May 19, 2013

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Tenth Circuit: Brady Requires Party to Disclose Mental Health Records in Capital Case

May 8, 2013 by Leave a Comment

The Tenth Circuit published its opinion in Browning v. Trammell on Monday, May 6, 2013.

This case turns largely on principles the Supreme Court established in Brady v. Maryland, 373 U.S. 83 (1963). In Brady, the Court held that an individual’s constitutional right to a fair trial obligates the prosecution in a criminal case to turn over evidence to the defense in certain circumstances. Specifically, under Brady, the State violates a defendant’s right to due process if it withholds evidence that is favorable to the defense and material to the defendant’s guilt or punishment. Difficulty arises, however, when the Brady obligation to disclose comes up against the various legal privileges that protect sensitive information from disclosure, such as the psychotherapist-patient privilege at issue here. In such a situation, the Supreme Court has directed lower courts to review such information in camera to determine whether it meets the Brady standard. Pennsylvania v. Ritchie, 480 U.S. 39, 57–58 (1987).

On February 18, 2001, Harry and Teresa Hye were shot to death and their house burned to the ground. Their adopted daughter, Cenessa Tackett, was also shot but survived and escaped the burning house. Tackett identified two perpetrators: her former boyfriend, Michael Browning, and another man named Shane Pethel. The State arrested them and charged them with capital murder.

During pretrial proceedings, Tackett’s attorney accidentally faxed two psychiatric reports to the prosecution. According to the first report, Tackett displayed “magical thinking” and a “blurring of reality and fantasy.” The second report described Tackett as manipulative, grandiose, egocentric, and stated that she typically projected blame onto others. The report noted memory deficits. It described Tackett as a “type . . . rarely seen except in inpatient facilities.” Tackett was described as assaultive, combative, or as having a homicidal potential that must be carefully considered.

When the prosecution received these reports, it revealed their existence but not their contents to the defense. Browning moved to compel production, which the trial court denied.

The trial court severed Browning’s case from that of his co-defendant, Pethel. Browning’s case went to trial first. No direct evidence besides Tackett’s testimony connected Browning to the crime. The State’s case therefore stood or fell largely on Tackett’s eyewitness testimony and its credibility. The jury convicted Browning on all counts, and returned a sentence of death for the murders of Harry and Teresa Hye.

Having exhausted all state post-conviction remedies, Browning filed a 28 U.S.C. § 2254 habeas corpus petition in the Northern District of Oklahoma. Browning raised several arguments, including that Tackett’s mental health records should have been disclosed. Reviewing those records in camera, the district court disagreed with the Oklahoma courts’ conclusion that the records contained nothing favorable to Browning. It therefore ordered those records disclosed to Browning’s habeas counsel, and, after briefing, concluded that Oklahoma Court of Criminal Appeals’ (OCCA’s) determination of this issue was an unreasonable application of clearly established federal law. The district court therefore granted a conditional writ of habeas corpus, requiring the State to retry Browning within 180 days or release him.

The federal district court cannot grant habeas corpus simply because it disagrees with the state court. Rather, if “fairminded jurists could disagree on the correctness of the state court’s decision,” then the federal court must defer to the state court. Harrington v. Richter, 131 S. Ct. 770, 785–86 (2011).

The defense argued they should be permitted to view the mental health records for purposes of this habeas corpus petition. The Tenth Circuit disagreed.  The Tenth Circuit held that a Brady claim resolved through the process established in Ritchie, i.e., an in camera review, has been “adjudicated on the merits” for purposes of § 2254(d).

The Tenth Circuit confined its analysis of favorability and materiality to the record before the state trial court. The Court therefore could not consider Pethel’s confession and guilty plea, nor could it consider evidence Browning developed in post-conviction proceedings that he believed favored his theory of the case.

Evidence is “favorable to the defense” if it is exculpatory or impeaching. Banks v. Dretke, 540 U.S. 668, 691 (2004). Evidence is “material” if “there is a reasonable probability that, had the evidence been disclosed, the result of the proceeding would have been different.” Smith v. Cain, 132 S. Ct. 627 (2012). A reasonable probability does not mean that the defendant would more likely than not have received a different verdict with the evidence, only that the likelihood of a different result is great enough to undermine confidence in the outcome of the trial.

