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Bush v. Carpenter

United States Court of Appeals, Tenth Circuit

June 10, 2019

RONSON KYLE BUSH, Petitioner - Appellant,
MIKE CARPENTER, Warden, Oklahoma State Penitentiary, Respondent - Appellee.

          Appeal from the United States District Court for the Western District of Oklahoma (D.C. No. 5:13-CV-00266-R)

          Josh Lee, Assistant Federal Public Defender, Office of the Federal Public Defender for the District of Colorado, Denver, Colorado (Virginia L. Grady, Federal Public Defender, Office of the Federal Public Defender for the District of Colorado, Denver, Colorado, and Mark Henricksen, Henricksen & Henricksen, Oklahoma City, Oklahoma, with him on the briefs), appearing for Appellant.

          Caroline E.J. Hunt, Assistant Attorney General (Mike Hunter, Attorney General of Oklahoma and Jennifer J. Dickson, Assistant Attorney General, with her on the brief), Office of the Attorney General for the State of Oklahoma, Oklahoma City, Oklahoma, appearing for Appellee.

          Before BRISCOE, PHILLIPS, and MORITZ, Circuit Judges.


         Petitioner Ronson Bush is an Oklahoma state prisoner who pleaded guilty to first-degree murder and was sentenced to death. After exhausting his state court remedies by way of a direct appeal and an application for state post-conviction relief, Bush filed a federal petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The district court denied Bush's petition, and also denied him a certificate of appealability (COA). Bush appealed and we subsequently granted him a COA with respect to five issues.

         In the first of those issues, Bush asserts that the state trial court violated his due process rights by allowing the prosecution to make an offer of proof from a jailhouse informant regarding incriminating statements allegedly made by Bush. We conclude, however, that Bush has failed to identify any clearly established federal law applicable to this claim, and thus he is not entitled to federal habeas relief under the standards of review outlined in § 2254(d).

         In his second issue, Bush argues that the admission of improper victim impact testimony, including requests by the victim's family members for the death penalty, violated his rights under the Eighth and Fourteenth Amendments. We agree with Bush that the admission of this testimony amounted to constitutional error, but we conclude, after considering all of the evidence that was presented at his sentencing hearing, that the error did not have a substantial and injurious effect or influence in determining the sentence that was imposed by the state trial court.

         In his third issue, Bush argues that his trial counsel was ineffective for failing to object to the admission of the unconstitutional victim impact testimony. Having concluded that Bush was not prejudiced by the admission of this testimony, we in turn conclude that Bush was not prejudiced by his trial counsel's failure to object to the testimony.

         In his fourth issue, Bush argues that his direct appeal counsel was ineffective for failing to argue that trial counsel was ineffective for failing to challenge the constitutionality of an Oklahoma statute that bars capital defendants who plead guilty from being sentenced by a jury. The state appellate court rejected this issue on the merits, and we conclude that its decision was neither contrary to, nor an unreasonable application of, clearly established federal law.

         In his final issue, Bush argues that he is entitled to federal habeas relief on the basis of cumulative error. We conclude, however, that Bush has failed to establish actual prejudice resulting from the constitutional errors he has identified.

         Therefore, exercising jurisdiction pursuant to 28 U.S.C. § 1291, we affirm the district court's denial of federal habeas relief.


         The underlying facts of Bush's crime

         The Oklahoma Court of Criminal Appeals (OCCA) summarized the relevant underlying facts of Bush's case in addressing his direct appeal:

