Postelle v. Trammell

Filing 74

MEMORANDUM OPINION. After a thorough review of the entire state court record, the pleadings filed herein, and the applicable law, the Court finds that Petitioner is not entitled to relief. 19 PETITION for Writ of Habeas Corpus filed by Gilbert Ray Postelle, 20 MOTION for Leave to Conduct Discovery filed by Gilbert Ray Postelle, and 30 MOTION for Hearing Evidentiary filed by Gilbert Ray Postelle are DENIED. A judgment will enter accordingly. Signed by Honorable Stephen P. Friot on 9/2/2016. (llg)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
GILBERT POSTELLE,
Petitioner,
Vs.
TERRY ROYAL, Warden,
Oklahoma State Penitentiary
Respondent.

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Case No. CIV-12-1110-F

MEMORANDUM OPINION
Petitioner, a state court prisoner, has filed a petition for writ of habeas
corpus seeking relief pursuant to 28 U.S.C. § 2254. Doc. 19. Petitioner challenges
the convictions entered against him in Oklahoma County District Court Case
No. CF-05-4759. Tried by a jury in 2008, Petitioner was found guilty of four
counts of first degree murder and one count of conspiracy to commit murder in the
first degree. Petitioner was sentenced to death on two of the first degree murder
convictions, life without parole on the other two, and 10 years in prison for the
conspiracy conviction. In support of his death sentences, the jury found two
aggravating circumstances, namely, (1) during the commission of the murder, the
defendant knowingly created a great risk of death to more than one person, and (2)
the murder was especially heinous, atrocious, or cruel. Criminal Appeal Original
Record (hereinafter “O.R.”) VIII, at 1550-53.
Petitioner has presented five grounds for relief. Respondent has responded
to the petition and Petitioner has replied. Docs. 19, 39, and 48. In addition to his
petition, Petitioner has filed motions for discovery and an evidentiary hearing.
Docs. 20 and 30. After a thorough review of the entire state court record (which
1

Respondent has provided), the pleadings filed in this case, and the applicable law,
the Court finds that, for the reasons set forth below, 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. Postelle v. Oklahoma, 267 P.3d 114, 147 (Okla. Crim. App. 2011).
Petitioner sought review of the OCCA’s decision by the United States Supreme
Court, which denied his writ of certiorari on October 1, 2012.
Oklahoma, 133 S. Ct. 282 (2012).

Postelle v.

Petitioner also filed a post-conviction

application, which the OCCA denied in an unpublished opinion.

Postelle v.

Oklahoma, No. PCD-2009-94 (Okla. Crim. App. Feb. 14, 2012).
II. Facts.
In adjudicating Petitioner’s direct appeal, the OCCA set forth a summary of
the facts. Pursuant to 28 U.S.C. § 2254(e)(1), “a determination of a factual issue
made by a State court shall be presumed to be correct.” Although this presumption
may be rebutted by Petitioner, the Court finds that Petitioner has not done so, and
that in any event, the OCCA’s statement of the facts is an accurate recitation of the
presented evidence. Thus, as determined by the OCCA, the facts are as follows:
On Memorial Day, 2005, James Donnie Swindle, Terry Smith,
Amy Wright and James Alderson were shot to death outside
Swindle’s trailer located next to a salvage yard and alignment shop in
an industrial area of Del City, Oklahoma. [FN2] Several witnesses in
the area heard multiple gunshots and saw a maroon Dodge Caravan
leaving the salvage yard shortly after the shots were fired. The owner
of a flower shop nearby saw four men in the minivan; she testified
that the men had dark hair and that she believed they were either
Caucasian or Hispanic. A security camera across the street from the
salvage yard captured on videotape the minivan entering and leaving
the salvage yard driveway. Neither the license tag nor the occupants
2

could be seen on the videotape. Sandra Frame, a bartender working at
a bar next to the alignment shop, heard gunshots around 6:15 p.m. She
heard the minivan accelerating and saw it leaving the crime scene. She
could see there were at least two men in the minivan and she observed
them laughing. She glimpsed the man in the passenger seat for a few
seconds; he was young with dark hair and facial hair, possibly
Hispanic. She was later shown a photographic lineup and was “eightyfive percent sure” that David Postelle was the man she saw in the
passenger seat of the minivan that day.
[FN2]  James Donnie Swindle was known as and referred to
throughout the record as Donnie Swindle.
Oklahoma City Police Officer Rocky Gregory was on traffic
duty down the street from the salvage yard when two people
approached him and reported hearing gunfire from the vicinity of the
salvage yard. Gregory and his partner investigated and found Smith
and Swindle, each dead from multiple gunshot wounds. The bodies of
the two other victims, Alderson and Wright, were discovered further
north after other officers arrived.
Several people who were at the Postelle home on Memorial
Day testified at Gilbert Postelle’s trial, including Crystal Baumann,
[FN3] Arthur Wilder, [FN4] Alvis “Jay” Sanders [FN5] and Randall
Byus. [FN6] The Postelle home was routinely used by these four and
others as a place to smoke methamphetamine in the “smoke room.”
Memorial Day 2005 was no different. Crystal Baumann and Arthur
Wilder, admitted methamphetamine addicts, testified they had gone to
the Postelle home on Memorial Day to get high. On that day, they
both said, Gilbert and David Postelle talked about their belief that
Donnie Swindle was responsible for the motorcycle accident that left
their father, Brad, both physically and mentally impaired. [FN7]
Wilder recalled Gilbert and David Postelle naming Swindle as one of
those responsible for the accident and saying that those responsible
were “going to pay” for the damage done to their father. [FN8] Their
conversation subsequently turned to target shooting. Wilder had come
equipped with his newly acquired MAK–90 rifle to go target shooting
with the Postelle brothers. [FN9] David Postelle had an SKS rifle he
used for target practice. Because they needed ammunition, Gilbert
Postelle, Baumann and Wilder went to a house in Del City where a
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friend gave Gilbert Postelle a speed loader for the MAK–90 rifle and a
bag of bullets that could be used in both the MAK–90 and SKS rifles.
[FN3] Baumann faced charges for several crimes related to this
case. She entered into an immunity agreement in August 2005
providing for her full cooperation with the State to prosecute
these murders in exchange for immunity from prosecution for
any crimes she could be held liable for stemming from this
incident, provided there would be no immunity from
prosecution for any crime that would make Baumann a
principal to the crime of homicide in any degree.
(Defendant’s Exhibit 35).
[FN4] Wilder was charged with Accessory After the Fact,
Unlawful Possession of a Firearm, Concealing Stolen Property
and Possession of a Sawed-off Shotgun. Wilder entered a blind
plea and was sentenced to 180 years imprisonment subject to
one-year judicial review. On judicial review, Wilder agreed to
testify and his sentence was vacated by the sentencing judge,
who agreed to entertain a new recommendation following the
trials related to this matter. Wilder signed an Agreement to
Cooperate and Testify Truthfully that provided he would be
allowed to withdraw his original plea and re-enter a new plea of
nolo contendere to the previous charges, plus some drug
charges, and receive five years on each count to be served
concurrently and with credit for time served. Wilder testified
that the acceptance by the court of this plea bargain would
result in his release from prison because of his credit for time
served. (Defendant’s Exhibit 41).
[FN5] Sanders entered a guilty plea to Accessory After the Fact
to the offense of First Degree Murder for his disposal of
evidence after the murders. In exchange for his truthful
testimony, the State recommended, and Sanders was given, a
12–year split sentence per his plea agreement of six years
imprisonment with the remaining six years suspended.
According to Sanders, he had discharged his sentence by the
time of Postelle’s trial. (Defendant’s Exhibit 38).

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[FN6] Byus was originally charged in the same Information
with Postelle with four counts of First Degree Murder and one
count of Conspiracy to Commit Murder. He pled guilty to
Accessory to a Felony (First Degree Murder). In exchange for
his truthful testimony, the State agreed to recommend a split
sentence of six years imprisonment with the remaining fourteen
years suspended. (Defendant’s Exhibit 39).
[FN7] Gilbert Postelle’s father, Earl Bradford Postelle, was
referred to as “Brad” throughout the record.
[FN8] There was also testimony that David and Gilbert Postelle
were angry with Swindle because Swindle allowed someone to
steal parts off of one of their cars that was stored on Swindle’s
property.
[FN9] Wilder’s rifle was referred to by several witnesses as an
AK–47, but the State’s firearm and toolmark examiner
identified it as a MAK–90.
Later that day, Gilbert, David and Brad Postelle, along with
Wilder, Baumann and Randall Byus left in the Postelles’ maroon
Dodge Caravan. Baumann denied knowing about a plan to shoot
Swindle at the time they left. She and Wilder were dropped off at the
home of Wilder’s brother. Wilder, however, testified that he had heard
the Postelles talking about a plan to go to Swindle’s house and shoot
him. He was unsure they would go through with it, but their
conversation worried Wilder enough to insist the Postelles take him
and Baumann home. Hours later David Postelle returned Wilder’s
MAK–90 to him. Wilder and Baumann took the gun to their storage
unit and hid it. Wilder heard about the murders from a friend, put
“two-and-two together” and worried that the rifle he had left in the
Postelles’ minivan had been used in the murders. Wilder’s fear that
the Postelles had used his rifle to commit murder was confirmed when
he saw the Postelles’ minivan leaving Swindle’s property on a
surveillance camera video on the local news. A few days after the
murders, Gilbert Postelle told Wilder how he had chased everyone
outside after breaching the door of Swindle’s trailer and how he then
shot them outside. Gilbert Postelle then noticed Baumann standing
nearby and ordered her to keep quiet about what she had overheard.
5

