United States District Court, W.D. Oklahoma
RODERICK L. SMITH, Petitioner,
TERRY ROYAL, Warden, Oklahoma State Penitentiary, Respondent. 
L. RUSSELL UNITED STATES DISTRICT JUDGE.
Roderick L. Smith, a state court prisoner, has filed a
Petition for a Writ of Habeas Corpus seeking relief pursuant
to 28 U.S.C. § 2254. Doc. 18. This is Petitioner’s
second habeas petition.
1994, in Oklahoma County District Court Case No.
CF-1993-3968, Petitioner was tried by jury for the murders of
his wife and her four children. Petitioner was found guilty
and was sentenced to death on all five counts. In 1998, after
an unsuccessful pursuit for relief in the state courts,
Petitioner initiated his first habeas corpus action, and in
2002, the Court denied Petitioner relief. Smith v.
Gibson, No. CIV-98-601-R (W.D. Okla. Jan. 10, 2002)
(unpublished). Six months later, the Supreme Court held that
the Eighth Amendment prohibits the execution of a mentally
retarded offender, Atkins v. Virginia, 536 U.S. 304,
321 (2002), and in March 2004, Petitioner was given the
opportunity to prove that he is mentally
retarded. A state court jury concluded that he is
not (O.R. VI, 1115), and the Oklahoma Court of Criminal
Appeals (hereinafter “OCCA”) affirmed the
jury’s verdict. Smith v. State, No. O-2006-683
(Okla. Crim. App. Jan. 29, 2007) (unpublished). In July 2004,
the Tenth Circuit affirmed this Court’s denial of
relief with respect to Petitioner’s convictions, but
found that Petitioner was entitled to a new sentencing
proceeding due to ineffective assistance of counsel.
Smith v. Mullin, 379 F.3d 919 (10th Cir. 2004).
2009, Petitioner had a jury trial to determine to his
competence. Found competent (O.R. XII, 2276), Petitioner was
then resentenced in 2010. This time around, the jury imposed
two death sentences and three sentences of life without the
possibility of parole (O.R. XIII, 2611-30). Petitioner
appealed these sentences to the OCCA. The OCCA affirmed in a
published opinion. Smith v. State, 306 P.3d 557
(Okla. Crim. App. 2013), cert. denied, 134 S.Ct.
2662 (2014). Petitioner was unsuccessful in his pursuit of
post- conviction relief. Smith v. State, No.
PCD-2010-660 (Okla. Crim. App. Feb. 13, 2014) (unpublished).
presents seven grounds for relief. His first three grounds
relate to the state court determination that he is not
mentally retarded. Ground Four is a challenge to the legal
representation he received at his competency trial and
resentencing. In Grounds Five and Six, Petitioner argues that
execution for his crimes would violate the Eighth
Amendment’s prohibition against cruel and unusual
punishment. His final ground alleges cumulative error.
Respondent has responded to the petition and Petitioner has
replied. Docs. 35 and 43. In addition to his petition,
Petitioner has filed motions for discovery and an evidentiary
hearing. Docs. 20 and 38. After a thorough review of the
state court record (which Respondent has provided), the
pleadings filed in this case, and the applicable law, the
Court finds that, for the reasons set forth herein,
Petitioner is not entitled to his requested relief.
Standard of Review.
Exhaustion as a Preliminary Consideration.
exhaustion doctrine, a matter of comity which has long been a
part of habeas corpus jurisprudence, requires the Court to
consider in the first instance whether Petitioner has
presented his grounds for relief to the OCCA. As the Supreme
Court stated in Coleman v. Thompson, 501 U.S. 722,
731 (1991), “in a federal system, the States should
have the first opportunity to address and correct alleged
violations of state prisoner’s federal rights.”