On the exculpatory side, Tackett’s records describe her as hostile, assaultive, combative, and even potentially homicidal. Such evidence tends to show that a person with a motive to kill might even have a disposition to kill. On the impeaching side, Tackett’s psychiatric evaluations evinced, among other things, memory deficits, magical thinking, blurring of reality and fantasy, and projection of blame onto others. This is classic impeachment evidence.

Accordingly, the Tenth Circuit disagreed with the district court’s disposition of the favorability question: “There is no reasonable argument or theory that could support the Oklahoma courts’ conclusion that the sealed material contained nothing favorable to Browning’s defense.”

The Court then turned to the question of whether Tackett’s mental health records would have been material to Browning’s case.

Evidence is material if there is a reasonable probability that, had the evidence been disclosed, the result of the proceeding would have been different. A reasonable probability does not mean that the defendant would more likely than not have received a different verdict with the evidence, only that the likelihood of a different result is great enough to undermine confidence in the outcome of the trial.

The Tenth Circuit concluded it was difficult to see how the Oklahoma courts could reasonably conclude there was nothing material about a recent diagnosis of a severe mental disorder that made Tackett hostile, assaultive, combative, and even potentially homicidal, or that Tackett was known to blur reality and fantasy and project blame onto others.

The district court’s grant of a conditional writ of habeas corpus is AFFIRMED.

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Tenth Circuit: Federal Court Had No Power to Examine State Court Conviction Using Writ of Coram Nobis

May 1, 2013 by Leave a Comment

The Tenth Circuit published its opinion in Rawlins v. State of Kansas on Tuesday, April 30, 2013.

Damaris Rawlins was convicted in 2001 in Kansas state court for battery of a police officer. The Kansas court sentenced Rawlins to three years’ probation. Rawlins timely challenged her conviction in the Kansas courts both through direct appeals and through Kansas’s collateral review system, arguing that certain constitutional errors tainted her conviction. Those state-court proceedings lasted for an unusually long period of time, finally concluding with a denial of relief in 2011. Because Rawlins was not in state custody (including probation) at the conclusion of her collateral review proceedings, she could not bring a 28 U.S.C. § 2254 habeas corpus petition in federal court. Rawlins therefore petitioned the District of Kansas for a writ of audita querela or, in the alternative, a writ of coram vobis. The Tenth Circuit discussed the history of these writs and chose to use the term coram nobis in its opinion.

The district court found the writ of audita querela was the writ that applied and denied her petition after examining her constitutional claims as if she had brought a § 2254 petition. The Tenth Circuit held that was the incorrect writ because audita querela addresses unanticipated situations that arise after judgment. Coram nobis, however, addresses defects that existed before the judgment, and United States v. Morgan makes clear that such defects include those that would otherwise be raised in habeas proceedings but for the petitioner no longer being in custody.

While Morgan permits federal courts to entertain coram nobis applications in “extraordinary cases presenting circumstances compelling its use to achieve justice,” it only applies to a federal court reopening its own case. A federal court cannot apply the writ to a state court case, or even another federal court. Because the district court had no power to examine Rawlins’ conviction, the Tenth Circuit vacated the decision and remanded for dismissal due to lack of jurisdiction.

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Tenth Circuit: Petitioner Convicted of Rape and Murder in 1982 Failed to Meet His Burden in Conditional Habeas Corpus Petition

April 15, 2013 by Leave a Comment

The Tenth Circuit published its opinion in Case v. Hatch on Friday, April 12, 2013. Because this is an amended opinion after rehearing with the same outcome as previously, no new summary is provided.  See the summary of the February 26, 2013 opinion here.

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Tenth Circuit: Denial of Habeas Relief Affirmed in Death Penalty Case

April 2, 2013 by Leave a Comment

The Tenth Circuit published its opinion in Lockett v. Trammel on Monday, April 1, 2013.

An Oklahoma state court jury convicted Clayton Lockett of 19 counts, including burglary, assault, rape, and first degree murder. He was sentenced to 2,285 years and 90 days of imprisonment for his non-capital crimes and sentenced to death for his murder conviction. The Oklahoma Court of Criminal Appeals (“OCCA”) affirmed Lockett’s convictions and sentence and later denied post-conviction relief. Lockett filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his conviction and death sentence on 15 grounds. The federal district court denied relief but granted a certificate of appealability (“COA”) on seven grounds, one of which Lockett abandoned. Lockett sought to add three additional COAs in this appeal but the court denied that request.