On the evening of December 22, 2008, while at Billy Harrington's home, Ronson Bush shot Harrington six times with Harrington's .357 caliber revolver. Harrington made it to the front yard of the home, where he collapsed. Bush then tied Harrington to the back of his pickup and dragged him into a field near the house.
By all accounts, Harrington and Bush had been best friends for a number of years. Harrington did what he could to aid Bush who dealt with addictions, paranoia, and other related mental illnesses. Harrington's final attempts to assist Bush came just days before the shooting. On December 18, Harrington attempted to take Bush to Griffin Memorial Hospital in Norman, Oklahoma but Bush was exceedingly drunk, and the two men fought during the trip. Harrington left Bush in a parking lot in Norman, and drove on to Tulsa for work. Bush hitched a ride back to Harrington's trailer. When Harrington arrived home that evening, accompanied by Jimmy Barrington, they found Bush passed out on the couch with Harrington's firearms purposefully placed around the house.
After calling the sheriff's office to send someone to the house, Harrington again agreed to take Bush back to Griffin Memorial Hospital, where Bush voluntarily admitted himself for treatment. Bush, however, on December 22, checked himself out of the hospital, called Harrington for a ride, and returned to Harrington's home. Bush drank vodka from a pint bottle purchased in Blanchard on the way home. Once home, both men shot guns off the porch and played with Harrington's dog. Harrington also gave Bush a haircut.
Sometime around 7:15 p.m., Harrington was talking on the phone with his girlfriend who could hear Bush in the background. Bush took a photograph of Harrington and nothing seemed amiss; minutes later, however, Bush shot and killed Harrington.
Bush explained that things started downhill when he mentioned getting Christmas presents for Stephanie Morgan, an ex-girlfriend, and her son. Bush said that Harrington told him that he should forget about Morgan as she was sleeping with other people. According to Bush, Harrington went on to say that even he had "fucked" her. Bush said he then snapped, picked up the .357 revolver, and started shooting Harrington. Bush kept shooting as Harrington got up, went to the kitchen, collapsed, then got up and walked outside.
At around 7:44 p.m. Harrington's mother, Kathy Harrington, tried to call Harrington's cell phone, but Bush answered. Bush kept putting Mrs. Harrington off, probably because Harrington was already dead. Mrs. Harrington called friends who went to the home and discovered Harrington's body in the field.
Bush, in the mean time [sic], left the trailer in Harrington's truck, bought some beer, and drove to Ms. Morgan's home. Bush kicked in the back door and entered Morgan's unoccupied home. He waited on her to arrive and drank some alcohol from a commemorative bottle she had stored in her bedroom.
Morgan arrived home and was unable to turn on the bedroom lights. She heard Bush say that he heard her come in. Bush was in the bedroom lying on the bed. Morgan tried to get away by walking out and getting in her car. Bush, however, got in the passenger side. Morgan was finally able to let someone know that Bush was there, get him out of the car, and drive away.
Authorities arrived at Morgan's home, and Bush was arrested for violating a protective order Morgan had against him. Bush, at the time of the arrest, confessed to shooting Harrington.

Bush v. State, 280 P.3d 337, 342-43 (Okla. Crim. App. 2012) (Bush I) (paragraph numbers and footnotes omitted).

         Bush's state trial proceedings

         The OCCA in Bush I also summarized Bush's ensuing state trial proceedings:

Bush[ ] was charged with first degree murder in violation of [Okla. Stat. tit. 21, § 701.7(A)], and possession of a firearm after former conviction of a felony in violation of [Okla. Stat. tit. 21, § 1283], in Grady County District Court case number CF-2008-371. The State filed a Bill of Particulars regarding the punishment for first degree murder, which alleged three aggravating circumstances: (1) the murder was especially heinous, atrocious or cruel; (2) there exists a probability that the defendant would commit criminal acts of violence such that he would constitute a continuing threat to society; and (3) the murder was committed by the defendant while he was serving a sentence of imprisonment on a conviction for a felony. [Okla. Stat. tit. 21, § 701.12(4), (6), (7)].
Bush proceeded to trial on October 19, 2009, before the Honorable Richard G. Van Dyck, District Judge. After the State had presented its second witness, on October 22, Bush expressed his desire to enter a blind plea. The trial court conducted a plea hearing and allowed Bush to enter an Alford plea to first degree murder and a guilty plea to possession of a firearm after former conviction of a felony. The next day a non-jury sentencing proceeding commenced pursuant to [Okla. Stat. tit. 21, § 701.10(B)]. Sometime during the first day of sentencing, Bush told the trial court that he wanted to withdraw his pleas, but the trial court denied his motion and advised him to wait until after being sentenced to move to withdraw the plea. At the conclusion of sentencing trial Judge Van Dyck found the existence of all three aggravating circumstances and assessed punishment at death on the first degree murder; the trial court assessed a life sentence on the firearm charge.
After being sentenced, and within the requisite ten day period, Bush filed a motion to withdraw his plea on November 9, 2009 . . . . The trial court held a hearing on the motion and, at the conclusion of the hearing, denied the motion.