Jay Sanders testified that he had been living at the Postelle
home the month before the murders. [FN10] Sanders said that the
patriarch, Brad Postelle, talked about having bad dreams about his
motorcycle accident and his conviction that Swindle was responsible
for that accident. According to Sanders, Gilbert and David Postelle
were devastated by the accident and its effect on their father.
[FN10] Sanders’s real name is Alvis Earl Sanders, Jr. but he
was known as and referred to as “Jay.”
On Memorial Day, Sanders said he was in and out of the smoke
room throughout the day, getting high and working on his brokendown van. Sanders was in the smoke room when he learned that the
Postelles were going to go target shooting. Sanders said someone put
the SKS rifle in the Postelles’ minivan, and he helped Brad Postelle
into the van. David, Gilbert and Brad Postelle left with Wilder and
Byus, but only the Postelles returned. [FN11] Later that night or the
next morning, Sanders learned of the murders from the news; all the
television sets in the Postelle home were tuned to news stations
showing the security videotape of the minivan entering and leaving
the murder scene. The Postelles also received several telephone calls
from friends telling them about the murders. Sanders recalled that the
Postelle home had “a different kind of atmosphere” and that there was
a lot of whispering among the Postelle family.
[FN11] Sanders recalled that Baumann left in another vehicle
with a friend.
Sanders testified that a couple of days after the murders, the
Postelles were discussing different ideas about what to do with the
minivan “since it might be the van on the news.” It was decided that
Sanders and Daniel Ashcraft would take the minivan to Indiana, set it
on fire and ultimately put it in a lake. [FN12] Sanders wiped the van
down and drove it to Indiana to the home of a Postelle relative.
Sanders also purged the Postelle home of drugs and drug
paraphernalia. He buried gun parts and the minivan license plate in the
backyard. After Sanders returned from Indiana, he was privy to a
conversation in which Gilbert Postelle said, “I shut that bitch up in the
corner” and mimed shooting a rifle at someone. Sanders testified that
6

he, Gilbert, David and some other Postelle family members discussed
fabricating a story for the police to shield the Postelles from being
implicated in the murders.
[FN12]  Sanders and Ashcraft did not follow through with
burning the van and submerging it in a lake. The police later
found the van.
The State’s firearm and toolmark examiner examined the many
casings collected at the murder scene and determined that they were
fired from two guns: Wilder’s MAK–90 rifle and another rifle,
possibly an SKS rifle. David Postelle’s SKS rifle was never found.
Law enforcement located the Postelles’ van in Indiana and searched it.
The alterations to the van observed by the investigators were
consistent with Sanders’s testimony about efforts to disguise it.
Randall Byus was with the Postelles when they shot the
victims. According to Byus, he accompanied the Postelles, Wilder and
Baumann, believing the Postelles were taking Baumann and Wilder
home and then going target shooting. He saw Wilder’s MAK–90 and
David Postelle’s SKS rifle in the Postelles’ minivan. Nothing
appeared unusual as they dropped off Baumann and Wilder. When
David Postelle turned the van around and headed away from their
normal place for target shooting, Byus asked where they were going,
and was told that they were going to Swindle’s house first, for some
“shit,” which Byus understood meant drugs. Byus first understood the
Postelles’ murderous plan when Gilbert Postelle asked his father a
block from Swindle’s trailer what to do if Donnie Swindle’s father
was there and Brad Postelle said to kill everybody there. Byus voiced
disbelief and Brad Postelle responded that Donnie Swindle had tried
to kill him. At the trailer, Byus witnessed Gilbert Postelle open the
van door and shoot Terry Smith, who was near the minivan, in the
face. Gilbert Postelle and his father then shot Donnie Swindle, causing
him to fall to the ground. Swindle looked up and asked what was
going on and David Postelle took the gun from his father and shot
Swindle in the head. Gilbert Postelle turned and ran through the
trailer, looking for others and firing his gun. He emerged and chased
down James Alderson and shot him as Alderson tried to seek cover
under a boat. After David Postelle told his cadre to get in the van,
Byus heard two more shots. When Gilbert Postelle got in the van, he
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said, “that bitch almost got away.” As they drove away, Brad Postelle
hugged his sons and said, “That’s my boys.” On the way back to the
Postelle home, the Postelles warned Byus against telling anyone what
they had done.
Postelle, 267 P.3d at 123-26.
III. Standard of Review.
A.

Exhaustion as a Preliminary Consideration.

The exhaustion doctrine is a matter of comity. It provides that before a
federal court can grant habeas relief to a state prisoner, it must first determine that
he has exhausted all of his state court remedies. As acknowledged in Coleman v.
Thompson, 501 U.S. 722, 731 (1991), “in a federal system, the States should have
the first opportunity to address and correct alleged violations of state prisoner’s
federal rights.” While the exhaustion doctrine has long been a part of habeas
jurisprudence, it is now codified in 28 U.S.C. § 2254(b). Pursuant to
28 U.S.C. § 2254(b)(2), “[a]n application for a writ of habeas corpus may be
denied on the merits, notwithstanding the failure of the applicant to exhaust the
remedies available in the courts of the State.”
B.

Procedural Bar.

Beyond the issue of exhaustion, a federal habeas court must also examine
the state court’s resolution of the claim presented. “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.
8

C.

Merits.

When a petitioner presents a claim to this Court, the merits of which have
been addressed in state court proceedings, 28 U.S.C. § 2254(d) governs his ability
to obtain relief. Cullen v. Pinholster, 563 U.S. 170, 181 (2011) (acknowledging
that the burden of proof lies with the petitioner). Section 2254(d) provides as
follows:
An application for a writ of habeas corpus on behalf of a person in
custody pursuant to the judgment of a State court shall not be granted
with respect to any claim that was adjudicated on the merits in State
court proceedings unless the adjudication of the claim—
(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in
the State court proceeding.
The focus of Section 2254(d) is on the reasonableness of the state court’s decision.
“The question under AEDPA [Antiterrorism and Effective Death Penalty Act of
1996] is not whether a federal court believes the state court’s determination was
incorrect but whether that determination was unreasonable—a substantially higher
threshold.” Schriro v. Landrigan, 550 U.S. 465, 473 (2007).
“Under § 2254(d), a habeas court must determine what arguments or
theories supported . . . the state court’s decision; and then it must ask whether it is
possible fairminded jurists could disagree that those arguments or theories are
inconsistent with the holding in a prior decision of [the Supreme] Court.”
Harrington v. Richter, 562 U.S. 86, 102 (2011). Relief is warranted only “where
there is no possibility fairminded jurists could disagree that the state court’s
decision conflicts with [the Supreme Court’s] precedents.” Id. (emphasis added).
9

The deference embodied in “Section 2254(d) reflects the view that habeas corpus
is a ‘guard against extreme malfunctions in the state criminal justice systems,’ not
a substitute for ordinary error correction through appeal.” Id. at 102-03 (citation
omitted). When reviewing a claim under Section 2254(d), review “is limited to the
record that was before the state court that adjudicated the claim on the merits.”
Pinholster, 563 U.S. at 181.
IV. Analysis.

A. Ground One: Ineffective Assistance of Counsel.
Petitioner claims that his trial and appellate counsel were ineffective.
Specifically, Petitioner claims that trial counsel was ineffective for (1) not fully
cross-examining and impeaching Randall Byus; (2) failing to raise mental
retardation as a defense to the death penalty and as mitigating evidence; (3) failing
to present complete and persuasive mitigating evidence; and (4) failing to develop
and present evidence about Petitioner’s mental illnesses. Petitioner faults appellate
counsel for not raising these claims on direct appeal. Petitioner first raised these
claims in his post-conviction application. Postelle, No. PCD-2009-94, slip op. at
9-21. The OCCA observed that the trial counsel claims were waived, yet still
addressed and denied the claims on their merits as well. Id. at 9-17. The OCCA
denied the appellate counsel claims on the merits. Id. at 18-21.
1. Unexhausted claims.
Before bringing a habeas action, petitioners exhaust their claims by “fairly
presenting” them in state court. Picard v. Connor, 404 U.S. 270, 275 (1971);
28 U.S.C. § 2254(b)(1)(A). A petitioner need not provide “book and verse on the
federal constitution,” but they must go beyond simply presenting the facts
supporting the federal claim or articulating a “somewhat similar state-law claim.”
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Bland v. Sirmons, 459 F.3d 999, 1011 (10th Cir. 2006) (quoting Picard, 404 U.S.
at 278, and Anderson v. Harless, 459 U.S. 4, 6 (1982)). Instead, the petitioner
must have raised the substance of the federal claim in state court. Id.
Petitioner claims that his trial counsel was ineffective for not impeaching
Randall Byus with a past burglary charge.

But nowhere in his state court

proceedings did he raise that challenge. Original Appl. for Post-Conviction Relief
at 6-9. Petitioner also never raised an ineffective assistance of appellate counsel
claim based on the burglary charge. Because Petitioner did not fairly present either
the trial counsel or appellate counsel ineffectiveness claims based on Byus’
burglary charge to the state court, those claims are unexhausted.
2. Procedural bar.
Generally, federal courts will dismiss unexhausted claims without prejudice
and allow the petitioner to raise the claim in state court. Bland, 459 F.3d at 1012.
But when the state court would find the claim procedurally barred under an
independent and adequate procedural bar, “there is a procedural default for
purposes of federal habeas review.” Id. (quoting Dulin v. Cook, 957 F.2d 758, 759
(10th Cir. 1992)). Oklahoma defendants cannot apply for post-conviction relief on
issues that could have been raised “previously in a timely original application or in
a previously considered application . . . .” OKLA. STAT. tit. 22, § 1089(D)(8).
Randall Byus’ conviction was part of the public record since before Petitioner’s
trial. Petitioner could have raised the trial counsel claims either on direct appeal or
in his application for post-conviction relief, but failed to do so. Petitioner could
have raised the appellate counsel claims in his post-conviction proceeding, but did
not. Therefore, Oklahoma law would now bar those claims.

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The Petitioner does not mount any serious challenge to the independence or
inadequacy of Oklahoma’s procedural bar, as he only mentions in passing that he
“disputes” that issue. Petition at 13. Petitioner’s conclusory assertion fails to
convince this Court that Oklahoma’s oft-approved procedural bar is inadequate or
dependent on federal law as applied to this claim. See Fairchild v. Trammell,
784 F.3d 702, 719 (10th Cir. 2015); Banks v. Workman, 692 F.3d 1133, 1145-46
(10th Cir. 2012); Thacker v. Workman, 678 F.3d 820, 835-36 (10th Cir. 2012).
Contrary to Petitioner’s arguments, appellate counsel ineffectiveness cannot
excuse the default. Ineffective assistance of appellate counsel can only serve as
cause if the defendant raised that ineffective assistance claim in state court.
Edwards v. Carpenter, 529 U.S. 446, 451-52 (2000). Petitioner did not raise
appellate ineffectiveness based on the burglary charge in his post-conviction
proceeding. Any attempt to raise that ineffectiveness claim in a second postconviction proceeding would be procedurally barred, as the grounds for that claim
would have arisen when it was apparent that appellate counsel did not raise the
claim, which would be when counsel filed the appellate brief. Since Petitioner
cannot establish cause to excuse the default of the unexhausted ineffective
assistance of trial counsel claim, the claim is denied as procedurally barred. As for
the appellate ineffectiveness claim, Petitioner does not offer any cause to excuse
that default. That claim is also procedurally barred.
Respondent argues that Petitioner’s other ineffectiveness claims are barred
as well, because the OCCA noted in its order that those claims were waived. The
Court agrees with Respondent that it must acknowledge and apply the Oklahoma
procedural bar even though the OCCA also reached the merits of Petitioner’s
claims.

See Thacker, 678 F.3d at 834 n.5.

But the Court may “bypass the

procedural issues and reject a habeas claim on the merits” when the “questions of
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procedural bar are problematic.”

Cannon v. Mullin, 383 F.3d 1152, 1159

(10th Cir. 2004). The Court faces such a situation here, as the parties’ briefs
present an adequacy problem related to the Oklahoma procedural bar.
The Tenth Circuit has recognized that a lack of separate trial and appellate
counsel undermines the adequacy of a state procedural bar. See English v. Cody,
146 F.3d 1257, 1263 (10th Cir. 1998).

And there are situations where two

different attorneys working in the same office can be considered non-separate.
Cannon, 383 F.3d at 1173-74.