The exhaustion doctrine is set forth in 28 U.S.C. §
2254(b). Section 2254(b)(1)(A) prohibits the Court
from granting habeas relief in the absence of
exhaustion (although Section 2254(b)(1)(B) sets forth two
limited exceptions to this rule), but Section 2254(b)(2)
expressly authorizes the Court to deny
habeas relief “notwithstanding the failure of the
applicant to exhaust the remedies available in the courts of
the issue of exhaustion, the Court must also examine how the
OCCA adjudicated each of Petitioner’s grounds for
relief, i.e., whether the OCCA addressed the merits of
Petitioner’s grounds or declined to consider them based
on a state procedural rule. “It is well established
that federal courts will not review questions of federal law
presented in a habeas petition when the state court’s
decision rests upon a state-law ground that ‘is
independent of the federal question and adequate to support
the judgment.’” Cone v. Bell, 556 U.S.
449, 465 (2009) (quoting Coleman, 501 U.S. at 729).
“The doctrine applies to bar federal habeas when a
state court declined to address a prisoner’s federal
claims because the prisoner had failed to meet a state
procedural requirement.” Coleman, 501 U.S. at
Limited Merits Review.
the OCCA has addressed the merits of one of
Petitioner’s grounds for relief, the Court reviews that
ground in accordance with the standard of relief set forth in
28 U.S.C. § 2254(d). Pursuant to that section of the
Antiterrorism and Effective Death Penalty Act of 1996
(hereinafter “AEDPA”), in order for Petitioner to
obtain relief, he must show that the OCCA’s
adjudication of a claim either
(1) resulted in a decision that was contrary to, or involved
an unreasonable application of, clearly established Federal
law, as determined by the Supreme Court of the United States;
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented
in the State court proceeding.
See Cullen v. Pinholster, 563 U.S. 170, 181 (2011)
(acknowledging that “[t]he petitioner carries the
burden of proof”). The very focus of this statutory
provision is the reasonableness of the OCCA’s decision.
“The question under AEDPA is not whether a federal
court believes the [OCCA’s] determination was incorrect
but whether that determination was unreasonable-a
substantially higher threshold.” Schriro v.
Landrigan, 550 U.S. 465, 473 (2007). In other words,
“[i]t is not enough that [this] [C]ourt, in its
independent review of the legal question, is left with a firm
conviction that the [OCCA] was erroneous.” What is
required is a showing that the OCCA’s decision is
“objectively unreasonable.” Lockyer v.
Andrade, 538 U.S. 63, 75-76 (2003) (internal quotation
marks and citations omitted).
Supreme Court has repeatedly acknowledged that Section
2254(d) “‘erects a formidable barrier to federal
habeas relief for prisoners whose claims have been
adjudicated in state court[,]’” and that
“[i]f [it] is difficult to meet, that is because it was
meant to be.” White v. Wheeler, 577 U.S.___,
136 S.Ct. 456, 460 (2015) (quoting Burt v. Titlow,
571 U.S.__, 134 S.Ct. 10');">134 S.Ct. 10, 16 (2013)); Harrington v.
Richter, 562 U.S. 86, 102 (2011). Section 2254(d)
“stops short of imposing a complete bar on
federal-court relitigation of claims already rejected in
state proceedings.” Richter, 562 U.S. at 102.
What remains, then, is a very narrow avenue for relief, one
that permits relief only “where there is
no possibility fairminded jurists could disagree that
the [OCCA’s] decision conflicts with [the Supreme]
Court’s precedents.” Id. (emphasis
Section 2254(d) reflects the view that habeas corpus is a
“guard against extreme malfunctions in the state
criminal justice systems,” not a substitute for
ordinary error correction through appeal. As a condition for
obtaining habeas corpus from a federal court, a state
prisoner must show that the state court’s ruling on the
claim being presented in federal court was so lacking in
justification that there was an error well understood and
comprehended in existing law beyond any possibility for
Id. at 102-03 (citation omitted). When reviewing a
claim under Section 2254(d), review “is limited to the
record that was before the state court that adjudicated the
claim on the merits.” Pinholster, 563 U.S. at
Ground One: Sufficiency of the Evidence (Mental
first ground for relief is an Atkins claim. He
argues that because he is mentally retarded, his two death
sentences cannot stand. The question of whether or not
Petitioner is mentally retarded was submitted to a jury in
2004. The twelve-member jury listened to five days of
testimony from twenty-three witnesses, ultimately concluding
that Petitioner is not mentally retarded. On appeal to the
OCCA, Petitioner challenged the jury’s verdict,
claiming it was contrary to the clear weight of the evidence.