Id. at 341-42 (paragraph numbers and footnote omitted).

         Bush's direct appeal

         Bush filed a direct appeal, asserting ten propositions of error. On June 19, 2012, the OCCA issued a published opinion affirming Bush's convictions and sentences for first degree murder and possession of a firearm after former conviction of a felony.

         Bush filed a petition for writ of certiorari with the United States Supreme Court. That was denied on March 4, 2013. Bush v. Oklahoma, 568 U.S. 1216 (2013).

         Bush's application for state post-conviction relief

         On January 17, 2012 (while his direct appeal was still pending before the OCCA), Bush filed an application for state post-conviction relief asserting nine propositions of error. Bush also filed an application for evidentiary hearing on the ineffective assistance of counsel claims asserted in his application for state post-conviction relief.

         The OCCA denied Bush's application for state post-conviction relief and his related motion for evidentiary hearing in an unpublished opinion issued on October 1, 2012. Bush v. State, Case No. PCD 2010-399 (Okla. Crim. App. Oct. 1, 2012) (Bush II).

         The federal habeas proceedings

         On March 18, 2013, Bush initiated these federal habeas proceedings by filing a motion for appointment of counsel and a motion for leave to proceed in forma pauperis. The magistrate judge assigned to the case granted both motions.

         On December 2, 2013, Bush's appointed counsel filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 asserting fifteen grounds for relief. Briefing in the case was completed on July 2, 2014, when Bush filed his reply brief to respondent's answer.

         On October 17, 2016, the district court issued a memorandum opinion denying Bush's petition, entered final judgment in the case, and also issued an order denying Bush a certificate of appealability (COA) as to all of the grounds for relief asserted in his federal habeas petition. Bush filed a timely notice of appeal.

         This court subsequently granted Bush a COA on five issues.


         Bush, in accordance with the COA we issued, asserts five issues in this appeal: (1) whether the state trial court violated his due process rights by allowing the prosecution to make an offer of proof from an inmate named Jackie Nash regarding statements allegedly made by Bush to Nash; (2) whether the state trial court violated Bush's constitutional rights by admitting improper victim impact evidence; (3) ineffective assistance of trial counsel for failing to object to the unconstitutional victim impact evidence; (4) ineffective assistance of appellate counsel for failing to argue that Bush's trial counsel was ineffective for failing to challenge the Oklahoma statute that bars capital defendants who plead guilty from having a jury determine their sentence; and (5) cumulative error. As discussed in greater detail below, we conclude that Bush is not entitled to federal habeas relief on any of these claims.

         Standard of review

         "The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) requires a state prisoner seeking federal habeas relief first to 'exhaus[t] the remedies available in the courts of the State.'" Kernan v. Hinojosa, 136 S.Ct. 1603, 1604 (2016) (per curiam) (quoting 28 U.S.C. § 2254(b)(1)(A)). "If the state courts adjudicate the prisoner's federal claim 'on the merits,' § 2254(d), then AEDPA mandates deferential, rather than de novo, review." Id. Specifically, this court cannot grant relief unless that 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 proceedings.

28 U.S.C. § 2254(d)(1)-(2).

         "'Clearly established Federal Law' refers to the Supreme Court's holdings, not its dicta." Wood v. Carpenter, 907 F.3d 1279, 1289 (10th Cir. 2018) (citing Williams v. Taylor, 529 U.S. 362, 412 (2000)). "A state-court decision is only contrary to clearly established federal law if it 'arrives at a conclusion opposite to that reached by' the Supreme Court, or 'decides a case differently' than the Court on a 'set of materially indistinguishable facts.'" Id. (quoting Williams, 529 U.S. at 412-13). "But a state court need not cite the Court's cases or, for that matter, even be aware of them." Id. "So long as the state-court's reasoning and result are not contrary to the Court's specific holdings, § 2254(d)(1) prohibits [this court] from granting relief." Id. (citing Early v. Packer, 537 U.S. 3, 9 (2002) (per curiam)).

