Smith v. Trammell
Filing
47
MEMORANDUM OPINION denying 18 Petition for Writ of Habeas Corpus 38 denying Motion for Hearing; denying 20 Motion for Discovery; Judgment will enter accordingly, as more fully set out. Signed by Honorable David L. Russell on 7/13/17. (jw)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
RODERICK L. SMITH,
Petitioner,
vs.
TERRY ROYAL, Warden,
Oklahoma State Penitentiary,
Respondent.1
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Case No. CIV-14-579-R
MEMORANDUM OPINION
Petitioner, Roderick L. Smith, a state court prisoner, has filed a Petition for a Writ
of Habeas Corpus seeking relief pursuant to 28 U.S.C. § 2254. Doc. 18. This is Petitioner’s
second habeas petition.
In 1994, in Oklahoma County District Court Case No. CF-1993-3968, Petitioner
was tried by jury for the murders of his wife and her four children. Petitioner was found
guilty and was sentenced to death on all five counts. In 1998, after an unsuccessful pursuit
for relief in the state courts, Petitioner initiated his first habeas corpus action, and in 2002,
the Court denied Petitioner relief. Smith v. Gibson, No. CIV-98-601-R (W.D. Okla. Jan.
10, 2002) (unpublished). Six months later, the Supreme Court held that the Eighth
1
Pursuant to Fed. R. Civ. P. 25(d), Terry Royal, who currently serves as warden of the Oklahoma
State Penitentiary, is hereby substituted as the proper party respondent.
Amendment prohibits the execution of a mentally retarded offender, Atkins v. Virginia,
536 U.S. 304, 321 (2002), and in March 2004,2 Petitioner was given the opportunity to
prove that he is mentally retarded.3 A state court jury concluded that he is not (O.R. VI,
1115), and the Oklahoma Court of Criminal Appeals (hereinafter “OCCA”) affirmed the
jury’s verdict.
Smith v. State, No. O-2006-683 (Okla. Crim. App. Jan. 29, 2007)
(unpublished). In July 2004, the Tenth Circuit affirmed this Court’s denial of relief with
respect to Petitioner’s convictions, but found that Petitioner was entitled to a new
sentencing proceeding due to ineffective assistance of counsel. Smith v. Mullin, 379 F.3d
919 (10th Cir. 2004).
In 2009, Petitioner had a jury trial to determine to his competence. Found competent
(O.R. XII, 2276), Petitioner was then resentenced in 2010. This time around, the jury
imposed two death sentences and three sentences of life without the possibility of
parole (O.R. XIII, 2611-30). Petitioner appealed these sentences to the OCCA. The OCCA
affirmed in a published opinion. Smith v. State, 306 P.3d 557 (Okla. Crim. App. 2013),
cert. denied, 134 S. Ct. 2662 (2014). Petitioner was unsuccessful in his pursuit of post-
2
This was actually Petitioner’s second mental retardation trial. The first one, held in
November 2003, ended in a mistrial (O.R. V, 993-98).
3
In Hall v. Florida, 572 U.S. ___, 134 S. Ct. 1986, 1990 (2014), the Supreme Court began using
the term “intellectual disability” instead of “mental retardation.” Nonetheless, for purposes of
simplicity and consistency, the Court will address Petitioner’s claims utilizing the old terminology
which was used throughout Petitioner’s state court proceedings. See Howell v. Trammell, 728
F.3d 1202, 1206 n.1 (10th Cir. 2013); Hooks v. Workman, 689 F.3d 1148, 1159 n.1 (10th Cir.
2012).
2
conviction relief. Smith v. State, No. PCD-2010-660 (Okla. Crim. App. Feb. 13, 2014)
(unpublished).
Petitioner presents seven grounds for relief. His first three grounds relate to the
state court determination that he is not mentally retarded. Ground Four is a challenge to
the legal representation he received at his competency trial and resentencing. In
Grounds Five and Six, Petitioner argues that execution for his crimes would violate the
Eighth Amendment’s prohibition against cruel and unusual punishment. His final ground
alleges cumulative error. Respondent has responded to the petition and Petitioner has
replied. Docs. 35 and 43. In addition to his petition, Petitioner has filed motions for
discovery and an evidentiary hearing. Docs. 20 and 38. After a thorough review of the
state court record (which Respondent has provided), the pleadings filed in this case, and
the applicable law, the Court finds that, for the reasons set forth herein, Petitioner is not
entitled to his requested relief.
I. Standard of Review.
A.
Exhaustion as a Preliminary Consideration.
The exhaustion doctrine, a matter of comity which has long been a part of habeas
corpus jurisprudence, requires the Court to consider in the first instance whether Petitioner
has presented his grounds for relief to the OCCA. As the Supreme Court stated in Coleman
v. Thompson, 501 U.S. 722, 731 (1991), “in a federal system, the States should have the
first opportunity to address and correct alleged violations of state prisoner’s federal rights.”
The exhaustion doctrine is set forth in 28 U.S.C. § 2254(b). Section 2254(b)(1)(A)
prohibits the Court from granting habeas relief in the absence of exhaustion (although
3
Section 2254(b)(1)(B) sets forth two limited exceptions to this rule), but Section 2254(b)(2)
expressly authorizes the Court to deny habeas relief “notwithstanding the failure of the
applicant to exhaust the remedies available in the courts of the State.”
B.
Procedural Bar.
Beyond the issue of exhaustion, the Court must also examine how the OCCA
adjudicated each of Petitioner’s grounds for relief, i.e., whether the OCCA addressed the
merits of Petitioner’s grounds or declined to consider them based on a state procedural rule.
“It is well established that federal courts will not review questions of federal law presented
in a habeas petition when the state court’s decision rests upon a state-law ground that ‘is
independent of the federal question and adequate to support the judgment.’” Cone v. Bell,
556 U.S. 449, 465 (2009) (quoting Coleman, 501 U.S. at 729). “The doctrine applies to
bar federal habeas when a state court declined to address a prisoner’s federal claims
because the prisoner had failed to meet a state procedural requirement.” Coleman, 501
U.S. at 729-30.
C.
Limited Merits Review.
When the OCCA has addressed the merits of one of Petitioner’s grounds for relief,
the Court reviews that ground in accordance with the standard of relief set forth in
28 U.S.C. § 2254(d). Pursuant to that section of the Antiterrorism and Effective Death
Penalty Act of 1996 (hereinafter “AEDPA”), in order for Petitioner to obtain relief, he must
show that the OCCA’s adjudication of a claim either
(1) resulted in a decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the Supreme
Court of the United States; or
4
(2) resulted in a decision that was based on an unreasonable determination of
the facts in light of the evidence presented in the State court proceeding.
See Cullen v. Pinholster, 563 U.S. 170, 181 (2011) (acknowledging that “[t]he petitioner
carries the burden of proof”). The very focus of this statutory provision is the
reasonableness of the OCCA’s decision. “The question under AEDPA is not whether a
federal court believes the [OCCA’s] determination was incorrect but whether that
determination was unreasonable—a substantially higher threshold.” Schriro v. Landrigan,
550 U.S. 465, 473 (2007). In other words, “[i]t is not enough that [this] [C]ourt, in its
independent review of the legal question, is left with a firm conviction that the [OCCA]
was erroneous.” What is required is a showing that the OCCA’s decision is “objectively
unreasonable.” Lockyer v. Andrade, 538 U.S. 63, 75-76 (2003) (internal quotation marks
and citations omitted).
The Supreme Court has repeatedly acknowledged that Section 2254(d) “‘erects a
formidable barrier to federal habeas relief for prisoners whose claims have been
adjudicated in state court[,]’” and that “[i]f [it] is difficult to meet, that is because it was
meant to be.” White v. Wheeler, 577 U.S. ___, 136 S. Ct. 456, 460 (2015) (quoting Burt v.
Titlow, 571 U.S. ___, 134 S. Ct. 10, 16 (2013)); Harrington v. Richter, 562 U.S. 86, 102
(2011).
Section 2254(d) “stops short of imposing a complete bar on federal-court
relitigation of claims already rejected in state proceedings.” Richter, 562 U.S. at 102. What
remains, then, is a very narrow avenue for relief, one that permits relief only “where there
is no possibility fairminded jurists could disagree that the [OCCA’s] decision conflicts with
[the Supreme] Court’s precedents.” Id. (emphasis added).
5
Section 2254(d) reflects the view that habeas corpus is a “guard against
extreme malfunctions in the state criminal justice systems,” not a substitute
for ordinary error correction through appeal. As a condition for obtaining
habeas corpus from a federal court, a state prisoner must show that the state
court’s ruling on the claim being presented in federal court was so lacking in
justification that there was an error well understood and comprehended in
existing law beyond any possibility for fairminded disagreement.
Id. at 102-03 (citation omitted). 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.
II. Analysis.
A.
Ground One:
Sufficiency of the Evidence (Mental Retardation).
Petitioner’s first ground for relief is an Atkins claim. He argues that because he is
mentally retarded, his two death sentences cannot stand. The question of whether or not
Petitioner is mentally retarded was submitted to a jury in 2004. The twelve-member jury
listened to five days of testimony from twenty-three witnesses, ultimately concluding that
Petitioner is not mentally retarded. On appeal to the OCCA, Petitioner challenged the
jury’s verdict, claiming it was contrary to the clear weight of the evidence. The OCCA
denied relief on the merits. Smith, No. O-2006-683, slip op. at 6-11.
In denying Petitioner relief, the OCCA acknowledged that in mental retardation
proceedings, Petitioner has the burden to prove by a preponderance of the evidence
“‘1) that he functions at a significantly sub-average intellectual level that substantially
limits his ability to understand and process information, to communicate, to learn from
experience or mistakes, to engage in logical reasoning, to control impulses, and to
understand the reactions of others; 2) that his mental retardation manifested itself before
6
the age of 18; and 3) that he has significant limitations in adaptive functioning in at least
two of the nine listed skill areas [communication; self-care; social/interpersonal skills;
home living; self-direction; academics; health and safety; use of community resources; and
work].’” Id. at 6 & n.8 (quoting Myers v. State, 130 P.3d 262 (Okla. Crim. App. 2005),
for the definition of mental retardation developed by the OCCA in Murphy v. State, 54
P.3d 556, 567-68 (Okla. Crim. App. 2002)).4
“When a defendant challenges the sufficiency of the evidence following a jury
verdict finding him not mentally retarded, [the OCCA] reviews the evidence in the light
most favorable to the State to determine if any rational trier of fact could have reached the
same conclusion.” Smith, No. O-2006-683, slip op. at 6. The Tenth Circuit has found this
to be “the relevant constitutional standard.” Hooks, 689 F.3d at 1166. “Put a different
way, if any rational trier of fact could have found that [Petitioner] failed to establish, by a
preponderance of the evidence, that he is mentally retarded, then the jury verdict must be
upheld.” Id. This is a mixed question of law and fact. Id. at 1165.
Although the standard of review applied to a jury verdict in a mental retardation
proceeding is a modification of the standard set out in Jackson v. Virginia, 443 U.S.
307 (1979), the deference is the same: a jury verdict is given substantial deference.
Because it is the jury’s job “to resolve conflicts in the testimony, to weigh the evidence,
4
Before Oklahoma enacted Atkins legislation, the OCCA defined mental retardation and set forth
the procedures for mental retardation proceedings in Murphy. Because Oklahoma’s Atkins statute
was not enacted until July 1, 2006, see Okla. Stat. tit. 21, § 701.10b, some two years after
Petitioner’s mental retardation trial, Petitioner’s proceeding was governed by Murphy. See Hooks,
689 F.3d at 1165 & nn.4 & 5.
7
and to draw reasonable inferences from basic facts to ultimate facts[,]” its verdict will be
“impinge[d] . . . only to the extent necessary to guarantee the fundamental protection of
due process of law.” Id. at 319. And, in the habeas context, “a second layer of deference”
is added. This Court does “not directly review the jury’s verdict[,]” but looks to the
OCCA’s resolution of the sufficiency claim to determine if “the OCCA correctly identified
the governing legal principle from Jackson and reasonably applied it to the facts of
[Petitioner’s] case.” Hooks, 689 F.3d at 1167. Therefore, in order to obtain relief,
Petitioner must overcome these layers of deference and show that all fairminded jurists
would agree that the OCCA “got it wrong.” Lockett v. Trammel [sic], 711 F.3d 1218, 1231
(10th Cir. 2013). See also Frost v. Pryor, 749 F.3d 1212, 1225 (10th Cir. 2014) (“If . . .
some fairminded jurists could possibly agree with the [OCCA’s] decision, then it was not
unreasonable and the writ should be denied.”).
In reviewing the OCCA’s resolution of this claim, the Court can only consider the
evidence which the OCCA had before it. Pinholster, 563 U.S. at 181; Hooks, 689 F.3d at
1167. Because Petitioner’s Ground One is a challenge to the jury’s verdict, the evidence
before the OCCA was the evidence that was presented to the jury. Despite these review
parameters, Petitioner’s argument for relief relies heavily on evidence which was not
presented at his mental retardation trial. The Court will not consider this evidence.5 The
following is a summary of the trial evidence.
5
In his reply, Petitioner states that with one exception (Attachment 5, Report of Dr. Terese Hall,
dated September 12, 2005), all of his later developed evidence is simply “additional confirming
evidence” which this Court can consider once it determines that he has satisfied Section 2254(d).
