United States District Court, W.D. Oklahoma
STEPHEN P. FRIOT UNITED STATES DISTRICT JUDGE.
a state prisoner currently facing execution of a sentence of
death, appears with counsel and petitions for a writ of
habeas corpus pursuant to 28 U.S.C. § 2254, challenging
his convictions in the District Court of Oklahoma County,
Case No. CF-1999-5071, of one count of first-degree murder,
one count of shooting with intent to kill, and one count of
assault and battery with a dangerous weapon. Respondent has
responded to Petitioner's Petition for a Writ of
Habeas Corpus (hereinafter “Petition”),
Petitioner has replied. The State court record has been
was convicted by a jury in the District Court of Oklahoma
County of one count of first-degree murder, one count of
shooting with intent to kill, and one count of assault and
battery with a dangerous weapon. For the crime of
first-degree murder, the jury recommended the imposition of a
sentence of death, finding the existence of the aggravating
circumstance that Petitioner knowingly created a great risk
of death to more than one person. He was also sentenced to
life in prison for shooting with intent to kill and ten years
in prison for assault and battery with a dangerous weapon.
appealed his convictions and sentences to the Oklahoma Court
of Criminal Appeals (hereinafter “OCCA”). The
OCCA affirmed Petitioner's convictions and the
non-capital sentences, but reversed the death sentence and
remanded for a new sentencing trial for the first-degree
murder conviction. Harris v. State, 84 P.3d 731
(Okla. Crim. App. 2004). At the resentencing trial the jury
found the existence of two aggravating circumstances: (1)
Petitioner knowingly created a great risk of death to more
than one person; and (2) the existence of a probability
Petitioner would commit criminal acts of violence that would
constitute a continuing threat to society. The trial court
sentenced Petitioner to death on the jury's
recommendation. Petitioner's direct appeal from the
resentencing trial was denied by the OCCA. Harris v.
State, 164 P.3d 1103 (Okla. Crim. App. 2007). Certiorari
was denied on March 24, 2008. Harris v. Oklahoma,
552 U.S. 1286 (2008). Petitioner filed an Application for
Post-Conviction Relief which was denied by the OCCA in a
published opinion. Harris v. State, 167 P.3d 438
(Okla. Crim. App. 2007).
28 U.S.C. § 2254(e), when a federal district court
addresses “an application for a writ of habeas corpus
by a person in custody pursuant to the judgment of a State
court, a determination of a factual issue made by a State
court shall be presumed to be correct.” 28 U.S.C.
§ 2254(e)(1). For the purposes of consideration of the
present Petition, the Court provides and relies upon the
following synopsis from the OCCA's opinion summarizing
the evidence presented at Petitioner's trial. Following
review of the record, trial transcripts, and the admitted
exhibits, the Court finds this summary by the OCCA to be
adequate and accurate. The Court therefore adopts the
following summary of the facts as its own:
Harris, who was a skilled transmission mechanic, and his
wife, Pam, worked in front office positions in transmission
shops. Throughout their relationship the two often worked
together. Despite being business partners as well as husband
and wife, they had a stormy relationship. This worsened
significantly when Pam was hired, but Harris was not, to work
in Merle Taylor's AAMCO transmission shop in Oklahoma
City. Harris commuted to work in Texas for several months,
during which time the marriage suffered. After Harris had a
work-related accident, he returned to Oklahoma. By the summer
of 1999, Pam told him the marriage was over. While Harris
agreed to a divorce, he was angry and upset, and continued to
hope Pam would return to him. In mid-August of 1999, Harris
called Pam, threatening to kill her, her parents, their
daughter, her co-workers, and Merle Taylor. Pam got a
protective order against Harris and filed for divorce. The
divorce was granted on August 25, 1999, and Harris was
ordered to leave the home without removing any property.
Harris and Pam had previously taped an agreement dividing the
house property. On the evening of the 25th, Harris moved out
of the home, taking furniture and many of Pam's personal
possessions. He also vandalized the house. Pam discovered the
damage the next day, found out where Harris had stored her
furniture and his tools, and had a lock put on that shed. In
the succeeding days Harris called Pam often demanding that
she remove the lock. Each time, she explained she could
neither talk to him nor remove the lock, and told him to call
her attorney. He refused, explicitly stating he would talk to
her. He continued to threaten her and others. On August 31,
1999, he threatened to kill Pam and was seen driving by the
On the morning of September 1, 1999, Harris called the AAMCO
shop several times, demanding that she remove the lock on the
storage shed and threatening Pam and Merle Taylor. At
approximately 9:00 a.m. Harris arrived at the shop and asked
for Pam, who was standing with Merle Taylor and his
daughter-in-law Jessica. He shot Taylor twice at close range,
and shot at Jessica. Harris shot Pam, chased her when she
ran, and pistol-whipped her when he ran out of bullets and
could not quickly reload his gun. When Pam escaped, Harris
fled, discarded the gun and his van, and hid in a
friend's garage. Harris claimed he was angry and upset,
and could not make good decisions because he was of low
intelligence, was under the influence of alcohol and drugs,
and was mentally ill (although not legally insane).
