application of Section 2254(i) or Coleman to his Claim Eight. In Martinez, the
Supreme Court clearly acknowledged the limited nature of its holding. Martinez is not “[a]
constitutional ruling [providing] defendants a freestanding constitutional claim to raise[,]”
and with the exception of the limited equitable ruling it delineates, “[t]he rule of Coleman
governs in all” other respects. Martinez, 132 S.Ct. at 1319-20. In addition, the fact that
Oklahoma recognizes the right to effective counsel in post-conviction proceedings is without
consequence. Oklahoma’s extension of the right to counsel to post-conviction proceedings
does not implicate federal law, see Mills v. Rogers, 457 U.S. 291, 300 (1982) (“Within our
federal system the substantive rights provided by the Federal Constitution define only a
minimum. State law may recognize liberty interests more extensive than those independently
protected by the Federal Constitution.”); Livingston v. Kansas, 407 F. App’x 267, 27374 (10th Cir. 2010) (rejecting a petitioner’s contention that federal law is implicated when
a state recognizes the right to effective assistance of counsel in post-conviction proceedings),
73
and Section 2254 “exists to correct violations of the United States Constitution, not errors
of state law.” Thomas, 218 F.3d at 1222.
In summary, for the reasons set forth above, the court concludes that petitioner’s
Claims Five, Six, Seven, Nine, and Ten are procedurally barred, and his Claim Eight is
denied because it does not state a claim for which federal habeas relief may be granted.
V. Request for an Evidentiary Hearing.
Petitioner has requested an evidentiary hearing on eight of his ten claims. Doc. 49.
However, for the following reasons, the court concludes that an evidentiary hearing is
unwarranted. First, petitioner is not entitled to an evidentiary hearing on claims which this
court has denied relief pursuant to Section 2254(d) because those claims are reviewed in light
of the record before the OCCA. Pinholster, 131 S.Ct. at 1400 (“evidence introduced in
federal court has no bearing on § 2254(d)(1) review”); Schriro, 550 U.S. at 474 (“It follows
that if the record refutes the applicant’s factual allegations or otherwise precludes habeas
relief, a district court is not required to hold an evidentiary hearing.”). Accordingly,
petitioner is not entitled to a hearing on his Claims One and Three. Second, there is no need
to hold an evidentiary hearing on claims which can be determined from the existing record.
“The purpose of an evidentiary hearing is to resolve conflicting evidence.” Anderson v.
Attorney General 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. The court has concluded that petitioner’s Claims Five, Six, Seven,
Nine, and Ten are all procedurally barred. The court’s conclusion that the procedural rule
74
applied by the OCCA is both adequate and independent and that petitioner has failed to
demonstrate sufficient cause to overcome its application is readily determinable from the
existing record. See McCleskey v. Zant, 499 U.S. 467, 494 (1991) (“The petitioner’s
opportunity to meet the burden of cause and prejudice will not include an evidentiary hearing
if the district court determines as a matter of law that petitioner cannot satisfy the standard.”).
And finally, petitioner’s Claim Eight fails to state a federal claim for which relief can be
granted. This is purely a legal determination for which an evidentiary hearing would serve
no purpose.
VI. Conclusion.
Having rejected petitioner’s grounds for relief, his petition for a writ of habeas corpus
is DENIED, along with his request for an evidentiary hearing. Docs. 35 and 49. Judgment
will enter accordingly.
IT IS SO ORDERED.
Dated this 30th day of October, 2015.
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