Respondents have asserted that the OCCA’s

procedural bar applied on post-conviction was adequate, because the Petitioner had
different trial and appellate attorneys. Here, however, Petitioner argues that the
attorneys were not separate, because they worked in the same office. Rather than
untangling the various factors and determining whether counsel was, or was not,
separate, the Court exercises its discretion to bypass the procedural morass and
dispose of the ineffectiveness claims on their merits.
3. Clearly established law.
Counsel is constitutionally ineffective when counsel’s deficient performance
prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). On
habeas review, courts must apply the highly deferential standards of Strickland and
the AEDPA to the facts of the case and decide whether “there is any reasonable
argument that counsel satisfied Strickland’s deferential standard.” Harrington,
562 U.S. at 101, 105. Courts cannot disturb a state court’s ruling unless the
petitioner demonstrates that the state court applied the highly deferential Strickland
test in a way that every fair minded jurist would agree was incorrect. Id.
Courts analyze counsel’s performance for “reasonableness under prevailing
professional norms.” Strickland, 466 U.S. at 688. The Supreme Court shuns
13

specific guidelines for measuring deficient performance, as “[n]o particular set of
detailed rules for counsel’s conduct can satisfactorily take account of the variety of
circumstances faced by defense counsel, or the range of legitimate decisions
regarding how best to represent a criminal defendant.” Id. at 688-89. Instead,
courts must be highly deferential when reviewing counsel’s performance, and the
petitioner must overcome the presumption that the “challenged action[s] might be
considered sound trial strategy.”

Id. at 689 (quoting Michel v. Louisiana,

350 U.S. 91, 101 (1955)) (internal quotation marks omitted).
If a petitioner can show deficient performance, he must then also show
prejudice by establishing “a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.” Id.
at 694.

In Oklahoma, where the jury can only impose a death sentence

unanimously, the question is whether there exists a reasonable possibility “that at
least one juror would have struck a different balance but for counsel’s putative
misconduct.”

Wackerly v. Workman, 580 F.3d 1171, 1176 (10th Cir. 2009)

(quoting Wiggins v. Smith, 539 U.S. 510, 537 (2003)) (internal quotation marks
omitted). When evaluating omitted information, courts consider both the benefits
and the negative effects of that information. Id. at 1178.
4. Analysis.
The OCCA found that neither trial counsel nor appellate counsel rendered
deficient performance.

This decision was not contrary to clearly established

federal law, nor is it an unreasonable application thereof.
a. Failure to properly impeach Randall Byus.
Petitioner complains first about trial counsel’s handling of Randall Byus,
who provided the only eyewitness account of the murders. Petitioner argues that
14

counsel did not properly impeach Byus and did not use expert testimony to
emphasize the contradictions between Byus’ testimony and the physical evidence.
Petitioner specifically notes inconsistencies regarding DNA evidence, the number
of shots fired from the SKS rifle, and the size of the magazine in the SKS rifle.
“Counsel’s decisions regarding how best to cross-examine witnesses
presumptively arise from sound trial strategy.” Richie v. Mullin, 417 F.3d 1117,
1124 (10th Cir. 2005). Courts must analyze the attorney’s performance without
the distorting effects of hindsight. Strickland, 466 U.S. at 689.
Petitioner points out that while Byus only admitted to loading ammunition
into the SKS rifle, the state’s DNA expert could not exclude Byus as a possible
match to DNA discovered on a shell casing ejected from the MAK-90 rifle.
Petition at 15. Petitioner argues that trial counsel should have showcased the
contradiction between Byus’ testimony and the physical evidence by admitting
ballistics and forensics reports or calling an expert witness. Id. at 17-18.
The OCCA rejected this claim, finding that trial counsel attacked Byus’
credibility on cross examination, and highlighted the inconsistencies between
Byus’ testimony and the physical evidence. Postelle, No. PCD-2009-94 slip op. at
10.

The OCCA also noted that counsel “spent much of closing argument”

exposing the contradictions. Id. The OCCA’s resolution of that claim is not
unreasonable.
The State’s forensics investigator testified about her DNA testing, and told
the jury that she was able to develop a partial DNA profile from a shell casing
labeled 24A. Trial Tr. vol. VII, 1871-72. The investigator testified that Byus
could not be excluded as a match for that DNA profile. Id. The investigator also
gave the jury the statistical probability that the DNA came from a random
individual as opposed to Byus, a probability that was quite low. Id. at 1872.
Petitioner’s counsel confirmed that testimony on cross-examination and
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emphasized that while Byus was a possible match to the DNA profile, Petitioner
was not.

Id. at 1880.

The State’s firearm expert, using various charts and

diagrams, testified that casing 24A was ejected from the MAK-90.1 In closing,
trial counsel pointed out the discrepancy, reminding the jury that although Byus
said he did not know who loaded the MAK-90 magazines, the DNA on a shell
casing ejected from the MAK-90 very likely came from Byus. Trial Tr. vol. X,
2530, 2541.
Trial counsel did not need further expert testimony or reports to punctuate
the inconsistency between Byus’ testimony and the DNA evidence. Injecting
cumulative information on that issue would have only wasted time and perhaps
confused the jury. Based on the record, trial counsel’s decision appears to have
been sound trial strategy, and this Court cannot say that counsel’s performance was
deficient. And even if it were deficient, Petitioner did not suffer any prejudice.
The jury heard the evidence and the argument that Byus’ testimony clashed with
the physical evidence. There is no reasonable probability that a juror would have
deemed Petitioner innocent if the argument had been presented in a different way.
Petitioner also argues that trial counsel failed to explore Byus’ statement that
he saw David and Brad Postelle shoot five to six rounds total from the SKS. This
testimony contradicted evidence at the crime scene that revealed at least ten
casings that were ejected from a different rifle than the MAK-90, presumably the
SKS.2

Petition at 16-17.

Trial counsel was not unreasonable for not cross-

examining Byus on that issue. Byus admitted on direct examination that he could
not say how many shots were fired at a given time, because the event happed so

1

The record does not contain explicit testimony that casing 24A was ejected from the MAK-90,
but the exhibits and testimony make clear, and the parties agree, that the testimony supports the
fact that casing 24A was ejected from the MAK-90.
2

Ballistics experts were not able to compare the casings to the SKS used in the murders, as that
weapon was never recovered.
16

quickly. Trial Tr. vol. IX, 2178. Any cross-examination on the number of shots
would likely only elicit another admission that he could not remember the number.
Trial counsel could rightly assume that impeaching a witness on exactly how many
shots originated from one of two weapons would be an exercise in futility,
especially when Byus’ count erred by only four or five shots.
In the context of semi-automatic weapons being fired in rapid succession,
the jury could have reasonably credited Byus’ testimony as surprisingly accurate,
even considering the discrepancy. The Court cannot fault trial counsel for not
pursuing that line of questioning. Foregoing that line of questioning also did not
cause prejudice.

There is no reasonable probability that exposing the slight

inconsistency in front of the jury would persuade a juror reach a different verdict.
Petitioner finally claims that trial counsel should have impeached Byus
based on his statement that the SKS rifle contained a five-round magazine.3
Petitioner argues that at least ten casings related to the SKS were recovered at the
scene, and that a post-conviction firearms expert was unaware of any SKS
magazine that held less than ten rounds. Petition at 17. Counsel’s decision to not
impeach Byus on that point was not unreasonable. A police investigator already
testified that the standard SKS magazine held ten rounds. Trial Tr. vol. V, 1280.
Any expert testimony would have simply parroted the investigator’s testimony,
meaning that the testimony would yield little or no net benefit in comparison with
the multiple other avenues to impeach Byus. And trial counsel did impeach Byus
based on other inconsistencies between his testimony and other witness testimony,
as well as on the fact that Byus testified in order to avoid the death penalty.

3

Petitioner refers to a “clip” in his briefing. This is likely due to confusion in the record. An
investigator for the State testified that a “stripper clip” is used to quickly load rounds into the
SKS magazine. Trial Tr. vol. V, 1280. During his testimony, Byus used the term “clip” at times
when he likely meant “magazine.” Trial Tr. vol. VIII, 2037, vol. IX, 2152. The difference in
terminology is not dispositive on this issue, and the Court will refer to a “magazine” instead of a
“clip” for accuracy’s sake.
17

Counsel’s decision not to press Byus about the size of the magazine was not
unreasonable, nor did it amount to deficient performance.
Also, there is no reasonable possibility that extensive impeachment on the
magazine size would have altered the verdict. The jury heard from investigators
that ten casings attributed to the SKS were found at the crime scene. Trial Tr. vol.
VII, 1827-29. Yet Byus did not testify to seeing or hearing anyone reload the SKS.
The jury also heard from an investigator that an SKS magazine would hold ten
rounds. Trial Tr. vol. V, 1280. The jury heard the information it needed to
conclude that Byus’ testimony again did not mesh with the physical evidence;
therefore there is no reasonable probability that a juror would be swayed by
another expert testifying to the standard SKS magazine size.
Having examined the record, Petitioner’s complaints regarding counsel’s
handling of Byus amount to hindsight-based criticisms against which Strickland
warns. The OCCA’s decision on this issue was reasonable, therefore this Court
will not disturb that ruling.
b. Mental retardation.
Petitioner raises two distinct challenges to how trial counsel handled
evidence of mental retardation. First, Petitioner claims that counsel should have
argued mental retardation as a complete defense to the death sentence under Atkins
v. Virginia. Second, Petitioner says that counsel should have used evidence of
mental retardation as mitigating evidence. The OCCA denied this claim, stating
that counsel was not ineffective because Oklahoma law excluded Petitioner from
being considered mentally retarded. Postelle, No. PCD-2009-94, slip op. at 12-13.
The OCCA addressed the Flynn Effect, and reiterated that it was irrelevant in the
mental retardation determination in Oklahoma. Id. at 12. That decision was not
unreasonable in light of clearly established federal law.
18

At trial, Petitioner’s expert Dr. Ruwe testified regarding Petitioner’s IQ tests.
Petitioner scored a 76 and a 79 on the two separate tests. Trial Tr. vol. XI, 286061, 2876. In Oklahoma, a score of 70 or below is necessary to support a mental
retardation defense. OKLA. STAT. tit. 21, § 701.10b(C). That score takes into
account the standard error measurement. Id. However, no defendant that receives
a score of 76 or above can be considered mentally retarded, and is not entitled to
proceedings to determine whether he is mentally retarded.

Id.

Although

Petitioner’s scores are outside the range for mental retardation under Oklahoma
law, he nevertheless claims that his score should be adjusted downward based on
the Flynn Effect.
The Flynn Effect is “a phenomenon named for James R. Flynn, who
discovered that the population’s mean IQ score rises over time . . . .” Hooks v.
Workman, 689 F.3d 1148, 1169 (10th Cir. 2012). The premise is that current IQ
scores are inflated, and therefore must be renormed to take the rising IQ levels into
account. Id. Petitioner claims that trial counsel should have used the Flynn Effect
to establish that Petitioner is mentally retarded, then presented that information as
both an absolute defense to his death sentence and as mitigating evidence.
Counsel was not ineffective for not advancing that argument. There is no
basis for an argument that Petitioner is ineligible for the death penalty because he
is mentally retarded. Petitioner’s expert witness specifically testified that he was
not mentally retarded. Trial Tr. vol. XI, 2862-63. Petitioner did not present a
solitary piece of evidence in his post-conviction proceeding or in this proceeding
that contradicts that expert opinion. Petitioner only offers his own calculations
based on the Flynn Effect.

