FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN
DISTRICT OF OKLAHOMA (D.C. NO. 4:13-CV-00016-CVE-FHM)
D. Hird, Assistant Federal Public Defender (Sarah M.
Jernigan, Assistant Federal Public Defender, with him on the
briefs), Office of the Federal Public Defender, Oklahoma
City, Oklahoma, for Petitioner-Appellant.
Jennifer L. Crabb, Assistant Attorney General (Mike Hunter,
Attorney General of Oklahoma, with her on the brief), Office
of the Attorney General, Oklahoma City, Oklahoma, for
TYMKOVICH, Chief Judge, LUCERO, and MATHESON, Circuit Judges.
TYMKOVICH, CHIEF JUDGE.
charged Raymond Johnson with one count of first-degree arson
and two counts of first-degree murder for the deaths of his
former girlfriend, Brooke Whitaker, and the couple's
seven-month-old daughter. The charges stemmed from
Johnson's brutal attack on Whitaker with a hammer, after
which he doused her with gasoline and set her house on fire,
killing both victims. The jury convicted Johnson on all three
counts. The Oklahoma jury subsequently concluded that the
mitigating evidence did not outweigh four aggravating
circumstances surrounding the murders. The jury sentenced
Johnson to death.
has since sought to overturn his sentence first in Oklahoma
state court and now in federal court. In this habeas petition
filed under 28 U.S.C. § 2254, Johnson alleges
ineffective assistance of trial and appellate counsel. The
district court denied relief, and we granted a certificate of
appealability on four issues: (1) whether Johnson's
appellate counsel was ineffective for failing to challenge
the exclusion of certain mitigating evidence; (2) whether his
trial counsel was ineffective for failing to investigate and
develop certain mitigating evidence and present additional
witnesses, and whether his appellate counsel was ineffective
for failing to raise the issues on direct appeal; (3) whether
Johnson's appellate counsel was ineffective for failing
to raise claims of prosecutorial misconduct; and (4)
the Antiterrorism and Effective Death-Penalty Act, we may
grant Johnson habeas relief only if the Oklahoma Court of
Criminal Appeals unreasonably applied federal law in denying
his claims. 28 U.S.C. § 2254(d)(1). This is not a burden
Johnson can satisfy here.
therefore AFFIRM the district court's denial of
Johnson's petition for a writ of habeas corpus.
Johnson lived with his girlfriend Brooke Whitaker and their
infant daughter for several months in 2007. During that time
Johnson also became involved with another woman, Jennifer
Walton, and he decided to move out of Whitaker's house in
June 2007, staying for a time in a homeless shelter. By the
time Johnson and Whitaker broke off their relationship,
Walton was already pregnant with Johnson's child.
22, 2007, Walton dropped Johnson off at Whitaker's home
so he could retrieve some clothing. Instead of picking up his
clothes and leaving, Johnson waited at the house until the
early morning hours when Whitaker returned from work. The two
got into an argument, and according to the information
Johnson later gave police, Whitaker got a knife and
threatened to stab him. Johnson responded by striking her on
the head with a hammer. Whitaker fell to the floor and begged
Johnson to call 911. He refused because he did not want to
return to prison. He instead delivered at least five more
blows to the head with the hammer, went to the outside shed
to retrieve a gasoline can, and doused Whitaker and the house
in gas-including the room where the baby slept. Johnson then
lit Whitaker on fire and fled.
called Walton and asked her to pick him up behind
Whitaker's house. He told Walton when she arrived that a
friend had killed Whitaker with a hammer. Walton later
recalled that Johnson had blood on his clothes and he smelled
like gasoline. She also recalled noticing smoke pour out of
Whitaker's front window. Johnson afterward asked Walton
to drive him back to Whitaker's still-burning house so he
could search for Whitaker's cell phone, which he had used
to call Walton, because he was afraid he had left
fingerprints on it. Johnson searched outside the house for
the phone when they returned, but he could not find it.
arrived at Whitaker's house shortly after 11:00 a.m. on
June 23, 2007. The house was completely filled with smoke,
and when they ventilated the house they found Whitaker's
seven-month-old daughter behind a couch. The infant was dead.
Firefighters also found Whitaker unconscious with extensive
burns on her body. Paramedics reestablished a pulse, and she
was rushed to the hospital. Shortly after arriving, Whitaker
died. The medical examiner later determined that she died of
blunt force trauma to the head and smoke inhalation.
found Whitaker's cell phone in the living room and
discovered that two calls had been placed to Jennifer Walton.
