United States District Court, E.D. Oklahoma
OPINION AND ORDER
A. White United States District Judge.
matter is before the Court on Petitioner's petition for a
writ of habeas corpus filed pursuant to 28 U.S.C. §
2254. Petitioner, a pro se inmate currently incarcerated at
James Crabtree Correctional Center in Helena, Oklahoma,
attacks his conviction in McCurtain County District Court
Case No. CF-2006-581 for First Degree Murder. He sets forth
the following grounds for relief:
1. The evidence was insufficient to prove the malice
aforethought element of first degree murder.
2. The evidence was insufficient to support first degree
murder, because the State failed to prove that Petitioner was
not acting in self defense.
3. Irrelevant and inconsistent instructions, coupled with the
prosecutor's misleading arguments, erroneously conveyed
to the jury that Petitioner was not legally entitled to act
in self defense, in violation of due process and the Equal
4. Petitioner was denied his constitutional right to confront
witness Wyva Clouse regarding her pending cases and any
favorable treatment received by her in exchange for her
testimony and witness Judy Rutherford regarding her prior
arrest and any favorable treatment received by her in
exchange for her testimony, in violation of the Sixth
Amendment and Article 2 § 20 of the Oklahoma
5. The display of irrelevant and prejudicial photographs was
reversible error and violated due process.
6. The trial court erred in denying the motion for a new
7. The cumulative effect of all errors deprived Petitioner of
a fair trial.
8. Prosecutorial misconduct in violation of the Due Process
Clause of the Fourteenth Amendment of the United States
9. The State committed Brady violations in violation
of due process.
10. Ineffective assistance of trial counsel in violation of
the Fifth and Sixth Amendments of the Constitution of the
11. Ineffective assistance of appellate counsel in violation
of the Fifth and Sixth Amendments of the Constitution of the
12. Improper jury instructions denied Petitioner due process.
13. Incomplete trial record denied Petitioner due process.
concedes that Petitioner has exhausted his state court
remedies for the purpose of federal habeas corpus review. The
following records have been submitted to the court for
consideration in this matter:
A. Petitioner's direct appeal brief.
B. The State's brief in Petitioner's direct appeal.
C. Summary Opinion affirming Petitioner's judgment and
sentence. Reed v. State, No. F-2008-449 (Okla. Crim.
App. Sept. 21, 2000).
D. Petitioner's application for post-conviction relief.
E. Motion to amend post-conviction application and supplement
F. Order denying post-conviction relief.
G. Order affirming denial of post-conviction relief. Reed
v. State, No. PC- 2013-698 (Okla. Crim. App. Oct. 17,
H. State court record.
the Anti-Terrorism and Effective Death Penalty Act, federal
habeas corpus relief is proper only when the state court
adjudication of a claim:
(1) resulted in a decision that was contrary to, or involved
an unreasonable application of, clearly established Federal
law, as determined by the Supreme Court of the United States;
(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.
28 U.S.C. § 2254(d).
was convicted of the first degree murder of his 71-year-old
grandmother Dorothy Hendrix. Ms. Hendrix had congestive heart
failure and diabetes. Because walking left her
“completely out of breath, ” she generally
required the use of a walker or motorized wheelchair. (Tr.
and his girlfriend Patricia Hollingsworth lived in the
victim's home with Hollingsworth's son, along with
Ms. Hendrix's daughter Judy Rutherford. Ms. Hendrix
disapproved of Petitioner and Hollingsworth sleeping together
while unmarried, so the couple often spent the night at a
motel. According to Hollingsworth, on the evening of November
21, 2006, Petitioner picked up Hollingsworth from work, and
the two went to the Choctaw Casino and to the Travel Plaza.
The couple then drove to the victim's home to pick up
some clothing to spend the night at a motel. (Tr. 254, 261,
278-80). They exited the vehicle, and although they intended
to be in Ms. Hendrix's house for only a few minutes,
Petitioner brought his semi-automatic handgun from the
vehicle into the home. (Tr. 256-58).
Petitioner and Hollingsworth entered the home, Ms. Hendrix
was in the kitchen in her nightclothes, propping open the
oven door to cool some Thanksgiving pies. (Tr. 258-59).
