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Smith v. Sharp

United States Court of Appeals, Tenth Circuit

August 26, 2019

RODERICK L. SMITH, Petitioner - Appellant,
v.
TOMMY SHARP, Interim Warden, [*] Oklahoma State Penitentiary, Respondent - Appellee.

          Appeal from the United States District Court for the Western District of Oklahoma (D.C. No. 5:14-CV-00579-R)

          Emma V. Rolls, Assistant Federal Public Defender (Thomas D. Hird, Assistant Federal Public Defender, with her on the briefs), Oklahoma City, Oklahoma, for Petitioner -Appellant.

          Jennifer J. Dickson, Assistant Attorney General (Mike Hunter, Attorney General of Oklahoma, with her on the brief), Oklahoma City, Oklahoma, for Respondent - Appellee.

          Before LUCERO, MATHESON, and PHILLIPS, Circuit Judges.

          LUCERO, Circuit Judge.

         Roderick Smith was sentenced to death by an Oklahoma state jury for the 1993 murders of his wife and four stepchildren. Before the resolution of Smith's collateral attacks on his convictions and sentence, the Supreme Court issued its decision in Atkins v. Virginia, 536 U.S. 304 (2002), prohibiting the execution of the intellectually disabled.[1] Smith filed a successor application in state court for post-conviction relief pursuant to Atkins, and the Oklahoma Court of Criminal Appeals ("OCCA") remanded the case to the Oklahoma County District Court for a jury trial to determine whether Smith was intellectually disabled. At the subsequent jury trial in 2004 (the "Atkins trial"), the jury found Smith was not intellectually disabled and allowed his execution to move forward. But our circuit then granted relief on Smith's previously filed habeas corpus petition in Smith v. Mullin, 379 F.3d 919 (10th Cir. 2004), entitling him to resentencing. A jury found Smith competent to stand trial in 2009, and he was resentenced to death in 2010.

         Smith again sought federal habeas relief. The district court denied relief in an unpublished opinion. Smith v. Royal, No. CIV-14-579-R, 2017 WL 2992217 (W.D. Okla. July 13, 2017) (unpublished). Before us, Smith alleges that the state prosecution in his Atkins, competency, and resentencing trials violated several of his constitutional rights, including his Eighth Amendment right against cruel and unusual punishment and his Sixth Amendment right to counsel. Specifically, Smith contends: (1) the Eighth and Fourteenth Amendments prohibit his execution because he is intellectually disabled; (2) the jury instruction requiring a finding that his intellectual disability was "present and known" before the age of eighteen violated Atkins; (3) counsel's failure to call an expert witness to testify about the employment capabilities of the intellectually disabled and prepare an additional adaptive functioning measurement denied him effective assistance of counsel during his Atkins trial; (4) counsel's failure to introduce video footage of Smith into the record denied him effective assistance of trial and appellate counsel in his competency and resentencing trials; and (5) cumulative error violated his rights under the Sixth, Eighth, and Fourteenth Amendments.

         Exercising jurisdiction under 28 U.S.C. §§ 1291 and 2253, we reverse the district court's denial of habeas relief on Smith's Atkins challenge to the constitutionality of his execution. Because we grant relief on Smith's Atkins challenge, we need not address Smith's remaining claims concerning his Atkins proceeding. We otherwise affirm the district court's denial of Smith's § 2254 petition for a writ of habeas corpus. We remand with instructions to grant a conditional writ vacating Smith's death sentence and remanding to the State for a new penalty-phase proceeding.

         I

         A

         Smith was convicted of the murder of his wife, Jennifer Smith, and her four children from a prior relationship. The following facts concerning the underlying offense are undisputed and taken from the opinion of the OCCA affirming Smith's convictions and sentences on direct appeal. Smith v. State, 932 P.2d 521, 526 (Okla. Crim. App. 1996).