While Petitioner criticizes trial counsel for not

investigating further or getting a second opinion, Petitioner fails to show that any
expert would actually agree with his argument. Also, the OCCA has rejected the
19

Flynn Effect as not relevant to the mental retardation determination. Smith v.
Oklahoma,

245 P.3d 1233, 1237 n.6 (Okla. Crim. App. 2010). According to

the Tenth Circuit, that decision is “not contrary to or an unreasonable application
of clearly established federal law.” Smith v. Duckworth, ___ F.3d ___, 2016 WL
3163056

at *8 (10th Cir. June 6, 2016). The established state and federal

precedents show that Petitioner’s Flynn Effect argument is not meritorious under
Oklahoma law, nor is it meritorious in habeas proceedings. Counsel’s performance
was not deficient for not advancing an argument that was sure to fail.
The issue of whether counsel should have raised mental retardation in
mitigation is more complicated. Evidence of mental retardation can be mitigating.
Smith v. Mullin, 379 F.3d 919, 942 (10th Cir. 2004). And a failure to present
mitigating evidence can rise to ineffectiveness of counsel.

See Porter v.

McCollum, 558 U.S. 30, 39-41 (2009). But counsel faced special circumstances
here.
First, as noted above, Petitioner’s own expert witness testified that he was
not mentally retarded. Counsel would have had to impeach their own expert, Dr.
Ruwe, in order to argue that Petitioner was mentally retarded. With the amount of
helpful mitigating testimony which Dr. Ruwe gave, counsel would likely want to
avoid damaging his credibility or expertise.
Second, it is doubtful that the trial court would have even allowed counsel to
tell the jury that Petitioner was mentally retarded, even under his novel scientific
theory, when Oklahoma law specifically states Petitioner cannot be considered
mentally retarded because he scored 76 and 79 on his IQ tests. See OKLA. STAT.

20

tit. § 701.10b(C).4 Oklahoma’s evidence rules apply in full force at the penalty
stage, and it is unlikely that the trial court would admit evidence that the OCCA
has deemed “not a relevant consideration in the mental retardation determination
for capital defendants.” Smith, 245 P.3d at 1237 n.6. Further, the Flynn Effect
itself is not a widely accepted theory, at least not in the capital murder context. See
Hooks, 689 F.3d at 1170 (recognizing lack of scientific consensus on the Flynn
Effect’s validity). See also Ledford v. Warden, Ga. Diagnostic & Classification
Prison, 818 F.3d 600, 637-38 (11th Cir. 2016) (materials do not show a general
consensus in the medical community about the Flynn Effect, and do not give any
guidance as to how to apply it); Pruitt v. Neal, 788 F.3d 248, 267 n.2 (7th Cir.
2015) (“application of the Flynn Effect was contentious in the professional
community”); McManus v. Neal, 779 F.3d 634, 653 (7th Cir. 2015) (“it is not
common practice to adjust IQ scores by a specific amount to account for” the
Flynn Effect); Maldonado v. Thaler, 625 F.3d 229, 238 (5th Cir. 2010) (the Fifth
Circuit has not recognized the Flynn Effect as scientifically valid).

Some

jurisdictions do consider and apply the Flynn Effect, but considering Oklahoma’s
past treatment of the theory and the federal circuit courts’ critical opinion of the

4

The Court is also unsure whether Petitioner could have presented the evidence as a procedural
matter. When a capital defendant seeks to raise a mental retardation defense in Oklahoma, the
question can either be resolved by the trial court in a pretrial evidentiary hearing, or by the jury,
during the sentencing stage of the defendant’s trial. OKLA. STAT. tit. 21, § 701.10b(E)-(F). If the
defendant opts for the jury to decide the issue, the trial court submits a special issue to the jury as
to whether the defendant is mentally retarded. Id. § 701.10b(F) If the jury either finds that the
defendant is not mentally retarded, or is unable to reach a unanimous decision on that issue, the
jury can still consider the evidence presented on the mental retardation issue as a mitigating
factor. OKLA. STAT. tit. 21, § 701.10b(G). But those procedures only apply to defendants who
score below a 76 on their IQ test. Id. § 701.10b(C). If a defendant scores 76 or above, he is not
entitled to an evidentiary hearing or a decision by the jury. Id. It is unclear whether the
defendant can even claim mental retardation in trial if his score is above 76. That is not to say
that this statute precludes that type of mitigating evidence, but rather to show that trial counsel
was not unreasonable for not presenting evidence that would likely have been disallowed.
21

Flynn Effect, there is little reason to think that Flynn Effect evidence would have
even been admissible at Petitioner’s trial.
Third, a discussion of the Flynn Effect could have confused the jury.
Counsel had a significant amount of family history, mental issues, and other
mitigating evidence to present. Explaining to the jury that the Petitioner was
mentally retarded, even though the law and his own expert said he was not, could
have created a risk of significant confusion and might have obfuscated the other
mitigating evidence.

Finally, the Supreme Court acknowledged in Atkins v.

Virginia that mental retardation can carry both positive and negative elements.
536 U.S. 304, 321 (2002). Mental retardation can “be a two-edged sword that may
enhance the likelihood that the aggravating factor of future dangerousness will be
found by the jury.” Id. It would certainly be reasonable for counsel to avoid the
pitfalls and obstacles that awaited any attempt to use mental retardation as a
mitigating factor.
Even if counsel did not perform reasonably, there is no reasonable
probability that a juror would be swayed from the death sentence by the evidence
of the Flynn Effect, and therefore no prejudice.

The jury heard testimony that

Petitioner’s IQ level sat in the borderline range for mental retardation. Dr. Ruwe
explained that Petitioner functioned on a level lower that 95% of the population.
Trial Tr. vol. XI, 2862. The mitigation case included evidence of Petitioner’s
adolescent methamphetamine abuse and the negative effects flowing from that
abuse. It is unlikely that additional testimony that Petitioner’s actual IQ was a few
points lower--based on a sharply contested scientific theory--would persuade a
juror to vote against the death penalty. The OCCA’s decision is not unreasonable
in light of clearly established federal law, therefore relief is denied on that issue.

22

c. Failure to present additional testimony from friends and family.
Petitioner also claims that trial counsel failed to investigate and present other
mitigating evidence.

Petitioner faults the manner in which counsel presented

mitigating evidence about his background, arguing that the information was
incomplete and “presented in a disjointed manner.” Petition at 27. Petitioner
alleges that counsel also should have presented more testimony, like the affidavits
attached to his state post-conviction application. Id. at 28-29.
Petitioner first takes issue with trial counsel’s decision to present Destainy
Postelle’s testimony through a transcript of her testimony from David Postelle’s
trial. Destainy is Petitioner’s sister, and was incarcerated in a juvenile facility
during Petitioner’s trial. Trial Tr. vol. XI, 2806. Trial counsel did obtain video
testimony from Destainy, but the quality was so poor that counsel could not hear
what she was saying. Id. at 2807. Petitioner argues that while Destainy gave
emotional and persuasive testimony during David Postelle’s trial, his attorneys
simply presented the same testimony through a transcript at Petitioner’s trial,
devoid of the same emotional impact. The OCCA denied relief on this issue,
finding that the record showed that presenting live testimony from those witnesses
was not an option, and “beyond the control of trial counsel.” Postelle, No. PCD2009-94 at 14.
The OCCA’s ruling was not unreasonable.

Both parties stipulated that

Destainy could not testify because she was incarcerated at a juvenile facility in
Arizona.

Petitioner has not argued that trial counsel could or should have

attempted to bring her to Oklahoma. And while counsel did obtain a video of her
testimony, they could not use it due to the poor quality. Faced with this difficult
situation, trial counsel presented the transcript. To be sure, that option is not ideal,
23

but it was the best available to counsel. Counsel is not ineffective or unreasonable
when they must present weak evidence through no fault of their own. Attorneys
are required to act reasonably, not miraculously.
The same is true with the testimony of Gilbert Eugene Postelle Jr.,
Petitioner’s uncle. Counsel also presented Gilbert Postelle’s testimony through
transcript, because he was unavailable due to medical reasons. Id. at 2694-95.
And although counsel did not seek to obtain video testimony from Gilbert Postelle,
the Court observes an obvious strategic reason:

Gilbert Postelle’s mental

capabilities threatened his usefulness as a witness. Gilbert Postelle details how he
had visions of spirit guides that drove him to attempt suicide in 2008, the year of
Petitioner’s trial. Original Appl. for Post-Conviction Relief, Ex. 14. Counsel
investigated the possibility of Gilbert Postelle testifying, and learned that his
medical status precluded his travel. Counsel likely learned the extent of those
medical issues, and decided to use the transcripts of Gilbert Postelle’s testimony in
David Postelle’s trial. That decision was reasonable given the circumstances, and
thus the OCCA’s resolution of that issue was also reasonable.
Petitioner refers to several affidavits containing various sorts of information,
and argues that counsel should have called those witnesses and presented that
testimony.5 The affidavits generally show that Petitioner struggled in school, was a
slow learner, became easily frustrated, was accident prone, and had once

5

Petitioner presented these affidavits in his state post-conviction proceeding, but did not actually
explain how their contents would affect his mitigation case. Original Appl. for Post-Conviction
Relief at 13. The OCCA interpreted the affidavits as evidence of Petitioner’s mental illnesses.
Postelle, No. PCD-2009-94, slip op. at 14-15. In this habeas proceeding, Petitioner seems to
raise the claim separate and apart from his mental health claims. Although it is unclear whether
the OCCA addressed this specific claim on the merits, the Court finds that it would fail
regardless of whether the standard of review were de novo or the deferential AEDPA standard.
24

encouraged a suicidal friend. Many of the affidavits discussed his family’s history
of mental illness, focusing especially on his mother’s severe issues.
Aside from the history of mental illness, this information has relatively
slight potential for beneficial impact.6 While mitigating, the information pales in
comparison to the evidence that was presented. Counsel introduced compelling
evidence of a young boy who was abused by his mother and raised by his
grandparents. Trial Tr. vol. XI, 2742, 2744-47. Witnesses testified that Petitioner
abused methamphetamine beginning at age 12 or 13, and even helped his father
cook methamphetamine in the backyard. Id. at 2716, 2698, 2751-54. Witnesses
discussed the tragic circumstances of Petitioner’s grandfather’s stroke and his
father’s debilitating motorcycle accident. Id. at 2700-01, 2736-37, 2748-50, 278586.
Counsel painted a vivid picture of the complete and utter dysfunction
surrounding Petitioner.

