Grissom v. Workman
ORDER denying Petitioners petition (Doc. 20) denying 47 Motion for Evidentiary Hearing; denying 21 Motion for Discovery, as more fully set out. Signed by Honorable David L. Russell on 8/3/16. (jw)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
WENDELL ARDEN GRISSOM,
KEVIN DUCKWORTH, Interim Warden,
Oklahoma State Penitentiary,
Case No. CIV-11-1456-R
Petitioner, Wendell Arden Grissom, a state court prisoner, has filed a Petition for
Writ of Habeas Corpus seeking relief pursuant to 28 U.S.C. § 2254. Doc. 20. Petitioner,
who is represented by counsel, is challenging the convictions entered against him in
Blaine County District Court Case No. CF-2005-80. Tried by a jury in 2008, Petitioner
was found guilty of four crimes: murder in the first degree (Count 1), shooting with
intent to kill (Count 2), grand larceny (Count 3),2 and possessing a firearm after a felony
conviction (Count 4). Petitioner was sentenced to death for the murder, and for his noncapital crimes, he received a consecutive sentence of life plus sixty-five years. The jury
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.
On direct appeal, the OCCA modified this conviction to larceny of a motor vehicle.
Ground Ten, infra.
found three aggravating circumstances in support of Petitioner’s death sentence:
(1) Petitioner knowingly created a great risk of death to more than one person;
(2) Petitioner committed the murder while serving a sentence of imprisonment on
conviction of a felony; and (3) the existence of a probability that Petitioner will commit
criminal acts of violence that would constitute a continuing threat to society (O.R. V,
651, 673-74, 757-59; S. Tr. 2-3).
Petitioner has presented eleven grounds for relief. Respondent has responded to
the petition and Petitioner has replied. Docs. 43 and 58. In addition to his petition,
Petitioner has filed motions for discovery and an evidentiary hearing. Docs. 21 and 47.
After a thorough review of the entire state court record (which Respondent has provided),
the pleadings filed in this case, and the applicable law, the Court finds that, for the
reasons set forth herein, Petitioner is not entitled to his requested relief.
I. Procedural History.
Petitioner appealed his convictions and sentences to the Oklahoma Court of
Criminal Appeals (hereinafter “OCCA”). The OCCA affirmed in a published opinion.
Grissom v. State, 253 P.3d 969 (Okla. Crim. App. 2011), cert. denied, 132 S. Ct.
825 (2011). Petitioner was denied post-conviction relief. Grissom v. State, No. PCD2008-928 (Okla. Crim. App. 2011) (unpublished).
Pursuant to 28 U.S.C. § 2254(e)(1), factual determinations made by the OCCA are
presumed correct in this proceeding. From the evidence presented at trial, the OCCA
determined the following facts:
On November 2, 2005, [Petitioner] left Arkansas and headed west on
Interstate 40, driving his white Chevrolet truck. Just across the Oklahoma
state line, he picked up a homeless hitchhiker, Jessie Johns. As they
continued west, the two men drank whiskey and got acquainted. They also
discussed plans to commit some robberies or burglaries to raise money.
Later that evening, [Petitioner] checked into a hotel in Oklahoma City,
paying $266.00 for a weekly rental. [Petitioner] shared his room that
evening with Jessie Johns, who slept on the floor.
The following morning, Jessie Johns watched as [Petitioner] showed
him how to load a .44 caliber black powder pistol, one of two firearms in
[Petitioner’s] possession at the time. The other was a two-shot .22 caliber
derringer. The two men drank more alcohol that morning as they again
headed west in [Petitioner’s] truck on Interstate 40. They stopped around
10:45 a.m. at the Love’s Country Store on Exit 108, where security cameras
recorded each man buying a pair of brown cotton gloves. They then drove
into rural Blaine County, looking for a house to burglarize.
[Petitioner] ultimately parked his truck in the driveway of the
residence of Matt and Dreu Kopf, near Hitchcock, in rural Blaine County.
He told Jessie Johns to wait until the shooting was over and then come in
and help him burglarize the house. [Petitioner] approached a sliding door at
the rear of the residence and knocked. Dreu Kopf was inside her home that
morning with her best friend, Amber Matthews, and her two young
children, eighteen month-old Rylie and infant Gracie Jo. Rylie was in her
crib in the bedroom and Ms. Kopf was holding Gracie. Ms. Matthews
answered the sliding glass door as Ms. Kopf turned in her glider chair to
speak with [Petitioner]. He asked Ms. Kopf if her husband was home. She
replied that her husband was at work. [Petitioner] told her he would come
back later. Ms. Matthews closed the door, but seconds later [Petitioner]
reappeared. Ms. Kopf handed the baby to Ms. Matthews and approached
the door again. [Petitioner] shot a pistol round into the large glass pane and
shattered it. He then stepped into the residence and fired a second shot at
Ms. Kopf, striking her in the hand.
Amber Matthews ran with the baby into Rylie’s bedroom. Ms. Kopf
fought with the intruder and pushed him across the room onto a couch.
While Ms. Kopf was on top of [Petitioner] fighting him, she begged him to
take what he wanted and leave. He just laughed at her as he pulled the black
powder pistol from his waist and put it to her head. She grabbed at the
weapon as he fired it, but a bullet tore through her hand and struck the side
of her head, fracturing her skull. [Petitioner] then stuck the big pistol in her
hip and fired again. The force of this shot threw Ms. Kopf onto the floor.
[Petitioner] got up and headed toward the bedroom where the
children and Ms. Matthews were. Ms. Kopf then heard Ms. Matthews beg
for her life, and the report from [Petitioner’s] pistol. Ms. Kopf escaped
from the house to her garage and activated the overhead door. Realizing
that she was leaving a blood trail for her killer to follow, she knew she
could not hide. She saw the white truck in her driveway pointed toward the
road for a getaway, and ran toward it.
Jessie Johns had left the truck and approached the residence after
hearing several shots. He saw Ms. Kopf run from the house. He stepped
through the shattered door and found [Petitioner] standing over a wounded
Amber Matthews. He watched as [Petitioner] fired another shot into
Ms. Matthews with the .44. Johns then told [Petitioner] that someone had
run from the house. [Petitioner] ran toward the truck, tried to get inside, and
fired his .44 pistol again at Ms. Kopf as she pulled away. Not far from her
house, Dreu Kopf flagged down a trio of truckers hauling rock and told
them that her friend and children were dead and she had been shot. One of
the truck drivers, himself a retired police officer, got into the truck with
Ms. Kopf. He reported the shooting by phone to the Kingfisher County
Sheriff’s Office and drove Ms. Kopf to the hospital in nearby Watonga.
Realizing their plans were foiled, [Petitioner] and Johns attempted
their escape from the crime scene on a red four-wheeler ATV they found in
the Kopf’s garage. A postal delivery man saw two men on the red fourwheeler leaving the Kopf residence with a black dog chasing them. The
rock haulers, who had encountered Dreu Kopf only a few minutes earlier,
saw two men speed past them on a red four-wheeler. The men on the fourwheeler ran out of gas after a short distance, but managed to hitch a ride
with a passing farmer, who assumed they were laborers. He gave them a
ride to the Hillstop Cafe, just over the Kingfisher County line on
The two women who were running the Hillstop Cafe that day
became frightened when they noticed a pair of men looking in the windows
of the store from outside and looking inside cars parked at the Hillstop. The
two men then came in the store. Each bought an individual can of beer. One
of the men, later identified as Jessie Johns, walked across the highway,
ducked into some trees, and sat there drinking his beer. The other man
headed across a wheat field on foot. Johns later walked back across the
street and purchased a second can of beer. After he left the store the second
time, one of the clerks called the Kingfisher County Sheriff’s Office and
reported two suspicious men hanging around the store. The clerks also
asked the only customer in the store, a local man waiting on his lunch, to
stay with them until the two strangers were gone.
Recognizing the possible connection to the report of a shooting at
the nearby Kopf residence about thirty minutes earlier, Kingfisher County
Sheriffs officers now raced toward the Hillstop Cafe. Not far away,
emergency personnel and various officers of the Watonga Police
Department, the Blaine County [ ] Sheriffs Office, and the Oklahoma
Highway Patrol descended on the Kopf residence after the initial report of a
shooting. Officers approached the home cautiously, but managed to enter
and find the Kopf children alive. Amber Matthews was unconscious and
mortally wounded. She died during a medical evacuation flight to an
Oklahoma City hospital.
Back at the Hillstop Cafe, a Kingfisher County deputy sheriff
approached Jessie Johns, who was now walking down the road, and
detained him for investigation. The deputy questioned Johns briefly,
searched him for weapons, and drove him back to the Hillstop Cafe.
Meanwhile, law enforcement officers continued to gather information about
the crimes at the Kopf residence and the suspicious persons reported at the
Hillstop. About forty-five minutes after being detained, police arrested
Jessie Johns for involvement in the four-wheeler theft and other crimes at
the Kopf residence.
Investigators eventually located [Petitioner] hiding in a rock pile
near the Hillstop Cafe. They recovered a blood-stained .22 pistol and a pair
of brown cotton gloves from his person. They ultimately recovered
[Petitioner’s] .44 pistol and a second pair of brown cotton gloves discarded
near the crime scene. The State also presented evidence that a DNA profile
isolated from blood stains on [Petitioner’s] jeans matched to a DNA profile
from the known blood of Dreu Kopf. [Petitioner] did not testify at trial, but
the State presented a videotape of his statement to police. On appeal,
[Petitioner] describes these crimes as “a tragedy with no discernible cause,”
admitting that he shot Amber Matthews and Dreu Kopf “for reasons even
he does not understand.”
Grissom, 253 P.3d at 973-75.
Pursuant to Section 2254(e)(1), Petitioner can rebut the presumed correctness of
these facts by presenting clear and convincing evidence that they are incorrect. Although
Petitioner has included his own statement of the facts in the petition, it is not a summary
of the evidence presented at trial, but his version of the truth. Because Petitioner blends
the basic facts of his crimes with enhancements and embellishments based largely on
information developed after trial, and because his statement of the facts contains
absolutely no supporting citations to the state court record (or even to his own exhibits
upon which he heavily relies), Petitioner fails to show by clear and convincing evidence
that the OCCA’s determination of the facts is incorrect.
III. Standard of Review.
Exhaustion as a Preliminary Consideration.
The exhaustion doctrine, a matter of comity which has long been a part of habeas
corpus jurisprudence, requires the Court to consider in the first instance whether
Petitioner has presented his grounds for relief to the OCCA. As the Supreme Court stated
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.” The exhaustion doctrine is set forth in 28 U.S.C. § 2254(b).
Section 2254(b)(1)(A) prohibits the Court from granting habeas relief in the absence of
exhaustion (although Section 2254(b)(1)(B) sets forth two limited exceptions to this rule),
but Section 2254(b)(2) expressly authorizes the Court to deny habeas relief
“notwithstanding the failure of [Petitioner] to exhaust the remedies available in the courts
of the State.”
Beyond the issue of exhaustion, the Court must also examine how the OCCA
adjudicated each of Petitioner’s grounds for relief, i.e., whether the OCCA addressed the
merits of Petitioner’s grounds or declined to consider them based on a state procedural
rule. “It is well established that federal courts will not review questions of federal law
presented in a habeas petition when the state court’s decision rests upon a state-law
ground that ‘is independent of the federal question and adequate to support the
judgment.’” Cone v. Bell, 556 U.S. 449, 465 (2009) (quoting Coleman, 501 U.S. at 729).
“The doctrine applies to bar federal habeas when a state court declined to address a
prisoner’s federal claims because the prisoner had failed to meet a state procedural
requirement.” Coleman, 501 U.S. at 729-30.
Limited Merits Review.
When the OCCA has addressed the merits of one of Petitioner’s grounds for relief,
the Court reviews that ground in accordance with the standard of relief set forth in
28 U.S.C. § 2254(d). Pursuant to that section of the Antiterrorism and Effective Death
Penalty Act of 1996 (hereinafter “AEDPA”), in order for Petitioner to obtain relief, he
must show that the OCCA’s adjudication of his claim either
(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.
See Cullen v. Pinholster, 563 U.S. 170, 181 (2011) (acknowledging that “[t]he petitioner
carries the burden of proof”).
The very focus of this statutory provision is the
reasonableness of the OCCA’s decision. “The question . . . 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). In other words, “[i]t is not enough that [the Court], in its independent review
of the legal question, is left with a firm conviction that the [OCCA] was erroneous.”
What is required is a showing that the OCCA’s decision is “objectively unreasonable.”
Lockyer v. Andrade, 538 U.S. 63, 75-76 (2003) (internal quotation marks and citation
The Supreme Court has repeatedly acknowledged that Section 2254(d) “‘erects a
formidable barrier to federal habeas relief for prisoners whose claims have been
adjudicated in state court[,]’” and that “[i]f [it] is difficult to meet, that is because it was
meant to be.” White v. Wheeler, 577 U.S. ___, 136 S. Ct. 456, 460 (2015) (quoting
Burt v. Titlow, 571 U.S. ___, 134 S. Ct. 10, 16 (2013)); Harrington v. Richter, 562 U.S.
86, 102 (2011). Section 2254(d) “stops short of imposing a complete bar on federal-court
relitigation of claims already rejected in state proceedings.” Richter, 562 U.S. at 102.
What remains, then, is a very narrow avenue for relief, one that permits relief only
“where there is no possibility fairminded jurists could disagree that the [OCCA’s]
decision conflicts with [the Supreme] Court’s precedents.” Id. (emphasis added).
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. As a condition for obtaining
habeas corpus from a federal court, a state prisoner must show that the state
court’s ruling on the claim being presented in federal court was so lacking
in justification that there was an error well understood and comprehended
in existing law beyond any possibility for fairminded disagreement.
Id. at 102-03 (citation omitted).
Ineffective Assistance of Trial and Appellate
In his first ground for relief, Petitioner presents four claims of trial and appellate
counsel ineffectiveness. Petitioner’s first claim is that his trial counsel were ineffective
with respect to the investigation and presentation of mitigating evidence. In his second
and third claims, Petitioner additionally faults his trial counsel for failing to request
certain jury instructions and for failing to object to the prosecutor’s second stage closing
argument. Petitioner’s final claim is a charge against his appellate counsel for failing to
raise certain issues on direct appeal.
The Applicable Supreme Court Law.
“[T]he Sixth Amendment does not guarantee the right to perfect counsel; it
promises only the right to effective assistance . . . .” Titlow, 134 S. Ct. at 18. Whether
counsel has provided constitutional assistance is a question to be reviewed under the
familiar standard set forth in Strickland v. Washington, 466 U.S. 668 (1984). 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, discussed above, the Supreme Court not only addressed the narrow
confines of AEDPA review and relief, but it also showed how AEDPA specifically
applies to a claim of ineffective assistance of counsel that a state court has denied on the
merits. The Richter Court acknowledged that even under de novo review,
“’[s]urmounting Strickland’s high bar is never an easy task.’” Richter, 562 U.S. at 105
(quoting Padilla v. Kentucky, 559 U.S. 356, 371 (2010)). However, “[e]stablishing that a
state court’s application of Strickland was unreasonable under § 2254(d) is all the more
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.
Id. (internal quotation marks and citations omitted).
Trial Counsel and the Mitigation Case.
Petitioner’s mitigation claim includes the claim he raised on direct appeal and the
four claims he presented in his post-conviction application, plus additional “enhanced”
evidence discovered by habeas counsel in their preparation of the petition. For the
reasons set forth below, the Court finds that the OCCA did not unreasonably deny
Petitioner relief on direct appeal. Therefore, the Court is precluded from considering
Petitioner’s additional evidence, evidence which was not before the OCCA when it
decided Petitioner’s claim. Pinholster, 563 U.S. at 181 (“review under § 2254(d)(1) is
limited to the record that was before the state court that adjudicated the claim on the
The Court additionally finds that Petitioner’s post-conviction claims are
procedurally barred from review.
The Claim Raised on Direct Appeal
In their eleventh proposition of error, appellate counsel argued that trial counsel
were ineffective for failing to adequately investigate and present additional mitigation
evidence. Brief of Appellant at 63-69. Appellate counsel claimed that “[w]hile offering
some insight into [Petitioner’s] life and character, the mitigation evidence did not tell as
compelling a story as it could have had the defense team followed the lead of the
evidence.” Id. at 65-66. The evidence that appellate counsel faulted trial counsel for not
presenting was evidence that Petitioner had dementia.
The record reflects that while Petitioner’s case was on appeal, appellate counsel
retained the services of Antoinette McGarrahan, Ph.D., a clinical forensic psychologist
who specializes in neuropsychology. Appellate counsel tasked Dr. McGarrahan “to
determine whether [Petitioner] suffer[ed] from any cognitive deficiencies and/or brain
Id. at 66.
Then, utilizing the OCCA’s Rule 3.11, appellate counsel
Although Petitioner acknowledges that the Court cannot consider his additional evidence unless
it first concludes that the OCCA rendered an unreasonable decision, he argues in the alternative
that his case should be held in abeyance while he returns to state court to file a second postconviction application including his new evidence. Petition, pp. 29-31. Having concluded that
Petitioner has failed to show that the OCCA acted unreasonably based on the record before it at
the time it rendered its decision on Petitioner’s claim, there is simply no point in delaying the
present action while Petitioner seeks to present his new evidence to the OCCA. Irrespective of
how the OCCA would treat Petitioner’s new evidence, the Court cannot consider it when
reviewing the reasonableness of the OCCA’s 2011 decision. Pinholster, 563 U.S. at 182-83 (“It
would be strange to ask federal courts to analyze whether a state court’s adjudication resulted in
a decision that unreasonably applied federal law to facts not before the state court.”).
supplemented the claim raised in their brief by filing an Application for an Evidentiary
Hearing on Sixth Amendment Claims (hereinafter “Rule 3.11 Application”) containing
findings (Exhibit 1), her curriculum vitae (Exhibit 1-A), and her complete
Neuropsychological Evaluation Report (Exhibit 1-B).
Dr. McGarrahan found that Petitioner had “significant cognitive dysfunction
involving memory and planning, reasoning, and organization abilities as a result of
permanent organic brain damage effects of his repeated head injuries in combination with
his severe alcoholism.” Rule 3.11 Application at Exhibit 1. She concluded that these
“cognitive difficulties [met] the . . . criteria for Dementia Due to Multiple Etiologies.” Id.
It was Dr. McGarrahan’s opinion that Petitioner had this condition at the time the crimes
were committed and that it “likely impaired his ability to function in a cognitively
efficient manner.” Id.