The OCCA denied relief on the merits. Smith, No.
O-2006-683, slip op. at 6-11.
denying Petitioner relief, the OCCA acknowledged that in
mental retardation proceedings, Petitioner has the burden to
prove by a preponderance of the evidence “‘1)
that he functions at a significantly sub-average intellectual
level that substantially limits his ability to understand and
process information, to communicate, to learn from experience
or mistakes, to engage in logical reasoning, to control
impulses, and to understand the reactions of others; 2) that
his mental retardation manifested itself before the age of
18; and 3) that he has significant limitations in adaptive
functioning in at least two of the nine listed skill areas
[communication; self-care; social/interpersonal skills; home
living; self-direction; academics; health and safety; use of
community resources; and work].’” Id. at
6 & n.8 (quoting Myers v. State, 130 P.3d 262
(Okla. Crim. App. 2005), for the definition of mental
retardation developed by the OCCA in Murphy v.
State, 54 P.3d 556, 567-68 (Okla. Crim. App.
a defendant challenges the sufficiency of the evidence
following a jury verdict finding him not mentally retarded,
[the OCCA] reviews the evidence in the light most favorable
to the State to determine if any rational trier of fact could
have reached the same conclusion.” Smith, No.
O-2006-683, slip op. at 6. The Tenth Circuit has found this
to be “the relevant constitutional standard.”
Hooks, 689 F.3d at 1166. “Put a different way,
if any rational trier of fact could have found that
[Petitioner] failed to establish, by a preponderance of the
evidence, that he is mentally retarded, then the jury verdict
must be upheld.” Id. This is a mixed question
of law and fact. Id. at 1165.
the standard of review applied to a jury verdict in a mental
retardation proceeding is a modification of the standard set
out in Jackson v. Virginia, 443 U.S. 307 (1979), the
deference is the same: a jury verdict is given substantial
deference. Because it is the jury’s job “to
resolve conflicts in the testimony, to weigh the evidence,
and to draw reasonable inferences from basic facts to
ultimate facts[,]” its verdict will be
“impinge[d] . . . only to the extent necessary to
guarantee the fundamental protection of due process of
law.” Id. at 319. And, in the habeas context,
“a second layer of deference” is added. This
Court does “not directly review the jury’s
verdict[,]” but looks to the OCCA’s resolution of
the sufficiency claim to determine if “the OCCA
correctly identified the governing legal principle from
Jackson and reasonably applied it to the facts of
[Petitioner’s] case.” Hooks, 689 F.3d at
1167. Therefore, in order to obtain relief, Petitioner must
overcome these layers of deference and show that all
fairminded jurists would agree that the OCCA “got it
wrong.” Lockett v. Trammel [sic], 711 F.3d
1218, 1231 (10th Cir. 2013). See also Frost v.
Pryor, 749 F.3d 1212, 1225 (10th Cir. 2014) (“If .
. . some fairminded jurists could possibly agree with the
[OCCA’s] decision, then it was not unreasonable and the
writ should be denied.”).