Lockett’s trial counsel did not present a defense in the guilt phase of the trial but did present mitigation evidence in the death penalty phase focusing on Lockett’s childhood trauma. One witness, a social worker, was prohibited from testifying about facts specific to Lockett or that his childhood experiences affected his behavior as an adult. The court held that while the limitation on her testimony was erroneous, it did not have a “‘substantial and injurious effect’” on the jury verdict.” A second mitigation witness, a psychiatrist, testified to specific abuse experienced by the defendant as a child and how that abuse affected his behavior.

The trial court allowed the admission of a victim impact statement by the murder victim’s family. The Tenth Circuit held that the portions of the statement that included characterizations of the crime, opinions about the defendant, and a request for the death penalty to be imposed violated the Eighth Amendment under Booth v. Maryland, 482 U.S. 496 (1987). The court pointed out that Oklahoma is the only state to allow such statements, despite the Tenth Circuit’s disapproval. The court found that the admission of the unconstitutional portions of the impact statement was, however, harmless error.

Before trial, the defendant was examined at the government’s request by a psychiatrist, Dr. Call, because Lockett was considering pleading insanity. The government called this psychiatrist to testify as a rebuttal witness during the penalty phase. Lockett argued that Dr. Call’s examination of Lockett exceeded the scope agreed to by Lockett’s attorney, which violated the Sixth Amendment. The court rejected this argument.

The court also rejected Lockett’s argument that the evidence was insufficient to support the jury’s finding with respect to one of the five aggravating circumstances: that he created a great risk of death to more than one person.

Lockett argued cumulative error in the penalty phase was prejudicial and required reversal. The court disagreed.

Lockett argued that he received ineffective assistance of counsel at the guilt phase of his trial because his attorney conceded his guilt to the jury and allegedly failed to notify him of the strategy. Because conceding guilt can be a reasonable trial strategy, Lockett failed to meet the Strickland standard of deficient counsel performance that prejudiced him. The Oklahoma Criminal Court of Appeals’ decision to apply Strickland rather than Croncic was reasonable and entitled to AEDPA deference.

After rejecting Lockett’s motion to add COAs, the Tenth Circuit affirmed Lockett’s conviction and death sentence.

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Tenth Circuit: Petitioner Convicted of Rape and Murder in 1982 Failed to Meet His Burden in Conditional Habeas Corpus Petition

February 28, 2013 by Leave a Comment

The Tenth Circuit published its opinion in Case v. Hatch on Tuesday, February 26, 2013.

This appeal arises from a crime committed over thirty years ago—the rape and murder of a teenager outside of Carlsbad, New Mexico. Several young men were convicted of the crime, including Petitioner Carl Case. Those convictions were upheld by the state courts in New Mexico both on direct and collateral review, and Case’s first habeas petition in federal court was denied.

In 2008, Case filed an application for permission to file a second habeas petition. He claimed constitutional error occurred at trial based on the discovery of new and previously undisclosed evidence involving a trial witness, and the recantation of trial testimony by two prosecution witnesses nearly twenty years after the trial. The Court concluded Case had made a prima facie case showing that certain recantations qualified as “newly-discovered evidence under 28 U.S.C. § 2244(b)(2)(B)(i)” and that Case had sufficiently alleged a constitutional Brady error.

The magistrate judge concluded that Case failed to establish by clear and convincing evidence that, but for constitutional error, no reasonable fact-finder would have found Case guilty. Accordingly, the magistrate judge recommended the petition be dismissed. After receiving this recommendation, the district court instead held an evidentiary hearing. The district court found the recantations credible, determined that a constitutional Brady error occurred at Case’s trial, and ruled that Case satisfied the procedural hurdle erected by 28 U.S.C. § 2244(b)(2)(B) (AEDPA). The district court found the state court failed to holistically evaluate the impact of the evidence and improperly used an abuse of discretion standard when evaluating Case’s Brady claim. The district court granted Case the conditional writ of habeas corpus at issue.

