Mitchell v. Workman
MEMORANDUM OPINION. 21 PETITION for Writ of Habeas Corpus by a Person in State Custody filed by Alfred Brian Mitchell is DENIED. 22 MOTION for Discovery filed by Alfred Brian Mitchell is DENIED. 23 MOTION for Hearing filed by Alfred Bria n Mitchell is DENIED. 39 SUPPLEMENTAL MOTION for Hearing filed by Alfred Brian Mitchell is DENIED. 40 SUPPLEMENTAL MOTION for Discovery filed by Alfred Brian Mitchell is DENIED. A judgment will enter accordingly. Signed by Honorable Stephen P. Friot on 7/27/2016. (llg)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
ALFRED BRIAN MITCHELL,
KEVIN DUCKWORTH, Interim
Warden, Oklahoma State
Case No. CIV-11-429-F
Petitioner, a state court prisoner, has filed a petition for writ of habeas corpus
seeking relief pursuant to 28 U.S.C. § 2254 (Doc. 21). This is Petitioner’s second
habeas challenge to the convictions and sentences he received in Oklahoma County
District Court Case No. CF-91-206.
In 1992, Petitioner was tried by jury and found guilty of the crimes of first
degree murder, robbery with a dangerous weapon, larceny of an automobile, first
degree rape, and forcible anal sodomy. Finding three aggravating circumstances
(especially heinous, atrocious, or cruel; committed for the purpose of avoiding or
preventing a lawful arrest or prosecution; and the existence of a probability that
Petitioner would commit criminal acts of violence that would constitute a continuing
threat to society), the jury sentenced Petitioner to death for the murder. On the
Pursuant to Fed. R. Civ. P. 25(d), Kevin Duckworth, who currently serves as interim
warden of the Oklahoma State Penitentiary, is hereby substituted as the proper party respondent in
remaining counts, Petitioner received an aggregate imprisonment sentence of
170 years. In 1997, after an unsuccessful pursuit for relief in the state courts,2
Petitioner initiated his first habeas corpus action. In 1999, the Court granted
Petitioner partial relief. Finding that Petitioner’s rape and sodomy convictions
violated his right to due process, the Court conditionally granted the writ, giving the
State the option to retry Petitioner on these charges. The Court denied all other
requested relief. Mitchell v. Ward, 150 F. Supp. 2d 1194 (W.D. Okla. 1999). On
appeal, Petitioner asserted, among other claims, that the unconstitutional rape and
sodomy convictions required a new capital sentencing proceeding as well. The Tenth
Circuit agreed. Mitchell v. Gibson, 262 F.3d 1036 (10th Cir. 2001).
Since the Tenth Circuit’s decision in 2001, Petitioner has had two state court
resentencing proceedings.3 In both of these subsequent proceedings, Petitioner was
sentenced to death.4 The resentencing ordered as a result of Petitioner’s first habeas
action was held in 2002; however, in Mitchell v. State, 136 P.3d 671 (Okla. Crim.
App. 2006), the OCCA found multiple errors and ordered a second resentencing. The
second resentencing was held in 2007, and the OCCA found no errors in this
proceeding which warranted relief. Mitchell v. State, 235 P.3d 640 (Okla. Crim. App.
2010). In Mitchell v. State, No. PCD-2008-356 (Okla. Crim. App. July 7, 2010)
(unpublished), the OCCA also denied Petitioner post-conviction relief.
Mitchell v. State, 934 P.2d 346 (Okla. Crim. App. 1997) (first post-conviction application);
Mitchell v. State, 884 P.2d 1186 (Okla. Crim. App. 1994) (first direct appeal).
The State did not retry Petitioner on the rape and sodomy charges.
In both of the resentencing proceedings, the jury rejected the continuing threat aggravator,
and in the second resentencing, the jury also rejected the avoid arrest aggravator. Thus, the only
aggravating circumstance supporting Petitioner’s death sentence is the jury’s finding in the second
resentencing that the murder was especially heinous, atrocious, or cruel (O.R. VII, 1375).
In his petition, Petitioner has presented twenty-one grounds for relief. Doc. 21.
Respondent has responded to the petition and Petitioner has replied. Docs. 30 and 38.
In addition to his petition, Petitioner has filed motions for discovery and an
evidentiary hearing. Docs. 22, 23, 39, and 40. After a thorough review of the state
court record (which Respondent has provided), the pleadings filed herein, and the
applicable law, the Court finds that, for the reasons set forth below, Petitioner is not
entitled to his requested relief.
In adjudicating Petitioner’s appeal of his second resentencing, the OCCA
incorporated the facts from its 1994 opinion and reproduced its summary of the facts
from its 2006 opinion. In so doing, the OCCA noted that “[t]he evidence presented
at the second re-sentencing trial was sufficiently the same as that presented at the first
re-sentencing so that we may rely on the brief summary of facts set forth in our earlier
opinion[.]” Mitchell, 235 P.3d at 646. Since Petitioner does not dispute these facts,
they are presumed correct in accordance with 28 U.S.C. § 2254(e)(1) and reproduced
Briefly stated, on January 7, 1991, [Petitioner] found Elaine Scott alone
at the Pilot Recreation Center in Oklahoma City. The evidence presented
at the resentencing established that [Petitioner] first attacked Scott near
the Center’s library, where a spot of blood, one of Scott’s earrings, and
a sign that she had been hanging were later found on the floor. Scott
apparently ran for the innermost room of the Center’s staff offices—as
she had told her mother she would if she ever found herself in a
dangerous situation at the Center—where there was a phone and a door
that she could lock behind her. She almost made it. Although the exact
sequence of events is unclear, the State established that Scott’s clothing
was taken off and that a violent struggle ensued, in which [Petitioner]
beat and battered Scott, using his fists, a compass, a golf club (which
ended up in pieces), and a wooden coat rack. The forensic
evidence—including the condition of Scott’s nude, bruised, and bloodied
body—established that she was moving throughout the attack, until the
final crushing blows with the coat rack, which pierced her skull and
ended her life.
Id. (quoting Mitchell, 136 P.3d at 676–77).
II. Standard of Review.
Exhaustion as a Preliminary Consideration.
The exhaustion doctrine is a matter of comity. It provides that before a federal
court can grant habeas relief to a state prisoner, it must first determine that he has
exhausted all of his state court remedies. As acknowledged in Coleman v. Thompson,
501 U.S. 722, 731 (1991), “in a federal system, the States should have the first
opportunity to address and correct alleged violations of state prisoner’s federal rights.”
While the exhaustion doctrine has long been a part of habeas jurisprudence, it is now
codified in 28 U.S.C. § 2254(b). Pursuant to 28 U.S.C. § 2254(b)(2), “[a]n application
for a writ of habeas corpus may be denied on the merits, notwithstanding the failure
of the applicant to exhaust the remedies available in the courts of the State.”
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 72930.
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, 181 (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 [Antiterrorism and Effective Death Penalty Act of 1996]
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 the state court’s decision conflicts with [the
Supreme Court’s] precedents.” Id. (emphasis added). 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, 563 U.S. at 181.
Ground I: Reassertion of Previously Raised Brady5 Claim.
In his first ground for relief, Petitioner reasserts the Brady claim he raised in his
first habeas petition. Although Petitioner was granted relief on this claim in the form
of a conditional writ by which the State was required to retry him on the rape and
sodomy charges (or dismiss them) and provide him a resentencing proceeding for his
murder conviction, Petitioner argues that he should have been given even greater
relief, namely, a whole new trial (guilt and sentencing) on his murder conviction.
Under the plain language of 28 U.S.C. § 2244(b)(1), Petitioner cannot proceed on this
claim. Section 2244(b)(1) states that “[a] claim presented in a second or successive
habeas corpus application under section 2254 that was presented in a prior application
shall be dismissed.” (Emphasis added). Petitioner raised this very claim before and
therefore he cannot raise it again. Requesting different relief does not change the
substance of the claim.
The Supreme Court’s decision in Magwood v. Patterson, 561 U.S. 320 (2010),
does not alter the Court’s ruling. Although the Magwood Court determined that a
second habeas petition following a capital resentencing proceeding was not a second
and successive application, it not only left open the question of whether a returning
state court prisoner could challenge anew his underlying conviction in that subsequent
Brady v. Maryland, 373 U.S. 83 (1963).
application, id. at 342, but it also did not address the situation presented in this case
where the claim now presented was in fact raised and adjudicated in the prior
proceeding. However, even if Magwood were construed to allow Petitioner to re-raise
this claim, the Court would nevertheless find that Petitioner is not entitled to the
additional relief he requests.
A Brady violation occurs when the prosecution suppresses material evidence.
“[E]vidence is material only if there is a reasonable probability that, had the evidence
been disclosed to the defense, the result of the proceeding would have been different.
A ‘reasonable probability’ is a probability sufficient to undermine confidence in the
outcome.” United States v. Bagley, 473 U.S. 667, 682 (1985). “In a case involving
convictions for multiple counts, analysis of whether confidence in the verdict remains
‘must be assessed count by count.’” United States v. Bagcho, ___ F. Supp. 3d ___,
2015 WL 9216604, at *10 (D.D.C. Dec. 17, 2015) (quoting United States v. Johnson,
592 F.3d 164, 171 (D.C. Cir. 2010)). “The mere possibility that an item of
undisclosed information might have helped the defense, or might have affected the
outcome of the trial, does not establish ‘materiality’ in the constitutional sense.”
United States v. Agurs, 427 U.S. 97, 109-10 (1976).
In Petitioner’s case, the Brady violation was based on “the prosecution’s failure
to provide the DNA evidence linking [Ms. Scott’s boyfriend] to the semen on
Ms. Scott’s panties, and revealing that Petitioner’s DNA was not found in any of the
samples tested . . . .” Mitchell, 150 F. Supp. 2d at 1228. Adding insult to this
constitutional injury was the testimony given at trial by Joyce Gilchrist, a forensic
chemist for the Oklahoma City Police Department.6
“Nicknamed ‘Black Magic’ for her seeming ability to get lab results no other chemist
could,” Ms. Gilchrist “was fired in 2001 for doing sloppy work and giving false or misleading
testimony.” Mark Hansen, Crimes in the Lab, 99-SEP A.B.A. J. 44, 47 (Sept. 2013).
Gilchrist’s testimony that the DNA tests on the semen were
“inconclusive,” or “inconclusive as to” Petitioner, was, at least,
misleading. When she testified at trial, Gilchrist knew the semen on Ms.
Scott’s panties was not consistent with both Petitioner and [Ms. Scott’s
boyfriend]. She knew the semen was at least a preliminary match for
[Ms. Scott’s boyfriend] and that Petitioner’s DNA had not been found
on the panties. Thus, the DNA test results were far from inconclusive.
Id. at 1229. There is no question that this evidence7 undermined the jury’s verdict on
the rape and sodomy charges. As stated by the Tenth Circuit, “the jury convicted
[Petitioner] of rape and forcible anal sodomy despite evidence it did not hear
indicating that no such assault had taken place.” Mitchell, 262 F.3d at 1064. The
Tenth Circuit surmised that had the defense been given this information, “there [was]
at least a reasonable probability that . . . it would have succeeded in getting those
charges dismissed prior to the trial.” Id. at 1065. As for sentencing, the Tenth Circuit
found that this same evidence undermined its confidence in Petitioner’s death
[W]e simply cannot be confident that the jury would have returned the
same sentence had no rape and sodomy evidence been presented to it.
First and foremost, the rape and sodomy evidence impacted all three of
the aggravating circumstances found by the jury: that the murder was
heinous, atrocious and cruel; that it was committed to avoid arrest for the
rape and sodomy; and that [Petitioner] posed a continuing threat to
society. Moreover, the defense presented considerable mitigating
evidence for the jury to weigh against the aggravating circumstances it
found. That evidence included [Petitioner’s] youth (18); his loving
relationships with his extended family and friends, which showed a
totally different side of his character; and his intelligence (he had been
in a program for the gifted and talented children in his elementary
This, however, was not the only DNA evidence in the case. As discussed herein, additional
DNA evidence confirmed Petitioner’s own admission that although he did not rape or sodomize
Ms. Scott, he did masturbate on her, leaving his sperm (and his DNA) on one of Ms. Scott’s pubic
school). In addition, Dr. Wanda Draper, a psychologist with a PhD in
human development, testified at the sentencing hearing about
[Petitioner’s] developmental history, concluding that he would do well
in a structured environment such as the one he experienced in the
juvenile facility where he was a leader among his peers. This evidence
enabled defense counsel to argue that [Petitioner’s] life was worth saving
and that he would do well in a prison environment if the jury sentenced
him to life without parole. Under these circumstances, we are persuaded
[Petitioner] has met the Kyles standard by showing that absent the Brady
violation, there is a reasonable probability the result of the sentencing
proceeding would have been different. See Kyles, 514 U.S. at 435, 115
Mitchell, 262 F.3d at 1065-66.
To obtain Brady relief for his murder conviction, Petitioner must show that the
suppressed forensic evidence affected the jury’s determination of his guilt. “[I]f the
omitted evidence creates a reasonable doubt that did not otherwise exist, constitutional
error has been committed. . . . If there is no reasonable doubt about guilt whether or
not the additional evidence is considered, there is no justification for a new trial.”
Agurs, 427 U.S. at 112-13. In support of his request for relief, Petitioner makes three
assertions: (1) that he was forced to testify in his first trial in order to deny the rape
and sodomy charges; (2) that the rape and sodomy charges “were inherently
intertwined” with the murder charge; and (3) that “[t]aking away the rape and sodomy
charges diminishes greatly the evidence supporting a finding of malice aforethought.”
Petition, pp. 17, 19. However, none of these assertions demonstrates a reasonable
probability that, had the evidence in question been disclosed, the jury would have
entertained a reasonable doubt as to Petitioner’s guilt for the murder.
First, Petitioner has not shown how his testifying in his first trial correlates to
the jury’s finding of guilt on the murder charge. While he states that he was forced
to testify in order to counteract Ms. Gilchrist’s testimony,8 he does not assert how his
testimony factored into the jury’s verdict. In fact, Petitioner even acknowledges that
the jury already knew of his admissions “to being present and masturbating to
ejaculation.” Petition, p. 17. In addition, Petitioner was connected to the murder
scene by eyewitness testimony and by “unchallenged evidence of sperm attributable
to Petitioner being found on Ms. Scott’s clothing and in the public [sic] combings . .
. .” Mitchell, 150 F. Supp. 2d at 1199-1200, 1229 n.53.9
Second, Petitioner’s assertion that the rape, sodomy, and murder “were
inherently intertwined” does not address how the jury’s murder verdict would have
been affected had the suppressed evidence been disclosed. Although Petitioner was
tried for these charges together, along with the additional charges of robbery (for
taking Ms. Scott’s personal property) and larceny (for stealing her car), the jury was
instructed on the elements of each crime, and so although they were related in time
and place, the elements were distinct (O.R. I, 44-54). The fact that Petitioner did not
rape or sodomize Ms. Scott does not lessen his culpability for the murder, especially
when he admitted to being present and masturbating on her.
Third, while Petitioner contends that the evidence supporting malice
aforethought “diminishes greatly” when the rape and sodomy charges are separated
from the murder charge, the Court strongly disagrees. The jury was instructed that
malice aforethought is “a deliberate intention to take away the life of a human being”
In addressing another one of Petitioner’s claims (Ground V herein), the OCCA found this
assertion untenable: “the reason [Petitioner] took the witness stand in his first trial was to explain
why he had given so many different stories to the police, both before and after he was arrested, and
to exculpate himself and inculpate “C. Ray.” Mitchell, 235 P.3d at 654.
At his second resentencing, forensic expert Brian Wraxall testified that semen found on a
pubic hair of Ms. Scott matched Petitioner’s DNA at nine loci. Mr. Wraxall testified that the
probability of finding the same match elsewhere in the population was one in nine trillion (Tr. IV,
(O.R. I, 45), and the evidence which supports this finding stands on its own,
independent and untainted by the suppressed forensic evidence. Petitioner violently
attacked Ms. Scott with his fists and items he found within his reach, including a
compass, a golf club, and a wooden coat rack, and he did not stop until he had killed
her. Ms. Scott was found nude and bruised in a pool of blood, with a fractured skull
and exposed brain matter. Even more than the absence of a reasonable probability,
the Court harbors no doubt that the jury’s finding of malice aforethought murder was
not affected by the suppressed forensic evidence (and Ms. Gilchrist’s related
For the foregoing reasons, the Court concludes that Petitioner’s Ground I
should be dismissed, or in the alternative, denied for lack of merit.