Counsel was not unreasonable for not calling other

witnesses that would have provided only marginal benefit to the mitigation case.
The mental illness history of the Postelle family would be relevant, but both

6

Although this point is not determinative, it is worth noting that there is good reason for
caution when a habeas petitioner seeks relief on the basis of trial counsel’s failure to call one or
more witnesses to give testimony that the petitioner asserts would have been favorable. When a
petitioner makes that kind of an argument, he can tout the beneficial import of the testimony of
the witnesses who were not called while disregarding that fact that every decision by trial
counsel as to whether to call, or not call, a given witness is, of necessity, a cost/benefit analysis
(as to those aspects of the prospective witness’s testimony that are knowable) and a risk analysis
(as to those aspects that are not known or knowable). In this case, Petitioner complains of his
trial counsel’s failure to call several “family members and lifelong friends.” Petition, at 28.
Family members and associates of capital murder defendants are, almost by definition, risky
witnesses. The marginal benefit to be derived from testimony elicited by defense counsel might
be obliterated, and then some, in the blink of an eye on cross examination by a skilled and wellprepared prosecutor who knows “the rest of the story.” Especially in the emotion-laden setting
of the penalty phase of a capital murder trial, defense counsel must be as wary of calling one too
many witnesses as he is of asking one too many questions. In the habeas context, caution is
especially appropriate because the petitioner’s affidavits from uncalled witnesses will quite
understandably show the upside but not the downside.
25

Petitioner’s aunt and sister already testified that Petitioner’s mother suffered from
mental illness to such an extent that she was committed to a mental institution.
Ct.’s Ex. 13 at 2762; Trial Tr. vol. XI, 2833. While the affidavits may give more
detail about Petitioner’s mother’s issues, the Court cannot say that counsel was
unreasonable for not presenting that information, especially since Petitioner left his
mother’s care at a very young age. Additional lay testimony about the family’s
history was unnecessary. Counsel’s performance was not deficient.
Even if counsel’s performance was deficient regarding the additional
mitigating evidence, the Court can find no prejudice. As noted above, counsel
presented a complete and persuasive mitigation case, detailing Petitioner’s troubled
upbringing in a shameful environment. It is unlikely that a little more testimony
about his struggles with school, or one more account of his mother’s mental illness
would tip the scale in his favor.7

The OCCA found that counsel’s performance

was not deficient, and that Petitioner did not suffer any prejudice from the alleged
deficient performance. Applying the high deference under both Strickland and
AEDPA, this Court concludes that the OCCA’s decision was reasonable.
d. Failure to present mental health evidence.
Petitioner’s final trial counsel claim involves counsel’s decision to focus on
Petitioner’s brain damage, rather than on potential mental illnesses. Dr. Ruwe
testified that Petitioner suffered from neurocognitive and psychological problems.
Trial Tr. vol. XI, 2849. Petitioner claims that trial counsel focused primarily on
the neurocognitive issues, particularly the organic brain damage related to

7

Petitioner argues that he can show prejudice because David Postelle only received a life
sentence, not the death penalty. This argument ignores the fact that Randall Byus did not testify
during David’s trial, therefore his jury had no eyewitness testimony to identify the most culpable
party. In Petitioner’s case, the jury not only heard Byus’ testimony, but heard that Petitioner was
the main shooter, solely responsible for killing three of the four victims.
26

methamphetamine use.

Petition at 31.

Petitioner argues that Dr. Ruwe also

diagnosed him with Major Depressive Disorder, Recurrent, Severe, with Psychotic
Features, and found that Petitioner exhibited symptoms of Posttraumatic Stress
Disorder and possibly Schizoaffective Disorder or Schizophrenia, but that counsel
did not focus on those issues at trial. Id.
Doubtless, evidence of mental illnesses is mitigating. Hooks, 689 F.3d at
1204-05. But the Tenth Circuit has specifically identified “organic brain damage”
as having a “powerful mitigating effect.” Id. at 1205. To be sure, there is some
overlap of the two, as organic brain damage is often the root cause of mental
illnesses. See Wilson v. Sirmons, 536 F.3d 1064, 1094 (10th Cir. 2008).
Counsel had evidence from Dr. Ruwe that Petitioner suffered from both
organic brain damage and mental illnesses. The decision to focus Dr. Ruwe on the
organic brain damage as opposed to the mental illnesses was an informed choice,
based on Dr. Ruwe’s findings. At trial, Dr. Ruwe went into great detail regarding
the effects of methamphetamine on Petitioner, and emphasized the problems the
abuse would cause since Petitioner was very young. Trial Tr. vol. XI, 2854-59.
Dr. Ruwe’s testimony gave the jury substantial information on Petitioner’s
cognitive short-comings and how those might affect his behavior.

Dr. Ruwe

testified that his testing did not reveal any thought disorders, hallucinations, or
delusions. Id. at 2884.
The OCCA found that counsel’s decision to focus on organic brain damage
as opposed to mental illness was reasonable.8 This Court cannot say that the
OCCA’s ruling is itself unreasonable. The fact that different trial lawyers might

8

There is little doubt, given recent trends in capital habeas litigation (at least in the Tenth
Circuit), that any failure to defend on the basis of organic brain damage would result in a
vigorous complaint in post-conviction proceedings. See, generally, the discussion in Hooks, 689
F.3d at 1205.
27

have pursued differing strategies does not make the decisions made by Petitioner’s
trial counsel constitutionally deficient.
Moreover, even if the performance were deficient, the OCCA reasonably
concluded that the Petitioner successfully made the point that his judgment was
impaired, therefore he suffered no prejudice. Dr. Ruwe’s testimony explained in
great detail the neurocognitive effects of drug abuse on Petitioner’s brain, and
discussed the depression, borderline IQ, and other psychological problems. This
Court cannot say that the OCCA’s determination of no prejudice is unreasonable.
Relief is denied on this issue.
e. Ineffectiveness of appellate counsel.
Petitioner finally claims that his appellate counsel was ineffective for not
raising his trial counsel claims or his mental retardation claim on direct appeal.
Petition at 33-36. As discussed above, Petitioner’s trial counsel claims lack merit.
Therefore, appellate counsel’s failure to raise those meritless claims cannot amount
to deficient performance. Also, Petitioner does not show any prejudice. Appellate
counsel can only be ineffective if, absent the appellate counsel’s deficient
performance, there is a reasonable probability that the petitioner would have
prevailed on appeal. Smith v. Robbins, 528 U.S. 259, 285 (2000). The OCCA
rejected Petitioner’s trial counsel and mental retardation claims as meritless. It is
unlikely that Petitioner would have prevailed if appellate counsel had raised those
exact claims on direct appeal. In any event, the OCCA’s rejection of Petitioner’s
appellate counsel claims was reasonable in the light of clearly existing state law.
Therefore, relief is denied as to that issue.

28

5. Conclusion.
The OCCA’s decisions on Petitioner’s ineffectiveness claims are reasonable
in the light of clearly established federal law. As for Petitioner’s unexhausted
claim, it would be procedurally barred should Petitioner raise it in state court at this
time. Therefore, Petitioner’s Ground One is denied in all respects.
B. Ground Two: Right to an Impartial Jury.
Petitioner claims that his voir dire process violated his right to an impartial
jury. Petitioner notes that the trial court did not allow juror questionnaires or
individual voir dire, and dismissed eight prospective jurors on its own initiative
without allowing the defense to question them. Petition at 38-39. The OCCA
denied these claims on direct appeal.9 Postelle, 267 P.3d at 133-36.

1. Clearly established law.
Criminal defendants have “the right to an impartial jury drawn from a venire
that has not been tilted in favor of capital punishment . . . .” Uttecht v. Brown, 551
U.S. 1, 9 (2007). That right “prohibits the exclusion of venire members ‘simply
because they voiced general objections to the death penalty or expressed
conscientious or religious scruples against its infliction.’” Wilson, 536 F.3d at
1097 (quoting Witherspoon v. Illinois, 391 U.S. 510, 522 (1968)). Instead, a juror
is only removable for cause when his views “would prevent or substantially impair
the performance of his duties as a juror in accordance with his instructions and his
oath.” Wainwright v. Witt, 469 U.S. 412, 424 (1985).

9

Petitioner claims that the OCCA did not rely on federal law to decide these claims, and argues
that the Court’s review should be de novo. The OCCA very clearly referred to the standard in
Wainwright v. Witt, 469 U.S. 412 (1985), in determining this issue, therefore the OCCA’s
decision is entitled to AEDPA deference. Postelle, 267 P.3d at 135.
29

The guarantee of an impartial jury requires “an adequate voir dire to identify
unqualified jurors.” Morgan v. Illinois, 504 U.S. 719, 729 (1992). There is no
catechism for voir dire, and the method is generally left to the trial court’s sound
discretion. Id. This gives the trial court “great flexibility in conducting voir dire.”
Wilson, 536 F.3d at 1097. But that discretion is still subject to the essential
demand of fairness. Morgan, 504 U.S. at 730. Therefore, the Court does not ask
whether further questioning or different methods would have been helpful, but
whether the trial court’s handling of voir dire “render[ed] the [Petitioner’s] trial
fundamentally unfair.” Mu’Min v. Virginia, 500 U.S. 415, 425-26 (1991).
2. Analysis.
It is unclear whether Petitioner raises claims based on the trial court’s
decision not to conduct individual voir dire or use juror questionnaires. The
structure of the petition seems to only use those issues as background context. The
Court addresses those issues nonetheless.
a. Individual voir dire.
“There is no absolute right to individual voir dire in capital cases….”
Wilson, 536 F.3d at 1098. Conducting voir dire with the entire venire present can
quite easily comport with the requirements of due process. Id. Still, it is possible
that such a method could be so egregious in certain circumstances that it would
deprive a defendant of a fair trial. Id. These egregious situations could arise where
jurors gave their opinions about guilt or innocence based on pre-trial publicity, or
where jurors expressed knowledge that the defendant was arrested for some other
heinous crime. Id. Those types of statements, made in the presence of other
jurors, could taint the entire venire and render the trial fundamentally unfair. Id.

30

Petitioner does not present that type of egregious situation here. Some
prospective jurors indicated that they or someone they knew had made up their
minds as to guilt or innocence, but none of them gave any indication as to which
verdict they favored. And while other jurors discussed their exposure to media
coverage of the murders, the comments were non-specific and general. Nothing in
the record indicates the kind of egregious situation where general voir dire tainted
the entire venire or that jurors failed to answer questions fully or honestly due to
voir dire method. The OCCA’s rejection of that claim was not unreasonable.
b. Jury questionnaires.
The decision to use – or not use – jury questionnaires is another issue
committed to the trial court’s discretion. Petitioner does not make any attempt
show that the voir dire method violated due process.

As the OCCA noted,

Petitioner does not identify any question that he would have asked in a
questionnaire that was not or could not have been asked during voir dire.
Petitioner does not present any argument to this Court that would indicate that the
lack of a questionnaire violated his right to an impartial jury.

The OCCA’s

decision on that point was therefore reasonable.
c. Removal of jurors.
Petitioner focuses primarily on the trial court’s dismissal of eight
prospective jurors. After asking these eight prospective jurors questions regarding
their view of the death penalty and their ability to consider the possible penalties,
the trial court dismissed them without allowing questioning by either party.
Petitioner claims voir dire was inadequate because his attorneys were not permitted
to question the prospective jurors prior to their dismissal. Petition at 39.