28 U.S.C. § 2244(b) provides that a successive habeas corpus application shall be dismissed unless the two gate-keeping requirements are met. The first gate requires the petitioner make a prima facie showing that no reasonable fact-finder would have found Case guilty but for constitutional error at trial. The second gate requires the petitioner to back up the prima facie showing with actual evidence to show he can meet this standard. In sum, once a petitioner makes a prima facie showing, he still must pass through the second gate erected by § 2244.

Here, Case successfully identified a Brady violation, so he met the requirements of the first gate. The Tenth Circuit then had to determine whether the newly discovered evidence, based on the record as a whole, would have led every reasonable juror to a conclusion of “not guilty.”

To pass through the second jurisdictional gate, Case was required to show two things. One was that the factual predicate for his Brady claim could not have been discovered previously through the exercise of due diligence. Case was then required to show “the facts underlying the Brady claim, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable fact-finder would have found him guilty of the underlying offense.” Id. § 2244(b)(2)(B)(ii).

Petitioner failed to meet his burden. Looking to the evidence the jury heard at trial, Case’s arguments did not meet the standard of clear and convincing evidence that no reasonable fact-finder would have found him guilty of the underlying offense. Case failed to pass through the second § 2244 gateway, which would have allowed the Tenth Circuit to consider the merits of his application.

The district court’s conditional grant of habeas relief was VACATED, and REMANDED for the court to DISMISS for lack of jurisdiction.

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Tenth Circuit: In Death Penalty Case, Court Affirms Lower Courts’ Denial of Petitions for Post-Conviction Relief

January 16, 2013 by Leave a Comment

The Tenth Circuit published its opinion in Lott v. Trammell on Monday, January 14, 2013.

This is a death penalty appeal involving two murders that were committed over twenty-five years ago. Petitioner Ronald Lott was convicted by an Oklahoma jury of two counts of first-degree murder in December 2001. The state trial court, in accordance with the jury’s verdict, sentenced Lott to death on both counts in January 2002. After his direct appeal and application for state postconviction relief were unsuccessful, Lott sought federal habeas relief by filing a petition for writ of habeas corpus. The district court denied Lott’s petition. Having been granted a certificate of appealability with respect to several issues, Lott appealed.

The Tenth Circuit affirmed the district court’s denial of federal habeas relief as follows. It is important to note that the review of Lott’s appeal was governed by the provisions of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). Under AEDPA, the standard of review applicable to a particular claim depends upon how that claim was resolved by the state courts.  As a result, the Tenth Circuit’s focus on appeal was upon the rulings of the Oklahoma Court of Criminal Appeals (OCCA), not those of the federal district court.

1) Speedy Trial Claim: Lott contended that the state trial court violated his Sixth Amendment rights by denying his motions to dismiss the criminal proceedings on speedy trial grounds. The Tenth Circuit held that Lott failed to establish that the OCCA erred in concluding that two of the factors in Barker v. Wingo, 407 U.S. 514 (1972),  favored the State.  Consequently, Lott failed to establish that the OCCA’s balancing of the Barker factors was erroneous.

2) Erroneous Aiding and Abetting Instruction: Lott contended that the state trial court violated his constitutional rights by instructing the jury that he could be found guilty of felony murder on an accomplice liability theory, even though the prosecution at a pretrial motions hearing had disavowed reliance on an aiding and abetting theory of felony murder. The Tenth Circuit concluded that Lott was given plenty of notice concerning the State’s alternative theories of guilt, and the trial court’s aiding and abetting instruction was amply supported by the evidence presented at trial.

 3) Admission of Other-Crimes Evidence: Lott contended that he was deprived of his right to a fundamentally fair trial due to the admission at trial of evidence that he was convicted of two other rapes. A review of the state court record indicated that Lott’s trial was not rendered fundamentally unfair by the admission of the evidence of the other rapes. Aside from the other-crimes evidence, the prosecution’s evidence of Lott’s guilt of rape and murder (particularly the DNA evidence) was overwhelming. Further, it was clear to the Tenth Circuit that the other-crimes evidence would have, at a minimum, been admissible by the prosecution during the second-stage proceedings in order to prove the continuing-threat aggravator. Lastly, the jury rejected the continuing-threat aggravator, and thus it did not appear that this evidence had any impact on the jury’s sentencing decision.