Hollingsworth talked to Ms. Hendrix for a couple of minutes
in the kitchen, then Ms. Hendrix made her way down the hall
to her bedroom. (Tr. 280-81). Hollingsworth followed her down
the hall, and Ms. Hendrix went into her room to go to bed.
Petitioner already was in his room. (Tr. 260-61).
Hollingsworth walked toward the kitchen from the back
bedroom. (Tr. 265).
irritated Ms. Hendrix for a long time that Petitioner let
Hollingsworth's dog get on the bed. (Tr. 282).
Hollingsworth heard Ms. Hendrix yell from her room at
Petitioner to get the dog off the bed. (Tr. 285). Petitioner
went to the door of his grandmother's bedroom and argued
about what difference did it make between Hollingsworth's
dog or Ms. Hendrix's dogs being on a bed. (Tr. 263-65).
When Petitioner said that, Hollingsworth heard Ms. Hendrix
say, “I'll blow your fucking head off, ” then
Hollingsworth immediately heard a gunshot. (Tr. 266-67).
turned and saw Petitioner standing in the hall and looking
into Ms. Hendrix's bedroom, holding the smoking gun down
by his side. (Tr. 267-68). Petitioner said, “Call 911.
I shot my grandma.” (Tr. 268-69, 288). Petitioner
joined Hollingsworth in the living room where she was calling
911. He just stood there, then put his gun on the arm of a
recliner. (Tr. 269, 271). He did not show any emotion or
appear to be in shock. (Tr. 287-89).
couple waited outside, in front of the house. (Tr. 291). When
officers arrived, Petitioner told them he had shot his
grandmother. Sergeant Lorie Chipps secured the residence and
checked on the victim, who was still alive. (Tr. 307-09,
315-16). Ms. Hendrix was lying in her bed, her right hand
touching her head where she had a severe gunshot wound. Her
eyes were open and she was looking around, but gurgling and
unable to speak. (Tr. 316). When the paramedics arrived and
moved Ms. Hendrix from the bed, police and medical personnel
discovered a small handgun lying under her lower back. (Tr.
318-19, 351). She died in a Tyler, Texas, hospital the next
morning. (Dkt. 12-9 at 50).
Chipps gave Petitioner his Miranda warnings, after
which Petitioner volunteered an account of what happened,
because he said he had nothing to hide. He claimed he stopped
at his grandmother's room to say he was leaving, and she
angrily said, “[G]ood because I'm going to fucking
shoot you.” According to Petitioner, Ms. Hendrix leaned
down from the bed to get her purse, from which she pulled out
her gun wrapped in a white cloth, and attempted to shoot him.
When the gun did not fire, she pulled the gun back, turned
it, took off the safety, and then pointed it at him again.
Petitioner claimed he had no choice but to shoot her in
self-defense. (Tr. 323-24).
police station, Petitioner told OSBI Agent Cliff Fielding,
contrary to what Hollingsworth observed, that
Petitioner's gun already was in Ms. Hendrix's house.
Petitioner stated he retrieved it from his bedroom drawer, so
it would not be stolen while he was at a motel overnight.
Petitioner said that Ms. Hendrix was in bed with a book when
she angrily told him she wanted Hollingsworth's dog off
the bed and that Petitioner needed to leave the house or she
would shoot him. Petitioner also told Fielding that Ms.
Hendrix pulled her gun from her purse next to the bed and
tried to shoot at him, but the gun did not go off. She then
turned the gun, took off the safety, and pointed it at him
again. Petitioner stated he pulled his gun from his pants and
shot her once in the head. (Tr. 453-56, 460).
days prior to the shooting, Petitioner visited his friend
Wyva Clouse. Petitioner told Ms. Clouse he was angry at
Hendrix, because she had been taking the Social Security
death benefit from Petitioner's father's death. (Tr.
457-58, 464). Petitioner angrily complained to Clouse about
his grandmother and told Clouse more than once that he wanted
to shoot his grandmother in the head. (Tr. 186-90).
Sufficiency of the Evidence (Grounds 1 and 2)
alleges the evidence was insufficient to prove he acted with
the deliberate intent to kill, and the evidence was
insufficient to show he did not act in self defense.
Standard of Review
of the evidence can be considered to be a mixed question of
law and fact.” Case v. Mondagon, 887 F.2d
1388, 1392 (10th Cir. 1989), cert. denied, 494 U.S.