31

The trial court determines juror impartiality, and those determinations are
findings of fact. Patton v. Yount, 467 U.S. 1025, 1036 (1984). The trial court also
evaluates prospective jurors’ demeanor and credibility, which are important
considerations apart from the cold record of questions and answers. See Uttecht,
551 U.S. at 7-8. When faced with ambiguity in a prospective juror’s statements,
the trial court is free to resolve that ambiguity in favor of the State. Id. at 7.
Reviewing courts therefore owe deference to a trial court’s decision to excuse or
not excuse a juror for cause.

Id.

This deference is added to the already

“independent, high standard” for habeas review under the AEDPA. Eizember v.
Trammell, 803 F.3d 1129, 1135-36 (10th Cir. 2015).
The pertinent question is whether the voir dire was adequate to determine
whether a prospective juror was qualified to serve on the panel. Moore v. Gibson,
195 F.3d 1152, 1170 (10th Cir. 1999).

Questioning by the parties is not

constitutionally required, and there is no constitutional right to rehabilitate a
prospective juror who appears unqualified. Id.; Brown v. Sirmons, 515 F.3d 1072,
1081 (10th Cir. 2008). While such questioning can sometimes be helpful and in
some cases even vital, that is not the situation here.
In this case, the trial court questioned each prospective juror about his or her
views on the death penalty and his or her ability to consider the punishments
available. The first dismissed prospective juror, Mr. Goldsmith, responded “No”
when the trial court asked if he could consider all three of the legal punishments.
Trial Tr. vol. I, 37. When the trial court asked if his reservations about the death
penalty were so strong that he would not consider it, regardless of the law, facts,

32

and circumstances of the case, Mr. Goldsmith said, “I would have to say yes.” Id.
38. The trial court then dismissed Mr. Goldsmith.10
Later, the trial court questioned Mr. Murray, who initially admitted that he
“could not guarantee [the court] that [he] could impose the death penalty.” Id. at
45. The trial court then asked
. . . if you find the defendant guilty of murder in the first degree, can
you consider all three of the legal punishments, death, imprisonment
for life without parole, or imprisonment for life and weigh the
aggravating circumstances against the mitigating circumstances to
impose the punishment that you feel is warranted by the law and
evidence?
Id. at 45-46. Mr. Murray responded “No.” The court then asked
. . . if you find beyond a reasonable doubt that the defendant was
guilty of murder in the first degree and, if under the evidence, facts
and circumstances of the case would permit to [sic] you consider an
imposition of death, are your reservations about the penalty of death
so strong that regardless of the law, the facts and the circumstances of
the case, you would not consider the imposition of the penalty of
death?
Id. at 46. Mr. Murray said, “I could not consider the imposition of death.” Id.
Upon further questioning from the trial court, Mr. Murray indicated that he could
impose death if he were an eyewitness, but not in any other situation. Id. The trial
court explained that the law would never require a death penalty, and told Mr.
Murray that he would have to be able to consider all three punishments, even after
he found the Petitioner guilty. Id. at 47-49. Mr. Murray finally said that he could
not consider all three punishments, and the trial court dismissed him. Id.

10

Petitioner complained on direct appeal, as he complains here, that the trial court did not use the
Oklahoma Uniform Jury Instruction questions when questioning Mr. Goldsmith. This issue has
no constitutional import. The questions the trial court asked Mr. Goldsmith were not confusing
or misleading, and were adequately designed to elicit a reliable response. Also, the trial court
noted that Mr. Goldsmith was “emphatic” about his view. Trial Tr. vol. I, 39.
33

The next six dismissed prospective jurors simply answered “no” when asked
if they could consider all three punishments, and “yes” when asked if their views
on the death penalty would preclude them from even considering that punishment.
Id. at 55, 64, 70, 90-91, 105-06, 121. The record does not reveal any equivocation
on the part of those eight prospective jurors that might have warranted further
inquiry.

The questions went to the heart of the Witt standard by asking whether

the prospective jurors’ views would prevent or substantially impair their
performance as jurors. The clear statements that the eight prospective jurors would
not consider one of the punishments certainly established cause for dismissal. The
trial court also observed and presumably weighed the demeanor of the prospective
jurors. Petitioner does not present any evidence or argument to overcome the
deference due the trial court’s factual determinations regarding prospective
jurors.11 The OCCA’s decision to reject this claim was not contrary to or an
unreasonable application of clearly established law. Therefore, relief is denied on
Ground Two.

11

The undersigned, having (as presiding judge) empaneled a jury in a capital murder case,
cannot but point out one of the awkward anomalies of jury selection in capital cases. In follow
up questioning after a prospective juror expresses a disinclination even to consider the death
penalty, defense counsel will almost plead with the prospective juror to consider voting for death
(or at least to profess willingness to do so). In turn, the prosecutor will ask questions designed to
shore up the candidate’s unalterable moral opposition to the ultimate penalty. (And these roles
are reversed when the candidate says, as some do, that he will not consider any penalty other
than death if murder is proven.) Petitioner has cited no constitutional authority, and the Court
has found none, for the proposition that a trial judge, having heard a definitive statement of
unwillingness to consider one of the permissible penalties, must subject the prospective juror to a
tug of war between the prosecution and the defense. Unless the trial judge, with the benefit of
first-hand observation of the prospective juror, has reason to believe that a definitive statement of
position can be softened up by partisan voir dire (with the result that one party or the other has to
expend a peremptory challenge that could otherwise be profitably used to get rid of some other
candidate), exposing the prospective juror to verbal pushing and shoving by counsel will, in
almost every instance, amount to a waste of time and an unseemly imposition on the prospective
juror.
34

C. Ground Three: Exclusion of David Postelle’s Sentence.
David Postelle was tried prior to Petitioner for the same murders, and
received four consecutive life sentences without possibility of parole. Petition at
47. Petitioner complains that the trial court violated his right to present mitigating
evidence by excluding evidence of David Postelle’s life sentence. Id. at 47-48. On
direct appeal, the OCCA denied this claim, holding that while the trial court was
not precluded from admitting the evidence, the trial court did not err by excluding
it. Postelle, 267 P.3d at 140-41.
1. Clearly established law.
Courts must allow sentencers to consider “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 v.
Ohio, 438 U.S. 586, 604 (1978) (emphasis in original).

The Supreme Court has

observed that the “low threshold for relevance” asks whether the evidence “tends
logically to prove or disprove some fact or circumstance which a fact-finder could
reasonably deem to have mitigating value.” Tennard v. Dretke, 542 U.S. 274, 28485 (2004) (quoting McKoy v. North Carolina, 494 U.S. 433, 440 (1990)). Yet the
Supreme Court has also noted that state courts still retain their traditional authority
to “exclude, as irrelevant, evidence not bearing on the defendant’s character, prior
record, or the circumstances of his offense.” Lockett, 438 U.S. at 604 n.12.
2. Analysis.
Petitioner argues that David Postelle’s sentence is relevant mitigating
evidence under clearly established federal law. Petitioner relies heavily on Parker
v. Dugger, 498 U.S. 308 (1991).

In Parker, the Supreme Court found that

although the Florida trial court found and weighed a co-defendant’s more lenient
35

sentence as mitigating evidence, the state supreme court did not. Id. at 315-16,
318. The Supreme Court observed that the sentence was proper nonstatutory
mitigating evidence under Florida law. Id. at 315-16. Petitioner claims that this
observation clearly establishes David Postelle’s sentence as relevant mitigating
evidence in Petitioner’s case.
This argument misconstrues Parker.

The Supreme Court reversed the

Florida Supreme Court’s decision because the Florida Supreme Court stated, as a
factual finding, that the trial court did not find any mitigating circumstances. Id. at
321-23. After a lengthy discussion, the Supreme Court concluded that the trial
court had found and weighed several mitigating circumstances, including the codefendant’s sentence. Id. at 315-18. Based on the obvious factual disagreement
between the trial court and the Florida Supreme Court, the Supreme Court
determined that the Florida Supreme Court’s decision rested on an unreasonable
determination of facts. Id. at 322-23. The Supreme Court stated that “had the
Florida Supreme Court conducted its own examination of the trial and sentencing
hearing records and concluded that there were no mitigating circumstances, a
different question would be presented.” Id. at 322. The facts and circumstances in
Parker show that the Supreme Court was not addressing the issue of whether a codefendant’s sentence is relevant mitigating evidence under Lockett. The issue
merely arose because the trial court properly considered that type of evidence
under Florida law.
This Court faces the “different question” referred to in Parker: does clearly
established federal law require that a trial court admit the sentence of a codefendant as mitigating evidence? Having discussed why Parker fails to address
that question, the Court now considers other existing precedent on the subject.

36

The OCCA cited a split of authority on this issue. Notably, the only cases
the OCCA found on Petitioner’s side were state court cases. Postelle, 267 P.3d at
140-41. Three circuits, the Fourth, Fifth, and Ninth, have found that Lockett and
its progeny do not require admission of a co-defendant’s sentence. Id. (citing
Meyer v. Branker, 506 F.3d 358, 375-76 (4th Cir. 2007); Beardslee v. Woodford,
358 F.3d 560, 579 (9th Cir. 2004); Brogdon v. Blackburn, 790 F.2d 1164, 1169
(5th Cir. 1986)). Research discloses no published Tenth Circuit decisions on this
issue. However, the weight of federal authority appears to indicate that a trial
court does not violate Lockett or any other clearly established federal law by
excluding evidence of a co-defendant’s sentence.
This conclusion is consistent with Lockett’s direction to allow mitigating
evidence about a defendant’s character, record, or the circumstances of the crime.
A co-defendant’s sentence does not fall into any of those categories. Instead, it is
an extrinsic consideration. Petitioner argues that since the evidence gives some
reason to impose a sentence less than death, Lockett demands its inclusion. But
this broad proposition ignores Lockett’s limiting principle that the evidence must
relate to the defendant or the circumstances of his crime. The Court can conceive
of an abundance of facts that could give some reason not to impose the death
penalty. But many of those facts would be completely irrelevant to the actual case
that the jury must resolve. The OCCA concluded that the trial court did not err
under Lockett by excluding evidence of David Postelle’s sentence during the
mitigation presentation. That decision was not contrary to or an unreasonable
application of clearly established federal law. Relief is denied on Ground Three.

37

D. Ground Four: Victim Impact Testimony.
Petitioner claims that the victim impact statements read by John Alderson,
brother of victim James Alderson, and Janet Wright, mother of victim Amy
Wright, violated his constitutional rights. Petitioner argues that the statements
were overly emotional and contained characterizations of the crimes. Petition at
57-59.