8
Petitioner’s Trial Evidence
Two experts, Dr. Clifford Alan Hopewell and Dr. Fred Smith, testified on
Petitioner’s behalf. Dr. Hopewell, a clinical neuropsychologist who had been involved in
Petitioner’s case since 1997, testified that in his opinion, Petitioner is “within the range of
mild mental retardation” (Tr. 3/9/04, 30, 42, 46).
Dr. Hopewell tested Petitioner’s
intelligence quotient (I.Q.) using the third revision of the Wechsler Adult Intelligence
Scale (WAIS-III).
Petitioner’s full scale score was a 55, a score which reflected
significantly sub-average intellectual functioning (id. at 55-56). Dr. Hopewell testified that
this score substantially limits Petitioner’s ability to understand and process information, to
communicate, to learn from experiences or mistakes, to engage in logical reasoning, to
control impulses, and to understand the reactions of others (id. at 57).
Reply at 1-3. This is incorrect. A jury verdict cannot be invalidated based on evidence which it
did not hear. Matthews v. Workman, 577 F.3d 1175, 1185 (10th Cir. 2009) (“[I]t makes no sense
for us, in reviewing whether a jury’s verdict was based on sufficient evidence, to consider facts
the jury never heard.”). Although Petitioner asserts that Dr. Hall’s report is an exception to
Pinholster because it was presented to the OCCA in support of a trial counsel ineffectiveness claim,
the fact remains that this Court cannot consider later developed evidence when evaluating the
OCCA’s determination of a sufficiency of the evidence claim. Hooks, 689 F.3d at 1168 n.7.
9
To assess Petitioner’s adaptive functioning, Dr. Hopewell administered the
Vineland Test6 and the Wide Range Achievement Test (WRAT-III),7 concluding that
Petitioner has significant deficits in all areas (Tr. 3/9/04, 61, 65, 68, 130). Regarding
communication, Dr. Hopewell found that Petitioner was “impoverished.” While Petitioner
could talk and communicate about basic things, Dr. Hopewell described Petitioner’s
communication skills as limited and lacking in both detail and spontaneity. He testified that
Petitioner’s communication was at an eight-year-old level (id. at 62-64). Regarding
academics (as tested with the WRAT-III), Dr. Hopewell testified that Petitioner was at the
kindergarten or first-grade level in spelling and writing (id. at 65-66). He also noted that
Petitioner is functionally illiterate (id. at 66-67).
Dr. Hopewell testified that he had seen evidence that Petitioner had this condition
before age 18 and that he did not believe that Petitioner was malingering or faking his
condition (id. at 71, 73, 77).
6
With the exception of communication, Dr. Hopewell gave only general testimony about the
adaptive functioning he assessed with the Vineland. Although he testified that the Vineland tests
five areas of adaptive functioning, he did not specify which ones, but simply stated that Petitioner
tested out at an eight-year-old level on some things “like communication . . . and being able to do
things and fix things and so forth” and at a five-year-old level “on a couple of things” (Tr. 3/9/04,
64). When asked if he believed that Petitioner had deficits in at least five of the areas of adaptive
functioning, he responded that Petitioner had deficits in all of them (id. at 67-68). On crossexamination of Dr. John Call, defense counsel elicited the results of the Dr. Hopewell’s Vineland
testing in three primary areas: communication at four years, nine months; daily living skills at five
years, eight months; and socialization at five years, eight months (Tr. 3/15/04, 49-51).
7
Dr. Hopewell testified that the WRAT tests reading, writing, and math (Tr. 3/9/04, 65). Dr. Call
testified that it tests reading, spelling, and math (Tr. 3/15/04, 27).
10
Dr. Smith, a psychologist with the Oklahoma Department of Corrections, testified
about his evaluation and testing of Petitioner in 1997. On the Wechsler Adult Intelligence
Scale–Revised (WAIS-R), Petitioner’s full scale I.Q. score was a 65, and on the Standard
Progressive Matrices, also known as the Raven’s, Petitioner’s I.Q. score was between 69
and 78. Dr. Smith testified that Petitioner’s score on the WAIS-R was indicative of mental
retardation (Tr. 3/10/04, 157-62). Although Dr. Smith believed that Petitioner was “a little
bit brighter than what he tested out to be on the [WAIS-R],” he did not believe that
Petitioner was faking. In his opinion, Petitioner “is consistent with mental retardation in
his general level of functioning and speech” (id. at 163, 167-68). Noting that adaptive
functioning is difficult to measure in a structured prison setting, Dr. Smith did not
determine if Petitioner had any adaptive functioning deficits (id. at 164, 186-87).
Ultimately, Dr. Smith testified that Petitioner was “right on [the] cusp” of being mentally
retarded, but that he would “vote for mental retardation” (id. at 168).
Although all of Petitioner’s school records except his high school transcript had
been destroyed, school administrators and teachers testified that Petitioner was in special
education classes beginning in elementary school (Tr. 3/9/04, 202-04; Tr. 3/10/04, 8-11,
14; Def.’s Exs. 1-3). Paul Preston, who taught high school special education, was
Petitioner’s teacher for four years. He described Petitioner as having very low/limited
abilities. Although Petitioner received custodial training during high school, Mr. Preston
testified that he would be surprised to learn that Petitioner worked as a janitorial supervisor
because he did not believe that Petitioner had the skills for such a position (Tr. 3/10/04, 22,
28, 31, 43). Another special education teacher, Mona Autry, also had Petitioner as a
11
student. She testified that Petitioner functioned in her classes at about a third grade level.
Although Petitioner tried hard, Ms. Autry testified that Petitioner was one of her lower
functioning students. Like Mr. Preston, she testified that she would be “[e]xtremely
surprised” to learn that Petitioner was able to become a head janitor (id. at 94, 99-101, 104,
114). Both Ms. Autry and Mr. Preston acknowledged Petitioner’s very limited ability to
read (id. at 34, 100).
Madeline Corsoro was the music teacher at the elementary school where Petitioner
was employed as head custodian. They worked together for about five years. Petitioner
was responsible for cleaning her room and he also helped her with other things from time
to time. Ms. Corsoro testified that through her interaction with Petitioner, she discovered
that he could not read (Tr. 3/10/04, 45-53; Def.’s Ex. 4).
Although witnesses testified that Petitioner was able to drive a car, Lee Frizzell, an
Oklahoma Department of Public Safety employee, testified that Petitioner did not have a
driver’s license (Tr. 3/9/04, 112-14; Tr. 3/10/04, 63, 66, 75-76; Tr. 3/12/04, 41).
Petitioner’s cousin, Chris Scott, testified that Petitioner was a loner, that he was
slower than everyone else, that he did not read, and that Petitioner’s mother did everything
for him (Tr. 3/10/04, 69-71). For about a year, Mr. Scott worked as a janitor with
Petitioner. Mr. Scott testified that although Petitioner was his supervisor, Petitioner did
not perform supervisory duties. Mr. Scott’s mother, who hired Petitioner, handled the
paperwork, ordering, and time cards (id. at 71-74).
Jack Fisher, an attorney who had previously represented Petitioner, described
Petitioner “like an 11 or 12-year-old child” whose “main concern in life is that he have
12
pens and coloring books.” Mr. Fisher identified a folder containing numerous coloring
pages Petitioner had colored and sent to him. Mr. Fisher testified that he purchased
coloring books for Petitioner and sent him money to buy felt pens at the prison commissary.
Mr. Fisher did not bother sending Petitioner any books because Petitioner “can’t read more
than just maybe a few words.” Mr. Fisher testified that Petitioner was not smart enough to
make the decision to malinger (Tr. 3/10/04, 147-50, 151, 155; Def.’s Ex. 7).
Norman Cleary, who had shared a cell with Petitioner over the years, testified about
his interaction with Petitioner in prison (Def.’s Ex. B at 4).8 When Petitioner first moved
into his cell, Mr. Cleary knew “within 30 minutes . . . that [Petitioner] had some problems”
(id. at 5). He testified that Petitioner could not read or write, and although he tried to teach
Petitioner to read, “it was hopeless” (id. at 5-6, 7, 9-11). Mr. Cleary testified that Petitioner
would color in his coloring books and watch TV all day (id. at 7-8). Mr. Cleary helped
Petitioner write and address letters and fill out his canteen slips (id. at 12-13, 15-16).
Mr. Cleary testified that Petitioner could not tell time (except with a digital clock) or play
simple games (except for Tic-Tac-Toe) (id. at 13-15, 29-30). When Petitioner would
frequently cut himself and do nothing to address the bleeding, Mr. Cleary administered the
first aid Petitioner needed (id. at 17-18). Mr. Cleary testified that other inmates took
financial advantage of Petitioner (id. at 18-20).
8
Because Mr. Cleary was scheduled to be executed on February 17, 2004, he gave videotaped
testimony on February 4, 2004, and a transcript of his testimony was then read to the jury (O.R. V,
1013-19; Tr. 3/10/04, 196). The transcript was preserved for the record as Defendant’s Exhibit B.
13
Petitioner’s mother, Eva Cates, testified that Petitioner “was very, very slow” from
the start. For him, walking, talking, and potty training were all delayed
developments (Tr. 3/11/04, 5-7). Ms. Cates testified that other kids were cruel and would
tease Petitioner because he acted like a two-year-old (id. at 7). Ms. Cates testified that she
was told that Petitioner was placed in special education classes (id. at 8). She did not teach
Petitioner to cook because she “didn’t want him to play with fire when [she] wasn’t there”
(id. at 9).
State’s Trial Evidence
The State retained Dr. John Call, a forensic psychologist, to review Dr. Hopewell’s
opinion and conduct his own evaluation (Tr. 3/15/04, 3-7). It was Dr. Call’s opinion that
no reliable documentation existed to indicate that Petitioner was mentally retarded (id. at
39, 67).
Dr. Call disagreed with Dr. Hopewell’s conclusion that Petitioner was not
malingering. To determine if Petitioner was malingering, Dr. Hopewell administered two
tests, the Test of Memory and Malingering (TOMM) and the 15-Item Memory Test.
Petitioner’s results on both of these tests showed that Petitioner was malingering; however,
Dr. Hopewell discounted these results due to Petitioner’s low score on the WAIS-III.
Dr. Call testified that there was no research to support Dr. Hopewell’s disregard for the
malingering test results based on Petitioner’s low I.Q. (id. at 12-22, 24-25, 37). When
Dr. Call himself administered the WAIS-III and the TOMM to Petitioner, he received the
same results as Dr. Hopewell; however, giving appropriate consideration to Petitioner’s
scores on the TOMM, Dr. Call testified that Petitioner’s WAIS-III score must be deemed
14
invalid due to malingering. In sum, because there was evidence that Petitioner was
malingering during both testing sessions, Dr. Call testified that neither his results nor
Dr. Hopewell’s results could be considered valid I.Q. assessments (id. at 25-26, 38-39, 6970).
Dr. Call also took note of other I.Q. tests Petitioner had taken. In 1994, Petitioner
received an I.Q. score of 73, and in 1997, he received a 70. Dr. Call testified that the drop
from a 73 in 1994 to a 55 in 2003 was significant, and he explained how easy it would be
to malinger on the WAIS test (Tr. 3/15/04, 34-38).
Dr. Call disagreed with Dr. Hopewell’s use of the Vineland Test to assess
Petitioner’s adaptive functioning. Because Dr. Hopewell administered the test to Petitioner,
and not to a third-party observer like a parent or a teacher as the Vineland was specifically
designed, Dr. Call testified that Dr. Hopewell’s assessment of adaptive functioning was
also invalid. Acknowledging that adaptive functioning is extremely difficult to assess in a
prison setting, as Dr. Smith likewise testified, Dr. Call did not do any formal adaptive
functioning assessment of Petitioner. He did, however, testify that the Adaptive Behavior
Assessment System, Second Edition (ABAS-II), could have been used. Based on his
interviews with certain prison personnel and his own interaction with Petitioner, Dr. Call
did not believe that Petitioner had any deficiencies in any particular area of adaptive
functioning (id. at 22-25, 30-34, 48-49).
Like Dr. Hopewell, Dr. Call also gave Petitioner the WRAT-III. Although Dr. Call
expected results similar to those received by Dr. Hopewell, the results were not the same.
One major difference was in spelling. When Dr. Call administered the test, Petitioner could
15
not even spell his last name or recognize several additional letters – letters he was able to
identify for Dr. Hopewell just eight months before.9 After the State made reference to
admitted exhibits wherein Petitioner had previously signed his name, Dr. Call testified that
absent some significant brain damage since the time Petitioner had signed those documents
(which there was no evidence of), it was clear to him that Petitioner was not putting forth
his best effort (Tr. 3/9/04, 148; Tr. 3/15/04, 26-30, 70; State’s Exs. 1-2, 5 and 6).
Ruby Badillo was an insurance agent who met with Petitioner and his wife about
life insurance. Ms. Badillo testified that Petitioner “seemed perfectly normal” and “very
sociable.” Ms. Badillo stated that if Petitioner had had any kind of physical or mental
challenge, she would not have been able to help him obtain a life insurance policy. After
meeting with Petitioner for almost an hour, Ms. Badillo even asked Petitioner if he would
be interested in working at her company selling insurance and other services (Tr. 3/11/04,
46-52; State’s Ex. 6).
Emma Watts, Petitioner’s case manager at the Oklahoma Department of
Corrections, testified about her interaction with Petitioner over a two to three-year period.
She described Petitioner as quiet and respectful (id. at 55-57). But for his cell change
requests, which she felt were manipulative, she testified that Petitioner was no different
from the other inmates (id. at 57, 61).