1035 (1990). In federal habeas review of a state court
conviction, “the relevant question is whether, after
viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have
found the essential elements of the crime beyond a reasonable
doubt.” Jackson v. Virginia, 443 U.S. 307, 319
(1979) (emphasis in original).
Supreme Court repeatedly has emphasized the deference the
reviewing court owes to the trier of fact and “the
sharply limited nature of constitutional sufficiency
review.” Wright v. West, 505 U.S. 277, 296
(1992) (citing Jackson, 443 U.S. at 319). “[A]
federal habeas corpus court faced with a record of historical
facts that supports conflicting inferences must presume--even
if it does not affirmatively appear in the record--that the
trier of fact resolved any such conflicts in favor of the
prosecution, and must defer to that resolution.”
Jackson, 443 U.S. at 326. The court must
“accept the jury's resolution of the evidence as
long as it is within the bounds of reason.” Grubbs
v. Hannigan, 982 F.2d 1483, 1487 (10th Cir. 1993)
(citing United States v. Edmondson, 962 F.2d 1535,
1548 (10th Cir. 1992)). “To be sufficient, the evidence
supporting the conviction must be substantial; that is, it
must do more than raise a mere suspicion of guilt.”
Beachum v. Tansy, 903 F.2d 1321, 1332 (10th Cir.),
cert. denied, 498 U.S. 904 (1990) (citing United
States v. Troutman, 814 F.2d 1428, 1455 (10th Cir.
alleges in Ground 1 that the evidence was insufficient to
prove malice aforethought. To determine whether there was
sufficient evidence presented at trial to sustain
petitioner's conviction for murder in the first degree
with malice aforethought, the court first must look to
Oklahoma law for the elements required for the crime.
Jackson, 443 U.S. at 324 n.16; see also Torres
v. Mullin, 317 F.3d 1145, 1152 (10th Cir.), cert.
denied, 540 U.S. 1035 (2003). The statute for murder
with malice aforethought provides:
A person commits murder in the first degree when that person
unlawfully and with malice aforethought causes the death of
another human being. Malice is that deliberate intention
unlawfully to take away the life of a human being, which is
manifested by external circumstances capable of proof.
Stat. tit. 21, § 701.7(A). Under Oklahoma law,
“malice aforethought” means “a deliberate
intent to kill.” Malone v. State, 168 P.3d
185, 198 (Okla. Crim. App. 2007). Oklahoma law further
provides the intent to kill may be formed the instant before
the act is carried out. Black v. State, 21 P.3d
1047, 1062 (Okla. Crim. App.), cert. denied, 534
U.S. 1004 (2001) (citing Okla. Stat. tit. 21, § 702).
direct appeal the Oklahoma Court of Criminal Appeals denied
relief on this claim: “[T]aking the evidence in the
light most favorable to the State, any rational trier of fact
could find beyond a reasonable doubt that Reed shot the
victim intending to kill her.” Reed v. State,
No. F-2008-449, slip op. at 2 (Okla. Crim. App. Sept. 21,
2009) (Dkt. 11-3). The OCCA supplemented this holding with
the following footnote:
Dodd v. State, 100 P.3d 1017, 1041-42 (Okla. Crim.
App. 2004). Malice means the deliberate intent to take a
human life and may be formed in an instant. Coddington v.
State, 142 P.3d 437, 455 (Okla. Crim. App. 2006);
Black v. State, 21 P.3d 1047, 1062 (Okla. Crim. App.
2001); Ullery v. State, 988 P.2d 332, 347 (Okla.
Crim. App. 1999). Malice may be proved by circumstantial
evidence. Coddington, 142 P.3d at 455;
Black, 21 P.3d at 1063-63. This Court accepts the
finder of fact's reasonable inferences and credibility
choices which support the verdict. Coddington, 142
P.3d at 455. Sufficient evidence showed Reed intended to kill
Hendrix. Reed brought his loaded gun into the house.
Hollingsworth testified that she heard Hendrix threaten Reed
and immediately heard a gunshot. The shot was fired by Reed,
who told her to call 911 because he'd shot Hendrix.