To support the aggravating circumstances, the State presented
the evidence of the circumstances of the crimes. There was
also evidence that, during the ongoing difficulties in
mid-August, Pam had called police and Harris had resisted
arrest. The State presented evidence that Harris assaulted a
jailer while awaiting trial, and had physically, verbally and
emotionally abused Pam throughout their relationship. The
State also presented victim impact evidence. In mitigation,
Harris presented evidence from his family and former
co-workers, as well as expert evidence, regarding his
traumatic and abusive childhood, history of substance abuse,
low intelligence, emotional instability, and possible mental
Harris, 164 P.3d at 1106-07.
CLAIMS FOR RELIEF
the Antiterrorism and Effective Death Penalty Act of 1996
(hereinafter “AEDPA”), in order to obtain federal
habeas relief once a State court has adjudicated a particular
claim on the merits, Petitioner must demonstrate that the
(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)(1-2).
Supreme Court has defined “contrary to” as a
State court decision that is “substantially different
from the relevant precedent of this Court.”
Williams v. Taylor, 529 U.S. 362, 405 (2000)
(O'Connor, J., concurring and delivering the opinion of
the Court). A decision can be “contrary to”
Supreme Court precedent “if the state court applies a
rule that contradicts the governing law set forth in [Supreme
Court] cases” or “if the state court confronts a
set of facts that are materially indistinguishable from a
decision of this Court and nevertheless arrives at a result
different from [Supreme Court] precedent.” Id.
at 405-06. The “unreasonable application” prong
comes into play when “the state court identifies the
correct governing legal rule from [Supreme Court] cases but
unreasonably applies it to the facts of the particular state
prisoner's case” or “unreasonably extends a
legal principle from [Supreme Court] precedent to a new
context where it should not apply or unreasonably refuses to
extend that principle to a new context where it should
apply.” Id. at 407. In ascertaining clearly
established federal law, this Court must look to “the
holdings, as opposed to the dicta, of [the Supreme]
Court's decisions as of the time of the relevant
state-court decisions.” Yarborough v.
Alvarado, 541 U.S. 652, 660-61 (2004) (quoting
Williams, 529 at 412.
“AEDPA's purpose [is] to further the principles of
comity, finality, and federalism. There is no doubt Congress
intended AEDPA to advance these doctrines.”
Williams v. Taylor, 529 U.S. 420, 436 (2000).
“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). The deference
embodied in Section 2254(d) “reflects the view that
habeas corpus is a ‘guard against extreme malfunctions
in the state criminal justice systems, ' not a substitute
for ordinary error correction through appeal.”
Harrington v. Richter, 562 U.S. 86, 102-03
1: Mental Health Rebuttal Evidence.
the first stage of trial, and after Petitioner had testified,
the defense presented expert psychological and psychiatric
testimony regarding Petitioner's intelligence and state
of mind to support his diminished capacity defense of mental
illness. Subsequent to the defense's notice that
Petitioner intended to present such a defense, the State
obtained permission to have Dr. John Call, a psychologist,
interview Petitioner to determine if he was malingering. Dr.
Call testified that Petitioner appeared to be feigning or
exaggerating cognitive, memory, and emotional disorders. He
also testified that Petitioner exhibited many traits of a
claims that the testimony of Dr. Call deprived him of a
fundamentally fair trial as his testimony was a surprise and
that the defense was not presented with a report prior to the
testimony, that a prior determination was not made regarding
scientific reliability and acceptability of the substance of
Dr. Call's testimony, that “psycopath” is not
a mental illness or disease, and as such, was only proper for
indications of future behavior and improper evidence in the
first stage of trial, that the testimony should have been
excluded as being more prejudicial than probative, that
evidence of bad character is barred under State law and
admission of such was a violation of Petitioner's liberty
interest, and that the OCCA's determination was an
unreasonable determination of the facts in light of the
evidence presented. In short, Petitioner's claim is that
the OCCA's determination that Dr. Call's testimony
was properly admitted is unreasonable.
noting that the State presented Dr. Call as a rebuttal
witness subsequent to Petitioner's testimony and the
defense presentation of expert testimony of mental illness,
the OCCA rejected Petitioner's claim of surprise and
failure to excluded Dr. Call's testimony as a discovery
First, we reject Appellant's contention that Dr.
Call's testimony should have been excluded as a discovery
sanction. Generally, the State need not give advance notice
of rebuttal evidence, because it cannot know before trial
what evidence will be relevant in rebuttal. Goforth v.
State, 1996 OK CR 30, ¶ 3, 921 P.2d 1291, 1292. Dr.
Call only interviewed Appellant after the defense gave notice
that it intended to present a defense based on
Appellant's mental health. Defense counsel was present
when Dr. Call interviewed Appellant. Appellant had access to
his own mental-health experts to review Dr. Call's notes
and testimony. After Dr. Call testified on direct
examination, the trial court granted Appellant's request
for additional time to prepare for cross-examination.
