Martinez v. Royal
Filing
91
MEMORANDUM OPINION and ORDER. Petitioners petition for writ of habeas corpus [Doc. No. 16] is hereby DENIED and denying Certificate of Appealability. Signed by Chief Judge Timothy D. DeGiusti on 12/6/2022. (mb)
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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF OKLAHOMA
MICA ALEXANDER MARTINEZ,
Petitioner,
v.
JIM FARRIS, Warden,
Oklahoma State Penitentiary,
Respondent.
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Case No. CIV-16-1278-D
MEMORANDUM OPINION AND ORDER
Petitioner, a state court prisoner, has filed a petition for writ of habeas corpus
seeking relief pursuant to 28 U.S.C. § 2254 (“Petition”). [Doc. No. 16]. Petitioner
challenges the conviction and sentence entered against him in Comanche County District
Court Case No. CF-2009-473. Tried by a jury in 2013, Petitioner was found guilty of firstdegree murder (Counts 1 and 2) and assault and battery with a dangerous weapon (Count
3). Petitioner received a 10-year sentence for Count 3 and was sentenced to death for
Counts 1 and 2. In support of the death sentence, the jury found two aggravating
circumstances: (1) Petitioner knowingly created a great risk of death to more than one
person and (2) the murders were especially heinous, atrocious, or cruel. Criminal Appeal
Original Record vol. 5 at 873-83.1
Petitioner appealed his convictions and sentences to the Oklahoma Court of
1
The jury rejected the State’s allegation that Petitioner was a continuing threat. Criminal
Appeal Original Record vol. 5 at 874, 879.
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Criminal Appeals (“OCCA”). The OCCA affirmed in a published opinion. Martinez v.
State, 371 P.3d 1100 (Okla. Crim. App. 2016), cert. denied, 137 S.Ct. 386 (2016).
Petitioner also filed two applications for post-conviction relief, both of which were denied
by the OCCA in unpublished opinions. Martinez v. State, PCD-2017-951 (Okla. Crim.
App. Oct. 17, 2017); Martinez v. State, PCD-2013-936 (Okla. Crim. App. May 5, 2016).
Petitioner presents seven grounds for relief. Respondent has responded to the
petition [Doc. No. 25] and Petitioner has replied [Doc. No. 28]. The Court allowed
supplemental briefing related to Petitioner’s first ground for relief [Doc. Nos. 33 and 37].
Petitioner also filed motions for discovery and an evidentiary hearing to which responses
and replies were filed [Doc. Nos. 17, 21, 22, 29, 30, and 36]. The Court granted in part
Petitioner’s motions for discovery and evidentiary hearing, and denied Respondent’s
motion for reconsideration and motion for certification for interlocutory appeal. [Doc.
Nos. 38 and 47]; see also [Doc. Nos. 40, 41, 44, 45, 46].
After a thorough review of the entire state court record (which Respondent has
provided), the pleadings and materials submitted in this case, the matters presented at the
evidentiary hearing, and the applicable law, the Court finds that, for the reasons set forth
below, Petitioner is not entitled to the requested relief.
I.
Facts
In adjudicating Petitioner’s first direct appeal, the OCCA set forth a summary of the
facts. Pursuant to 28 U.S.C. § 2254(e)(1), “a determination of a factual issue made by a
State court shall be presumed to be correct.” Although this presumption may be rebutted,
the Court finds that Petitioner has not done so and that, in any event, the OCCA’s statement
2
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of the facts is an accurate recitation of the presented evidence. Thus, as determined by the
OCCA, the facts are as follows:
Carl and Martha “Faye” Miller lived five miles south of Cache, Oklahoma,
on State Highway 115 and Woodlawn Road. Around 4:49 a.m. on Monday,
October 12, 2009, Ms. Miller called 911 to report shots being fired from a
vehicle parked near her residence. She could only describe the vehicle as
having its lights on. Ms. Miller asked police to come quickly, saying that
“We opened the garage door, and they saw me standing there with the
telephone.” Two officers were dispatched to the scene.
A short time later, another motorist also called 911 to report an abandoned
vehicle facing east in the westbound lane of Woodlawn Road at the
intersection of Highway 115. The two deputies soon arrived and found the
reported vehicle, with no one inside. The keys were still in the vehicle’s
ignition and its cabin lights were on. After seeing loose rounds of highpowered ammunition inside, the deputies turned off their vehicle lights and
got a shotgun, an assault rifle, and night vision equipment.
As the deputies scanned the area, they received a third dispatch, to a burglary
in progress at a house just across Highway 115, a few hundred feet from the
abandoned vehicle. As they approached the house, deputies heard a struggle.
They knocked at the back door and demanded entry. Just before they broke
in, Shawn Monk unlatched and opened the door. The deputies found Shawn
Monk and [Petitioner] inside and quickly detained them.
The kitchen floor where the two men had been fighting was slick with a
mixture of blood and water, which was pouring from a broken refrigerator
line. Shawn Monk was badly injured with bleeding wounds to his head.
[Petitioner] repeatedly said “I’m sorry,” and eventually told the officers that
Monk lived at the house. The officers also saw a Winchester .30-30 rifle
lying on the kitchen floor. Monk told the deputies the rifle belonged to
[Petitioner]. Monk also told the deputies that his parents were injured and
needed help.
Shawn Monk later testified at trial that he had spent Sunday night with his
parents, Carl and Faye Miller, and slept in a guest bedroom. He awoke early
the following morning to loud noises and voices. He first thought his father
might have fallen asleep with the television on. He heard a loud, unfamiliar
voice say “Where’s the money, bitch?” A short time later, he heard a voice
say “You like my dick in your ass, don’t you?” Monk was now alarmed and
got up. The lights in the hallway were turned on. He screamed down the
hallway, “What the fuck is going on?”
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Monk then saw a stranger step into the hallway from his parents’ bedroom
and walk away from him toward the living room area. He followed the
intruder, pausing at his parents’ bedroom long enough to see his mother lying
on the bed, face down, her pants around her ankles, still breathing but
obviously injured. [Petitioner] was looking in the garage as Mr. Monk
stepped into the living room. [Petitioner] attacked him. As [Petitioner] and
Monk fought, Monk pleaded with [Petitioner] to let him get help for his
parents.
[Petitioner] eventually relented and sat down in the floor, saying “I fucked
up, I’m sorry. My friends fucked him up,” referring to Carl Miller. Shawn
Monk looked in the garage and saw his father lying on the floor, still
breathing but also obviously injured. Monk also picked up the .30-30 lever
action rifle he saw lying on the floor, determined it was unloaded, and called
911. [Petitioner] sat in the floor for a few minutes, then got up and threw a
barbell at Shawn Monk, striking the phone he was using to call 911.
[Petitioner] then wrestled the rifle from Mr. Monk and gashed his head with
several blows from the butt of the rifle. Mr. Monk was still fighting with
[Petitioner] when he opened the door and deputies entered the home.
Emergency responders transported Carl and Faye Miller to local hospitals,
where both later died of their injuries. Faye Miller suffered extensive
bruising to her face and upper body, arms, inner thighs, and legs. Blunt force
head trauma caused bleeding and bruising to her scalp, a subarachnoid
hemorrhage, and a large subdural hematoma with midline shift of the brain.
She also sustained traumatic injuries to her vagina and anus consistent with
forcible sexual assault. Carl Miller’s wounds included blunt force head
trauma with several scalp lacerations, a 7 cm. skull fracture, subarachnoid
hemorrhage, and contusion of the temporal lobe. Mr. Miller also suffered
bruising and scraping of his arms.
[Petitioner’s] father testified that [Petitioner] borrowed his .30-30
Winchester rifle and a box of ammunition and left to go hog hunting early in
the morning of October 12, 2009. He learned a few days later that
[Petitioner] had been arrested. When [Petitioner] was searched at the crime
scene, the deputies recovered Carl Miller’s wallet and a set of keys belonging
to Shawn Monk. They also recovered [Petitioner’s] sweatshirt and t-shirt in
the Millers’ bedroom. [Petitioner’s] jeans were stained with blood, which
was eventually matched to all three victims by DNA comparisons. Carl
Miller’s blood was found on [Petitioner’s] shoe.
[Petitioner] did not testify at trial. In his first written and taped statements to
police on the morning of his arrest, he claimed that a friend named D.J.
attacked the victims. Police later identified “D.J.” and confirmed his alibi
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for the morning of the crimes. In a second interview several days after the
crimes, [Petitioner] then told investigators the murders were committed by a
hitchhiker.