In denying Petitioner’s claim, the OCCA applied Strickland, giving due
consideration to the evidence presented at trial, Dr. McGarrahan’s opinion, and the
arguments of appellate counsel. Grissom, 253 P.3d at 993-96. The OCCA reasoned as
The neuropsychological report largely reflects the mitigating narrative
already presented at trial. Other aspects of the report are equivocal, at best:
The mitigating force of [Petitioner’s] reported deficits in memory,
planning, and organizational skills—as a result of his alleged dementia—is
significantly diminished by other undisputed evidence of how he carried
out these crimes. To borrow a phrase from his expert, if [Petitioner] had
been slightly more “cognitively efficient” in the execution of his plans, he
certainly would have murdered Dreu Kopf, and might have avoided
apprehension altogether, or at least long enough to endanger additional
lives. The proffered evidence of [Petitioner’s] diagnosis with dementia and
its accompanying deficits does not appreciably alter the balance of
aggravating and mitigating circumstances considered by the jury at trial.
We conclude that [Petitioner] has not shown that counsel was ineffective
for failing to utilize the type of evidence presented in his supplemental
materials, and no evidentiary hearing is necessary.
Id. at 995-96. Petitioner presents three challenges to this decision.
The first is a challenge to the OCCA’s application of its own Rule 3.11 to the
determination of his claim. Petitioner contends that the OCCA applies the rule in a
manner that is inconsistent with Strickland. In denying Petitioner relief, the OCCA
specifically referenced its decision in Simpson v. State, 230 P.3d 888, 906 (Okla. Crim.
App. 2010), wherein it explained the relationship between the Strickland standard and the
Rule 3.11 standard a defendant must meet in order to obtain an evidentiary hearing in
state court on his ineffectiveness claim. Grissom, 253 P.3d at 995. Calling the OCCA’s
explanation both dubious and unconvincing, the bottom line is that Petitioner simply does
not believe what the OCCA has said about the operation of Rule 3.11. Petition, p. 11 n.6.
Despite Petitioner’s disbelief, however, the Tenth Circuit’s decision in Lott v. Trammell,
705 F.3d 1167 (10th Cir. 2013), is determinative of the issue. In Lott, the Tenth Circuit
acknowledged the Simpson decision, reversed the position it took in Wilson v. Workman,
577 F.3d 1284 (10th Cir. 2009) (en banc), and concluded that when the OCCA applies
Rule 3.11 to deny a defendant an evidentiary hearing, the same constitutes a merits ruling
entitled to AEDPA deference. Lott, 705 F.3d at 1211-13. See Glossip v. Trammell,
530 F. App’x 708, 736 (10th Cir. 2013) (acknowledging that Wilson is “no longer good
law given the OCCA’s subsequent decision in Simpson”).
The OCCA’s decision in Simpson . . . clarifies that the interplay of
Rule 3.11’s “clear and convincing” evidentiary standard and its “strong
possibility of ineffectiveness” substantive standard is “intended to be less
demanding than the test imposed by Strickland.” 230 P.3d at 906. In other
words, the OCCA in Simpson has now assured us that “when [it] review[s]
and den[ies] a request for an evidentiary hearing on a claim of ineffective
assistance under the standard set forth in Rule 3.11, [it] necessarily make[s]
the adjudication that [a defendant] has not shown defense counsel to be
ineffective under the more rigorous federal standard set forth in Strickland.”
Id. Consequently, it is plain to us, as a matter of federal law, that any denial
of a request for an evidentiary hearing on the issue of ineffective assistance
of counsel filed pursuant to OCCA Rule 3.11 . . . operates as an
adjudication on the merits of the Strickland claim and is therefore entitled
to deference under § 2254(d)(1).
Lott, 705 F.3d at 1213. Thus, in accordance with Lott, Petitioner’s Rule 3.11 challenge
lacks merit and the OCCA’s denial of Petitioner’s direct appeal mitigation claim is
entitled to AEDPA deference.
Second, Petitioner challenges the OCCA’s factual finding that Dr. McGarrahan’s
“report largely reflects the mitigating narrative already presented at trial.” Grissom,
253 P.3d at 995. Although Petitioner acknowledges that his trial counsel presented two
mental health professionals in mitigation (Dr. Terese Hall, a psychologist, and
Dr. Michael Dunn, a psychiatrist), Petitioner argues that, unlike Dr. McGarrahan, neither
were qualified to detect his brain dysfunction. Because Dr. McGarrahan’s “entire focus
was the brain” and because she found “specific organic problems with [his] brain[,]”
Petitioner contends that, contrary to what the OCCA found, her findings were “something
else entirely from the narrative that was presented.” Petition, pp. 11-12.
Petitioner does not and cannot dispute the fact that his life history, from his birth
in 1968 to the time these crimes were committed in 2005, was known by trial counsel and
detailed for the jury at trial by the presented experts. See Grissom, 253 P.3d at
995 (noting the “extensive testimony” regarding Petitioner’s history). See also Response,
pp. 15-17 (setting forth the mitigation case presented). Petitioner does not assert that trial
counsel missed any of his life and/or mental health history, but instead claims that in light
of everything trial counsel knew, they should have retained a third and more qualified
expert, like Dr. McGarrahan, to evaluate him for brain damage. It therefore follows that
the very posture of Petitioner’s claim belies his factual challenge to the OCCA’s decision.
Comparing the reports and testimony of Drs. Hall and Dunn, the testimony provided by
Petitioner’s parents and a longtime friend, and all of the evidence introduced by trial
counsel in the second stage to the information presented in Dr. McGarrahan’s report, it is,
as the OCCA found, “largely” the same narrative. Grissom, 253 P.3d at 995. The only
difference, as Petitioner himself acknowledges, is the dementia diagnosis arrived at by
Dr. McGarrahan, a difference the OCCA noted as well.
The record also reflects that [Petitioner] retained a forensic psychologist
and a forensic psychiatrist to testify in his defense at trial. These expert
witnesses evaluated [Petitioner] and gave extensive testimony of their
findings, including [Petitioner’s] reported history of a difficult birth,
academic and social problems at an early age; a history of head trauma; his
criminal history and imprisonment; abuse of alcohol; depression; and his
troubled marriage. Neither of [Petitioner’s] expert witnesses at trial
expressly diagnosed [Petitioner] as suffering from dementia at the time of
Grissom, 253 P.3d at 994-95. Finding only one difference from what Petitioner presented
on direct appeal to what trial counsel presented at trial, the OCCA’s finding that the two
were “largely” the same is not unreasonable, and consequently, Petitioner’s second
challenge to the OCCA’s decision fails.
Petitioner’s third challenge to the reasonableness of the OCCA’s decision attacks
the very core of the OCCA’s denial–its assessment of Dr. McGarrahan’s findings as
“equivocal.” Grissom, 253 P.3d at 995. Petitioner faults the OCCA for inexcusably
failing to appreciate the significance of Dr. McGarrahan’s diagnosis.4 The question the
Court must answer is whether the OCCA acted unreasonably when it determined that trial
counsel were not ineffective for failing to discover that Petitioner suffers from dementia
and that Petitioner’s dementia diagnosis did “not appreciably alter the balance of
aggravating and mitigating circumstances considered by the jury at trial.” Grissom,
253 P.3d at 995. For the following reasons, the Court concludes that it did not.
Petitioner’s argument regarding the general mitigating effect of brain damage
evidence is sound and supported. See Wilson v. Trammell, 706 F.3d 1286, 1310 (10th
Cir. 2013) (acknowledging that “organic brain damage [is a] well-recognized ground
for mitigation”); Hooks v. Workman, 689 F.3d 1148, 1205 (10th Cir. 2012) (“Evidence
of organic brain damage is something that we and other courts, including the Supreme
Court, have found to have a powerful mitigating effect.”). Petitioner states that “deficits
Although habeas counsel stops just short of calling all of the OCCA judges incompetent, they
state that the OCCA judges “do not understand how critical neuropsychological impairments
are[,]” that they were “flat wrong,” and that they are “a panel of experienced and burdened
appellate jurists dispassionately unmoved by what they wrongly perceived to be ‘dubious’
evidence.” Petition, p. 13. In the reply, habeas counsel continue their tirade against the OCCA
and sling mud at Respondent as well. Emphasizing once again that the OCCA was flat wrong,
they belittle the OCCA’s decision as an “unsupported foray into brain science evaluation.”
Reply, p. 2. As for Respondent, they say that she (referring to the then serving Warden Anita
Trammell) “is not even an amateur scientist, and has no scientific or evidentiary support for her
un-expert opinion.” Id. While it is clear that habeas counsel is passionate about Petitioner’s
cause, berating the OCCA and the opposing party does absolutely nothing to advance their legal
in neuropsychological functioning go to explain the crime and reasons why [a defendant]
should not be executed.” Petition, p. 8. Among other things, it can explain to the jury
whether a defendant has the “ability to inhibit unsuccessful behavior” and/or the “ability
to appreciate consequences and risks to his behavior.” Id. at n.5. Petitioner notes that it
is also the type of evidence which can garner jury sympathy. Id. at 14. With respect to
his case in particular, Petitioner asserts that if his jurors had been told that his “brain was
flawed” and that his “behavior was a product of a flawed brain[,]” they would have been
able “to completely understand [him] as a person.” Id. Petitioner contends that if the
jurors had been told of Dr. McGarrahan’s diagnosis, they would have been “given a sense
of security that comes with an answer to the question of why it happened.” Id.
While there is no doubt that evidence of organic brain damage can provide a
compelling mitigation case, it is equally clear that its strength and persuasiveness is
dependent upon showing that it contributed to a defendant’s criminal actions. Some of
the cases cited by Petitioner in support of his claim illustrate this very point.
In Hooks, 689 F.3d at 1203, the Tenth Circuit found that trial counsel was
ineffective in the second stage in part because “the mental-health evidence presented was
inadequate and quite unsympathetic.” Although some mental health evidence had been
presented, it was of little value because it failed to connect the defendant’s mental
problems to the circumstances of the crime. Id. at 1204.
The importance of counsel’s role in this regard cannot be overstated, as we
have repeatedly recognized. Counsel in capital cases must explain to the
jury why a defendant may have acted as he did—must connect the dots
between, on the one hand, a defendant’s mental problems, life
circumstances, and personal history and, on the other, his commission of
the crime in question. Here . . . the jury was left with almost no explanation
of how Mr. Hooks’s mental problems played into the murder . . . .
Id. (citations omitted).
In Anderson v. Sirmons, 476 F.3d 1131, 1143-48 (10th Cir. 2007), trial counsel
did not have the defendant evaluated by a mental health expert and therefore failed to
discover that he had brain damage which affected “his reasoning, problem solving, and
judgment.” The Tenth Circuit found that this evidence could have “offer[ed] the jury a
potential explanation for [his] actions relating to the murders he participated in.” Id. at
It “could have both explained to the jury the reasons [the defendant] was
predisposed to act in concert with [his co-defendants] on the night of the murders and
demonstrated [he] was less morally culpable than the average defendant for committing
the murders.” Id. at 1147. Because the defendant “had no history of criminal violence
prior to the murders in question” and because “his family considered him a loving man,
who always cared for his family and children and worked hard to support them[,]” the
Court found that evidence of his mental difficulties could have been utilized by trial
counsel to “humanize [the] defendant and explain why an otherwise kind and loving
family man can come to participate in a violent, murderous event.” Id.
In Smith v. Mullin, 379 F.3d 919, 923-24 (10th Cir. 2004), the defendant lost his
job as a school janitor, got into a fight with his wife when he told her, and then killed her
and her four children, three by stabbing and two by asphyxiation. In the second stage,
trial counsel’s mitigation case was “a mere thirty pages” of testimony from the
defendant’s family and friends who testified that that they loved the defendant and “that
he was a kind and considerate person.” Id. at 939. The Tenth Circuit found that trial
counsel was ineffective because he “made no attempt to explain how this kind and
considerate person could commit such a horrendous crime . . . .” Id.
defendant had brain damage which trial counsel failed to discover, “the jury . . . never
received an explanation for his behavior.” Id. at 943. Expert testimony could have
shown that the defendant’s brain damage affected his ability to regulate his emotions, and
it could have given the jury “an explanation of how [the defendant’s] organic brain
damage caused [his] outbursts of violence and caused this ‘kind hearted’ person to
commit such a shocking crime.” Id.
In denying Petitioner relief, the OCCA concluded that the mental health condition
found by Dr. McGarrahan did not explain Petitioner’s crimes, or as the Tenth Circuit
stated in Hooks, 689 F.3d at 1204, it did not “connect the dots between . . . [Petitioner’s]
mental problems, life circumstances, and personal history and . . . his commission of the
crime[s] in question.” Although Dr. McGarrahan found brain damage, her diagnosis was
dementia, a condition which Dr. McGarrahan concluded affected Petitioner’s memory,
planning, reasoning, and organizational skills. Rule 3.11 Application at Exhibit 1-B,
p. 12. But unlike the mental health conditions found in Hooks, Anderson, and Smith,5 the
OCCA found that Petitioner’s mental deficiencies did not relate to his crimes. In fact,
they were in opposition to “other undisputed evidence of how [Petitioner] carried out
[his] crimes.” Grissom, 253 P.3d at 995. Although the OCCA did not set forth all of the
An additional difference between these cases and Petitioner’s case is the application of AEDPA
deference. Hooks, Anderson, and Smith were all granted relief under de novo review. Hooks,
689 F.3d at 1195; Anderson, 476 F.3d at 1142; Smith, 379 F.3d at 927, 929.
ways in which Dr. McGarrahan’s opinion conflicted with the presented evidence, its
failure to do so does not detract from its conclusion. See Richter, 562 U.S. at 98 (“Where
a state court’s decision is unaccompanied by an explanation, the habeas petitioner’s
burden still must be met by showing there was no reasonable basis for the state court to
deny relief.”). And, in any event, the Court notes that Respondent, in defending the
OCCA’s decision as one within the bounds of reason, has shown in detail how the
evidence presented at trial belies Dr. McGarrahan’s findings that Petitioner had
deficiencies in memory, planning, reasoning, and organization which contributed to his
crimes. Response, pp. 18-22.6
Petitioner’s circumstances are more like those in Wilson. In Wilson, the defendant
asserted that his trial counsel was ineffective with respect to the development and
presentation of his mental health issues. Although a mental health expert testified in
mitigation, the defendant asserted that had trial counsel done more, the jury could have
been provided with a better picture of his mental health which could have resulted in a
sentence less than death. Wilson, 706 F.3d at 1293-94. The Tenth Circuit found that
although the same expert who testified at trial was able to arrive at a potentially stronger
diagnosis after trial, the defendant was not entitled to Strickland relief. A key component
of the Court’s holding was the defendant’s failure to show how this new diagnosis
Even though Petitioner clearly disagrees with both the OCCA’s and Respondent’s assessment
of the evidence, arguing that his crimes were “pathetically un-orchestrated” and “braindamaged in nature[,]” Petition, p. 13, there is little doubt that had Dr. McGarrahan testified at
trial, the prosecution would have successfully challenged the credibility of her opinion by crossexamining her on how her diagnosis failed to relate to the commission of the crimes. See
Wilson, 706 F.3d at 1305-06 (acknowledging that omitted mitigation evidence is not to be
considered in a vacuum and that a valid consideration is the prosecution’s response to the
affected his participation in the murder. The Court noted that “[a]lthough [the expert]
testified that knowing that Defendant suffered from schizophrenic paranoid personality
disorder might help a jury understand Defendant’s ‘motivation’ for committing the crime,
there was no credible evidence that Defendant acted as a result of delusions or
hallucinations.” Just as the OCCA found in Petitioner’s case, the Tenth Circuit denied
relief because the evidence of the defendant’s behavior during the crime did not tie into
the mental disorder from which he allegedly suffered. Id. at 1297-98, 1309-10 (citation
In order for the Court to find for Petitioner on this claim, Petitioner must show that
the OCCA’s decision is “so lacking in justification that there was an error well
understood and comprehended in existing law beyond any possibility for fairminded
Richter, 562 U.S. at 103.
Simply stated, he must show that all
fairminded jurists would agree with him that the OCCA got it wrong. Frost v. Pryor,
749 F.3d 1212, 1225 (10th Cir. 2014). Here that means that all fairminded jurists would
agree that the OCCA was incorrect to consider Petitioner’s dementia in light of the
presented evidence and the very circumstances of his crimes. For the reasons set out
above, the Court concludes that Petitioner has failed to make this showing.
Claims Raised in Post-Conviction
In his post-conviction proceeding, Petitioner continued his charge against his trial
counsel for their performance in the second stage case. Beyond what he raised on direct
appeal, Petitioner made four additional claims against his trial counsel, including failing
to: (1) hire a mitigation specialist; (2) investigate and present evidence of his history of
being a well-behaved inmate; (3) investigate and present evidence of the sexual advances
and assaults he had to endure when previously imprisoned; and (4) discover and present
evidence of his good character from his ex-wife and her family. Application for PostConviction Relief at 12-21. The OCCA found that these claims were procedurally barred
due to Petitioner’s failure to raise them on direct appeal; however, it also reviewed these
claims through the lens of appellate counsel ineffectiveness and found no Strickland
error. Grissom, No. PCD-2008-928, slip op. at 3-7. Although Respondent asserts that
these claims should be procedurally barred in this proceeding, Petitioner presents
multiple arguments as to why the Court should proceed to their merits. For the following
reasons, the Court agrees with Respondent.
When a state court applies a state procedural rule to preclude merits consideration
of a claim, a federal habeas court will follow suit if the rule is one which “is independent
of the federal question and adequate to support the judgment.” Coleman, 501 U.S. at
729. “To be independent, the procedural ground must be based solely on state law.”
Thacker v. Workman, 678 F.3d 820, 835 (10th Cir. 2012) (citing English v. Cody,
146 F.3d 1257, 1259 (10th Cir. 1998)). “To be adequate, the procedural ground ‘must be
strictly or regularly followed and applied evenhandedly to all similar claims.’” Thacker,
678 F.3d at 835 (quoting Sherrill v. Hargett, 184 F.3d 1172, 1174 (10th Cir. 1999)).
The OCCA found that Petitioner had waived these additional instances of trial
counsel ineffectiveness because he failed to raise them on direct appeal. The OCCA
noted that Petitioner was represented by separate counsel at trial and on direct appeal, and
that the claims were “‘ascertainable through the exercise of reasonable diligence on or
before the time of the direct appeal.’” Grissom, No. PCD-2008-928, slip op. at 2-6
(quoting Okla. Stat. tit. 22, § 1089 (D)(4)(b)(1)).