Grounds II, XIII, and XIX: Cruel and Unusual Punishment.
In Grounds II, XIII, and XIX, Petitioner sets forth three reasons why his death
sentence constitutes cruel and unusual punishment under the Eighth Amendment. All
three of these claims were presented to the OCCA and denied on the merits. Mitchell,
235 P.3d at 658-60, 665.
In Ground II, Petitioner asserts that because he has yet to be executed for the
murder he committed in 1991, his death sentence is unconstitutional. Petitioner
argues that “[t]o subject anyone to the death penalty after two such egregiously flawed
proceedings, permitting a third bite at the apple following such blatant contempt for
constitutional jurisprudence, is cruel and unusual, and contrary to the basic tenets of
Due Process.” Petition, pp. 26-27. Petitioner additionally asserts that “[t]here is no
penological justification for carrying out a death sentence after so many years against
a barely 18 year old offender who has 20 years hence behaved so impeccably . . . .”
Id. at 27. Petitioner presents this claim even though he acknowledges that the
Supreme Court has not addressed this issue. Id. The OCCA denied Petitioner relief
for this very reason. Mitchell, 235 P.3d at 665.
The Supreme Court has been given multiple opportunities to address the issue
Petitioner raises in his Ground II, but yet it has repeatedly declined to take the issue
up. See Boyer v. Davis, No. 15-8119, 2016 WL 1723586 (May 2, 2016) (denying
certiorari where petitioner had been “under threat of execution” for thirty-two years);
Muhammad v. Florida, ___ U.S. ___, 134 S. Ct. 894 (2014) (denying certiorari and
a stay of execution on a similar claim); Valle v. Florida, ___ U.S. ___, 132 S. Ct. 1
(2011) (denying certiorari and a stay of execution where petitioner had been on death
row for thirty-three years); Johnson v. Bredesen, 558 U.S. 1067 (2009) (denying
certiorari and a stay of execution where petitioner had been on death row for twentynine years); Allen v. Ornoski, 546 U.S. 1136 (2006) (denying certiorari and a stay of
execution where petitioner was a wheelchair-confined, seventy-six-year-old blind
diabetic who had been on death row for twenty-three years); Knight v. Florida,
528 U.S. 990 (1999) (denying certiorari where petitioners had been on death row for
twenty years or more); Elledge v. Florida, 525 U.S. 944 (1998) (denying certiorari
where petitioner had been on death row for twenty-three years); Lackey v. Texas, 514
U.S. 1045 (1995) (denying certiorari where petitioner had been on death row for
In addition to the absence of Supreme Court authority, the Tenth Circuit has
found that Petitioner’s claim lacks merit. In Stafford v. Ward, 59 F.3d 1025, 1028
(10th Cir. 1995), the petitioner claimed that an Eighth Amendment violation resulted
from his fifteen years on death row, “during which time he faced at least seven
In denying relief, the Tenth Circuit noted the absence of
authoritative case law:
To our knowledge, there is no reported federal case that has adopted the
position advocated by Appellant. Although two Supreme Court justices
have expressed the view that lower federal courts should grapple with
this issue, those views do not constitute an endorsement of the legal
theory, which has never commanded an affirmative statement by any
justice, let alone a majority of the Court.
Id. See also Jones v. Gibson, 206 F.3d 946, 959 n.6 (10th Cir. 2000) (citing Stafford
and denying Eighth Amendment relief where the petitioner had been on death row for
Other circuits have found a lack of merit to the claim as well. In Chambers v.
Bowersox, 157 F.3d 560, 568 (8th Cir. 1998), the petitioner had been on death row
for fifteen years. In denying Eighth Amendment relief, the Eighth Circuit held as
We believe that delay in capital cases is too long. But delay, in large part,
is a function of the desire of our courts, state and federal, to get it right,
to explore exhaustively, or at least sufficiently, any argument that might
save someone’s life. Chambers’s strongest argument is that the State has
had to try him three times before getting it right. That is true, but there
is no evidence, not even a claim, that the State has deliberately sought to
convict Chambers invalidly in order to prolong the time before it could
secure a valid conviction and execute him. We believe the State has been
attempting in good faith to enforce its laws. Delay has come about
because Chambers, of course with justification, has contested the
judgments against him, and, on two occasions, has done so successfully.
If it is not cruel and unusual punishment to execute someone after the
electric chair malfunctioned the first time, see Louisiana ex rel. Francis
v. Resweber, 329 U.S. 459, 67 S.Ct. 374, 91 L.Ed. 422 (1947), we do not
see how the present situation even begins to approach a constitutional
Id. (footnote omitted). See also Thompson v. Sec’y for Dep’t of Corr., 517 F.3d 1279,
1283-84 (11th Cir. 2008) (finding no merit to prolonged confinement claim).
In light of all of this authority, it is clear that Petitioner has not shown that the
OCCA’s decision is contrary to or an unreasonable application of Supreme Court law,
and therefore, Ground II is denied.
In Ground XIII, Petitioner argues that his death sentence is unconstitutional in
light of the Supreme Court’s decision in Roper v. Simmons, 543 U.S. 551 (2005). In
Roper, 543 U.S. at 578, the Supreme Court held that “[t]he Eighth and Fourteenth
Amendments forbid imposition of the death penalty on offenders who were under the
age of 18 when their crimes were committed.” Although by its express terms Roper
does not apply to Petitioner, Petitioner argues that its rationale does and that he should
be relieved of his death sentence because of his youthfulness. Petition, pp. 65-68. He
also contends that Roper should be construed to prevent the State from relying on
juvenile adjudications to support the continuing threat aggravator as was done in his
case. Id. at 68-69.
Petitioner presented his Ground XIII to the OCCA on direct appeal. As issues
of first impression, the OCCA discussed them at length. Mitchell, 235 P.3d at 658-60.
With respect to his first issue, the OCCA denied relief based on Roper’s bright line
The U.S. Supreme Court has drawn a bright line at eighteen (18) years
of age for death eligibility and we therefore reject [Petitioner’s]
argument that being two weeks beyond his eighteenth birthday at the
time of the murder exempts him from capital punishment. Under the
plain language of Roper, the prohibition against capital punishment is
limited to the execution of an offender for any crime committed before
his 18th birthday.
Mitchell, 235 P.3d at 659. The OCCA’s application of Roper is not only reasonable,
but absolutely correct. In arriving at its holding, the Supreme Court stated as follows:
Drawing the line at 18 years of age is subject, of course, to the
objections always raised against categorical rules. The qualities that
distinguish juveniles from adults do not disappear when an individual
turns 18. By the same token, some under 18 have already attained a level
of maturity some adults will never reach. For the reasons we have
discussed, however, a line must be drawn. . . . The age of 18 is the point
where society draws the line for many purposes between childhood and
adulthood. It is, we conclude, the age at which the line for death
eligibility ought to rest.
Roper, 543 U.S. at 574. Because Petitioner was eighteen years old when he
committed his crime, Roper clearly does not apply to him, and Petitioner’s argument
for an extension of Roper is not a basis for habeas relief. See Pinholster, 563 U.S. at
182 (“State-court decisions are measured against [the Supreme] Court’s precedents
as of ‘the time the state court renders its decision.’”) (quoting Lockyer v. Andrade,
538 U.S. 63, 71–72 (2003)).
As to the second issue, the OCCA held as follows:
This Court has consistently held that evidence of unadjudicated
bad acts, non-violent bad acts and juvenile offenses are admissible in a
capital case to prove a defendant constitutes a continuing threat to
society. Douglas v. State, 1997 OK CR 79, ¶¶ 85–87, 951 P.2d 651,
675–76 and cases cited therein. Nothing in the language of Roper
suggests that the State is prohibited from relying on prior juvenile
adjudications to support an aggravating circumstance.
We find nothing in Roper to support [Petitioner’s] claim of
exclusion from the death penalty and no abuse of discretion in the trial
court’s admission of [Petitioner’s] prior juvenile adjudication to support
the “continuing threat” aggravator. Further, [Petitioner] has failed to
show any resulting prejudice by the admission of his juvenile
adjudication as the jury rejected both the “continuing threat” and the
“avoid arrest” aggravators that relied on the evidence.
Mitchell, 235 P.3d at 659-60. Here again, the OCCA cannot be faulted for its proper
interpretation of Roper. Because Roper does address the use of juvenile adjudications
in capital proceedings, the OCCA’s denial of relief is neither contrary to or an
unreasonable application of it. For these reasons, Petitioner’s Ground XIII is also
In Ground XIX, Petitioner challenges Oklahoma’s method of execution.
Because Petitioner does not challenge the constitutional validity of his death sentence
but only how the State intends to carry it out, the Court finds that his Ground XIX is
not cognizable in this habeas action. Glossip v. Gross, 576 U.S. ___, 135 S. Ct. 2726,
2738 (2015) (acknowledging the holding of Hill v. McDonough, 547 U.S. 573 (2006),
“that a method-of-execution claim must be brought under [42 U.S.C.] § 1983 because
such a claim does not attack the validity of the prisoner’s conviction or death
sentence”); Hill, 547 U.S. at 579-80 (discussing the differences between habeas and
§ 1983 actions and finding that a challenge to a lethal injection protocol was properly
filed as a § 1983 case). Petitioner’s claim must be brought under § 1983, and in fact,
Petitioner has already done so. See Glossip v. Gross, Case No. CIV-14-665-F (W.D.
Okla. filed June 25, 2014).
For the reasons set forth above, relief is unwarranted on Petitioner’s Grounds
II, XIII, and XIX, and they are hereby denied.
Ground III: Ineffective Assistance of Trial and Appellate Counsel.
In Ground III, Petitioner asserts that his trial counsel was ineffective for failing
to investigate and obtain evidence to impeach the State’s blood spatter and crime
reconstruction expert, Tom Bevel. Petitioner argues that if his trial counsel had
undertaken the proposed investigation, there would have been insufficient evidence
to prove the especially heinous, atrocious, or cruel aggravator beyond a reasonable
doubt. Petitioner additionally faults his appellate counsel for failing to raise this claim
on direct appeal. Petitioner raised this claim on post-conviction. The OCCA
addressed the merits and denied relief. Mitchell, No. PCD-2008-356, slip op. at 3-5,
6-10. Respondent asserts that Petitioner’s Ground III must be denied because
Petitioner has failed to show that the OCCA’s decision is contrary to or an
unreasonable application of Strickland v. Washington, 466 U.S. 668 (1984).10
“[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 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.”
Respondent additionally asserts that to the extent Petitioner raises an Eighth Amendment
violation, such claim is unexhausted. Response, p. 28. Petitioner’s sole reference to the Eighth
Amendment is in his proposition heading. Petition, p. 29. The Court finds that this, without more,
is insufficient to raise the claim, and in any event, because Petitioner did not assert an Eighth
Amendment violation when he raised his ineffectiveness claim on post-conviction, it is unexhausted
and subject to an anticipatory procedural bar. See Lott v. Trammell, 705 F.3d 1167, 1179 (10th Cir.
2013) (citing Anderson v. Sirmons, 476 F.3d 1131, 1139-40 n.7 (10th Cir. 2007), and applying an
anticipatory procedural bar to an unexhausted claim).
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 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).
After reviewing all aspects of the murder, including the physical evidence,
crime photographs/diagrams, prior testimony, police reports, autopsy report, and
Petitioner’s statements to police, Mr. Bevel testified as to how he believed the murder
occurred. Relevant to the especially heinous, atrocious, or cruel aggravator, Mr. Bevel
described a struggle that began in one part of the building and ended where Ms.
Scott’s body was found. In his opinion, Ms. Scott was not walking to a safer location
in the building, but “fleeing” there. After an unsuccessful attempt to lock herself
inside an inner office, Ms. Scott’s clothes were pulled off. Once her clothes were off,
Petitioner masturbated on her, stabbed her in the neck five times with a compass, and
struck her at least six times with a golf club and a wooden coat rack. Although Mr.
Bevel did not give any opinion as to how long the attack lasted or how long Ms. Scott
maintained consciousness, he did testify that the bruising on her wrists and pelvic area
were indications that she struggled with Petitioner as he exercised control over her and
masturbated on her; that the stab wounds to her neck had a “vital reaction” which
meant she was still alive when they were inflicted; and that the blood pattern around
her body and the multi-directional blood spatter in the room showed significant
movement as she was receiving these injuries (Tr. V, 953-56, 958-65, 968-75, 977-82,
984-88, 1002-03, 1006-12, 1021; Court’s Exhibit 7).
Petitioner claims that Mr. Bevel’s testimony could have been impeached with
evidence that challenged his time line of events (Court’s Exhibit 7). The evidence
concerns Jesse Richards, a city worker who testified at Petitioner’s first trial. Mr.
Richards testified that he and another city employee were at the Pilot Center from
about 2:20-2:50 p.m. on the day of the murder, that the parking lot was empty, and
that no one was in the building. Mitchell, 884 P.2d at 1192. Contrary to his
testimony, Petitioner claims that Mr. Richards has since stated that they actually
arrived at the Center around 12:45 p.m. and left between 1:45 and 2:00 p.m.11
Petitioner asserts that this evidence may have been used to show that the murder
actually “happened after [Petitioner] met Mr. Biggs at the door, not before,” as
referenced on Mr. Bevel’s “Most Probable Sequence of Major Events.” Court’s
Exhibit 7; Petition, pp. 32, 34.12
In denying Petitioner relief on this claim, the OCCA discussed Petitioner’s
supporting evidence at length, but ultimately concluded that Petitioner had not
demonstrated prejudice because the evidence would not have impeached Mr. Bevel’s
testimony. Mitchell, No. PCD-2008-356, slip op. at 6-10. The OCCA questioned
Mr. Richards’ new time frame, given some nineteen years after the murder, noting it
is inconsistent with all of the other evidence. Petitioner is the only
person to have ever said that there was anyone else in the Pilot Center at
the time of the murder except for himself and [Ms. Scott]. And his
Petition, p. 30 (referencing Exhibit E to the Appendix filed in support of his application
for post-conviction relief). Petitioner also states that the alarm at the Center may have been turned
off and on at 2:34 p.m. Despite a statement by an alarm company employee to that effect, the
computer print-out of activity did not show that the alarm had been turned on and off at that time.
Petition, p. 31 (referencing Exhibit D to the Appendix filed in support of his application for postconviction relief).
Alan Biggs, another city worker, testified at the second resentencing that he stopped by
the Center around 1:45 p.m. When he arrived, there was a red car (Ms. Scott’s car) running in the
parking lot. Petitioner met him at the door and told him that the Center was closed because they
were cleaning the restrooms. Mr. Biggs described his encounter with Petitioner as unusual, and he
left without entering the building and with a feeling that something was not right (Tr. III, 709-20).
See Mitchell, 884 P.2d at 1191-92 (discussing Mr. Biggs’ similar testimony at Petitioner’s original
claims of a third party perpetrator/perpetrators have consistently been
found at odds with the forensic evidence.
Id. at 9. The OCCA also found that Mr. Bevel’s “testimony was not the only
testimony regarding [Ms. Scott’s] conscious physical suffering” and that “[t]here was
sufficient other evidence admitted in support of the ‘especially heinous, atrocious, or
cruel’ aggravator from which the jury could find [Ms. Scott] consciously suffered
prior to her death.” Id. at 9-10.
As Respondent asserts, Petitioner has not shown the OCCA’s determination to
be contrary to or an unreasonable application of Strickland. Related to the OCCA’s
finding that Mr. Richards’ new time frame is inconsistent with the presented evidence,
Petitioner even acknowledges that it “is inconsistent with [Mr. Richards] not seeing
Ms. Scott’s car in the parking lot.” Petition, p. 30. If Mr. Richards had in fact arrived
at the Center at 12:45 p.m., or at anytime between 12:45 and 1:35-1:45 p.m., both Ms.
