August 22, 2019

Tenth Circuit: Supreme Court Must Explicitly Hold Case to be Retroactive for Retroactivity to Apply

The Tenth Circuit Court of Appeals issued its opinion in In re Jones on Friday, February 10, 2017.

The Tenth Circuit had to determine if a secondary habeas petition was permissible where the first petition failed. Julius Darius Jones petitioned the court, seeking authorization to file a second capital habeas petition under 28 U.S.C. § 2254 to assert a claim for relief under the Supreme Court ruling in the case of Hurst v. Florida. The court evaluated Jones’ petition under the gatekeeping requirements of 28 U.S.C. § 2244(b) and rejected his petition.

Jones was convicted in 2002 of felony murder and sentenced to death. After Jones’ subsequent appeals were rejected, he filed his first habeas petition in 2007 on the grounds of ineffective assistance of trial and appellate counsel, which was denied by the court in 2013, and which denial was affirmed in 2015. In the present matter, Jones wishes to assert that his sentence violates his Fifth, Sixth, Eighth, and Fourteenth Amendment rights because the jury was not instructed that for the death sentence to be appropriate, the jury must find beyond a reasonable doubt that the aggravating circumstances of his crime outweighed any mitigating factors.

The court evaluated if Jones was entitled to a secondary habeas petition under § 2244(b)(2)(A), which states that the court may only authorize successive claims when the claim relies on a new constitutional rule of law that was made retroactive to cases on collateral review by the Supreme Court, which was not previously available to the claimant.

In rejecting Jones’ petition, the court determined that the case upon which Jones was relying, Hurst v. Florida, (where the court ruled the decision underlying the sentence of death must be found beyond a reasonable doubt) did not warrant retroactivity. The court stated that for a procedural rule of law to be retroactive, the Supreme Court must have explicitly held it to be. Because the Supreme Court has not held the Hurst ruling to be retroactive, the court determined Jones had not met the gatekeeping requirements under § 2244(b).

The Tenth Circuit denied the Motion for Authorization.

Tenth Circuit: Mixed Petition May Either Be Dismissed Without Prejudice or Denied on Merits

The Tenth Circuit Court of Appeals issued its opinion in Wood v. McCollum on Tuesday, August 16, 2016.

Michael Wood is an Oklahoma prisoner who was sentenced to life imprisonment without the possibility of parole after pleading guilty to first degree murder. He sought a writ of certiorari from the OCCA after his conviction, arguing he should be allowed to withdraw his plea and go to trial. The OCCA denied certiorari and rejected all five of his arguments. Wood then filed a federal habeas petition, which was referred to a federal magistrate judge for a report and recommendation (R&R). The magistrate judge identified seven grounds for relief, six of which were largely duplicative of the claims in Wood’s cert petition to the OCCA. The R&R identified one claim that was not exhausted, though.

Wood asked the district court to either retain jurisdiction while he exhausted his claim in state court or dismiss the petition without prejudice. The R&R recommended denying Wood’s request to hold the proceedings in abeyance while he exhausted his state claim and granting Wood’s request to dismiss without prejudice. The district court entered an order dismissing the petition with prejudice except as to the claim that was unexhausted, which the district court dismissed without prejudice.

On appeal, the Tenth Circuit found that the district court did not act in accordance with Circuit precedent. The district court should have either dismissed the entire petition without prejudice in order to allow the petitioner to exhaust state court remedies, or denied the entire petition on the merits. The Tenth Circuit noted that the district court’s approach was specifically foreclosed by precedent. After briefing, the Tenth Circuit reversed and remanded with instructions for the district court to vacate its judgment and dispose of Wood’s petition in a manner consistent with precedent.

Tenth Circuit: District Court Did Not Abuse Discretion by Denying Competency Based Stay of Habeas Proceedings

The Tenth Circuit Court of Appeals issued its opinion in Ryder v. Warrior on Monday, January 11, 2016.