Petitioner’s first challenge to the OCCA’s ruling is his assertion that it is
ambiguous. Recognizing that Petitioner had raised a direct appeal challenge to trial
counsel’s presentation of the second stage case, the OCCA noted at the onset that to the
extent Petitioner was attempting to re-raise his direct appeal claim, it was “res judicata
and barred from post-conviction review.” Grissom, No. PCD-2008-928, slip op. at 4.
The OCCA then found, as set forth above, that Petitioner’s new challenges to his trial
counsel’s representation were waived. Petitioner contends that because “[t]he OCCA did
not specify what part of [his] post-conviction claim was res judicata and what part was
waived[,]” the procedural bar should not apply. Petitioner also argues that the OCCA’s
res judicata ruling invokes the principles of Cone, 556 U.S. at 467, mandating that this
Court conduct a merits review of his aggregate trial counsel mitigation claim including
“the post-conviction material” he provided. Petition, p. 19.
The OCCA’s opinion is not ambiguous. On direct appeal, Petitioner argued that
his trial counsel were ineffective for failing to present evidence of his dementia. The
OCCA rejected this claim on the merits, and this Court has likewise denied relief.
Although Petitioner’s post-conviction claims against his trial counsel also relate to the
mitigation case presented, they are undoubtedly different from his direct appeal claim, as
the OCCA found.
Direct appeal counsel raised a similar claim that trial counsel was
ineffective for failing to adequately investigate and present mitigating
evidence, particularly evidence of Petitioner’s troubled background and his
alleged dementia resulting from birth complications, a history of head
injury, and his chronic abuse of alcohol. Grissom, 2011 OK CR 3, ¶¶ 7879. To the extent that his current claim reasserts issues raised and
adjudicated on direct appeal, the claim is res judicata and barred from postconviction review. Davis, 2005 OK CR 21, ¶ 2, 123 P.3d at 244.
In the current claim, Petitioner again asserts that trial and appellate
counsel failed to investigate, develop, and discover “compelling mitigating
evidence” that “would have further explained [Petitioner’s] background,
mental illness, and history” to the jury. Petitioner now argues that trial and
appellate counsel unreasonably failed to present evidence of his “ability to
make a positive adjustment to incarceration,” as well as evidence of “the
realities of incarceration” in the Texas prison system, including Petitioner’s
well-founded fear of sexual assault in prison. Petitioner also submits an
affidavit from his ex-wife stating that he admitted being sexually assaulted
in prison and paying for protection from sexual assault while in prison.
Petitioner also submits affidavits from his ex-wife, his ex-wife’s mother,
and his ex-wife’s brother, expressing favorable aspects of his character,
describing him as “the best husband in the world,” the “best son-in-law a
mother could ask for,” and a good person who must have been “off his
rocker” when he committed these crimes. Petitioner alleges these witnesses
“were willing to provide evidence for [Petitioner’s] defense, but were not
contacted or utilized” by defense counsel at trial or on appeal.
Petitioner’s ex-wife testified at trial, and on cross-examination, expressed
some of the favorable aspects of Petitioner’s character presented here.
Petitioner’s defense team included a professional investigator who
developed mitigation evidence of his family and marital history that was
presented at sentencing. Two mental health professionals evaluated
Petitioner’s social and psychological background and testified extensively
to their findings during the sentencing stage. Petitioner presented
mitigating evidence suggesting his positive adjustment to incarceration, his
troubled background, and his chronic alcoholism. Any favorable character
evidence available from Petitioner’s ex-wife, ex-mother-in-law, and exbrother-in-law was certainly ascertainable at the time of trial or, at the
latest, on direct appeal, by the exercise of due diligence.
Grissom, No. PCD-2008-928, slip op. at 4-5.
By acknowledging the related direct appeal claim (and refusing to revisit it), the
OCCA in no way undercut its application of a waiver to the new claims Petitioner was
presenting for the first time on post-conviction. As his reliance on Cone further shows,
Petitioner, in an effort to bootstrap his post-conviction claims to his direct appeal claim,
is trying to create confusion where none exists. In Cone, 556 U.S. at 467, the Supreme
Court held that
[w]hen a state court refuses to readjudicate a claim on the ground that it has
been previously determined, the court’s decision does not indicate that the
claim has been procedurally defaulted. To the contrary, it provides strong
evidence that the claim has already been given full consideration by the
state courts and thus is ripe for federal adjudication.
Here, the very claim that the OCCA refused to hear in post-conviction was the claim
Petitioner had already raised on direct appeal, and consistent with Cone, this Court has
adjudicated that claim. However, Cone does not apply to Petitioner’s post-conviction
claims, and the Court therefore rejects Petitioner’s ambiguity argument in its entirety.
Next, Petitioner alleges inadequacy with respect to Rule 3.11. Once again
asserting that the Rule 3.11 standard is higher than the Strickland standard, Petitioner
argues that he did not have the opportunity to develop his additional trial counsel
mitigation claims on direct appeal. Petition, pp. 19-20, 99. However, as previously
discussed, the very reason Petitioner claims Rule 3.11 is inadequate has been specifically
rejected by the Tenth Circuit in Lott. Therefore, Petitioner cannot rely upon this assertion
to avoid the application of a procedural bar to his claim. See English, 146 F.3d at 1264
(recognizing Oklahoma’s procedural bar of trial counsel claims not raised on direct
appeal where (1) trial and appellate counsel were different and (2) Rule 3.11 is
adequately and evenhandedly applied).7
Petitioner also challenges the adequacy and independence of the procedural bar
applied to his claims based on the OCCA’s decision in Valdez v. State, 46 P.3d
703 (Okla. Crim. App. 2002). Petitioner asserts that because Valdez gives the OCCA
discretion to grant relief on claims which would otherwise be precluded from merits
review due to the OCCA’s own procedural rules, the OCCA’s procedural rules are not
consistently applied. Petitioner also claims that because the OCCA must necessarily
review the underlying claim in order to evaluate whether Valdez relief is warranted, the
OCCA’s rules are not independent. Petition, pp. 19, 99-100. This argument, however,
has been rejected by the Tenth Circuit. Fairchild v. Trammell, 784 F.3d 702, 719 (10th
Cir. 2015), cert. denied, 136 S. Ct. 835 (2016); Williams v. Trammell, 782 F.3d 1184,
1213 (10th Cir. 2015), cert. denied, 136 S. Ct. 806 (2016); Banks v. Workman, 692 F.3d
1133, 1145-47 (10th Cir. 2012).
Finally, Petitioner asserts that he can overcome the application of a procedural bar
to his post-conviction claims by satisfying the cause and prejudice exception.
Coleman, 501 U.S. at 750, the Supreme Court held that a habeas petitioner can obtain
merits review of a claim he defaulted in state court by “demonstrat[ing] cause for the
default and actual prejudice as a result of the alleged violation of federal law . . . .”
Respondent has cited numerous cases in support of Rule 3.11’s adequacy. Response, pp. 27-28.
In the reply, Petitioner makes no attempt to counter Respondent’s showing, but instead reasserts
his Cone argument and argues ineffective assistance of appellate counsel as cause and prejudice
to excuse the application of a procedural bar to these claims. Reply, pp. 3-4. See Ground Ten,
infra (discussing petitioner’s burden when respondent raises a procedural bar defense).
Petitioner’s alleged cause is that his appellate counsel were ineffective for failing to raise
the claims on direct appeal. Petition, p. 20. See Ryder ex rel. Ryder v. Warrior, 810 F.3d
724, 747 (10th Cir. 2016) (“A claim of ineffective assistance of appellate counsel can
serve as cause and prejudice to overcome a procedural bar, if it has merit.”). Petitioner
made this same argument to the OCCA. Applying Strickland, the OCCA found that
Petitioner had failed to show that his appellate counsel was constitutionally ineffective.
Grissom, No. PCD-2008-928, slip op. at 6-7. In particular, the OCCA held:
[W]e are not convinced that Petitioner’s submissions demonstrate
ineffective assistance of counsel. Appellate counsel conducted a competent
mitigation investigation on direct appeal, and sought to supplement the
appellate record with the results of that investigation. Appellate counsel
also raised several non-frivolous issues on appeal, including claims of
ineffective assistance of trial counsel equal or superior to the current claims
in terms of their overall merit. Petitioner has not included any information
in this application to show that counsel’s failure on direct appeal to pursue
this particular mitigation claim, in this particular way, was not the result of
sound strategy. Appellate counsel is not required to raise every nonfrivolous issue on appeal. Harris v. State, 2007 OK CR 32, ¶ 5, 167 P.3d
438, 442. Because Petitioner has not shown that appellate counsel’s
omission of this information on direct appeal was unreasonable under
prevailing professional standards, he cannot show entitlement to relief
Id. at 7. The Court owes AEDPA deference to this determination. Ryder, 810 F.3d at
746 (citing Turrentine v. Mullin, 390 F.3d 1181, 1202 (10th Cir. 2004)).
Claims regarding the effectiveness of appellate counsel are governed by
Strickland, which the OCCA applied. Milton v. Miller, 744 F.3d 660, 669 (10th Cir.
2014) (citing Smith v. Robbins, 528 U.S. 259, 285 (2000)).
In accordance with
Strickland, a petitioner alleging appellate counsel ineffectiveness must show (1) that his
appellate counsel’s actions on appeal were objectively unreasonable and (2) that, but for
counsel’s unreasonable actions, he would have prevailed on appeal. Robbins, 528 U.S. at
285-86; Miller v. Mullin, 354 F.3d 1288, 1297 (10th Cir. 2004) (quoting Ellis v. Hargett,
302 F.3d 1182, 1186-87 (10th Cir. 2002)). As previously discussed with respect to
Petitioner’s dementia claim, both Strickland and the AEDPA are highly deferential
standards, “and when the two apply in tandem, review is ‘doubly’ so.” Richter, 562 U.S.
at 105 (citation omitted).
In an attempt to show that the OCCA’s ruling on his appellate counsel claim is
unreasonable, Petitioner asserts that the OCCA’s rationale was “unsound and
unconvincing.” Petitioner additionally states that the OCCA’s evaluation of the claims
raised on direct appeal to the claims Petitioner asserts should have been raised was
“irrelevant and unhelpful.” Petition, p. 20. However, the Court finds that Petitioner’s
arguments fall far short of showing that the OCCA’s ruling is unreasonable.
When an appellate counsel claim concerns omitted issues, Strickland’s first prong
requires a showing that counsel unreasonably omitted “nonfrivolous issues.” Robbins,
528 U.S. at 285. When counsel has filed a brief on the merits, it is difficult to show his
incompetence for failing to raise a particular claim. Id. at 288. Appellate counsel does
not have an obligation to raise every possible claim irrespective of its merit. In fact, “the
hallmark of effective appellate advocacy” is the “process of ‘winnowing out weaker
arguments on appeal and focusing on’ those more likely to prevail . . . .” Smith v.
Murray, 477 U.S. 527, 536 (1986) (quoting
Jones v. Barnes, 463 U.S. 745, 751-
52 (1983)). “This has assumed a greater importance in an era when oral argument is
strictly limited in most courts–often to as little as 15 minutes–and when page limits on
briefs are widely imposed.” Jones, 463 U.S. at 752-53. The OCCA’s determination of
Petitioner’s appellate counsel claim is consistent with this authority. The omitted claims
Petitioner faults his appellate counsel for not raising on direct appeal are not as legally
compelling as Petitioner asserts, and therefore this is not a situation where all fairminded
jurists would agree that the OCCA got it wrong. The OCCA’s decision is entitled to
double deference, and in light of the same, the Court concludes that the OCCA
reasonably denied Petitioner relief. Accordingly, Petitioner has not shown adequate
cause to overcome his default.
For the foregoing reasons, the Court concludes that Petitioner has given no valid
reason to overcome the application of a procedural bar to the additional trial counsel
ineffectiveness claims he raised in post-conviction. They are, therefore, procedurally
Trial Counsel’s Failure to Request Jury Instructions.
Related to the jury instruction challenges he brings in his Grounds Three (defense
of voluntary intoxication and lesser included offenses), Four (victim impact), and
Five (mitigation), Petitioner asserts here that trial counsel were ineffective for failing to
request “[c]ritically [i]mportant” jury instructions.
Petition, p. 31.
In denying this
ineffectiveness claim, the OCCA held that because it found no prejudicial error related to
the jury instructions, Petitioner could not obtain relief under Strickland because he could
not “show a reasonable probability that, but for counsel’s allegedly unprofessional errors,
the outcome of the trial would have been different.” Grissom, 253 P.3d at 994. Having
also explored the underlying claims and determined that the OCCA did not act
unreasonably in denying Petitioner relief on the same, the Court makes the additional
determination here that the OCCA was not unreasonable in denying this related challenge
to his trial counsel’s representation. See Hanson v. Sherrod, 797 F.3d 810, 839 (10th Cir.
2015) (refusing to analyze a petitioner’s ineffectiveness claim based on trial counsel’s
failure to object to instances of prosecutorial misconduct where the underlying instances
of alleged misconduct were without merit), cert. denied, 136 S. Ct. 2013 (2016). See also
Freeman v. Attorney General, 536 F.3d 1225, 1233 (11th Cir. 2008) (“A lawyer cannot
be deficient for failing to raise a meritless claim . . . .”); Snow v. Sirmons, 474 F.3d 693,
724-25 (10th Cir. 2007) (trial counsel was not ineffective for failing to object to certain
evidence that the OCCA found admissible); Spears v. Mullin, 343 F.3d 1215, 1249 (10th
Cir. 2003) (trial counsel was not ineffective for failing to object to the giving of a flight
instruction where the OCCA found that sufficient evidence supported the giving of the
Regarding trial counsel’s failure to request lesser included instructions, the Court
notes that Petitioner does not fault his counsel for confessing guilt in the first stage but
instead disputes the fact that trial counsel did so. Relying on affidavits executed by trial
counsel some four and a half years after trial and over a year and a half after the OCCA
decided this claim on direct appeal,8 Petitioner also asserts that trial counsel’s failure to
request these instructions “was borne of ignorance not strategy.” Petition, p. 34. As
detailed in Ground Three, infra, the trial transcript supports the OCCA’s finding that trial
Again, the Court cannot consider Petitioner’s later-developed evidence. Pinholster, 563 U.S. at
counsel confessed guilt.
Because trial counsel confessed guilt and did so with
Petitioner’s express consent, trial counsel cannot be deemed ineffective for failing to
request lesser included instructions.
Trial Counsel’s Failure to Object to the Prosecutor’s Second Stage
Petitioner’s final charge against his trial counsel is their failure to object to any of
the prosecutor’s allegedly improper arguments which comprise his Ground Seven. As
with his previous challenge to counsel’s conduct, the OCCA addressed this claim on the
merits and denied relief due to the absence of Strickland prejudice. Grissom, 253 P.3d at
993-94. Affording AEDPA deference, and with consideration to the substance of the
underlying prosecutorial misconduct claims, the Court finds that the OCCA’s
determination is a reasonable one. Hanson, 797 F.3d at 839.
Ineffective Assistance of Appellate Counsel.
Lastly, Petitioner reiterates that if his appellate counsel failed to “rais[e] each and
every instance of trial counsel’s ineffectiveness as well as all errors exiting [sic] both in
and outside the record[,]” then they were ineffective.
Petition, p. 35.
Grounds One, Two, and Nine, Petitioner has faulted his appellate counsel for failing to
raise certain claims. Because the Court has addressed the appellate counsel component
within each particular ground, it is unnecessary to elaborate further here. Petitioner is not
entitled to relief based on a claim of appellate counsel ineffectiveness.
For the reasons set forth herein, the Court has concluded that Petitioner has failed
to show his entitlement to relief based on the ineffectiveness of his trial and appellate
counsel. Accordingly, Ground One is denied in its entirety.
Eighth Amendment Execution Challenge.
In Ground Two, Petitioner asserts that because his “severely malformed and
damaged brain significantly impairs his ability to exercise rational judgment and conform
his conduct to the requirements of the law[,]” the Eighth Amendment prohibits his
execution. Petition, p. 39. Petitioner raised this claim in post-conviction; however, the
OCCA procedurally barred it, finding that Petitioner should have raised the claim on
The OCCA additionally found that his appellate counsel was not
ineffective for failing to raise the claim. Grissom, No. PCD-2008-928, slip op. at 10-13.
Respondent asserts that this Court should procedurally bar Petitioner’s second ground for
relief but also argues that the claim lacks merit. Petitioner questions whether the OCCA
found the claim waived but also asserts that a procedural bar can be overcome by his
appellate counsel’s ineffectiveness. Petitioner cites both Atkins v. Virginia, 536 U.S.
304 (2002), and Roper v. Simmons, 543 U.S. 551 (2005), in support of his request for
In his post-conviction application, Petitioner argued that execution of the severely mentally ill
constitutes cruel and unusual punishment. Based on Dr. McGarrahan’s report, Petitioner
asserted that his dementia diagnosis placed him in the severely mentally ill category. He cited
both Atkins and Roper (among other authority) in support of his claim. Grissom, No. PCD2008-928, slip op. at 10-11; Application for Post-Conviction Relief at 31-35. In light of new
evidence Petitioner has obtained, evidence which has never been presented to the OCCA,
In refusing to reach the merits of Petitioner’s Ground Two, the OCCA found that
both the legal and factual basis for the claim was available at the time of his direct appeal.
Grissom, No. PCD-2008-928, slip op. at 11.
This finding supported its ultimate
conclusion that the claim had been waived. Id. at 13. As the OCCA stated,
The Post-Conviction Procedure Act was neither designed nor
intended to provide applicants another direct appeal. Claims which could
have been raised in previous appeals but were not are generally waived in
post-conviction proceedings . . . . The only issues authorized by the postconviction statute are those that “[w]ere not and could not have been raised
in a direct appeal,” which “support a conclusion either that the outcome of
the trial would have been different but for the errors or that the defendant is
factually innocent.” 22 O.S.Supp.2006, § 1089(C).
Id. at 2 (citation omitted). Therefore, contrary to Petitioner’s first argument, it is clear
that the OCCA found his Ground Two waived and that such waiver was based on a state
Regarding Petitioner’s stated cause, that his appellate counsel was ineffective for
failing to raise this claim on direct appeal, the OCCA offered the following analysis:
The Eighth and Fourteenth Amendments to the United States
Constitution, as well as the Oklahoma Statutes, prohibit the execution of a
person who suffers from mental retardation or insanity. Atkins; Ford v.