         "A state court's decision unreasonably applies federal law if it 'identifies the correct governing legal principle' from the relevant Supreme Court decisions but applies those principles in an objectively unreasonable manner." Id. (quoting Wiggins v. Smith, 539 U.S. 510, 520 (2003)). "Critically, an 'unreasonable application of federal law is different from an incorrect application of federal law.'" Id. (quoting Williams, 529 U.S. at 410). "[A] state court's application of federal law is only unreasonable if 'all fairminded jurists would agree the state court decision was incorrect.'" Id. (quoting Frost v. Pryor, 749 F.3d 1212, 1225 (10th Cir. 2014)).

         "Finally, a state-court decision unreasonably determines the facts if the state court 'plainly misapprehend[ed] or misstate[d] the record in making [its] findings, and the misapprehension goes to a material factual issue that is central to petitioner's claim.'" Id. (quoting Byrd v. Workman, 645 F.3d 1159, 1170-72 (10th Cir. 2011)). "But this 'daunting standard' will be 'satisfied in relatively few cases.'" Id. (quoting Byrd, 645 F.3d at 1172).

         Issue One - the prosecution's "offer of proof" regarding testimony from Jackie Nash

         In his first issue on appeal, Bush argues that his "constitutional rights were violated when the prosecutor told the [trial court] about a litany of damaging and inadmissible statements attributed to [him]" by "a jail inmate named Jackie Nash." Aplt. Br. at 18. Although the state trial court ultimately declined to admit Nash's testimony, it nevertheless asked for and received an "offer of proof" from the prosecutor regarding Nash's testimony. Bush argues that the state trial court never heard other evidence that refuted Nash's testimony and, most importantly, it would have been impossible for the state trial court, in fixing Nash's sentence, to ignore the offer of proof.

         a) Facts relevant to the claim

         On Friday, October 23, 2009, the first day of the sentencing proceeding, the prosecutor advised the trial judge and defense counsel that Jackie Nash, a jailhouse informant, had come forward with evidence pertinent to the case. Tr. at 1011. Defense counsel "object[ed] to any endorsement of a witness at this time during the middle of trial." Id. at 1012. The trial judge stated that he would resolve the issue the following Monday.

         On Monday, October 26, 2009, the prosecution attempted to call Jackie Nash as a witness. Id. at 1309. The defense "object[ed] to the endorsement of this witness and any testimony by . . . Nash." Id. at 1310. The defense noted that both the Oklahoma Constitution and the Oklahoma Code of Criminal Procedure required that evidence in aggravation be endorsed and made known to the defendant prior to trial in order to be admissible. Id. The defense in turn asserted that they "were first given notice of" Nash's proposed testimony "on Friday in the middle of trial," thus giving them "two . . . weekend days [in] which to prepare" to cross-examine Nash. Id. The defense argued that Nash should not be allowed to testify or, in the alternative, that the trial be continued to give them time to prepare to cross-examine him. Id. at 1311. The trial judge responded by stating: "In an abundance of caution . . . the Court is going to sustain the defendant's motion and not allow the testimony" of Nash. Id. at 1314. But immediately thereafter, the trial judge stated to the lead prosecutor: "you may present an offer of proof." Id.

         The prosecutor proceeded to state as follows:

Judge, my offer of proof if Mr. Nash was called to testify he would testify he had conversations with Ronson Bush where Ronson Bush told him he - he was manipulative, he deliberately intended to kill Billy Harrington.
He sat around for a week, week and a half and thought about how he was going to do it. Then he used some methamphetamine and went to the detox for a few days to get his head straight so he could get his plan together.
That he planned this. That he waited for Mr. Billy Harrington to be at his house alone. He held a gun on him. Held him hostage basically yelling and screaming at him trying to make him confess to having a sexual relationship with Stephanie Morgan.
He basically sat over him and taunted him with the gun the .357 while - while the victim Billy Harrington was sitting in his chair.
That at one point he holds the gun to the shoulder of Billy Harrington in contact wound [sic] pulls the trigger. Shoots Billy Harrington. And Billy Harrington reaches forward and puts his hands up and he shoots him again. Which was - justify and explain - explain the injuries.
That Mr. Harrington got out of the chair and fell down on the kitchen floor where Mr. Bush shot him again. And the whole time continuing to taunt him and yell at him.
Mr. Nash, would say that at some point Mr. Harrington went outside. Mr. Bush told him that he followed him outside and Billy Harrington was still alive when Ronson Bush tied a rope on his feet and drug him until he - until he thought maybe he was dead, his chest was still moving and he drug him approximately 200 yards.
Mr. Nash would say if - if the Court would allow him - to call him, Mr. Bush then left and went to Stephanie's. That's when he started getting drunk. That he wasn't even drunk when he started doing these things to Billy Harrington. He waited until afterwards to get drunk so he would have a defence [sic] to this crime of intoxication.
He will testify about how Ronson Bush was confronted with Stephanie, how she was scared. How he got in the car with Stephanie. And at one point he got out of the car and then she left. Which would be extremely consistent with Stephanie Morgan.
He will also testify Bush bragged about his two previous escape attempts where he used other inmates to help him in the cells. This Court's heard some of that evidence.
And then thirdly, he will say during the course of this trial and leading up to it Ronson Bush was planning a third escape. That he had manipulated his toilets manipulated his - his showers. He caused damage to those cells thinking he could get out behind the toilet behind the shower and dig out of his cell.
And if that didn't work he would escape on his way to Court. He would overpower a jailer, a guard, he would kill whomever was necessary to get away.
He said his uncle was involved with the mafia, and his uncle was going to help him escape from here and he would never be able to see his family again but that he would blame it on the Mexican Mafia in the city because nobody would suspect his uncle for helping him escape. That if he had to kill people to get out of this courtroom and to get out of here that's what he would do.
He said he showed no remorse. He laughed about killing Billy Harrington. And that would be my proffer.

Id. at 1314-17.

         Defense counsel then stated: "Judge, I - I in an abundance of caution this is a proffer and you're sitting off of our judgement [sic] of facts and I would just ask that the Court please consider it and put it in it's [sic] proper place." Id. at 1317. The trial judge responded: "Any argument or statement by counsel is not evidence." Id.

         b) The OCCA's disposition of the claim

         In Proposition IV of his direct appeal brief, Bush argued that the trial judge's consideration of the offer of proof prejudiced Bush's rights under the Sixth, Eighth, and Fourteenth Amendments. Direct Appeal Br. at 46. Specifically, Bush argued that the "offer of proof was extremely harmful to [his] case for life" because it "was in direct contrast to [his] own account of the crime as an unplanned, unpremeditated reaction to Mr. Harrington's revelation of an affair with Ms. Morgan, and that the shooting was something about which he was deeply saddened and almost ill." Id. at 49. Bush further argued that, "[a]lthough the trial judge assured defense counsel that statements by counsel were not evidence, this offer of proof was far too inflammatory for the trial judge to disregard." Id. (citation omitted). That was because, Bush argued, the offer of proof "ma[d]e the case for a planned, premeditated murder replete with torture and accounts of [Bush's] morbid delight," as well as "references to escape attempts and threats by . . . Bush against jailers and court personnel."[1] Id. at 50.

         The State, in its response brief, argued that the "issue [wa]s not preserved for review as it was not contained in the motion to withdraw the plea."[2] State Direct Appeal Br. at 36-37. In support, the State noted that OCCA Rule 4.2(B) provided that "'[n]o matter may be raised in the petition for writ of certiorari unless the same has been raised in the application to withdraw the plea . . . .'" Id. at 37 (quoting Okla. Crim. App. R. 4.2(B)). The State also argued, in the alternative, that "the trial court assured [Bush] the offer of proof was not evidence" and that Bush "ha[d] completely failed to demonstrate that despite such assertion, the trial court relied on the offer of proof when it determined [he] was a continuing threat to society and that the murder was especially heinous, atrocious or cruel." Id.