reviewing the OCCA’s resolution of this claim, the
Court can only consider the evidence which the OCCA had
before it. Pinholster, 563 U.S. at 181;
Hooks, 689 F.3d at 1167. Because Petitioner’s
Ground One is a challenge to the jury’s verdict, the
evidence before the OCCA was the evidence that was presented
to the jury. Despite these review parameters,
Petitioner’s argument for relief relies heavily on
evidence which was not presented at his mental retardation
trial. The Court will not consider this
evidence. The following is a summary of the trial
experts, Dr. Clifford Alan Hopewell and Dr. Fred Smith,
testified on Petitioner’s behalf. Dr. Hopewell, a
clinical neuropsychologist who had been involved in
Petitioner’s case since 1997, testified that in his
opinion, Petitioner is “within the range of mild mental
retardation” (Tr. 3/9/04, 30, 42, 46). Dr. Hopewell
tested Petitioner’s intelligence quotient (I.Q.) using
the third revision of the Wechsler Adult Intelligence Scale
(WAIS-III). Petitioner’s full scale score was a 55, a
score which reflected significantly sub-average intellectual
functioning (id. at 55-56). Dr. Hopewell testified
that this score substantially limits Petitioner’s
ability to understand and process information, to
communicate, to learn from experiences or mistakes, to engage
in logical reasoning, to control impulses, and to understand
the reactions of others (id. at 57).
assess Petitioner’s adaptive functioning, Dr. Hopewell
administered the Vineland Test and the Wide Range Achievement
Test (WRAT-III), concluding that Petitioner has significant
deficits in all areas (Tr. 3/9/04, 61, 65, 68, 130).
Regarding communication, Dr. Hopewell found that Petitioner
was “impoverished.” While Petitioner could talk
and communicate about basic things, Dr. Hopewell described
Petitioner’s communication skills as limited and
lacking in both detail and spontaneity. He testified that
Petitioner’s communication was at an eight-year-old
level (id. at 62-64). Regarding academics (as tested
with the WRAT-III), Dr. Hopewell testified that Petitioner
was at the kindergarten or first-grade level in spelling and
writing (id. at 65-66). He also noted that
Petitioner is functionally illiterate (id. at
Hopewell testified that he had seen evidence that Petitioner
had this condition before age 18 and that he did not believe
that Petitioner was malingering or faking his condition
(id. at 71, 73, 77).
Smith, a psychologist with the Oklahoma Department of
Corrections, testified about his evaluation and testing of
Petitioner in 1997. On the Wechsler Adult Intelligence
Scale–Revised (WAIS-R), Petitioner’s full scale
I.Q. score was a 65, and on the Standard Progressive
Matrices, also known as the Raven’s, Petitioner’s
I.Q. score was between 69 and 78. Dr. Smith testified that
Petitioner’s score on the WAIS-R was indicative of
mental retardation (Tr. 3/10/04, 157-62). Although Dr. Smith
believed that Petitioner was “a little bit brighter
than what he tested out to be on the [WAIS-R],” he did
not believe that Petitioner was faking. In his opinion,
Petitioner “is consistent with mental retardation in
his general level of functioning and speech”
(id. at 163, 167-68). Noting that adaptive
functioning is difficult to measure in a structured prison
setting, Dr. Smith did not determine if Petitioner had any
adaptive functioning deficits (id. at 164, 186-87).
Ultimately, Dr. Smith testified that Petitioner was
“right on [the] cusp” of being mentally retarded,
but that he would “vote for mental retardation”
(id. at 168).
all of Petitioner’s school records except his high
school transcript had been destroyed, school administrators
and teachers testified that Petitioner was in special
education classes beginning in elementary school (Tr. 3/9/04,
202-04; Tr. 3/10/04, 8-11, 14; Def.’s Exs. 1-3). Paul
Preston, who taught high school special education, was
Petitioner’s teacher for four years. He described
Petitioner as having very low/limited abilities. Although
Petitioner received custodial training during high school,
Mr. Preston testified that he would be surprised to learn
that Petitioner worked as a janitorial supervisor because he
did not believe that Petitioner had the skills for such a
position (Tr. 3/10/04, 22, 28, 31, 43). Another special
education teacher, Mona Autry, also had Petitioner as a
student. She testified that Petitioner functioned in her
classes at about a third grade level. Although Petitioner
tried hard, Ms. Autry testified that Petitioner was one of
her lower functioning students. Like Mr. Preston, she
testified that she would be “[e]xtremely
surprised” to learn that Petitioner was able to become
a head janitor (id. at 94, 99-101, 104, 114). Both
Ms. Autry and Mr. Preston acknowledged Petitioner’s
very limited ability to read (id. at 34, 100).