In 1999, James Ryder killed Daisy Hallum and her adult son Sam in a dispute over personal property. Mr. Ryder had been storing supplies at the Hallum residence for his upcoming move to the Yukon Territory, where he was planning to flee and live in the wild in order to avoid an impending apocalypse, but when he went to collect them the Hallums refused to give him his supplies so he murdered them. The State of Oklahoma charged him with two counts of first degree murder. Before trial, psychologist Dean P. Montgomery issued a report to Mr. Ryder’s trial counsel expressing his belief that Mr. Ryder suffered from a longstanding schizoid personality disorder and was incompetent to stand in his own defense. Mr. Ryder’s trial counsel did not inform the court of Dr. Montgomery’s conclusions, however, because based on his own interactions with Mr. Ryder counsel did not have a “good faith doubt” as to Mr. Ryder’s competency to stand trial.

Mr. Ryder was convicted on both counts. Before the penalty phase of the trial, Mr. Ryder’s counsel filed an application for determination of competency supported by Dr. Montgomery’s report. The trial court held a hearing outside the presence of the jury, and denied the request for a separate competency hearing, instead questioning Mr. Ryder. Mr. Ryder assured the court that he understood that he had been convicted of two counts of first degree murder and the state was pursuing the death penalty. He testified that he understood the purpose of mitigation evidence and did not want to present any, and informed the court that he had never been treated for mental illness. During this hearing, the court questioned Mr. Ryder’s counsel about the mitigation witnesses he wished to call. Mr. Ryder became upset and exclaimed that he did not want anyone to testify and did not want a second stage. He left the courtroom. After Mr. Ryder returned, the court ruled he was competent to stand trial and to waive his right to present mitigation evidence. Mr. Ryder’s counsel requested leave to present mitigation evidence anyway, arguing that Mr. Ryder had a Sixth Amendment right to effective representation. The court granted counsel’s request. Mr. Ryder was eventually given a sentence of life without parole for Sam’s death and the death penalty for Daisy’s.

On direct appeal to the OCCA, Mr. Ryder was represented by different counsel. Appellate counsel argued that the trial court erred in failing to make a proper competency determination prior to the sentencing phase and the trial counsel was ineffective for failing to apprise the court of Mr. Ryder’s competency issues before trial. The OCCA remanded to the trial court to determine whether a retrospective competency evaluation was feasible and, if so, to conduct the evaluation. The trial court determined it was feasible and held a retrospective competency evaluation. During voir dire, defense counsel told the jury that Mr. Ryder was on death row, and prospective juror asked the prosecutor about it. The court instructed the jurors that their only task was to determine whether Mr. Ryder was competent. During trial, defense counsel called one witness—Dr. Montgomery. Dr. Montgomery testified that he believed Mr. Ryder suffered from a serious delusional disorder under the schizophrenic group of disorders. The State called three witnesses, who all testified as to their interactions with Mr. Ryder and their perceptions of those interactions. The jury found Mr. Ryder had been competent at the time of his first trial. Mr. Ryder appealed to the OCCA, which affirmed. He then filed a motion for postconviction relief with the OCCA, which was denied, and petitioned the U.S. Supreme Court for certiorari, which was also denied.

Mr. Ryder then filed a habeas petition in the U.S. District Court for the Eastern District of Oklahoma. He raised eleven grounds for relief and asked that the petition be held in abeyance based on his incompetency. The district court ordered an evidentiary hearing and referred the matter to a magistrate judge for a determination of competency. After a court-ordered competency evaluation and its follow up, the state and defense counsel entered into a stipulation that each of their experts would testify that Mr. Ryder was not competent. The magistrate judge entered an order that Mr. Ryder was not competent, and the district court thereafter ordered an evidentiary hearing to determine whether Mr. Ryder was competent when the statute of limitations ran on his habeas proceedings. After a hearing, the court concluded that Mr. Ryder had failed to show he was incompetent when the statute of limitations ran. The district court subsequently entered an order denying habeas relief. The Tenth Circuit later granted a COA on three grounds, which are the subject of this appeal.