4) Prosecutorial Misconduct—Introduction of Hearsay Statements of Robert Miller: Lott contended that the prosecution engaged in prejudicial misconduct by injecting hearsay statements of Robert Miller into both stages of trial in order to prove that, even though Miller may have been present during the commission of the crimes, it was Lott who killed both victims because he needed to eliminate witnesses. However, the transcript showed it was Lott’s counsel who first introduced Miller’s statements into evidence by cross-examining McKenna regarding Miller’s statements.

5) Trial Counsel’s Failure to Investigate and Present Mitigating Evidence: Lott contended that his trial counsel was ineffective for failing to investigate and present at the second-stage trial proceedings available mitigating evidence. The Tenth Circuit concluded that the only reasonable inference that could be drawn from the record was that Lott’s counsel determined that introduction of Lott’s social history would be more detrimental than beneficial, and thus made a strategic decision not to present that evidence. After carefully examining the record on appeal, the Tenth Circuit concluded that Strickland v. Washington, 466 U.S. 668 (1984), was reasonably applied.

6) Admission of Improper Victim Impact Evidence: Lott contended that the state trial court’s admission of improper victim impact testimony from witness Cynthia Houston, the granddaughter of victim Fowler, resulted in the arbitrary and capricious imposition of the death penalty in violation of the Eighth and Fourteenth Amendments. Although Lott’s constitutional rights were violated by the admission of Houston’s testimony opining about the appropriate sentence for Lott, the Tenth Circuit held that the  testimony did not have the required “substantial and injurious effect” on the outcome of the second-stage proceedings, given the overwhelming evidence of Lott’s guilt, as well as his admitted guilt of the two subsequent rapes, and the cruel and brutal nature of the crimes.

7) Sufficiency of Evidence—Avoid Arrest or Prosecution Aggravator: Lott contended that insufficient evidence was presented at his trial to support the jury’s second-stage findings that the two murders were committed in order to avoid arrest or prosecution. The Tenth Circuit concluded that the OCCA’s determination that the evidence was constitutionally sufficient to support the jury’s finding of the aggravator was neither contrary to, nor an unreasonable application of, clearly established federal law.

8) Cumulative Error: Lott lastly contended that the cumulative effect of all of the constitutional errors in his case warranted federal habeas relief. Upon de novo review, the Tenth Circuit could not conclude that, having identified only a single constitutional error (as described above), and having exhaustively examined the record on appeal, that Lott’s trial was “so infected . . . with unfairness as to make the resulting conviction[s] [or sentences] a denial of due process.”

AFFIRMED.

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Tenth Circuit: Tribal Exhaustion Rule Applies to 25 U.S.C. § 1303 Habeas Petitions

November 15, 2012 by Leave a Comment

The Tenth Circuit issued its opinion in Valenzuela v. Silversmith on Wednesday, November 14, 2012.

Alvin Valenzuela, an enrolled member of the Tohono O’odham Nation (the Nation) accepted a plea agreement in which he waived his right to appeal his conviction and sentences. He later filed a petition for writ of habeas corpus pursuant to 25 U.S.C. § 1303 seeking relief from tribal court convictions and his sentence. Section 1303 is part of the Indian Civil Rights Act. While Valenzuela’s petition was pending in federal district court, he completed his sentence and was released from prison. The district court concluded that Valenzuela’s claims were moot because of his release. Alternatively, it concluded that Valenzuela had failed to exhaust his tribal remedies before seeking habeas relief in federal court. Based on these alternative grounds, the district court dismissed Mr. Valenzuela’s § 1303 petition.

The Tenth Circuit chose to decide the appeal on the threshold, nonmerits issue of his failure to exhaust tribal remedies, rather than on the grounds of mootness. This allowed the court to avoid deciding whether it had subject matter jurisdiction and “difficult issues such as whether tribal court convictions are entitled to a presumption of collateral consequences and whether federal courts have authority under 25 U.S.C. § 1303 to vacate tribal court convictions.”

Valenzuela argued that § 1303 does not require exhaustion in the tribal courts. The court disagreed. While § 1303 does not explicitly state exhaustion is required, the tribal exhaustion rule applies to § 1303 petitions. The rule “provides that, absent exceptional circumstances, federal courts typically should abstain from hearing cases that challenge tribal court [authority] until tribal court remedies, including tribal appellate review, are exhausted.”