Petitioner also claims that victim impact testimony acted as an

unconstitutional super-aggravator. Id. at 55-56. On direct appeal, the OCCA
reviewed for plain error and found that the victim impact testimony was proper,
did not unfairly prejudice Petitioner, and did not prevent the jury from reaching a
reasoned, moral decision. Postelle, 267 P.3d at 143. The OCCA also rejected his
“super-aggravator” argument, relying on state precedent. Id. at 146.
1. Exhaustion.
Petitioner’s current argument on this claim is more expansive than the
argument he presented on direct appeal. There, Petitioner only complained that the
victim impact testimony was overly emotional.

Br. of Appellant at 78-80.

Petitioner did not challenge the portions of the victim impact testimony that
discussed the circumstances of the crime. Id. However, the OCCA’s order stated
that the testimony mentioned “the physical effects of the crime” and “the manner
in which it was carried out….” Postelle, 267 P.3d at 143. The OCCA then ruled
that the victim impact testimony was permissible. Id. As noted in Section III.A,
supra p. 8, the purpose of exhaustion is to give state courts the first opportunity to
correct alleged violations of state prisoner’s federal rights. While Petitioner did
not challenge the characterizations of the crimes, the OCCA apparently ruled on
that issue. The Court therefore finds this claim is exhausted.

38

2. Clearly established law.
The Supreme Court at one time prohibited testimony by a murder victim’s
family that “described the personal characteristics of the victims and the emotional
impact of the crimes on the family,” and gave “family members’ opinions and
characterizations of the crimes and the defendant.” Booth v. Maryland, 482 U.S.
496, 502-03, 509 (1987). The Supreme Court later overruled Booth in part, and
found that the first category (characteristics of the victims and the impact on the
family) was admissible. Payne v. Tennessee, 501 U.S. 808, 830 & n.2 (1991).
Payne did not require states to allow victim impact evidence, but rather held that
. . . if the State chooses to permit the admission of victim impact
evidence and prosecutorial argument on that subject, the Eighth
Amendment erects no per se bar. 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 may be imposed.
Id. at 827. Under Payne, prosecutors may give a “quick glimpse of the life
petitioner chose to extinguish.” Id. at 830 (O’Connor, J., concurring) (quotation
omitted). Evidence of the victim and the impact on the victim’s family is therefore
treated as any other relevant evidence. Id. at 827. Any challenge to such evidence
must show that it “is so unduly prejudicial that it renders the trial fundamentally
unfair.” Id. at 825.
But while Payne allows evidence about the victim and the victim’s family, it
does not permit family members to give their opinions regarding the crimes and the
defendant. Selsor v. Workman, 644 F.3d 984, 1026 (10th Cir. 2011). Therefore,
victim impact testimony that characterizes the crime itself or recommends a
specific sentence is still barred under Booth. United States v. McVeigh, 153 F.3d
1166, 1217 (10th Cir. 1998) (disapproved on other grounds).
39

3. Analysis.
During the sentencing stage of Petitioner’s trial, John Alderson read a victim
impact statement. That statement discussed the emotional trauma, stress, and
physical illness that James Alderson’s death brought to his family. Trial Tr. vol.
XI, 2654. He described James’ care for their elderly mother, who was not able to
view James’ body because his head and face were so disfigured from the gunshot
wounds. Id. Mr. Alderson also explained his decision to attend all of the hearings,
even to the point of neglecting the family business. Id. at 2655.
Janet Wright also read an impact statement. She expressed the difficulty of
losing a child. Id. at 2657. Mrs. Wright said that knowing her daughter “was
chased from her home and shot in the back is an unthinkable nightmare from
which my family and I will never awake.” Id. She described her memories of
Amy as a little girl, and mentioned Amy’s love of animals. Id. at 2657-58. Mrs.
Wright spoke of Amy’s interests, talents, and personality. Id. at 2658. Mrs.
Wright told how Amy’s death affected her family. Mrs. Wright detailed her own
struggle to work and be ambitious in her career, her increased fear for her safety,
and her need for counselling, anti-anxiety medications, and sleeping pills. Id. at
2658-59. She testified that Amy’s sister lost her job, moved back in with her
parents, gave up on a singing competition, and changed her major in college. Id. at
2658-59. Mrs. Wright concluded by noting that while one of the people who took
her daughter’s life was allowed to go home to family, she could only go to a
cemetery. Id. at 2659-60.12 Petitioner claims that these statements were unduly
emotional and improperly characterized the crimes at issue.

12

While the transcript is unclear, this comment likely refers to Petitioner’s father, Brad Postelle,
who was deemed incompetent and released to his home.
40

a. Emotional content.
The OCCA considered the emotional content of these two victim impact
statements, and determined that the evidence was “concise, and narrowly focused
on the permissible subjects and was within the bounds of admissible victim impact
testimony.” Postelle, 267 P.3d at 143. On that issue, the OCCA’s decision was
not unreasonable.13
Not only is testimony about the victim and the victim’s family permissible,
but the Tenth Circuit has frequently held that even highly emotional victim
evidence did not render trials unfair. Two cases in particular illustrate this trend.
In United States v. Chanthadara, a defendant claimed error when the trial court
allowed the murdered woman’s husband and two children to present victim impact
testimony. 230 F.3d 1237, 1274 (10th Cir. 2000). The husband showed the jury
numerous color photographs of his wife. Id. The children were ages seven and
ten, and both “ended their testimony in tears.” Id. The jury even took letters from
the children to their dead mother into the jury room, as well as a “daily journal
which described one child’s loss.” Id. Despite the heart-wrenching emotional
content of that evidence, the Tenth Circuit determined that it was not “so
prejudicial as to render the proceeding fundamentally unfair.” Id.
The Tenth Circuit reached the same conclusion in United States v. McVeigh,
where the trial court allowed extensive victim impact evidence regarding the
Murrah Building bombing. 153 F.3d at 1218-19. That evidence included witness

13

To the extent that Petitioner argues that the OCCA’s decision is not entitled to deference, the
Court notes that the case cited by the OCCA in its disposition of this claim, Murphy v.
Oklahoma, discusses Payne and Booth at length. 47 P.3d 876, 885 (Okla. Crim. App. 2011).
The Court is required to give state-court decisions the benefit of the doubt, and presume that
state courts know and follow the law. Woodford v. Visciotti, 537 U.S. 19, 24 (2002). The Court
is satisfied that the state court applied the federal standard, therefore its ruling on this point is
entitled to AEDPA deference.
41

accounts of their last contact with the victims, “agonizing efforts to find out what
happened to their loved ones,” their emotional reactions to learning of their loved
ones’ deaths, the professional and personal histories of the victims, including their
admirable qualities, the innocence and unconditional love of the murdered
children, and the tragic on-going impact on the victims’ families. Id. at 1219-21.
Yet the Tenth Circuit found that this substantial broadside of emotionally-charged
evidence did not render the defendant’s trial fundamentally unfair. Id. at 1222.
The victim impact evidence in Petitioner’s trial pales in comparison to the
evidence in Chanthadara and McVeigh. Mr. Alderson’s testimony was emotional,
but not so much that it rendered Petitioner’s trial unfair. Instead, the testimony
focused on the impact that James Alderson’s death had on the family, and offered a
short glimpse at his life.

Janet Wright’s testimony was also emotional, and

poignantly described her struggle with her daughter’s murder. The Supreme Court
has allowed this type of evidence to give the victims a voice, and portray them as
“a unique loss to society and in particular to [their] famil[ies],” not a “faceless
stranger at the penalty phase of a capital trial.” Payne, 501 U.S. at 825 (quotations
omitted). The evidence in this case accomplished that permissible purpose. The
Court is confident that the evidence at issue in this case was not so emotional as to
violate Petitioner’s due process right to a fair trial.

Therefore, the OCCA

reasonably denied Petitioner’s claim that the victim impact testimony was
unconstitutional because of its emotionally-charged nature.
b. Characterization of the crime.
Petitioner also argues that certain portions of the victim impact statements
included characterizations of the murders.

John Alderson described James

Alderson’s disfigured head and face in the context of explaining why his mother
42

could not say a final goodbye. Trial Tr. vol. XI, 2654. Janet Wright discussed the
“nightmare” of knowing that her child was chased from her home and shot in the
back, and said that the crime was “without apparent reason.” Id. at 2657.
These statements are not purely evidence about the victims and the impact
on the victims’ families. They instead stray into the realm of characterizing the
crimes at issue, which Booth precludes. The OCCA recognized that the evidence
was “clearly related to the physical effects of the crime” and “the manner in which
it was carried out . . . .” Postelle, 267 P.3d at 143. But the OCCA held that under
Oklahoma law, such evidence was permissible. That decision was in error, as it is
contrary to the clearly established law set out in Booth. Having found error, the
Court must now consider whether the error was harmless.
c. Harmless Error.
When state courts do not address an error, federal habeas courts must
determine if the error “had substantial and injurious effect or influence in
determining the jury’s verdict.” Fry v. Pliler, 551 U.S. 112, 116, 121-22 (2007)
(quoting Brecht v. Abrahamson, 507 U.S. 619, 637 (1993)). This test lets habeas
petitioners obtain plenary review, but only allows relief if the error caused “actual
prejudice.” Id. at 637. And an “error that may justify reversal on direct appeal will
not necessarily support a collateral attack on a final judgment.” Brecht, 507 U.S.
at 634. To grant relief, the reviewing court must have grave doubts as to the
error’s effect on the verdict, and if the court is in “virtual equipoise as to the
harmlessness of the error,” the court should “treat the error…as it affected the
verdict.” Selsor, 644 F.3d at 1027 (quoting Fry, 551 U.S. at 121 n.3).
Courts determine whether an error had a substantial or injurious effect by
considering the improper evidence in the context of the entire trial and the record
43

as a whole.

Brecht, 507 U.S. at 638. Using the Tenth Circuit’s approach, the

Court will first examine the nature of the problematic statements, and then
“address the broader context of mitigating and aggravating evidence presented at
trial.” Lockett v. Trammel, 711 F.3d 1218, 1238 (10th Cir. 2013).
The problematic comments are mild. Two are closely tied to appropriate
victim impact testimony, specifically the impact of the deaths on the families.
John Alderson discussed James’ injuries only to explain why the funeral home
director suggested that his mother not look at the body. Trial Tr. vol. XI, 2654.
And Janet Wright spoke of her daughter being chased and shot – explaining how,
as a mother, she was affected more deeply by that than she would have been if
Amy had died of a natural cause. Id. at 2657. The Court acknowledges that these
statements did cross the line into the impermissible characterization of the crime,
but not by much. Also, the statements were not couched in inflammatory language
but were instead matter-of-fact descriptions consistent with evidence already
presented throughout the trial. Finally, as discussed above, the other portions of
the statements were proper, and did not pile overly-emotional testimony atop the
impermissible comments.
Not only were the statements mild, but the evidence supporting the
aggravating circumstances regarding victims Alderson and Wright was significant.
The prosecution presented evidence that Petitioner shot all four victims and was
solely responsible for killing three of them. That evidence firmly supports the
aggravating circumstance that Petitioner created a great risk of death to more than
one person. Also, the evidence showed that Petitioner chased Alderson and Wright
from the trailer, through the property, and shot them as they tried to escape
impending death. Postelle, 267 P.3d at 144. The mental terror of running for their
lives established that the murders were especially heinous, atrocious, and cruel.
44

And finally, the prosecution provided ample evidence that Petitioner posed a
continuing threat to society.14 One witness recounted Petitioner’s remorseless
boast that he “shut that bitch up in the corner,” and the accompanying pantomime
of a rifle shot. Trial Tr. vol. IX, 2280-81.