9
Dr. Hopewell tested Petitioner in January 2003 and Dr. Call tested Petitioner in September 2003
(Tr. 3/9/04, 129; Tr. 3/15/04, 36, 44). Petitioner’s reference in the petition to a December 2003
testing by Dr. Hopewell is incorrect. Pet. at 12.
16
Mark Woodward was Petitioner’s supervisor at work in the months immediately
preceding Petitioner’s crimes. Mr. Woodward testified that as head custodian, Petitioner
was the “go-to person if there was something that had to be done.” Petitioner supervised
four to five employees and did so adequately. No family members worked with Petitioner
while Mr. Woodward was his supervisor (Tr. 3/11/04, 68-73).
Mr. Woodward
communicated with Petitioner through a pager, and Mr. Woodward testified that Petitioner
knew how to operate the school’s zoned alarm system (id. at 73-79). Mr. Woodward
testified that Petitioner had access to carpet cleaners at the school and that from his review
of crime scene photos, he could tell that the carpets had been cleaned by a cleaner similar
to the ones at the school (id. at 79-81).
Fern Smith, one of the assistant district attorneys who originally prosecuted
Petitioner, testified about her observations of him in 1993 and 1994. Ms. Smith, who has
a Master’s Degree in Special Education and previously taught high school special
education before becoming an attorney, testified that she “didn’t notice anything unusual
or out of the ordinary during the times that [she] was in court with [Petitioner].” Ms. Smith
told the jury that Petitioner filed and argued some of his own motions and that he was
“articulate” and “knew what he was doing.” Ms. Smith further testified that Petitioner
“made good arguments” and “knew why he was presenting them.”10 Ms. Smith also
testified that during his original trial Petitioner took notes and discussed the notes with his
10
Even the Tenth Circuit noted that “[w]hile [Petitioner’s] presentation did not reveal the skills of
a trained legal mind, he put forth a coherent argument and demonstrated comprehension of both a
lawyer’s duties and the concept of a ‘fair trial.’” Smith, 379 F.3d at 932.
17
attorney, which was very different from how Petitioner was currently acting in front of the
jury. Based on her observations of Petitioner, Ms. Smith did not see anything that indicated
he was mentally retarded (Tr. 3/11/04, 100-05, 111).11
Oklahoma City Police Officer John Maddox, who investigated the scene of
Petitioner’s crimes, testified that the crime scene had been altered after the crimes occurred
(Tr. 3/11/04, 112-14). Some evidence was hidden in closets and under a bed, other
evidence was concealed, and the title to Petitioner’s car was found in the attic (id. at 114,
116). There was also evidence that the crime scene had been cleaned. After running some
tests, the police determined that evidence had been removed from the carpet and from the
kitchen and bathroom sinks (id. at 116-17). Officer Maddox testified that all of these
actions were done to delay the investigation and did in fact do so, as Petitioner’s crimes
were not detected for some seven to ten days after their commission (id. at 116, 121-23).
Officer Maddox also testified about his interview of Petitioner on June 30, 1993.
He testified that Petitioner understood his rights and answered some questions before
pulling an attorney’s business card out of his pocket and indicating that he did not want to
talk anymore (id. at 117-19). He also testified how Petitioner was able to return a bicycle
to a retail store and obtain a refund (id. at 119-20).
11
In rebuttal, Kenneth Watson, Petitioner’s original trial counsel, testified that Petitioner did not
know what was going on, that he was unable to assist in his defense, and that Petitioner doodled
on a pad of paper most of the time (Tr. 3/15/04, 72-73).
18
In the months before Petitioner’s crimes, Petitioner was having an affair with Laura
Dich.12 Petitioner met Ms. Dich at a flea market. They exchanged phone numbers and
began seeing each other the next day. Although Ms. Dich contacted Petitioner by pager
and only met with Petitioner at certain times of the night, Ms. Dich had no idea that
Petitioner was married and had kids. Ms. Dich saw Petitioner about four times a week and
she considered him her boyfriend. Petitioner told her that he loved her and wanted to marry
her and have kids with her. Petitioner maintained a sexual relationship with Ms. Dich and
he rented a motel room for this specific purpose on more than one occasion. Ms. Dich
testified that Petitioner acquired and paid for the motel room without her assistance (Tr.
3/12/04, 6-24, 26-27, 29).
Mariette Love, Petitioner’s mother-in-law, testified that although she did not have a
lot of contact with Petitioner, she did not believe he had anything wrong with him mentally.
She did acknowledge, however, that Petitioner was a little slow, that “he didn’t know what
he should have known,” and that she was not particularly happy with her daughter being
in a relationship with him (id. at 32-34, 37-39).
Cherie Mishion, Petitioner’s wife’s niece, testified about the time she spent with
Petitioner and his family. She told the jury about Petitioner’s care of the kids and about
how he would drive, read the paper, and cook breakfast. Petitioner even taught her how to
drive. Ms. Mishion never had the impression that Petitioner was mentally handicapped or
12
Ms. Dich’s prior testimony was read to the jury (Tr. 3/12/04, 4).
19
slow because he was no different than the rest of the family and was able to do what others
could do (id. at 40-45).
Dina Dean was Petitioner’s sister-in-law. Like Ms. Mishion, she testified about her
familial relationship with Petitioner. She described Petitioner as “kind of stand-offish,”
but other than that he was normal. Because Ms. Dean had a younger sister who was “slow”,
she had a point of reference. She testified that in comparison to her sister, Petitioner was
normal (id. at 47-51).
OCCA’s Decision
As noted above, in denying Petitioner relief on the sufficiency issue, the OCCA
applied the correct constitutional standard. The question therefore is whether the OCCA
applied it reasonably given the presented evidence. In upholding the jury’s verdict, the
OCCA analyzed the issue as follows:
Evidence of [Petitioner’s] intellectual functioning was controverted at
trial by the experts.[FN9] [Petitioner’s] primary expert, Dr. Clifford
Hopewell, tested him in January 2003 and scored his full scale I.Q. at 55. Dr.
Hopewell concluded that [Petitioner] is mildly mentally retarded and that he
has adaptive functioning deficits in at least five areas. Dr. Frederick Smith,
another psychologist who evaluated [Petitioner] in prison in 1997, testified
that his testing showed that [Petitioner’s] full scale I.Q. was 65, some ten
points higher than Dr. Hopewell’s score. Dr. Smith was left with the
impression during his evaluation that [Petitioner] was actually brighter than
what his I.Q. test score showed. He wrote in a memo shortly after the
evaluation that he suspected that [Petitioner’s] score was somewhat low in
terms of accuracy. Dr. Smith also administered the Raven’s Standard
Progressive Matrices that showed [Petitioner’s] I.Q. was in the range of 69
to 78. He testified that he now believes [Petitioner’s] I.Q. is closer to 70.
FN9. Intelligence quotients are one of the many factors that may be
considered, but are not alone determinative. Myers, 2005 OK CR 22,
¶ 8, 130 P.3d at 268.
20
The State presented the testimony of forensic psychologist Dr. John
Call to refute [Petitioner’s] expert evidence of subaverage intellectual
functioning. Dr. Call gave [Petitioner] the Wechsler Adult Intelligence ScaleIII (WAIS-III) I.Q. test and reviewed Dr. Hopewell’s data and score on this
same test, as well as several other tests. He found that [Petitioner] failed two
tests designed to detect malingering given by Dr. Hopewell.[FN10]
According to Dr. Call, [Petitioner’s] performance on these two tests provides
significant doubt about his efforts on the WAIS-III I.Q. test and the validity
of Dr. Hopewell’s overall testing. Dr. Call also gave [Petitioner] one of the
malingering tests (Test of Memory and Malingering) during his evaluation
and found that [Petitioner] failed again. Dr. Call concluded that [Petitioner’s]
score suggested a lack of effort on his part calling into doubt the reliability
and validity of the I.Q. score that both he and Dr. Hopewell obtained.[FN11]
Dr. Call noted a previous I.Q. test given by Dr. Murphy in 1994 in which
[Petitioner] scored a full scale I.Q. of 73. Dr. Call believed lack of effort on
[Petitioner’s] part was one possible explanation to account for the
discrepancy in the subsequent scores. In Dr. Call’s opinion, the data showed
that [Petitioner] did not put forth his best efforts during his and Dr.
Hopewell’s testing and that [Petitioner’s] I.Q. test results were unreliable and
suspect.
FN10. The tests were the 15-Item Test and the Test of Memory and
Malingering commonly referred to as the TOMM test.
FN11. Dr. Call’s I.Q. testing of [Petitioner] also showed a full scale
I.Q. score of 55.
Though evidence of [Petitioner’s] I.Q. was disputed, the State
presented persuasive evidence from lay witnesses to refute [Petitioner’s]
evidence of subaverage intellectual functioning and of adaptive functioning
deficits. Emma Watts, [Petitioner’s] former case manager, now unit manager
in prison, testified that she had daily contact with [Petitioner] for two years
while acting as his case manager. Watts described [Petitioner] as quiet and
respectful for the most part; he appeared to be like the other inmates in her
unit. He was able to communicate with her and she found that he understood
how to use manipulative behavior to get a more desirable cell or cellmate.
Ruby Badillo, a provider of financial services, testified that she met
with [Petitioner] and his wife twelve years ago about purchasing life
insurance. She recalled that [Petitioner] was kind and attentive to his wife.
She identified their application and [Petitioner’s] signature. She said that
[Petitioner] neither indicated that he had any physical or mental challenges
nor did she suspect that he had any based on their conversation. She described
21
[Petitioner] as “perfectly normal” and “very sociable.” [Petitioner] appeared
so personable and capable that Badillo tried to recruit him to work for her
company selling insurance policies and presenting other financial services to
would-be customers.
Mark Woodward, the facilities manager for a company providing
custodial services to local schools, testified that [Petitioner] was the head
custodian at Washington Irving Elementary School. Woodward described
[Petitioner] as the “go-to” person if something needed to be done at the
school. [Petitioner] was responsible for supervising a staff of four to five
people working shifts from 7 a.m. until 11 p.m. and insuring that their time
cards were filled out. [Petitioner] had to delegate custodial duties and, if
someone was absent from work, reassign that person’s duties. Woodward
identified [Petitioner’s] job application and signature; he also identified
various forms that [Petitioner] had signed or filled out for his employment.
He noted that [Petitioner] checked on his job application form that he could
read, write and speak the English language. Woodward testified that he
effectively communicated with [Petitioner] in person and through the use of
a digital pager. He recalled an occasion when he had to reprimand
[Petitioner] for not wearing his uniform and thereafter [Petitioner] followed
the rules and wore his uniform. According to Woodward, [Petitioner]
effectively operated the school’s multi-zone alarm system and cleaning
equipment. Woodward described [Petitioner] as a typical head janitor.
Fern Smith, one of the assistant district attorneys who prosecuted
[Petitioner’s] murder case, testified that [Petitioner] filed and presented
several motions on his own behalf. She said that [Petitioner] was articulate
and made “good” arguments to the court in support of his motions. She did
not notice anything unusual or out of the ordinary about [Petitioner’s]
demeanor during trial or his many court appearances. She recalled him taking
notes and conferring with counsel during trial. Ms. Smith, who was once a
special education teacher of mentally retarded students, stated there was
nothing in her contacts with [Petitioner] that led her to believe that
[Petitioner] was mentally retarded.
Laura Dich testified that she met [Petitioner] in April 1993 at a flea
market and they began dating shortly thereafter. [Petitioner] did not give her
his home phone number, instead he had her use his digital pager number to
contact him. [Petitioner] lied to Dich and told her that he lived with a cousin
instead of with his wife and step-children and Dich claimed that she was none
the wiser.[FN12] Dich testified that by the end of May 1993, her relationship
with [Petitioner] was progressing and [Petitioner] told her that he wanted to
marry and have children with her. Dich, who was only 19 years old and still
22
living with her parents, testified that [Petitioner] took her to a motel on
several occasions and that it was [Petitioner] who rented and paid for the
motel room.
FN12. Once when Dich paged [Petitioner], an upset woman returned
the page causing Dich concern, but [Petitioner] convinced her for the
most part that he had no other girlfriends.
The evidence presented at trial supports a finding that [Petitioner]
failed to meet even the first prong of the Murphy definition of mental
retardation. The evidence, viewed in the light most favorable to the State,
portrayed [Petitioner] as a person who is able to understand and process
information, to communicate, to understand the reactions of others, to learn
from experience or mistakes, and to engage in logical reasoning. He held
down a job with supervisory functions, carried on an affair, argued motions
on his own behalf and manipulated those around him. The jury’s verdict
finding that [Petitioner] is not mentally retarded is justified.
Smith, No. O-2006-683, slip op. at 7-11.
Analysis
Petitioner asserts that the OCCA’s decision is “patently unreasonable.” He claims
that “the OCCA disregarded the clinical diagnostic practices and definitions of
professionals in the field of intellectual disability by substituting its own I-know-it-whenI-see-it approach.” Characterizing the evidence as a “consensus of professionals in the
field of intellectual disability,” Petitioner additionally argues that the OCCA decision is
inconsistent with expert opinion and with “the requirements of Atkins.” Pet. at 39-46. In
sum, he declares that “the OCCA arbitrarily relied on isolated factors that it unreasonably
believed were inconsistent with intellectual disability while disregarding the wealth of
evidence that shows [Petitioner] is intellectually disabled.”
Reply at 5.