         The OCCA ultimately denied relief on the claim. In doing so, the OCCA stated as follows:

In addition to arguments attacking the aggravating circumstances, Bush also argues that the trial court's sentencing decision was influenced by improper and inadmissible evidence. In proposition four, Bush claims that the trial court considered improper testimony from a jail-house snitch during the sentencing proceedings. The trial court sustained Bush's motion to bar the witness's testimony because no notice was given to Bush regarding the evidence in aggravation. See [Okla. Stat. tit. 21, § 701.10]. Regardless, Bush argues, the trial court allowed the State to give an offer of proof regarding the expected testimony of informant Jackie Nash. It is this offer of proof that Bush now argues influenced the trial court, in part, in sentencing Bush to the penalty of death.
Bush first argues that the offer of proof was improperly given because there was no need for the State to preserve the evidence with an offer of proof, as the State would not be appealing Bush's sentence. Even if the offer of proof was improperly given, Bush must overcome the presumption that the trial court only considered competent and admissible evidence in reaching its decision. See Long v. State, 2003 OK CR 14, ¶ 4, 74 P.3d 105, 107.
In Long, the trial court listened to an audio tape during a suppression hearing, after which the trial court suppressed the tape. The trial court went on to conduct a non-jury trial. The defendant in Long could not overcome the presumption that the trial court did not consider improper evidence during the trial. Id.
Here, the evidence proffered was intended to support the continuing threat aggravating circumstance. The State indicated that Nash would testify that Bush told him that he deliberately intended to kill Harrington and had planned it for several days; he went to detox to get his head straight before carrying out his plan; he held him hostage trying to make him confess to having a sexual relationship with Morgan; he finally shot Harrington in the arm while holding the gun to Harrington's shoulder; Harrington reached forward and Bush shot him again.
Bush told him that Harrington went outside and Bush believed that Harrington was still alive when he dragged him behind the pickup; Bush said he wasn't drunk, but drank afterward and intended to use intoxication as a defense; according to Nash, Bush bragged about his escape attempts; he planned a third escape by digging around the toilet and shower, damaging them; he said he intended to escape on his way to court and kill a guard or whomever necessary in order to get away. Nash indicated that Bush showed no remorse and laughed about killing Harrington.
The offer of proof contained evidence otherwise unknown through other admissible channels. The new evidence included Bush's account of the events of the killing and the planning of the killing-in contrast to his claim that the killing was a spur of the moment killing brought on by Harrington's boasting of sexual acts with Morgan. The evidence of the damage to the toilet and shower area was confirmed as an escape attempt by this offer, and further, Bush's statement that he intended to flee from court and kill if necessary to escape were not available from other testimony.
Bush claims that this evidence was so prejudicial that it was impossible for the trial court to ignore. Although the offer contained powerful evidence, there is little indication that the trial court utilized this evidence in making a sentencing decision. As Bush points out, the trial court did cite to the instances of attempted escape as factoring into the basis for a finding that the probability existed that Bush would be a continuing threat to society. Other admissible evidence, however, provided sufficient evidence that Bush was attempting to escape from the Grady county jail.
To overcome waiver claims regarding this offer of proof, Bush claims counsel was ineffective in its ability to preserve Bush's rights to a proceeding free from outside influences and prejudices. The ineffective assistance claim must also fail, because there is no evidence that the trial court utilized this information in determining the sentence.
As a side note, it is possible that this testimony might have been admissible as rebuttal evidence, and no discovery notice would have been required-depending on the reliability of the jailhouse informant testimony.

Bush I, 280 P.3d at 348-49 (paragraph numbers and footnote omitted).

         It is not entirely clear whether the OCCA intended to resolve the claim on the merits or, instead, to resolve it on the basis of procedural bar. The OCCA's discussion, in large part, is devoted to explaining why Bush was not prejudiced by the alleged error - and thus, the OCCA seems to have resolved the issue on the merits. But the OCCA's references to "overcom[ing] waiver" also suggest that it may have deemed the claim procedurally barred due to Bush's failure to raise the issue in the trial court.

         c) Procedural bar

         Respondent asserts that Bush "raises several new arguments" in his appellate brief "that were neither raised to the OCCA or the district court." Aple. Br. at 19. To begin with, respondent asserts that Bush, in his direct appeal, attempted "[t]o show the trial court considered the offer of proof" by arguing "only that testimony at trial regarding [his] attempts to escape from jail was insufficient for the trial court to find [he] attempted to escape" and "therefore the trial court must have relied on the Nash offer of proof." Id. at 18. Respondent in turn asserts that in federal district court, Bush "attempted to prove the trial court considered the proffer by arguing two points - (1) [his] efforts to escape, and, (2) that an investigator observed the trial court's demeanor change when the offer of proof was read." Id. at 18-19. Respondent notes that Bush now "claims the OCCA's holding was an unreasonable application of several different Supreme Court cases that he failed to either present to the OCCA or to the district court." Id. at 19. "Likewise," respondent asserts, "he raises several new arguments that were neither raised to the OCCA or the district court, in an effort to show . . . the trial court relied on the Nash proffer." Id. Ultimately, respondent argues that Bush "is limited to the arguments and facts he presented to the OCCA." Id.