The court also found that because Valenzuela’s appeal waiver did not expressly waive his right to collaterally attack his conviction in tribal court, he had failed to exhaust his tribal court remedies by not filing a habeas petition in that court. The Tenth Circuit affirmed the district court’s dismissal and remanded for that court to dismiss it without prejudice.

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Tenth Circuit: Prisoner’s Application for Habeas Corpus Relief Denied Due to Untimeliness and Failure to Exhaust State Court Remedies

November 8, 2012 by Leave a Comment

The Tenth Circuit issued its opinion in Prendergast v. Clements on Tuesday, November 6, 2012.

Brian Prendergast was convicted of securities fraud. He appealed his conviction and was sentenced to ten years of probation. In 2003, his conviction was affirmed on appeal. Prendergast violated the terms of his probation and was accordingly resentenced in 2009. His resentencing was affirmed on appeal in April 2011. In December 2011, Prendergast filed in federal district court an application for federal habeas relief. His application presented five claims. Two attacked the constitutionality of his resentencing. The other three attacked the basis of his original conviction. The district court dismissed the two claims related to the resentencing for failure to exhaust state-court remedies. The court dismissed as untimely the three claims related to the original conviction.

The Tenth Circuit reviewed these two bases for dismissal.

Exhaustion of State Court Remedies. For a federal court to consider a federal constitutional claim in an application for habeas, the claim must be “fairly presented to the state courts” in order to give state courts the “opportunity to pass upon and correct alleged violations of its prisoners’ federal rights.” Since there was nothing in Prendergast’s briefing to alert the state court about a federal constitutional claim, the district court correctly concluded Prendergast did not exhaust state-court remedies as to either claim.

Untimeliness. At the district court level, Prendergast presented three claims challenging the constitutionality of his 2003 conviction. Applying the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), the district court concluded all three of these claims were time barred. Because AEDPA sets a one-year limitations period for filing a COA application, and because Prendergast did not raise claims attacking the original conviction until over seven years later, these claims clearly exceeded the one-year limitations period for filing a COA application.

Accordingly, Petitioner’s application for a certificate of appealability was DENIED, the matter was DISMISSED, and his motion to proceed in forma pauperis was DENIED.

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Tenth Circuit: Murder Conviction Affirmed; Given Overwhelming Evidence of Guilt, Any Error Harmless

September 7, 2012 by Leave a Comment

The Tenth Circuit Court of Appeals published its opinion in Banks v. Workman on Wednesday, September 5, 2012.

The defendant, Anthony Banks, was convicted of murder and sentenced to death. He and a companion had kidnapped, raped, and shot the victim. After losing his state court appeal, Banks appealed the denial of his federal habeas petition. He alleged a Confrontation Clause violation because the prosecution called Banks’s brother as a witness even after he stated he would plead the Fifth and asked if Banks had told him he shot the victim. The state court found that to be harmless error. The standard of review of the state court’s determination that a constitutional error was harmless is “whether the error had a ‘substantial and injurious effect’ on the jury’s decision.” To reverse a conviction under this standard, the reviewing court must “have a 1grave doubt1 about the effect of the error on the verdict.” Given the overwhelming evidence against the defendant, The Tenth Circuit had no such doubt.

Banks’s claimed violation of his due process right to a competent expert and Sixth Amendment right to effective assistance of counsel because his expert witness was allegedly intoxicated when he testified. Because the defendant did not object at the trial or argue this point on direct appeal, he was procedurally barred by Oklahoma statute from raising this issue. Because the few reasons a federal court would excuse compliance with a state procedural rule were not present, Banks lost on this issue as well.

The Tenth Circuit affirmed Banks’s conviction after disposing of his additional claims that the government failed to disclose exculpatory evidence, of prosecutorial misconduct, and cumulative error.

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Tenth Circuit: Federal Habeas Relief Denied Following Death Sentence for Murder Conviction

April 24, 2012 by Leave a Comment

The Tenth Circuit Court of Appeals published its opinion in Thacker v. Workman on Monday, April 23, 2012.