However,
Petitioner’s arguments for relief are extensively supported by evidence which the jury did
not hear and which this Court cannot consider in deciding his claim. Focusing on the
23
evidence presented at trial and the OCCA’s review of that evidence, the issue of whether
Petitioner is mentally retarded is not as clear cut as Petitioner alleges.
Although Petitioner claims that the OCCA violated Atkins by disregarding expert
opinion, what the OCCA found was a dispute among the experts. Although Dr. Hopewell
believed that Petitioner’s I.Q. testing showed sub-average intellectual functioning, the
State’s expert, Dr. Call, questioned that conclusion based on additional testing that
indicated Petitioner was not putting forth his best effort. Smith, No. O-2006-683, slip op.
at 7-8. The same is true regarding Petitioner’s adaptive functioning. While Dr. Hopewell
found that Petitioner had deficits in all areas of adaptive functioning (Tr. 3/9/04, 63-65, 6768), Dr. Call testified that Dr. Hopewell’s assessment was invalid because the test was
inappropriately administered (Tr. 3/15/04, 22-25). In addition, as with the testing of
Petitioner’s intellectual function, Dr. Call testified that he believed that Petitioner did not
put forth his best effort in adaptive functioning testing. Dr. Call’s opinion is supported by
the fact that Petitioner could not even spell his last name for Dr. Call, when he had done so
on prior occasions, including for Dr. Hopewell just eight months earlier (Tr. 3/9/04, 129,
148; Tr. 3/15/04, 26-30, 36, 44; State’s Ex. 1).
Petitioner’s assessment of the evidence also fails to give due consideration to the
very posture of the claim. This is a sufficiency-of-the-evidence claim. Although Petitioner
argues with great fervor that he is mentally retarded, that is not for this Court to decide.
Petitioner had the opportunity to prove he is mentally retarded.
However, a jury
determined that he had failed to meet his burden of proof. That jury verdict, and its
subsequent validation by the OCCA, is what is under review here, and the Court’s review
24
is largely limited due to the deference afforded the jury’s verdict and the AEDPA deference
afforded the OCCA’s decision.
While Petitioner clearly does not agree with the jury’s verdict, it was the jury’s job
to assess the evidence, and the OCCA found that when viewing the evidence in light most
favorable to the State, a rational trier of fact could have reached the same conclusion. In
addition to Dr. Call’s testimony, which called into question Petitioner’s primary expert,
evidence from lay witnesses showed that Petitioner had skills and strengths which the jury
could consider in assessing whether Petitioner had significant limitations. See Smith, No.
O-2006-683, slip op. at 11 (“[Petitioner] held down a job with supervisory functions,
carried on an affair, argued motions on his own behalf and manipulated those around
him.”). Although Petitioner argues that his strengths were overemphasized and
inappropriately considered, the Tenth Circuit has held that “[b]oth strengths and
deficiencies enter into [the mental retardation determination] because they make up the
universe of facts tending to establish that a defendant either has ‘significant limitations’ or
does not. Not only does Murphy not require the OCCA to focus on deficiencies to the
exclusion of strengths but—most relevant to our inquiry here—neither does
Atkins.” Hooks, 689 F.3d at 1172.
Given the evidence presented to the jury, the OCCA’s assessment of that evidence
in upholding the jury’s verdict, and the double-deference review this Court must apply in
its review, the Court concludes that Petitioner is not entitled to relief on his first ground for
relief. Ground One is therefore denied.
B.
Ground Two:
Challenges to the Atkins Trial.
25
In his Ground Two, Petitioner cites irregularities in his mental retardation trial. He
challenges the admission of evidence regarding his crimes, claims the prosecutors
committed misconduct, and finds fault with a single instruction given to the jury.13 The
OCCA addressed all of these claims on the merits and denied relief. Smith, No. O-2006683, slip op. at 3-5, 17-18. Applying AEDPA deference, the Court concludes that
Petitioner is not entitled to relief.
Petitioner’s first complaint concerns the testimony of Officer Maddox and the
prosecution’s reference to the same in closing argument. As detailed in Ground One, supra,
Officer Maddox testified about how the crime scene had been altered. He discussed hidden
evidence and indications that the crime scene had been cleaned. Officer Maddox also
testified about his interview with Petitioner and Petitioner’s ability during that interview to
understand his legal rights. Petitioner asserts that the admission of this evidence was
“especially egregious,” “highly prejudicial,” and “unquestionably vague and confusing.”
Pet. at 57, 60. He contends that this evidence was admitted in violation of the OCCA’s
decision in Lambert v. State, 71 P.3d 30, 31 (Okla. Crim. App. 2003), wherein the OCCA
held that “[t]he jury should not hear evidence of the crimes for which [the defendant] was
13
Petitioner begins his Ground Two with a history/overview of mental retardation trials in
Oklahoma in an effort to show that he never had a fair chance to receive a jury determination that
he is mentally retarded. Pet. at 47-55. Within that discussion, Petitioner mentions, among other
general complaints, the jury instruction defining the term mentally retarded, the prosecution’s
“novel interpretation” of the instruction, and an appeal that was “cramped,” “abbreviated,” and
“clearly insufficient.” The Court does not construe these references as additional grounds for relief
and notes that while Respondent has specifically argued that the instruction and prosecutorial
misconduct references are unexhausted claims, Petitioner has made no attempt to counter the
argument.
26
convicted, unless particular facts of the case are relevant to the issue of mental retardation.”
Petitioner additionally asserts that admission of this evidence “made it impossible to regard
the verdict as [] factually reliable . . . [as] required by Atkins.” Pet. at 60.
In denying Petitioner relief on this claim, the OCCA held as follows:
[Petitioner] argues in his first proposition that the district court erred
in allowing Detective Maddox to testify, over objection, that the concealing
of evidence and altering of the crime scene were thoughtful, deliberate
actions undertaken by [Petitioner] to avoid detection and which show that
[Petitioner] is capable of logical reasoning. He maintains this testimony was
beyond Detective Maddox’s personal knowledge and is nothing but
speculation.
A trial court’s decision to admit evidence will not be disturbed on
appeal absent a showing of abuse of discretion accompanied by prejudice.
Howell v. State, 2006 OK CR 28, ¶ 33, 138 P.3d 549, 561. Detective Maddox
testified that he was the lead investigator in the crime for which [Petitioner]
was convicted. He explained that evidence at the crime scene was hidden in
closets and in the attic and that a bed had been “remade” in such a way as to
conceal evidence hidden underneath it. He further explained that police
determined that the carpet at the scene had been cleaned based on tracks in
the carpet consistent with a carpet cleaning machine and tests confirming that
evidence on the carpet had been removed through a cleaning process. The
prosecutor asked Detective Maddox what the condition of the crime scene
indicated to him about the mental ability of the perpetrator and Maddox
testified that the placement of the evidence indicated the perpetrator
thoughtfully hid evidence to avoid detection.
The district court did not err in allowing this testimony. Jurors were
told that [Petitioner] had been found guilty of a crime, but neither the crime
itself nor the sentence imposed was revealed. Throughout the trial, no
reference was made to the death penalty, capital punishment, or death row.
No facts of the murders [Petitioner] committed were introduced and the
district court confined the evidence to the narrow issue of mental retardation.
[Petitioner’s] ability to recognize the wrongfulness of his criminal acts and
to conceal evidence of his crimes is relevant to the issue of whether he is
capable of logical reasoning and whether he is mentally retarded. The
evidence regarding the crime scene was presented without prejudicial details
of the crime itself to comport with our prior decisions concerning admission
of evidence related to the crime and admission of this evidence was not
27
unfairly prejudicial. See e.g., Lambert v. State, 2003 OK CR 11, ¶ 3, 71 P.3d
30, 31. Maddox’s opinion that [Petitioner] deliberately hid evidence to avoid
being caught was rationally based on his perceptions of the crime scene and
his dealings with [Petitioner] and were helpful to the jury’s determination of
whether [Petitioner] is mentally retarded. Such lay opinion testimony is
admissible under 12 O.S.2001, § 2701. This claim is denied.
Smith, No. O-2006-683, slip op. at 3-4 (footnotes omitted).
This a state law evidentiary claim. Because this Court is only empowered “to
vindicate [Petitioner’s] constitutional rights,” Petitioner “is entitled to relief only if [the]
alleged state-law error [] was so grossly prejudicial that it fatally infected the trial and
denied the fundamental fairness that is the essence of due process.” Hooks, 689 F.3d at
1180 (internal quotation marks and citation omitted). The Court concludes that relief is
not warranted under this standard of review. Officer Maddox’s testimony was presented
in generic terms. The jury did not hear the gruesome details of Petitioner’s crimes or how
Petitioner’s victims were discovered. See Smith, 379 F.3d at 923-34. The jury was not
told that Petitioner’s five victims were shoved into closets and under a bed and that the
carpets and sinks had been cleaned to remove the evidence of blood. Instead the jury heard
that the scene had been altered–that Petitioner had taken certain actions to cover up his
crimes. The OCCA did not act unreasonably in determining that this evidence, and
evidence of Petitioner’s interaction with Officer Maddox, was relevant and admissible to
the issue of Petitioner’s mental abilities.
Petitioner’s next complaint concerns five comments made by the prosecutors during
voir dire, opening statement, and closing statement. Petitioner asserts that the comments
were “misleading,” “argumentative,” “inaccurate,” “[d]enigrating and disparaging,” and
28
“deceptive.” Pet. at 61, 62, 66. Alleging that the comments “thoroughly permeated the
entire proceedings,” he claims that he has been denied fundamental fairness and is entitled
to relief. Reply at 17.
“Prosecutors are prohibited from violating fundamental principles of fairness, which
are basic requirements of Due Process.” Hanson v. Sherrod, 797 F.3d 810, 843 (10th Cir.
2015), cert. denied, 136 S. Ct. 2013 (2016).
Therefore, when a petitioner alleges
prosecutorial misconduct, the question is whether the prosecutor’s actions or remarks “so
infected the trial with unfairness as to make the resulting conviction a denial of due
process.” Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974). Evaluating the alleged
misconduct in light of the entire proceeding, the reviewing court must determine “whether
the jury was able to fairly judge the evidence in light of the prosecutors’ conduct.” Bland
v. Sirmons, 459 F.3d 999, 1024 (10th Cir. 2006).
In denying Petitioner relief on this claim, the OCCA held as follows:
[Petitioner] argues in his eighth proposition that he was denied a fair
trial on the issue of mental retardation because of prosecutorial misconduct.
Allegations of prosecutorial misconduct do not warrant reversal unless the
cumulative effect of error found deprived the defendant of a fair trial. Warner
v. State, 2006 OK CR 40, ¶ 197, 144 P.3d 838, 891.
[Petitioner] challenges one of the prosecutor’s statements during jury
selection relating to the burden of proof, two statements in opening statement
about the experts review of the evidence and three statements made during
closing argument. The defense’s objection to the prosecutor’s question
during jury selection about the burden of proof was sustained before any
juror answered; the trial court advised the prosecutor to rephrase. We find
the trial court’s ruling cured any error in light of the instructions and other
discussion about the burden of proof. McElmurry v. State, 2002 OK CR 40,
¶ 126, 60 P.3d 4, 30 (sustaining an objection generally cures any error.). The
trial court also sustained the defense’s objection to the first challenged
remark during opening statement because it was argumentative and the
29
prosecutor followed the court’s ruling and outlined the evidence. The second
objection, for the same reason (argumentative), was properly overruled
because the prosecutor was merely outlining the evidence. Howell, 2006 OK
CR 28, ¶ 7, 138 P.3d at 556 (The purpose of opening statement is to tell the
jury of the evidence the attorneys expect to present during trial and its scope
is determined at the discretion of the trial court.). Likewise, any error in the
prosecutor’s statement during closing argument brought to the court’s
attention was cured when the trial court sustained [Petitioner’s] objection.
McElmurry, 2002 OK CR 40, ¶ 126, 60 P.3d at 30. The other two statements
challenged in closing argument were not met with objection and a review of
the remarks shows they were fair comments on the evidence. This claim is
denied.
Smith, No. O-2006-683, slip op. at 17-18.
Although Petitioner argues that the OCCA gave this claim “short shrift,” Pet. at 65,
the Court finds that the OCCA’s above analysis is both sufficient and reasonable under the
AEDPA. The record reflects that with respect to the first three comments complained of
by Petitioner, the trial court appropriately responded to Petitioner’s objections. See Le v.
Mullin, 311 F.3d 1002, 1013 (10th Cir. 2002) (a fundamental fairness assessment includes
consideration of the trial court’s “cautionary steps . . . to counteract improper remarks”).
To the extent the question during voir dire was “probably a little on the edge,” Petitioner
objected to it at the onset before any harm could develop and the trial court directed the
prosecutor to rephrase the question (Tr. 3/8/04, 155-56). Petitioner’s objection to the
opening statement comment was initially sustained as argumentative, but then overruled
when the prosecutor rephrased the comment within acceptable parameters of outlining the
evidence to the jury (Tr. 3/9/04, 22-23). And finally, when the prosecutor made the
comment in closing argument that the defense “don’t put in front of you what they don’t
want you to see,” the trial court sustained the objection (Tr. 3/15/04, 103), thereby curing
30
any harm. See Hanson, 797 F.3d at 845 n.13 (a sustained objection is presumed to cure any
error).