At trial, defense counsel acknowledged that [Petitioner] had killed the
victims, but argued that the unplanned nature of the crimes and [Petitioner’s]
intoxication created a reasonable doubt of the element of malice
aforethought.
Martinez, 371 P.3d at 1106-07.
II.
A.
Standard of Review
Exhaustion as a Preliminary Consideration
The exhaustion doctrine is a matter of comity. It requires the Court to consider in
the first instance whether the petitioner has presented his grounds for relief to the OCCA.
See Coleman v. Thompson, 501 U.S. 722, 731 (1991) (“[I]n a federal system, the States
should have the first opportunity to address and correct alleged violations of state prisoner’s
federal rights.”). The doctrine is codified in 28 U.S.C. § 2254(b)(1), which provides that,
aside from two narrow exceptions, habeas relief shall not be granted unless the remedies
available in state court have been exhausted. Habeas relief may, however, be denied
notwithstanding the failure of the petitioner to exhaust state court remedies. 28 U.S.C.
§ 2254(b)(2).
B.
Procedural Bar
In addition to the issue of exhaustion, a federal habeas court must also examine the
state court’s resolution of the presented claim. “It is well established that federal courts
will not review questions of federal law presented in a habeas petition when the state
court’s decision rests upon a state-law ground that ‘is independent of the federal question
and adequate to support the judgment.’” Cone v. Bell, 556 U.S. 449, 465 (2009) (quoting
5
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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
The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”)
circumscribes the Court’s review of claims that were adjudicated on the merits in state
court proceedings. 28 U.S.C. § 2254; see also Byrd v. Workman, 645 F.3d 1159, 1165
(10th Cir. 2011). Where the state court adjudicated a claim on the merits, this Court may
reach the merits of the claim only if the petitioner can establish that the decision was
“contrary to, or involved an unreasonable application of, clearly established Federal law,
as determined by the Supreme Court of the United States,” 28 U.S.C. § 2254(d)(1), or was
“based on an unreasonable determination of the facts in light of the evidence presented in
the State court proceeding.” Id. at § 2254(d)(2).
Clearly established federal law under § 2254(d)(1) refers to the “holdings, as
opposed to the dicta, of [the Supreme Court’s] decisions as of the time of the relevant statecourt decision.” Williams v. Taylor, 529 U.S. 362, 412 (2000). A decision is “contrary to”
clearly established federal law if the “state court arrives at a conclusion opposite to that
reached by [the Supreme Court] on a question of law or if the state court decides a case
differently than [the Supreme Court] has on a set of materially indistinguishable facts.” Id.
at 412-13. A decision is an “unreasonable application” of clearly established federal law
if “the state court identifies the correct governing legal principle from [the Supreme
Court’s] decisions but unreasonably applies that principle to the facts of the prisoner’s
6
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case.” Id. at 413.
Under § 2254(d)(2), “a state-court factual determination is not unreasonable merely
because the federal habeas court would have reached a different conclusion in the first
instance.” Wood v. Allen, 558 U.S. 290, 301 (2010). Rather, the factual determination
must be “objectively unreasonable.” Miller-El v. Cockrell, 537 U.S. 322, 340 (2003).
Further, § 2254(d)(2) only permits relief where the state court decision was “based on” the
unreasonable factual determination. Smith v. Aldridge, 904 F.3d 874, 880 (10th Cir. 2018).
In sum, the “question under AEDPA is not whether a federal court believes the state
court’s determination was incorrect but whether that determination was unreasonable – a
substantially higher threshold.” Schriro v. Landrigan, 550 U.S. 465, 473 (2007). Habeas
relief is warranted only where there is no “possibility for fairminded disagreement” with
the state court’s decision. Harrington v. Richter, 562 U.S. 86, 102-03 (2011); see also
Brumfield v. Cain, 576 U.S. 305, 314 (2015). This standard was meant to be difficult to
meet, and “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.” Harrington, 562 U.S. at 102-03 (internal quotation marks omitted). When
reviewing a claim under § 2254(d), review “is limited to the record that was before the
state court that adjudicated the claim on the merits.” Cullen v. Pinholster, 563 U.S. 170,
181 (2011).
III.
A.
Analysis
Ground One: Impermissible Influence on the Jury
Petitioner’s first ground for relief is that he was prejudiced during second-stage
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deliberations by the jury’s consideration of impermissible non-record evidence.
Specifically, Petitioner asserts the jury consulted a Bible during sentencing deliberations.
Petitioner did not present this argument in either his direct appeal or his first postconviction application. Petitioner did present the argument to the OCCA in a second postconviction application, but the OCCA concluded it was procedurally barred. Martinez,
PCD-2017-951, slip op. at 5. The Court held an evidentiary hearing to determine whether
Petitioner could establish cause and prejudice sufficient to overcome the procedural bar
such that the Court could properly consider the merits of Petitioner’s claim. [Doc. Nos. 82,
85, 89, and 90]; see Coleman, 501 U.S. at 750 (“In all cases in which a state prisoner has
defaulted his federal claims in state court pursuant to an independent and adequate state
procedural rule, federal habeas review of the claims is barred unless the prisoner can
demonstrate cause for the default and actual prejudice as a result of the alleged violation
of federal law . . . .”).
In considering the evidence presented at the hearing and in the record as a whole,
the Court is mindful that, generally on a habeas petition, the petitioner bears the burden of
proving by a preponderance of the evidence that there has been a violation of his
constitutional rights. See, e.g., Johnson v. Zerbst, 304 U.S. 458, 468-69 (1938) (applying
the preponderance of the evidence standard to constitutional claims raised on federal
habeas). Here, Petitioner’s burden included the threshold inquiry of whether there was
actually a Bible in the jury deliberation room.2 Petitioner presented some evidence
2
In his Proposed Findings of Fact and Conclusions of Law, Petitioner argues that the
impermissible extrinsic evidence was “[r]eligion and morality, God and the Bible.” [Doc.
8
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indicating there was perhaps a possibility of such an external influence, but such evidence
was controverted by other evidence indicating there was no Bible in the room.
For instance, Petitioner presented evidence from one juror who, in 2017, stated there
was a Bible in the jury deliberation room. Both in 2019 and at the hearing, however, that
same juror stated he could not remember whether there was a Bible in the room. At the
hearing, he also could not confirm that his 2017 statement was accurate. A second juror
also stated in 2017 that he recalled a Bible in the jury deliberation room, but then in 2019
stated he did not remember whether there was a Bible in the jury room. And while the
bailiff thought she might have heard a juror reading from the Bible during deliberations,
her deposition testimony made clear she thought it equally likely she was hearing someone
quote scripture from memory. Additionally, though the parties stipulated that a third juror
would testify she thinks there was a Bible in the jury room, the remainder of the jurors did
not remember a Bible, did not think there was a Bible, or definitively stated there was no
Bible.
Petitioner thus failed to establish it was more likely than not that a Bible was in the
jury deliberation room and, as such, failed to meet his burden.
Accordingly, a
determination of cause and prejudice is unnecessary and Petitioner is not entitled to relief
on Ground One.
No. 89] at 22. But the question before the Court is whether the jury improperly consulted
a Bible, see Petition at 24-31, not whether the jury discussed scripture, religion, morality,
or God.
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B.
Ground Two: Ineffective Assistance of Counsel
Petitioner raises two ineffective assistance of appellate counsel claims, both with
respect to trial counsel’s presentation of mitigation factors, and both premised on appellate
counsel’s failure to include specific trial counsel ineffectiveness claims on direct appeal.
First, Petitioner argues that appellate counsel should have challenged trial counsel’s
decision not to call or question three of Petitioner’s family members in his trial’s penalty
stage.
Second, he claims appellate counsel should have challenged trial counsel’s
mitigation investigation and presentation. The Court finds that neither claim warrants
relief.
1.
Clearly Established Law
In order to prevail on a claim of ineffective assistance of counsel, the petitioner must
show both that (1) “counsel’s performance was deficient” and that (2) “the deficient
performance prejudiced the defense.” Strickland v. Washington, 466 U.S. 668, 687 (1984).