Another described Petitioner saying

“bitch you better not say nothing” to an individual that overheard Petitioner’s
description of the murders. Trial Tr. vol. VII, 1702. Finally, the prosecution
presented evidence that Petitioner crafted a 10-12 inch shank while awaiting trial
in the county jail. Trial Tr. vol. XI, 2690-91. The callousness, threats, and
contraband weapons certainly support the assertion that Petitioner would be a
continuing threat. All told, the case in aggravation against Petitioner was strong.
The mitigating evidence was also substantial, and addressed Petitioner’s
troubled upbringing, drug abuse, and mental health issues.

However, the

prosecution presented sufficient aggravating evidence to outweigh the mitigating
evidence. And at the close of the evidence, the trial court specifically instructed
the jurors on the weight they could give to the victim impact evidence and
admonished the jury not to impose the death penalty as an emotional response.
O.R. VIII at 1535-36. Considering the statements and the entire context of the
trial, the Court is not in grave doubt that the three mild sentences from the victim
impact statements had a substantial or injurious effect on the jury’s decision.
Therefore, while the characterizations of the murders should not have been
admitted into evidence, the error was harmless.

14

While the jury ultimately rejected the continuing threat aggravator, the evidence
certainly weighed in favor of the death penalty and therefore is relevant to this Court’s
harmless error analysis. See Selsor, 644 F.3d at 1027.  

45

d. Victim impact evidence as a super-aggravator.
Petitioner also argues that victim impact testimony is a “super-aggravator.”
Petitioner claims that while Oklahoma law allows juries to consider victim impact
testimony when deciding whether to impose the death sentence, the law does not
give clear guidance as to how juries must weigh that evidence. Petition at 55-56,
63-67. The OCCA rejected the argument, as it has many times before.15 That
decision was not unreasonable.
As discussed above, the Eighth Amendment does not erect a per se bar to
victim impact testimony. If a state wishes to include victim impact testimony in its
death penalty scheme, there is no per se constitutional obstacle. Payne, 501 U.S. at
827. The State of Oklahoma has decided that victim impact testimony will be
permitted. OKLA. STAT. tit. 21, §§ 701.10(C), 142A-8(A). To aid the jury in
properly considering victim impact testimony, the trial court instructed the jury
that victim impact testimony was not an aggravating circumstance or proof of an
aggravating circumstance. O.R. VIII at 1535. The instructions further told the jury
that it could only consider the victim impact testimony if it first found the presence
of an aggravating circumstance. Id. at 1535-36.
Petitioner argues that the instructions do not guide the jury on how to use or
weigh the victim impact testimony. But trial courts do not instruct the jury on how
to weigh any evidence. As Petitioner points out, the jury must reach a moral
reasoned judgment after considering all the evidence. Exactly how to weigh each
piece of evidence is not the province of the courts or statutes, rather is the duty of
the jury. Doubtless some jurors value victim impact evidence more than others,

15

Petitioner again argues that the OCCA did not consider federal law in reaching its decision.
The cited materials in the OCCA’s decision trace back to the OCCA’s discussion of Payne and
Booth in Murphy, 47 P.3d at 886. See Footnote 8, supra p. 32.
46

but that does not render the scheme unconstitutional. Notably, Petitioner’s jury
could also, under Jury Instruction 62, consider sympathy when deciding whether to
impose the death penalty. Id. at 1537. Sympathy is certainly not a mitigator in the
ordinary sense of the word, yet the jury could still consider it. The jury’s ability to
consider sympathy does not render it a “super-mitigator,” but merely allows the
jury to consider sympathy when reaching the reasoned moral decision as to
whether to impose the death penalty. Victim impact testimony is treated the same
way. The Tenth Circuit has specifically acknowledged that Oklahoma’s decision
to allow victim impact testimony, when accompanied by a proper instruction, does
not create a “super-aggravator.” See Brown, 515 at 1096-97; Le v. Mullin, 311
F.3d 1002, 1016 (10th Cir. 2002). The OCCA’s rejection of this claim was not
unreasonable.
e. Victim impact testimony consideration under Ring v. Arizona.
Petitioner finally claims that victim impact testimony violates the Sixth
Amendment because the jury is not required to find “whatever it must find”
beyond a reasonable doubt. Petition at 67.16
Petitioner’s argument is precluded by Tenth Circuit precedent. In Matthews
v. Workman, the Tenth Circuit characterized the weighing analysis for aggravating
and mitigating circumstances not as a factual finding, but rather as a “highly
subjective, largely moral judgment regarding the punishment that a particular
person deserves.” 577 F.3d 1175, 1195 (10th Cir. 2009) (quoting United States v.
Barrett, 496 F.3d 1079, 1107 (10th Cir. 2007)). This Court and other district
courts have emphasized that point in numerous cases. See Lay v. Trammell, No.

16

There is some debate between the parties as to whether this claim is exhausted. Rather than
untangle the complicated exhausted question, the Court deems it simpler to dispose of the claim
on its merits.
47

08-CV-617-TCK-PJC, 2015 WL 5838853, at *54-56 (N.D. Okla. Oct. 7,
2015); Rojem v. Trammell, No. CIV-10-172-M, 2014 WL 4925512, at *18 (W.D.
Okla. Sept. 30, 2014); Smith v. Trammell, No. CIV-09-293-D, 2014 WL 4627225,
at *50 (W.D. Okla. Sept. 16, 2014); Ryder ex rel. Ryder v. Trammell, No. CIV-050024-JHP-KEW, 2013 WL 5603851, at *35 (E.D. Okla. Oct. 11, 2013); Fitzgerald
v. Trammell, No. 03-CV-531-GKF-TLW, 2013 WL 5537387, at *59 (N.D. Okla.
Oct. 7, 2013); Jackson v. Workman, No. 08-CV-204-JHP-FHM, 2013 WL
4521143, at *27 (N.D. Okla. Aug. 26, 2013); Cole v. Workman, No. 08-CV-328CVE-PJC, 2011 WL 3862143, at *51-52 (N.D. Okla. Sept. 1, 2011); DeRosa v.
Workman, No. CIV-05-213-JHP, 2010 WL 3894065, at *32-33 (E.D. Okla. Sept.
27, 2010); Murphy v. Sirmons, 497 F. Supp. 2d 1257, 1277-78 (E.D. Okla.
2007). That same logic applies here. The jury’s consideration of victim impact
testimony is part of that highly subjective moral judgment, and is therefore not a
factual finding subject to the reasonable doubt standard. Relief is denied on this
issue.
4. Conclusion.
Petitioner’s claims that the victim impact evidence was overly emotional,
that victim impact evidence is a super-aggravator, and that victim impact testimony
is subject to the reasonable doubt standard are all without merit. The OCCA
reasonably rejected those claims. However, the OCCA’s decision that victim
impact testimony characterizing the crimes at issue was admissible is contrary to
clearly established law. Still, the Court finds this error harmless. Relief is denied
as to Ground Four.

48

E. Ground Five: Mental Retardation.
Petitioner claims that his death sentence should be reversed because he is
mentally retarded. Petition at 69. Petitioner bases this claim on his understanding
that Flynn Effect would reduce his IQ score to the range in which Oklahoma
considers persons mentally retarded. Id. Petitioner failed to raise this issue on
direct appeal, but did raise it in his post-conviction application. Postelle, No.
PCD-2009-94, slip op. at 18 n.9. The OCCA held that the claim was barred
because Petitioner failed to raise it on direct appeal. Id. at 17-18.
As noted above, Petitioner does not seriously contend that Oklahoma’s bar is
inadequate or dependent on federal law. Supra pp. 11-12. And because this claim
does not involve the ineffective assistance of trial counsel, the fact that Petitioner
had trial and appellate attorneys from the same office is irrelevant. Petitioner
instead attempts to show cause and prejudice for this Court to excuse the
procedural default. Petitioner argues that his appellate counsel was ineffective in
not raising the claim on direct appeal, and therefore he has cause for the default.
“A meritorious claim of ineffective assistance of counsel constitutes cause
and prejudice for purposes of surmounting the procedural bar.” United States v.
Harms, 371 F.3d 1208, 1211 (10th Cir. 2004).

But a non-meritorious

ineffectiveness claim does not establish cause and prejudice. Johnson v. Gibson,
229 F.3d 1163, 2000 WL 1158335 at *4 (10th Cir. Aug. 16, 2000) (unpublished
table opinion). Petitioner’s ineffectiveness claims falls in the latter category. The
Court has already addressed whether Petitioner’s trial and appellate counsel were
ineffective for not raising the Flynn Effect argument. Supra pp. 18-19, 27. The
Court concluded that counsel’s performance was not deficient for omitting the
mental retardation claims. The Court has ruled that the ineffectiveness claim is not
49

meritorious; therefore, it cannot serve as cause to excuse the default. Ground Five
is denied as procedurally barred.
V. Motions for Discovery and Evidentiary Hearing.
Petitioner has filed a motion for discovery (Doc. 20) as well as a motion for
an evidentiary hearing (Doc. 30).

These motions are DENIED.

Petitioner’s

discovery request seeks to interview several individuals, many of whom were
involved in Petitioner’s trial. Doc. 20 at 3-4. Petitioner appears to be seeking
information to supplement his mental retardation and ineffective assistance of
counsel claims. Considering the list of individuals and the information Petitioner
seeks, the Court cannot conclude that any of the discovery will affect this Court’s
conclusion on any of Petitioner’s claims. Petitioner has not shown good cause for
discovery. See Rule 6(a) of the Rules Governing Section 2254 Cases in the United
States District Courts (requiring good cause to obtain discovery authorization).
In addition to his discovery request, Petitioner requests an evidentiary
hearing with respect to Grounds Four (victim impact testimony) and Five (mental
retardation). Doc. 30 at 1. “The purpose of an evidentiary hearing is to resolve
conflicting evidence.” Anderson v. Attorney General of Kansas, 425 F.3d 853,
860 (10th Cir. 2005). If there is no conflict, or if the claim can be resolved on the
record before the Court, then an evidentiary hearing is unnecessary. Id. at 859. An
evidentiary hearing is unwarranted on Grounds Four and Five to resolve the legal
issues. No information gained from an evidentiary hearing would affect the legal
findings on those grounds. Therefore, the requests for discovery and evidentiary
hearing are denied.
VI. Conclusion.
After a thorough review of the entire state court record, the pleadings filed
herein, and the applicable law, the Court finds that Petitioner is not entitled to the
requested relief. Accordingly, Petitioner’s Petition (Doc. 19), motion for discovery
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(Doc. 20), and motion for an evidentiary hearing (Doc. 30) are hereby DENIED.
A judgment will enter accordingly.
IT IS SO ORDERED this 2nd day of September, 2016.

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