Wainwright, 477 U.S. 399, 106 S.Ct. 2595, 91 L.Ed.2d 335 (1986);
21 O.S.Supp.2006, § 701.10b(B); 22 O.S.2001, § 1005 (2001) et seq. On
direct appeal, this Court found that Dr. McGarrahan’s testimony and related
evidence did not create a strong possibility that trial counsel was ineffective
in failing to develop and utilize this additional evidence of Petitioner’s
dementia or cognitive impairments at trial. We found that this evidence of
dementia or significant cognitive impairment was contradicted by other
facts and dubious at best, and thus insufficient to show deficient
Petitioner has included in his Ground Two more detail regarding his mental dysfunction, brain
damage, and cognitive function. As discussed herein, this additional detail does not enter into
the Court’s adjudication of the claim.
performance by trial counsel or any reasonable probability of a different
outcome at trial. Grissom, 2011 OK CR 3, ¶ 82.
The Supreme Court has not extended its Eighth Amendment
holdings in Ford, Atkins, and Roper to prohibit executions of persons who
suffer “severe mental illness.” We decline to find any such prohibition
generally exists in the state or federal constitutional bans on cruel and/or
unusual punishments; and even if it did, the facts show that Petitioner’s
cognitive functioning at the time of these crimes did not significantly
impair his capacity to appreciate the nature or wrongfulness of his conduct;
to exercise rational judgment, or to conform his conduct to the requirements
of the law. In sum, the lack of substantive factual and legal merit to this
claim precludes a finding that appellate counsel was ineffective in failing to
raise the issue in a direct appeal. Smith, 2010 OK CR 24, ¶ 11, 245 P.3d at
1237-38. The issue is waived, and no relief is required.
Grissom, No. PCD-2008-928, slip op. at 12-13. As previously noted, the Court owes
AEDPA deference to this determination, Ryder, 810 F.3d at 746, and the Court finds that
Petitioner has not shown this determination to be unreasonable.
First, because the vast majority of Petitioner’s argument is based on evidence
which was not before the OCCA when it decided that his appellate counsel were not
ineffective for failing to raise this claim, the Court cannot consider it. Pinholster prevents
Petitioner from undercutting the OCCA’s ruling with evidence that the OCCA did not
have. Pinholster, 563 U.S. at 181. Second, for the reasons set forth in Ground One,
supra, Petitioner’s challenges here to the OCCA’s assessment of Dr. McGarrahan’s
opinion are without merit. The Court has already determined that the OCCA did not act
unreasonably in finding that Dr. McGarrahan’s dementia diagnosis did not correlate to
the manner in which Petitioner carried out his crimes, and nothing Petitioner re-urges
here convinces the Court otherwise. And finally, despite Petitioner’s assertion that he
would have been spared the death penalty if his appellate counsel had raised this claim,
Reply, p. 8, the law does not support this conclusion. As the OCCA noted, there is no
Supreme Court authority which supports Petitioner’s claim. Grissom, No. PCD-2008928, slip op. at 12. In Atkins, 536 U.S. at 321, the Supreme Court found that the Eighth
Amendment prevents the execution of mentally retarded defendants, and in Roper,
543 U.S. at 578, the Supreme Court extended the execution ban to juvenile defendants.
These, however, are the only categorical exclusions to date. See Hall v. Florida, 572 U.S.
___, 134 S. Ct. 1986, 1992 (2014) (citing Atkins and Roper in its acknowledgment that
“[t]he Eighth Amendment prohibits certain punishments as a categorical matter”).
Petitioner’s argument that the principles and rationales which justify the holdings of
Atkins and Roper can be extended to cover his cognitive dysfunction is unavailing. See
Fairchild, 784 F.3d at 710 (“Federal courts may not ‘extract clearly established law from
the general legal principles developed in factually distinct contexts,’ and Supreme Court
holdings ‘must be construed narrowly and consist only of something akin to on-point
holdings[.]’”) (quoting House v. Hatch, 527 F.3d 1010 (10th Cir. 2008)).
For the foregoing reasons, the Court finds that Petitioner’s Ground Two is
First Stage Jury Instructions.
In Ground Three, Petitioner makes two challenges to the first stage jury
instructions, both related to the defense of voluntary intoxication. Petitioner asserts that
(1) the instructions regarding intoxication as a defense were incomplete and confusing
and (2) he should have received instructions on lesser included offenses (second degree
murder and/or manslaughter) as part of his intoxication defense. Petitioner contends that
the absence of lesser included instructions constitutes a violation of Beck v. Alabama,
447 U.S. 625 (1980). Petitioner additionally contends that these errors violated his right
to present a complete defense and his right to a fair trial. Petitioner raised this claim on
direct appeal. The OCCA thoroughly addressed Petitioner’s claim, but ultimately found
that he was not entitled to any relief because his trial counsel, with Petitioner’s on-therecord consent, unabashedly admitted Petitioner’s guilt in the first stage. The OCCA
additionally found that because the presented evidence did not support the giving of
instructions on the defense of voluntary intoxication, Petitioner was not entitled to relief
based on any error associated with the intoxication instructions that were given.
Grissom, 253 P.3d at 979-85. AEDPA deference applies to this merits determination.10
In Beck, the Supreme Court addressed the constitutional ramifications of lesser
included instructions for a capital crime. Prior to Beck, the Supreme Court had “never
held that a defendant is entitled to a lesser included offense instruction as a matter of due
process.” Beck, 447 U.S. at 637. In Beck, however, the Supreme Court carved out an
exception for those high stake cases where the death penalty is a possible punishment.
For when the evidence unquestionably establishes that the defendant is
guilty of a serious, violent offense–but leaves some doubt with respect to an
element that would justify conviction of a capital offense–the failure to give
the jury the “third option” of convicting on a lesser included offense would
seem inevitably to enhance the risk of an unwarranted conviction.
Concluding that Petitioner is not entitled to relief on Ground Three pursuant to
Section 2254(d), the Court has not considered Petitioner’s Exhibits 6, 7, 22, and 26, which were
not presented to the OCCA in its consideration of Petitioner’s Ground Three. Pinholster,
563 U.S. at 181.
Such a risk cannot be tolerated in a case in which the defendant’s life
is at stake. As we have often stated, there is a significant constitutional
difference between the death penalty and lesser punishments . . . .
Id. Beck, therefore, requires a trial court in a capital case to give the jury a third option to
convict the defendant for a lesser included non-capital offense, when such lesser offense
is supported by the evidence. Id. at 627.
The Tenth Circuit has repeatedly held that a petitioner may not prevail on a Beck
claim premised on a lesser included instruction he failed to request at trial. Grant v.
Trammell, 727 F.3d 1006, 1011-13 (10th Cir. 2013). In Grant, the Tenth Circuit, citing
its holding in Hooks v. Ward, 184 F.3d 1206 (10th Cir. 1999), noted that “[t]he Hooks
rule is federal in nature, an explanation of what’s required as a matter of federal due
process doctrine to invoke Beck.” Grant, 727 F.3d at 1011. “[A] state generally won’t be
said to offend a defendant’s due process right to particular jury instructions when it has
no occasion to refuse a request for them.” Id. at 1012. Since Hooks, the Tenth Circuit
has “expressly and repeatedly” denied Beck relief in the absence of a request for the
instruction at trial. Id. (citing Thornburg v. Mullin, 422 F.3d 1113, 1126-27 (10th Cir.
2005); Darks v. Mullin, 327 F.3d 1001, 1007 (10th Cir. 2003); Hogan v. Gibson,
197 F.3d 1297, 1303 n.3 (10th Cir. 1999); and Smith v. Gibson, 197 F.3d 454, 464 (10th
Petitioner did not request a lesser included instruction. In fact, trial counsel did
not file a written request for any instructions and the trial transcript does not show that
any oral requests were made either. Under the foregoing Tenth Circuit authority, this
precludes Petitioner’s claim for Beck relief.
Nevertheless, Petitioner makes two
arguments to avoid application of this binding circuit precedent. The first is that the
Hooks holding is not really a holding at all. Petition, pp. 55-56. However, this very
argument was dispelled in Grant, 727 P.3d at 1012-13. Petitioner’s second argument is
that by asking the trial court to include a definition of alcohol in the jury instructions, he
tacitly requested lesser included instructions (Tr. VII, 17). Petition, p. 56. The Court
cannot agree to this stretch of the record. Trial counsel made no mention of lesser
included offenses when he requested two changes to the trial court’s instructions (Tr. VII,
In denying Petitioner relief, the OCCA did not rest its holding on Petitioner’s
failure to request a lesser included instruction. Instead, looking at the bigger picture, the
OCCA held that by admitting his guilt in the first stage and “electing a sentencing stage
defense, [Petitioner] foreclosed his claim to first-stage jury instructions on lesserincluded offenses.” Grissom, 253 P.3d at 982. This conclusion finds support in Beck.
As noted above, Beck applies when a defendant’s guilt is overwhelming, but yet there
remains “some doubt with respect to an element that would justify conviction of a capital
offense.” Beck, 447 U.S. at 637. Because Petitioner confessed guilt in the first stage,
there was no doubt which would support the giving of a lesser included offense
See Order Denying Petition for Rehearing and Directing Issuance of
Mandate at 2-9 (rejecting Petitioner’s assertion that the OCCA’s decision conflicted with
In its opinion, the OCCA noted Petitioner’s on-the-record consent to the strategy
of confessing guilt in the first stage, along with numerous statements made by trial
counsel starting in voir dire. Grissom, 253 P.3d at 980-81. The OCCA described the
record as being “replete with counsel’s statements that [Petitioner] was admitting he
committed first degree murder and the other crimes alleged, and was simply seeking to
persuade the jury to spare his life due to his remorse and other mitigation evidence[,]”
and it concluded that “[d]efense counsel at no point contested [Petitioner’s] guilt of first
degree murder.” Id. at 981. With reference to the Supreme Court’s decision in Florida v.
Nixon, 543 U.S. 175 (2004), the OCCA additionally noted the viability of pursuing such
a strategy when, as in Petitioner’s case, there was overwhelming evidence of
guilt. Grissom, 253 P.3d at 981-82.
Petitioner vehemently protests the OCCA’s conclusion that he confessed guilt in
the first stage. He insists that while that may have been the strategy during voir dire and
at the beginning of the trial (when trial counsel declared the same on the record and
Petitioner consented to it – Tr. IV, 3), he argues that a defense based on voluntary
intoxication evolved as the trial went on. In support of his strategy evolution argument,
Petitioner argues that the trial court would not have given any intoxication instructions
unless the defense had been raised. He also points to his closing argument, wherein trial
counsel noted the defense of intoxication instruction and discussed the amount of alcohol
Petitioner had consumed since the night before the murder.
The OCCA’s determination that Petitioner confessed his guilt in the first stage is a
finding of fact.
The AEDPA has two provisions which govern state-court factual
determinations. Section 2254(d)(2) permits habeas relief where the state court rendered
“a decision that was based on an unreasonable determination of the facts in light of the
evidence presented in the State court proceeding[,]” and Section 2254(e)(1) affords a
presumption of correctness to state court factual determinations that can only be rebutted
by clear and convincing evidence. Because the Supreme Court has not yet decided the
relationship between these provisions, the Court will assess Petitioner’s challenge to the
OCCA’s conclusion under Section 2254(d)(2), the one most favorable to him.
Brumfield v. Cain, 576 U.S. ___, 135 S. Ct. 2269, 2282 (2015); Titlow, 134 S. Ct. at 15;
Wood v. Allen, 558 U.S. 290, 299-301 (2010); Grant, 727 F.3d at 1024 & n.6. Even
under Section 2254(d)(2), however, Petitioner’s ability to obtain relief is limited.
Although Section 2254(d)(2) is less deferential to the state court’s factual findings than
Section 2254(e)(1), it is nevertheless “restrictive.” Johnson v. Williams, 568 U.S. ___,
133 S. Ct. 1088, 1092 (2013). “[A] state-court factual determination is not unreasonable
merely because the federal habeas court would have reached a different conclusion in the
first instance.” Wood, 558 U.S. at 301.11
The Court finds that Petitioner has not shown that the OCCA made an
unreasonable determination by concluding that he had confessed guilt in the first stage.
In addition to numerous admissions that Petitioner committed premediated murder by
Under Section 2254(d)(2), Petitioner must show that the OCCA based its decision on the
factual determinations he questions. Grant, 727 F.3d at 1023-24 (emphasizing the “based on”
language of Section 2254(d)(2) and noting that findings which “concerned only subsidiary issues
that the OCCA mentioned in passing” would not satisfy Section 2254(d)(2)). While the OCCA’s
determination that Petitioner confessed guilt in the first stage was clearly a basis upon which it
denied Petitioner’s Ground Three, Petitioner has challenged other factual determinations made
by the OCCA. Petition, pp. 49-50 (whether, on the day before the murder, Petitioner and his codefendant discussed plans to commit crimes for money; the location of Petitioner’s hotel –
Oklahoma City or Del City; and the OCCA’s description of the altercation between Petitioner
and the surviving victim, Dreu Kopf). Because these are all collateral facts, none of which even
remotely served as a basis for the OCCA’s determination of Petitioner’s Ground Three (or any of
his other grounds), they cannot serve as a basis for relief under Section 2254(d)(2).
killing an innocent young lady in cold blood, trial counsel repeatedly stated that the
defense would offer absolutely no excuse for Petitioner’s actions:
“[Petitioner] shot and murdered a beautiful 23 year old girl in cold
blood” (Tr. I, 124).
“Tell me your views on the death penalty . . . [f]or somebody who is
completely guilty of murder in the first degree. There is no insanity.
There is no self defense. There is no intoxication. There is no
mitigation. Someone completely guilty of murder in the first degree.
. . . [T]here is no reason for this crime. There is no reason. We have
tried to figure it out. There is none. There is none” (Tr. I, 126).
“Well you are going to hear the police evidence and the witnesses
and they are going to tell you what I told you. That it’s murder of a
beautiful 23 year old girl in cold blood and no reason for it. . . .
Proven beyond a reasonable doubt which is the highest burden of the
law, it’s going to be” (Tr. I, 127).
“They will introduce evidence that will prove to your satisfaction
that [Petitioner] murdered 23 year old Amber Matthews in cold
blood” (Tr. I, 131).
“What do you believe might mitigate a situation like this, a crime
like this where there is no question about it, innocent, not any little
tiny part of the problem, he started it, he caused it, he did it, the
crime that we are here on today” (Tr. I, 152).
“[T]he evidence will show that it is a cold-blooded, calculated,
premeditated act of murder and that the persons or the person that it
was inflicted on, the other girl who was shot had no involvement,
didn’t cause it, didn’t want it, do anything for it to be” (Tr. I, 17071).
“So under the circumstances of this case, there is no question that
[Petitioner], the evidence is going to show you, these gentlemen will
introduce that, will prove to your satisfaction that [Petitioner] on
November 3rd, 2005 took the life of a beautiful young girl for no
good reason. She had no involvement in it, caused it, anything to do
with it” (Tr. I, 179).
“You have heard me talk to lots of the other jurors about this and
advised them about what happened in this senseless tragedy” (Tr. I,
“Well, I’m going to make sure that you understand that there is no
question that the evidence will be there, that he is guilty of
premediated first degree murder of a beautiful young girl that had
nothing to do with it at all. . . . Twenty-three years old. . . . Just
happened to be over at her friend’s house and her friend is shot three
times. . . . She had nothing to do with it, either one of them. . . . So
that’s what I anticipate that the evidence that these gentlemen can
introduce will be and so we have had hearings, we have seen the
evidence, and I’m telling you that’s what it will show” (Tr. I, 18384).
“Everyone involved in it except for [Petitioner] was innocent. Do
you understand that?” (Tr. I, 190).
clear” (Tr. I, 195).
“Now what do you think about the death penalty for someone who
has committed a cold-blooded murder on an innocent victim? There
are no defenses” (Tr. II, 115).
“And I will tell you because we want to get people on the jury who
are able to give real meaningful consideration to all of the possible
penalties in the case, that the evidence in this case will show you that
on November 3rd, 2005 [Petitioner], the evidence that the
prosecutors will introduce will show you that he murdered a
beautiful 23 year old girl and he shot another beautiful girl, neither
of which had any involvement in it, they didn’t cause it, they didn’t
have anything to do with it. That is what the evidence will show in
the case” (Tr. II, 119).
“Open and shut guilty” (Tr. II, 120).
“He’s guilty, sir. Cold-blooded, premediated murder” (Tr. II, 124).
“You’re going to find that he is guilty of murder in the first
degree” (Tr. II, 125).
“Yes, he is guilty.
You have made that
“And then we will present on behalf of [Petitioner] evidence about
his life and evidence about what happened in his life that brought
him to that magic day. Things like his incredible drinking problem,
very drunk at the time this happened. Those are some things. They
are not legal defenses to murder. They are in mitigation to whether
or not, as to the penalty he should receive” (Tr. II, 126).
“I offer no excuse for what happened and I can’t figure it out and I
won’t be able to figure it out, but I’m going to let you know what
kind of man he has been in his life and the problems he has
had” (Tr. II, 127).
“Not insane, there is no reason for what happened, senseless” (Tr. II,
“Well that is what the evidence is going to show, that on that day in
November, on November 3rd, 2005 about 12:30 p.m. he shot out the
window to the house where one young lady lived and ended up
shooting her three times and then there was another girl in the other
room holding a baby and she was shot twice in the head. And that is
what the evidence will show that these gentlemen will introduce in
this case” (Tr. II, 152).
“It will be a clear cut case of murder in the first degree, I can assure
you of that” (Tr. II, 162).
“[T]he first stage is the evidence where you decide whether or not
[Petitioner] is guilty of murder in the first degree and the other
crimes. And there is no question that will be the verdict of the
jury” (Tr. II, 164).
“Well, the facts are that this man killed a young lady, 23 years old,
shot her in the head twice. At least the first shot while she was
holding a baby. And then shot another young lady several times,
three times. No, they didn’t have anything to do with it, they were
completely innocent, at home at 12:30 in the afternoon” (Tr. II, 170).
“Well it will be proven that he will be guilty of murder in the first
degree and in a premediated manner he took the life of a 23 year old
girl who had nothing to do with it. There is no reason for it” (Tr. II,
“Well I anticipate that the evidence they produce will prove that he
is guilty of murder in the first degree. . . . It will. . . . Well, if he is
not guilty – and I’m telling you he is guilty. . . (Tr. II, 190).
“But assuming that the evidence comes out like I believe it will you
will find him guilty” (Tr. II, 191).
“It’s not often you hear a lawyer say his client is guilty, is it? . . .
That’s what the evidence will show” (Tr. III, 29).
“[M]ake no mistake about it, there are no excuses for what
[Petitioner] did that day” (Tr. III, 70).