Appellant was not unfairly surprised by Dr. Call's
Harris, 84 P.3d at 745.
Call was called by the State in rebuttal to a defense based
on a claim of diminished mental health. Defense counsel was
present during Dr. Call's examination and testing of
Petitioner and during the trial court's in camera hearing
on Dr. Call's techniques and the information utilized in
reaching his conclusions. Counsel was given the opportunity
during the in camera hearing to question Dr. Call and was
permitted to re-call him for cross-examination after the
defense expert reviewed his work. Further, as noted by the
OCCA, after Dr. Call's testimony the trial court granted
defense counsel's request for additional time to prepare
for cross- examination. Considering the above, Petitioner has
not demonstrated the OCCA's determination to be
further claims it was error for the trial court to not hold a
prior hearing on the scientific reliability and acceptability
of the substance of Dr. Call's methods and testimony
consistent with Daubert v. Merrel Dow
Pharmaceuticals, 509 U.S. 579 (1993). Although lengthy,
the OCCA's determination denying the claim is set forth
here in its entirety to set forth the facts and procedure
regarding Dr. Call's testimony and to demonstrate the
state court's thorough and well considered review:
We next consider whether the trial court erred by not holding
a hearing on the reliability of Dr. Call's methods
consistent with Daubert v. Merrell Dow
Pharmaceuticals, 509 U.S. 579, 113 S.Ct. 2786, 125
L.Ed.2d 469 (1993). In Daubert, the Supreme Court
recognized a trial court's important responsibility, as
well as its broad discretion, in assessing the admissibility
of novel scientific evidence. The Court identified several
factors which may aid trial judges in determining whether
expert evidence is scientifically valid, and thus reliable
enough, to be admissible under the permissive guidelines of
the Federal Rules of Evidence. The Court stressed that its
list of relevant factors was not exhaustive, and that whether
any of the factors mentioned were applicable could only be
determined on a case-by-case basis. In essence, the Court
held that while not all evidence deemed
“scientific” had to earn general acceptance in
the scientific community before being admissible, all such
evidence should bear some indicia of traditional scientific
method. The focus should be “solely on principles and
methodology, not on the conclusions that they
generate.” Daubert, 509 U.S. at 595, 113 S.Ct.
at 2797. The Court subsequently extended
Daubert's principles to non-scientific but
otherwise technical and specialized expert testimony in
Kumho Tire Co. v. Carmichael, 526 U.S. 137, 150-51,
119 S.Ct. 1167, 1175, 143 L.Ed.2d 238 (1999). We adopted the
Daubert analysis in Taylor v. State, 1995
OK CR 10, ¶ 15, 889 P.2d 319, 328-29, and have likewise
extended it (per Kumho) to other types of expert
testimony. Harris v. State, 2000 OK CR 20, ¶ 9,
13 P.3d 489, 493.
Before Dr. Call testified, the trial court held an in camera
hearing on the techniques he used and the reasonableness of
his reliance on certain information to reach his conclusions.
The hearing was consistent with our holding in Lewis v.
State, 1998 OK CR 24, ¶ 21, 970 P.2d 1158, 1167,
that the trial court should determine the admissibility of
expert testimony before it is presented to the jury. At that
hearing, Dr. Call stated that the Hare Psychopathy Checklist
was “the most widely respected technique to assess
psychopathy.” He testified as to his experience in
administering the technique, and explained that the Checklist
necessarily required him to obtain information from immediate
family which, in this case, included the surviving victim,
Mrs. Harris. Dr. Call testified that he did not tell Mrs.
Harris the purpose of his inquiry, and that he took her
potential for bias into account. He also stated that not all
of Mrs. Harris's observations about Appellant were
negative, and that many of her observations were corroborated
by others, including Appellant himself. The defense
cross-examined Dr. Call about his methods, but did not
present any evidence of its own. The trial court found Dr.
Call's methods reliable and his testimony admissible.
Defense counsel did not claim this hearing was insufficient
under Daubert until after Dr. Call had testified on
direct examination. Based on the information developed at the
original “Lewis” hearing, the trial
court concluded that no further Daubert inquiry was
Appellant complains that the Lewis hearing was not
tantamount to a Daubert hearing, because it did not
address either “relevancy or reliability of psychopathy
opinion testimony in the guilt/innocence phase of a criminal
trial, ” and claims that the Hare technique is
“clearly irrelevant and unreliable in this
context” (emphasis added). We view these concerns as a
matter of general relevance, not affecting the soundness of
Dr. Call's methods themselves. There was no evidence that
Dr. Call modified the Hare technique in any way, or that he
used it to assess anything but Appellant's psychopathic
tendencies. Appellant's complaint is not that the Hare
Psychopathy Checklist is unreliable per se, but that the
Checklist did not assist the trier of fact, see 12
O.S.2001, § 2702, because it was not a reliable
indicator of anything relevant to Appellant's guilt. We
conclude that it was.