Scott and her boss, Carolyn Ross, would have been there. Ms. Ross testified that
when she left the Center between 1:35 and 1:45 p.m., Petitioner and Ms. Scott were
the only ones in the Center. Although Ms. Ross had put in a call for city workers to
come to the Center to fix a leaking roof, she was still expecting them when she left
and both her truck and Ms. Scott’s car were in the parking lot at that time (Tr. III, 65354, 669-75). When Mr. Biggs arrived, Ms. Ross had already left as the only car he
saw in the parking lot was Ms. Scott’s and it was running (Tr. III, 713, 720).
In addition to its inconsistency, Petitioner’s evidence regarding Mr. Richards
also lacks credibility. It is hearsay evidence,13 which is inherently unreliable, and it
offers no detail regarding the circumstances under which it was obtained. The
investigator’s affidavit does not reflect that Mr. Richards was even asked about his
prior testimony or given an opportunity to explain the time inconsistency. It is
axiomatic that memories fade and that the most reliable evidence would be the sworn
Mr. Richards’ statements are presented in an affidavit executed by the investigator. No
reason is given as to why Mr. Richards did not execute his own affidavit.
testimony Mr. Richards gave at trial in the year following the murder. Mitchell, 235
P.3d at 645 (noting that Petitioner’s first trial was held in June 1992). Yet Petitioner’s
evidence offers no explanation for why Mr. Richards’ statements given nineteen years
after the murder should be accepted as more credible.
Finally, and most importantly, even if trial counsel had used this evidence to
impeach Mr. Bevel, it would not have called into question the jury’s finding of the
especially heinous, atrocious, or cruel aggravator. This aggravating circumstance
requires “the State to show that the murder of the victim was preceded by torture or
serious physical abuse, which may include the infliction of either great physical
anguish or extreme mental cruelty.” Mitchell, 235 P.3d at 664. Once this showing
is made, “the attitude of the killer and the pitiless nature of the crime can also be
considered.” Id. Irrespective of the time line of events, Petitioner’s evidence does not
call into question Mr. Bevel’s testimony about the nature and extent of Ms. Scott’s
injuries and the blood evidence which shows that Ms. Scott struggled with Petitioner,
was moving throughout the attack, and was therefore alive and conscious as she
fought for her life. Moreover, as the OCCA noted, there was additional evidence
supporting the aggravator. In addition to the medical examiner’s testimony regarding
Ms. Scott’s injuries–that many of them were antemortem and would not have caused
unconsciousness (Tr. V, 1121-22; Court’s Exhibit 4, pp. 83-85, 96-97, 100-01, 10811), both Petitioner’s statements to police and his own testimony support a finding
that Ms. Scott suffered serious physical abuse and that her murder was especially
heinous, atrocious, or cruel. Although Petitioner has continually downplayed his
involvement and placed the blame for Ms. Scott’s death on others, his multiple
versions of “the truth” have provided detail as to how Ms. Scott was attacked, the
physical abuse she took, and the pain she suffered. According to own his testimony
(given in 1992 and introduced in his second resentencing), Ms. Scott’s screams were
such that they still haunt him (Tr. V, 1071-81, 1085-86; Tr. VI, 1154; Court’s
Exhibit 9, pp. 1256-68, 1287). In light of all of these circumstances and the
established evidence, Petitioner has not shown the OCCA reached a decision contrary
to or an unreasonable application of Strickland when it denied him relief on this claim.
Ground III is therefore denied.
Ground IV: Jackson v. Denno14 Hearing.
In Ground IV, Petitioner asserts that he should have been given a second
Jackson v. Denno hearing prior to the admission of his statements to police in his
second resentencing proceeding.15
Although Petitioner acknowledges that the
voluntariness of his statements had already been determined in prior state proceedings
and in his first federal habeas corpus action, he nevertheless contends that a second
hearing was required due to a change in the testimony of Oklahoma City Police
Detective John Maddox and the OCCA’s decision in McCarty v. State, 977 P.2d 1116,
1131 (Okla. Crim. App. 1998), vacated, 114 P.3d 1089 (Okla. Crim. App. 2005)
(granting the defendant’s application for post-conviction relief on other grounds,
vacating his death sentence, and remanding the case to the district court for a new
trial). Petitioner raised this claim on direct appeal, but the OCCA denied relief.
Mitchell, 235 P.3d at 653-54. Because Petitioner has not shown that the OCCA’s
decision is contrary to or an unreasonable application of Supreme Court law, relief
must be denied.
378 U.S. 368 (1964). In Jackson, 378 U.S. at 377, the Supreme Court held that a defendant
who objects to the admission of a confession is entitled to “a fair hearing and a reliable
determination on the issue of voluntariness, a determination uninfluenced by the truth or falsity of
In his proposition heading and in his closing sentence, Petitioner makes reference to the
trial court’s failure to give the jury an instruction regarding the voluntariness of his statements.
Petition, pp. 35, 38. However, Petitioner makes no argument in support of this additional claim, and
therefore, the Court declines to address it.
In denying Petitioner relief on this claim, the OCCA held as follows:
In Proposition II, [Petitioner] contends he should have been
accorded a Jackson v. Denno hearing at his resentencing trial.
[Petitioner’s] custodial statements have repeatedly been found voluntary.
See Mitchell I, 1994 OK CR 70, ¶¶ 12–14, 884 P.2d at 1194–1195;
Mitchell v. Ward, 150 F.Supp.2d at 1213; Mitchell v. Gibson, 262 F.3d
at 1060. [Petitioner] did not seek a petition for rehearing or rehearing en
banc before the Tenth Circuit nor a petition for a writ of certiorari in the
United States Supreme Court to challenge the denial of his involuntary
The admissibility of [Petitioner’s] previously determined
voluntary statements is specifically permitted under 21 O.S.2001, §
701.10a(4) (“[a]ll exhibits and a transcript of all testimony and other
evidence properly admitted in the prior trial and sentencing shall be
admissible in the new sentencing proceeding”).
The only new argument raised by [Petitioner] is that at the second
resentencing trial, Detective Maddox testified that [Petitioner] was a
suspect when the interviews with police began on September 8, 1991,
while in 1992 Detective Maddox testified that [Petitioner] was not a
suspect when the interviews began and did not become a suspect until
later that day. Contrary to [Petitioner’s] claim, this change in testimony
does not cast the entire police interview in a different light. Detective
Maddox testified in 1992 and in 2007 that [Petitioner] was Mirandized
prior to the beginning of the police interview on September 8, 1991.
Mitchell I, 1994 OK CR 70, ¶ 5, 884 P.2d at 1192. Maddox’s 2007
testimony at most shows a witness with a faulty memory. The trial
court’s failure to hold a second Jackson v. Denno hearing is not grounds
for relief. This proposition is denied.
Mitchell, 235 P.3d at 653-54 (footnotes omitted).
Jackson requires a trial court to hold a hearing outside the presence of the jury
to determine the voluntariness of a defendant’s statement when he objects to its
admission. Jackson, 378 U.S. at 376-77. In compliance with Jackson, Petitioner was
given a hearing at the time of his original trial.
Mitchell, 884 P.2d at
1192 (referencing the hearing). Petitioner has cited no Supreme Court authority
which requires more, and the Court finds no merit to Petitioner’s argument that a
second hearing was needed due to Detective Maddox’s testimony at his second
resentencing. Petitioner has not shown that the detective’s most recent testimony is
anything more than a misrecollection, nor has he shown what difference it would have
made in assessing the voluntariness of his statements. The record is clear that
Petitioner was advised of his rights in accordance with Miranda v. Arizona, 384 U.S.
436 (1966), and that he waived those rights before any questioning began (Tr. V,
1051-52; State’s Exhibit 124). Mitchell, 884 P.2d at 1192 (“Although he was given,
and waived, his Miranda rights at the outset . . . .”).
The Court also rejects Petitioner’s argument that the OCCA’s decision in
McCarty required that a second hearing be held. In McCarty, the OCCA found that
a Jackson v. Denno hearing should have been held in McCarty’s resentencing
proceeding; however, the facts are markedly different from Petitioner’s case. In
McCarty, the statements in question related to another murder McCarty had
committed, one which the prosecution relied on to prove that he was a continuing
threat. Given some unusual circumstances, McCarty never went to trial for that
murder, and so when the state sought to use these statements against him, the
voluntariness of the statements had never been explored. Although McCarty had
requested a Jackson v. Denno hearing, the trial court refused, “finding [McCarty] was
not ‘in custody’ at the time the statements were made.” The OCCA found no support
for the trial court’s ruling:
[A]lthough many of the Jackson v. Denno cases involve what amounts
to a “custodial” confession, we find no binding, authoritative support for
the position that a person is required to be in custody before the
voluntariness of his or her confessions or statements can be challenged.
The focus of a Jackson v. Denno hearing is coercion, not custody.
McCarty, 977 P.2d at 1126-31. As the facts demonstrate, McCarty does not stand for
the proposition that a Jackson v. Denno hearing is required in Oklahoma resentencing
proceedings as a matter of course, and it clearly does not hold that a defendant is
entitled to more than one Jackson v. Denno hearing.
Because Petitioner was afforded a Jackson v. Denno hearing, he simply has no
viable argument that the OCCA’s decision is contrary to or an unreasonable
application of Jackson (or any other Supreme Court authority, for that matter).
Accordingly, Ground IV is denied.
Ground V: Admission of Petitioner’s Prior Testimony.
In Ground V, Petitioner, relying on the Supreme Court’s ruling in Harrison v.
United States, 392 U.S. 219 (1968), asserts that his testimony from his original trial
should not have been admitted in his second resentencing proceeding because he was
impelled to testify due to a Brady violation and the misleading testimony of Ms.
Gilchrist. See Ground I, supra. Petitioner raised this claim on direct appeal. The
OCCA addressed the merits of the claim and denied relief. Mitchell, 235 P.3d at 65455.
In Harrison, a defendant complained about the admission of his prior testimony.
In his first trial, Harrison only testified in order to counter three confessions
introduced against him. On appeal, it was determined that the confessions were
illegally obtained and therefore erroneously admitted. On retrial, the confessions were
not introduced, but Harrison’s prior testimony was. The question before the Supreme
Court was “whether [Harrison’s] trial testimony was the inadmissible fruit of the
illegally procured confessions.” Harrison, 392 U.S. at 220-21. The Court found that
it was. “[T]he same principle that prohibits the use of confessions [wrongfully
obtained] also prohibits the use of any testimony impelled thereby–the fruit of the
poisonous tree . . . .” Id. at 222. “The question is not whether the petitioner made a
knowing decision to testify, but why. If he did so in order to overcome the impact of
confessions illegally obtained and hence improperly introduced, then his testimony
was tainted by the same illegality that rendered the confessions themselves
inadmissible.” Id. at 223.
With reference to Littlejohn v. State, 85 P.3d 287, 298-99 (Okla. Crim. App.
2004), in which the OCCA assumed that Harrison applied outside of the Fifth
Amendment context, the OCCA determined that no Harrison violation occurred in
Petitioner’s case because his testimony was not induced by the Brady/Gilchrist error.
The OCCA found as follows:
The record shows that the reason [Petitioner] took the witness stand in
his first trial was to explain why he had given so many different stories
to the police, both before and after he was arrested, and to exculpate
himself and inculpate “C. Ray.” In light of testimony from witnesses at
the scene placing [Petitioner] there both before and after the murder, and
evidence of his shoe print found in the deceased’s blood, [Petitioner’s]
claim that but for the Gilchrist testimony he would not have testified is
Mitchell, 235 P.3d at 654. The OCCA also held that even if Petitioner’s testimony
should have been excluded, any error was harmless beyond a reasonable doubt. Id.
In order for Petitioner to prevail on his Ground V, he must show that the
OCCA’s decision is contrary to or an unreasonable application of Supreme Court law,
namely, Harrison, which he cites in support of his request for relief. However, the
Tenth Circuit has made clear that Harrison does not apply outside of the Fifth
Amendment context. In Littlejohn v. Trammell, 704 F.3d 817, 849 (10th Cir. 2012),
the Tenth Circuit noted that “Harrison was concerned with the Fifth Amendment’s
prohibition on law enforcement’s unlawful extraction of confessions from
defendants[,]” and that “[b]y its terms, Harrison is applicable only where a defendant’s
testimony is impelled by the improper use of his own unconstitutionally obtained
confessions in violation of the Fifth Amendment.” In Littlejohn, the petitioner was
seeking to extend Harrison beyond its express holding, an idea the Tenth Circuit
It is apparent that the rule Mr. Littlejohn advocates for involves
the application of Harrison’s remedial measure (i.e., suppression) where
a defendant’s prior testimony is impelled by an alleged due process
violation. To adopt such a rule would require us inappropriately to
extend Harrison to a novel context. See Premo v. Moore,  U.S.
[115, 127] (2011) (“[N]ovelty . . . [that] renders [a] relevant rule less
than ‘clearly established’ . . . provides a reason to reject it under
Whether Harrison ever may be extended beyond its Fifth
Amendment confession context is not the question before us. Rather,
giving due deference to state court adjudications as AEDPA commands,
our threshold concern must be whether Harrison’s holding furnished the
OCCA with clearly established federal law to resolve Mr. Littlejohn’s
argument. We answer that question in the negative. For that reason, we
reject Mr. Littlejohn’s impelled-testimony argument.
Littlejohn, 704 F.3d at 850-51 (footnotes omitted). As in Littlejohn, because Harrison
does not apply to Petitioner’s circumstances, Petitioner has not established his right
to relief and Ground V is therefore denied.
Grounds VI, VII and VIII: Jury Selection.
In Grounds VI, VII, and VIII, Petitioner challenges several aspects of the jury
selection process, claiming he was denied his constitutional rights to an impartial jury
and due process. Petitioner raised these claims on direct appeal. With thorough and
detailed analysis, the OCCA addressed the merits of the claims and denied relief.
Mitchell, 235 P.3d at 646-52. Petitioner has not shown that the OCCA’s decision is
an unreasonable one.
There is no question that “[c]apital defendants have the right to be sentenced
by an impartial jury.” Uttecht v. Brown, 551 U.S. 1, 22 (2007). “[D]ue process alone
has long demanded that, if a jury is to be provided the defendant, regardless of
whether the Sixth Amendment requires it, the jury must stand impartial and indifferent
to the extent commanded by the Sixth Amendment.” Morgan v. Illinois, 504 U.S.
719, 727 (1992). An impartial juror in the capital setting is one who, despite his or
her views on capital punishment, can follow the trial court’s instructions. Thus, “the
proper standard for determining when a prospective juror may be excluded for cause
because of his or her views on capital punishment . . . is whether the juror’s views
would prevent or substantially impair the performance of his duties as a juror in
accordance with his instructions and his oath.” Wainwright v. Witt, 469 U.S. 412, 424
(1985) (internal quotations marks omitted).
“[B]ecause determinations of juror bias cannot be reduced to question-andanswer sessions[,]” the printed record cannot fully capture the qualification
assessment. Id. at 424-26, 434-35. Reviewing courts must therefore defer to the trial
court’s determination of whether a particular juror is qualified to serve. “Deference
to the trial court is appropriate because it is in a position to assess the demeanor of the
venire, and of the individuals who compose it, a factor of critical importance in
assessing the attitude and qualifications of potential jurors.” Uttecht, 551 U.S. at 9.
Adding to this deference is even more deference–the deference embodied in the
AEDPA standard for relief. In Eizember v. Trammell, 803 F.3d 1129, 1135-36 (10th
Cir. 2015), the Tenth Circuit recently discussed the interplay of these deferential
How do these established standards play out when we’re called on
to review not a federal trial court on direct appeal but the reasonableness
of a state’s application of federal law on collateral review? In [Uttecht]
the Court explained that a federal court owes what we might fairly
describe as double deference: one layer of deference because only the
trial court is in a position to assess a prospective juror’s demeanor, and
an “additional” layer of deference because of AEDPA’s “independent,
high standard” for habeas review. See id. at 9–10, 127 S.Ct. 2218.
Indeed, the Court stressed that where, as here, the record reveals a
“lengthy questioning of a prospective juror and the trial court has
supervised a diligent and thoughtful voir dire, the trial court has broad
discretion” on the issue of exclusion. Id. at 20, 127 S.Ct. 2218.