“[T]his crime makes no sense” (Tr. III, 78).
“And now comes to what I ask you, ladies and gentlemen, to bear
with me in this first stage of the trial and let me argue. . . .
[Petitioner] has always stood up and said I did it and I’m here to face
it. That’s right. That’s probably the hardest thing I ever had to do. I
have had to stand here before you and admit that my client
[Petitioner] pulled the trigger on a .44 revolver and ended the life of
Amber Matthews” (Tr. III, 79).
Consistent with this strategy, trial counsel cross-examined only three of the twenty-eight
witnesses presented in the State’s case-in-chief (Tr. V, 57, 123-28; Tr. VI, 60-61).12
Although trial counsel asked two of them about vodka bottles found in Petitioner’s truck
and one of them about the depression medication found in Petitioner’s motel room, trial
counsel asked no questions to these three witnesses or the many other witnesses13 who
Steve Neuman was recalled to the witness stand as Petitioner’s sole guilt stage witness. Trial
counsel asked him additional questions about the medication (Cymbalta) found in Petitioner’s
motel room and also questioned him about the two statements Petitioner gave and how Petitioner
assisted law enforcement in finding one of the weapons he used in the commission of his crimes.
Trial counsel did not ask this witness any questions related to Petitioner’s intoxication (Tr. VI,
68-74). See n.13, infra.
Nine testifying witnesses had contact with Petitioner:
Dreu Kopf (the surviving victim),
Johnny France (a farmer who gave Petitioner and his co-defendant a ride to the Hillstop Cafe
had contact with Petitioner that day regarding whether Petitioner appeared and/or acted
like he was intoxicated.
Although there is surface validity to Petitioner’s argument that the trial court’s
instructions on intoxication lend support to his assertion that the defense was raised, the
record is not as supportive as Petitioner would like.
First, the record contains no
discussion as to why the instructions were given. The trial judge stated only that he gave
the instructions he felt were appropriate (Tr. VII, 18). Second, although Petitioner argues
that the defense was raised based on evidence that he was extremely, incredibly,
fantastically, and unbelievably drunk (Petition, pp. 41, 45, 49; Reply, p. 11), the
intoxication instructions the trial court gave dealt only with Petitioner’s depression
medication, not his alcoholic intake, even though trial counsel requested that alcohol be
included upon learning that the trial court was sua sponte giving an intoxication
instruction (Tr. VII, 9, 17). And third, as discussed below, the OCCA found that the
evidence did not even warrant the giving of instructions on the defense of voluntary
Regarding closing argument, the Court finds that, contrary to Petitioner’s
assertion, the OCCA’s description of the same is on point. It was at most a slight
modification of the strategy employed from the start. Grissom, 253 P.3d at 981. Trial
counsel’s closing argument was a mere two and a half pages (Tr. VII, 28-30). Trial
after the murder), Danny Bond (a Hillstop Cafe patron), Melvin Casion (a vendor at the Hillstop
Cafe whom Petitioner asked for a ride), Brock Morgan (law enforcement), Julie
Copeland (Hillstop Cafe employee), Barry Reilly (law enforcement), Steve Neuman (law
enforcement), see n.12, supra, and Steve Tanio (law enforcement).
counsel discussed how Petitioner had accepted responsibility for his actions and how
he (they) maintained this position at trial. Trial counsel stated:
[Petitioner] admits to the crime. [He] is not a calculated killer. He is a lost
soul whose life spiraled out of control. I take nothing away from his
actions, but ask you to look at everything that happened that day and led up
to these events. It’s of a lost man whose alcoholism and depression
spiraled into a recipe for destruction.
(Tr. VII, 29-30). Although trial counsel directed the jury’s attention to the general
intoxication instruction and even discussed Petitioner’s drinking before the murder and
his appearance on the video recorded statement, this was likely sparked by the trial
court’s sua sponte inclusion of intoxication instructions. Trial counsel did not argue that
Petitioner lacked the mental state to be convicted of first degree malice murder and not
once did he say that Petitioner was too drunk to know what he was doing.
Regarding the intoxication instructions given by the trial court, the OCCA
acknowledged that they were incomplete. Grissom, 253 P.3d at 983. However, because
Petitioner was not entitled to instructions on a voluntary intoxication defense in the first
place, the OCCA found no error warranting relief. Id. at 983-85. Intertwined with his
challenge to the trial court’s failure to instruct the jury on any lesser included offense,
Petitioner continues his argument here that because he was extremely, incredibly,
fantastically, and unbelievably drunk, there is simply no question (in his mind) that he
was entitled to instructions on a voluntary intoxication defense.
“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). Because there is no constitutional right to intoxication
instructions, Petitioner “must show that, in the context of the entire trial, the error in the
instruction was so fundamentally unfair as to deny [him] due process.”
Workman, 445 F.3d 1265, 1267 (10th Cir. 2006); Spears, 343 F.3d at 1244.
Supreme Court has acknowledged that where, as here, Petitioner’s complaint relates to
“[a]n omission, or an incomplete instruction, [it] is less likely to be prejudicial than a
misstatement of the law.” Henderson v. Kibbe, 431 U.S. 145, 155 (1977). In light of
AEDPA deference as well, Petitioner’s ability to obtain relief on this claim is a
Whether or not Petitioner was entitled to instructions on voluntary intoxication
defense is a matter of state law.
In its opinion, the OCCA defined the “narrow
parameters” of the defense as follows:
‘A defense of voluntary intoxication requires that a defendant, first, be
intoxicated and, second, be so utterly intoxicated, that his mental powers
are overcome, rendering it impossible for a defendant to form the specific
criminal intent ... element of the crime.’
Grissom, 253 P.3d at 983 (quoting McElmurry v. State, 60 P.3d 4, 23 (Okla. Crim. App.
2002)). The OCCA ultimately concluded that “[w]hile the evidence established
[Petitioner’s] consumption of alcohol and prescription medication, it did not create a
prima facie case that [Petitioner] was so intoxicated that he could not form the specific
In separate headings, Petitioner argues that in the absence of complete and accurate
instructions on the defense of voluntary intoxication, he was denied both due process and his
right to present a complete defense. Petition, pp. 57-59. Because Petitioner’s right to due
process includes his right to present a defense, it is unnecessary to address these challenges
separately. See Chambers v. Mississippi, 410 U.S. 284, 294 (1973) (“The right of an accused in
a criminal trial to due process is, in essence, the right to a fair opportunity to defend against the
intent to commit these crimes.” Grissom, 253 P.3d at 985. In support of this conclusion,
the OCCA noted the following evidence which clearly showed that before, during, and
after the crimes, Petitioner functioned in a manner that was inconsistent with being
[Petitioner] loaded his pistols and left Oklahoma City that morning driving
west. He and his accomplice bought gloves at a convenience store shortly
before the crimes. He targeted an isolated rural residence for a home
invasion burglary because he needed money. He parked his truck in the
driveway of the home pointed toward the road for a quick getaway, telling
his accomplice to follow him when the shooting stopped. He engaged his
unsuspecting victims in a pretextual conversation, giving them a false name
and a phony cover story, then stormed the home with gunfire. He attempted
to murder the homeowner, and surely believing he had succeeded, he
executed her friend with two shots to the head from his .44. He fled on a
stolen four wheeler when the surviving victim took his waiting truck and
made her escape. He bought and paid for a beer at a country cafe within an
hour of the shootings. [Petitioner] later surrendered and cooperated with
authorities in locating the murder weapon where he had discarded it shortly
after his crimes.
[Petitioner] gave a detailed confession within hours after the
shootings. He was able to recount the details of his recent activities and his
life history leading up to the crimes.
This analysis is not unreasonable given the parameters of the defense and the
applicable case law. See id. at 984 (citing Frederick v. State, 37 P.3d 908 (Okla. Crim.
App. 2001), for the proposition that voluntary intoxication instructions are not warranted
where the defendant’s actions show use of his faculties, and Taylor v. State, 998 P.2d
1225 (Okla. Crim. App. 2000), for the proposition that the instructions are also not
warranted where the defendant has the ability to recall the details of his crimes). See also
Hendrix v. Trammell, 576 F. App’x 767, 769-70 (10th Cir. 2014) (noting the “specificity
of impairment necessary to satisfy the requirements of [Oklahoma] law”); Bland v.
Sirmons, 459 F.3d 999, 1031 (10th Cir. 2006) (acknowledging that “[t]he OCCA has held
that it belies a defense of voluntary intoxication for a defendant to have been sufficiently
aware so as to be able to testify about events surrounding a murder.”).
In conclusion, for the reasons set forth above, the Court concludes that because
Petitioner was not entitled to intoxication instructions under state law and because he
confessed guilt in the first stage and did not request any lesser included instructions,
Petitioner has not shown that the OCCA acted unreasonably when it denied him relief on
the claims contained in his Ground Three. Ground Three is therefore denied.
No Victim Impact Instruction.
In Ground Four, Petitioner brings another challenge to the instructions. Here,
Petitioner claims that he was denied due process and a reliable sentencing proceeding
because the jury was not given an instruction required by state law regarding the jury’s
consideration of victim impact evidence. Without the instruction, Petitioner contends
that “the jury was left to its own discretion on how to apply the testimony.” Petition,
p. 62. He argues that the harm was “incalculable.” Id. at 61. Petitioner raised this claim
on direct appeal, and while the OCCA found that error occurred, it also found that the
error was harmless. Grissom, 253 P.3d at 991. Respondent asserts that relief should be
denied because Petitioner has failed to meet the AEDPA standard for relief. The Court
The record reflects that the State presented one victim impact witness who read a
brief statement prepared by the deceased’s father (Tr. VII, 132-35). It is important to
note that Petitioner has never challenged the content of the statement, but only the
absence of an instruction regarding the same, namely, OUJI-CR (2d) 9-45, which
provides as follows:
The prosecution has introduced what is known as victim impact evidence.
This evidence has been introduced to show the financial, emotional,
psychological, or physical effects of the victim’s death on the members of
the victim’s immediate family. It is intended to remind you as the sentencer
that just as the defendant should be considered as an individual, so too the
victim is an individual whose death may represent a unique loss to society
and the family. This evidence is simply another method of informing you
about the specific harm caused by the crime in question. You may consider
this evidence in determining an appropriate punishment. However, your
consideration must be limited to a moral inquiry into the culpability of the
defendant, not an emotional response to the evidence.
As it relates to the death penalty: Victim impact evidence is not the same as
an aggravating circumstance. Proof of an adverse impact on the victim’s
family is not proof of an aggravating circumstance. Introduction of this
victim impact evidence in no way relieves the State of its burden to prove
beyond a reasonable doubt at least one aggravating circumstance which has
been alleged. You may consider this victim impact evidence in determining
the appropriateness of the death penalty only if you first find that the
existence of one or more aggravating circumstance has been proven beyond
a reasonable doubt by evidence independent from the victim impact
evidence, and find that the aggravating circumstance(s) found outweigh the
finding of one or more mitigating circumstances.
As it relates to the other sentencing options: You may consider this victim
impact evidence in determining the appropriate punishment as warranted
under the law and facts in the case.
In Payne v. Tennessee, 501 U.S. 808 (1991), the Supreme Court held that the
Eighth Amendment does not prohibit the admission of victim impact evidence. Finding
“no reason to treat such evidence differently than other relevant evidence,” the Court
acknowledged that “[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
Nothing in Payne, however, requires a capital jury to receive an instruction
regarding its consideration of victim impact evidence. Therefore, the question here is
simply whether the absence of one denied Petitioner a fundamentally fair trial. See
Ground Three, supra (setting forth the applicable review for an omitted instruction).
In denying Petitioner relief on this claim, the OCCA found that because “the
victim impact evidence . . . was brief and carefully circumscribed[,]” it “did not go to
the foundation of the case or take from [Petitioner] a right essential to his defense.”
Grissom, 253 P.3d at 991. The OCCA found that, unlike the cases where it had granted
relief for this omission, Petitioner’s case was not one where the presented victim impact
evidence came close to or crossed over the appropriate limits for such testimony. Id. See
Payne, 501 U.S. at 825 (acknowledging that a Fourteenth Amendment violation may be
found where the evidence introduced “is so unduly prejudicial that it renders the trial
fundamentally unfair”). Petitioner has not shown that this conclusion is unreasonable.
Petitioner’s argument is nothing more than an assertion that victim impact evidence can
be powerful and that without an instruction, the jury may have considered the victim
impact evidence in some unknown inappropriate manner. The Tenth Circuit has denied
habeas relief in similar challenges with stronger arguments. See Hamilton v. Mullin,
436 F.3d 1181, 1192-93 (10th Cir. 2006) (denying relief where the petitioner argued that
the absence of the victim impact instruction “allowed the jury to rely on the victim
impact evidence to bolster its findings of four aggravating circumstances”); Turrentine v.
Mullin, 390 F.3d 1181, 1199-1201 (10th Cir. 2004) (denying relief where in addition to
the lack of an instruction, the petitioner alleged that the substance of the victim impact
testimony violated his due process rights). See also Young v. Sirmons, No. 00-00310JHP-PJC, 2007 WL 2248158, at *18 (N.D. Okla. Aug. 2, 2007) (denying relief where the
petitioner’s arguments about what the jury may have done with the victim impact
evidence was “mere speculation”). Relief is denied here.
Mitigating Circumstances Instruction.
In Ground Five, Petitioner asserts that the trial court gave a uniform jury
instruction which prevented the jury from considering all of his mitigating evidence as
mandated by Lockett v. Ohio, 438 U.S. 586, 604 (1978). Petitioner raised this claim on
direct appeal but was denied relief. Grissom, 253 P.3d at 990-91. Respondent asserts
that Petitioner has failed to demonstrate that the OCCA’s rejection of this claim is
contrary to or an unreasonable application of Supreme Court law.
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 U.S. at 604 (footnotes omitted). Contrary to this
holding, Petitioner contends that his jury was given a definition of mitigating
circumstances which limited its consideration of his mitigating evidence. The instruction
in question is Instruction No. 54, and the portion of the instruction which Petitioner takes
issue with is as follows: “Mitigating circumstances are those which, in fairness,
sympathy, and mercy, may extenuate or reduce the degree of moral culpability or
blame” (O.R. V, 664).
Petitioner contends that this language “ultimately precluded
consideration of [his] character and record . . . .” Petition, p. 72.
In Harris v. State, 164 P.3d 1103 (Okla. Crim. App. 2007), the OCCA reviewed
the constitutionality of the very language about which Petitioner complains. The OCCA
found no constitutional error with the instruction as then written. Harris, 164 P.3d at
1113 (“We do not find that the current uniform jury instruction prohibits jurors from
considering mitigating evidence.”).
However, acknowledging that there had been
instances where prosecutors had played upon the language of the instruction in an attempt
to limit a jury’s consideration of a defendant’s mitigating evidence, the OCCA
determined that the instruction should be amended.
After careful consideration, this Court has determined that an amendment
to the language of the instruction will clarify this point, and discourage
improper argument. We emphasize that the language of the current
instruction itself is not legally inaccurate, inadequate, or unconstitutional.
Cases in which the current OUJI-CR (2d) 4-78 has been used and applied
are not subject to reversal on this basis.
In conjunction with this case, the Court will refer this issue to the
Oklahoma Uniform Jury Instruction Committee (Criminal) for
promulgation of a modified jury instruction defining mitigating
circumstances in capital cases. To delineate the various purposes of
mitigating evidence, this Court suggests including both (a) that mitigating
circumstances may extenuate or reduce the degree of moral conduct or
blame, and separately, (b) that mitigating circumstances are those which in
fairness, sympathy or mercy would lead jurors individually or collectively
to decide against imposing the death penalty.
Id. at 1114.
Petitioner argues that because Harris was decided before his trial, the jury should
have received a modified version of OUJI-CR (2d) 4-78 as prescribed in Harris.
Petition, p. 68. He also argues that despite the OCCA’s finding in Harris that the
instruction as then written (the instruction given in his case) was not unconstitutional,
Harris is wrong, and therefore, when reviewing the issue in his case, the OCCA should
have found that error occurred (especially in light of certain comments made by the
prosecutor as hereinafter discussed) and then conducted a harmless error analysis.
Because the OCCA did not follow this course of action, Petitioner requests that this Court
refuse to give deference to the OCCA’s decision and conduct its own harmless error
analysis de novo. Petition, pp. 70-71.
First, although Harris was decided some months prior to Petitioner’s trial, the
opinion itself did not amend the uniform instruction. Appellate counsel even noted in the
direct appeal brief that the instruction was not changed until after Petitioner’s trial. Brief
of Appellant at 49-50 & n.48.
See In Re: Adoption of the 2008 Revisions to the
Oklahoma Uniform Jury Instructions-Criminal (Second Edition), 2008 OK CR 10 (Okla.
Crim. App. Apr. 2, 2008) (adopting the change to OUJI-CR (2d) 4-78).
regarding Harris itself, Petitioner’s challenge to its holding is unpersuasive. In Hanson,
797 F.3d at 850-51, the Tenth Circuit rejected a similar argument.
OCCA’s analysis in Harris, the Circuit accepted “[t]he OCCA’s explanation as to why it
amended the instruction . . . .” Id. There is no merit, therefore, to Petitioner’s argument
that the OCCA’s amendment of the instruction was in fact an indication of its infirmity.
Likewise, Petitioner has not shown that he is entitled to de novo review of this claim.
Applying AEDPA deference, the Court concludes that Petitioner’s fifth ground for
relief must be denied. In Hanson, 797 F.3d at 850, the Tenth Circuit acknowledged that
the proper standard of review for this claim is the one set out by the Supreme Court in
Boyde v. California, 494 U.S. 370 (1990). In Boyde, the Supreme Court addressed a
similar challenge to jury instructions which allegedly prevented the jury from considering
a defendant’s “non-crime-related” mitigation evidence. Id. at 372, 375, 377-78. The
Boyde Court determined that the claim should be reviewed under the following standard:
“whether there is a reasonable likelihood that the jury has applied the challenged
instruction in a way that prevents the consideration of constitutionally relevant evidence.”
Id. at 380. The Court explained:
Although a defendant need not establish that the jury was more likely than
not to have been impermissibly inhibited by the instruction, a capital
sentencing proceeding is not inconsistent with the Eighth Amendment if
there is only a possibility of such an inhibition. This “reasonable
likelihood” standard, we think, better accommodates the concerns of
finality and accuracy than does a standard which makes the inquiry
dependent on how a single hypothetical “reasonable” juror could or might
have interpreted the instruction. There is, of course, a strong policy in favor
of accurate determination of the appropriate sentence in a capital case, but
there is an equally strong policy against retrials years after the first trial
where the claimed error amounts to no more than speculation. Jurors do not
sit in solitary isolation booths parsing instructions for subtle shades of
meaning in the same way that lawyers might. Differences among them in
interpretation of instructions may be thrashed out in the deliberative
process, with commonsense understanding of the instructions in the light of
all that has taken place at the trial likely to prevail over technical
Id. at 380-81 (footnote omitted).