Appellant correctly notes that the Hare Psychopathy Checklist
is routinely used to determine whether a person poses a
threat to others generally; thus, the Checklist is often
employed in capital-sentencing proceedings (e.g. to show the
defendant is a continuing threat to society) and civil
commitment proceedings (e.g. to justify involuntarily
commitment of a sexual predator). However, merely because
psychopathy evidence is relevant for these purposes does not
render it irrelevant for any other purpose. Any ability of
the Checklist to predict future behavior must necessarily be
based on its ability to indicate tendencies presently
existing in the subject's personality - which in turn is
based, in part, on an examination of the subject's past
Appellant's own experts - also relying in part on
Appellant's past behavior - testified to support the
defense theory that Appellant's mental functioning was
impaired, and ultimately, that Appellant was (at least at the
time of the crime) unable to form a specific intent to kill.
In turn, the State was entitled to offer alternative
explanations of Appellant's behavior. Appellant points
out that psychopathy is not a recognized mental disorder.
This, of course, is exactly why the State introduced the
evidence in question: to show that Appellant's behavior
was not the result of a diminished mental capacity, but
rather the product of a generally violent personality for
which he should be held accountable. We have repeatedly held
that the State may present rebuttal evidence on mental-health
issues raised by the defense. See Lockett v. State,
2002 OK CR 30, ¶ ¶ 22-25, 53 P.3d 418, 425; Van
White v. State, 1999 OK CR 10, ¶ 52, 990 P.2d 253,
268-69; Maghe v. State, 1980 OK CR 100, ¶ 7,
620 P.2d 433, 435; see also 12 O.S.2001, §
2404(A)(1) (where accused presents evidence of a pertinent
character trait, the prosecution may present evidence to
rebut the same). Dr. Call's opinions, and prosecutor
commentary on this evidence as bearing on Appellant's
ability to form an intent to kill, were not improper.
Finally, we note that the jury was well aware of the
limitations on Dr. Call's testimony. Dr. Call made it
clear that while Appellant exhibited many behaviors
associated with psychopathy, he also exhibited many behaviors
inconsistent with psychopathy. Dr. Call admitted he could not
conclusively state that Appellant was a psychopath, and
conceded that even a psychopath may suffer from some other
recognized mental illness. The trial court's limiting
instruction, which Appellant did not object to, was patterned
after the one used by the trial court in Lewis v.
State, and we find it appropriate here as well.
Proposition 2 is denied.
Harris, 84 P.3d at 744-47 (footnotes omitted).
than apply Daubert to the facts in the record, this
Court must determine whether the OCCA's decision was an
unreasonable determination that Petitioner received a fair
trial. In Wilson v. Simons, 536 F.3d 1064 (10th Cir.
2008), the Tenth Circuit considered a claim that admission of
certain DNA results without a Daubert hearing
violated the petitioner's Eighth and Fourteenth Amendment
rights. Denying the claim, the Tenth Circuit held:
“As a general matter, federal habeas corpus relief does
not lie to review state law questions about the admissibility
of evidence....” Moore v. Marr, 254 F.3d 1235,
1246 (10th Cir.2001) (internal citations omitted). Absent a
showing that the admission of the evidence violated a
specific constitutional guarantee, a federal court on habeas
review will not disturb the state court's evidentiary
ruling unless it was “so grossly prejudicial that it
fatally infected the trial and denied the fundamental
fairness that is the essence of due process.” Fox
v. Ward, 200 F.3d 1286, 1296 (10th Cir.2000)
(quoting Williamson v. Ward, 110 F.3d 1508, 1522
(10th Cir.1997)); Milone v. Camp, 22 F.3d 693, 702
(7th Cir.1994). Because Daubert does not set any
specific constitutional floor on the admissibility of
scientific evidence, the only relevant question is whether
the PCR test rendered the trial fundamentally unfair.
Milone, 22 F.3d at 702; see also Norris v.
Schotten, 146 F.3d 314, 335 (6th Cir.1998).
Id. at 1101-02.
stated above, Dr. Call testified in camera before his
rebuttal testimony and was subjected to defense counsel's
questioning. The trial court granted defense counsel's
request for additional time to review Dr. Call's
testimony and was permitted to re-call Dr. Call for
cross-examination after the defense expert reviewed his work.
The Hare checklist utilized by Dr. Call was not novel. It was
utilized to not only predict future dangerousness but also as
a diagnostic tool for treatment and management. Dr.
Call's opinion was based on the results of this
recognized diagnostic tool and offered to rebut the claim
that Petitioner was not capable of intending to kill Mr.
Taylor. In fact, his opinion was corroborated by
Petitioner's own second stage expert who agreed
Petitioner had many of the traits of an individual with
psychopathy or antisocial personality disorder. (Tr., Vol.