         We agree with respondent. The only arguments that Bush made before the OCCA were that the offer of proof was improper under Oklahoma law (i.e., "there was no discernible need for the prosecutor to make an offer in order to preserve the error"), the "offer of proof was far too inflammatory for the trial judge to disregard," and the trial judge ultimately relied on the offer of proof in finding that the trial judge found that Bush "had 'attempted and/or conspired to escape from the Grady County Jail.'" Direct Appeal Br. at 48-49, 52. As for the last of these arguments, Bush argued that "[b]y making this finding, the trial judge had to have relied on the . . . Nash offer of proof, because, otherwise, there was no evidence demonstrating that . . . Bush was the person who tampered with the shower and toilet" in his jail cell.[3] Id. at 52. At no point did Bush argue before the OCCA, as he does now in this federal habeas appeal, that (1) the trial judge allowed the offer of proof because "he wanted to hear" Nash's allegations, (2) "direct evidence indicates that the [trial] judge was emotionally affected by the allegations," (3) "Nash's statements demonstrably affected later testimony that the judge heard from the victim's family, who were present through the trial and would have heard the 'offer of proof, '" or (4) "just a few weeks after the sentencing, the prosecutor submitted a letter for use in . . . Nash's federal criminal proceedings" that stated "that 'Nash's cooperation and information was [sic] very valuable in the Bush prosecution.'" Aplt. Br. at 25-28.

         Thus, the new arguments that Bush now asserts in his federal habeas appeal are unexhausted and, in turn, procedurally barred. The OCCA has long and consistently held that "issues that were not raised previously on direct appeal, but which could have been raised, are waived for [purposes of] further [state] review." Logan v. State, 293 P.3d 969, 973 (Okla. Crim. App. 2013). Thus, were Bush to return to Oklahoma state court and present these new arguments in a successive application for post-conviction relief, those arguments would be deemed waived by the OCCA. All of which means that those new arguments are procedurally barred for purposes of these federal habeas proceedings. See Williams v. Trammell, 782 F.3d 1184, 1212 (10th Cir. 2015) ("[A] habeas petition is procedurally defaulted if the petitioner failed to exhaust state remedies and the court to which the petitioner would be required to present his claims in order to meet the exhaustion requirement would now find the claims procedurally barred." (quotation marks omitted)).

         d) Clearly established federal law applicable to the claim

         Bush concedes that "[n]o Supreme Court case specifically addresses prejudicial 'offers of proof, '" but he asserts that "[s]everal lines of Supreme Court precedent establish general standards that support relief here." Aplt. Br. at 21. To begin with, Bush points to Supreme Court precedent addressing state-sponsored courtroom practices that may be "so inherently prejudicial that [they] deprive[] a defendant of a fair trial." Carey v. Musladin, 549 U.S. 70, 76 (2006) (concluding that buttons displaying the victim's image worn by the victim's family during respondent's trial did not deny respondent his right to a fair trial). The two main examples are Estelle v. Williams, 425 U.S. 501, 502 (1976), where the defendant "appeared at trial in clothes that were distinctly marked as prison issue," and Holbrook v. Flynn, 475 U.S. 560 (1986), where the State seated four uniformed state troopers in the row of spectators' seats immediately behind the defendant during trial. The Court held in both cases that government-sponsored practices of these types can, depending on the circumstances, be so inherently prejudicial that they deprive a defendant of a fair trial. Secondly, Bush points to Greer v. Miller, 483 U.S. 756 (1987), in which the Supreme Court "recognized that prosecutorial misconduct may so infect the trial with unfairness as to make the resulting conviction a denial of due process," and that, "[t]o constitute a due process violation, the prosecutorial misconduct must be of sufficient significance to result in the denial of the defendant's right to a fair trial." Id. at 765 (quotations and brackets omitted). Third, Bush points to the Supreme Court's recognition in Romano v. Oklahoma, 512 U.S. 1, 12 (1994), that the "admission of evidence" might "so infect[] the sentencing proceeding with unfairness as to render the jury's imposition of the death penalty a denial of due process." Lastly, Bush points to Parker v. Dugger, 498 U.S. 308, 321 (1991), in which the Supreme Court recognized (as it had before) that "[t]he Constitution prohibits the arbitrary or irrational imposition of the death penalty." Together, Bush argues, "[t]hese cases establish that the due process clause prohibits fundamental unfairness and that the Eighth Amendment forbids arbitrariness in death penalty proceedings." Aplt. Br. at 22.