         On the morning of June 28, 1993, Jennifer Smith's mother called the police and asked them to check on her daughter, who had not been seen or heard from for ten days. When the responding officer arrived at the residence where Smith and Jennifer lived with her four children, he smelled decaying flesh and observed many flies around the windows. The responding officer contacted his supervisor, and the officers entered the house together. They discovered the body of a woman in one closet, and the body of a child in another. The officers requested assistance from the homicide division of the police department, and the bodies of three more children were found. The bodies were identified as those of Jennifer and her four children, and were determined to have been dead for at least two days and up to two weeks.

         Later that day, Smith walked into the Oklahoma County Sheriff's Office. He was then arrested by the Oklahoma City Police. Smith was interrogated and admitted that he had stabbed Jennifer and the two male children. Smith also admitted that he "got" the female children, but could not remember any details. He told the police where he had placed each of the bodies.

         B

         As summarized in Smith's first habeas case, Smith was tried and convicted before an Oklahoma County jury of five counts of first-degree murder. Smith v. Mullin, 379 F.3d at 924. The jury recommended sentences of death on each count, and the Oklahoma court agreed. Smith filed an unsuccessful direct appeal with the OCCA, Smith v. State, 932 P.2d at 539, and the Supreme Court denied his petition for writ of certiorari. Smith v. Oklahoma, 521 U.S. 1124 (1997). He subsequently filed an unsuccessful application for post-conviction relief in the Oklahoma courts. Smith v. State, 955 P.2d 734 (Okla. Crim. App. 1998). Smith did not seek Supreme Court review of the OCCA's denial of post-conviction relief.

         Smith then filed his first habeas corpus action, and the district court denied relief. Smith v. Gibson, No. CIV-98-601-R (W.D. Okla. Jan. 10, 2002) (unpublished). Smith appealed to this court. Pending the resolution of that appeal, the Supreme Court held the Eighth Amendment prohibits the execution of the intellectually disabled. Atkins, 504 U.S. at 321. The state provided Smith a jury trial to prove that he is intellectually disabled, bifurcating the further adjudication of Smith's challenges into an Atkins trial (and subsequent appeals) and the federal habeas claims that developed out of his initial conviction and sentencing.

         Smith's first Atkins trial ended in a mistrial, but a state jury eventually concluded that he was not intellectually disabled. Smith appealed to the OCCA, which affirmed the jury's verdict. Smith v. State, No. O-2006-683 (Okla. Crim. App. Jan. 29, 2007) (unpublished) ("OCCA's Atkins Op.").

         Shortly after Smith's Atkins trial, however, this court granted in part Smith's habeas petition, entitling Smith to resentencing due to ineffective assistance of counsel. Smith v. Mullin, 379 F.3d 919. We specifically held counsel's failure to introduce any mitigation evidence regarding Smith's intellectual disability, brain damage, and troubled background denied Smith effective assistance of counsel during his sentencing proceedings. Id. at 940-44. Prior to the resentencing proceedings, Smith received a jury trial to determine his competence. The jury found Smith competent, and he was resentenced in 2010. At the resentencing, the jury imposed two death sentences and three sentences of life without the possibility of the parole. Following those jury trials, Smith appealed the resentencing and competency determinations, and the effectiveness of counsel in those proceedings. The OCCA affirmed. Smith v. State, 306 P.3d 557 (Okla. Crim. App. 2013), cert. denied, 134 S.Ct. 2662 (2014). Smith applied for but failed to obtain post-conviction relief in state court. Smith v. State, No. PCD-2010-660 (Okla. Crim. App. Feb. 13, 2014) (unpublished) ("OCCA's Resentencing and Competency Op.").

         Smith then filed a second habeas petition in federal court, bringing claims related to: (1) sufficiency of evidence supporting the jury's determination that he was not intellectually disabled; (2) purported irregularities in his Atkins trial; and (3) ineffective assistance of counsel during his Atkins, competency, and resentencing trials. The district court denied relief on all counts. We granted certificates of appealability as to: (1) sufficiency of evidence as to the jury's determination that Smith was not intellectually disabled at his Atkins trial; (2) his Atkins challenge to language in the jury instructions at that trial; and (3) various effectiveness of counsel claims during his Atkins, competency, and resentencing trials.