See also White v. Wheeler, 577 U.S. ___, 136 S. Ct. 456, 460, 462 (2015) (discussing
the “doubly deferential” standard: “simple disagreement does not overcome the two
layers of deference owed by a federal habeas court in this context”) (internal quotation
In Ground VI, Petitioner asserts that “the jury selection process . . . did not
comport with due process” because the trial court denied his requests to utilize jury
questionnaires and to conduct individual questioning. Petition, p. 43. Characterizing
the jury selection process as expedited and short, Petitioner argues that his requests
were not only reasonable but necessary to gather “enough information to intelligently
exercise his peremptory challenges.” Id.
In denying Petitioner relief on this claim, the OCCA made the following
findings regarding the jury selection process employed in Petitioner’s case:
The record reflects a very thorough voir dire was conducted
spanning two and half days. Prior to the start of questioning, prospective
jurors were informed of their purpose—to decide punishment—and
given the three possible punishments. The trial judge explained the Bill
of Particulars, the role of aggravating circumstances and mitigating
evidence, the State’s burden of proof, the process involved in finding the
existence of an aggravating circumstance, the weighing of that evidence
against the mitigating evidence and the determining of the appropriate
sentence. The judge indicated the jury would receive all of this
information in written instructions at the close of the evidence. The judge
further informed the prospective jurors that a juror needed to be fair and
impartial, able to listen to all of the evidence, and consider all three
The record in this case shows that the trial court did not rush
through voir dire. There is no indication in the record that defense
counsel was prevented from asking any questions pertinent to exercising
peremptory challenges. [Petitioner] used all nine peremptory challenges.
However, nowhere in the record or appellate brief does he request
additionally challenges or specify which sitting jurors he would excuse
if given additional challenges.
Mitchell, 235 P.3d at 647. Despite these findings of fact, which are afforded a
presumption of correctness in this proceeding, 28 U.S.C. § 2254(e)(1), Petitioner
asserts, as he did on direct appeal, that the questioning of three prospective jurors
shows why jury questionnaires and individual questioning should have be employed
in his case. The OCCA addressed this assertion as follows:
In support of his claim, [Petitioner] directs us to responses by
three potential jurors during the court’s initial questioning. Prospective
Jurors R.M. and A.K. stated they remembered reading about
[Petitioner’s] case in the newspapers. Prospective Juror R.L. stated his
wife had been murdered, her murderer was on death row, and the process
had been unpleasant for him. [Petitioner] argues that if questionnaires or
individual voir dire had been allowed the jury pool would not have been
exposed to the highly inflammatory responses of the three potential
Prospective Jurors R.M. and A.K. stated they remembered reading
about [Petitioner’s] case in the newspapers approximately 16 or 17 years
earlier. No details of what they remembered reading were given. Both
stated they could set aside what they remembered reading and decide the
case on the evidence presented at trial.
Because of the obvious difficulty in reviewing juror candidness,
we must rely and place great weight upon the trial court’s opinion of the
jurors. See Eizember, 2007 OK CR 29, ¶ 41, 164 P.3d at 221
(“[d]eference must be paid to the trial judge who sees and hears the
jurors”, quoting Wainwright v. Witt, 469 U.S. 412, 425, 105 S.Ct. 844,
853, 83 L.Ed.2d 841 (1985)). Here, the trial court, who saw the
prospective jurors and heard their responses firsthand, found no need to
conduct individual voir dire. We find the record supports that conclusion
as there is nothing in their responses that indicate the prospective jurors
were anything less than candid.
Prospective Juror R.L., after giving the previously cited testimony
regarding the murder of his wife, and at the request of defense counsel,
was sequestered from the remainder of the jury pool and individual voir
dire was conducted. At the end of which, he was excused for cause.
[Petitioner] has failed to show how this prospective juror’s statements
about his personal experiences, bereft of any personal opinions, impacted
the remainder of the jury pool.
Mitchell, 235 P.3d at 646, 647.
Despite Petitioner’s contention that the voir dire conducted in his case should
have been something more, it is clear that Petitioner has no constitutional right to
demand the method by which a jury is selected. See Skilling v. United States, 561
U.S. 358, 386 (2010) (“No hard-and-fast formula dictates the necessary depth or
breadth of voir dire.”); United States v. Wood, 299 U.S. 123, 145-46 (1936)
(“Impartiality is not a technical conception. It is a state of mind. For the ascertainment
of this mental attitude of appropriate indifference, the Constitution lays down no
particular tests . . . .”). Part and parcel of Petitioner’s right to an impartial jury,
however, is “an adequate voir dire to identify unqualified jurors.” Morgan, 504 U.S.
at 729. The OCCA found that the voir dire conducted in Petitioner’s case was in fact
adequate, and because Petitioner has failed to show that this determination is an
unreasonable one, his Ground VI must be denied.
In Ground VII, Petitioner objects to the trial court’s removal of nine prospective
jurors for cause.16 Labeling the trial court’s questioning of these jurors as “cursory”
and “truncated,” Petitioner contends that the questions posed to them were inadequate
to determine “whether they could set aside generalized opposition to capital
punishment sufficiently to follow the law . . . .” Petition, pp. 44, 46.
In denying Petitioner relief on this claim, the OCCA reviewed the questioning
of each of the nine jurors. It ultimately concluded that two of the prospective jurors,
Jurors F.F. and J.P., were not removed due to their views on capital punishment, but
“were properly excused due to the influence of outside matters affecting their ability
to sit as fair and impartial jurors.” Mitchell, 235 P.3d at 650. With respect to Juror
F.F., the OCCA found as follows:
Prospective Juror F.F. initially told the court “it was kind of hard
to say” whether he could give meaningful consideration to all three
punishments. (Tr. Vol. I, pg. 66). Upon further questioning by the court,
it became clear the potential juror’s knowledge of facts in an unrelated
upcoming criminal trial would affect his ability to listen to the case
against [Petitioner] and make a decision. Despite the court’s decision to
excuse the juror, defense counsel was granted additional in-camera
questioning. As a result, the prospective juror said that because of his
knowledge of the other case, he could not be fair to either side in
[Petitioner’s] case. Over defense counsel’s objection, the court excused
the juror, stating “he’s got something external affecting him . . . it’s
something that affects him from something else that would affect his
ability to give both sides a fair trial.” (Tr. Vol. I, pg. 70).
Mitchell, 235 P.3d at 648. And with respect to Juror J.P., the OCCA found:
Prospective Juror J.P. initially said he could not consider the death
penalty because of religious scruples. Upon further questioning by the
Petitioner notes that three of these jurors were African American; however, his scant
reference to Batson v. Kentucky, 476 U.S. 79 (1986), and lack of argument, are insufficient to raise
the claim. Petition, pp. 44, 47.
court, the prosecutor and defense counsel, the court found the juror had
been equivocal in his answers regarding consideration of the death
penalty. During an individual, sequestered voir dire, where he was
questioned extensively by the court, the prosecutor and defense counsel,
J.P. clarified his views and stated he could not consider all three
punishments. In excluding J.P. for cause, the court noted that from
observing him closely in chambers, J.P. was allowing matters outside the
law and evidence, to influence his ability to consider to all three
Id. at 649.
Regarding Juror F.F., it is clear that his relationship with another capital
defendant hampered his ability to consider all three punishments (Tr. I, 65-70), and
although Juror J.P. struggled with whether or not he could consider all three, after
extensive questioning by the trial court, the prosecutor, and defense counsel, it was
clear that his life experience of losing his wife to cancer and his relationship with his
fellow parishioners prevented him from doing so (Tr. III, 471-97). Because the record
clearly belies Petitioner’s contention that these jurors were improperly removed,
Petitioner has not shown that the OCCA unreasonably denied him relief with respect
to these two jurors. See Uttecht, 551 U.S. at 20 (“But where, as here, there is lengthy
questioning of a prospective juror and the trial court has supervised a diligent and
thoughtful voir dire, the trial court has broad discretion.”).
Of the seven remaining jurors, the OCCA found that six of them “were
unequivocal in their responses that they could not consider all three punishments.”
Mitchell, 235 P.3d at 649. “Because these prospective jurors could not consider all
of the punishments provided by law, they could not discharge their duties as jurors.”
Id. Once again, the OCCA’s decision is supported by the record:
Juror P.M. stated that for personal and religious reasons she could
not consider the death penalty, that her position was unequivocal,
that nothing at all could change her mind, and after further defense
questioning, that she “would never vote for anyone’s life to be
taken” (Tr. I, 72-75).
Juror N.B. stated without hesitation that should could not consider
all three punishments. She specifically stated that she could not
consider the death penalty, that she had felt that way for a “very
long time,” and that she could think of no circumstances under
which she could ever impose a death sentence (Tr. I, 83-84).
Juror J.W. stated that he could not consider two of the three
sentencing options–life without parole and death–because people
change. He told the trial court that had felt this way for awhile
and that nothing could change his mind (Tr. I, 85-87).
Juror K.D. told the trial court that “for as long as [she could]
remember” she had been against the death penalty. She
emphatically stated that she could not give the death penalty under
any circumstances, even if the law told her she had to consider all
three (Tr. I, 90-91).
Juror K.B. stated she could not consider the death penalty, that it
was eliminated as an option for her consideration, and that she
was not going to change her mind under any circumstances and
irrespective of instructions which told her she had to consider all
three (Tr. I, 91-92).
Juror M.W. stated that he would exclude the death penalty as an
option and that his position was unequivocal (Tr. III, 468-69).
Consequently, Petitioner has not shown that the OCCA unreasonably denied him
relief with respect to these six additional jurors.
The final juror challenged by Petitioner is Juror S.A., whom the OCCA
acknowledged was not as clear in her responses as the other eight. Although she first
stated that she had a “serious” issue with the death penalty, she also seemed to affirm
that she could set aside her issue with the death penalty and decide the case. After
exchanging apologies for the apparent confusion, the trial court asked in more explicit
and direct terms, “Can you set aside your opinion . . . and not consider it any more and
decide the issues in this case or are you period, no death penalty, no matter what[?]”
To this question, Juror S.A. answered, “No matter what” (Tr. I, 81-82). In denying
relief with respect to Juror S.A., the OCCA found as follows:
Any ambiguity in S.A.’s responses was cleared up by additional
questioning from the trial court. In the potential juror’s last recorded
answer, she was unequivocal in her decision that she could not consider
all three punishments. Therefore, we find no abuse of the trial court’s
discretion in excusing her for cause.
Mitchell, 235 P.3d at 649. Although the OCCA found that the trial court cleared up
Juror S.A.’s ambiguous answers, even if some ambiguity remained, the trial court
cannot be faulted. See Witt, 469 U.S. at 434 (“[W]hatever ambiguity [may be found]
in this record, we think that the trial court, aided as it undoubtedly was by its
assessment of [the juror’s] demeanor, was entitled to resolve it in favor of the State.”).
See also Uttecht, 551 U.S. at 7 (quoting Witt). For all of the foregoing reasons,
Petitioner’s Ground VII does not entitle him to relief.17
Petitioner’s Ground VIII is in essence an extension of his Ground VI in that he
complains about how the trial court conducted voir dire. Here, Petitioner contends
that he should have been allowed to show the prospective jurors some of the crime
scene photographs, tell them what specific aggravators the State was alleging, define
mitigating evidence, and ask them certain questions about the death penalty. As
previously discussed, Petitioner has no constitutional right to dictate the parameters
of voir dire, and so long as the jury selection process adequately identifies who is
qualified to serve and who is not, the trial court has discretion in the particulars. In
In denying Petitioner relief, the OCCA also found that the trial court did not err in
rejecting Petitioner’s request to ask additional questions to these jurors, and it did not cause
confusion when it at times used the terms “meaningful consideration” and “equivocal.” Mitchell,
235 P.3d at 649-50.
denying Petitioner relief on these claims, the OCCA found that the trial court acted
within its discretion and that Petitioner was not denied his right to an impartial jury.
A review of the record shows the trial court did not abuse its
discretion in the manner in which voir dire was conducted. The record
clearly shows defense counsel was allowed sufficient voir dire to
determine if there were grounds to challenge a particular juror for cause
and to intelligently exercise peremptory challenges. In many instances,
defense counsel’s request for individual voir dire was granted.
Now on appeal, [Petitioner] has not stated how he would have
used his peremptory challenges differently given additional information
nor has he cited to any sitting juror with any prejudices against him. Our
review of the record shows a jury free of outside influence, bias and
personal interest was selected to hear [Petitioner’s] case. Therefore,
given the traditionally broad discretion accorded to the trial judge in
conducting voir dire, and our inability to discern any possible prejudice
from not allowing further general questioning, we find [Petitioner’s]
constitutional rights were not violated by voir dire.
Mitchell, 235 P.3d at 651-52.
Because Petitioner has not shown that this
determination by the OCCA is unreasonable, the Court finds that relief must be denied
on his Ground VIII as well.
Where, as here, the trial court is invested with broad discretion to conduct voir
dire and the OCCA has addressed all of Petitioner’s juror related claims in full and
with abundant analysis and sound reasoning supported by the trial record, Supreme
Court authority and AEDPA deference mandates that Petitioner’s Grounds VI, VII,
and VIII all be denied.
Grounds IX, X, and XI: General Evidentiary Issues.
In Grounds IX, X, and XI, Petitioner raises evidentiary challenges to the
admission of photographs, Mr. Bevel’s crime reconstruction testimony, and DNA
evidence. All of these claims were raised by Petitioner on direct appeal and denied
by the OCCA on the merits. Mitchell, 235 P.3d at 655-58. Addressing each claim in
turn, the Court concludes that Petitioner has not shown that the OCCA’s adjudication
of these claims is contrary to or an unreasonable application of Supreme Court law.
It is well-established that “[f]ederal habeas review is not available to correct
state law evidentiary errors . . . .” Smallwood v. Gibson, 191 F.3d 1257, 1275 (10th
Cir. 1999). See also Thornburg v. Mullin, 422 F.3d 1113, 1128-29 (10th Cir. 2005)
(quoting Smallwood); Spears v. Mullin, 343 F.3d 1215, 1225-26 (10th Cir. 2003)
(same). Thus, when a habeas petitioner complains about the admission of evidence,
inquiry is limited to the constitutional issue of whether a due process violation has
occurred. The question is whether the admitted evidence rendered the petitioner’s trial
fundamentally unfair. Id. See Chambers v. Mississippi, 410 U.S. 284, 302 (1973)
(finding that the exclusion of critical evidence denied a defendant “a trial in accord
with traditional and fundamental standards of due process”). Undefined by specific
legal elements, this standard obliges the Court to “tread gingerly” and “exercise
considerable self-restraint.” Duckett v. Mullin, 306 F.3d 982, 999 (10th Cir. 2002)
(internal quotation marks omitted) (quoting United States v. Rivera, 900 F.2d 1462,
1477 (10th Cir. 1990)). No alleged evidentiary error shall be viewed in isolation, but
instead considered in light of the entire proceeding. Harris v. Poppell, 411 F.3d 1189,
1197 (10th Cir. 2005) (discussing the application of a fundamental fairness review and
quoting Duckett and Le v. Mullin, 311 F.3d 1002, 1013 (10th Cir. 2002)).
In his Ground IX, Petitioner complains about the volume of photographs of Ms.
Scott which were admitted. Although Petitioner acknowledges that “the State is
entitled to offer some photographic evidence of the crime scene and the victim,” he
contends that fourteen photographs of her body at the crime scene and eleven autopsy
photographs (which were in addition to thirty general crime scene photographs) were
excessive and gruesome, and therefore, inflammatory and prejudicial. Petition, p. 52.
In denying Petitioner relief, the OCCA addressed every aspect of Petitioner’s claim
in significant detail.
The admissibility of photographs is a matter within the trial
court’s discretion and absent an abuse of that discretion, this Court will
not reverse the trial court’s ruling. Warner, 2006 OK CR 40, ¶ 167, 144
P.3d at 887. Photographs are admissible if their content is relevant and
their probative value is not substantially outweighed by their prejudicial
effect. Id. The probative value of photographs of murder victims can be
manifested in numerous ways, including showing the nature, extent and
location of wounds, establishing the corpus delicti, depicting the crime
scene, and corroborating the medical examiner’s testimony. Id.