In Boyde, the Supreme Court found that no constitutional violation occurred
because the instruction itself was not limiting as the defendant suggested, and in light of
other instructions given, it was “improbable that jurors would arrive at an interpretation
that precludes consideration of all non-crime-related evidence.” Id. at 382-83. The Court
also found that given all of the mitigating evidence presented by the defense, it was
“unlikely that reasonable jurors would believe the court’s instructions transformed all of
this ‘favorable testimony into a virtual charade.’” Id. at 383 (quoting California v. Brown,
479 U.S. 538, 542 (1987)). And finally, the Supreme Court referenced the arguments
made by the parties. Although the prosecutor had argued against the weight of the
defendant’s mitigating evidence, he never suggested that it should not be considered. In
addition, defense counsel “stressed a broad reading” of the mitigation instruction. Id. at
384-86. In light of all of these circumstances, the Supreme Court “conclud[ed] there
[was] not a reasonable likelihood that the jurors . . . understood the challenged
instructions to preclude consideration of relevant mitigating evidence . . . .” Id. at 386.
See also Ayers v. Belmontes, 549 U.S. 7, 12-24 (2006) (applying Boyde and Brown v.
Payton, 544 U.S. 133 (2005), and finding no constitutional violation); Brown, 544 U.S. at
141-47 (applying Boyde and finding no constitutional violation).
As in Boyde, the circumstances in Petitioner’s case support the OCCA’s denial of
relief. First, examining the instructions as a whole, it is improbable that the jury failed to
consider all of Petitioner’s mitigation evidence. Instruction No. 55 advised the jury that
Petitioner had presented evidence of mitigating circumstances, and it specifically listed
the following as mitigating circumstances:
[Petitioner’s] capacity to appreciate the criminality of his conduct or to
conform his conduct to the requirements of law was impaired by alcohol
and/or the prescription drug of Cymbalta;
[Petitioner] was under the influence of mental/emotional disturbance,
Cooperation by [Petitioner] with authorities;
[Petitioner’s] age is 39;
[Petitioner’s] character, including past history as a youth;
[Petitioner’s] emotional/family history, including his marriage and past
[Petitioner’s] conduct while being incarcerated in Texas and Blaine County,
[Petitioner’s] conduct in a structured setting;
[Petitioner’s] family’s love for him and their value of his life;
[Petitioner’s] remorse; [and]
[Petitioner’s] acceptance of responsibility for his acts[.]
(O.R. V, 665). In addition to this lengthy list, this same instruction told the jury that it
“may decide that other mitigating circumstances exist, and if so, [it] should consider
those circumstances as well.” Id. Instruction No. 54 also stated that “[t]he determination
of what circumstances are mitigating is for you to resolve under the facts and
circumstances of this case,” and the jury was advised by Instruction No. 58 that it “may
consider sympathy or sentiment for the defendant in deciding whether to impose the
death penalty” (O.R. V, 664, 669).
Second, it is simply unreasonable to conclude that the single sentence complained
of by Petitioner caused the jury to put aside the testimony of the six witnesses presented
by Petitioner in the second stage. To do so, the jury “would have had to believe that the
penalty phase served virtually no purpose at all.” Payton, 544 U.S. at 144.
And finally, there are the arguments of the parties. Although Petitioner complains
about a portion of the prosecutor’s argument, the Court cannot conclude that the OCCA
was unreasonable in finding no impropriety in the statements made. Grissom, 253 P.3d
at 992-93.15 The argument to which Petitioner complains is as follows:
Growing up there was a saying in my house whenever my brother
and I did something we shouldn’t have done and then we try and offer our
excuse or our explanation for what we had just done that wasn’t right.
Whenever we did that, my mom would tell us your actions have spoken so
loudly I cannot hear a word you are saying. Her simple truth applies in this
case. The defendant’s actions have spoken so loudly and so decisively that
nothing he says can be heard. Alcohol problems, relationship problems,
speech problems, none of these things even comes close to outweighing
what he did. Doesn’t outweigh the fact that he shot one person, that he
murdered another, and he could have killed two babies. It doesn’t outweigh
the fact that he murdered Amber while he was out on parole and she was
laying helplessly at his feet. It doesn’t outweigh the fact that he is a
continuing threat to society. In fact it doesn’t even come close. For if it did
then every child who has difficulties in school would rob and kill, if it did
then every divorce and failed relationship would end in blood shed. No.
His actions have spoken loudly and clearly.
Glass shattering, Rylee screaming, Amber pleading with him not to
shoot her, the loud booms of eight gunshots, all of these sounds drown out
anything he has to say about his past. His actions have spoken so loudly it
doesn’t matter what he says. To Gary Matthews his words are hollow and
empty. To Amber, his words mean nothing.
(Tr. IX, 11-12). Although Petitioner characterizes the argument as one which “exhorted
the jury to ignore everything but the crime” and which “cleverly and effectively
persuaded [the jurors] to think the loud volume of the crimes should keep any mitigation
from being heard[,]” Petition, pp. 64, 83, the prosecutor used the words “outweigh” or
On direct appeal, Petitioner did not incorporate his “denigrating mitigation evidence”
prosecutorial misconduct challenge with his challenge to the mitigation instruction. Brief of
Appellant at 46-51, 54-56. Nevertheless, because the OCCA addressed the merits of his
prosecutorial challenge, deference is due this determination.
“outweighing” four times in this discourse as he compared Petitioner’s mitigating
evidence to the aggravating circumstances the State alleged in support of a death
sentence. Because it was the jury’s job to weigh the aggravating and mitigating
circumstances, the Court cannot fault the OCCA for finding this argument within the
bounds of reasonable argument. Grissom, 253 P.3d at 992-93 (quoting Warner v. State,
144 P.3d 838, 890-91 (Okla. Crim. App. 2006), for the proposition “that prosecutors have
‘the right to discuss evidence during the second stage in arguing for an appropriate
punishment . . . [and] may properly attempt to minimize the effect of the evidence
presented by the defense.’”).
In addition, the Court notes that defense counsel focused his argument on the fact
that Petitioner accepted responsibility for his crimes and offered no excuses. However,
counsel stated that what the defense did offer were “things that happened in [Petitioner’s]
life that showed [the jury] what brought him to that house that day and things [the jury]
can consider as citizens to decide whether someone lives or dies” (Tr. IX, 17).16 Counsel
then reviewed what had been presented about Petitioner’s life before seeking the jury’s
mercy and begging the jury to spare Petitioner’s life (Tr. IX, 22-28).
In second stage opening statement, trial counsel also stated that mitigating circumstances are
not excuses, but he went on to explain as follows:
What we intend to offer is things in [Petitioner’s] life that tend to mitigate that,
that tend to give you reasons to spare his life. As we have discussed in the jury
selection process, you may vote for life for any reason in your moral judgment
you feel is appropriate, and we will show you those reasons.
(Tr. VII, 46-47).
As did the Tenth Circuit in Hanson, 797 F.3d at 852, this Court finds that “[i]n
light of all of the instructions and of the prosecutor’s various comments, . . . it [is] hard to
imagine that the jurors thought they were prohibited from considering any of the
mitigating evidence they heard at [trial].” Relief is therefore denied.
The Continuing Threat Aggravator.
In Ground Six, Petitioner challenges the continuing threat aggravator, one of the
three aggravating circumstances the jury found in support of his death sentence. On
direct appeal, Petitioner challenged the aggravator on two related bases. Petitioner’s
primary challenge went to the sufficiency of the evidence. His related challenge was that
his prior burglary convictions should not have been admitted in support of this
aggravator. Consequently, Petitioner argued that his claim of insufficient evidence was
even stronger when this allegedly inadmissible evidence was excluded from the OCCA’s
review. Brief of Appellant at 39-46; Reply Brief of Appellant at 14-16. In denying
Petitioner relief, the OCCA addressed the claim as follows:
In Proposition Six, [Petitioner] argues that the evidence is
insufficient to support the jury’s finding of the aggravating circumstance
that there exists a probability that defendant will commit criminal acts of
violence that will constitute a continuing threat to society. We review this
challenge to determine whether the evidence, in the light most favorable to
the prosecution, would permit a rational trier of fact to find the aggravating
circumstance beyond a reasonable doubt. Jones v. State, 2006 OK CR 10,
¶ 4, 132 P.3d 1, 2; see also Lewis v. Jeffers, 497 U.S. 764, 781–83,
110 S.Ct. 3092, 3102–04, 111 L.Ed.2d 606 (1990). In Gilson v. State,
2000 OK CR 14, ¶ 157, 8 P.3d 883, 925, this Court held:
To support the aggravator of continuing threat, the State must
present evidence showing the defendant’s behavior demonstrated a
threat to society and a probability that threat would continue to exist
in the future. In evaluating whether there is a probability that the
defendant will commit acts of violence which will constitute a
continuing threat to society, we have held that evidence of the
callousness of the murder for which the defendant was convicted can
be considered as supporting evidence, as well as prior criminal
history and the facts of the murder for which the defendant was
convicted. (internal quotations omitted).
We find sufficient direct and circumstantial evidence to support the
jury’s finding of the “continuing threat” aggravating circumstance beyond a
reasonable doubt. In addition to the facts of the crime itself, which show a
callous and pitiless slaying, the State presented evidence of [Petitioner’s]
prior burglaries, which progressed from auto burglaries to residential breakins. [Petitioner] told an investigator after his arrest for a residential burglary
in Texas that he would have done “whatever it took” if he had been
confronted by an occupant of the residence he was burglarizing. This
revealed the formation of [Petitioner’s] criminal attitude and his willingness
to use violence to achieve his objectives. The State also presented evidence
that [Petitioner] violently assaulted and threatened his then-wife with a
loaded firearm during a domestic dispute. The jury was able to place these
facts within the context of other evidence of [Petitioner’s] life history, his
alcoholism, his unstable home life, unemployment, and depression. We find
the evidence of [Petitioner’s] prior criminal history was properly admitted
for the jury’s consideration in connection with this aggravating
circumstance, and the jury’s finding is supported by sufficient evidence.
This proposition is denied.
Grissom, 253 P.3d at 990.
Respondent contends that Petitioner’s Ground Six is something entirely different
from the claim he raised on direct appeal.
Consequently, Respondent argues that
Petitioner’s Ground Six is unexhausted and should be treated as procedurally barred.
Response, pp. 80-82.
Although Petitioner asserts that his Ground Six is “a single
constitutional challenge to the ‘continuing threat’ aggravating circumstance[,]” he also
acknowledges that it is “a slight shift in the focus of [his direct appeal] theory.” Reply,
p. 18. The truth is somewhere in between.
To borrow a phrase from habeas counsel, Petitioner’s Ground Six is best described
as the “kitchen sink approach” to relief. Petition, p. 76. While the Court believes that
some of Petitioner’s arguments are in fact related to the claim he raised on direct appeal,
Petitioner presents various challenges to the constitutionality of the continuing threat
aggravator which were not raised on direct appeal. For example, Petitioner asserts that
the aggravator is not narrowly construed, that it is broadly applied, and that the jury
instruction on the aggravator is insufficient to guide the jury’s determination. Petition,
Although these claims have not been presented to the OCCA and are
unexhausted as Respondent contends, it is equally clear that they are easily disposed of
pursuant to 28 U.S.C. § 2254(b)(2) due to their lack of merit. Because the Tenth Circuit
has repeatedly upheld Oklahoma’s continuing threat aggravating circumstance in light of
numerous constitutional challenges and because Petitioner has failed to give this Court
pause to question this binding circuit authority, Petitioner’s constitutional challenges to
the aggravator are denied. See Wilson v. Sirmons, 536 F.3d 1064, 1109 (10th Cir. 2008)
(“We have repeatedly upheld the constitutionality of this aggravator.”); Brown v.
Sirmons, 515 F.3d 1072, 1092 (10th Cir. 2008) (“We have repeatedly upheld the
constitutionality of this aggravating factor, finding it neither unconstitutionally vague nor
overbroad.”); Sallahdin v. Gibson, 275 F.3d 1211, 1232 (10th Cir. 2002) (“Tenth Circuit
precedent forecloses [petitioner’s] argument that Oklahoma’s application of the
continuing threat aggravator is unconstitutional.”); Medlock v. Ward, 200 F.3d 1314,
1319 (10th Cir. 2000) (“Our Circuit has repeatedly upheld the facial constitutionality of
[the continuing threat aggravator] as ‘narrowed’ by the State of Oklahoma, and we are
bound by that body of precedent.”).
Within his Ground Six, Petitioner also complains about testimony given by
George Ferguson. In particular, Petitioner asserts that he was not given proper notice of
Mr. Ferguson’s testimony and was therefore not given the opportunity to deny or explain
Mr. Ferguson’s testimony about a damaging statement Petitioner made to him. Although
Petitioner asserts that this issue with Mr. Ferguson constitutes a separate constitutional
violation, Petition, pp. 74, 78, the Court finds that it was not a part of the insufficiency
claim Petitioner raised on direct appeal, that Petitioner has never presented it as an
independent claim, and that Petitioner’s tangential references to the same within his
Ground Six are insufficient to prompt the Court’s review in any event.
Turning to the exhausted direct appeal claim, the Court concludes that Petitioner
has failed to show that the decision of the OCCA was unreasonable. In reviewing
Petitioner’s claim, the OCCA applied the standard of review set forth in Jackson v.
Virginia, 443 U.S. 307, 319 (1979), the same standard this Court applies: “whether the
evidence, in the light most favorable to the prosecution, would permit a rational trier of
fact to find the aggravating circumstance beyond a reasonable doubt.” Grissom, 253 P.3d
at 990 (citing Jones v. State, 132 P.3d 1, 2 (Okla. Crim. App. 2006), and Lewis v. Jeffers,
497 U.S. 764, 781-83 (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.’”
Jeffers, 497 U.S. at 782 (quoting Jackson, 443 U.S. at 319). Thus, this 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)). The Jackson standard of review is highly deferential to the
jury’s verdict, but when a layer of AEDPA deference is added to it, Petitioner’s ability to
obtain relief is all the more difficult. See Hooks, 689 F.3d at 1166 (“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).
As set forth in the Special Bill of Particulars, the State alleged the following
evidence supported the continuing threat aggravating circumstance:
All evidence relating to the nature and circumstances of the murder
of Amber Matthews which demonstrates the brutal and callous nature of
At the time he brutally murdered Amber Matthews, [Petitioner] had
previously been convicted of four felony burglary offenses, which escalated
in terms of seriousness of threats to society. After burglarizing a vehicle in
Dallas County, Texas on May 9, 1990, on November 5th of the same year
he burglarized a vehicle and the garage of a residence in Denton County,
Texas. On September 24, 1992, he burglarized a home, entering the back
door of a residence during daytime hours in Collin County, Texas, and was
sentenced to confinement in prison
On December 9, 2004, in Logan County, Arkansas, [Petitioner],
while still serving the Texas burglary sentence on parole, put a .22 caliber
rifle to his wife’s head and threatened to kill her. During that incident
[Petitioner] fired several shots into the house where he and his wife resided.
(O.R. I, 101-02).
In support of these allegations, the State relied on the evidence regarding the
murder itself as presented in the first stage, plus five witnesses presented in the second
stage. The first two second stage witnesses were Petitioner’s ex-wife, Barbara
Grissom (Carlisle), and a law enforcement officer who responded to her 911 call on
December 9, 2004. The call concerned Petitioner’s threat to kill her with a loaded rifle.
Petitioner put the rifle to her head more than once, and although she escaped injury,
Petitioner did fire five rounds inside his mobile home dwelling where she was visiting
him (Tr. VII, 58-63, 87-97; State’s Exhibits 100-108). The third witness was a police
officer from Coppell, Texas, who testified concerning Petitioner’s participation in a car
burglary. This crime occurred in the middle of the night on May 9, 1990 (Tr. VII, 10007; State’s Exhibit 93). The fourth witness was Mr. Ferguson, a former detective for the
Flower Mound (Texas) Police Department, who testified about Petitioner’s burglary of a
residence and a vehicle in the middle of the night on November 5, 1990. When asked by
the detective what he would have done if someone had come home, Petitioner told him,
“whatever it took” (Tr. VII, 108, 110-17, 120; State’s Exhibits 94 and 95). The final
witness was a Plano police officer who testified about Petitioner’s burglary of a residence
during the daytime on September 29, 1992 (Tr. VII, 121-26; State’s Exhibit 96).
In an attempt to show the unreasonableness of the OCCA’s decision, Petitioner
asserts, as he did on direct appeal, that his prior burglary offenses should not have played
into the calculus of whether or not he was a continuing threat because they were all nonviolent offenses. Petitioner also takes issue with the OCCA’s finding that his prior
burglaries “progressed from auto burglaries to residential break-ins.” Grissom, 253 P.3d
at 990. Although “[u]nder Oklahoma law, a nonviolent crime standing alone cannot be
the basis for finding the continuing threat aggravator[,]” Wilson, 536 F.3d at 1110 (citing
Torres v. State, 962 P.2d 3, 23 (Okla. Crim. App. 1998)), the Tenth Circuit has
acknowledged that “neither Oklahoma nor the United States Supreme Court has ever
prohibited a jury from considering the defendant’s nonviolent offenses in conjunction
with other factors when determining whether the defendant poses a future risk to
society.” Boltz, 415 F.3d at 1231. In light of this authority, Petitioner simply cannot
overcome the great deference afforded to the OCCA’s sufficiency determination.
Petitioner’s remaining arguments lack merit as well. As to the facts of the murder
itself, Petitioner faults the OCCA for considering the same. He argues that while his
crime was “certainly cruel,” so is every murder. Petition, p. 77. However, the Tenth
Circuit has specifically rejected this argument. Sallahdin, 275 F.3d at 1231-32. In
Sallahdin, the Tenth Circuit also acknowledged that under Oklahoma law, the continuing
threat aggravator “may be based solely on the evidence of the calloused nature of the
crime.” Id. at 1232. In Petitioner’s case, the facts of the murder were just a portion of
the evidence the OCCA found to support the jury’s finding of the aggravator and, given
the facts, this determination was reasonable. Finally, although Petitioner argues that
OCCA did not review all of the evidence in making its sufficiency determination, there is
no support for that assertion. Petition, pp. 78-79. Just because the OCCA did not
reference every piece of evidence in its analysis does not mean that it did not consider it
all. Ground Six is denied.