         II

         On appeal from orders denying a writ of habeas corpus, "we review the district court's legal analysis of the state court decision de novo and its factual findings, if any, for clear error." Michael Smith v. Duckworth, 824 F.3d 1233, 1241-42 (10th Cir. 2016) (quotation omitted). But "[t]he Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") circumscribes our review of federal habeas claims that were adjudicated on the merits in state-court proceedings." Grant v. Royal, 886 F.3d 874, 888 (10th Cir. 2018) (quotation omitted), cert. denied sub nom. Grant v. Carpenter, 139 S.Ct. 925 (2019). Under AEDPA, a petitioner may obtain federal habeas relief on a claim only if 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 court proceeding." § 2254(d)(1), (2).

         The Supreme Court has explained that "[a] state court's determination that a claim lacks merit precludes federal habeas relief so long as fairminded jurists could disagree on the correctness of the state court's decision." Harrington v. Richter, 562 U.S. 86, 101 (2011) (quotation omitted). That is, the writ may be granted only "in cases where there is no possibility fairminded jurists could disagree that the state court's decision conflicts with" Supreme Court precedent, id. at 102, and petitioner "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 103.

         Applying § 2254(d)(1)'s legal inquiry, "we ask at the threshold whether there exists clearly established federal law, an inquiry that focuses exclusively on holdings of the Supreme Court." Grant, 886 F.3d at 888 (quotation omitted). "The absence of clearly established federal law is dispositive" and requires the denial of relief. Id. at 889 (quotation omitted). And that Supreme Court precedent must have been "clearly established at the time of the [state] adjudication." Shoop v. Hill, 139 S.Ct. 504, 506 (2019) (per curiam) (quotation omitted).

         "If clearly established federal law exists, a state-court decision is contrary to it if the state applies a rule different from the governing law set forth in [Supreme Court] cases, or if it decides a case differently than [the Supreme Court has] done on a set of materially indistinguishable facts." Hooks v. Workman, 689 F.3d 1148, 1163 (10th Cir. 2012) (quotation omitted). A state court decision that "identifies the correct governing legal principle from th[e Supreme] Court's decisions but unreasonably applies that principle to the facts of petitioner's case" is an "unreasonable application" of clearly established federal law. Wiggins v. Smith, 539 U.S. 510, 520 (2003) (quotation omitted). "In order for a state court's decision to be an unreasonable application of th[e Supreme] Court's case law, the ruling must be objectively unreasonable, not merely wrong; even clear error will not suffice." Virginia v. LeBlanc, 137 S.Ct. 1726, 1728 (2017) (quotation omitted). Under § 2254(d)(1), we review only the record that was before the state court that adjudicated the claim on the merits. Cullen v. Pinholster, 563 U.S. 170, 180 (2011).

         Applying § 2254(d)(2)'s factual inquiry, we "conclude that a state court's determination of the facts is unreasonable" if "the court plainly and materially misstated the record or the petitioner shows that reasonable minds could not disagree that the finding was in error." Michael Smith, 824 F.3d at 1250. But "[e]ven in the context of federal habeas, deference does not imply abandonment or abdication of judicial review." Brumfield v. Cain, 135 S.Ct. 2269, 2277 (2015). And if the petitioner shows "the state courts plainly misapprehend or misstate the record in making their findings, and the misapprehension goes to a material factual issue that is central to petitioner's claim, that misapprehension can fatally undermine the fact-finding process, rendering the resulting factual finding unreasonable." Byrd v. Workman, 645 F.3d 1159, 1171-72 (10th Cir. 2011).

         "The § 2254 standard does not apply to issues not decided on the merits by the state court." Welch v. Workman, 639 F.3d 980, 992 (10th Cir. 2011). On those un-adjudicated issues, "we review the district court's legal conclusions de novo and its factual findings for clear error." Id. "[I]f the district court based its factual findings" related to issues that the state court did not adjudicate on the merits "entirely on the state court record, we review that record independently." Id.