XVIII, pp. 181-82, 192-93).
has not demonstrated the determination of the OCCA's was
contrary to, or an unreasonable application of, clearly
established Supreme Court law. Nor has Petitioner
demonstrated that the admission of Dr. Call's testimony
rendered the trial fundamentally unfair. Petitioner's
first ground for relief is denied.
2: Mental Capacity Jury Instruction.
next claims that the trial court erred when it instructed the
jury, over defense objection, that mental retardation was a
defense to the charged offenses only if it rendered him
incapable of knowing the wrongfulness of the offenses because
of his mental retardation. Petitioner claims this instruction
denied him the right to present a defense to the intent
element of malice aforethought murder in violation of his
Sixth and Fourteenth Amendment rights.
appeal, the OCCA determined no prejudice existed and no
violation of Petitioner's rights:
In Proposition 5, Appellant contends that the trial
court's instructions to the jury relating to his defense
were confusing, improper, and denied him a fair trial.
Appellant offered evidence that “low intelligence,
mental illness, and drug and alcohol induced
intoxication” combined to give him “limited
control” over his actions at the time of the crimes.
The goal of Appellant's defense was to show that at the
time of the shootings, he could not have formed a specific
intent to kill.
He requested and received a jury instruction on a lesser form
of homicide, First-Degree Manslaughter, arguably compatible
with his defense. However, because Appellant had attempted to
show that he was at least “borderline” mentally
retarded, the trial court also instructed the jury, over
defense objection but consistent with Oklahoma law, that
mental retardation was a complete defense to culpability if
it rendered the accused incapable of knowing the wrongfulness
of his acts. See 21 O.S.2001, § 152(3).
Appellant claims the trial court's instruction on mental
retardation as a complete exculpatory defense was not
supported by the evidence. We agree. The accused is entitled
to instructions on any defense theory, whether it be
mitigating or exculpatory, if the law and evidence reasonably
support that theory. Cipriano v. State, 2001 OK CR
25, ¶ 30, 32 P.3d 869, 876. Because, as Appellant
concedes, the evidence failed to suggest he was mentally
retarded to the extent he could not appreciate the
wrongfulness of his actions, the trial court's
instruction on mental retardation as an exculpatory defense
We fail to see how this instruction prejudiced Appellant. The
instruction actually saddled the State with the additional
preliminary burden of proving that Appellant was not mentally
retarded before he could be convicted of any crime. Even
though the outcome might have been unlikely, the instruction
gave the jurors the option of finding Appellant not guilty of
any crime, if they believed his intellectual capacity was so
diminished that he could not distinguish right from wrong.
Finally, the instruction in no way discouraged the jury from
fully considering Appellant's intellectual abilities,
along with his alleged mental illness and substance abuse, on
the issue of whether he lacked the ability to form a specific
intent to kill. Because the instruction could only have
worked to Appellant's benefit, we find no violation of
his substantial rights. McGregor v. State, 1994 OK
CR 71, ¶ 23, 885 P.2d 1366, 1380; Allen v.
State, 1994 OK CR 13, ¶ 33, 871 P.2d 79, 93.
Proposition 5 is denied.
Harris, 84 P.3d at 749-50.
petitioner seeking collaterally to attack a state court
conviction based on an erroneous set of jury instructions
“bears a heavy burden of proof.” Shafer v.
Stratton, 906 F.2d 506, 508 (10th Cir.1990).
“Habeas proceedings may not be used to set aside a
state conviction on the basis of erroneous jury instructions
unless the errors had the effect of rendering the trial so
fundamentally unfair as to cause a denial of a fair trial in
the constitutional sense, ” Shafer, 906 F.2d
at 508 (quotation omitted), or “so infected the entire
trial that the resulting conviction violates due process,
” Estelle v. McGuire, 502 U.S. 62, 72 (1991)
(quoting Cupp v. Naughten, 414 U.S. 141, 147
has not demonstrated the trial court's instruction had a
substantial and injurious effect or influence on the
jury's verdict, Brecht v. Abrahamson, 507 U.S.
619, 631 (1993), or that the OCCA's determination was
contrary to, or an unreasonable application of, clearly
established federal law as determined by the Supreme Court.
Accordingly, Petitioner's ground for relief is denied in
3: Failure to Instruct on Lesser Offense.
Beck v. Alabama, 447 U.S. 625 (1980), the Supreme
Court held that the Due Process Clause of the Fourteenth
Amendment sometimes requires a state charging a defendant
with a capital offense to permit the jury to consider
alternative, lesser included offenses that do not carry with
them the prospect of a death sentence. Id. at 627;
see also Schad v. Arizona, 501 U.S. 624, 647 (1991).
At the first stage of trial the State charged Petitioner with
first-degree malice aforethought murder. The trial court
denied defense counsel's request to instruct the jury on
second-degree depraved mind murder, but did instruct on a
lesser offense of first-degree manslaughter. Petitioner
claims here that the denial of his requested instruction on
the lesser offense of second-degree depraved mind murder
violated his Sixth, Eighth, and Fourteenth Amendment rights.