Petitioner’s seventh ground for relief challenges four comments made by the
prosecutor in second stage closing arguments. Petitioner raised this claim on direct
appeal. Because defense counsel did not object to any of the arguments, see Ground One,
supra (challenging counsel’s effectiveness for failing to object), the OCCA reviewed the
claim for plain error and, finding none, it denied relief. Grissom, 253 P.3d at 992-93.
Applying AEDPA deference, the Court finds that Petitioner has not established his right
to relief on this claim. See Douglas v. Workman, 560 F.3d 1156, 1171 (10th Cir. 2009)
(“[W]hen a state court applies plain error review in disposing of a federal claim, the
decision is on the merits to the extent that the state court finds the claim lacks merit under
federal law.”) (citing Cargle v. Mullin, 317 F.3d 1196, 1206 (10th Cir. 2003));
Thornburg, 422 F.3d at 1124 (“[W]hen a state court adjudicates a federal issue relying
solely on a state standard that is at least as favorable to the applicant as the federal
standard, we presume an adjudication on the merits and apply AEDPA deference.”).17
“Prosecutors are prohibited from violating fundamental principles of fairness,
which are basic requirements of Due Process.” Hanson, 797 F.3d at 843. Therefore,
when a petitioner alleges prosecutorial misconduct, the question is whether the
In adjudicating Petitioner’s claim, the OCCA set forth two standards of review, a general
standard for allegations of prosecutorial misconduct, which permits relief “‘only where grossly
improper and unwarranted argument affects a defendant’s rights,’” Grissom, 253 P.3d at
992 (citation omitted), and the standard for plain error review, which affords relief for errors
“‘going to the foundation of the case or taking from the defendant a right essential to his
defense[,]’” id. at 980, 992 (quoting Simpson v. State, 876 P.3d 690, 695 (Okla. Crim. App.
1994)). These standards liken to the due process standard this Court applies, but even if
Petitioner’s claim was reviewed de novo, Petitioner still would not be entitled to relief for the
reasons set forth herein.
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, 459 F.3d at 1024.
Petitioner’s first complaint is that the prosecutor gave his personal opinion at the
very start of his first closing argument when he discussed the path that brought the jury to
the point of sentence deliberation and the jury’s choice to determine which path to take
from there. The prosecutor stated that the jury could “go down the path that [Petitioner]
wants” or “choose the other path and give him justice” (Tr. IX, 9). Petitioner argues that
these comments inappropriately informed the jury of his opinion that a death sentence
was the just sentence. Petition, pp. 80-81. The OCCA denied Petitioner relief on this
claim as follows:
This Court has held similar comments were not plain error where they were
“not phrased in personal terms, but appealed to the jury’s understanding of
justice and asked that standard be upheld.” Lockett v. State, 2002 OK
CR 30, ¶ 21, 53 P.3d 418, 425, citing Mitchell v. State, 1994 OK CR 70,
¶ 44, 884 P.2d 1186, 1202, and Hammon v. State, 2000 OK CR 7, ¶ 62,
999 P.2d 1082, 1097. We found in Lockett that “the prosecutor basically
argued to the jury that justice required the death penalty be imposed under
the particular facts of this case, not based upon his personal opinion.”
Lockett, 2002 OK CR 30, ¶ 21, 53 P.3d at 425. We reach the same
conclusion here. The argument was not plain error.
Grissom, 253 P.3d at 992.
Although “[i]t is improper for a prosecutor to inject his personal opinion on the
propriety of the death sentence[,] . . . a prosecutor is entitled to argue that under the facts
and law, capital punishment is appropriate.” Thornburg, 422 F.3d at 1135. Here, the
OCCA’s conclusion that the latter occurred is not unreasonable. Immediately following
the complained-of comments, the prosecutor directed the jury to Petitioner’s first
interview wherein Petitioner stated in his “own words” that death was an appropriate
sentence for what he did. The prosecutor then stated, “That was his own assessment of
what should happen to someone who had done what he just did. He told you what justice
was in this case” (Tr. IX, 10). The prosecutor later concluded his first argument with
these words: “The punishment should fit the crime and the only punishment that fits in
this case is a death sentence” (Tr. IX, 16). Considering the complained-of comments in
context, the Court denies relief on this claim.
Petitioner’s next complaint relates to his Ground Five and has already been
addressed by the Court. Therefore, for the reasons set forth in Ground Five, supra, relief
is denied here as well.
With reference to separate comments made in first and second closing, Petitioner
asserts that the prosecutor urged the jury to return a death sentence based on sympathy
for the victims. In first closing, the prosecutor asked the jury “to remember three images
that we presented during the trial because I think they sum up what we have tried to
communicate” (Tr. IX, 12). The prosecutor then described the murder scene where the
deceased victim and young children were found (the Kopf residence), the hospital where
the surviving victim was taken (Watonga Hospital), and the restaurant where Petitioner
went to get a beer after the commission of the crimes (Hillstop Cafe), ending with the
These three images that I have tried to describe tells us something
about the people involved in each of those images. Amber Matthews, an
innocent bystander with her whole life ahead of her thinking of the children
before herself. Dreu Kopf, a protective mother forever left to wonder if she
did the right thing by leaving. Her instinctual decision made in the blink of
an eye will undoubtedly leave her questioning for the rest of her life
whether she should have been the one to die that day and not Amber.
[Petitioner], cold and calloused, not caring about anyone but himself.
(Tr. IX, 14). The OCCA found no error with this argument. In particular, the OCCA
stated: “we find the comments are based on the evidence properly admitted at trial and
exhorted the jurors to consider particular facts in determining punishment. This is not
Grissom, 253 P.3d at 993.
Again, this determination is not
unreasonable. Although sympathy appeals can constitute improper argument, where, as
here, the prosecutor’s argument was based on the presented evidence, the OCCA’s
analysis is reasonable. See Wilson, 536 F.3d at 1120 (“The jury should make decisions
based on the strength of the evidence, and not on raw emotion, though we recognize that
some emotional influence is inevitable.”).
In second closing, the prosecutor stated as follows:
He also asked you to think about how his parents feel on that trip to
McAlester. Give you something else to think about. I wonder how it must
feel to go to Amber’s grave site on her birthday. I wonder how that feels.
Knowing she is never coming back. And for why? What reason? No reason
at all. How must that feel?
(Tr. IX, 29). As is apparent, this argument related back to something defense counsel had
said in his closing remarks. In talking about carrying out a jury’s death sentence, defense
counsel asked the jury to imagine the execution scene and the “poor people who had this
pitiful son going to that dark little building in McAlester and watch their son die” (Tr. IX,
20). For this reason, the OCCA denied relief.
We find this comment was in response to defense counsel’s argument that
jurors could celebrate the sanctity of human life by showing mercy to the
defendant with a non-capital sentence. As the argument was a proper
response to the defense, there is no plain error.
Grissom, 253 P.3d at 993. The OCCA’s analysis of this claim finds support in United
States v. Young, 470 U.S. 1, 12-13 (1985), wherein the Supreme Court acknowledged
that a reviewing court must consider a prosecutor’s comments in light of the argument
made by the defense. The Supreme Court stated that “if the prosecutor’s remarks were
invited, and did no more than respond substantially in order to right the scale, such
comments would not warrant reversing a conviction.” Id. (internal quotation marks
omitted). Accordingly, relief is denied.
Petitioner’s final complaint concerns the prosecutor’s last words to the jury
regarding the “march toward justice” and the “torch of truth.” Petitioner asserts that
these comments gave the jury the false impression that law enforcement, the district
attorney’s office, the victims, and the jury were all in this together and that in essence it
was the jury’s job to finish the race by returning a just sentence of death. Petition,
pp. 86-87. The prosecutor’s comments were as follows:
Let me leave you with one final thought. I told you in my opening
statement that once [Petitioner’s] murderous rampage was over that another
mission began. That mission was the steady constant march toward justice.
The police started that march toward justice over two years ago. They
marched with this torch of truth without fail until they had captured the
man that had brutally murdered Amber Matthews. And when their work
was finished they passed the torch of truth on to the District Attorney’s
Office, to Mr. Rutherford and to me. For the last two years we have stood
arm in arm with the Matthews family and continued that march toward
justice, that torch of truth. We have done the very best that we can for as
long as we can. We have done the very best we can to bring the truth to
this courtroom. The way our system is set up we are not permitted to carry
that torch of truth across the line. You as a juror, that is your role. This
march toward justice has included our carrying that torch of truth up to the
line. And at this point we are handing you all that torch of truth, hoping
and trusting that you will carry it across the line where justice awaits.
Justice in his case is a death sentence. Thank you.
(Tr. IX, 30-31).
In denying relief, the OCCA held as follows:
This Court said in Sanchez v. State, 2009 OK CR 31, ¶ 75, 223 P.3d
980, 1005, that it “will not require counsel in such serious cases to address
the jury with lifeless and timid recitations void of moral reflection or
persuasive power.” The comments challenged here form only a small part
of a lengthy summation in which the State and defense counsel passionately
argued conflicting views about the meaning of justice in this case. The
jurors were well aware that the statements of counsel were not evidence and
were intended to persuade the jury during its deliberations. Under these
circumstances we cannot say that the challenged comments here were plain
error. Even if individual comments in the State’s closing argument were
erroneous, we have no grave doubt that erroneous comments had a
substantial influence on the outcome at trial.
Grissom, 253 P.3d at 993.
Petitioner asserts that the prosecutor’s comments were
“unbelievably prejudicial.” He contends that “[t]he OCCA had to be appalled by it[,]”
and yet it nevertheless denied relief. Petition, p. 87.
Although the written record does not always convey the tone of an argument, there
is little doubt that the prosecutor’s argument here was dramatic and perhaps over the top.
However, that is not the standard for relief. The question this Court must answer is
whether all fairminded jurists would disagree with the OCCA’s rationale and denial of
relief. Frost, 749 F.3d at 1225 (“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.”);
Stouffer v. Trammell, 738 F.3d 1205, 1221 (10th Cir. 2013) (“We may reverse only if all
fairminded jurists would agree that the state court got it wrong.”) (internal quotation
marks omitted). The answer is a clear no, and the Court additionally finds that even if the
argument were viewed de novo, Petitioner would still not be entitled to relief. In addition
to the OCCA’s reasoning, the Court finds that the very nature and circumstances of the
murder and the evidence supporting three aggravating circumstances (two of which were
easily proven) support the conclusion that the prosecutor’s argument did not deny
Petitioner a fair sentencing proceeding. See Phillips v. Jones, No. CIV-12-0735-HE,
2013 WL 6169295, at *12-13 (W.D. Okla. Nov. 21, 2013) (denying habeas relief for
these same comments).
For the foregoing reasons, the Court finds that Petitioner is not entitled to relief
based on prosecutorial misconduct. Ground Seven is therefore denied.
In Ground Eight, Petitioner asserts that he was denied his right to an impartial jury
due to a juror’s failure to reveal during voir dire that he had been arrested and criminally
charged on two separate occasions. Petitioner presented this claim to the OCCA on
direct appeal. After remanding the case for an evidentiary hearing, the OCCA denied
relief. Grissom, 253 P.3d at 975-79. Although the parties agree that the applicable
Supreme Court authority is McDonough Power Equipment, Inc., v. Greenwood, 464 U.S.
548 (1984), they disagree over whether the OCCA’s decision is entitled to deference.
Petition, p. 91; Response, p. 102; Reply, pp. 21-22. Because it is clear that Petitioner’s
claim fails even under de novo review, the Court need not settle this dispute in order to
adjudicate Petitioner’s claim.
As noted above, Petitioner was granted an evidentiary hearing with respect to this
claim. At the hearing, Petitioner presented two witnesses, the juror and one of his trial
attorneys. After the hearing, the OCCA summarized the relevant facts as follows:
[T]he juror was arrested in 1989 and charged with larceny of merchandise
from a retailer, a felony. He entered a plea of guilty to the offense and
received a deferral of sentence for one (1) year. After completion of a term
of probation, the charge was dismissed. The prospective juror was arrested
a second time in 2007 and charged with three misdemeanors, including
possession of marijuana, possession of drug paraphernalia, and failure to
maintain security verification form. Those charges were subsequently
dismissed on the State’s motion. [Petitioner] . . . presented testimony from
his trial counsel that if he had known of the prospective juror’s prior arrests
and charges, he would have inquired further to determine the prospective
During the district court’s voir dire examination,[FN2] the court
directly asked each panel of prospective jurors if they had ever been
“charged with or accused of a crime?” Several jurors responded
affirmatively and gave accounts of their arrests and/or convictions of
various crimes. The prospective juror with whom we are concerned here
did not respond affirmatively to this question. He also demurred when the
court asked if he had any answers he felt the court or attorneys “need to
hear.” The prosecutor later asked, “is there anyone that had indicated
previously that they had a prior contact with law enforcement that I have
not spoken with?” Again, the juror did not reveal his prior arrests or
charges. When the prosecutor asked prospective jurors if they had “any
contact with the District Attorney’s office,” the juror responded: “I know
you from high school so that’s another thing. I was going to mention that
earlier.” The prosecutor acknowledged that he and the prospective juror
“played a little football together.” The prospective juror then denied there
was “anything about the fact that you have known me that would cause you
not to be fair and impartial in this case?” The record also reflects that the
prosecutor in this case did not represent the State in either of the criminal
cases filed against the prospective juror. The parties passed this prospective
juror for cause and he served on the trial jury. In an affidavit and his
subsequent testimony at the evidentiary hearing, the juror explained that he
believed he did not have to disclose his prior arrests because the charges in
both cases were dismissed. He conceded at the evidentiary hearing that his
failure to answer these questions affirmatively was not entirely truthful.
The juror also denied having any bias for or against the parties, stating that
he served as a juror only reluctantly because he felt it was his duty.
FN2. The district court also used questionnaires to collect
information from prospective jurors. The questionnaire only asked if
prospective jurors had ever been convicted of a felony. The juror in
question truthfully answered “no.”
Grissom, 253 P.3d at 975-76. Petitioner does not challenge these particular facts, and
therefore, they are presumed correct in this proceeding. 28 U.S.C. § 2254(e)(1).
In denying relief, the OCCA found that although the juror should have disclosed
his prior arrests and charges, Petitioner had not shown any resulting prejudice.
particular, the OCCA held in pertinent part that
the undisclosed information shown here does not support a challenge for
cause or show any improper relationship that would “approach a challenge
for cause.” Allison, 1983 OK CR 169, ¶ 59, 675 P.2d at 153. And we
cannot say . . . that “any defense attorney” would peremptorily challenge a
prospective juror based solely on knowledge of their prior arrests. Indeed,
two other prospective jurors in this case who disclosed their prior arrests—
one for disorderly conduct and another for cruelty to animals—were passed
for cause and served on the jury. A third prospective juror disclosed that he
was on a deferred sentence for a felony. He was also passed for cause, but
was not drawn to serve on the final panel. The record contradicts any
suggestion that a prospective juror’s prior arrest would have led inexorably
to a peremptory challenge from the defense.[FN4]
FN4. Notwithstanding, trial counsel testified at the evidentiary
hearing that in a case such as this, he did not want people with
criminal arrests or convictions sitting on the jury, because in his
experience people who had lived a moral life were more likely to
give a life sentence.
This Court said in Manuel that “it is not error alone that reverses
judgments of convictions of crime in this State, but error plus injury, and
the burden is upon the appellant to establish to the appellate court the fact
that he was prejudiced in his substantial rights by the commission of error.”
Id., 1975 OK CR 174, ¶¶ 5–7, 541 P.2d at 236, quoting Thompson v. State,
1974 OK CR 15, ¶ 10, 519 P.2d 538, 541. The Court’s opinion in Allison
shows that an appellant must do more than simply assert that he would have
used a peremptory challenge if he had known then what he knows now.
[Petitioner] does not even make that claim here. Trial counsel’s testimony
at the evidentiary hearing shows that he might have inquired further into the
details of the arrests, and would have weighed the prospective juror’s prior
arrests as a factor in exercising his peremptory challenges.[FN5] Trial
counsel also testified at the evidentiary hearing that if he had known of the
prospective juror’s failure to disclose the prior arrests, he would have
challenged the juror for cause. However, even if counsel had discovered
during voir dire the juror’s honest, but mistaken, belief about his obligation
to disclose his prior arrests, the juror’s error would not have supported a
challenge for cause. 22 O.S.2001, §§ 659, 660 (challenge for cause must
show either implied bias defined by statute, or express bias, i.e., a state of
mind showing that prospective juror cannot try the case impartially).
FN5. Despite his testimony at the evidentiary hearing that prior
arrests and criminal charges were paramount among his concerns for
prospective jurors in this case, the State points out that defense
counsel did not ask a single question of a prospective juror
concerning a prior arrest or criminal charge.
[Petitioner’s] claim falls short of demonstrating any actual injury
from the juror’s non-disclosure. The juror was previously arrested and
charged with crimes on two occasions: this is the sum of his nondisclosure.
The charges arising from those arrests were dismissed. The juror testified at
the evidentiary hearing that he honestly believed (incorrectly, it turns out)
that he was not required to disclose his prior arrests. He had no knowledge
of the facts of the case; no undisclosed relationship to the material
witnesses or the parties. The juror testified on voir dire that he had gone to
high school and played football with the lead prosecutor in this case, and
knew one of the witnesses casually, which apparently raised no concerns
for the defense about his impartiality.
At the evidentiary hearing, the juror testified that he was working as
a partially commissioned salesperson at the time of the trial, had two
children, and his wife was eight and a half months pregnant. He testified
that he was reluctant but willing to do his duty as a juror and did not try to
excuse himself from jury duty because of his job or family circumstances.
He denied having any intention to mislead the court or counsel. These
circumstances dispel the inference, so imaginatively urged by [Petitioner],
that this juror corruptly concealed the truth about his arrests to get himself
seated on this jury. While we do not condone the juror’s non-disclosure, we
find that [Petitioner] suffered no prejudice from it. No relief is warranted
under the controlling authorities.
Grissom, 253 P.3d at 978-79.
In order to obtain relief under McDonough, Petitioner must make two showings.
He “must first demonstrate that a juror failed to answer honestly a material question on
voir dire, and then further show that a correct response would have provided a valid basis
for a challenge for cause.” McDonough, 464 U.S. at 556. As the Tenth Circuit has
acknowledged, “[a] party cannot satisfy the first part of this test merely by demonstrating
a juror provided a ‘mistaken, though honest, response to a question.’” Gonzales v.