As for the remaining two comments, both of which also occurred in closing
argument, Petitioner made no objection to them at trial (Tr. 3/15/04, 95, 110-11). See Le,
311 F.3d at 1013 (acknowledging that the absence of an objection is “relevant to a
fundamental fairness assessment”). In the first of these comments, the prosecutor stated
that Petitioner is “either a bottom dweller, slobbering, or he’s just right on the
cusp” (Tr. 3/15/04, 95). Although referring to a person with mental retardation as a
“slobbering bottom dweller” is harsh and inappropriate, the Court cannot conclude that this
single reference rendered the entire proceeding fundamentally unfair. The comment was
not objected to, the prosecutor made the reference only once, and it was made within an
otherwise permissible argument discussing Petitioner’s expert evidence. As for the third
unobjected-to comment, it concerned Officer Maddox’s testimony, which the Court has
already addressed herein.
Because the evidence was relevant and admissible, the
prosecutor’s reasonable comments based on the officer’s testimony did not deny Petitioner
due process. See United States v. Dazey, 403 F.3d 1147, 1170 (10th Cir.2005) (“The
prosecutor is entitled to argue to the jury that it should draw reasonable inferences from
the evidence to support the government’s theory of the case.”).
Petitioner’s final complaint concerns Jury Instruction No. 17 which required the jury
to determine whether “the mental retardation [was] present and known before [Petitioner]
was eighteen (18) years of age” (O.R. VI, 1138). Petitioner contends that the language
“present and known” is contrary to Atkins, which referred to mental retardation
31
manifesting itself (or the onset occurring) before the age of eighteen. Atkins, 536 U.S. at
308 n.3. Pet. at 70-71.
“A habeas petitioner who seeks to overturn his conviction based on a claim of error
in the jury instructions faces a significant burden.” Ellis v. Hargett, 302 F.3d 1182, 1186
(10th Cir. 2002). “Unless the constitution mandates a jury instruction be given, a habeas
petitioner must show that, in the context of the entire trial, the error in the instruction was
so fundamentally unfair as to deny the petitioner due process.” Tiger v. Workman, 445
F.3d 1265, 1267 (10th Cir. 2006).
In denying Petitioner relief on this claim, the OCCA relied on its prior decisions in
Howell v. State, 138 P.3d 549 (Okla. Crim. App. 2006), and Myers v. State, 130 P.3d
262 (Okla. Crim. App. 2005). Smith, No. O-2006-683, slip op. at 5. In Myers, the OCCA
held as follows:
Jury instructions are sufficient if, when read as a whole, they state the
applicable law. McGregor v. State, 1994 OK CR 71, ¶ 23, 885 P.2d 1366,
1380. As used in this context, the word “manifest” is a transitive verb and
the word “known” is an adjective. The Random House Unabridged
Dictionary defines “known” as perceived or understood as fact or truth;
apprehended clearly and with certainty. See “know” & “known” Random
House Dictionary (2nd ed.1997). It defines “manifest” as “to make clear or
evident to the eye or the understanding; show plainly ... to prove; put beyond
doubt or question.” See “manifest” Random House Dictionary (2nd ed.1997).
We find that the words “present and known” are words of common
everyday understanding that do not require a level of proof above that
required to prove that a condition “manifested” itself. “Known” as it relates
to the jury instruction used in this case does not require a scientific finding
or a medical diagnosis. See Murphy I, 2002 OK CR 32, ¶ 31 n.19, 54 P.3d at
567 n.19. The retardation has only to have been perceived or recognized by
someone before the defendant reached the age of 18. The court’s instruction
accurately stated the applicable law and therefore we find that the district
court did not abuse its discretion in giving this uniform instruction.
32
Myers, 130 P.3d at 269.
Petitioner has not shown that the OCCA’s analysis is unreasonable. In addition to
the fact that Petitioner’s claim has been specifically rejected in both Howell v. Workman,
No. CIV-07-1008-D, 2011 WL 5143069, at *20-21 (W.D. Okla. Oct. 28, 2011)
(unpublished), and Myers v. Workman, No. 02-CV-140-GKF-PJC, 2010 WL 2106456, at
*57-59 (N.D. Okla. May 25, 2010) (unpublished), when the Court considers the additional
step taken by the trial court to clarify this issue, Petitioner’s argument is especially weak.
Pulling clarifying language from the Murphy decision, Murphy, 54 P.3d at 567 n.19, the
trial court further instructed the jury as follows:
Whether mental retardation before the age of eighteen was present and
known is a question of fact to be decided by you the jury. To establish that
the first signs of mental retardation appeared and were recognized before
[Petitioner] turned eighteen, lay opinion and poor school records may be
considered.
(O.R. VI, 1140; Tr. 3/15/04, 75-77). Therefore, reviewing the instructions as a whole and
giving the OCCA’s decision appropriate deference, the Court finds that no relief is
warranted on this claim.
In conclusion, for the reasons set forth above, the Court finds that Petitioner has not
demonstrated his entitlement to relief for the claims raised in his Ground Two. Ground
Two is therefore denied.
C.
Ground Three:
Ineffective Assistance of Atkins Trial Counsel.
In his third ground for relief, Petitioner argues that his Atkins trial counsel was
ineffective for two reasons. First, Petitioner faults his trial counsel for failing to retain and
33
present for testimony an expert like Theresa Flannery of the Dale Rogers Training Center.14
Petitioner contends that Ms. Flannery should have testified to educate the jury regarding
his ability to work as a head custodian despite his limited intelligence. Second, Petitioner
asserts that his trial counsel should have retained an expert like Dr. Terese Hall to assess
his adaptive functioning using the ABAS-II. Because his expert at trial failed to use this
test and was criticized by the State’s expert for failing to do so, Petitioner asserts that Dr.
Hall’s results should have been presented to the jury to establish his significant limitations
in adaptive functioning. Had trial counsel presented these two pieces of additional
evidence, Petitioner claims that he would not be under a death sentence today.
As an initial matter, the Court must first determine whether the OCCA’s
determination of these claims is entitled to AEDPA deference, a matter which the parties
dispute. The record reflects that in his presentation of these ineffectiveness claims to the
OCCA, Petitioner attached four exhibits to his application for relief, including an
August 2006 affidavit from Ms. Flannery (Pet’r’s Attach. 20), Dr. Hall’s September 2005
report (Pet’r’s Attach. 5), and a September 2006 affidavit from trial counsel (Pet’r’s Attach.
15). In denying Petitioner relief, the OCCA analyzed Petitioner’s claims and discussed his
extra-record material as follows:
[Petitioner] contends in his ninth proposition that he was denied a fair
trial because of ineffective assistance of counsel. He contends that trial
counsel failed to investigate and fully present evidence demonstrating that
14
“Dale Rogers Training Center is the oldest and largest community vocational training and
employment center in Oklahoma that serves persons with disabilities. . . . [It] provides individuals
whose IQ levels test 75 or below with meaningful, productive, and compensated work.” Pet’r’s
Attach. 20 at 1.
34
he, in his status as a custodial supervisor, was working at his full potential as
a person with mental retardation.
This Court reviews claims of ineffective assistance of counsel under
the two-part Strickland test that requires an appellant to show: [1] that
counsel’s performance was constitutionally deficient; and [2] that counsel’s
performance prejudiced the defense, depriving the appellant of a fair trial
with a reliable result. Strickland v. Washington, 466 U.S. 668, 687,
104 S. Ct. 2052, 2064, 80 L.Ed.2d 674 (1984); Davis v. State, 2005 OK
CR 21, ¶ 7, 123 P.3d 243, 246. Under this test, [Petitioner] must affirmatively
prove prejudice resulting from his attorney’s actions. Strickland, 466 U.S. at
693, 104 S. Ct. at 2067; Head v. State, 2006 OK CR 44, ¶ 23, 146 P.3d 1141,
1148. “To accomplish this, it is not enough to show the failure had some
conceivable effect on the outcome of the proceeding.” Head, 2006 OK CR
44, ¶ 23, 146 P.3d at 1148. Rather, [Petitioner] must show that there is a
reasonable probability that, but for counsel’s unprofessional error, the result
of the proceeding would have been different. Id. “A reasonable probability
is a probability sufficient to undermine confidence in the outcome.” Id.
On appeal, [Petitioner] contends that trial counsel should have secured
an expert in the field of training mentally retarded individuals to show that
the skills he performed as head custodian were not inconsistent with someone
who is mentally retarded. [Petitioner] has appended to his brief, among other
things, an affidavit from Theresa Flannery who is the Administrator for the
Dale Rogers Training Center’s Vocational Programs, a vocational training
program for mentally retarded individuals in Oklahoma City. She attests that
individuals with an I.Q. in the range of 55 can be trained to be custodians, to
set security alarms, to use pagers and to learn repetitive cleaning tasks.
We cannot consider [Petitioner’s] extra record material to evaluate the
merits of his ineffective assistance of counsel claim under these
circumstances.[FN13] Convincing evidence was presented that [Petitioner]
did not suffer from sub-average intellectual functioning that prevented him
from being productive and able to function adequately. Those witnesses with
first-hand knowledge of his skills portrayed [Petitioner] as capable and
normal. This claim is denied.
FN13. [Petitioner] has not requested an evidentiary hearing on his
ineffective assistance of counsel claim under Rule 3.11, Rules of the
Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2007).
This Court does not consider ex parte affidavits and extra-record
material for purposes of assessing the merits of an ineffective
assistance of counsel claim. Rather, we will consider such material to
35
determine if an evidentiary hearing is warranted. Dewberry v. State,
1998 OK CR 10, ¶ 9, 954 P.2d 774, 776. Assuming [Petitioner]
attached this information for purposes of requesting an evidentiary
hearing on his ineffective assistance of counsel claim, the information
is insufficient to show by clear and convincing evidence that there is
a strong possibility that counsel was ineffective for failing to utilize
the complained-of evidence. Rule 3.11(B)(3)(b)(i).
[Petitioner] contends in his tenth proposition that . . . his attorneys
should have had an expert perform the ABAS II test to confirm deficits in his
adaptive functioning.
[Petitioner] submits an affidavit from Dr. Terese Hall in support of
this claim again without requesting an evidentiary hearing. We cannot
consider this affidavit for purposes of evaluating the merits of this claim.
Thus, we must find that [Petitioner] has failed to meet his burden and cannot
prevail. This claim is denied.
Smith, No. O-2006-683, slip op. at 18-20. In a subsequent post-conviction proceeding,
where Petitioner challenged his appellate counsel’s handling of the extra-record materials,
the OCCA explicitly stated that in its review of Petitioner’s mental retardation trial, “[it]
did consider the materials appended by MR appeal counsel, as if they had been properly
presented under Rule 3.11.” Smith, No. PCD-2010-660, slip op. at 7.15
Petitioner argues for de novo review based on the Tenth Circuit’s decision in Wilson
v. Workman, 577 F.3d 1284 (10th Cir. 2009) (en banc). Pet. at 85 n.53. In Wilson, 577
F.3d at 1300, the Tenth Circuit held that “[w]hen the OCCA, pursuant to Rule 3.11, refuses
15
Although Petitioner faults his appellate counsel for not following proper Rule 3.11 procedure,
Pet. at 83, the Court does not construe this one-sentence declaration as an additional claim of
ineffectiveness. In any event, such a claim would be unworthy of habeas relief. Because the
OCCA considered the materials as if they had been properly filed under Rule 3.11, it was
reasonable for the OCCA to deny Petitioner relief on his appellate counsel claim due to the absence
of prejudice. Smith, No. PCD-2010-660, slip op. at 7.
36
to grant an evidentiary hearing to consider material, non-record evidence of ineffective
assistance of counsel that the defendant has diligently sought to develop, and then rules on
the ineffectiveness claim without consideration of this evidence, the OCCA’s denial of the
claim is not an adjudication on the merits to which the federal courts owe AEDPA
deference.” Petitioner stands on Wilson, despite the Tenth Circuit’s subsequent holding in
Lott v. Trammell, 705 F.3d 1167 (10th Cir. 2013).
In Lott, the Tenth Circuit
(1) acknowledged the OCCA’s post-Wilson decision in Simpson v. State, 230 P.3d 888,
906 (Okla. Crim. App. 2010), wherein the OCCA explained the relationship between the
Strickland standard and the Rule 3.11 standard a defendant must meet in order to obtain an
evidentiary hearing in state court on his ineffectiveness claim; (2) reversed the position it
took in Wilson; and (3) concluded, in light of Simpson, that when the OCCA applies Rule
3.11 to deny a defendant an evidentiary hearing, the same constitutes a merits ruling
entitled to AEDPA deference. Lott, 705 F.3d at 1211-13. See Glossip v. Trammell, 530 F.
App’x 708, 736 (10th Cir. 2013) (acknowledging that Wilson is “no longer good law given
the OCCA’s subsequent decision in Simpson”). Thus, contrary to Petitioner’s assertion,
Lott is controlling and the OCCA’s decision on Petitioner’s claims concerning Ms.
Flannery and Dr. Hall is due AEDPA deference.
“[T]he Sixth Amendment does not guarantee the right to perfect counsel; it promises
only the right to effective assistance . . . .” Burt v. Titlow, 571 U.S.___, 134 S. Ct. 10, 18
(2013).
Whether counsel has provided constitutional assistance is a question to be
reviewed under the familiar standard set forth in Strickland v. Washington, 466 U.S. 668
(1984). To obtain relief, Strickland requires a defendant to show not only that his counsel
37
performed deficiently, but that he was prejudiced by it. Id. at 687. A defendant must show
that his counsel “made errors so serious that counsel was not functioning as the ‘counsel’
guaranteed . . . by the Sixth Amendment.” Id. The assessment of counsel’s conduct is
“highly deferential,” and a defendant must overcome the strong presumption that counsel’s
actions constituted “‘sound trial strategy.’” Id. at 689 (citation omitted). “[S]trategic
choices made after thorough investigation of law and facts relevant to plausible options are
virtually unchallengeable . . . .” Id. at 690.