Police interviewed Walton the same day, and she acknowledged
what she knew. Police then set up surveillance around the
house where Johnson was staying and arrested him as he left
the house that same evening. He waived his Miranda rights and
confessed to killing Whitaker and attempting to burn down the
evidence that Johnson committed the murders was significant,
so his trial essentially proceeded as a second-stage
sentencing case. The government argued Johnson deserved the
death penalty based on four aggravating circumstances: (1)
Johnson knowingly presented a great risk of death to more
than one person; (2) the murders were especially heinous,
atrocious, or cruel; (3) Johnson was previously convicted of
a violent felony; and (4) he posed a continuing threat to
society. See 21 Okla. Stat. § 701.12; Johnson
stipulated to the third factor since he had previously served
ten years in prison for first-degree manslaughter. The
government supported the other three factors by presenting
evidence that investigators found gasoline on the
infant's diaper, inferring that Johnson intended to kill
both victims. The government also argued Whitaker had
suffered significantly; she cried out in horrible pain after
Johnson repeatedly struck her, and blood evidence from the
scene confirmed that Whitaker retained consciousness and
moved even after Johnson lit her on fire.
to avoid the death penalty, Johnson's trial counsel
presented nine witnesses, most of whom testified that during
his previous stint in prison Johnson was an effective
Christian preacher and had organized church events and
choirs. Trial counsel sought to demonstrate with this
evidence that within the structured environment of prison,
Johnson could help other prisoners develop and progress
through religious activity. Jurors should spare Johnson's
life, counsel argued, so he could accomplish this mission.
end, the jury found in favor of all four aggravating factors,
found that the mitigating circumstances did not outweigh the
aggravating factors, and voted to impose the death penalty.
The Oklahoma Court of Criminal Appeals (OCCA) affirmed
Johnson's conviction and sentence on direct appeal.
See Johnson v. State, 272 P.3d 720 (Okla. Crim. App.
later filed a petition for post-conviction relief with the
OCCA alleging the same claims of ineffective assistance of
trial and appellate counsel he asserts here. The OCCA denied
his petition in an unpublished opinion. See Johnson v.
State, No. PCD-2009-1025, slip op. (Okla. Crim. App.
Dec. 14, 2012). Johnson filed a second post-conviction
petition, which the OCCA denied on procedural grounds.
See Johnson v. State, No. PCD-2014-123, slip op.
(Okla. Crim. App. May 21, 2014). The court stated that
Oklahoma law requires a petitioner to file a second
post-conviction petition within sixty days of when a claim
against post-conviction counsel could have been discovered
with the exercise of reasonable diligence. Id.
federal relief, Johnson filed a 28 U.S.C. § 2254 habeas
petition in the Northern District of Oklahoma, setting out
the six claims originally presented to the OCCA in his first
post-conviction petition. The district court denied relief.
The district court did, however, issue a certificate of
appealability on three grounds dealing with ineffective
assistance of trial and appellate counsel. We agreed to hear
those claims and granted a certificate on one additional
issue, cumulative error.
ultimately agree with the district court that no relief is
warranted. The OCCA reasonably applied federal law in denying
Johnson's post-conviction petition, so we affirm the
district court's dismissal of his § 2254 petition.
alleges three errors at trial and on direct appeal: (1) that
the jury should have seen and heard certain additional
evidence the court excluded, including photographs, an audio
recording, and a video; (2) that trial counsel should have
investigated and developed certain mitigating evidence and
presented additional witnesses, and that appellate counsel
should have raised these failings on direct appeal; and (3)
that the prosecutor misstated the law surrounding mitigating
evidence. He brings all these claims (as he must, given the
posture of the case), through the lens of ineffective
assistance of counsel. He also brings a cumulative error
claim, contending that even if individually the failings of
trial and appellate counsel did not render his trial unfair,
the cumulative effect of the errors did.
Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)
governs this case. AEDPA "circumscribes our review of
federal habeas claims that were adjudicated on the merits in
state-court proceedings." Hooks v.
Workman, 689 F.3d 1148, 1163 (10th Cir. 2012). Under
AEDPA, a federal court may grant relief to a state prisoner
only if he has established
that the state court's adjudication of the claim on the
merits (1) "resulted in a decision that was contrary to,
or involved an unreasonable application of, clearly
established Federal law"; 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
Littlejohn v. Trammell, 704 F.3d 817, 824 (10th Cir.
2013) (quoting 28 U.S.C. § 2254(d)).
standard is "highly deferential [to] state-court
rulings" and demands that those rulings "be given
the benefit of the doubt." Woodford v.
Visciotti, 537 U.S. 19, 24 (2002) (per curiam). "If
this standard is difficult to meet, that is because it was
meant to be. . . . It preserves authority to issue the writ
in cases where there is no possibility fairminded jurists
could disagree that the state court's decision conflicts
with [Supreme Court] ...