         "When a federal claim has been presented to a state court and the state court has denied relief, it may be presumed that the state court adjudicated the claim on the merits in the absence of any indication or state-law procedural principles to the contrary." Richter, 562 U.S. 86 at 99. But the petitioner may rebut the presumption that the state court adjudicated the petitioner's claim on the merits. As discussed in more detail below, in cases in which a state court addresses only one prong of a multi-prong analysis, the Supreme Court requires that federal habeas courts address the other prongs de novo. See Porter v. McCollum, 558 U.S. 30, 39 (2009) (per curiam) ("Because the state court did not decide whether [petitioner's] counsel was deficient, we review this element of [petitioner's] Strickland claim de novo."); Rompilla v. Beard, 545 U.S. 374, 390 (2005) ("Because the state courts found the representation adequate, they never reached the issue of prejudice, and so we examine this element of the Strickland claim de novo." (citation omitted)); Wiggins, 539 U.S. at 534 (same); see also Grant, 886 F.3d at 910 ("Because the OCCA did not-by the plain terms of its ruling-reach the prejudice question, we resolve this overarching question de novo."); Hooks, 689 F.3d at 1188 ("[I]n those instances where the OCCA did not address the performance prong of Strickland and we elect to do so, our review is de novo.").[2]

         And as with un-adjudicated prongs of Strickland's two-part analysis, we review un-adjudicated prongs of Atkins' three-part analysis de novo. As the Supreme Court explained in Brumfield, if the relevant state "court never made any finding that [petitioner] failed to produce evidence suggesting he could meet" one of the Atkins prongs, federal habeas courts review that prong of the Atkins analysis de novo because "[t]here is thus no determination on that point to which a federal court must defer in assessing whether [petitioner] satisfied § 2254(d)." 135 S.Ct. at 2282; see also Pruitt v. Neal, 788 F.3d 248, 269 (7th Cir. 2015) ("While the [state] court noted that 'the evidence on the adaptive behavior prong is at least conflicting,' it did not actually conclude that [petitioner] failed to establish substantial impairment of adaptive behavior. Thus, we review this prong de novo." (citation omitted)).

         III

         Smith appeals the district court's denial of habeas relief on five grounds. With respect to his Atkins trial, Smith asserts: (1) he is intellectually disabled and his execution would violate Atkins; (2) flawed jury instructions rendered his Atkins trial fundamentally unfair; and (3) ineffective assistance for his counsel's failures to investigate and call an expert specializing in the employment capabilities of the intellectually disabled, and to refute the State's impeachment of Smith's adaptive functioning measurement. Because we grant habeas relief on Smith's claim that his execution would violate Atkins, we need not address the remaining claims concerning his Atkins trial.

         With respect to his competency and resentencing trials, Smith asserts he was denied effective assistance of trial and appellate counsel for counsel's failure to call Anna Wright, a mental health worker at the Oklahoma County jail, to testify and sponsor the introduction of a video recording of Smith speaking. Smith also asserts cumulative error.

         A

         Smith first argues he cannot legally be executed pursuant to Atkins because he is intellectually disabled. At the time of Smith's Atkins trial, the OCCA implemented Atkins' prohibition on the execution of the intellectually disabled through its decision in Murphy v. State, 54 P.3d 556 (Okla. Crim. App. 2002), overruled in part on other grounds by Blonner v. State, 127 P.3d 1135, 1139 (Okla. Crim. App. 2006). In that case, the OCCA articulated the following definition of intellectual disability:

A person is "mentally retarded": (1) If he or she functions at a significantly sub-average intellectual level that substantially limits his or her 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) The mental retardation manifested itself before the age of eighteen (18); and (3) The mental retardation is accompanied by significant limitations in adaptive functioning in at least two of the following skill areas: communication; self-care; social/interpersonal skills; home living; self-direction; academics; health and safety; use of community resources; and work. It is the defendant's burden to prove he or she is mentally retarded by a preponderance of the evidence at trial. Intelligence quotients are one of the many factors that may be considered, but are not alone determinative. However, no person shall be eligible to be considered mentally retarded unless he or she has an intelligence quotient of seventy or below, as reflected by at least one scientifically recognized, scientifically approved, and contemporary intelligent quotient test.