As Strickland cautions, “[i]t is all too tempting for a defendant to second-guess
counsel’s assistance after conviction or adverse sentence, and it is all too easy for a court,
examining counsel’s defense after it has proved unsuccessful, to conclude that a particular
act or omission of counsel was unreasonable.” Id. at 689. Therefore, “[a] fair assessment
of attorney performance requires that every effort be made to eliminate the distorting
effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and
to evaluate the conduct from counsel’s perspective at the time.” Id. Within “the wide range
of reasonable professional assistance,” “[t]here are countless ways to provide effective
assistance in any given case[, and] [e]ven the best criminal defense attorneys would not
defend a particular client in the same way.” Id.
As for prejudice, Strickland requires a defendant to show that his counsel’s errors
and omissions resulted in actual prejudice to him. Id. at 687. In order to make a threshold
showing of actual prejudice, a defendant “must show that there is a reasonable probability
that, but for counsel’s unprofessional errors, the result of the proceeding would have been
38
different. A reasonable probability is a probability sufficient to undermine confidence in
the outcome.” Id. at 694.
In Richter, the Supreme Court addressed the limitations of the AEDPA as
specifically applied to a claim of ineffective assistance of counsel that a state court has
denied on the merits. The Court held that “[a] state court’s determination that a claim lacks
merit precludes federal habeas relief so long as fairminded jurists could disagree on the
correctness of the state court’s decision.” Richter, 562 U.S. at 101 (internal quotation
marks and citation omitted). The Court bluntly acknowledged that “[i]f this standard is
difficult to meet, that is because it was meant to be.” Id. at 102.
[The AEDPA] preserves authority to issue the writ in cases where there is no
possibility fairminded jurists could disagree that the state court’s decision
conflicts with [the Supreme] Court’s precedents. It goes no further. Section
2254(d) reflects the view that habeas corpus is a guard against extreme
malfunctions in the state criminal justice systems, not a substitute for
ordinary error correction through appeal.
Id. at 102-03 (internal quotation marks and citation omitted). When these limits imposed
by the AEDPA intersect with the deference afforded counsel under Strickland, a
petitioner’s ability to obtain federal habeas relief is even more limited.
Surmounting Strickland’s high bar is never an easy task. An
ineffective-assistance claim can function as a way to escape rules of waiver
and forfeiture and raise issues not presented at trial, and so the Strickland
standard must be applied with scrupulous care, lest intrusive post-trial
inquiry threaten the integrity of the very adversary process the right to
counsel is meant to serve. Even under de novo review, the standard for
judging counsel’s representation is a most deferential one. Unlike a later
reviewing court, the attorney observed the relevant proceedings, knew of
materials outside the record, and interacted with the client, with opposing
counsel, and with the judge. It is all too tempting to second-guess counsel’s
assistance after conviction or adverse sentence. The question is whether an
attorney’s representation amounted to incompetence under prevailing
39
professional norms, not whether it deviated from best practices or most
common custom.
Establishing that a state court’s application of Strickland was
unreasonable under § 2254(d) is all the more difficult. The standards created
by Strickland and § 2254(d) are both highly deferential, and when the two
apply in tandem, review is doubly so[.] The Strickland standard is a general
one, so the range of reasonable applications is substantial. Federal habeas
courts must guard against the danger of equating unreasonableness under
Strickland with unreasonableness under § 2254(d). When § 2254(d) applies,
the question is not whether counsel’s actions were reasonable. The question
is whether there is any reasonable argument that counsel satisfied
Strickland’s deferential standard.
Richter, 562 U.S. at 105 (internal quotation marks and citations omitted).
In disposing of Petitioner’s claims, the OCCA applied Strickland. The question,
therefore, is whether it applied Strickland in a reasonable manner. Although Petitioner
characterizes the OCCA’s analysis as “unclear,” Pet. at 85, not knowing whether the
OCCA denied Petitioner relief under the deficient performance prong, the prejudice prong,
or both, does not make its decision unreasonable. Williams v. Trammell, 782 F.3d 1184,
1199 (10th Cir. 2015) (“[U]ncertainty does not change our deference.”). It is the result,
not the analysis, which is paramount to this Court’s review. Lack of clarity is “not a license
to penalize a state court for its opinion-writing technique.” Lafler v. Cooper, 566 U.S. 156,
183 (2012). “Even ‘[w]here a state court’s decision is unaccompanied by an explanation,
the habeas petitioner’s burden still must be met by showing there was no reasonable basis
for the state court to deny relief.’” Williams, 782 F.3d at 1199-1200 (citation omitted).
Here then, this Court “must determine what arguments or theories supported or . . . could
have supported, the state court’s decision; and then it must ask whether it is possible
40
fairminded jurists could disagree that those arguments or theories are inconsistent with the
holding in a prior decision of [the Supreme Court].” Richter, 562 U.S. at 102.
41
Theresa Flannery
Petitioner asserts that Ms. Flannery’s testimony about the abilities of an individual
with an I.Q. between 50 and 70 could have undercut the State’s evidence and argument
that “someone with [an] intellectual disability surely could not carry out the duties
required” by Petitioner’s position as head custodian at an elementary school. Pet. at 77.
Regarding the State’s evidence and related argument, Petitioner points to the State’s
opening statement wherein the prosecutor commented on Petitioner’s competence as a head
custodian (Tr. 3/9/04, 27-28); the prosecutor’s elicitation of testimony from Petitioner’s
former teachers that they would be surprised if Petitioner could hold such a
position (Tr. 3/10/04, 43, 114); Dr. Call’s testimony “that there would be some significant
problems” with Petitioner having such a job (Tr. 3/15/04, 68); and the State’s closing
argument references to his teachers’ surprise (id. at 93, 104-07). Pet. at 77-78.16 Petitioner
contends that his trial counsel’s failure to seek out Ms. Flannery is made worse by the fact
that after his first mental retardation trial (which ended in a mistrial), trial counsel knew
that the prosecution would employ this strategy. From his first trial, Petitioner points to
similar testimony from one of his teachers about his surprise (Tr. 11/18/03, 235) and
testimony from a cousin/coworker who testified that Petitioner was his supervisor and had
keys to the alarm-protected school building (Tr. 11/19/03, 16-17, 19, 21). Pet. at 78.
16
In his reply, Petitioner also points to the testimony of Mr. Woodward, a State’s witness. Reply
at 19. As detailed in Ground One, supra, Mr. Woodward was Petitioner’s supervisor. He testified
that Petitioner supervised four to five employees, communicated with him through a pager, and
knew how to operate the school’s alarm system.
42
The OCCA’s denial of relief on this claim is not unreasonable under either
Strickland prong. From Petitioner’s argument, one might get the impression that trial
counsel did absolutely nothing to counter this evidence. This is simply not the case. Trial
counsel elicited evidence from its expert, Dr. Hopewell, that being in a supervisory position
is not inconsistent with being mentally retarded (Tr. 3/9/04, 69). Dr. Hopewell described
Petitioner’s job as “routine,” and while acknowledging that Petitioner had some people
who reported to him, he testified that Petitioner’s supervisory responsibilities were limited
to making sure that the cleaning assignments of absent employees got done (Id. at 116).
Petitioner’s cousin, who worked with Petitioner at the school for a time, also testified that
Petitioner’s supervisory duties were limited: “He just made sure everybody did what we
had to do. If one of us didn’t come in, he would just have to do the work. That was it” (Tr.
3/10/04, 72). His cousin further testified that it was his mother, Petitioner’s aunt, who hired
Petitioner and did all the paperwork required. Petitioner did not have to complete any
paperwork in his supervisory duties (id. at 73-74). Finally, through the testimony of one
of Petitioner’s former teachers, the jury learned that Petitioner had participated in a workstudy program where he received specific training to be a school janitor (id. at 31).
Trial counsel offered and the court admitted into evidence Petitioner’s work
schedule. It listed Petitioner’s area of responsibility; daily, weekly, and as needed
assignments; and the full cleaning schedule. Although it classified Petitioner as “Head
Custodian,” no supervisory duties were noted (Def.’s Ex. 4). When trial counsel showed
this schedule to one of Petitioner’s former teachers who had testified that she would be
“[e]xtremely surprised” to know that Petitioner was working as a head janitor, she testified
43
that she would not be surprised if Petitioner could carry out those general cleaning duties.
She only questioned whether he might have issues reading the names of the chemicals
and/or knowing which chemicals to use (Tr. 3/10/04, 114-15).
In response to testimony from Mr. Woodward, see n.16, supra, trial counsel brought
out on cross-examination that he had only been Petitioner’s supervisor for “a very short
time,” and that although Mr. Woodward had testified that Petitioner was responsible for
making sure everyone’s time cards were filled out, he admitted on cross-examination that
he only came by the school to pick up the time cards from Petitioner and had no idea what,
if anything, Petitioner had done to make sure they were ready to go (Tr. 3/11/04, 92, 94,
97).
And in closing argument, trial counsel made the following comments about
Petitioner’s job:
As an adult [Petitioner] became a janitor. And you will have the job
description of that position. Now, it was called head janitor. But I ask you
to look over that description. And what you will see is he cleaned, he
straightened, he threw away trash, very simple tasks. The title of head janitor
did not mean he was responsible for major supervisory responsibilities.
In fact, Mr. Woodward, who was his supervisor for the last six to
seven weeks of his employment, indicated that the biggest thing that the head
janitor did was if someone didn’t show up he was supposed to delegate the
duties of the person that didn’t show up. However, if you will remember
Chris Scott’s testimony, he didn’t delegate those responsibilities. [Petitioner]
would do the job - - the cleaning job of the person who missed work.
In addition to those duties, the state has argued that there was
paperwork involved in this. However, Mr. Woodward also indicated there
was a limited amount of paperwork that [Petitioner] was responsible for.
And Mr. Scott told us that his mother was the one who assisted [Petitioner]
with his paperwork.
....
44
The evidence that he had the janitor job. All the experts testified,
including the Special Education teachers, including Fern Smith, the
prosecutor in this case, testified that mentally retarded people can have jobs.
They can work. I bet we shouldn’t be surprised by that, should we, that
mentally retarded people can have jobs? It’s what kind of jobs they have and
what kind of work that they can get. And Mr. Preston testified through the
transcript that janitorial work is the kind of work that they were teaching
children for in high school in the work co-op class to teach them how to be
functional in society.
The fact that he was able to have a job doesn’t mean he’s not mentally
retarded.
(Tr. 3/15/04, 82-83, 120).
In light of what trial counsel did do, trial counsel was not deficient with respect to
the Flannery evidence. At most, Petitioner has shown that there was some additional
evidence that trial counsel could have been presented to challenge the State’s assertions
about his job and its reflection of his mental capabilities. While Ms. Flannery’s testimony
may have bolstered trial counsel’s efforts, there is always more that counsel could have
done, but failing to pursue any and all evidentiary angles does not make counsel ineffective.
As noted above, within “the wide range of reasonable professional assistance,” “[t]here are
countless ways to provide effective assistance in any given case[, and] [e]ven the best
criminal defense attorneys would not defend a particular client in the same way.”
Strickland, 466 U.S. at 689.
There is no Strickland prejudice as well. Even if the Flannery evidence had been
presented, there is no reasonable probability that Petitioner would have received a jury
verdict that he is mentally retarded. The janitor evidence was just a part of the evidence
before the jury, and given trial counsel’s efforts to challenge the State’s contentions about
45
the significance of his job, as well as all of the other evidence presented, Petitioner was not
prejudiced by its absence.
Dr. Terese Hall
Because trial counsel was aware that Dr. Call would criticize Dr. Hopewell’s use of
the Vineland Test to test Petitioner’s adaptive functioning, Petitioner contends that trial
counsel was ineffective for failing to retain an expert like Dr. Hall to assess his adaptive
functioning using the ABAS-II. On the ABAS-II, administered by Dr. Hall in 2005,
Petitioner scored “in the significantly impaired range in several areas . . . .” Pet’r’s Attach.
5 at 12. Because trial counsel did not have Petitioner tested using the ABAS-II, Petitioner
asserts that his case “was left vulnerable to damaging attacks by the prosecution” and a
“critical requirement for a finding of mental retardation was left in question.” Pet. at 82,
83. Here again, however, the Court cannot conclude that the OCCA was unreasonable to
deny Petitioner relief on this claim.
Regarding the Vineland Test, Dr. Hopewell testified that although it is usually
administered to a caretaker, he administered it directly to Petitioner. He explained that
given Petitioner’s status as a prisoner, he did not have caretakers to interview in the
traditional sense. While guards looked after Petitioner, Petitioner was housed in a cell and
did not have frequent contact with them. Dr. Hopewell called it an “artificial setting.” For
example, Petitioner was not in a situation where others could assess his ability to cook a
meal because cooking a meal in that setting was impossible. In Dr. Hopewell’s opinion,
“it was really much better just to get the information directly from [Petitioner], as well as
what [he (Dr. Hopewell)] was seeing in [his] testing and then the information from the
46
other records that [he] had” (Tr. 3/9/04, 60-62). Dr. Hopewell testified that the Vineland
tests five areas of adaptive functioning, and although he did not detail each of the five areas
tested, he did testify that Petitioner had deficits in all areas (id. at 64, 65, 68).