Beck, the Supreme Court held that “a sentence
of death [may not] constitutionally be imposed after a jury
verdict of guilt of a capital offense, when the jury was not
permitted to consider a verdict of guilt of a lesser included
non-capital offense, and when the evidence would have
supported such a verdict.” Id. at 627
(emphasis added). On appeal, the OCCA determined the evidence
did not warrant an instruction on second degree murder:
In Proposition 10, Appellant claims error in the trial
court's rejection of his proposed instructions on the
lesser offense of Second Degree (Depraved Mind) Murder, as
well as his proposed instruction attempting to define
“reasonable doubt.” As to the first claim, the
trial court was required to instruct on every degree of
homicide reasonably supported by the evidence. Shrum v.
State, 1999 OK CR 41, ¶ 10, 991 P.2d 1032, 1036. To
warrant an instruction on Second Degree (Depraved Mind)
Murder, the evidence must reasonably support the conclusion
that the defendant committed an act so imminently dangerous
to another person as to evince a depraved mind in disregard
for human life. Williams v. State, 2001 OK CR 9,
¶ 23, 22 P.3d 702, 712.
Appellant shot Taylor twice at close range, immediately after
pushing him down to the ground. Appellant testified that he
shot Taylor “accidentally, ” “without
thinking or knowing” what he was doing. Instructions on
depraved-mind murder are unwarranted when the defense claims
the fatal gunshots were fired accidentally. Crumley v.
State, 1991 OK CR 72, ¶ 13, 815 P.2d 676, 678-79.
Furthermore, in determining the sufficiency of the evidence
to support a lesser offense, we look to whether the evidence
might allow a jury to acquit the defendant of the greater
offense and convict him of the lesser. Cipriano,
2001 OK CR 25 at ¶ 14, 32 P.3d at 873. Given the
substantial evidence that Appellant drove to the transmission
shop to do violence (see discussion of Proposition 6), we do
not believe any rational trier of fact could have found
Appellant evinced a depraved mind but lacked an intent to
kill. Cf. Young v. State, 2000 OK CR 17,
¶¶ 61-62, 12 P.3d 20, 39-40 (instructions on
depraved-mind murder correctly refused where defendant
entered restaurant with intent to rob its occupants with
firearm, stood directly in front of victim, raised gun,
demanded money, and fatally shot victim in the back of the
chest when victim tried to defend himself), cert.
denied, 532 U.S. 1055, 121 S.Ct. 2200, 149 L.Ed.2d 1030
(2001); Boyd v. State, 1992 OK CR 40, ¶ 11, 839
P.2d 1363, 1367-68, cert. denied, 509 U.S. 908, 113
S.Ct. 3005, 125 L.Ed.2d 697 (1993) (instructions on
depraved-mind murder correctly refused where defendant shot
victim a second time in the chest at close range).
Harris, 84 P.3d at 750.
Shad v. Arizona, 501 U.S. 624, 645-48 (1991), the
Supreme Court held that Beck's requirement is
satisfied so long as the jury is instructed on at least one
lesser included offense that is supported by the evidence.
Here, the trial court instructed on the lesser included
offense of first-degree manslaughter.
OCCA's determination that the evidence did not warrant an
instruction on second degree murder was neither contrary to,
nor an unreasonable application of, clearly established
federal law. As detailed by the OCCA, Petitioner's
testimony that he “accidently” and “without
thinking or knowing” what he was doing does not warrant
an instruction on second degree depraved mind murder under
Oklahoma law. The OCCA further determined that substantial
evidence existed that Petitioner intentionally went to the
transmission shop to do violence such that no rational trier
of fact could have found Petitioner evinced a depraved mind
but lacked the intent to kill - i.e., that the evidence did
not support the lesser instruction of second degree depraved
Beck's requirements were met, and the OCCA's
determination was not contrary to, or a unreasonable
application of, federal law, Petitioner has not demonstrated
that failure to instruct on second degree depraved mind
murder rendered his trial fundamentally unfair. See James
v. Gibson, 211 F.3d 543, 555 (10thCir. 2000).
Accordingly, Petitioner's third ground for relief is
4: Impartial Jury Claim.
claims the prosecution utilized four of its nine peremptory
challenges to remove venire persons without sufficient race
neutral reasons and that the trial court's acceptance of
the reasons and dismissal of those prospective jurors was a
violation of his Fifth, Sixth, and Fourteenth Amendment
rights as provided in Batson v. Kentucky, 476 U.S.
Batson, the Supreme Court held that although a
prosecutor ordinarily is entitled to exercise permitted
peremptory challenges “‘for any reason at all, as
long as that reason is related to his view concerning the
outcome' of the case to be tried, . . . the Equal
Protection Clause forbids the prosecutor to challenge
potential jurors solely on account of their race or on the
assumption that black jurors as a group will be unable
impartially to consider the State's case against a black
defendant.” Id. at 89 (internal citations
omitted). Subsequently, the Supreme Court articulated
Batson's three-step process for evaluating claims that a
prosecutor used peremptory challenges in violation of the
Equal Protection Clause:
First, a defendant must make a prima facie showing that a
peremptory challenge has been exercised on the basis of race.