Thomas, 99 F.3d 978, 984 (10th Cir. 1996) (quoting McDonough, 464 U.S. at 555).
Here, the OCCA specifically found that the juror was “honest, but mistaken[.]” Grissom,
253 P.3d at 979. Although Petitioner takes issue with this finding, the Court concludes
that Petitioner’s arguments do not show by clear and convincing evidence that this
finding is incorrect.
Petitioner asserts that the OCCA was not in the best position to assess the juror’s
credibility. Faulting the OCCA for not ordering the trial court to make findings of fact,
he claims that the OCCA’s assessment of the juror’s credibility from the “cold record” is
unreasonable. Petition, p. 93; Reply, p. 22. Having reviewed the evidentiary hearing
transcript, the Court finds that the OCCA’s determination was reasonable. The fact that
the finding was made by the OCCA as opposed to the trial court is of no consequence
because there is absolutely no question about what occurred in this case. The juror was
arrested and charged, but because both times the charges were ultimately dismissed, the
juror believed that they were not a part of his record and were as if they never
happened (Tr. 5/17/10, 6, 15-19, 30, 32). Therefore, it was not unreasonable for the
OCCA to find that the juror was honest but mistaken, and because McDonough “is
directed at intentionally incorrect responses,” Gonzales, 99 F.3d at 984, Petitioner has not
shown his entitlement to McDonough relief.
In addition to failing to meet the first part of the McDonough test, Petitioner fails
the second part as well. Even if the juror had disclosed his prior arrests and charges
during voir dire, Petitioner has not shown that the juror would have been subject to a
valid challenge for cause. Petitioner makes no specific allegations of either implied or
actual bias. At most, Petitioner asserts that bias can be assumed because the juror lied.
However, this is not enough to meet the McDonough test. United States v. McConnel,
464 F.3d 1152, 1157 (10th Cir. 2006) (“We have previously noted that to hold that bias
can be inferred solely from a dishonest response during voir dire would in effect do away
with the second prong of McDonough.”) (citing Skaggs v. Otis Elevator Co., 164 F.3d
511, 517 (10th Cir. 1998)).
Having found that Petitioner cannot satisfy either part of the McDonough test,
even under de novo review, the Court denies Petitioner relief on his Ground Eight.
Trooper Lucero’s Testimony/Actions.
Petitioner’s Ground Nine focuses on the testimony and actions of a State witness,
Oklahoma Highway Patrolman Anthony Lucero. Petitioner asserts that his testimony was
so emotional as to be prejudicial and that his actions upon exiting the courtroom were
prejudicial as well. Petitioner raised this claim in post-conviction. The OCCA
procedurally barred the claim because it could have been raised on direct appeal. The
OCCA also found that appellate counsel was not ineffective for failing to raise the claim
on direct appeal. Grissom, No. PCD-2008-928, slip op. at 7-10.
In response to Respondent’s assertion that this Court should apply a procedural bar
to this claim, Petitioner makes two arguments. First, referring to his Procedural Default
Statement, Petitioner argues that the procedural bar is neither adequate nor
independent. Petition, pp. 99-100; Reply, p. 23. This argument, however, has already
been addressed and rejected in Ground One, supra. Second, Petitioner argues that he has
cause for his procedural default of the claim, namely, the ineffectiveness of his appellate
counsel. Reply, p. 23. The OCCA evaluated Petitioner’s stated cause under Strickland,
finding “[a]ppellate counsel’s failure to raise this issue was not deficient performance and
did not prejudice the outcome of the direct appeal.” Grissom, No. PCD-2008-928, slip
op. at 10. This finding is entitled to AEDPA deference.
Ryder, 810 F.3d at 746;
Turrentine, 390 F.3d at 1202.
In an attempt to show that the OCCA’s analysis of appellate counsel’s
effectiveness was unreasonable, Petitioner advances several arguments. First, Petitioner
asserts that the OCCA found Trooper Lucero’s testimony and actions to be error. There
is no support for this assertion. As Respondent has pointed out, Petitioner’s argument is
based on an inaccurately referenced sentence contained in the OCCA’s opinion.
Response, p. 109. In addressing the omitted claim, the OCCA never found that it was
actual error. Grissom, No. PCD-2008-928, slip op. at 7, 9, 10 (referring to the argument
Petitioner presented in his second proposition and what he alleged to be objectionable
Petitioner also argues that the OCCA mischaracterized the record.
Petitioner contends that “[t]he OCCA’s vanilla description of what Lucero actually said is
starkly different from what was actually said.” Petition, p. 94. See also Reply, p. 23
(“The OCCA provided a washed out description of Trooper Lucero and what he said and
did.”). The OCCA’s summary of the record was as follows:
In his trial testimony, the trooper described the report of the shooting, his
arrival at the crime scene, and the ensuing tactical approach to the home.
He described hearing a young child screaming inside the home and making
the decision to enter the home, confront a possible shooter or shooters, and
try to save the survivors. The trooper also testified that upon entering the
bedroom where Amber Matthews was shot, he could “smell death in the
air,” which he associated “with death by pulling people out of car crashes
that has got open wounds and usually it’s the odor of an open head wound.”
The trooper also described his shock upon entering the room.
I seen a young lady laying on the floor there (indicating).
Looked like a head wound. A little girl was standing up in the
crib. I mean, going crazy in the crib, this little girl was
basically screaming for her [ ] life. There was a baby, a
newborn. I thought the newborn had been shot because its
whole face was covered in blood and it wasn’t moving. The
young lady that was on the floor, her eyes were partially open
and she was laboring to breathe. I could not believe that
somebody would shoot a woman and child, that was my
feeling when I first saw that image.
Counsel objected to this testimony and moved for a mistrial, which
the district court overruled. Counsel later moved for a mistrial at the
conclusion of the trooper’s testimony, stating that he “saw the trooper stare
over at [Petitioner] as he was leaving the courtroom,” and that “his
embellishments, his emotional displays also had the effect of getting the
entire crowd in the back of the courtroom, the families of both victims
worked up.” The State disputed this characterization, but agreed that the
trooper had taken pauses in his trial testimony, apparently because of his
emotions surrounding what he had seen.
The following day, the trial court held an evidentiary hearing on
Petitioner’s motion for a mistrial, at which defense counsel presented
testimony from an Indigent Defense System attorney and three of
[Petitioner’s] cousins, stating either that they had seen the trooper “glare” at
[Petitioner] after his testimony, or other objectionable behavior, such as the
trooper shaking hands with the victims as he was leaving court. The trial
court overruled the motion for mistrial based upon these allegations.
Grissom, No. PCD-2008-928, slip op. at 7-9. The Court finds that this is a reasonable
summation of the record, and Petitioner’s argument that it should have somehow been
more vivid lacks merit.
Next, Petitioner asserts that the OCCA did not address his entire claim. Petition,
p. 94; Reply, p. 24. However, as set forth above, it is clear that the OCCA understood the
claim being made, one based on both Trooper Lucero’s testimony and his actions, and
nothing in the OCCA’s opinion indicates that it did not address it in full.
Petitioner’s final challenge is to the OCCA’s Strickland analysis and its failure to
grant him an evidentiary hearing on the issue of strategy. In his petition, he faults the
OCCA for incorrectly assuming that “guilt findings foreclose penalty phase
prejudice[,]” and in his reply, he argues that the OCCA “wrongfully assum[ed] . . . that
guilt of the aggravating factor forecloses penalty phase prejudice.” Petition, p. 94; Reply,
p. 24. In concluding that Petitioner was not denied the effective assistance of appellate
counsel with respect to Trooper Lucero, the OCCA held as follows:
Again, we review appellate counsel’s omission according to the two-part
test of Strickland. In this context, we consider the merits of the omitted
claim of evidentiary error in the context of the entire trial, and with other
claims raised on direct appeal, to determine whether the omission violated
prevailing professional norms and prejudiced the outcome of the direct
appeal. If the omitted issue is meritless, then counsel’s failure to raise it
does not amount to constitutionally ineffective assistance.
We first determine that the record does not support Petitioner’s
argument that this evidentiary error contributed to an unfair outcome either
in the first or second stages of trial. The trooper’s testimony was probative
of his observations at the scene and why he took the actions that he did. As
Petitioner conceded guilt of all charges in the first stage of trial, the
witness’s alleged misconduct thus could not have contributed to the guilty
verdict on the charge of murder.
We further find that omission of this claim on direct appeal may
have been part of a reasonable strategic decision by appellate counsel to
focus on issues having greater potential for relief on direct appeal. Viewed
in context of the trial record, this isolated instance of allegedly prejudicial
error in the first stage was eclipsed by Petitioner’s concession of his guilt of
capital murder and the strong evidence of aggravating circumstances. These
aggravating circumstances, and the relatively weak evidence of mitigation
that counterbalanced them, explain the jury’s decision to impose the
sentence of death. Appellate counsel’s failure to raise this issue was not
deficient performance and did not prejudice the outcome of the direct
Grissom, No. PCD-2008-928, slip op. at 9-10 (citations omitted). The Court finds no
fault with the OCCA’s analysis, especially given the double deference afforded it by the
AEDPA. Jackson v. Warrior, 805 F.3d 940, 954 (10th Cir. 2015) (“Given that the
standards of review under both Strickland and AEDPA are ‘highly deferential,’ habeas
review of ineffective assistance claims is ‘doubly so.’”) (quoting Richter, 562 U.S. at
105). As for the OCCA’s denial of an evidentiary hearing, it was not necessary for the
OCCA to hold an evidentiary hearing in order to adjudicate this claim. Petitioner’s
attempt to show otherwise by an affidavit from appellate counsel which was not even in
existence when the OCCA issued its ruling is of no avail. Pinholster, 563 U.S. at 181.
For the foregoing reasons, the Court concludes that Petitioner’s Ground Nine is
procedurally barred. Relief is therefore denied.
Modification of Petitioner’s Larceny Conviction.
In Ground Ten, Petitioner claims that the OCCA violated his federal constitutional
rights to due process and a fair trial by modifying his larceny conviction from grand
larceny to larceny of a motor vehicle. See Grissom, 253 P.3d at 987-89. In support of his
request for relief, Petitioner cites Apprendi v. New Jersey, 530 U.S. 466, 477 (2000), and
In re Winship, 397 U.S. 358, 364 (1970), and argues that the OCCA erred when it simply
modified his conviction as opposed to remanding the case for retrial on the appropriate
charge. Petition, pp. 95-97. Respondent asserts that the claim Petitioner presents in his
tenth ground for relief is not the claim he raised on direct appeal.
Respondent argues that the claim is unexhausted and subject to an anticipatory procedural
bar. Response, pp. 112-15.
Petitioner bears the burden of proving that he has exhausted this claim in state
court. Selsor v. Workman, 644 F.3d 984, 1026 (10th Cir. 2011); McCormick v. Kline,
572 F.3d 841, 851 (10th Cir. 2009); Hernandez v. Starbuck, 69 F.3d 1089, 1092 (10th
Cir. 1995). In addition, because Respondent has also argued for the application of a
procedural bar, Petitioner has the burden of responding to this affirmative defense.
Hooks, 184 F.3d at 1217 (“Once the state pleads the affirmative defense of an
independent and adequate state procedural bar, the burden to place that defense in issue
shifts to the petitioner. This must be done, at a minimum, by specific allegations by the
petitioner as to the inadequacy of the state procedure.”). This he has not done. Although
Respondent has raised the issue of exhaustion and argued that this claim would be
procedurally barred if Petitioner were to return to the OCCA to present it in a second
post-conviction application, Petitioner’s reply contains no response to these assertions.
For these reasons, the Court finds that Petitioner’s Ground Ten is procedurally barred.
In his final ground for relief, Petitioner argues that he is entitled to relief on the
theory of cumulative error. However, as Respondent has pointed out, cumulative error
relief is only available where two or more constitutional violations have been found.
Jackson, 805 F.3d at 955; Hancock v. Trammell, 798 F.3d 1002, 1006-07 (10th Cir.
2015); Williams, 782 F.3d at 1218; Cole v. Trammell, 755 F.3d 1142, 1177 (10th Cir.
2014). On direct appeal, the OCCA found three state law errors, Grissom, 253 P.3d at
996, and in post-conviction, the OCCA found “no cumulative impact of errors in the trial
proceedings that renders Petitioner’s death sentence unreliable[,]” Grissom, No. PCD2008-928, slip op. at 13. Because neither the OCCA nor this Court has found any
constitutional errors, Petitioner has no basis with which to support a claim for cumulative
error. Ground Eleven is denied.
V. Motions for Discovery and Evidentiary Hearing.
Petitioner has filed a motion for discovery as well as a motion for an evidentiary
hearing. Docs. 21 and 47. For the following reasons, the Court finds that both should be
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.
In support of his request to conduct discovery, Petitioner argues that because there
have been some instances in which Oklahoma prosecutors have failed to comply with
their obligations under Brady v. Maryland, 373 U.S. 83 (1963), and Napue v. Illinois,
360 U.S. 264 (1959), it is possible that they did so in his case as well. Petitioner
acknowledges that his habeas counsel was permitted to “review portions” of the
prosecution’s files; however, he claims that this review left questions regarding the
absence of material he believed the prosecution should have had. In particular, Petitioner
notes the absence of the following items: (1) interviews or notes regarding his ex-wife,
Barbara Grissom (Carlisle); (2) documentation regarding his statement to George
(4) information regarding his intoxication. Petitioner’s discovery request includes six
requests for production and three interrogatories related to these matters. Doc. 21.
Regarding his “unstable” ex-wife, Petitioner characterizes her testimony at trial as
“[s]urprising and inconsistent.” With reference to an affidavit obtained from her some
two years after trial, Petitioner’s argument here appears to be that he was surprised when
she said nice things about him and had information about his life in prison. Doc. 21 at 4
& n.5. Ms. Grissom testified on behalf of the State in the second stage regarding a
domestic violence incident in which Petitioner threatened to kill her. See Ground Six,
supra. Although called as a State’s witness, the record reflects that Ms. Grissom had also
been included on Petitioner’s witness list as a second stage witness to testify, among
other things, “that she loves and cares for [Petitioner] and that his life has meaning to
her” (O.R. III, 329). On cross-examination, trial counsel questioned Ms. Grissom about
how Petitioner treated her. In response, she testified that Petitioner was kind to her when
he was sober and that the ladies at the nail salon were jealous of her because Petitioner
gave her gifts and did things for her that their husbands did not do. She further testified
that she and Petitioner “probably would have been together today if it wasn’t for his
mother” (Tr. VII, 82-83). Under these circumstances, it is clear that Petitioner was not
surprised by Ms. Grissom’s kind words.
In addition, given that Ms. Grissom’s
knowledge of Petitioner’s life in prison came from Petitioner himself, he has no argument
that the State kept this information from him.
Mr. Ferguson, a former detective for the Flower Mound (Texas) Police
Department, testified about Petitioner’s burglary of a residence and a vehicle in the
middle of the night on November 5, 1990. When asked by the detective what he would
have done if someone had come home, Petitioner told him, “whatever it took” (Tr. VII,
116-17). See Ground Six, supra. Because this statement was not contained in the
detective’s report, Petitioner contends that it resulted in “[u]nfair surprise and
prejudice.” Doc. 21 at 4. On cross-examination, trial counsel brought out the fact that
the statement was not a part of Mr. Ferguson’s report. When he asked Mr. Ferguson to
explain why, Mr. Ferguson testified that it was not included because “it wasn’t pertinent.”
Trial counsel questioned Mr. Ferguson’s memory of the statement, given that it was not
in his report and that it was made over eighteen years before, and in an obvious effort to
show the contradiction, trial counsel pointed out that Mr. Ferguson’s report did reference
Petitioner’s additional statement that when the garage door went up, he ran off because
he was scared (Tr. VII, 117-19). Although counsel may have been surprised by the
testimony, this record reflects that he challenged it appropriately. Petitioner has not
shown that discovery is needed to pursue this matter further. Not only is it unclear as to
what Petitioner is looking for, but how the same would entitle him to relief.
Regarding Trooper Lucero, Petitioner appears to argue that the prosecution’s file
should have contained some hint as to how the trooper would have testified and acted in
court. Doc. 21 at 4-5. See Ground Nine, supra. This is completely baseless.
Petitioner’s final assertion is that something is awry because there was nothing in
the prosecution’s file supporting his claim that he was “highly intoxicated at the time of
the crimes.” The implication Petitioner makes is that all of the law enforcement officers
who were involved – and there were many from different law enforcement entities –
colluded to intentionally exclude this information from their reports. Doc. 21 at 5. The
record shows that the prosecution provided Petitioner with extensive discovery, including
numerous law enforcement reports and copies (both audio and video) of his statement
given after his arrest and on the same day the crimes were committed (O.R. I, 47-48, 79,
85; O.R. II, 209-10, 268-69, 280-83; O.R. III, 316-17, 424-27; O.R. IV, 502-04, 512,
578). Petitioner has made no allegation that any reports were withheld, and if in fact
these reports failed to make any reference to Petitioner’s alleged state of intoxication, the
Court finds that trial counsel was free to question the officers at trial about this alleged
anomaly and to reference Petitioner’s statement in support of the same. Having failed to
show good cause for this discovery request, as well as the others, Petitioner’s motion for
discovery is hereby denied in its entirety.
As for an evidentiary hearing, Petitioner requests that he be granted one in relation
to his Grounds One through Four. However, the majority of the claims raised therein
have been denied by the Court on the merits because Petitioner has failed to show that the
OCCA rendered unreasonable determinations of law or fact under Section 2254(d). In
adjudicating these claims, the Court has noted that in accordance with Pinholster,
563 U.S. at 163, its review is limited to the record that was before the OCCA at the time
it rendered its decision. Having failed to satisfy Section 2254(d), Petitioner is not entitled
to an evidentiary hearing on these claims. Jones v. Warrior, 805 F.3d 1213, 1222 (10th
Cir. 2015). As for the remaining claims, the Court has found them to be procedurally
barred. Whether or not a claim is procedurally barred is a legal determination for which
an evidentiary hearing is unnecessary. See McCleskey v. Zant, 499 U.S. 467, 494 (1991)
(“The petitioner’s opportunity to meet the burden of cause and prejudice will not include
an evidentiary hearing if the district court determines as a matter of law that petitioner
cannot satisfy the standard.”). For these reasons, Petitioner is denied an evidentiary
hearing as well.
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. 20), motion for discovery (Doc. 21), and
motion for an evidentiary hearing (Doc. 47) are hereby DENIED. A judgment will enter
IT IS SO ORDERED this 3rd day of August, 2016.
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?