On habeas review, courts must apply the highly deferential standards of Strickland and
AEDPA to the facts of the case and decide whether “there is any reasonable argument that
counsel satisfied Strickland’s deferential standard.” Harrington, 562 U.S. at 105. A state
court’s ruling cannot be disturbed unless the petitioner demonstrates that the state court
applied the highly deferential Strickland test in a way that every fair-minded jurist would
agree was incorrect. Id.
Regarding deficient performance, the Supreme Court has shunned “specific
guidelines” and instead held that “[t]he proper measure of attorney performance remains
simply reasonableness under prevailing professional norms.” Strickland, 466 U.S. at 688.
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Of course, whether an attorney’s conduct is reasonable will depend on the facts of the
particular case. Id. To avoid the “distorting effects of hindsight,” an attorney’s conduct
should be judged “from counsel’s perspective at the time.” Id. at 689-90. In light of the
extremely important role that mitigating evidence plays in the “just imposition of the death
penalty,” this Court is required to apply careful scrutiny when reviewing the performance
of counsel at the sentencing stage. Mayes v. Gibson, 210 F.3d 1284, 1288 (10th Cir. 2000).
But even when applying such scrutiny, review of an attorney’s performance remains a
highly deferential one, where “counsel is strongly presumed to have rendered adequate
assistance and made all significant decisions in the exercise of reasonable professional
judgment.” Strickland, 466 U.S. at 690; Mayes, 210 F.3d at 1288.
In addition to deficient performance, the petitioner must also show prejudice.
Prejudice exists where there is “a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.” Strickland,
466 U.S. at 694.
In Oklahoma, where the jury can only impose a death sentence
unanimously, the question is whether there is a reasonable probability that at least one juror
would have concluded that “‘the balance of aggravating and mitigating circumstances did
not warrant death.’” Wackerly v. Workman, 580 F.3d 1171, 1176 (10th Cir. 2009) (quoting
Strickland, 466 U.S. at 695).
2.
Analysis
a.
Failure to properly utilize family members in mitigation
i.
Deficient performance
Petitioner argues that his trial counsel performed deficiently in failing to develop
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and present testimony from his biological mother, grandfather, and uncle3 during the
penalty stage and that his appellate counsel was constitutionally ineffective in failing to
raise this issue on direct appeal. He asserts that it was unreasonable under prevailing
professional norms to not present testimony from his mother, grandfather, and uncle, whom
he describes as having “the longest and most complex relationships with [him] of any
potential witness.” Petition at 28. Addressing the merits of the claim,4 the OCCA
concluded that the “overall penalty phase defense was reasonably balanced and consistent
with prevailing professional norms.” Martinez, PCD-2013-936, slip op. at 11. This
conclusion is not an unreasonable one.
To begin with, Petitioner’s grandfather, Luis “Marty” Martinez, and mother,
Roberta Lopez, posed significant risks for the defense. For example, Marty Martinez, who
testified for the State during both stages of the trial, indicated that he was not aware of
Petitioner having a drinking problem, which directly undercut the defense’s attempt to
show that Petitioner was a chronic alcoholic. Transcript of Jury Trial (“Trial Tr.”) vol. VI
at 204-05. In discussions with the trial investigator, Marty Martinez also suggested that
Mr. Monk, one of the victims, was involved in the murders. Original App. For PostConviction Relief at Att. 4, Martinez, PCD-2013-936. These facts could very reasonably
3
Petitioner was adopted by his maternal grandparents. For ease of reference, the Court
refers to his family members by their biological relationship.
4
Petitioner argues this claim is not entitled to deference under AEDPA because “OCCA’s
cursory treatment does not constitute an adjudication.” Petition at 27. The Court disagrees.
The OCCA thoroughly analyzed Petitioner’s claim under the first prong of the Strickland
standard and denied Petitioner an evidentiary hearing, which decision was not
unreasonable.
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lead trial counsel to conclude that Marty Martinez would be more harmful than helpful as
a mitigation witness. This conclusion is bolstered by the affidavit of trial counsel’s
investigator stating that it was his understanding that the trial attorneys did not call Marty
Martinez as a mitigation witness “based on strategy.”5 Id. Testimony from Ms. Lopez
posed similar risks to the defense. While she may have been able to provide insight into
her decision to abandon Petitioner and the impact it had on him when he discovered the
truth, her history of mental instability and drug use also made her a less reliable witness.
Trial Tr. vol. XI at 35-36. Further, the value of Ms. Lopez’s testimony regarding the
Martinez household is limited given that she was not present during Petitioner’s childhood
and could therefore not testify to how he was raised. Id.
As to Petitioner’s uncle, Richard Martinez, his proposed testimony, like that of
Petitioner’s mother and grandfather, is largely cumulative of testimony provided by other
witnesses. While the original trial team contacted Richard Martinez and anticipated calling
him as witness, he was subsequently deployed to Afghanistan, where he remained
throughout the trial. Original App. For Post-Conviction Relief at Att. 5. Given the limited
benefit of his testimony and the challenges inherent in securing his testimony while
deployed, trial counsel’s decision to forego calling him as a mitigation witness was not
unreasonable.
In support of his ineffectiveness claim, Petitioner argues that the decision to not call
5
The Court disagrees with Petitioner’s claim that the OCCA mischaracterized the
investigator’s affidavit.
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these witnesses was not the result of an informed, fully investigated strategy and makes
much of the fact that multiple attorneys were assigned to the case throughout the course of
the litigation. While numerous changes in counsel is not ideal, there is no reason to think
the trial team did not review the case file or memoranda that were prepared for prior
counsel. The mere fact that the trial team did not consist of the same attorneys as were
originally assigned is not enough to show Petitioner received ineffective assistance of
counsel.
An attorney “does not act unreasonably in failing to call every conceivable witness
that might testify on a defendant’s behalf.” Hooks v. Workman, 689 F.3d 1148, 1190 (10th
Cir. 2012). Here, counsel’s investigator interviewed Marty Martinez and Roberta Lopez,
and was aware of Richard Martinez, but counsel elected not to call them as witnesses during
the penalty phase of the trial. Given that trial counsel could have legitimately viewed
testimony from these witnesses as duplicative, unhelpful, or fraught with risk, the decision
not to call these witnesses was not unreasonable. Accordingly, it was not unreasonable for
the OCCA to conclude under the first prong of the Strickland standard that Petitioner’s
counsel was not deficient.
ii.
Prejudice
As Petitioner is unable to establish the first prong of the Strickland standard, it is
unnecessary to consider the second prong. See Strickland, 466 U.S. at 687 (“Unless a
defendant makes both showings, it cannot be said that the conviction or death sentence
resulted from a breakdown in the adversary process that renders the result unreliable.”).
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But even if the Court were to examine this prong de novo,6 and assuming that trial
counsel did act unreasonably by not calling these witnesses, there is no reasonable
probability that the jury would have opted for a life sentence over death if the witnesses
had testified. The vast majority of the information these witnesses would have provided
was already presented to the jury via other witnesses. See Strickland, 466 U.S. at 699-700
(noting lack of prejudice where omitted evidence “would barely have altered the sentencing
profile presented to the sentencing judge”); Pinholster, 563 U.S. at 200 (noting lack of
prejudice where “‘new’ evidence largely duplicated the mitigation evidence at trial”);
Matthews v. Workman, 577 F.3d 1175, 1192-93 (10th Cir. 2009) (finding lack of prejudice
where witnesses’ testimony “would have been largely cumulative of evidence the jury did
hear”).
During the penalty phase, the State focused on the heinous nature of the crimes and
presented a strong aggravating case. In response, Petitioner called a mitigation expert and
six lay witnesses, including family members. Trial Tr. vol. XI at 14-117. The jury heard
detailed testimony about Petitioner’s mental health, social history, family dynamics,
exposure to sexual abuse, good conduct while incarcerated, and positive attributes. Id.
Petitioner argues that his mitigation defense was prejudiced because the three witnesses he
identifies could have provided additional testimony regarding Ms. Lopez’s decision to
6
Because the OCCA found Petitioner’s counsel’s representation to be adequate and, thus,
did not reach the issue of prejudice, AEDPA’s deferential standards would not apply and
the Court would review this element of the claim de novo. See Rompilla v. Beard, 545
U.S. 374, 390 (2005).
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abandon her son, the effect this secret had on Petitioner, what it was like raising Petitioner,
and Petitioner’s lifelong struggle with depression and alcoholism. But the jury heard
specific testimony about all these topics through expert and lay witnesses. Trial Tr. vol.