Hollingsworth testified that Reed displayed no emotion, did
not appear to her to be in shock, and did not go near Hendrix
to check on her condition. Clouse testified Reed had recently
said he wanted to shoot Hendrix in the head.
Reed, No. F-2008-449, slip op. at 2 n.1.
OCCA's standard of “taking the evidence in the
light most favorable to the State, any rational trier of fact
could find beyond a reasonable doubt that [Petitioner] shot
the victim intending to kill her” is the same standard
as the federal standard for sufficiency of the evidence under
Jackson v. Virginia. Therefore, this Court's
inquiry is whether the OCCA's determination that the
evidence was sufficient was reasonable under 28 U.S.C. §
alleges the OCCA's determination of this claim was
supported by the evidence presented at trial. Hollingsworth
testified that when she and Petitioner arrived at Ms.
Hendrix's house, he put his gun in his pants, although
they were going in for only a few minutes. Petitioner's
statement that the gun was already at Hendrix's house
conflicted with Hollingsworth's testimony. (Tr. 256,
274). Ms. Hendrix and Petitioner had an ongoing dispute about
Hollingworth's 120-pound bulldog being on the bed, and
when Petitioner walked to Hendrix's bedroom door, he
commented about Ms. Hendrix's small dogs being allowed on
her bed. (Tr. 266, 286). Petitioner was unemotional when he
told Hollingsworth to “[c]all 911, I shot my
grandma.” (Tr. 268, 295). He did not check on
Hendrix's condition, render aid, or show any emotion.
evidence supporting the conviction was Ms. Hendrix's
saying, “I'll blow your fucking head off, ”
followed by an immediate gunshot, and Petitioner's
standing at her bedroom door, looking in and holding his gun
with smoke coming from it. (Tr. 266, 286). Ms. Hendrix's
pistol was found on the bed, under the small of her back.
(Tr. 319, 351). Petitioner told police that after Ms. Hendrix
said she would shoot him, she reached down from the bed and
retrieved her purse. She took out her gun, pulled the trigger
to shoot Petitioner, turned the gun and released the safety,
and aimed again at him. Petitioner told the police he was
forced to shoot her in self-defense. (Tr. 323-24).
only two days before the shooting, Petitioner told Wyna
Clouse he wanted to shoot Ms. Hendrix in the head. When
Clouse responded with disbelief, Petitioner repeated the
statement. (Tr. 189).
alleges in his amended reply to Respondent's response
(Dkt. 29) that because the OCCA held that the intent to kill
may be formed in an instant before the act, the jury should
have only considered the evidence of what happened
immediately prior to the shooting. He argues that this
limitation would exclude Clouse's testimony about his
statement two days before the shooting. Petitioner, however,
has misread the OCCA's opinion which states that intent
may be formed in an instant before the crime, not
that it necessarily is formed immediately before the
also complains that Patricia Hollingsworth's was
“coached” to testify that he took his pistol into
the house upon his arrival. He claims that because
Hollingsworth also testified that his taking the pistol into
the house was not unusual, this evidence cannot establish
premeditation. He further claims Hollingworth could not have
seen what he was doing at his grandmother's bedroom door,
because Hollingsworth had her back to him and had to turn
around to see him.
challenges Respondent's argument concerning his dispute
with his grandmother over the dogs, and he asserts the
incident did not show deliberate intent or malice
aforethought. He further claims that if he had wanted to
deliberately kill his grandmother, he could have shot her a
second time when he saw she was still alive. He argues that
if he had wanted his grandmother to die, he would not have
told Hollingsworth to call 911, but would have prevented her
from calling for help. He did not try to help his
grandmother, because he has no medical training about how to
treat a gunshot wound to the head, and he did not want to
disturb the evidence. Further, his lack of emotion, which was
caused by this traumatic incident, caused him to “shut
down, ” and his demeanor should not have resulted in an
unreasonable inference in violation of Jackson v.
Virginia. Finally, Petitioner alleges Wyva Clouse's
testimony about his statements two days before the shooting
on this evidence, this Court finds that any rational trier of
fact could have disbelieved Petitioner's statement that
Ms. Hendrix was trying to shoot him, and found beyond a
reasonable doubt that Petitioner shot Hendrix with malice
aforethought immediately after she made her verbal threat.