         The threshold question we must address is whether Bush has identified a rule of law that was "clearly established" by the Supreme Court at the time the OCCA resolved his direct appeal. See House v. Hatch, 527 F.3d 1010, 1018 (10th Cir. 2008) (holding that, in light of Musladin, a court must first determine whether the petitioner seeks to apply a rule of law that was clearly established by the Supreme Court at the time his or her conviction became final). In House, this court held that "Musladin instructed that Supreme Court holdings-the exclusive touchstone for clearly established federal law- must be construed narrowly and consist only of something akin to on-point holdings." Id. at 1015. In other words, "in the post-Musladin analysis, clearly established law consists of Supreme Court holdings in cases where the facts are at least closely-related or similar to the case sub judice." Id. at 1016.

         That presents a problem for Bush. None of the Supreme Court cases he has cited in his appellate brief involved facts remotely similar to the facts at issue in his case, i.e., a trial judge who selected and imposed a death sentence after considering an offer of proof of inadmissible aggravating evidence. Indeed, none of the cases he has cited separately involved either the consideration of an offer of proof of inadmissible evidence in any context, or a capital case. Thus, at best, the cases cited by Bush stand for very broad principles of due process. In light of Musladin and House, however, that is not sufficient to constitute clearly established federal law for purposes of § 2254(d). And, under House, "[t]he absence of clearly established federal law is dispositive under § 2254(d)(1)." 527 F.3d at 1018.

         Issue Two - admission of victim impact testimony

         In his second issue on appeal, Bush argues that the admission of victim impact testimony at his sentencing hearing violated his rights under the Eighth and Fourteenth Amendments.[4] More specifically, Bush argues that this testimony violated his constitutional rights because it included "family members' characterizations of the crime, opinions about [him], and desire for the death penalty." Aplt. Br. at 34.

         a) Facts relevant to this claim

         On September 14, 2009, the prosecution filed a pleading with the state trial court entitled "State's Notice and Disclosure of Victim Impact Statements." State Court ROA, Vol. 2 at 213. Attached to that pleading were the written victim impact statements from eight of the victim's family members.

         The victim's parents, Kathleen and David Harrington, stated in their joint victim impact statement: "Billy died at the hands of his enemy, although he called him friend. Billy endured pain and agony; was dragged as if he were trash and left to freeze in the frigid dark of night." Id. at 218. They also stated, with regard to the punishment of Bush: "In the death of our Billy we are making a plea to the court requesting the maximum sentencing; the most severe punishment by law. We are requesting death for Ronson Kyle Bush. The request is not made for the desire of vengeance but we all firmly believe that Ronson is a threat and will continue to be a threat to our family and the community in general." Id. at 219 (emphasis omitted).

         Rebecca Harrington Latorre, the victim's sister, wrote in her statement that "Ronson Bush deserves the most severe punishment allowed by Oklahoma law. He deserves the death penalty." Id. at 221.

         Lois Montgomery, the victim's grandmother, offered the following recommendation regarding punishment:

With premeditation, systematically with cruelty and maliciousness Billy was murdered, shot multiple times and obtained numerous wounds, burns, and trauma to his entire body and precious face. He was dragged and disposed of like so much garbage. Bush without thought of friend or his family inflicted pain and death upon our sweet Billy. I plead with the court to sentence Ronson Bush with the maximum sentence possible; I request the death penalty.

Id. at 222.

         Kaci Harrington, the victim's then-eleven-year-old daughter, provided a handwritten statement that included the following recommendation regarding sentencing: "Today my plea to the court is to consider the cruelty and abuse that my Daddy suffered because of Ronson, [sic] is to ...

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