XI at 24-42, 97-109. There is no indication that the witnesses Petitioner identifies could
have given details that would have added significant persuasive value to the mitigation
evidence, particularly given that Ms. Lopez and Richard Martinez were not consistently
present during Petitioner’s upbringing. At best, Petitioner can only argue that direct
testimony from these witnesses would be more persuasive than hearing the facts from the
mitigation expert or other sources. That speculative proposition is not sufficient to show
prejudice.
iii.
Conclusion
The OCCA’s finding that trial counsel was not constitutionally ineffective and that
appellate counsel was not constitutionally ineffective for omitting the trial counsel claim
was reasonable. Petitioner is not entitled to relief regarding counsel’s failure to further
develop this evidence or call these witnesses during sentencing.
b.
Failure to adequately investigate background and present a
more thorough mitigation case.
Petitioner’s second appellate ineffectiveness claim includes arguments relating to
trial counsel’s failure to adequately investigate and prepare a reasonable mitigation
strategy, as well as appellate counsel’s and post-conviction counsel’s failures to challenge
trial counsel’s investigation, overall presentation of the mitigation case, and use of the
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mitigation expert.7 Petitioner did not raise this claim in state court until the second
application for post-conviction relief. The OCCA applied Oklahoma’s procedural bar to
the portions of the claim related to trial counsel and direct appeal counsel, finding they
could have been raised in prior proceedings. Martinez, PCD-2017-951, slip op. at 5.
Respondent argues that this claim is procedurally barred. Petitioner offers no response to
this argument nor does he allege any cause for excusing the bar. The Court will therefore
enforce Oklahoma’s procedural bar as to the portions of the claim that the OCCA found to
be procedurally barred. See Coleman, 501 U.S. at 750.
The OCCA did not apply a procedural bar to the portion of Petitioner’s claim related
to his original post-conviction counsel, but instead addressed the merits of Petitioner’s
statutory right to post-conviction counsel. Martinez, PCD-2017-951, slip op. at 6 & n.2
(citing Okla. Stat. tit. 22, § 1089(B)).8 Petitioner, however, has “no constitutional right to
an attorney in state post-conviction proceedings,” and therefore “cannot claim
constitutionally ineffective assistance of counsel in such proceedings.” Coleman, 501 U.S.
at 752.
As such, Petitioner’s argument before this Court asserting constitutionally
7
This claim encompasses many different arguments related to trial counsel’s failures during
the sentencing phase. None of these arguments were raised in the state court until
Petitioner’s second post-conviction application. Additionally, Petitioner does not develop
specific arguments as to ineffective assistance of his post-conviction counsel, but because
the caption for this section of his brief references “Post-Conviction Counsel,” the Court
addresses Petitioner’s arguments about “appellate counsel” as including both direct appeal
and post-conviction counsel. See Petition at 33, 46.
8
Addressing the merits of Petitioner’s statutory claim, the OCCA determined Petitioner
had shown neither deficient performance nor prejudice. Martinez, PCD-2017-951, slip op.
at 7.
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ineffective assistance of post-conviction counsel lacks merit.
3.
Conclusion
The OCCA’s decision regarding Petitioner’s first claim of ineffective assistance of
counsel was reasonable, and Petitioner’s second claim of ineffective assistance is either
procedurally barred or without merit. Accordingly, Petitioner is not entitled to relief on
Ground Two.
C.
Ground Three: Prosecutorial Misconduct
In his third ground for relief, Petitioner argues that he was deprived a fair sentencing
proceeding as a result of a comment made by the prosecutor during the final penalty stage
closing argument. During the penalty stage, Petitioner called his two sons to testify on his
behalf and defense counsel highlighted their testimony in his closing argument. During his
rebuttal closing argument, the Prosecutor made the following remarks:
Putting those children on the stand yesterday, what a situation to put those
children into. Why would you do that? Well, you know why you would do
that, to play on your emotions.
Trial Tr. vol. XII at 16.
Petitioner challenged this comment on direct appeal, arguing that it improperly
denigrated defense counsel and invited the jury to punish Petitioner for presenting his
children as witnesses. The OCCA denied relief, finding that the prosecutor’s comments
“urged the jury to avoid a purely emotional reaction to the mitigation evidence, and did not
exceed the bounds of proper argument.” Martinez, 371 P.3d at 1114. Applying AEDPA’s
deferential standard, the Court concludes that the OCCA’s decision was not unreasonable.
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1.
Clearly Established Law
Prosecutors can litigate with earnestness and vigor and are allowed to strike hard
blows. Berger v. United States, 295 U.S. 78, 88 (1935). But prosecutors may not strike
foul blows. Id. The line between hard and foul is an uncertain one, and even the Supreme
Court has admitted that “there is often a gray zone.” United States v. Young, 470 U.S. 1, 7
(1985). To resolve prosecutorial misconduct claims, courts must first determine whether
misconduct even occurred.
If a prosecutor engaged in misconduct that deprived the petitioner of a specific
constitutional right, habeas relief is only warranted if the error had a substantial and
injurious effect in determining the jury’s verdict. Matthews, 577 F.3d at 1186 (citing Fry
v. Pliler, 551 U.S. 112, 121 (2007)). Alternatively, if the misconduct does not implicate a
specific constitutional right, it ordinarily warrants relief only when the misconduct “‘so
infected the trial with unfairness as to make the resulting conviction a denial of due
process.’” Le v. Mullin, 311 F.3d 1002, 1013 (10th Cir. 2002) (quoting Donnelly v.
DeChristoforo, 416 U.S. 637, 643, 645 (1974)). This analysis considers the trial as a
whole, and factors in the strength of the evidence, cautionary steps to counteract improper
remarks, and defense counsel’s failure to object.
Id.
“[I]t is not enough that the
prosecutors’ remarks were undesirable or even universally condemned.” Darden v.
Wainwright, 477 U.S. 168, 181 (1986) (internal quotation marks omitted). Rather, the
question is whether the petitioner was deprived of a fair trial or sentencing. Id.
2.
Analysis
The specific statement Petitioner complains of came in the context of the prosecutor
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arguing that the heinous nature of the crimes should carry more weight than any sympathy
the jurors may have for the victims or their family members:
I’d also like to remind you that Carl Miller is a father. He’s a dad, he’s a
daddy. Faye Miller, she’s a mother, grandmother, grandfather [sic]. Putting
those children on the stand yesterday, what a situation to put those children
into. Why would you do that? Well, you know why you would do that, to
play on your emotions. I don’t want you to feel sorry for Carl, Faye. This
ain’t a place to feel sorry for them. This is where justice happens. This is
about justice. It’s about crimes, ugly crimes, ugly horrible, terrible crimes
cause by this man.
Trial Tr. vol. XII at 16.
So long as the jury is properly instructed, a prosecutor is free to comment on the
weight the jury should accord to mitigating evidence. Bland v. Sirmons, 459 F.3d 999,
1026 (10th Cir. 2006). Here, read in context, the prosecutor’s comments can reasonably
be interpreted as asking the jury to accord less weight to the emotional testimony heard
during the penalty stage and more weight to the other evidence presented. Contrary to
Petitioner’s characterization, the prosecutor’s comment did not improperly attack
Petitioner or defense counsel, but instead asked the jury to not be swayed by sympathy for
the victims, their families, or Petitioner’s children. Given that “[i]t is of vital importance .
. . that any decision to impose the death sentence be, and appear to be, based on reason
rather than caprice or emotion,” Gardner v. Florida, 430 U.S. 349, 358 (1977), a
prosecutor’s argument seeking to downplay emotional mitigation evidence is not improper,
and certainly not enough to render the sentencing fundamentally unfair.
Further, “when a prosecutor is responding to defense counsel’s argument, courts
‘must also take into account defense counsel’s opening salvo.’” Matthews, 577 F.3d at
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1189 (quoting Young, 470 U.S. at 12). The statement Petitioner objects to was made
immediately after defense counsel’s closing argument, which highlighted the testimony of
Petitioner’s children. Trial Tr. vol. XII at 14-15. Given that context, the OCCA was
reasonable to conclude the remark was proper.
In addition to claiming a general due process violation, Petitioner also argues that
the prosecutor’s comment deprived him of a specific constitutional right by infringing his
right to present mitigating evidence. But the prosecutor did not prevent any mitigating
evidence from being presented or considered by the jury. Instead, as previously noted, the
prosecutor merely attempted to minimize the weight to be accorded to the emotional
evidence presented by Petitioner’s sons.