Id. at 567-68. Smith contends that based on the evidence presented, a reasonable jury would be compelled to find he was intellectually disabled.

         1

         Smith argued insufficiency of evidence to the OCCA in his direct appeal from the jury verdict following his Atkins trial. OCCA Atkins Op. at 6. The OCCA concluded that "Smith failed to meet even the first prong of the Murphy definition of mental retardation" because "[t]he evidence, viewed in the light most favorable to the State, portrayed Smith as a person who is able to understand and process information, to communicate, to understand the reactions of others, to learn from experience or mistakes, and to engage in logical reasoning." Id. at 11. Accordingly, to prevail on this sufficiency of evidence challenge, Smith must demonstrate the OCCA's decision that he failed to establish significantly sub-average intellectual functioning was contrary to, or an unreasonable application of, Atkins, or an unreasonable determination of the facts. Hooks, 689 F.3d at 1165 ("A sufficiency-of-the-evidence challenge in a habeas petition presents a mixed question of fact and law . . . . which is why we apply both 28 U.S.C. § 2254(d)(1) and (d)(2) when reviewing sufficiency of the evidence on habeas." (quotation omitted)); see also Brown v. Sirmons, 515 F.3d 1072, 1089 (10th Cir. 2008).[3]

         But the OCCA did not adjudicate on the merits Smith's challenge to the sufficiency of evidence on either the age-of-onset or the deficits in adaptive functioning prongs of Murphy, meaning there exists no state court decision to which we must defer under AEDPA. Grant, 886 F.3d at 888 ("[AEDPA] circumscribes our review of federal habeas claims that were adjudicated on the merits in state-court proceedings." (quotation omitted)). Specifically, the OCCA made no mention of the age-of-onset requirement beyond including it in the general definition of intellectual disability in the section of its opinion addressing Smith's sufficiency of evidence challenge. OCCA Atkins Op. at 6-11. And although the OCCA noted "the State presented persuasive evidence from lay witnesses to refute Smith's evidence of . . . adaptive functioning deficits," id. at 8, it reached no conclusions regarding the adaptive functioning prong.

         Instead, the OCCA's dispositive language rejecting Smith's sufficiency of evidence claim referred only to the first prong of the Murphy definition of intellectual disability, detailing each component of significantly sub-average intellectual functioning and explaining that Smith failed to meet that prong. Id. at 11. The OCCA neither addressed how a rational jury could have viewed the adaptive functioning evidence, nor concluded that the "evidence presented at trial support[ed]" a finding of deficits in adaptive functioning, as it stated for the intellectual functioning prong. Id. And a state court does not adjudicate a claim on the merits without addressing the claim's factual basis. See Fairchild v. Workman, 579 F.3d 1134, 1149 (10th Cir. 2009) ("A claim is more than a mere theory on which a court could grant relief; a claim must have a factual basis, and an adjudication of that claim requires an evaluation of that factual basis." (citation omitted)).

         Moreover, the OCCA couches the entirety of its discussion regarding the "persuasive evidence" in terms relevant to the intellectual functioning prong of Murphy, stating the evidence "portrayed Smith as a person who is able to understand and process information, to communicate, to understand the reactions of others, to learn from experiences or mistakes, and to engage in logical reasoning." OCCA Atkins Op. at 11. These are Murphy's intellectual functioning categories. Although they may overlap with the adaptive functioning skills, the psychological terms are different. And even if evidence supporting these intellectual functioning findings could be relevant to the adaptive functioning prong, we cannot ignore the fact that the OCCA addresses this evidence exclusively in the context of Murphy's definition of the intellectual functioning prong. Compare id. with Murphy, 54 P.3d at 567-68 (defining the intellectual functioning prong as "[i]f he or she functions at a significantly sub-average intellectual level that substantially limits his or her 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"). The OCCA made no attempt ...


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