The Tenth Circuit affirmed the district court’s decision. Petitioner pled guilty in Oklahoma state court to charges of first-degree malice aforethought murder, kidnapping, and first-degree rape. Following a sentencing hearing, the state trial court sentenced Petitioner to death for the murder conviction. Petitioner’s death sentence was affirmed on direct appeal, and his requests for state post-conviction relief were denied. Petitoiner petitioned for a writ of habeas corpus under 28 U.S.C. § 2254, but was denied relief by the district court. Petitioner filed a notice of appeal and the district court granted him a certificate of appealability on four issues. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, the Tenth Circuit affirmed the district court’s denial of federal habeas relief.

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Tenth Circuit: Determination that Mental Retardation Is Not a Fluid Concept is Consistent with Atkins

January 20, 2012 by Leave a Comment

The Tenth Circuit Court of Appeals published its opinion in Ochoa v. Workman on Wednesday, January 18, 2012.

The Tenth Circuit affirmed the district court’s decision. An Oklahoma state jury found Petitioner guilty of two counts of first degree murder and sentenced him to death. In Atkins v. Virginia, 536 U.S. 304, 321 (2002), the Supreme Court held that the Eighth Amendment precludes the execution of mentally retarded criminals. Relying on Atkins v. Virginia, 536 U.S. 304, 321 (2002), in which the Supreme Court held that the Eighth Amendment precludes the execution of mentally retarded criminals, the Oklahoma Court of Criminal Appeals granted Petitioner a post-conviction jury trial to determine whether he was mentally retarded. The jury found Petitioner failed to meet his burden of proving, by a preponderance of the evidence, he was mentally retarded, and the appeals court affirmed. The Tenth Circuit granted Petitioner permission to file a second habeas petition raising his Atkins claims in federal district court. The district court denied the petition on the merits.

Petitioner contends that “Oklahoma law, which focuses on whether a defendant is mentally retarded at the time of trial, instead of whether he was mentally retarded at the time of the commission of the crime, is ‘contrary to, or . . . an unreasonable application of’ Atkins.” The Court rejected this contention. “Oklahoma’s determination that mental retardation is not a fluid concept is entirely consistent with Atkins.” Ochoa further asserts his trial was fundamentally unfair because “(1) the jury was informed he had been convicted of a crime, (2) he was forced to attend trial in an orange prison jumpsuit, and (3) he was forced to wear a shock sleeve during trial.” However, the Court held that the district court correctly concluded none of the alleged errors identified by Petitioner entitle him to habeas relief.

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Tenth Circuit: Dismissal of First Habeas Petition as Time-Barred was a Decision on the Merits; A Claim Presented in a Previous Habeas Petition Must Be Dismissed

September 22, 2011 by Leave a Comment

The Tenth Circuit Court of Appeals issued its opinion in In re Rains on Wednesday, September 21, 2011.

The Tenth Circuit denied authorization to file a second or successive habeas corpus petition. Petitioner pleaded guilty in Oklahoma state court to making a telephone bomb threat, robbery with a dangerous weapon, and robbery. He was sentenced to ten, twenty, and twenty years of imprisonment, respectively, with the sentences to run concurrently. He filed his first habeas petition in federal district court in 2007, “asserting that (1) his sentence was excessive because he was eighteen years old at the time of the offenses, he was a first-time offender, and the victims were uninjured; (2) his robbery sentences were illegal; (3) his guilty plea was not entered knowingly and voluntarily because he was not told he would need to serve at least 85% of the sentence for robbery with a dangerous weapon; and (4) his counsel was ineffective for coercing him to plead guilty, failing to inform him that he would serve 85% of the robbery-with-a-dangerous-weapon sentence, and inadequately negotiating the plea. The court dismissed the petition as time-barred under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA).” Petitioner did not appeal.

In 2008, he filed another habeas petition, “re-asserting the first, third, and fourth claims. The district court decided this filing was an unauthorized second or successive § 2254 petition. Declining to transfer it to [the Tenth Circuit], the district court instead dismissed for lack of jurisdiction.” Petitioner again did not appeal. Petitioner now seeks authorization to assert all four claims in a second or successive habeas petition. “Under AEDPA, a claim presented in a previous § 2254 petition must be dismissed. . . . The dismissal of [Petitioner]’s first habeas petition as time-barred was a decision on the merits, and any later habeas petition challenging the same conviction is second or successive and is subject to the AEDPA requirements.” The Court therefore denied authorization. The denial of authorization is also not appealable and cannot not be the subject of a petition for rehearing or for a writ of certiorari.

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