See Bland, 459 F.3d at 1026 (rejecting
prosecutorial misconduct claim because “[t]he prosecutors, while critical of [the
petitioner’s] mitigating evidence, never told the jury it could not consider [the petitioner’s]
mitigating evidence”). Unlike the cases relied on by Petitioner, the jury in this case was
able to hear the evidence and was not instructed to disregard it. Thus, there is no basis to
conclude that Petitioner’s right to present mitigating evidence or have it considered by the
jury was infringed.
3.
Conclusion
The OCCA’s conclusion regarding the prosecutor’s comment was not unreasonable.
Accordingly, Petitioner is not entitled to relief on Ground Three.
D.
Ground Four: Inflammatory Witness Testimony
Petitioner’s fourth ground asserts that the introduction of an irrelevant and
inflammatory racial epithet during the penalty stage deprived him of a fair and reliable
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sentencing in violation of the Eighth and Fourteenth Amendments. This ground is based
on the testimony of his former girlfriend, Mary Carothers, who testified for the prosecution
during the penalty phase. See Trial Tr. vol. X at 44-55. Prior to her testimony, defense
counsel warned the prosecutor that Ms. Carothers hated Petitioner and could be an
unpredictable witness. Id. at 88-89. The prosecution opted to call her anyway, presumably
to provide evidence in support of the continuing threat aggravator. Ms. Carothers testified
that Petitioner had been violent with her during their relationship, id. at 49, and described
a fight Petitioner engaged in with two men in a parking lot. Id. at 51-53. Ms. Carothers
testified that when she asked Petitioner why he was fighting with the men, he responded
“[t]hose two n*****s said they were going to rape you.” Id. at 53.
Petitioner immediately moved for a mistrial after this comment. Id. at 53. During
their argument at the bench, the prosecutor disclaimed any knowledge that Ms. Carothers
was going to use the racial slur. Id. at 54. Defense counsel agreed that he did not believe
the prosecutor knew what Ms. Carothers was going to say. Id. at 88-89. The trial court
overruled the motion for mistrial and instructed the jury to disregard the statement. Id. at
54.
On direct appeal, Petitioner argued that Ms. Carothers’ statement violated his First,
Eighth, and Fourteenth Amendment rights.
The OCCA denied relief, finding that
Petitioner’s First Amendment rights were not violated and that “the evidentiary error, if
any, was cured by the trial court’s instruction.” Martinez, 371 P.3d at 1115. Petitioner
now argues that the prosecutor, the trial court, and the OCCA violated his Eighth and
Fourteenth Amendment rights to due process and a fair sentencing by allowing the
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introduction of the inflammatory racial epithet.
Initially, the parties dispute whether AEDPA deference applies to this claim.
Petitioner argues that the OCCA did not adjudicate his Eighth Amendment claim because
the opinion does not mention the Eighth Amendment or cite to any cases discussing the
need for heightened reliability in capital sentencing. Respondent counters that Petitioner’s
limited argument on this issue did not merit extensive discussion by the appellate court and
that the claim was not overlooked because the OCCA expressly recognized the claim at the
beginning of its discussion.
“[W]hen a federal claim has been presented to a state court and the state court has
denied relief, it may be presumed that the state court adjudicated the claim on the merits.”
Johnson v. Williams, 568 U.S. 289, 298 (2013) (internal quotation marks omitted). This
presumption is a strong one that “may be rebutted only in unusual circumstances.” Id. at
302. Further, the presumption applies even where “a state-court opinion addresses some
but not all of defendant’s claims,” id. at 298, or where the state court “fails either to mention
the federal basis for the claim or cite any state or federal law in support of its conclusion.”
Gipson v. Jordan, 376 F.3d 1193, 1196 (10th Cir. 2004).
Petitioner cannot overcome the strong presumption that the OCCA adjudicated his
Eighth Amendment claim on the merits. At the beginning of its discussion, the OCCA
specifically recognized the basis for the Eighth Amendment claim when it summarized
Petitioner’s argument as including an assertion that he was denied a fair sentencing
proceeding. Martinez, 371 P.3d at 1114. Thus, it does not appear that the claim was
“rejected as a result of sheer inadvertence.” Johnson, 568 U.S. at 302-03. The more
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plausible explanation is that, having rejected Petitioner’s other arguments and concluded
that any evidentiary error was cured, the OCCA “simply regard[ed] [the Eighth
Amendment claim] as too insubstantial to merit discussion.” Id. at 299. As the claims
asserted in Petitioner’s fourth ground for relief were adjudicated on the merits, the OCCA’s
decision is entitled to deference under AEDPA. However, this issue is largely an academic
one, because even under de novo review, Petitioner is not entitled to relief on Ground Four.
1.
Clearly Established Law
Petitioner argues that his Eighth Amendment right to a fair sentencing proceeding
and his Fourteenth Amendment right to due process were violated by the introduction of
Ms. Carothers’ testimony during the penalty phase. Petitioner briefly cites to Caldwell v.
Mississippi, 472 U.S. 320 (1985), and Woodson v. North Carolina, 428 U.S. 280 (1976),
for the general proposition that the Eighth and Fourteenth Amendments demand a higher
degree of reliability in capital cases. Caldwell involved a prosecutor’s remarks and held
that the jury must not be misled regarding its role in the sentencing decision. 472 U.S. at
328-29. Woodson struck down a state’s mandatory death penalty scheme. 428 U.S. at 301.
Neither of these cases resemble the issue here – the introduction of inflammatory evidence
– and Petitioner does not explain how any clearly established Supreme Court precedent
supports finding an Eighth Amendment violation based on a witness’ inflammatory
remark, other than generally arguing that he was denied a fair sentencing proceeding.
Ordinarily, claims regarding prejudicial evidence arise under the Due Process
Clause. In Darden v. Wainwright, 477 U.S. 168, the petitioner claimed that portions of the
prosecutor’s closing argument “rendered his conviction fundamentally unfair and deprived
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the sentencing determination of the reliability that the Eighth Amendment requires.” Id. at
178-79. After placing the remarks in context, the Supreme Court explained that the
appropriate standard of review for the claim was “the narrow one of due process” and
proceeded to analyze whether the remarks rendered the trial “fundamentally unfair.” Id. at
181, 183 (internal quotation marks omitted);9 see also Payne v. Tennessee, 501 U.S. 808,
825 (1991) (“In the event that evidence is introduced that is so unduly prejudicial that it
renders the trial fundamentally unfair, the Due Process Clause of the Fourteenth
Amendment provides a mechanism for relief.”).
Accordingly, this Court must determine whether Ms. Carothers’ testimony rendered
the sentencing proceeding fundamentally unfair. Petitioner argues that in making this
determination, the Court must find unfairness because “‘the probative value of the
challenged evidence is greatly outweighed by the prejudice flowing from its admission.’”
Welch v. Sirmons, 451 F.3d 675, 688 (10th Cir. 2006), overruled on other grounds by
Wilson v. Workman, 577 F.3d 128 (10th Cir. 2009), (quoting Knighton v. Mullin, 293 F.3d
1165, 1171 (10th Cir. 2002) (alterations incorporated)). But the cases Petitioner relies on
for that specific proposition concern the admission of prior crimes or wrongs, see Welch,
9
The Supreme Court also specifically rejected the petitioner’s claim that the prosecutor’s
comments violated the Eighth Amendment’s requirement of reliability in the sentencing
process that was articulated in Caldwell. Darden, 477 U.S. at 183 n.15. The Court
explained that Caldwell is only relevant to comments “that mislead the jury as to its role in
the sentencing process in a way that allows the jury to feel less responsible than it should
for the sentencing decision.” Id. The interjection of a racial slur by a lay witness is not the
type of comment that would mislead the jury regarding its role in the sentencing process.
Therefore, Petitioner’s reliance on Caldwell is misplaced.