On cross-examination, the State did question Dr. Hopewell rather extensively about
his use of the Vineland Test. Dr. Hopewell defended his use of the test and explained that
he did not give the test to Petitioner’s mother or a former teacher because Petitioner was
an adult who had not lived with his mother for a number of years and relying on a teacher’s
memory from that long ago would have been inappropriate (id. at 143-45). When
questioned about whether the Vineland results may have been skewed due to Petitioner’s
failure to be truthful about his abilities, Dr. Hopewell acknowledged that if Petitioner had
lied consistently, it could have changed some scores on the test; however, the Vineland
results were just a part of the information he relied on to assess Petitioner’s adaptive
functioning. Beyond the Vineland, Dr. Hopewell relied on Petitioner’s extensive records,
his own personal observation of him, and discussions he had with Petitioner’s nurse, prison
guards, and attorneys (id. at 151-52, 154).
On redirect, Dr. Hopewell testified that no adaptive functioning test, including the
ABAS-II, has been designed for the prison population. He also explained that the ABASII was new and that using it required caution. Even though the test had norms, “it’s so new
that still people don’t know how to do on it.” Dr. Hopewell testified that the Vineland was
the most familiar test (one of the reasons why he chose it):
[I]f I reported tests that other people are familiar with and aware of they can
at least make some comparisons. So if I use a test that’s brand new or other
people aren’t aware of that creates some problems. So I just felt it was quite
47
- - I thought it was quite adequate to and saw no reason not to [use the
Vineland].
Dr. Hopewell further testified that although the Vineland was “an entirely appropriate or
adequate measure to give,” Petitioner’s adaptive functioning deficits were so profound that
his choice of test was of little or no consequence (Tr. 3/9/04, 190-91).
Dr. Call testified that Dr. Hopewell should not have used the Vineland because it
was not designed to be given to the subject of the study, and because Dr. Hopewell gave
the test to Petitioner, the results were of no value (Tr. 3/15/04, 22-25). He, however, did
not do any adaptive functioning testing of Petitioner (id. at 45-46). Dr. Call interviewed a
prison psychologist and a guard, but was “unable to use a standardized instrument with
them” (id. at 31). He discussed Petitioner’s ability to communicate with him, but he again
“underline[d]” the fact that he “was unable to give any individual standardized technique”
(id. at 32). Although Dr. Call admitted that it was difficult to measure adaptive functioning
in the structured prison setting and agreed with Dr. Hopewell that there is no adaptive
functioning test specifically designed for the prison population, he suggested that the
ABAS-II could have been used (id. at 34, 48-49).
Like the Flannery evidence, the OCCA’s determination that trial counsel was not
ineffective with respect to the Hall evidence is also not unreasonable. While trial counsel
was aware that Dr. Call would criticize Dr. Hopewell’s use of the Vineland test, it was not
unreasonable for counsel to forego additional testing. The evidence presented at trial
showed that there was no standardized test to assess the adaptive functioning of prisoners.
Dr. Hopewell not only had a reasonable explanation for using the Vineland, but also
48
explained that it was not the only information he used to assess Petitioner’s adaptive
functioning. And while Dr. Call criticized Dr. Hopewell’s use of the Vineland, he did no
testing of his own, but only suggested that the ABAS-II may have been used. Here again,
Dr. Hall’s additional testing may have aided Petitioner’s case, but trial counsel was not
deficient for relying on Dr. Hopewell alone. Assessing trial counsel’s actions requires a
deferential lens. Through this lens, trial counsel’s actions were not unreasonable.
As for prejudice, even if trial counsel had presented Dr. Hall’s ABAS-II results, no
reasonable probability exists that the jury would have found Petitioner to be mentally
retarded. Although Petitioner asserts that Dr. Call’s discounting of Dr. Hopewell’s
Vineland results left a devastating void in his case, his assertion ignores (1) Dr. Hopewell’s
testimony that the Vineland was just a part of his total assessment of Petitioner’s adaptive
functioning; (2) the additional testimony Dr. Hopewell gave (apart from the Vineland)
about Petitioner’s adaptive functioning deficits in the areas of communication and
academics (O.R. VI, 1138-39; Tr. 3/9/04, 62-63, 65-67);17 and (3) all of the additional
evidence which was presented at trial regarding Petitioner’s skills. Considering all of this
evidence, Strickland prejudice is lacking.
17
The jury was only required to find significant limitations in two of nine skill areas.
49
In conclusion, for the reasons set forth above, the Court concludes that Petitioner
has failed to demonstrate that the OCCA was unreasonable in its denial of relief on these
two claims of trial counsel ineffectiveness.18 Ground Three is therefore denied.
D.
Ground Four:
Ineffective Assistance of Trial and Appellate
Counsel (Competency and Resentencing).
Petitioner’s Ground Four is another challenge to the effectiveness of his counsel.
Here, however, Petitioner challenges the representation he received during his
2009 competency trial and 2010 resentencing. Petitioner asserts that his trial counsel in
these proceedings was ineffective for failing to present a witness, Anna Wright, and a DVD
of Petitioner which she could have sponsored for admission. Petitioner additionally
contends that his appellate counsel was ineffective for failing to raise this trial counsel
ineffectiveness claim on appeal. These claims were presented to the OCCA on postconviction. The OCCA denied relief on the merits. Smith, No. PCD-2010-660, slip op. at
9-10. Because Petitioner has not shown that the OCCA was unreasonable in its denial, his
Ground Four must be denied. 19
Petitioner asserts that Ms. Wright could “have presented compelling and incisive
testimony about [his] simple and childlike nature as observed by her in her capacity as a
18
Petitioner’s assertion that the OCCA’s decision is unreasonable because it did not consider both
failures by trial counsel in a Strickland prejudice analysis is unavailing because for the reasons set
forth herein, neither failure by counsel was deficient. Pet. at 85-86.
19
Having concluded herein that the OCCA did not unreasonably deny relief on Petitioner’s trial
counsel claim, the OCCA’s determination of Petitioner’s appellate counsel claim was likewise
reasonable. Because the trial counsel claim was without merit, appellate counsel was not
ineffective for failing to raise the claim on appeal.
50
mental health counselor at the Oklahoma County Jail.” Pet. at 87-88. Ms. Wright’s
admittedly “limited” observations of Petitioner are detailed in a 2013 affidavit appended
to his post-conviction application as Attachment 5 (hereinafter “Wright Affidavit”). The
real focus of Petitioner’s Ground Four, however, is a 2009 video recording (Pet’r’s Attach.
16), which Ms. Wright could have sponsored into evidence. The video in question is a 21minute interview of Petitioner conducted by the Federal Public Defender’s Office for use
in another death row inmate’s clemency proceeding. Ms. Wright was present during the
interview. Wright Affidavit at 2-3. Characterizing the video as “extremely valuable,”
“unique,” “compelling,” and “humanizing,” Pet. at 88, 91, 94, Petitioner faults his trial
counsel for not showing this video to his competency and resentencing juries. As for
prejudice, Petitioner argues that the video would have made a difference in his competency
proceeding because the jurors could have seen for themselves how “concrete” he is and
how “he [can] only answer simple and direct questions.” Id. at 94. Petitioner asserts that
the video would have made a difference at his resentencing as well because it would have
humanized him, showing the jury “a real person they were being asked to sentence to
death.” Id. at 95.
Applying Strickland, the OCCA analyzed Petitioner’s claims and denied relief as
follows:
At Petitioner’s competency trial, and later at his re-sentencing trial,
his counsel presented a considerable amount of evidence relevant to
Petitioner’s mental functioning. Petitioner now points to two pieces of
evidence that trial counsel had, but did not use at either proceeding. He
claims this evidence could have been outcome-determinative. Because
Petitioner did not raise this claim on direct appeal, it would be forfeited, but
51
for the fact that he alleges his direct-appeal counsel was ineffective in
omitting it. 22 O.S.2011, § 1089(D)(4)(b).
Petitioner cites to several cases where we found error (though not
always reversible error) when a trial court barred defense counsel from
presenting certain mitigation evidence in a capital case. See Medlock v.
State, 1994 OK CR 65, ¶¶ 42-43, 887 P.2d 1333, 1346; Mitchell v. State,
2006 OK CR 20, ¶¶ 55-57, 136 P.3d 671, 696-98. But Petitioner does not
claim that the trial court barred him from presenting the evidence in question,
at either the competency trial or the re-sentencing trial. Nor does he claim
that trial counsel failed to uncover this information. In fact, as Petitioner
concedes, trial counsel filed written notice concerning the potential use of
this information in August 2009, well in advance of either proceeding.
Petitioner merely claims that trial counsel made a fatal strategic error in
deciding not to present this information, and that appellate counsel was
ineffective for not raising this meritorious claim. We disagree.
When counsel has made an informed decision (i.e. after reasonable
investigation) to pursue one strategy over another, that choice is virtually
unchallengeable. Underwood v. State, 2011 OK CR 12, ¶ 82, 252 P.3d 221,
252 (quoting Strickland, 466 U.S. at 690-91, 104 S.Ct. at 2066). Trial
counsel’s decision not to present this or that piece of mitigation evidence
may be sound trial strategy. Coddington, 2011 OK CR 21, ¶ 19, 259 P.3d at
839. Petitioner’s lead counsel at the competency and re-sentencing trials was
not only highly experienced in capital criminal defense; she was also quite
familiar with the long and complicated history of Petitioner’s case. Our
assessment of the omitted materials does not show them to be of a character
substantially different from the evidence that trial counsel ultimately chose
to use.[FN5] We find no reasonable probability that raising this claim on
direct appeal would have changed the outcome thereof. Therefore, appellate
counsel was not ineffective for failing to include it.
FN5. The evidence in question consists of (1) the proposed
testimony of a counselor /investigator who interacted with Petitioner
several times over the years, and (2) a video interview where
Petitioner describes his feelings about a fellow inmate at Oklahoma
State Penitentiary (which had been prepared for the fellow inmate’s
clemency hearing). The counselor’s involvement with Petitioner, and
her opinions about his mental functioning, were similar to the
opinions of many other witnesses who testified at both the
competency trial and the re-sentencing trial. However, this potential
witness characterizes her interactions with Petitioner as “limited” in
nature. Petitioner claims that the video interview would have
52
corroborated witness accounts of his limited intellectual functioning
and humanized him to the jury. Without substituting our judgment for
that of the fact-finder, we believe the interview’s persuasive force on
that point is debatable.
Smith, No. PCD-2010-660, slip op. at 4, 9-10.
In his attempt to demonstrate unreasonableness, Petitioner’s first contention is that
the OCCA completely mischaracterized his claims. Petitioner challenges the OCCA’s
focus on strategy, claiming that he did not allege a strategic error, but an error “of
preparedness and the failure to properly investigate and prepare on the part of both trial
and appellate counsel.” He points to his post-conviction application wherein he argued
about the “‘lack of investigation and preparation.’” Pet. at 89-90. However, in assessing
whether counsel was deficient, strategy is a Strickland consideration. Strickland requires
a defendant to “overcome the presumption that, under the circumstances, the challenged
action ‘might be considered sound trial strategy.’” Strickland, 466 U.S. at 689 (citation
omitted). Although Petitioner may have framed his claims in terms of a failure to
investigate, the uncontested facts show otherwise. Petitioner’s trial counsel knew about
this evidence – about Ms. Wright and about the video. Before Petitioner was interviewed,
trial counsel gave the Federal Public Defender’s Office permission to interview him, and
after the interview, the assistant federal public defender who conducted the interview
contacted trial counsel about it. Thereafter, Ms. Wright spoke with trial counsel on two
separate occasions, once when she dropped off the video at trial counsel’s office and later
in a telephone conversation. Wright Affidavit at 2-3. Trial counsel was not only aware of
the evidence, but she even endorsed Ms. Wright as a witness for both the competency
53
proceeding and the resentencing. In her court filing, trial counsel gave the following
summary about Ms. Wright’s testimony:
Anna Wright, Investigator, Federal Public Defender, Oklahoma City.
Ms. Wright, until very recently, was the psychiatric social worker at the
Oklahoma County Jail. She became familiar with [Petitioner] when he was
remanded for court in approximately 2003. At the time [Petitioner] came he
had coloring books and pencils. Wright remembers being instructed to allow
[Petitioner] to continue to keep them. Wright made sure [Petitioner] was safe
and had his medications. As she quickly recognized that he was slow, she
also wanted to make sure no one took advantage of him. Wright did not have
great amounts of time to spend with [Petitioner], as inmates who are well
behaved tend to get the least attention. [Petitioner] was very compliant, and
very childlike in answers to questions she posed. [Petitioner] appears to
Wright to be consistent with having an IQ of 55. Recently Anna Wright and
a Federal Defender made a visit to [Petitioner] to interview him about a
former cellie at DOC, Michael Delozier. The visit was a surprise to
[Petitioner]. Interactions with him were filmed and saved onto a DVD.
[Petitioner] did not understand the trial and appellate process; did not
understand the concept of execution; did not understand in legal terms the
help he was being asked to provide. In the end, Wright and the Federal
Defender simply asked [Petitioner] what he would like to say about his
former cellie. Wright will authenticate this DVD for the jury. Should it
become an issue, Anna Wright is aware that [Petitioner] had trouble with an
inmate who has profound mental illness. The inmate accused [Petitioner] of
sexually assaulting him, but based on the traumatized behavior of
[Petitioner], as well as the other inmate’s history of abusing other inmates,
staff at the jail were comfortable that [Petitioner] was not at fault. In fact this
inmate is currently at the Oklahoma County Jail, on isolation, for having
abused yet another inmate.