The Court further finds the OCCA's determination that
Petitioner's conviction is supported by sufficient
evidence is not contrary to, or an unreasonable application
of, clearly established federal law, and the OCCA's
decision is not based on an unreasonable determination of the
facts. Ground 1 of the petition fails.
Ground 2, Petitioner claims the evidence did not show he did
not act in self-defense. In Oklahoma, self-defense is an
affirmative defense which admits the elements of the charge,
but offers a legal justification for the conduct. McHam
v. State, 126 P.3d 662, 667 (Okla. Crim. App. 2005). The
use of deadly force is justifiable only if the individual
being threatened reasonably believed the use of deadly force
was necessary to protect himself from imminent danger of
death or great bodily harm. Chapple v. State, 866
P.2d 1213, 1215 (Okla. Crim. App. 1993). The mere belief that
an individual is about to suffer death or great personal
injury will not justify killing in self-defense, unless the
belief is reasonable. Bechtel v. State, 840 P.2d 1,
6 (Okla. Crim. App. 1992). In assessing the reasonableness of
such a belief, the jury should assume the viewpoint and
circumstances of the defendant at the time of the killing.
Bechtel, 840 P.2d at 11. The jury, however, also
must take the defendant's viewpoint to be that of a
reasonable person in similar circumstances and with the same
perceptions. Id. Finally, the jury's
self-defense determination is entitled to deference.
Hancock, 155 P.3d at 812 (citing Hiler, 796
P.2d at 349).
argued on direct appeal that the State did not prove the
shooting was not in self-defense, because the evidence showed
that Ms. Hendrix's threatened Petitioner that she was
going to “blow your fucking head off, ” and she
pointed her pistol at him. Petitioner points to his statement
to police that she pointed the gun, pulled it back to release
the safety, and pointed it again, forcing him to shoot her in
self-defense. (Tr. 323-34). He claims in his amended reply to
Respondent's response that the fact that the pistol's
safety was in the “off” position supported his
version of the incident.
to Hollingsworth, however, Petitioner's gunshot came
immediately after Hendrix's verbal threat. When the
police discovered Hendrix, she was lying flat on her back
with the handgun completely under her body, under the small
of her back. (Tr. 339). This evidence supports a finding the
Petitioner shot immediately, and it conflicts with
Petitioner's statement that Hendrix retrieved her purse,
took out her gun, aimed, tried to shoot, released the safety,
and raised her pistol to aim again.
OCCA denied relief on this claim as follows: “[T]aking
the evidence in the light most favorable to the State, any
rational trier of fact could find beyond a reasonable doubt
that Reed did not shoot Hendrix in self-defense.”
Reed, No. F-2008-449, slip op. at 2. The OCCA
provided legal authority and rationale in a footnote:
Dodd, 100 P.3d at 1042. A person acts in
self-defense when he has a reasonable ground to believe
deadly force is necessary to protect himself from imminent
danger of death or great bodily harm. Okla. Stat. tit. 21,
§ 733. OUJI-CR (2d) 8-46; McHam v. State, 126
P.3d 662, 667 (Okla. Crim. App. 2005). The defendant's
belief must be reasonable; fear or a defendant's good
faith belief will not justify the taking of a life.
Hancock v. State, 155 P.3d 796, 813 (Okla. Crim.
App. 2007); Camron v. State, 829 P.2d 47, 51 (Okla.
Crim. App. 1992). Once a defendant has raised self-defense,
the State must prove beyond a reasonable doubt that he was
not acting in self-defense. Hancock, 155 P.3d at
813. Testimony suggested premeditation, and that Reed often
argued with the victim. Hollingsworth testified that
Reed's shot came immediately after Hendrix's threat.
This is inconsistent with Reed's claim that Hendrix
threatened him, pulled her gun, tried to shoot, took the
safety off and aimed again before he shot her. Hendrix's
gun was underneath her body, at the small of her back, and
testimony indicated it was not moved during medical
procedures. After shooting Hendrix, Reed neither expressed
emotion nor checked on her welfare. While the evidence was
conflicting, the jury could find beyond a reasonable doubt
that Reed did not act in self-defense.