Many of the photographs in this case were introduced during the
testimony of Tom Bevel and illustrated his theory of blood spatter and
blood transfer evidence. Bevel testified that the deceased had been
stabbed in the neck with the school compass that was found underneath
her. He also testified the blood smear and blood transfer evidence
showed that the deceased was moving during the attack and that the
attack was particularly violent and brutal. Photographs illustrating this
testimony aided the jury in understanding the nature of the attack on the
deceased and helped explain the final location of her body.
Autopsy photographs supported the testimony of the medical
examiner and aided the jury in understanding the nature of the wounds
suffered by the deceased. The photographs were relevant to support the
State’s allegation of the existence of the “heinous, atrocious or cruel”
aggravator as they showed the deceased suffered serious physical abuse
prior to her death.
[Petitioner’s] argument that the photographs were unduly
prejudicial because the manner of death was not disputed has been
previously rejected by this Court. See Patton, 1998 OK CR 66, ¶ 59, 973
P.2d at 290. Likewise, [Petitioner’s] argument that the photographs were
unduly prejudicial because his guilt was not contested fails. Title 21
O.S.2001, § 701.10a specifically provides that “[a]ll exhibits and a
transcript of all testimony and other evidence properly admitted in the
prior trial and sentencing shall be admissible in the new sentencing
proceeding[.]” See Fitzgerald v. State, 2002 OK CR 31, ¶ 11, 61 P.3d
Further, [Petitioner’s] argument that the photographs were unduly
prejudicial because they were gruesome does not warrant relief. In
Patton, we said:
The fact that the photographs may be gruesome does not of itself
cause the photographs to be inadmissible. “Gruesome crimes
result in gruesome pictures.” McCormick v. State, 845 P.2d 896,
898 (Okl.Cr.1993). There is no requirement that the visual effects
of a particular crime be down played by the State. Id. “The only
consideration to be made is whether the pictures are unnecessarily
hideous, such that the impact on the jury can be said to be unfair”.
1998 OK CR 66, ¶ 60, 973 P.2d at 290.
As neither the manner of death nor [Petitioner’s] guilt is disputed,
“[w]e are unable to sympathize with [Petitioner] when he complains that
the photos are graphic and are somewhat confused that he would expect
them to be otherwise.” Smallwood v. State, 1995 OK CR 60, ¶ 35, 907
P.2d 217, 228.
[Petitioner’s] complaint about the volume of photographs also
does not warrant relief. In Mitchell III, this Court was troubled by the
admission of photographs of the crime scene as well as a videotape of the
crime scene showing the deceased’s body. 2006 OK CR 20, ¶ 53, 136
P.3d at 695. This Court found much of the evidence was admissible, but
the trial court had abused its discretion by failing to properly constrain
the State in its presentation of the evidence, much of which was
cumulative. Id. The record of this second resentencing reflects that the
trial court was well aware of this Court’s rulings in Mitchell III, and
worked hard not to commit the same errors. The crime scene videotape
was not admitted into evidence in the second resentencing and the
number of photographs admitted was reduced. While there was some
duplication in the images reflected in the photographs, [Petitioner] has
failed to meet his burden of showing the repetition was needless or
inflammatory. Warner, 2006 OK CR 40, ¶ 168, 144 P.3d at 887.
Finally, [Petitioner] finds error in the prosecution’s publication of
some of the photographs during closing argument, instead of when they
were introduced during a witnesses’ testimony. Defense counsel argued
at trial that withholding the photographs throughout trial until closing
argument was so inflammatory as to violate due process and fundamental
fairness. Denying [Petitioner’s] objection, the trial court found the
photographs had been admitted into evidence therefore they could be
published to the jury and the jury could take them to deliberations. The
judge noted that many of the photographs had been cropped and cut
down and that the total number of admissible photographs had been
[Petitioner] does not cite any authority requiring that all exhibits
admitted into evidence be published prior to closing argument. Further,
he has failed to show any prejudice resulting from the timing of the
admission of the photographs.
Having found the photographs relevant, they may still be excluded
from evidence if the probative value of the photographs is outweighed
by their prejudicial impact on the jury. 12 O.S.2001, § 2403. “In
reviewing the prejudicial impact of photographs this Court has said that
‘[w]here the probative value of photographs . . . is outweighed by their
prejudicial impact on the jury that is, the evidence tends to elicit an
emotional rather than rational judgment by the jury then they should not
be admitted into evidence.’” Short v. State, 1999 OK CR 15, ¶ 27, 980
P.2d 1081, 1094. Applying that standard to this case, we find the
photographs introduced were probative and that probative value was not
outweighed by any prejudicial impact. The evidence overwhelmingly
supported the “heinous, atrocious or cruel” aggravator and there is no
indication the jury’s verdict was an emotional response rather than a
rational judgment based on the evidence.
Based upon our review of the photographic evidence introduced
in this case, we find the errors committed in the first resentencing
concerning admission of this evidence were not repeated in this case.
The trial court properly “constrained” the State’s presentation of this
evidence and did not abuse its discretion in the admission of the
photographs. This proposition of error is denied.
Mitchell, 235 P.3d at 655-56 (footnote omitted).
In order to prevail on his Ground IX, Petitioner must show that all fairminded
jurists would disagree with the OCCA’s assessment. Frost v. Pryor, 749 F.3d 1212,
1225-26 (10th Cir. 2014) (“Under the test, if all fairminded jurists would agree the
state court decision was incorrect, then it was unreasonable and the habeas corpus writ
should be granted. If, however, some fairminded jurists could possibly agree with the
state court decision, then it was not unreasonable and the writ should be denied.”)
(emphasis added); Stouffer v. Trammell, 738 F.3d 1205, 1221 (10th Cir. 2013) (citing
Richter, 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).
Given the OCCA’s well-reasoned analysis, the due process standard of review which
applies to his claim, and the AEDPA deference afforded the OCCA’s decision,
Petitioner has not made this showing.18 Accordingly, relief on Ground IX is denied.
Petitioner’s Ground X challenges the admission of Mr. Bevel’s testimony. As
discussed in Ground III, supra, Mr. Bevel, an expert in blood spatter and crime
reconstruction, testified as to how he believed the murder occurred based on the
physical evidence, crime photographs/diagrams, prior testimony, police reports,
autopsy report, and Petitioner’s statements to police. Petitioner contends that Mr.
Bevel should not have been allowed to testify because his testimony was cumulative,
As Respondent asserts, Petitioner’s reference to the Tenth Circuit’s decision in Spears is
unavailing. Response, pp. 65-66. As in Wilson v. Sirmons, 536 F.3d 1064, 1115 (10th Cir. 2008),
and Thornburg, 422 F.3d at 1129, and unlike Spears, the photographs in the present case had a
“logical connection” to the State’s burden of proof.
irrelevant, and unreliable.19 Petitioner suggests that the trial court’s failure to conduct
a Daubert/Kumho20 hearing contributed to the alleged error.
In denying Petitioner relief on this claim, the OCCA set forth the following
In his eighth proposition of error, [Petitioner] argues that the crime
scene reconstruction testimony of Tom Bevel was unnecessary and
usurped the fact finding function of the jury. As in the 2002 resentencing
trial, Bevel’s crime scene reconstruction testimony was used to help
establish the various events involved in [Petitioner’s] attack upon the
deceased and the most likely sequence of those events. In Mitchell III,
this Court summarized Bevel’s testimony at [Petitioner’s] 2002
Bevel testified extensively about what the physical evidence at the
crime scene—including the bloodstain patterns, the position of
Scott’s body, the location of various objects, etc.—suggested
about the “weapons” [Petitioner] used to attack Scott (including
his hands, a golf club, a compass, and a coat rack) and the order
in which they were used. Bevel also testified about the likelihood
of some type of sexual attack upon Scott prior to her death. He
noted hip bruises consistent with someone exerting pressure in
this area, and also that the lack of significant blood on her clothing
was inconsistent with a scenario in which the clothing was
removed after her death.
2006 OK CR 20, ¶ 68, 136 P.3d at 700–01, n. 150.
Respondent asserts that to the extent Petitioner relies upon the Sixth Amendment for relief
on this claim, this portion of his claim is unexhausted. Response, pp. 68-70. However, the Court
need not address Respondent’s assertion because it concludes that Petitioner has not adequately
presented such a claim. Petitioner’s sole reference to the Sixth Amendment, namely the insertion
of “VI” into a list of constitutional amendments in his closing paragraph, does not a claim make.
Petition, p. 56.
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993); Kumho Tire Co.,
Ltd. v. Carmichael, 526 U.S. 137 (1999). Oklahoma applies the standards set forth in Daubert and
Kumho to determine the admissibility of novel expert testimony. Harris v. State, 84 P.3d 731,
745 (Okla. Crim. App. 2004).
Bevel’s testimony in the 2007 resentencing was substantially the
same. In Mitchell III, this Court found Bevel’s testimony establishing the
various events involved in [Petitioner’s] attack upon the deceased and
the most likely sequence of those events relevant to the jury’s
determination regarding the “heinous, atrocious, or cruel” aggravating
circumstance. Id. 2006 OK CR 20, ¶ 68, 136 P.3d at 701. We do so
[Petitioner] also argues Bevel’s testimony was unreliable as he
could not say how long the entire event lasted from start to finish, and
his theory that it all happened in at most five minutes was simply
impossible. The starting point for the sequence of events which included
the deceased’s murder was the departure of Carolyn Ross from the Pilot
Center and ended with the arrival of Allen Briggs [sic] at the Center.
Both Ms. Ross and Mr. Briggs [sic] gave approximate times for their
departure and arrival. Bevel testified that due to these approximate times,
he did not have sufficient information to say exactly how long the assault
inside the Pilot Center lasted. The weight and credit to be given Bevel’s
testimony was within the province of the jury. See Bland v. State, 2000
OK CR 11, ¶ 29, 4 P.3d 702, 714.
Relying on 12 O.S.2001, § 2403, [Petitioner] also argues Bevel’s
testimony was needlessly cumulative to that of Carolyn Ross and
Captain Vance Allen. Section 2403 provides that relevant evidence may
be excluded if its probative value is substantially outweighed by the
danger of unfair prejudice, confusion of the issues, misleading the jury,
undue delay, needless presentation of cumulative evidence, or unfair and
harmful surprise. When measuring the relevancy of evidence against its
prejudicial effect, the court should give the evidence its maximum
reasonable probative force and its minimum reasonable prejudicial value.
Mayes v. State, 1994 OK CR 44, ¶ 77, 887 P.2d 1288, 1310.
Ms. Ross and Captain Allen testified to events occurring
immediately before and after [Petitioner’s] assault on the deceased.
Bevel’s expert testimony was based in part on evidence provided by
Ross and Allen. His testimony exceeded that given by Ross and Allen
and his references to their testimony showed how the various accounts
of that day were interconnected. Contrary to [Petitioner’s] argument, the
order in which the events of January 7, 1991, occurred was relevant in
the resentencing proceeding as it showed that the deceased suffered
serious physical abuse prior to her death thus establishing the aggravator
of “especially heinous, atrocious or cruel.” [Petitioner] was not denied
a fair sentencing by the admission of the crime scene reconstruction
Mitchell, 235 P.3d at 656-57. Contrary to Petitioner’s contentions, the Court does not
agree that the admission of Mr. Bevel’s testimony denied him a fundamentally fair
After twenty-seven years as a police officer, Mr. Bevel started his own
consulting company, a significant portion of which is devoted to training others in
blood stain pattern analysis and crime scene analysis and reconstruction. In the area
of blood stain pattern analysis, Mr. Bevel testified that his training and education dates
back to 1979. Mr. Bevel also detailed for the jury his training and education in crime
reconstruction. At the time of trial, Mr. Bevel was an Associate Professor in the
Master of Forensic Science program at the University of Central Oklahoma, had coauthored three editions of a textbook on blood stain pattern analysis, and had given
instruction on blood stain pattern analysis to groups across the United States and
abroad. Mr. Bevel had previously been recognized as an expert in state and federal
courts and in foreign jurisdictions. Prior to giving his analysis of the crime scene in
the present case, he explained the intricacies of his disciplines to the jury (Tr. V, 94253).
A review of Mr. Bevel’s education, experience, and overall testimony supports
a finding that he was a qualified expert, and that as previously discussed in Ground
III, supra, his testimony was highly relevant to the especially heinous, atrocious, or
cruel aggravator. While other witnesses, like Ms. Ross and Mr. Riggs, contributed to
the time line of events by testifying about their contact with Petitioner at the Center,
and the medical examiner testified about the nature and extent of Ms. Scott’s injuries,
Mr. Bevel’s testimony covered the crime itself, i.e., the likely order of Ms. Scott’s
injuries (and the items used to inflict them) and the struggle Ms. Scott engaged in with
Petitioner as she fought for her life. Therefore, contrary to Petitioner’s assertions, Mr.
Bevel’s testimony was not cumulative, irrelevant, or unreliable, but germane and
helpful to the jury’s sentencing determination. Accordingly, the Court cannot
conclude that the OCCA mishandled Petitioner’s claim. Because the OCCA’s denial
of relief was reasonable, and because it is clear that Petitioner was not denied a
fundamentally fair trial by Mr. Bevel’s testimony, relief on Ground X is denied.
In Ground XI, Petitioner complains about the chain of custody relating to DNA
evidence admitted in his second resentencing proceeding. The record reflects that in
1992 Mr. Wraxall, the executive director and chief forensic serologist of an
independent lab in California, received evidence from Ms. Gilchrist on behalf of the
Oklahoma City Police Department (Tr. IV, 866-67, 869-70, 876-77). The evidence
in question is a “stain allegedly taken from the pubic hair of Ms. Scott” (Tr. IV, 877).
Mr. Wraxall found semen in the stain and he extracted DNA from it. In 2002, Mr.
Wraxall used updated technology to compare the extracted DNA with a known sample
from Petitioner, both of which had been in his possession since 1992. Petitioner’s
DNA matched the extracted DNA at nine loci. Mr. Wraxall testified that the
probability of finding the same match elsewhere in the population was one in nine
trillion (Tr. IV, 872-76). Given the issues related to Ms. Gilchrist, see Ground I,
supra, Petitioner contends that this DNA evidence should not have been admitted
without additional chain of custody evidence showing how Ms. Gilchrist obtained the
sample she sent to Mr. Wraxall.21
Respondent argues for the application of a procedural bar to the federal aspect of
Petitioner’s Ground XI. Response, pp. 75-78. However, having construed Petitioner’s claim as a
state law evidentiary claim, its merit is properly assessed under a fundamental fairness review and
the procedural bar doctrine does not apply.
In denying Petitioner relief on this claim, the OCCA acknowledged the chain
of custody rule:
The purpose of the chain of custody rule is to guard against
substitution of or tampering with the evidence between the time it is
found and the time it is analyzed. Alverson v. State, 1999 OK CR 21, ¶
22, 983 P.2d 498, 509. Although the State has the burden of showing the
evidence is in substantially the same condition at the time of offering as
when the crime was committed, it is not necessary that all possibility of
alteration be negated. Id. If there is only speculation that tampering or
alteration occurred, it is proper to admit the evidence and allow any
doubt to go to its weight rather than its admissibility. Id.
Mitchell, 235 P.3d at 657-58. It then found no error in the admission of the DNA
Evidence at the resentencing established that [Petitioner] admitted
to masturbating on or near the deceased’s body and that the semen found
on the deceased’s body could have only come from ejaculate onto the
deceased’s body or the sheet in which her body was carried from the
crime scene. [Petitioner] offers only speculation that some sort of
tampering or substitution of evidence occurred prior to the time Gilchrist
sent the evidence to Wraxall. Therefore, any doubts about the credibility
of the evidence went to its weight not its admissibility.
Id. at 658.