Corsoro was the music teacher at the elementary school where
Petitioner was employed as head custodian. They worked
together for about five years. Petitioner was responsible for
cleaning her room and he also helped her with other things
from time to time. Ms. Corsoro testified that through her
interaction with Petitioner, she discovered that he could not
read (Tr. 3/10/04, 45-53; Def.’s Ex. 4).
witnesses testified that Petitioner was able to drive a car,
Lee Frizzell, an Oklahoma Department of Public Safety
employee, testified that Petitioner did not have a
driver’s license (Tr. 3/9/04, 112-14; Tr. 3/10/04, 63,
66, 75-76; Tr. 3/12/04, 41).
cousin, Chris Scott, testified that Petitioner was a loner,
that he was slower than everyone else, that he did not read,
and that Petitioner’s mother did everything for him
(Tr. 3/10/04, 69-71). For about a year, Mr. Scott worked as a
janitor with Petitioner. Mr. Scott testified that although
Petitioner was his supervisor, Petitioner did not perform
supervisory duties. Mr. Scott’s mother, who hired
Petitioner, handled the paperwork, ordering, and time cards
(id. at 71-74).
Fisher, an attorney who had previously represented
Petitioner, described Petitioner “like an 11 or
12-year-old child” whose “main concern in life is
that he have pens and coloring books.” Mr. Fisher
identified a folder containing numerous coloring pages
Petitioner had colored and sent to him. Mr. Fisher testified
that he purchased coloring books for Petitioner and sent him
money to buy felt pens at the prison commissary. Mr. Fisher
did not bother sending Petitioner any books because
Petitioner “can’t read more than just maybe a few
words.” Mr. Fisher testified that Petitioner was not
smart enough to make the decision to malinger (Tr. 3/10/04,
147-50, 151, 155; Def.’s Ex. 7).
Cleary, who had shared a cell with Petitioner over the years,
testified about his interaction with Petitioner in prison
(Def.’s Ex. B at 4). When Petitioner first moved into his
cell, Mr. Cleary knew “within 30 minutes . . . that
[Petitioner] had some problems” (id. at 5). He
testified that Petitioner could not read or write, and
although he tried to teach Petitioner to read, “it was
hopeless” (id. at 5-6, 7, 9-11). Mr. Cleary
testified that Petitioner would color in his coloring books
and watch TV all day (id. at 7-8). Mr. Cleary helped
Petitioner write and address letters and fill out his canteen
slips (id. at 12-13, 15-16). Mr. Cleary testified
that Petitioner could not tell time (except with a digital
clock) or play simple games (except for Tic-Tac-Toe)
(id. at 13-15, 29-30). When Petitioner would
frequently cut himself and do nothing to address the
bleeding, Mr. Cleary administered the first aid Petitioner
needed (id. at 17-18). Mr. Cleary testified that
other inmates took financial advantage of Petitioner
(id. at 18-20).
mother, Eva Cates, testified that Petitioner “was very,
very slow” from the start. For him, walking, talking,
and potty training were all delayed developments (Tr.
3/11/04, 5-7). Ms. Cates testified that other kids were cruel
and would tease Petitioner because he acted like a
two-year-old (id. at 7). Ms. Cates testified that
she was told that Petitioner was placed in special education
classes (id. at 8). She did not teach Petitioner to
cook because she “didn’t want him to play with
fire when [she] wasn’t there” (id. at
State retained Dr. John Call, a forensic psychologist, to
review Dr. Hopewell’s opinion and conduct his own
evaluation (Tr. 3/15/04, 3-7). It was Dr. Call’s
opinion that no reliable documentation existed to indicate
that Petitioner was mentally retarded (id. at 39,
Call disagreed with Dr. Hopewell’s conclusion that
Petitioner was not malingering. To determine if Petitioner
was malingering, Dr. Hopewell administered two tests, the
Test of Memory and Malingering (TOMM) and the 15-Item Memory
Test. Petitioner’s results on both of these tests
showed that Petitioner was malingering; however, Dr. Hopewell
discounted these results due to Petitioner’s low score
on the WAIS-III. Dr. Call testified that there was no
research to support Dr. Hopewell’s disregard for the
malingering test results based on Petitioner’s low I.Q.