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451 F.3d at 687-88, Knighton, 293 F.3d at 1171, or improper statements by the prosecutor,
see Fero v. Kerby, 39 F.3d 1462, 1474 (10th Cir. 1994) (citing Hopkinson v. Shillinger,
866 F.2d 1185, 1210 (10th Cir. 1989)). Here, the claim is not based on the allegedly
erroneous admission of evidence of a prior crime or an alleged improper remark by the
prosecutor. Instead, the claim turns on an inflammatory remark made by a lay witness that
arose in the context of probative testimony on a disputed issue. Thus, the relevant inquiry
is simply whether the witness remark was “so prejudicial in the context of the proceedings
as a whole that [the petitioner] was deprived of the fundamental fairness essential to the
concept of due process.” Nichols v. Sullivan, 867 F.2d 1250, 1253 (10th Cir. 1989). The
introduction of evidence that “may have been irrelevant as a matter of state law . . . does
not render its admission federal constitutional error.” Romano v. Oklahoma, 512 U.S. 1,
10 (1994). Inflammatory or prejudicial remarks by witnesses generally do not violate due
process if the comments are unsolicited and the trial judge instructs the jury to disregard
the remarks. See Nichols, 867 F.2d at 1253-54; Scrivner v. Tansy, 68 F.3d 1234, 1240
(10th Cir. 1995); Fero, 39 F.3d at 1474-75.
2.
Analysis
Ms. Carothers’ testimony, where she attributed a racial slur to Petitioner, did not
render the sentencing fundamentally unfair or unreliable. First, while the prosecutor was
warned that Ms. Carothers may be a problematic witness, the remark was neither solicited
nor expected. The prosecutor denied knowing that Ms. Carothers would use a racial epithet
and both defense counsel and the trial judge agreed that the prosecutor did not anticipate
that specific testimony. Trial Tr. vol. X at 88. Further, there is nothing suspect about the
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prosecutor’s line of questioning with Ms. Carothers, where he appears to simply be trying
to elicit details regarding the altercation, including the age of the people involved, whether
Petitioner had been using alcohol, and the length of the fight. Id. at 51-53.
Second, the trial judge immediately instructed the jury to disregard Ms. Carothers’
remark. See Nichols, 867 F.2d at 1254 (finding cautionary instruction following prejudicial
witness remark “would have cured any possible prejudice complained of here”). Jurors are
presumed to follow the court’s instructions, Taylor v. Workman, 554 F.3d 879, 893 (10th
Cir. 2009), and Petitioner does not offer any evidence to overcome this presumption. On
the contrary, the jury’s rejection of the continuing threat aggravator, the only aggravator
that Ms. Carothers’ testimony was relevant to, suggests that the jury heeded the court’s
instruction and dispassionately weighed the evidence.
3.
Conclusion
To be sure, the racial epithet itself lacked probative value and was prejudicial. But
the fact that the remarks were inflammatory does not in and of itself create a constitutional
violation. See Payne, 501 U.S. at 831 (O’Connor, J., concurring) (recognizing that when
inflammatory evidence is improperly admitted, the courts must determine whether the error
caused prejudice). The remark was unexpected, brief, and the jury was immediately
instructed to disregard it. In the context of the entire proceeding, the Court is not persuaded
that the testimony complained of was so prejudicial that it denied Petitioner a fair
sentencing. Petitioner is not entitled to relief on Ground Four.
E.
Ground Five: Prejudicial Photographs
In Ground Five, Petitioner claims that six photographs of the victims’ injuries were
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unduly prejudicial and their admission at trial violated his due process rights.10 The
photographs depict the injuries to Mr. Monk and post-mortem images of the injuries to Mr.
Miller’s head, Ms. Miller’s face, and Ms. Miller’s genitals. Petitioner asserts that these
photographs were cumulative to other evidence admitted during the first stage and
needlessly gruesome. He further asserts that the photographs introduced during the second
stage were irrelevant to the heinous, atrocious, and cruel aggravator and that any probative
value was substantially outweighed by their prejudicial effect.
Petitioner objected to the photographs at trial and challenged their admission on
direct appeal on the grounds that they were cumulative and unduly prejudicial in violation
of his due process rights. The OCCA rejected the claim, finding that the photographs were
“probative of the disputed issue of Appellant’s intent to kill the victims, corroborative of
other lay and expert testimony, and germane to the issues of guilt and punishment.”
Martinez, 371 P.3d at 1113. Mindful of AEDPA’s constraints, the Court finds that the
OCCA’s decision was not contrary to or an unreasonable application of clearly established
federal law.
1.
Procedural Bar
Before bringing a habeas action, petitioners must exhaust their claims by “fairly
presenting” them in state court. Picard v. Connor, 404 U.S. 270, 275 (1971); 28 U.S.C.
§ 2254(b)(1)(A).
The petitioner need not provide “‘book and verse on the federal
10
Petitioner also claims the admission of the photographs violated his Eighth Amendment
right to a reliable sentencing, but generally frames his claim as a due process violation. In
any event, as discussed in section D, the Fourteenth Amendment’s Due Process clause
provides the appropriate standard.
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constitution,’” but he must go beyond simply presenting the facts supporting the federal
claim or articulating a “‘somewhat similar state-law claim.’” Bland, 459 F.3d at 1011
(quoting Picard, 404 U.S. at 278 and Anderson v. Harless, 459 U.S. 4, 6 (1982)). Instead,
to satisfy exhaustion, the substance of the federal claim must have been raised in state
court. Id. Generally, federal courts will dismiss unexhausted claims without prejudice and
allow the petitioner to raise the claim in state court. Id. at 1012. But when the state court
would find the claim procedurally barred under an independent and adequate procedural
rule, “there is a procedural default for purposes of federal habeas review.” Id. (internal
quotation marks omitted). Oklahoma defendants cannot apply for post-conviction relief
on issues that could have been raised “previously in a timely original application or in a
previously considered application . . . .” Okla. Stat. tit. 22, § 1089(D)(8)(a).
In addition to arguing that the photographs were cumulative and unduly prejudicial,
Petitioner now claims that they allowed the jury to impermissibly infer that the heinous,
atrocious, or cruel aggravator was met, even though there was no evidence that the injuries
were the result of conscious physical suffering.11 But this particular argument was never
11
Petitioner would not be entitled to relief even if the court considered the merits of this
particular claim. Petitioner’s argument is based on Spears v. Mullin, 343 F.3d 1215, 122630 (10th Cir. 2003). In Spears, the Tenth Circuit ruled that the admission of six gruesome
photographs of the victim’s injuries rendered the sentencing fundamentally unfair because
the photographs were not probative of conscious physical suffering given the
uncontradicted evidence that the victim died or lost consciousness early on in the attack.
Here, unlike Spears, there was evidence to support a finding that the victims’ injuries were
sustained while the victims were conscious. See Martinez, 371 P.3d at 1116-17.
Additionally, with the exception of Exhibit 93, all of the photographs were admitted during
the first stage. They were not, as was the case in Spears, deliberately held back until the
second stage for their “shock value” or offered solely for the purpose of showing conscious
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presented to the OCCA.
On direct appeal, Petitioner argued only that the photographs were cumulative and
that their probative value was outweighed by their prejudicial effect. Appellant’s Br. at
25-32, Martinez v. State, D-2013-673 (Okla. Crim. App. Aug 5, 2014). Petitioner did not
argue that the photographs were improperly admitted to prove conscious physical
suffering. In fact, in his direct appeal brief, he concedes that Exhibit 93 “was relevant to
the especially heinous, atrocious or cruel aggravating circumstance . . . .” Id. at 30.
“Because presentation of a ‘somewhat similar’ claim is insufficient to ‘fairly present’ a
federal claim before the state courts,” Petitioner has failed to exhaust this particular claim.
Bland, 459 F.3d at 1012.
Petitioner could have raised his claim regarding the photographs’ relevance in
proving conscious physical suffering on direct appeal, but failed to do so. He also provides
no response to Respondent’s argument that this claim is unexhausted and procedurally
barred. Pursuant to Okla. Stat. tit. 22, § 1089(D)(8), Oklahoma law would bar this claim.
Accordingly, the Court will consider this particular claim barred for purposes of federal
habeas review. Plaintiff’s remaining claim – that the photographs were cumulative and
unduly prejudicial in violation of due process – was raised in state court and has been
exhausted.
2.
Clearly Established Law
Federal habeas review is limited to correcting violations of constitutional rights; it
physical suffering. Spears, 343 F.3d at 1228. Further, the photographs themselves are not
so shocking or gruesome that their probative value is outweighed by their prejudicial effect.