476 U.S., at 96-97, 106 S.Ct. 1712. Second, if that showing
has been made, the prosecution must offer a race-neutral
basis for striking the juror in question. Id., at
97-98, 106 S.Ct. 1712. Third, in light of the parties'
submissions, the trial court must determine whether the
defendant has shown purposeful discrimination. Id.,
at 98, 106 S.Ct. 1712.
Miller-El v. Cockrell, 537 U.S. 322');">537 U.S. 322, 328-29 (2003).
appeal, Petitioner raised his claim as to four minority
veniremen excused by the prosecution's use of its
peremptory challenges. Petitioner asserts his claim here,
however, only as to one venire person, stating “[d]ue
to the limitations of the AEDPA only the peremptory strike as
to juror Carol Gray is being pursued in this Petition.”
(Pet. at 39) The OCCA identified Batson as
controlling authority and set forth its three part inquiry,
analyzed all four of Petitioner's claims, and denied
relief. Harris, 84 P.3d at 743. As to the claim
raised here, the OCCA stated:
The prosecutor moved to strike Ms. Gray because her answers
to questions were unclear, and because she made several
comments suggesting she would be sympathetic to
Appellant's defense. Appellant's claim that the
prosecutor deliberately asked Ms. Gray confusing questions is
not supported by the record. Ms. Gray stated that in her
opinion, people who acted under the influence of alcohol were
less responsible for their actions. The prosecutor's
concern about Ms. Gray's ability to assimilate the facts
and follow the law was a plausible, race-neutral reason for
removing her. In conclusion, we find no evidence that the
prosecutor's stated reasons for striking these panelists
were so fantastic or incredible as to warrant relief.
Proposition 8 is denied.
Harris, 84 P.3d at 743.
disposition of a Batson claim is a question of
fact....” Saiz v. Ortiz, 392 F.3d 1166, 1175
(10th Cir. 2004). As long as the state court applied
Batson, Petitioner is entitled to relief only if the
state court's rejection of his claim “was ‘an
unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.'
” Black v. Workman, 682 F.3d 880, 896 (10th
Cir. 2012)(quoting 28 U.S.C. § 2254(d)(2)).
challenges the removal of Ms. Gray claiming that the
prosecutor utilized a peremptory challenge to excuse her
because she was a black woman. The prosecutor's expressed
reasons for excusing Ms. Gray included Ms. Gray's
inability to understand many of the questions presented to
her and her multiple non-responsive answers. The
prosecutor's reasons for exercising a peremptory
challenge, and the trial court's acceptance of those
stated reasons, are supported by review of the record. Many
of Ms. Gray's responses to pointed questions were often
confusing. When asked what things in life caused her to think
about the death penalty, Ms. Gray's response reflected
thought about guilt and innocence as well as statements
regarding the media's inaccurate reporting of facts. She
did not respond concerning the death penalty. (Tr., Vol. 3,
pp. 150-51) When asked whether in her opinion Timothy McVeigh
deserved the death penalty, Ms. Gray responded: “I only
know by people that were there that told me. They would tell
me something that were actually there. They couldn't have
seen everything, just certain. They, you know, were here at
the same time. They just tell me about their
situation.” (Id.) Ms. Gray responded to almost
every question presented to her about the whether she could
impose the death penalty as a sentence by referring to
evidence and the fact that she did not know all the details
prevented her from knowing if any sentence of death had ever
been appropriate or justified. (Tr., Vol. 3, pp. 147-51) Ms.
Gray further stated that in her opinion people under the
influence of alcohol were less responsible for their actions
because they were not aware of what they were doing. (Tr.,
Vol. 3, pp. 161-62)
prosecutor provided several race-neutral reasons to strike
Ms. Gray from serving on the jury. The OCCA determined from
its review that the prosecutor's concern about Ms.
Gray's ability to assimilate the facts and follow the law
was plausible, and that there was no evidence to support
granting Petitioner's claim for relief. Petitioner has
not satisfied his burden of demonstrating that the OCCA's
determination was either contrary to, or an unreasonable
application of, clearly established federal law, nor has he
demonstrated that the OCCA's determination was an
unreasonable determination of the facts in light of the
evidence presented in the state court proceeding.
Accordingly, Petitioner's claim for relief is denied.
5: Ineffective Assistance of Appellate Counsel in 2001 Direct
claims he was denied effective assistance of appellate
counsel in his 2001 direct appeal when propositions of error
were not presented regarding prosecutorial misconduct in the
first stage of trial, failure to claim ineffective assistance
of trial counsel for not obtaining micro-cassette tapes,
failure by appellate counsel to interview jurors and raise
the issue of ineffective assistance of trial counsel
regarding Petitioner being seen by the jury wearing
restraints, and failure to raise the claim on appeal that the
trial court did not instruct the jury the prosecution must
prove beyond a reasonable doubt the absence of heat of
prevail on a claim of ineffective assistance of counsel under
the Sixth Amendment, Petitioner must first show that his
counsel “committed serious errors in light of
‘prevailing professional norms'” in that the
representation fell below an objective standard of
reasonableness. See Strickland v. Washington, 466
U.S. 668, 688 (1984). In so doing, Petitioner must overcome
the “strong presumption” that his counsel's
conduct fell within the “wide range of reasonable
professional assistance” that “‘might be
considered sound trial strategy, '”
Strickland, 466 U.S. at 689, quoting Michel v.