(id. at 12-22, 24-25, 37). When Dr. Call himself
administered the WAIS-III and the TOMM to Petitioner, he
received the same results as Dr. Hopewell; however, giving
appropriate consideration to Petitioner’s scores on the
TOMM, Dr. Call testified that Petitioner’s WAIS-III
score must be deemed invalid due to malingering. In sum,
because there was evidence that Petitioner was malingering
during both testing sessions, Dr. Call testified that neither
his results nor Dr. Hopewell’s results could be
considered valid I.Q. assessments (id. at 25-26,
Call also took note of other I.Q. tests Petitioner had taken.
In 1994, Petitioner received an I.Q. score of 73, and in
1997, he received a 70. Dr. Call testified that the drop from
a 73 in 1994 to a 55 in 2003 was significant, and he
explained how easy it would be to malinger on the WAIS test
(Tr. 3/15/04, 34-38).
Call disagreed with Dr. Hopewell’s use of the Vineland
Test to assess Petitioner’s adaptive functioning.
Because Dr. Hopewell administered the test to Petitioner, and
not to a third-party observer like a parent or a teacher as
the Vineland was specifically designed, Dr. Call testified
that Dr. Hopewell’s assessment of adaptive functioning
was also invalid. Acknowledging that adaptive functioning is
extremely difficult to assess in a prison setting, as Dr.
Smith likewise testified, Dr. Call did not do any formal
adaptive functioning assessment of Petitioner. He did,
however, testify that the Adaptive Behavior Assessment
System, Second Edition (ABAS-II), could have been used. Based
on his interviews with certain prison personnel and his own
interaction with Petitioner, Dr. Call did not believe that
Petitioner had any deficiencies in any particular area of
adaptive functioning (id. at 22-25, 30-34, 48-49).
Dr. Hopewell, Dr. Call also gave Petitioner the WRAT-III.
Although Dr. Call expected results similar to those received
by Dr. Hopewell, the results were not the same. One major
difference was in spelling. When Dr. Call administered the
test, Petitioner could not even spell his last name or
recognize several additional letters – letters he was
able to identify for Dr. Hopewell just eight months
before. After the State made reference to admitted
exhibits wherein Petitioner had previously signed his name,
Dr. Call testified that absent some significant brain damage
since the time Petitioner had signed those documents (which
there was no evidence of), it was clear to him that
Petitioner was not putting forth his best effort (Tr. 3/9/04,
148; Tr. 3/15/04, 26-30, 70; State’s Exs. 1-2, 5 and
Badillo was an insurance agent who met with Petitioner and
his wife about life insurance. Ms. Badillo testified that
Petitioner “seemed perfectly normal” and
“very sociable.” Ms. Badillo stated that if
Petitioner had had any kind of physical or mental challenge,
she would not have been able to help him obtain a life
insurance policy. After meeting with Petitioner for almost an
hour, Ms. Badillo even asked Petitioner if he would be
interested in working at her company selling insurance and
other services (Tr. 3/11/04, 46-52; State’s Ex. 6).
Watts, Petitioner’s case manager at the Oklahoma
Department of Corrections, testified about her interaction
with Petitioner over a two to three-year period. She
described Petitioner as quiet and respectful (id. at
55-57). But for his cell change requests, which she felt were
manipulative, she testified that Petitioner was no different
from the other inmates (id. at 57, 61).
Woodward was Petitioner’s supervisor at work in the
months immediately preceding Petitioner’s crimes. Mr.
Woodward testified that as head custodian, Petitioner was the
“go-to person if there was something that had to be
done.” Petitioner supervised four to five employees and
did so adequately. No family members worked with Petitioner
while Mr. Woodward was his supervisor (Tr. 3/11/04, 68-73).
