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Harris v. Royal

United States District Court, W.D. Oklahoma

April 19, 2017

TERRY ROYAL[1], Warden, Oklahoma State Penitentiary, Respondent.



         Petitioner, 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”), [2] and Petitioner has replied. The State court record has been supplied.[3]


         Petitioner 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.

         Petitioner 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).


         Under 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 AAMCO shop.
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 illness.

Harris, 164 P.3d at 1106-07.



         Under 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 adjudication:

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d)(1-2).

         The 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.

         The “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 (2011)(citation omitted).


         Ground 1: Mental Health Rebuttal Evidence.

         During 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 psychopath.

         Petitioner 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.

         After 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 sanction:

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 testimony.

Harris, 84 P.3d at 745.

         Dr. 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 unreasonable.

         Petitioner 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 necessary.
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 behavior.
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).

         Rather 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.

         As 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).

         Petitioner 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.

         Ground 2: Mental Capacity Jury Instruction.

         Petitioner 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.[4]

         On 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 was unwarranted.
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.

         A 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 (1973)).

         Petitioner 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 its entirety.

         Ground 3: Failure to Instruct on Lesser Offense.

         In 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.

         In 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.

         In 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.

         The 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 mind murder.

         As 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 denied.

         Ground 4: Impartial Jury Claim.

         Petitioner 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. 79 (1986).

         In 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).

         On 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.[5]

Harris, 84 P.3d at 743.

         “The 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)).

         Petitioner 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)

         The 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.

         Ground 5: Ineffective Assistance of Appellate Counsel in 2001 Direct Appeal.

         Petitioner 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 passion.

         To 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.

         If 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).

         Demonstrating deficient performance of appellate counsel can often be more difficult:

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).

         In 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 ...

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