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is not available to correct state law evidentiary errors. Thornburg v. Mullin, 422 F.3d 1113,
1128-29 (10th Cir. 2005). In evaluating the admission of evidence, the relevant question
is whether the evidence so infected the trial with unfairness as to render the resulting
conviction or death sentence a denial of due process. Romano, 512 U.S. at 12; see also
Payne, 501 U.S. at 825; Donnelly, 416 U.S. at 643. This “‘fundamental-fairness analysis
is not subject to clearly definable legal elements,’” and courts must therefore “‘tread
gingerly and exercise considerable self-restraint’” when engaged in this review. Spears,
343 F.3d at 1226 (quoting Duckett v. Mullin, 306 F.3d 982, 999 (10th Cir. 2002)). Only a
narrow category of infractions will violate fundamental fairness. Bullock v. Carver, 297
F.3d 1036, 1055 (10th Cir. 2002).
3.
Analysis
The OCCA did not act contrary to or unreasonably apply clearly established federal
law when it concluded that the admission of the photographs was proper. All of the
photographs depict injuries inflicted on the victims, and while the wounds are extensive
and the images graphic, none are so shocking, gruesome, or grossly prejudicial as to infect
the proceedings with unfairness.
In Thornburg v. Mullin, 422 F.3d at 1128-29, the petitioner argued that the
admission of six photographs showing the charred remains of the victims’ bodies as they
were found deprived him of his due process rights. The Tenth Circuit found that the
OCCA’s rejection of the claim was reasonable and acknowledged the probative value of
the images:
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[The petitioner] pleaded not guilty. Even if he did not dispute the manner of
death, the state still bore the burden to convince the jury that its witnesses,
both eyewitnesses and experts, provided an accurate account of events. The
photographs corroborated their accounts.
Id. at 1129. Similarly, here, the photographs had probative value as they corroborated the
lay and expert testimony regarding the nature and extent of the injuries. The photographs
were also probative of Petitioner’s intent to kill. See Willingham v. Mullin, 296 F.3d 917,
928 (10th Cir. 2002) (finding that twenty-two photographs of victim’s body were properly
admitted for their relevance to critical element of intent to kill).
Petitioner complains that these photographs were unfairly prejudicial because they
were cumulative to other evidence and “gratuitously gruesome.” Petition at 75. The Court
disagrees. First, the photographs were not needlessly cumulative. Although the medical
examiner testified about and diagrammed the injuries, the photographs depict the actual
injuries and helped the jury understand the nature and extent of the wounds. See Cole v.
Trammell, 755 F.3d 1142, 1165 (10th Cir. 2014) (finding autopsy photographs were
relevant for purposes of aiding the jury in understanding the medical examiner’s
testimony).
Second, while the photographs may be disturbing, they are not so gruesome as to
outweigh the probative value of the evidence or render the proceedings unfair. Exhibit 6
depicts blood covering Mr. Monk’s face. The photograph shows Mr. Monk as the police
found him and was admitted along with other photographs depicting the injuries without
the blood. Exhibits 84, 85, 86, and 89 are post-mortem photographs of the injuries to Mr.
Miller’s head and Ms. Miller’s face. They show bruising, some medical tape and tubes,
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and wounds that have been closed with staples. Exhibit 93, which was admitted during the
penalty stage, depicts the injuries to Ms. Miller’s vagina. While it is true that the images
are graphic and the injuries are extensive, none of these photographs are gratuitously
gruesome, particularly in light of their probative value. At the very least, the OCCA’s
conclusion in that regard is not unreasonable. See, e.g., Smallwood v. Gibson, 191 F.3d
1257, 1274-75 (10th Cir. 1999) (upholding four photographs of victim’s charred corpse
given the “probative nature of the photographs, the gruesome character of the crime itself,
and the wealth of additional evidence supporting defendant’s convictions”).
4.
Conclusion
The OCCA’s rejection of Petitioner’s arguments regarding the admission of
Exhibits 6, 84, 85, 86, 89, and 93 is not contrary to or an unreasonable application of clearly
established federal law. The photographs were probative of issues in the case, assisted the
jury in understanding lay and expert testimony, and were not so gruesome as to be unduly
prejudicial. Their admission did not so infect the proceedings with unfairness as to render
the conviction or imposition of the death penalty a denial of due process. Petitioner is not
entitled to relief on Ground Five.
F.
Ground Six: Failure to Perform Timely Blood Draw
Petitioner’s sixth ground for relief challenges the OCCA’s finding that the police’s
failure to collect an earlier blood draw and the prosecution’s use of the negative results did
not violate due process. After Petitioner was taken into custody by law enforcement,
several officers observed signs that he had been consuming alcohol. Petitioner also made
references to drinking while he was being questioned by investigators. Around 10:27 a.m.,
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approximately five hours after the murders, investigators asked Petitioner to submit to a
blood draw. See Trial Tr. State’s Ex. 38. Petitioner refused. Id. The police then obtained
a warrant for the blood draw, which was executed at approximately 6:35 p.m. Criminal
Appeal Original Record vol. 1 at 8-10; Trial Tr. vol. VII at 73-74; Trial Tr. State’s Ex. 70C.
The results of the blood test were negative. The State introduced the test results during the
guilt stage of the trial. Trial Tr. vol. VII at 92.
On direct appeal, Petitioner argued that his due process rights were violated because
(1) the police’s failure to collect an earlier blood sample deprived him of exculpatory
evidence of voluntary intoxication and (2) the State’s use of the negative test results was
highly misleading and prejudicial. The OCCA denied relief on both claims. Martinez, 371
P.3d at 1110, 1111. The Court finds that the OCCA’s decision was reasonable.
1.
Clearly Established Law
The Due Process clause imposes a limited duty on the police to preserve exculpatory
evidence. California v. Trombetta, 467 U.S. 479, 488 (1984). Whether the evidence must
be preserved depends on the nature of the evidence. If the evidence has “an exculpatory
value that was apparent before [it] was destroyed,” the Due Process Clause offers relief.
Trombetta, 467 U.S. at 489. However, if the evidence is only “potentially useful,” a
defendant must prove that the police acted in bad faith by destroying the evidence. Arizona
v. Youngblood, 488 U.S. 51, 58 (1988)
As for whether the admission of negative test results was so prejudicial as to violate
due process, the Court relies on the fundamental fairness analysis set out in section E(2).
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2.
Analysis
AEDPA “‘requires federal habeas courts to deny relief that is contingent upon a rule
of law not clearly established at the time the state court conviction became final.’” House
v. Hatch, 527 F.3d 1010, 1015 (10th Cir. 2008) (quoting Williams, 529 U.S. at 380).
Clearly established law refers to Supreme Court holdings, which “must be construed
narrowly and consist only of something akin to on-point holdings.” Id. A law is not clearly
established if it “‘imposes a new obligation on the States or the Federal Government.’” Id.
(quoting Williams, 529 U.S. at 381).
Here, the bulk of Petitioner’s claim is contingent upon a finding that the Due Process
clause required the police to collect certain evidence from Petitioner in a more timely
manner. But that rule is far from clearly established by Supreme Court precedent. In
Trombetta and Youngblood, the Supreme Court addressed the police’s failure to preserve
samples taken from the defendant, but it has never found that the Due Process clause
requires the police to collect evidence in a particular way or perform specific investigatory
functions. If anything, the Supreme Court has rejected that approach. See Youngblood,
488 U.S. at 58-59 (strongly disagreeing “that the Due Process Clause is violated when the
police fail to use a particular investigatory tool” and noting that “the police do not have a
constitutional duty to perform any particular tests”). Because Supreme Court precedent
must be construed narrowly under AEDPA, Petitioner is not able to show the OCCA’s
decision is contrary to or an unreasonable application of any clearly established federal
law. The absence of clearly established federal law is dispositive of this facet of his claim.
See House, 527 F.3d at 1018. However, even if the standards for preserving evidence
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articulated in Trombetta and Youngblood did control, Petitioner’s claim would still fail.