(O.R. XI, 2074-75). Trial counsel also listed the DVD as an exhibit, stating it “will be
provided to State once objectionable parts regarding death row are omitted” (id. at 2076).
Under these circumstances, Petitioner’s assertion that the OCCA’s opinion is flawed
because it failed to recognize the nature of his claims is undoubtedly without merit.
Next, Petitioner claims that the OCCA made no Strickland deficient performance
determination. He therefore seeks de novo review of this Strickland prong. Pet. at 90-91.
54
The Court does not agree. The OCCA’s discussion of strategy was an assessment of trial
counsel’s performance under Strickland’s first prong. AEDPA double deference is
therefore due. See Jackson v. Warrior, 805 F.3d 940, 954 (10th Cir. 2015) (“Given that
the standards of review under both Strickland and AEDPA are highly deferential, habeas
review of ineffective assistance claims is doubly so.”) (internal quotation marks and
citation omitted), cert. denied, 137 S. Ct. 311 (2016).
Asserting that “[t]he deficient performance prong is easily met,” Petitioner argues
that trial counsel simply dropped the ball in failing to present Ms. Wright as a witness and
introduce the video into evidence. His argument is that the video is of such great
evidentiary value, there is no question that trial counsel was deficient for not presenting it.
Pet. at 91. But trial counsel not only knew the evidence existed, but also what Ms. Wright
could testify to and what the video would show. Since trial counsel was fully informed
about the evidence, the OCCA’s determination that trial counsel’s decision not to present
it fell within counsel’s wide range of deference is not unreasonable. Petitioner has not
overcome Strickland’s strong presumption that counsel’s actions amounted to a strategic
decision.20
Although concluding that the OCCA reasonably denied relief on the deficient prong
is enough to defeat Petitioner’s Strickland claims, the Court additionally concludes that the
20
Petitioner has provided an affidavit from his trial counsel dated April 21, 2015. Although
Pinholster, 563 U.S. at 181, prohibits its consideration here, it is, in any event, no help to
Petitioner’s cause. In the affidavit, trial counsel simply states that she does not remember why she
did not present this evidence. Pet’r’s Attach. 17 at 2.
55
OCCA’s prejudice determination survives AEDPA deference as well. The OCCA found
that given the evidence which trial counsel did present, the omitted evidence was not
outcome-determinative. Petitioner does not specifically challenge or even reference the
case trial counsel did present at both his competency proceeding and resentencing, but only
argues that the evidentiary quality of the video would have made a difference. The OCCA
found that this argument was debatable, and the Court cannot disagree, especially in light
of AEDPA deference. See Frost, 749 F.3d at 1225 (“Under the test, if all fairminded jurists
would agree the state court decision was incorrect, then it was unreasonable and the habeas
corpus writ should be granted. If, however, some fairminded jurists could possibly agree
with the state court decision, then it was not unreasonable and the writ should be denied.”);
Stouffer v. Trammell, 738 F.3d 1205, 1221 (10th Cir. 2013) (“We may reverse only if all
fairminded jurists would agree that the state court got it wrong.”) (internal quotation marks
omitted).
For the reasons set forth above, the Court concludes that Petitioner has failed to
demonstrate his entitlement to relief on his fourth ground. Relief is therefore denied.
E.
Grounds Five and Six:
Cruel and Unusual Punishment.
Petitioner’s Grounds Five and Six are unexhausted claims which are easily disposed
of on the merits. See 28 U.S.C. § 2254(b)(2) (“An application for a writ of habeas corpus
may be denied on the merits, notwithstanding the failure of the applicant to exhaust the
remedies available in the courts of the State.”). In Ground Five, Petitioner asserts that
because he is mentally ill, his execution would constitute cruel and unusual punishment
under the Eighth Amendment, and in Ground Six, he argues that his rights under the Eighth
56
and Fourteenth Amendments would be violated if the State of Oklahoma is allowed to
execute him for crimes he committed in 1993.
With respect to his Ground Five, Petitioner contends that mentally ill offenders
should be categorically excluded from execution like mentally retarded offenders (Atkins)
and juvenile offenders (Roper v. Simmons, 543 U.S. 551, 578 (2005)).
Given all of his alleged mental impairments (brain damage, mental retardation, and mental
illness), Petitioner asserts that he is even more deserving of exclusion than the offenders in
Atkins and Roper. Pet. at 98 (labeling his circumstance as “Super Atkins” or “Atkins
PLUS”).
Because neither Atkins nor Roper addresses the mentally ill offender, what
Petitioner asks this Court to do is to extend their holdings and make new law which would
prohibit the State from executing him. That is not the function of a habeas court. This
Court has authority to entertain habeas applications from a state court prisoner “only on
the ground that he is in custody in violation of the Constitution or laws or treaties of the
United States.” 28 U.S.C. § 2254(a). The current state of the law is that it is cruel and
unusual punishment to execute mentally retarded offenders and juvenile offenders.
Petitioner is neither, and because the Supreme Court has not found mental illness to be a
categorical exclusion, this Court has no authority to grant the relief he seeks.21 See Lockett
21
Although mental illness is not a categorical exclusion, “[t]he Eighth Amendment prohibits a
State from carrying out a sentence of death upon a prisoner who is insane.” Ford v. Wainwright,
477 U.S. 399, 410 (1986). If a question of sanity exists at the time Petitioner’s execution becomes
imminent, Petitioner has an avenue for relief under Ford. See Herrera v. Collins, 506 U.S. 390,
406 (1993) (“the issue of sanity is properly considered in proximity to the execution”).
57
v. Workman, No. CIV-03-734-F, 2011 WL 10843368, at *36-38 (W.D. Okla. Jan. 19,
2011) (denying the same claim due to lack of Supreme Court authority) (unpublished);
Thacker v. Workman, No. 06-CV-0028-CVE-FHM, 2010 WL 3466707, at *23-24 (N.D.
Okla. Sept. 2, 2010) (same) (unpublished).
In Ground Six, Petitioner asserts that because there has been an excessive delay
between his crimes and the carrying out of his execution, “Oklahoma has forfeited its right
to kill [him].” In support, Petitioner cites only a memorandum of Justice Stevens respecting
the denial of certiorari in Lackey v. Texas, 514 U.S. 1045 (1995). Pet. at 99. This is clearly
an insufficient demonstration of his entitlement to relief. See Mitchell v. Duckworth, No.
CIV-11-429-F, 2016 WL 4033263, at *6-7 (W.D. Okla. July 27, 2016) (rejecting the same
claim); Rojem v. Trammell, No. CIV-10-172-M, 2014 WL 4925512, at *3-5 (W.D. Okla.
Sept. 30, 2014) (same).
For the foregoing reasons, Petitioner’s Grounds Five and Six are hereby denied.
F.
Ground Seven:
Cumulative Error.
In his final ground, Petitioner urges relief upon a theory of cumulative error;
however, where there is no error, there can be no cumulative error. Thacker v. Workman,
678 F.3d 820, 849 (10th Cir. 2012). Because the Court has found no errors in the grounds
for relief raised by Petitioner, Ground Seven presents no avenue for relief and is hereby
denied.
58
III. Motions for Discovery and Evidentiary Hearing.
Petitioner has filed a motion for discovery as well as a motion for an evidentiary
hearing. Docs. 20 and 38. For the following reasons, the Court finds that both should be
denied.
In order to conduct discovery, Rule 6(a) of the Rules Governing Section 2254 Cases
in the United States District Courts requires petitioner to show good cause. In Bracy v.
Gramley, 520 U.S. 899, 908-09 (1997), the Supreme Court acknowledged that “good
cause” requires a pleading of specific allegations showing a petitioner’s entitlement to
relief if the facts are fully developed.
In support of his request to conduct discovery, Petitioner argues that because there
have been some instances in which Oklahoma County prosecutors have failed to comply
with their obligations under Brady v. Maryland, 373 U.S. 83 (1963), and Napue v. Illinois,
360 U.S. 264 (1959), he “is concerned prosecutors may not have disclosed important
evidence in [his] case as well.” Doc. 20 at 3-4. Accordingly, Petitioner requests permission
from the Court to explore the State’s files to see what he can uncover.
Overall, Petitioner’s discovery motion lacks the specificity required by Bracy.
While a few of his requests are more detailed than others, he fails to show how any of the
information he seeks would entitle him to relief if fully developed. This is reason enough
to deny his motion. But in addition, the Court notes that his first two requests for production
(for all of the State’s files and records and all of the law enforcement files and records
related to his case), Doc. 20 at 6, are so broad and generic that they are best characterized
as fishing expeditions which the Court will not permit. Teti v. Bender, 507 F.3d 50, 60
59
(1st Cir. 2007) (“A habeas proceeding is not a fishing expedition.”); Hill v. Johnson, 210
F.3d 481, 487 (5th Cir. 2000) (noting that Rule 6 is not meant for fishing expeditions and
that “factual allegations must be specific, as opposed to merely speculative or conclusory”).
Petitioner’s third request for production is akin to a fishing expedition, but is also vague
and supported only by Petitioner’s contention that he needs the information to try to explain
“strange” things in his case. Doc. 20 at 5-6. This is clearly insufficient to warrant a grant
of discovery.
Petitioner’s fourth request for production (along with a related interrogatory)
concerns State’s witness Ruth Badillo, Assistant District Attorney Fern Smith, and the
status of a life insurance policy on Petitioner’s wife (State’s Ex. 6). With reference to a
2001 evidentiary hearing conducted by the Court in Petitioner’s prior habeas case,
Petitioner questions whether Ms. Smith knew that he believed the policy had lapsed thereby
negating a motive for his wife’s murder.22 Doc. 20 at 4-5. Although Petitioner asserts that
“[m]ore information is needed” on this issue, id. at 5, a review of Petitioner’s prior habeas
case reveals that this matter was explored therein. Included with Petitioner’s prior petition
was an affidavit from Ms. Badillo dated November 5, 1998. Appendix at 45-48, Smith,
No. CIV-98-601-R, Doc. No. 36 (Jan. 6, 1999). While acknowledging that the information
contained in the affidavit was concealed by the prosecution, prior habeas counsel claimed
that the evidence was nevertheless discoverable by trial counsel. Petition at 50, Smith,
22
Although Petitioner also asserts that Ms. Badillo has “brain and memory problems [that] were
left undiscovered but need exploration,” Petitioner offers no further explanation as to why this is
relevant. Doc. 20 at 5.
60
No. CIV-98-601-R, Doc. No. 35 (Jan. 6, 1999). Both Ms. Badillo and Ms. Smith testified
at the evidentiary hearing, and following the hearing, the Court concluded that trial counsel
was not ineffective with respect to this evidence. Memorandum Opinion at 13-14, Smith,
No. CIV-98-601-R, Doc. No. 168 (Jan. 10, 2002). Petitioner has not shown good cause for
why this matter should be revisited.
Petitioner’s final discovery request (fifth request for production and two related
interrogatories) concerns Dr. John Call. Related to his Ground One, Petitioner seeks any
and all information the State has on Dr. Call, including his “use and disuse” of the
Blackwell Memory Test and whether he provided any legal services to the State in his case
(beyond his expert services). Doc. 20 at 4, 6-7. Although the OCCA has previously
questioned Dr. Call’s use of the Blackwell Memory Test, and although Dr. Call did
administer this test to Petitioner as a part of his evaluation, Pet’r’s Attachs. 8 and 9, no
evidence about the test was admitted in Petitioner’s mental retardation trial. See Smith,
No. O-2006-683, slip op. at 15-16 (“Both sides agree that no evidence was presented to the
jury concerning Dr. Call’s Blackwell Memory Test.”). Petitioner’s Ground One is a
challenge to the jury’s verdict, but because the jury did not hear any evidence related to the
Blackwell Memory Test, Petitioner has not shown good cause to warrant further
exploration of the issue. And as for the services Dr. Call provided the State, Petitioner has
made absolutely no argument as to how such information would support a claim for relief
and therefore discovery is denied on this basis.
Petitioner’s request for an evidentiary hearing is likewise denied. Petitioner requests
that he be given an evidentiary hearing on his Grounds One, Three, Four, and Five.
61
However, Petitioner’s Grounds One, Three, and Four have all been denied by the Court on
the merits because Petitioner has failed to show that the OCCA rendered unreasonable
determinations of law or fact under Section 2254(d). In adjudicating these claims, the
Court has noted that in accordance with Pinholster, 563 U.S. at 163, its review is limited
to the record that was before the OCCA at the time it rendered its decision. Having failed
to satisfy Section 2254(d), Petitioner is not entitled to an evidentiary hearing on these
claims. Jones v. Warrior, 805 F.3d 1213, 1222 (10th Cir. 2015). As for Ground Five, the
Court has addressed the merits of this claim de novo and denied relief due to the absence
of Supreme Court authority. Because Petitioner’s Ground Five is easily disposed of on the
record, an evidentiary hearing is unwarranted on this ground as well. See Anderson v.
Attorney General of Kansas, 425 F.3d 853, 859 (10th Cir. 2005).
IV. Conclusion.
Having rejected all of Petitioner’s grounds for relief, his petition for writ of habeas
corpus is DENIED, along with his requests for discovery and an evidentiary
hearing. Docs. 18, 20 and 38. Judgment will enter accordingly.
IT IS SO ORDERED this 13th day of July, 2017.
62
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