The standard of review which the Court applies to this claim is one of
fundamental fairness. The question, viewed through the lens of AEDPA deference, is
whether the OCCA’s application of its own evidentiary chain of custody rule denied
Petitioner a fundamentally fair trial. It did not. On cross-examination, defense
counsel questioned Mr. Wraxall about the origin of the pubic hair stain, emphasizing
that it came from Ms. Gilchrist. Defense counsel also brought out issues relating to
Ms. Gilchrist’s reliability, and the simple fact that when Mr. Wraxall receives
evidence, he does not know its integrity, i.e., how it was collected, handled, and
preserved (Tr. IV, 876-83, 887). The jury was therefore made aware of Petitioner’s
concerns about the evidence and could consider the same in determining what weight
to give it. But even beyond this, there is Petitioner’s own admission that he
masturbated on Ms. Scott’s body, evidence which clearly validates Mr. Wraxall’s
findings and supports the admission of the evidence (Tr. VI, 1154; Court’s Exhibit 9,
p. 1264). See Petition, pp. 12, 71 n.13 (Petitioner’s acknowledgment that the DNA
evidence corroborated his testimony). Given these circumstances, the admission of
DNA evidence did not deny Petitioner a fundamentally fair trial and the OCCA did
not act unreasonably when it found no error in the admission of the evidence. Ground
XI is denied.
For the reasons set forth above, the Court finds that Petitioner is not entitled to
relief on any of the general evidentiary challenges alleged in his Grounds IX, X, and
XI. All of these grounds are therefore denied.
Ground XII: Double Jeopardy.
In Ground XII, Petitioner contends that a double jeopardy violation occurred
when the State was allowed to pursue the continuing threat aggravator in his second
resentencing proceeding. Because the jury rejected the continuing threat aggravator
in his first resentencing, Petitioner argues that jeopardy attached and the State was
prevented from seeking this aggravator a second time.22
Petitioner raised this claim on direct appeal. Relying on its decisions in Hogan
v. State, 139 P.3d 907 (Okla. Crim. App. 2006), and Harris v. State, 164 P.3d 1103
(Okla. Crim. App. 2007), the OCCA denied relief. As additional support for its
denial, the OCCA also found that Petitioner’s claim lacked merit because the jury
For the same reasons stated with respect to Ground X, it is unnecessary to address
Respondent’s procedural bar assertion here as well. See n.19, supra.
rejected the continuing threat aggravator in his second resentencing. Mitchell, 235
P.3d at 662.
In Hogan, the defendant’s first trial resulted in a death sentence supported by
the jury’s finding that the murder was especially heinous, atrocious, or cruel.
Although alleged, this first jury did not find the continuing threat aggravator. When
Hogan was retried, the State alleged not only the especially heinous, atrocious, or
cruel aggravator but also the continuing threat aggravator. Like the first jury, the
second jury rejected the continuing threat aggravator but returned a death sentence
because the murder was especially heinous, atrocious, or cruel. Like Petitioner,
Hogan “argue[d] that the failure of his first jury to unanimously find he presented a
continuing threat was an effective acquittal of that aggravator which terminated
jeopardy, invoked the protection of the double jeopardy clause, and prohibited the
State from charging it again at his second trial.” Hogan, 139 P.3d at 926. Applying
Supreme Court authority, the Hogan Court denied relief as follows:
In Poland v. Arizona, 476 U.S. 147, 106 S.Ct. 1749, 90 L.Ed.2d
123 (1986) the Supreme Court considered “whether the Double Jeopardy
Clause bars a further capital sentencing proceeding when, on appeal from
a sentence of death, the reviewing court finds the evidence insufficient
to support the only aggravating factor on which the sentencing judge
relied, but does not find the evidence insufficient to support the death
penalty.” Poland, 476 U.S. at 148, 106 S.Ct. at 1751. The Poland court
affirmed the “usual” rule that a capital defendant who obtains reversal of
his conviction on appeal has had his original conviction nullified and the
slate wiped clean. Id. at 152, 106 S.Ct. at 1753. If convicted again, he
may be subjected to the full range of punishment provided by law. Id.
The clean slate rule does not apply, however, if the defendant has been
acquitted because the prosecution did not prove its case for the death
penalty. Id. A defendant is acquitted of the death penalty whenever a jury
agrees or an appellate court decides that the prosecution has failed to
prove its case for the death penalty. See Bullington v. Missouri, 451 U.S.
430, 101 S.Ct. 1852, 68 L.Ed.2d 270 (1981)(defendant sentenced to life
by a capital sentencing jury has been acquitted of the death penalty and
the Double Jeopardy Clause forbids the state from seeking the death
penalty on retrial in the event the defendant obtains reversal of his
conviction); Arizona v. Rumsey, 467 U.S. 203, 104 S.Ct. 2305, 81
L.Ed.2d 164 (1984)(sentencer’s finding, albeit erroneous, that no
aggravating circumstance is present resulting in the imposition of a life
sentence is an acquittal barring a second capital sentencing proceeding).
The court held in Poland that neither the sentencer nor the
reviewing court had decided that the prosecution had not proved its case
for the death penalty and thus acquitted the petitioners because both had
found evidence of an aggravating circumstance. Poland, 476 U.S. at
154–55, 106 S.Ct. at 1754–55. The Poland court rejected the argument
that a capital sentencer’s failure to find a particular aggravating
circumstance alleged by the prosecution constitutes an “acquittal” of that
circumstance for double jeopardy purposes. Poland, 476 U.S. at 155–56,
106 S.Ct. at 1755. The court refused to “view the capital sentencing
hearing as a set of minitrials on the existence of each aggravating
circumstance” because aggravating circumstances are not separate
penalties or offenses; rather they are the standards that guide the
sentencer’s choice between the alternative verdicts of death and life
imprisonment. Id. at 156, 106 S.Ct. at 1755. Poland followed the usual
rule, holding the State is not barred from seeking the death penalty on
retrial of a defendant who has not been acquitted of the death penalty and
the State may present evidence of any aggravating circumstance
supported by the record.
Nothing in Sattazahn [v. Pennsylvania, 537 U.S. 101 (2003),]
abrogates Poland’s holding and nothing supports Hogan’s argument
here. Sattazahn argued that his judge-imposed life sentence in lieu of a
non-finding of death by his jury was a jeopardy-terminating event. The
Sattazahn majority disagreed and found that a jury’s inability to reach a
decision in the penalty phase of a capital trial resulting in the imposition
of a statutorily mandated life sentence did not constitute an “acquittal”
of the offense the Supreme Court now terms “murder plus aggravating
circumstances” sufficient to bar the prosecution from seeking the death
penalty again on retrial. Sattazahn, 537 U.S. at 112, 123 S.Ct. at 740. The
mere imposition of a life sentence is not an acquittal of the death penalty
for double jeopardy purposes. To bar the State from seeking the death
penalty on retrial, there must be an affirmative decision by the
defendant’s first jury not to impose a death sentence, i.e. an acquittal of
the death penalty on the merits. Id. at 106–07, 123 S.Ct. at 737. Because
Sattazahn’s first jury had deadlocked without reaching a decision
regarding aggravating circumstances and the trial court thereafter
imposed a life sentence, Sattazahn could not establish that the jury had
“acquitted” him during his first capital-sentencing proceeding.
Consequently, jeopardy had not terminated; Sattazahn’s successful
appeal wiped the slate clean and the state was permitted to seek the death
penalty upon retrial. Sattazahn, 537 U.S. at 112–13, 123 S.Ct. at 740.
Unlike Sattazahn who appealed a life sentence imposed by a judge
by operation of law, Hogan appeals a death sentence imposed by a jury
on a verdict of guilty on murder plus aggravating circumstances. By
sentencing Hogan to death at his first trial on a finding the murder was
especially heinous, atrocious, or cruel, Hogan’s jury clearly did not
acquit him of murder plus aggravating circumstances. Therefore, he
cannot make a claim of entitlement to a life sentence on the basis of
either acquittal or operation of law. In the absence of a
jeopardy-terminating event entitling him to a life sentence (i.e., acquittal
by jury on aggravating circumstances and imposition of life sentence or
finding of insufficient evidence by appellate court of all aggravators),
retrial for murder plus aggravating circumstances is not barred on double
Contrary to his claim, Part III of the Sattazahn opinion (joined by
three justices) does not support his position that his first jury effectively
acquitted him of the continuing threat aggravator. Part III of that opinion
discusses the application of Apprendi v. New Jersey[, 530 U.S. 466
(2000),] and Ring v. Arizona[, 536 U.S. 584 (2002),] in the context of
capital sentencing double jeopardy claims. Because aggravating
circumstances operate as the functional equivalent of an element of a
greater offense, murder is a distinct lesser included offense of murder
plus one or more aggravating circumstances. Murder exposes a
defendant to a maximum sentence of life imprisonment; murder plus one
or more aggravators increases the maximum sentence to death. The Sixth
Amendment requires that a jury, not a judge, find the existence of any
aggravating circumstances beyond a reasonable doubt. In Part III of
Sattazahn, a plurality of the court agreed:
In the post-Ring world, the Double Jeopardy Clause can, and
must, apply to some capital-sentencing proceedings consistent
with the text of the Fifth Amendment. If a jury unanimously
concludes that a State has failed to meet its burden of proving the
existence of one or more aggravating circumstances,
double-jeopardy protections attach to that “acquittal” on the
offense of “murder plus aggravating circumstance(s).” Thus,
[Arizona v.] Rumsey [467 U.S. 203, 104 S.Ct. 2305, 81 L.Ed.2d
164 (1984)] was correct to focus on whether a factfinder had made
findings that constituted an “acquittal” of the aggravating
circumstances; but the reason that issue was central is not that a
capital-sentencing proceeding is “comparable to a trial,” . . . but
rather that “murder plus one or more aggravating circumstances”
is a separate offense from “murder” simpliciter.
Sattazahn, 537 U.S. at 112, 123 S.Ct. at 740.
Hogan’s first jury found that the murder was especially heinous,
atrocious, or cruel and convicted him of murder plus aggravating
circumstance(s). Even were we to treat each aggravator as a separate
offense as Hogan desires rather than distinguishing as separate offenses
murder simpliciter and murder plus aggravating circumstance(s), the
only thing we know about Hogan’s first jury is that it did not
unanimously find that the continuing threat aggravator existed beyond
a reasonable doubt. This is not the same as a unanimous finding that the
aggravator does not exist at all; some jurors may have found it while
others did not. Jeopardy does not attach and bar retrial in that situation.
See Sattazahn, 537 U.S. at 109, 123 S.Ct. at 738 (stating a retrial
following a hung jury normally does not violate the Double Jeopardy
For that reason, this case does not implicate the concerns of
protecting the finality of acquittals present in Bullington and Rumsey.
There is no reason to shield a defendant in Hogan’s position from further
litigation; further litigation is the only hope he has. Poland, 476 U.S. at
156, 106 S.Ct. at 1756. Neither does Hogan’s case present the Hobson’s
choice discussed by the Sattazahn dissent. Sattazahn, 537 U.S. at 126,
123 S.Ct at 748 (Ginsburg, J., dissenting)(noting that a defendant in
Sattazahn’s position must relinquish either his right to file a potentially
meritorious appeal, or his state-granted entitlement to avoid the death
penalty). When Hogan appealed and succeeded in overturning his
murder conviction and vacating his death sentence, the slate was wiped
clean. The State was not barred from retrying Hogan on murder plus
aggravating circumstances and presenting evidence to support the
continuing threat aggravator.
Hogan, 139 P.3d at 926-30 (footnotes omitted).
As repeatedly stated herein, in order for Petitioner to obtain relief for any of his
claims he must show that the OCCA rendered a decision that is contrary to or an
unreasonable application of Supreme Court law. In rejecting Petitioner’s double
jeopardy claim, the OCCA relied on Hogan wherein it recited and applied relevant
Supreme Court authority to deny a claim which is identical to Petitioner’s, and the
Court finds no fault with the OCCA’s reasoned analysis. See Hanson v. Sherrod, No.
10-CV-0113-CVE-TLW, 2013 WL 3307111, at *22-24 (N.D. Okla. July 1, 2013)
(concluding that the OCCA did not unreasonably apply Poland based on the reasoning
employed in Hogan). Accordingly, no relief is warranted on Petitioner’s Ground XII.
Ground XIV: Jury Question.
In Ground XIV, Petitioner asserts that he is entitled to a new trial because the
jury did not have all of the information it needed to make a reliable sentencing
determination. Petitioner’s claim is based on a question the jury sent out during
deliberations. The actual jury note is not contained in the record, and although the
trial transcript does not reflect the exact question asked, it is clear from the in camera
discussion that the jury was inquiring about the nature of Petitioner’s murder
conviction, i.e., whether it was premeditated. At the urging of Petitioner’s counsel,
the trial court did not answer the jury’s question. The jurors were told that they had
all of the law and evidence it needed to return a verdict (Tr. IX, 1652-54). Petitioner
now contends that because the jury questioned his mental state and because “[t]he jury
was not given an instruction allowing them to take that concern into consideration
while weighing aggravating and mitigating circumstances,” at least one member of the
jury questioned his underlying guilt and therefore both his conviction and sentence
must be vacated. Petition, pp. 70-71.
In denying Petitioner relief on this claim, the OCCA held as follows:
In Proposition XII, [Petitioner] contends the trial court erred in
failing to instruct the jury to give consideration to any questions it might
have concerning [his] guilt of first degree murder. His claim is based on
a note received from the jury during deliberations asking whether [he]
had been convicted of premeditated murder. [Petitioner] asserts the note
indicates that at least one juror harbored some doubt regarding the
murder conviction. We review only for plain error as this objection is
being raised for the first time on appeal. Bernay v. State, 1999 OK CR
37, ¶ 49, 989 P.2d 998, 1012.
Resentencing proceedings should not be viewed as a second
chance at revisiting the issue of guilt. Rojem v. State, 2006 OK CR 7, ¶
56, 130 P.3d 287, 299. Evidence relating to residual doubt is “not
relevant to the defendant’s character, record, or any circumstance of the
offense.” Id. quoting Bernay, 1999 OK CR 37, ¶ 50, 989 P.2d at 1012.
To tell the jury as defense counsel did in opening statement that
[Petitioner] had been convicted of first degree murder, yet later tell them
to consider residual doubt as mitigation evidence would be inconsistent
and confusing. Rojem, 2006 OK CR 7, ¶ 55, 130 P.3d at 298. We find
no plain error in the trial court’s failure to instruct the jury on residual
Mitchell, 235 P.3d at 660. Petitioner has not met his burden of showing that this
decision is contrary to or unreasonable application of Supreme Court law.
Petitioner’s guilt was determined by a jury in 1992, and his resentencing
proceedings did not open an avenue for its reconsideration. Throughout the second
resentencing, the jury was continually advised and reminded that Petitioner had
already been convicted of first degree murder and that its only job was to determine
his sentence (O.R. VII, 1346; Tr. I, 56-57, 59; Tr. II, 174, 358-59, 361-62; Tr. III, 529,
641; Tr. IX, 1570-71). During voir dire particularly, the jury was told in no uncertain
terms that Petitioner had committed an intentional act and that he had absolutely no
defense to it. Among other admissions, defense counsel told the jury that “there was
no legal justification”; “it wasn’t an accident”; ‘it wasn’t self-defense”; “[Petitioner]
wasn’t insane”; and “he wasn’t drunk” (Tr. II, 395; Tr. III, 518, 521). Given these
circumstances, which demonstrate a clear explanation of Petitioner’s crime and the
jury’s sole task of determining punishment, the reason for the jury’s question is
unclear.23 However, in response to Petitioner’s claim that the question was an
indication that at least one juror “harbored some doubt regarding some aspect of [his]
murder conviction,” the Court cannot fault the OCCA for denying Petitioner relief
because residual doubt was not relevant to the jury’s sentencing determination. See
Brief of Appellant, Case No. D-2008-57, p. 61.
The Supreme Court has “never held that capital defendants have an Eighth
Amendment right to present ‘residual doubt’ evidence at sentencing.” Abdul-Kabir
v. Quarterman, 550 U.S. 233, 250-51 (2007) (citing Oregon v. Guzek, 546 U.S. 517,
523-27 (2006)). In the Guzek opinion, the Supreme Court discussed its Eighth
Amendment case law, giving particular attention to its holding in Lockett v. Ohio, 438
U.S. 586 (1978). Guzek, 546 U.S. at 523-24. In Lockett, the Supreme Court held that
“the Eighth and Fourteenth Amendments require that the sentencer, in all but the
rarest kind of capital case, not be precluded from considering, as a mitigating factor,
any aspect of a defendant’s character or record and any of the circumstances of the
offense that the defendant proffers as a basis for a sentence less than death.” Lockett,
438 F.3d at 604 (footnotes omitted). However, despite this broad statement in Lockett
The trial court even questioned “the idiot . . . who wrote the question” (Tr. IX, 1654).
governing the admission of mitigating evidence, the Supreme Court in Guzek found
that it had never construed the Eighth Amendment as encompassing the right to
present evidence of residual doubt. Guzek, 546 U.S. at 523, 525. Because the
OCCA’s decision is in line with both Abdul-Kabir and Guzek, Petitioner cannot rely
upon them for relief.