Louisiana, 350 U.S. 91, 101 (1955). He must, in other
words, overcome the presumption that his counsel's
conduct was constitutionally effective. United States v.
Haddock, 12 F.3d 950, 955 (10th Cir. 1993). A
claim of ineffective assistance “must be reviewed from
the perspective of counsel at the time, ” Porter v.
Singletary, 14 F.3d 554, 558 (11th Cir.), cert.
denied, 513 U.S. 1009 (1994), and, therefore, may not be
predicated on “‘the distorting effects of
hindsight.'” Parks v. Brown, 840 F.2d
1496, 1510 (10th Cir. 1987), quoting Strickland, 466
U.S. at 689.
constitutionally deficient performance is shown, Petitioner
must then demonstrate that “there is a
‘reasonable probability' the outcome would have
been different had those errors not occurred.”
Haddock, 12 F.3d at 955; citing
Strickland, 466 U.S. at 688, 694; Lockhart v.
Fretwell, 506 U.S. 364, 369-70 (1993). In the specific
context of a challenge to a death sentence, the prejudice
component of Strickland focuses on whether
“the sentencer . . . would have concluded that the
balance of aggravating and mitigating circumstances did not
warrant death.” Strickland, 466 U.S. at 695;
quoted in Stevens v. Zant, 968 F.2d 1076, 1081 (11th
Cir. 1992), cert. denied, 507 U.S. 929 (1993).
Petitioner carries the burden of establishing both that the
alleged deficiencies unreasonably fell beneath prevailing
norms of professional conduct and that such deficient
performance prejudiced his defense. Strickland, 466
U.S. at 686; Yarrington v. Davies, 992 F.2d 1077,
1079 (10th Cir. 1993). In essence, “[t]he benchmark for
judging any claim of ineffectiveness must be whether
counsel's conduct so undermined the proper functioning of
the adversarial process that the trial cannot be relied on as
having produced a just result.” Strickland,
466 U.S. at 686. “Counsel's performance must be
‘completely unreasonable' to be constitutionally
ineffective, ‘not merely wrong.'” Welch
v. Workman, 639 F.3d 980, 1011 (10th Cir. June 7,
2010)(quoting Hoxsie v. Kerby, 108 F.3d 1239, 1246
(10th Cir. 1997)). “Surmounting
Strickland's high bar is never an easy
task.” Padilla v. Kentucky, 559 U.S. 356, 371,
130 S.Ct. 1473, 1485 (2010).
Establishing that a state court's application of
Strickland was unreasonable under § 2254(d) is
all the more difficult. The standards created by
Strickland and § 2254(d) are both “highly
deferential, ” [Strickland] at 689, 104 S.Ct.
2052; Lindh v. Murphy, 521 U.S. 320, 333, n. 7, 117
S.Ct. 2059, 138 L.Ed.2d 481 (1997), and when the two apply in
tandem, review is “doubly” so, Knowles,
556 U.S., at 123, 129 S.Ct. at 1420. The Strickland
standard is a general one, so the range of reasonable
applications is substantial. 556 U.S., at 123, 129 S.Ct. at
1420 . Federal habeas courts must guard against the danger of
equating unreasonableness under Strickland with
unreasonableness under § 2254(d). When § 2254(d)
applies, the question is not whether counsel's actions
were reasonable. The question is whether there is any
reasonable argument that counsel satisfied
Strickland's deferential standard.
Harrington v. Richter, 562 U.S. 86, 105 (2011).
deficient performance of appellate counsel can often be more
In Jones v. Barnes, 463 U.S. 745, 103 S.Ct. 3308, 77
L.Ed.2d 987 (1983), we held that appellate counsel who files
a merits brief need not (and should not) raise every
nonfrivolous claim, but rather may select from among them in
order to maximize the likelihood of success on appeal.
Notwithstanding Barnes, it is still possible to
bring a Strickland claim based on counsel's
failure to raise a particular claim, but it is difficult to
demonstrate that counsel was incompetent. See,
e.g., Gray v. Greer, 800 F.2d 644, 646
(C.A.7 1986) (“Generally, only when ignored issues are
clearly stronger than those presented, will the presumption
of effective assistance of counsel be overcome”).
Smith v. Robbins, 528 U.S. 259, 288 (2000).
analyzing an appellate ineffectiveness claim based upon the
failure to raise an issue on appeal, “we look to the
merits of the omitted issue, ” Neil ...