Mr. Woodward communicated with Petitioner through a pager,
and Mr. Woodward testified that Petitioner knew how to
operate the school’s zoned alarm system (id.
at 73-79). Mr. Woodward testified that Petitioner had access
to carpet cleaners at the school and that from his review of
crime scene photos, he could tell that the carpets had been
cleaned by a cleaner similar to the ones at the school
(id. at 79-81).
Smith, one of the assistant district attorneys who originally
prosecuted Petitioner, testified about her observations of
him in 1993 and 1994. Ms. Smith, who has a Master’s
Degree in Special Education and previously taught high school
special education before becoming an attorney, testified that
she “didn’t notice anything unusual or out of the
ordinary during the times that [she] was in court with
[Petitioner].” Ms. Smith told the jury that Petitioner
filed and argued some of his own motions and that he was
“articulate” and “knew what he was
doing.” Ms. Smith further testified that Petitioner
“made good arguments” and “knew why he was
presenting them.” Ms. Smith also testified that during
his original trial Petitioner took notes and discussed the
notes with his attorney, which was very different from how
Petitioner was currently acting in front of the jury. Based
on her observations of Petitioner, Ms. Smith did not see
anything that indicated he was mentally retarded (Tr.
3/11/04, 100-05, 111).
City Police Officer John Maddox, who investigated the scene
of Petitioner’s crimes, testified that the crime scene
had been altered after the crimes occurred (Tr. 3/11/04,
112-14). Some evidence was hidden in closets and under a bed,
other evidence was concealed, and the title to
Petitioner’s car was found in the attic (id.
at 114, 116). There was also evidence that the crime scene
had been cleaned. After running some tests, the police
determined that evidence had been removed from the carpet and
from the kitchen and bathroom sinks (id. at 116-17).
Officer Maddox testified that all of these actions were done
to delay the investigation and did in fact do so, as
Petitioner’s crimes were not detected for some seven to
ten days after their commission (id. at 116,
Maddox also testified about his interview of Petitioner on
June 30, 1993. He testified that Petitioner understood his
rights and answered some questions before pulling an
attorney’s business card out of his pocket and
indicating that he did not want to talk anymore (id.
at 117-19). He also testified how Petitioner was able to
return a bicycle to a retail store and obtain a refund
(id. at 119-20).
months before Petitioner’s crimes, Petitioner was
having an affair with Laura Dich. Petitioner met Ms. Dich
at a flea market. They exchanged phone numbers and began
seeing each other the next day. Although Ms. Dich contacted
Petitioner by pager and only met with Petitioner at certain
times of the night, Ms. Dich had no idea that Petitioner was
married and had kids. Ms. Dich saw Petitioner about four
times a week and she considered him her boyfriend. Petitioner
told her that he loved her and wanted to marry her and have
kids with her. Petitioner maintained a sexual relationship
with Ms. Dich and he rented a motel room for this specific
purpose on more than one occasion. Ms. Dich testified that
Petitioner acquired and paid for the motel room without her
assistance (Tr. 3/12/04, 6-24, 26-27, 29).
Love, Petitioner’s mother-in-law, testified that
although she did not have a lot of contact with Petitioner,
she did not believe he had anything wrong with him mentally.
She did acknowledge, however, that Petitioner was a little
slow, that “he didn’t know what he should have
known,” and that she was not particularly happy with
her daughter being in a relationship with him (id.
at 32-34, 37-39).
Mishion, Petitioner’s wife’s niece, testified
about the time she spent with Petitioner and his family. She
told the jury about Petitioner’s care of the kids and
about how he would drive, read the paper, and cook breakfast.
Petitioner even taught her how to drive. Ms. Mishion never
had the impression that Petitioner was mentally handicapped
or slow because he was no different than the rest of the
family and was able to do what others could do (id.