Reed, No. F-2008-449, slip op. at 2 n.2.
argues that although Hendrix's pistol was close to her,
the evidence supports the finding that she was attempting to
defend herself against Petitioner's aggression, rather
than the reverse. Other than Hendrix's threatening words,
there was no evidence apart from Petitioner's
self-serving statement to police that she took any action.
Furthermore, the gun was under her body, indicating she had
no chance to defend herself.
Maes v. Thomas, 46 F.3d 979 (10th Cir. 1995), the
petitioner argued the evidence was insufficient to support
the conclusion that he did not act in self-defense. The Tenth
Circuit rejected the claim, noting in part that “[t]he
only evidence of self-defense came from the testimony of the
petitioner” and that the petitioner “was the only
witness to unequivocally place weapons in the hands” of
his victims. Id. at 988. The evidence was that
Petitioner fired his gun immediately after Ms. Hendrix made
her verbal threat, undercutting Petitioner's version of
Ms. Hendrix's actions.
on the above discussion, the Court finds the OCCA's
decision on the issue of self-defense was neither contrary
to, or an unreasonable application of, clearly established
federal law, and the OCCA's decision was not based on an
unreasonable determination of the facts. See 28
U.S.C. § 2254(d). Petitioner is not entitled to habeas
relief on this claim.
Jury Instructions (Ground 3)
alleges, as on direct appeal, that the trial court erred in
issuing the instructions on the law of self-defense. He
specifically claims that the jury instructions OUJI-CR(2d)
8-50 and 8-51, regarding aggressors, was improper, because
there was no evidence he was the aggressor. He also claims
the prosecutor misstated the law, leading the jury to believe
Petitioner was the aggressor.
alleges this claim is a matter of state law that does not
raise an issue proper for federal habeas relief. “[I]t
is not the province of a federal habeas court to reexamine
state-court determinations on state-law questions. In
conducting habeas review, a federal court is limited to
deciding whether a conviction violated the Constitution,
laws, or treaties of the United States.” Estelle v.
McGuire, 502 U.S. 62, 67-68 (1991) (citing 28 U.S.C.
§ 2241; Rose v. Hodges, 423 U.S. 19, 21 (1995)
In a habeas corpus proceeding attacking a state court
judgment based on an erroneous jury instruction, a petitioner
has a great burden. Lujan v. Tansy, 2 F.3d 1031,
1035 (10th Cir. 1993), cert. denied, 510 U.S. 1120
(1994). A state conviction may only be set aside in a habeas
proceeding on the basis of erroneous jury instructions when
the errors had the effect of rendering the trial so
fundamentally unfair as to cause a denial of a fair trial.
Shafer v. Stratton, 906 F.2d 506, 508 (10th Cir.
1990), cert. denied, 498 U.S. 961 (1990). “The
burden of demonstrating that an erroneous instruction was so
prejudicial that it will support a collateral attack on the
constitutional validity of a state court's judgment is
even greater than the showing required to establish plain
error on direct appeal.” Henderson v. Kibbe,
431 U.S. 145, 154 (1977) (footnote omitted). The question in
this proceeding is not whether the instruction is
“undesirable, erroneous, or even ‘universally
condemned, '” but whether the instruction so
infected the trial that the resulting conviction violates due
process. Id. (quoting Cupp v. Naughten, 414
U.S. 141, 146 (1973)).
Maes v. Thomas, 46 F.3d 979, 984 (10th Cir.),
cert. denied, 514 U.S. 1115 (1995).
trial, defense counsel objected to instructions OUJI-CR(2d)
8-50 and 8-51, and the trial court summarily overruled the
objections. (Tr. 471-72). The challenged instructions were as
Self-defense is permitted a person solely because of
necessity. Self-defense is not available to a person who was
the aggressor, provoked another with the intent to cause the
altercation or voluntarily entered into mutual combat, no
matter how great the danger to personal security became
during the altercation unless the right of self-defense is
8-50 (Dkt. 11-9 at 7).
A person who was the original aggressor, provoked another
with intent to cause the altercation or voluntarily entered
into mutual combat, may regain the right to self-defense if
that person withdrew or attempted to withdraw from the
altercation and communicated his desire to withdraw to the
other participant in the altercation. If, thereafter, the
other participant continued the altercation, the other
participant became the aggressor and the person who was the
original aggressor, provoked another ...