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Smith v. Royal

United States District Court, W.D. Oklahoma

July 13, 2017

RODERICK L. SMITH, Petitioner,
TERRY ROYAL, Warden, Oklahoma State Penitentiary, Respondent. [1]



         Petitioner, 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.

         In 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 Jan. 10, 2002) (unpublished).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,[2] Petitioner was given the opportunity to prove that he is mentally retarded.[3] 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 Jan. 29, 2007) (unpublished).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).

         In 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 Feb. 13, 2014) (unpublished).

         Petitioner 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.

         I. Standard of Review.

         A. Exhaustion as a Preliminary Consideration.

         The 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 State.”

         B. Procedural Bar.

         Beyond 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 729-30.

         C. Limited Merits Review.

         When 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; 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.

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).

         The 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 added).

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 fairminded disagreement.

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 181.

         II. Analysis.

         A. Ground One: Sufficiency of the Evidence (Mental Retardation).

         Petitioner’s 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.

         In 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. 2002)).[4]

         “When 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.

         Although 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.”).

         In 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.[5] The following is a summary of the trial evidence.

         Petitioner’s Trial Evidence

         Two 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).

         To assess Petitioner’s adaptive functioning, Dr. Hopewell administered the Vineland Test[6] and the Wide Range Achievement Test (WRAT-III),[7] 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 66-67).

         Dr. 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).

         Dr. 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).

         Although 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).

         Madeline 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).

         Although 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).

         Petitioner’s 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).

         Jack 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).

         Norman 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).[8] 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).

         Petitioner’s 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 9).

         State’s Trial Evidence

         The 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, 67).

         Dr. 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, 38-39, 69-70).

         Dr. 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).

         Dr. 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).

         Like 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.[9] 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 6).

         Ruby 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).

         Emma 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).

         Mark 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).

         Fern 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.”[10] 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).[11]

         Oklahoma 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, 121-23).

         Officer 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).

         In the months before Petitioner’s crimes, Petitioner was having an affair with Laura Dich.[12] 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).

         Mariette 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).

         Cherie 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. at 40-45).

         Dina 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).

         OCCA’s Decision

         As 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.

         The 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.

         Though 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 ...

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