Petitioner’s reliance on the Supreme Court’s decisions in Kennedy v. Louisiana,
554 U.S. 407 (2008), Spaziano v. Florida, 468 U.S. 447 (1984), overruled on other
grounds by Hurst v. Florida, 577 U.S.___, 136 S. Ct. 616 (2016), and Woodson v.
North Carolina, 428 U.S. 280 (1976), are not helpful to him either because he has not
shown that the OCCA’s decision is in conflict with these holdings. In Kennedy, 554
U.S. at 413, the Supreme Court found that it was constitutionally impermissible to
sentence a defendant to death for raping a child “where the crime did not result, and
was not intended to result, in death of the victim.” Kennedy is clearly inapplicable to
the present case because Ms. Scott was murdered, and Petitioner’s first jury found
beyond a reasonable doubt that her murder was intended. As for Spaziano, Petitioner
cites it for the proposition that a capital sentencing determination requires the jury to
be informed “on the facts and circumstances of the individual and his crime.”
Spaziano, 468 U.S. at 460 n.7. However, in his second resentencing proceeding, the
State presented evidence which informed the jury of the circumstances of Petitioner’s
crime and why Petitioner was deserving of the death penalty, and likewise Petitioner
was given the opportunity to challenge this evidence through cross-examination and
to present his case for mitigation. And finally, Woodson, 428 U.S. at 305, stands for
the general principal that capital punishment proceedings require heightened
reliability, but because this general principal is inherently subsumed in the Supreme
Court’s decision in Guzek, the Supreme Court case which directly addresses the
specific issue raised by Petitioner, the Court finds that Woodson offers Petitioner no
In summary, for the reasons set forth above, the Court finds that Petitioner’s
Ground XIV is without merit. Because Petitioner has not shown that the OCCA’s
decision is contrary to or an unreasonable application of Supreme Court law, relief is
Ground XV: Victim Impact Testimony.
In Ground XV, Petitioner raises three errors with respect to the victim impact
testimony presented at his second resentencing proceeding. All three of these claims
were presented to the OCCA and denied on the merits. Mitchell, 235 P.3d at 660-61;
Mitchell, 136 P.3d at 703-04. Therefore, in order to prevail on any of them, Petitioner
must show that the OCCA’s decision is contrary to or an unreasonable application of
Supreme Court law. Because Petitioner has not made this showing, the Court finds
that relief must be denied.
In his first claim, Petitioner asserts that the victim impact evidence presented
through Ms. Scott’s parents and her brother violated Payne v. Tennessee, 501 U.S.
808 (1991). He argues that Payne permits only a quick glimpse of the victim’s life
and that testimony which focuses “solely on the emotional impact of the family’s
loss” is improper. Petition, p. 73.
In Payne, the Supreme Court held that the Eighth Amendment does not erect
a per se bar to the admission of victim impact evidence. “A State may legitimately
conclude that evidence about the victim and about the impact of the murder on the
victim’s family is relevant to the jury’s decision as to whether or not the death penalty
should be imposed.” Payne, 501 U.S. at 827. While this evidence does not violate the
Eighth Amendment, the Court in Payne acknowledged that a Fourteenth Amendment
violation may be found where the evidence introduced “is so unduly prejudicial that
it renders the trial fundamentally unfair.” Id. at 825.
In denying Petitioner relief on this claim, the OCCA held as follows:
Three victim impact witnesses testified at the re-sentencing—the
deceased’s father, mother, and brother. This testimony comprised only
eleven pages out of the 1,664 pages of transcript. The victim impact
statements appear to be substantially the same as those given in the first
re-sentencing trial. Cognizant of our review of the evidence presented in
the first re-sentencing proceeding, the trial court reviewed the statements
in camera and significantly pared them down. Having thoroughly
reviewed the victim impact statements given in this case, we find they
did not focus too much on the emotional aspects of the decedent’s death
or her family’s life prior to her death. Therefore, the evidence did not
violate due process or deprive [Petitioner] of a fair sentencing
Mitchell, 235 P.3d at 660. Because the OCCA’s analysis is reasonable, and because
it stands a far distance from the extreme malfunctions the AEDPA is meant to correct,
no relief is warranted for this claim. Richter, 562 U.S. at 102.
Petitioner’s next claim is that “[v]ictim impact evidence acts as a ‘superaggravator’ which negates or impermissibly diminishes the narrowing function that
aggravating circumstances are constitutionally required to provide under the Eighth
and Fourteenth Amendments.” Petition, p. 73 (citing Lockett). The OCCA rejected
this argument, and given the Supreme Court’s decision in Payne, Petitioner cannot
show that its determination is unreasonable. Mitchell, 235 P.3d at 660; Mitchell, 136
P.3d at 703 & n.168 (citing Cargle v. State, 909 P.2d 806, 828 n.15 (Okla. Crim. App.
1995)). It is clear that Petitioner’s argument here is for a blanket exclusion. By
employing the term “super-aggravator,” Petitioner argues that victim impact evidence
should never be allowed because it functions outside of the jury’s assessment and
weighing of the aggravating and mitigating circumstances, “tipping the scales in favor
of death.” Petition, p. 74. Without a doubt, Payne forecloses Petitioner’s argument.
As long as victim impact evidence operates within the parameters of the Due Process
Clause and does not unduly infringe upon a defendant’s right to a fundamentally fair
trial, the State is allowed to introduce the evidence and the jury is allowed to consider
it as it determines an appropriate sentence. Payne, 501 U.S. at 824-25, 827.
Petitioner’s final challenge is to the instruction given to the jury regarding its
consideration of the victim impact evidence that was presented. Petitioner takes issue
with the following language: “It [victim impact evidence] is intended to remind you
as the sentencer that just as the defendant should be considered as an individual, so too
the victims are individuals whose death may represent a unique loss to society and the
family” (O.R. VII, 1367). Petitioner’s problem with this language is its reference to
society’s loss. Although Petitioner acknowledges that it reflects the verbiage used in
Payne, Petitioner contends that it exceeds what is permitted by Oklahoma statute.
Petition, pp. 74-75.
By acknowledging that the instruction comports with Payne, Petitioner has
undercut his request for relief. At most, Petitioner has presented a claim of state law
error; however, this Court is not empowered to order relief for violations of state law.
Hancock v. Trammell, 798 F.3d 1002, 1034 (10th Cir. 2015) (citing Estelle v.
McGuire, 502 U.S. 62, 67 (1991), for the proposition that “[f]ederal courts cannot
grant habeas relief based on a state court’s erroneous application of state law”). In
addition, the Court is equally mindful that it is bound by the OCCA’s interpretation
of its own law. House v. Hatch, 527 F.3d 1010, 1028 (10th Cir. 2008). In denying
Petitioner relief, the OCCA specifically found that the society language contained in
the victim impact instruction was not only consistent with Payne, but permissible
under Oklahoma law.
Oklahoma law does strictly limit who can present victim impact
evidence, i.e., the victim or members of the victim’s immediate family
or a representative of the victim or the family. Oklahoma law also
constrains the content of such testimony, through our statutes and our
caselaw interpreting these statutes and relevant U.S. Supreme Court
decisions. Yet nothing within this governing authority prohibits evidence
about how the victim’s death represents a loss to society, so long as this
evidence is otherwise appropriate. We recognize, as did the Payne Court,
that a capital sentencing should not be focused upon the comparative
“worth” to society of the victim whose life was taken. Nevertheless, we
also recognize that providing even a brief “glimpse” of the life that the
defendant extinguished will often involve evidence about what kind of
person the victim was–including evidence suggesting the victim’s unique
role in and contributions to society. Similarly, a family member’s
testimony about the impact of a victim’s death on that individual may
also tend to suggest the victim’s special role in society generally.
While such evidence must be carefully evaluated under our
existing standards, victim impact evidence suggesting that a particular
victim was a uniquely valuable member of his or her community and our
society is not per se inadmissible in a capital sentencing proceeding.
Furthermore, we conclude that the single reference to the “loss to
society” within our uniform jury instruction is constitutional and is also
appropriate under Oklahoma law.
Mitchell, 136 P.3d at 703-04 (footnotes omitted). Accordingly, this claim is denied
For the reasons set forth above, the Court denies relief on Petitioner’s Ground
XV. Because Petitioner has failed to show that the OCCA rendered a decision which
is contrary to or an unreasonable application of Supreme Court law, relief under the
AEDPA is foreclosed.
Ground XVI: Prosecutorial Misconduct.
In Ground XVI, Petitioner alleges three instances of prosecutorial misconduct.
Because the OCCA reviewed this claim on the merits, Petitioner’s ability to obtain
relief is contingent upon his showing that the OCCA’s decision is contrary to or an
unreasonable application of the due process standard of review employed by the
Supreme Court to such claims. The Court concludes that he has not met his burden
“Prosecutors are prohibited from violating fundamental principles of fairness,
which are basic requirements of Due Process.” Hanson v. Sherrod, 797 F.3d 810, 843
(10th Cir. 2015). Therefore, when a petitioner alleges prosecutorial misconduct, 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). Evaluating the alleged misconduct in light
of the entire proceeding, the reviewing court must determine “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). In denying Petitioner relief, the OCCA
applied this due process standard. Mitchell, 235 P.3d at 661.
Petitioner’s first complaint concerns the prosecutor’s continual references to
justice. Petitioner argues that the prosecutor’s comments equated justice with a death
sentence and expressed “her personal opinion that death was the only just verdict.”
Petition, p. 76. The majority of Petitioner’s complaint focuses on voir dire and the
prosecutor’s questions to the prospective jurors about whether they believed that the
purpose of the trial was to search for the truth and whether the end result should be
justice. Petitioner makes additional reference to a line of argument in the prosecutor’s
second closing argument wherein the prosecutor reminded the jurors of their answers
to these questions, followed by her submission that based on the crime committed,
death was the appropriate sentence. Petition, pp. 76-77.
Because there was no defense objection to any of these comments, the OCCA
reviewed this claim for plain error. It then denied relief as follows:
A review of the comments made in voir dire does not support
[Petitioner’s] argument. None of the comments equate justice with the
death penalty or express the prosecutor’s personal opinion on the death
penalty. At most, the prosecutor got the prospective jurors to agree that
the trial should be a search for the truth and that the result should be
justice. Other comments suggested that justice might be a sentence other
than death. We find no plain error in the prosecutor’s voir dire
As for closing arguments, the prosecutor’s arguments were based
on the evidence and focused on the jurors’ duty to apply the law and the
evidence and return the appropriate verdict. The comments did not
convey the message that the jury had to vote for the death penalty or that
they were to decide the case based on emotional reaction. We find no
Mitchell, 235 P.3d at 661 (citation omitted). Having thoroughly reviewed the
comments as well, the Court concludes that the OCCA’s assessment of the claim is
both reasonable and accurate. In none of the comments did the prosecutor cross the
equity line and infringe on Petitioner’s ability to receive a fair trial.
Next, Petitioner complains about references to Ms. Scott being raped. As a
result of the appeal of his first resentencing proceeding, the State was only permitted
to use attempted rape (not rape) as the predicate crime for the avoid arrest aggravator
in his second resentencing. Mitchell, 136 P.3d at 677-88. Accordingly, Petitioner
argues that error occurred (1) when his prior testimony was admitted (because it
included his denial that he did not rape or sodomize Ms. Scott) and (2) when the
prosecutor misspoke twice in closing argument and used the term rape instead of
In denying Petitioner relief on this claim, the OCCA found that Petitioner was
not entitled to relief because he had not shown prejudice. The OCCA reasoned that
because the jury did not find the avoid arrest aggravator and because the references
did not impact the jury’s finding of the especially heinous, atrocious, or cruel
aggravator, Petitioner was not denied a fair trial. Mitchell, 235 P.3d at 662. Here
again, the Court finds that the OCCA’s conclusion is reasonable. The fact that the
jury did not find the avoid arrest aggravator is tantamount to the lack of prejudice, and
Petitioner offers no argument challenging this finding.
Finally, Petitioner imputes misconduct to the prosecution based on the amount
of evidence it introduced and how it was presented to the jury. The OCCA denied
relief on this claim with reference to its rejection of Petitioner’s other claims
challenging the admission of evidence, concluding that “the presentation of the
evidence and arguments to the jury were not indicative of prosecutorial misconduct.”
Mitchell, 235 P.3d at 662. Petitioner has not shown how this finding is unreasonable.
In this regard, one must not forget that a prosecutor is still an advocate who is
permitted to “prosecute with earnestness and vigor” and to argue the case from the
State’s point of view. Berger v. United States, 295 U.S. 78, 88 (1935). The
prosecution did so in the present case, and because the OCCA found no error in the
admission of evidence, a claim of prosecutorial misconduct cannot stand.
In conclusion, the Court finds that Petitioner is not entitled to relief on his
Ground XVI because he has not shown that the OCCA unreasonably denied his
allegations of prosecutorial misconduct. Ground XVI is denied.
Ground XVII: Especially Heinous, Atrocious, or Cruel
Petitioner’s Ground XVII is a challenge to the especially heinous, atrocious, or
Petitioner’s first contention is that the aggravator is
unconstitutional. He also argues that once improperly admitted evidence is removed
from consideration, there is insufficient evidence to support it. Petitioner presented
these claims to the OCCA on direct appeal. The OCCA rejected Petitioner’s
challenges to the constitutionality of the aggravator and the supporting evidence and
found sufficient evidence to support it. Mitchell, 235 P.3d at 662-64. Because these
determinations are reasonable, Petitioner’s Ground XVII must be denied.
Regarding Petitioner’s challenge to the constitutionality of the aggravator,
Petitioner has not shown that the OCCA unreasonably denied this claim. Mitchell,
235 P.3d at 662. The Tenth Circuit has repeatedly rejected similar challenges.
Wilson, 536 F.3d at 1108 (“The Tenth Circuit has routinely upheld the
constitutionality of the heinous, atrocious, or cruel aggravator so long as it includes
the ‘torture or serious physical abuse’ limitation.”); Miller v. Mullin, 354 F.3d 1288,
1300 (10th Cir. 2004) (listing several cases in which the Tenth Circuit has upheld
Oklahoma’s heinous, atrocious, or cruel aggravator since it was found
unconstitutionally vague in Maynard v. Cartwright, 486 U.S. 356 (1988));
Workman v. Mullin, 342 F.3d 1100, 1115-16 (10th Cir. 2003) (“We have specifically
found Oklahoma’s new formulation to be constitutional since this limiting language
was enacted.”); Medlock v. Ward, 200 F.3d 1314, 1321 (10th Cir. 2000) (“We have
held that the ‘heinous, atrocious, or cruel’ aggravating circumstance as narrowed by
the Oklahoma courts after Maynard to require torture or serious physical abuse
characterized by conscious suffering can provide a principled narrowing of the class
of those eligible for death.”).
As for the allegedly improper evidence supporting the aggravator, Petitioner
refers to the evidentiary claims he presents in his Grounds IX and X, supra. However,
the OCCA found no error in the admission of this evidence and this Court has likewise
What remains then is Petitioner’s attack on the sufficiency of the evidence
supporting the aggravator. When reviewing the sufficiency of the 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.”
Mitchell, 235 P.3d at 663-64. 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 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).
In determining Petitioner’s claim, the OCCA set forth the following standard
for the aggravator:
To prove the “especially heinous, atrocious or cruel” aggravator, the
State must show that the murder of the victim was preceded by torture
or serious physical abuse, which may include the infliction of either great
physical anguish or extreme mental cruelty. After making the above
determination, the attitude of the killer and the pitiless nature of the
crime can also be considered.