Dean was Petitioner’s sister-in-law. Like Ms. Mishion,
she testified about her familial relationship with
Petitioner. She described Petitioner as “kind of
stand-offish,” but other than that he was normal.
Because Ms. Dean had a younger sister who was
“slow”, she had a point of reference. She
testified that in comparison to her sister, Petitioner was
normal (id. at 47-51).
noted above, in denying Petitioner relief on the sufficiency
issue, the OCCA applied the correct constitutional standard.
The question therefore is whether the OCCA applied it
reasonably given the presented evidence. In upholding the
jury’s verdict, the OCCA analyzed the issue as follows:
Evidence of [Petitioner’s] intellectual functioning was
controverted at trial by the experts.[FN9]
[Petitioner’s] primary expert, Dr. Clifford Hopewell,
tested him in January 2003 and scored his full scale I.Q. at
55. Dr. Hopewell concluded that [Petitioner] is mildly
mentally retarded and that he has adaptive functioning
deficits in at least five areas. Dr. Frederick Smith, another
psychologist who evaluated [Petitioner] in prison in 1997,
testified that his testing showed that [Petitioner’s]
full scale I.Q. was 65, some ten points higher than Dr.
Hopewell’s score. Dr. Smith was left with the
impression during his evaluation that [Petitioner] was
actually brighter than what his I.Q. test score showed. He
wrote in a memo shortly after the evaluation that he
suspected that [Petitioner’s] score was somewhat low in
terms of accuracy. Dr. Smith also administered the
Raven’s Standard Progressive Matrices that showed
[Petitioner’s] I.Q. was in the range of 69 to 78. He
testified that he now believes [Petitioner’s] I.Q. is
closer to 70.
FN9. Intelligence quotients are one of the many factors that
may be considered, but are not alone determinative.
Myers, 2005 OK CR 22, ¶ 8, 130 P.3d at 268.
State presented the testimony of forensic psychologist Dr.
John Call to refute [Petitioner’s] expert evidence of
subaverage intellectual functioning. Dr. Call gave
[Petitioner] the Wechsler Adult Intelligence Scale-III
(WAIS-III) I.Q. test and reviewed Dr. Hopewell’s data
and score on this same test, as well as several other tests.
He found that [Petitioner] failed two tests designed to
detect malingering given by Dr. Hopewell.[FN10] According to
Dr. Call, [Petitioner’s] performance on these two tests
provides significant doubt about his efforts on the WAIS-III
I.Q. test and the validity of Dr. Hopewell’s overall
testing. Dr. Call also gave [Petitioner] one of the
malingering tests (Test of Memory and Malingering) during his
evaluation and found that [Petitioner] failed again. Dr. Call
concluded that [Petitioner’s] score suggested a lack of
effort on his part calling into doubt the reliability and
validity of the I.Q. score that both he and Dr. Hopewell
obtained.[FN11] Dr. Call noted a previous I.Q. test given by
Dr. Murphy in 1994 in which [Petitioner] scored a full scale
I.Q. of 73. Dr. Call believed lack of effort on
[Petitioner’s] part was one possible explanation to
account for the discrepancy in the subsequent scores. In Dr.
Call’s opinion, the data showed that [Petitioner] did
not put forth his best efforts during his and Dr.
Hopewell’s testing and that [Petitioner’s] I.Q.
test results were unreliable and suspect.
FN10. The tests were the 15-Item Test and the Test of Memory
and Malingering commonly referred to as the TOMM test.
FN11. Dr. Call’s I.Q. testing of [Petitioner] also
showed a full scale I.Q. score of 55.
evidence of [Petitioner’s] I.Q. was disputed, the State
presented persuasive evidence from lay witnesses to refute
[Petitioner’s] evidence of subaverage intellectual
functioning and of adaptive functioning deficits. Emma Watts,
[Petitioner’s] former case manager, now unit manager in
prison, testified that she had daily contact with
[Petitioner] for two years while acting as his case manager.
Watts described [Petitioner] as quiet and respectful for the
most part; he appeared to be like the other inmates in her