Petitioner makes several arguments in an attempt to overcome AEDPA’s obstacles
to relief. First, Petitioner argues that the OCCA’s decision is contrary to Trombetta
because the evidence was more than potentially exculpatory and, therefore, he was not
required to show bad faith. The OCCA recited the rule from Trombetta, but utilized
Youngblood’s bad faith standard because the evidence was only potentially useful. That
decision is neither contrary to Trombetta nor unreasonable.12
Trombetta applies when the government destroys evidence whose exculpatory value
is “apparent” before destruction. Trombetta, 467 U.S. at 489. Evidence that “might
conceivably” assist the defendant, id., or that “might have exonerated the defendant,”
Youngblood, 488 U.S. at 57, does not have apparent exculpatory value. See also United
States v. Bohl, 25 F.3d 904, 910 (10th Cir. 1994) (finding that potential results from further
tests were not apparently exculpatory under Trombetta because it was not apparent what
the tests would reveal). While an earlier blood draw from Petitioner might have bolstered
a voluntary intoxication defense by showing a high level of intoxication, it was just as
likely that it would show a level of intoxication that was lower than the defense would have
expected. This is particularly true given the conflicting evidence regarding Petitioner’s
level of intoxication while he was in policy custody.13 Further, the availability of a
12
The Court disagrees with Respondent’s argument that Petitioner’s claim based on
Trombetta is unexhausted.
13
For example, while police officers noted that Petitioner smelled of alcohol or had slurred
speech, they also observed that he had control over his motor skills, was able to compose
a legible written statement, and appeared to understand his Miranda rights. Trial Tr. vol.
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voluntary intoxication defense depends on the defendant’s ability to form a specific
criminal intent, not on whether he exceeded a particular blood alcohol level. Thus, while
a blood test may help to establish the defense, it is not inherently exonerative. Because
Petitioner “can only speculate about the potentially exculpatory nature” of the test results,
the evidence is only potentially useful. Bullock, 297 F.3d at 1056. The OCCA’s decision
is not unreasonable or contrary to Trombetta.
In his second attempt to overcome AEDPA’s obstacles, Petitioner argues that if
Youngblood’s bad faith standard controls, it was unreasonably applied by the OCCA. He
claims that the OCCA ignored Youngblood’s instruction that “[t]he presence or absence of
bad faith by the police for purposes of the Due Process Clause must necessarily turn on the
police’s knowledge of the exculpatory value of the evidence at the time it was lost or
destroyed.” 488 U.S. at 56, n*. Petitioner relies on the fact that the police eventually
gathered a blood sample to argue that they appreciated its exculpatory value and the
therefore acted in bad faith by not obtaining one earlier.
But as previously explained, the police were not on notice that a blood alcohol test
would be exculpatory. Rather, it was “simply an avenue of investigation that might have
led in any number of directions.” Id. Like the police in Youngblood, who went to the
trouble of gathering physical samples from the defendant but did not act in bad faith by
failing to preserve or test them, the police in this case did not act in bad faith by failing to
VI at 136, 235-40. Thus, while the police certainly had reason to believe Petitioner had
been drinking, it was not apparent that a blood alcohol test would exculpate him.
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take an earlier blood draw from Petitioner. See id. at 58. The mere fact that the police
eventually sought a blood sample from Petitioner does not alter that conclusion. Other
factors also weigh in favor of finding the police did not act in bad faith: the potential
exculpatory value of the evidence was based on conjecture; the police did not have sole
control of the evidence as they had to rely on Petitioner’s consent to take a blood draw or
seek a warrant; and the test results, although used to refute claims of intoxication, were not
central to the prosecution’s case. See United States v. Ray, 899 F.3d 852, 864-65 (10th Cir.
2018) (setting forth factors to consider when determining whether the government acted in
bad faith). Thus, at the very least, the OCCA’s conclusion that the police did not act in bad
faith is not unreasonable.
Third, Petitioner argues that the OCCA based its decision on two unreasonable
factual determinations: (1) that Petitioner created some delay when he refused to give a
blood sample and (2) that the prosecution did not deny Petitioner had been drinking.
Neither of these factual determinations are unreasonable. Petitioner did contribute to a
delay in acquiring the blood sample by refusing to consent and there is nothing in the record
suggesting that investigators intentionally delayed making their request for a blood draw
to Petitioner. As to the prosecution’s argument, he clearly stated in closing argument that
he “got the impression [Petitioner] was drinking” and the “we don’t contest that fact.” Trial
Tr. vol. IX at 46.
Petitioner additionally argues that the admission of the blood test results taken
approximately twelve hours after the crime violated due process because the results were
highly prejudicial and misleading. But again, Petitioner cannot overcome AEDPA’s
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hurdles because the OCCA’s decision and factual findings are reasonable. As the OCCA
recognized, the probative value of the results was low given the length of time that elapsed
between the crime and the blood draw.
Nevertheless, they provided at least some
information about the overall investigation and Petitioner’s drug and alcohol use. Further,
there was nothing misleading or false about the test results or the testimony surrounding
them because the jury was made aware of the extended time lapse. Finally, Petitioner’s
claim that he was unduly prejudiced by the results because they led his trial counsel to
forego requesting a voluntary intoxication instruction is belied by the record, which shows
that trial counsel strategically declined to request the instruction because he thought there
was a risk it would confuse the jury as to who carried the burden of proving malice. Trial
Tr. vol. IX at 5-6. The admission of the test results did not render his trial fundamentally
unfair.
3.
Conclusion
Neither the police’s failure to collect an earlier blood sample nor the State’s use of
the negative test results violated due process. Accordingly, the Court finds that the
OCCA’s decision denying relief on both claims was reasonable. Petitioner is not entitled
to relief on Ground Six.
G.
Ground Seven: Cumulative Error
In his final ground for relief, Petitioner argues that even if individual errors were
harmless, the combined effect of the errors deprived him of a fair sentencing. Petitioner
raised this claim on direct appeal and the OCCA denied relief, finding that the potential
cumulative effect of the minor errors at trial did not impact the fairness or reliability of the
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proceedings. Martinez, 371 P.3d at 1119.
The cumulative error analysis addresses the possibility that two or more individually
harmless errors might have a “cumulative effect on the outcome of the trial such that
collectively they can no longer be determined to be harmless.” Workman v. Mullin, 342
F.3d 1100, 1116 (10th Cir. 2003). To obtain habeas relief, “the cumulative effect of the
errors determined to be harmless had a ‘substantial and injurious effect or influence in
determining the jury’s verdict.’” Hanson v. Sherrod, 797 F.3d 810, 852 (10th Cir. 2015)
(quoting Brecht v. Abrahamson, 507 U.S. 619, 637 (1993)).
This Court has not found error.
Therefore, the cumulative error analysis is
unwarranted. Petitioner is not entitled to relief on Ground Seven.
IV.
Conclusion
After a thorough review of the entire state court record, the pleadings filed herein,
and the applicable law, the Court finds that Petitioner is not entitled to the requested relief.
Accordingly, Petitioner’s petition for writ of habeas corpus [Doc. No. 16] is hereby
DENIED. The remainder of Petitioner’s Motion for Discovery [Doc. No. 17] and Motion
for Evidentiary Hearing [Doc. No. 29] are also DENIED. Judgment will be entered
accordingly.
V.
Certificate of Appealability
As a final matter, the Court must consider whether to issue a certificate of
appealability. Pursuant to Rule 11(a) of the Rules Governing Section 2254 Cases in the
United States District Courts, the Court declines to do so.
Pursuant to 28 U.S.C. § 2253(c)(1), Petitioner may not appeal the denial of his
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habeas petition unless he obtains a certificate of appealability (“COA”). A COA is claimspecific and appropriate only if Petitioner “has made a substantial showing of the denial of
a constitutional right.” 28 U.S.C. § 2253(c)(2), (c)(3). When a claim has been denied on
the merits, the COA standard is whether “reasonable jurists would find the district court’s
assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S.
473, 484 (2000); see also Dockins v. Hines, 374 F.3d 935, 938 (10th Cir. 2004) (AEDPA’s
deferential standard must be incorporated into the consideration of a certificate of
appealability). When a claim has been denied on procedural grounds without reaching the
petitioner’s underlying constitutional claim, a COA may issue only when Petitioner shows
that “jurists of reason would find it debatable whether the petition states a valid claim of
the denial of a constitutional right, and that jurists of reason would find it debatable whether
the district court was correct in its procedural ruling.” Slack, 529 U.S. at 484.
Having thoroughly reviewed each issue raised by Petitioner, the Court concludes
that, for the reasons set forth herein, none satisfies the standard for the granting of a COA.
Therefore, the Court DENIES a COA as to all of Petitioner’s grounds for relief.
IT IS SO ORDERED this 6th day of December, 2022.
TIMOTHY D. DeGIUSTI
Chief United States District Judge
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