Mitchell, 235 P.3d at 664 (citation omitted). It then found the aggravator satisfied by
the following evidence:
The decedent was first assaulted by [Petitioner] in the Center’s
library and in a desperate attempt to get away from him, ran for the
innermost room of the Center’s staff office where she could lock the
door behind her and phone for help. However, before she could secure
herself behind the locked door, [Petitioner] forced his way into the office
and a violent struggle ensued. The decedent’s clothing was removed and
she was beaten by [Petitioner] using his fist, a school compass, a golf
club and a wooden coat rack. The decedent moved and attempted to
defend herself throughout the attack until [Petitioner] inflicted the final
blow to her head with the coat rack. This evidence clearly shows the
decedent’s conscious physical suffering as a result of [Petitioner’s]
repeated physical assaults to her body. Further, her great mental anguish
is evident as she surely realized her options for getting past [Petitioner]
and out of the office to safety were dwindling.
Considering the unprovoked manner of the killing in this case, the
conscious suffering of the decedent, both physically and mentally, and
the attitude of the killer as evidenced by [Petitioner’s] attacks upon a
victim whom he clearly overpowered and who did not have the means
to adequately defend herself, the jury’s finding of the “heinous, atrocious
or cruel” aggravator was supported by sufficient evidence.
Id. Petitioner simply has no argument that this finding is unreasonable. Even beyond
a finding that the OCCA’s determination is reasonable under the AEDPA’s double
deference standard, the evidence that Ms. Scott’s murder was especially heinous,
atrocious, or cruel is so clear and undisputed that this Court has no doubt that the
jury’s finding of this aggravating circumstance is supported by the constitutionally
sufficient evidence. Ground XVII is denied.
Ground XVIII: Jury Instructions.
Petitioner’s Ground XVIII presents three challenges to the jury instructions.24
For the following reasons, none entitle Petitioner to habeas relief.
In an effort to “preserve them all,” Petitioner puts forth a laundry list of other issues at the
close of this ground for relief. Petition, pp. 83-84. These claims are hereby denied without
consideration of their merit, because they are not, in any sense, meaningfully articulated.
“A habeas petitioner who seeks to overturn his conviction based on a claim of
error in the jury instructions faces a significant burden.” Ellis v. Hargett, 302 F.3d
1182, 1186 (10th Cir. 2002). “Unless the constitution mandates a jury instruction be
given, a habeas petitioner must show that, in the context of the entire trial, the error
in the instruction was so fundamentally unfair as to deny the petitioner due process.”
Tiger v. Workman, 445 F.3d 1265, 1267 (10th Cir. 2006).
It is well established that a criminal defendant has a due process
right to a fair trial. E.g., Drope v. Missouri, 420 U.S. 162, 172, 95 S.Ct.
896, 43 L.Ed.2d 103 (1975). Further, the Supreme Court has
acknowledged that an instructional error can, under certain
circumstances, result in a violation of a defendant’s right to a fair trial.
See Henderson v. Kibbe, 431 U.S. 145, 154, 97 S.Ct. 1730, 52 L.Ed.2d
203 (1977); Cupp v. Naughten, 414 U.S. 141, 147, 94 S.Ct. 396, 38
L.Ed.2d 368 (1973). Importantly, however, the Court has stated that
“[t]he burden of demonstrating that an erroneous instruction was so
prejudicial that it will support a collateral attack on the constitutional
validity of a state court’s judgment is even greater than the showing
required to establish plain error on direct appeal.” Henderson, 431 U.S.
at 154, 97 S.Ct. 1730. “The question in such a collateral proceeding,” the
Court has stated, “is whether the ailing instruction by itself so infected
the entire trial that the resulting conviction violates due process,” and
“not merely whether the instruction is undesirable, erroneous, or even
universally condemned . . . .” Id. (internal quotation marks and citations
Cummings v. Sirmons, 506 F.3d 1211, 1240 (10th Cir. 2007).
Petitioner’s first complaint is that although the jury was instructed that it had
to consider the aggravating circumstances before it could impose the death penalty,
the instructions did not impose the same mandatory consideration of the mitigating
circumstances. Thus, Petitioner asserts that “[t]he permissive language of the uniform
jury instructions improperly allowed the jury the option of ignoring mitigating
circumstances altogether.” Petition, p. 82.
In denying Petitioner relief, the OCCA found that the quoted language upon
which Petitioner based this claim was not contained in the instructions given to the
jury. Therefore, Petitioner’s assertion that error occurred when the jury was instructed
that mitigating evidence “‘may be considered’”25 was completely baseless. Mitchell,
235 P.3d at 664 (emphasis added). This holding is of course reasonable, which
explains why Petitioner has corrected26 the quoted language to reflect what the jury
was actually told in his second resentencing proceeding. Petition, p. 82. However,
with this correction, the very substance of the claim evaporates. Petitioner’s reference
is now to a general instruction defining what mitigating circumstances are. There is
no language in this instruction that gives the jury the option of not considering his
mitigation evidence. In fact, it even states that it is up to the jury to determine what
circumstances are mitigating and that mitigating circumstances do not have to meet
the reasonable doubt standard before being considered (O.R. VII, 1359). In other
instructions, the jury was also advised (1) of the circumstances that Petitioner believed
were mitigating, while being told that it was not confined to this list but could
consider any other circumstances it deemed mitigating; and (2) that before returning
a death sentence, it must first find that the aggravating circumstances outweigh the
mitigating ones, but that even so, that it was not required to impose a sentence of
death (O.R. VII, 1360-64). Reviewing the instructions as a whole, it is clear that they
did not employ the permissive language Petitioner objects to and the instructions did
not hinder the jury’s consideration of Petitioner’s mitigating evidence.
The record reflects that this language was a part of the instructions to the jury in
Petitioner’s first trial, but not in the second resentencing proceeding (O.R. I, 71).
Respondent asserts that this correction equates to a new claim which is unexhausted and
subject to a procedural bar; however, he also acknowledges that the new claim may be dismissed
on the merits despite the lack of exhaustion. Response, p. 112. Because the claim is clearly without
merit, the Court finds that dismissal on the merits is the easier course.
Petitioner’s next complaint is with the uniform instruction OUJI-CR (2d) 4-76,
which was given to his jury and provides in pertinent part:
Should you unanimously find that one or more aggravating
circumstances existed beyond a reasonable doubt, you are authorized to
consider imposing a sentence of death.
If you do not unanimously find beyond a reasonable doubt that one or
more of the aggravating circumstances existed, you are prohibited from
considering the penalty of death. In that event, the sentence must be
imprisonment for life without the possibility of parole or imprisonment
for life with the possibility of parole.
(O.R. VII, 1355). Petitioner asserts that this instruction is erroneous because it
implies that the jury could only give a life sentence if it did not find any aggravating
circumstances. Petition, p. 82. On direct appeal, the OCCA found no merit to the
claim. Mitchell, 235 P.3d at 664 (citing Bryson v. State, 876 P.2d 240 (Okla. Crim.
App. 1994). In light of Tenth Circuit authority rejecting this very claim, the Court
finds that Petitioner has not shown that the OCCA’s denial of relief is unreasonable.
Fox v. Ward, 200 F.3d 1286, 1300-01 (10th Cir. 2000); Bryson v. Ward, 187 F.3d
1193, 1206-07 (10th Cir. 1999); Duvall v. Reynolds, 139 F.3d 768, 789-91 (10th Cir.
Petitioner’s third challenge to the instructions is to another uniform instruction,
OUJI-CR (2d) 4-80, which was given to his jury. This instruction states as follows:
If you unanimously find that one or more of the aggravating
circumstances existed beyond a reasonable doubt, the death penalty shall
not be imposed unless you also unanimously find that any such
aggravating circumstance or circumstances outweigh the finding of one
or more mitigating circumstances. Even if you find that the aggravating
circumstances outweigh the mitigating circumstances, you may impose
a sentence of imprisonment for life with the possibility of parole or
imprisonment for life without the possibility of parole.
(O.R. VII, 1364). Petitioner contends that this instruction is erroneous because it
conflicts with a state statute, Okla. Stat. tit. 21, § 701.11, and because it permits the
imposition of a death sentence upon a simple weighing of the aggravating and
mitigating circumstances. Petition, p. 83. The OCCA rejected this claim on the merits
and Petitioner has failed to show that its rejection was unreasonable. Mitchell, 235
P.3d at 664.
In Kansas v. Marsh, 548 U.S. 163, 173-74 (2006), the Supreme Court found
that in order for a state capital sentencing scheme to be deemed constitutional, it must
meet only two qualifications. It “must 1) rationally narrow the class of death-eligible
defendants; and (2) permit a jury to render a reasoned, individualized sentencing
determination based on a death-eligible defendant’s record, personal characteristics,
and the circumstances of his crime.” Id. If these two qualifications are met, Supreme
Court precedent makes it clear “that a State enjoys a range of discretion in imposing
the death penalty, including the manner in which aggravating and mitigating
circumstances are to be weighed.” Id. at 174. The Supreme Court has “‘never held
that a specific method for balancing mitigating and aggravating factors in a capital
sentencing proceeding is constitutionally required.’” Id. at 175 (quoting Franklin v.
Lynaugh, 487 U.S. 164, 179 (1988)).
In accordance with Marsh, the Court finds that Petitioner has not shown that
OUJI-CR (2d) 4-80 is constitutionally infirm. Oklahoma is acting within the
discretion afforded it by the Supreme Court. In addition, the Court is unpersuaded by
Petitioner’s argument that the instruction is in conflict with Section 701.11. The
OCCA has specifically rejected Petitioner’s argument, and as a matter of state law, the
Court is bound by its interpretation. House, 527 F.3d at 1028; Fields v. State, 923
P.2d 624, 638 (Okla. Crim. App. 1996); Allen v. State, 871 P.2d 79, 101 (Okla. Crim.
For the foregoing reasons, the Court finds that Petitioner has failed to establish
his entitlement to relief based on alleged faulty instructions. Accordingly, Petitioner’s
Ground XVIII is denied.
Ground XX: Aggravating Circumstances.
In Ground XX, Petitioner asserts that Jones v. United States, 526 U.S. 227
(1999), Apprendi v. New Jersey, 530 U.S. 466 (2000), and Ring v. Arizona, 536 U.S.
584 (2002), require Oklahoma capital juries to find beyond a reasonable doubt that the
aggravating circumstances outweigh the mitigating circumstances. Petitioner raised
this claim on direct appeal but was denied relief. Mitchell, 235 P.3d at 665. In light
of the numerous circuit and district court opinions rejecting this very claim, the Court
finds that Petitioner has not shown that the OCCA’s rejection of this claim is contrary
to or an unreasonable application of Supreme Court law. Lockett, 711 F.3d at 125255; Matthews v. Workman, 577 F.3d 1175, 1195 (10th Cir. 2009); Lay v. Trammell,
No. 08-CV-617-TCK-PJC, 2015 WL 5838853, at *54-56 (N.D. Okla. Oct. 7, 2015);
Rojem v. Trammell, No. CIV-10-172-M, 2014 WL 4925512, at *18 (W.D. Okla. Sept.
30, 2014); Smith v. Trammell, No. CIV-09-293-D, 2014 WL 4627225, at *50 (W.D.
Okla. Sept. 16, 2014); Ryder ex rel. Ryder v. Trammell, No. CIV-05-0024-JHPKEW, 2013 WL 5603851, at *35 (E.D. Okla. Oct. 11, 2013); Fitzgerald v. Trammell,
No. 03-CV-531-GKF-TLW, 2013 WL 5537387, at *59 (N.D. Okla. Oct. 7, 2013);
Jackson v. Workman, No. 08-CV-204-JHP-FHM, 2013 WL 4521143, at *27 (N.D.
Okla. Aug. 26, 2013); Cole v. Workman, No. 08-CV-328-CVE-PJC, 2011 WL
In denying Petitioner relief, the OCCA noted that Petitioner, who in his brief on appeal had
acknowledged the holdings of Fields and Allen, was in effect asking the Court to reconsider the
issue. Mitchell, 235 P.3d at 664. See Brief of Appellant, Case No. D-2008-57, p. 78 & n.43.
3862143, at *51-52 (N.D. Okla. Sept. 1, 2011); DeRosa v. Workman, No.
CIV-05-213-JHP, 2010 WL 3894065, at *32-33 (E.D. Okla. Sept. 27, 2010); Murphy
v. Sirmons, 497 F. Supp. 2d 1257, 1277-78 (E.D. Okla. 2007). Relief is therefore
Ground XXI: Cumulative Error.
In his final ground, Petitioner asserts that he is entitled to relief based on a
cumulative error theory. Petitioner unsuccessfully raised a cumulative error claim on
direct appeal, which the OCCA addressed as follows:
We have reviewed each of [Petitioner’s] claims for relief and the
record in this case and conclude that although his resentencing trial was
not error free, any errors and irregularities, even when considered in the
aggregate, do not require relief because they did not render his
resentencing trial fundamentally unfair, taint the jury’s verdict, or render
his sentencing unreliable. Any errors were harmless beyond a reasonable
doubt, individually and cumulatively. Therefore, no modification of
sentence is warranted and this proposition of error is denied.
Mitchell, 235 P.3d at 665. Not only does Petitioner make no attempt to challenge this
holding, but instead of presenting argument about particular claims which in the
aggregate might equate to cumulative error, he raises a whole new claim regarding the
introduction of guilt stage evidence into his second resentencing proceeding. Petition,
p. 92. For this reason, Petitioner’s cumulative error claim fails from the start. See
Hoxsie v. Kerby, 108 F.3d 1239, 1245 (10th Cir. 1997) (“Cumulative-error analysis
applies where there are two or more actual errors.”); United States v. Rivera, 900 F.2d
1462, 1469 (10th Cir. 1990) (“The cumulative effect of two or more individually
harmless errors has the potential to prejudice a defendant to the same extent as a single
reversible error. The purpose of a cumulative-error analysis is to address that
possibility.”). But even beyond this fault, the Court additionally finds that even if
Petitioner’s Ground XXI were construed as reasserting the general cumulative error
claim he raised to the OCCA in his Proposition XVII, Petitioner has not shown that
the OCCA’s denial of the same is unreasonable. Ground XXI is denied.
IV. Motions for Discovery and Evidentiary Hearing.
Petitioner has filed motions for discovery (Docs. 22 and 40) as well as motions
for an evidentiary hearing (Docs. 23 and 39). For the following reasons, the Court
finds that neither discovery nor an evidentiary hearing is warranted in this case.
In order to conduct discovery, Rule 6(a) of the Rules Governing Section 2254
Cases in the United States District Courts requires Petitioner to show good cause. In
Bracy v. Gramley, 520 U.S. 899, 908-09 (1997), the Supreme Court acknowledged
that “good cause” requires a pleading of specific allegations showing a petitioner’s
entitlement to relief if the facts are fully developed. Because Petitioner has not made
this showing, and because Petitioner’s discovery requests concern collateral issues
which do not affect the Court’s determination of the grounds raised in the Petition, the
Court finds that Petitioner has failed to show that discovery should be permitted.
As the Tenth Court has acknowledged, in order to obtain a hearing on a habeas
petition, “the factual allegations must be ‘specific and particularized, not general or
conclusory.’” Anderson v. Attorney General of Kansas, 425 F.3d 853, 858-59 (10th
Cir. 2005) (citing Hatch v. Oklahoma, 58 F.3d 1447, 1471 (10th Cir. 1995)).
Moreover, “[t]he purpose of an evidentiary hearing is to resolve conflicting evidence.”
Anderson, 425 F.3d at 860. However, 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. For the most part, Petitioner’s request for an evidentiary hearing is too
general to establish the need for one, but to the extent Petitioner’s request relates to
his Ground I, the Court finds that a hearing to explore why his prior habeas counsel
did not seek particular relief on his Brady claim in his first habeas action is irrelevant
and without consequence to the Court’s adjudication of Petitioner’s Ground I.
Accordingly, Petitioner’s request for an evidentiary hearing is also denied.
After a thorough review of the entire state court record, the pleadings filed
herein, and the applicable law, the Court finds that Petitioner is not entitled to his
requested relief. Accordingly, Petitioner’s petition (Doc. 21), motions for discovery
(Docs. 22 and 40), and motions for an evidentiary hearing (Docs. 23 and 39) are
hereby DENIED. A judgment will enter accordingly.
IT IS SO ORDERED this 27th day of July, 2016.
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