The Tenth Circuit first addressed the district court’s denial of a competency-based stay to the habeas proceedings. The Tenth Circuit noted that the Supreme Court recently determined that there is no right to competency during habeas proceedings, but district courts retain discretion to issue stays where proper. The Tenth Circuit noted that the merits of Mr. Ryder’s claims were adjudicated in the OCCA, and therefore were subject to the limits imposed in § 2254. The Tenth Circuit concluded the district court did not abuse its discretion in denying a competency based stay.

The Tenth Circuit next addressed the merits of Mr. Ryder’s habeas claims, noting that its review was constricted by AEDPA. In reviewing his ineffective assistance of counsel claim during the retrospective competency evaluation, the Tenth Circuit found that Mr. Ryder could not prove deficient performance, because his counsel’s strategic decisions were reasonable and well within the broad spectrum of competent representation. The Tenth Circuit thoroughly evaluated each of Mr. Ryder’s claims and denied relief as to each one. The Tenth Circuit similarly rejected Mr. Ryder’s ineffective assistance of trial counsel claims, thoroughly examining each one and denying relief.

The Tenth Circuit remarked that the tragic reality in this case is that Mr. Ryder’s untreated mental illness likely influenced his decision to withhold mitigating evidence from the jury, and the condition responsible for Mr. Ryder’s unwillingness to present mitigating evidence may have been the very evidence that could have persuaded the jury to have leniency. However, the Tenth Circuit could only presume that Mr. Ryder’s mental condition had not yet deteriorated to the point of incompetency by the time he made the decision to withhold mitigating evidence from the jury.

The Tenth Circuit affirmed the district court.

Tenth Circuit: Officers’ Theft During Warrant Execution Does Not Justify Blanket Suppression of Evidence

The Tenth Circuit Court of Appeals issued its opinion in United States v. Webster on Tuesday, January 5, 2016.

Kansas City police officers became suspicious that Ricky Webster was manufacturing and distributing crack cocaine out of his residence and obtained a no-knock search warrant. The Kansas City officers executed the warrant, with a five-minute lead on their entry by three members of the Selective Crime Occurrence Reduction Enforcement (SCORE) unit, special officers whose role was to enter and secure residences prior to the execution of search warrants. The police officers discovered more than 100 grams of crack cocaine, drug paraphernalia, a small amount of marijuana, and numerous pills during the search. They also found eighteen firearms, two of which were located in close proximity to drugs. Webster was indicted on numerous charges, and he pleaded guilty to a conspiracy count and possession of a firearm in furtherance of a drug trafficking crime and agreed to a sentence of 180 months in exchange for the government agreeing to forego filing for a sentence enhancement on Webster’s prior felony drug conviction, which would have required a mandatory minimum 20-year sentence.

Prior to accepting the plea agreement, Webster informed the court he had recently become aware that his wife had filed a complaint with the Kansas City police, claiming that the SCORE officers had stolen several items of personal property during the search, including a Flip camcorder, a Playstation, an iPhone, and $100 in cash. Webster asked for a continuance so he could discuss the theft with his attorney and reconsider the plea. Webster’s trial counsel informed the court that he believed it was against Webster’s best interest to withdraw the plea, but he nevertheless filed a motion to withdraw the plea after the court granted the continuance. At the next sentencing hearing, the district court denied Webster’s motion to withdraw the plea and sentenced him to 180 months pursuant to his plea agreement. Webster filed a pro se notice of appeal, which the Tenth Circuit dismissed as untimely.

The next day, the Kansas City Police Department and the FBI conducted a sting that caught several members of the SCORE unit stealing personal property during execution of a search warrant. The Flip and Playstation were subsequently discovered at the house of one of the SCORE unit members. Three officers were charged with conspiring to steal property from Webster’s wife and others, and all three pleaded guilty. Based on the indictments, Webster filed a pro se § 2255 petition to vacate his convictions, arguing his trial counsel was constitutionally ineffective for failing to file a motion to suppress all evidence seized during the search of his house.

The district court held that the SCORE officers’ theft amounted to flagrant disregard of the scope of the warrant and found that the egregious conduct justified a blanket suppression of all evidence seized during the search. The district court found that defense counsel’s failure to investigate the claims of theft or file a motion to suppress was unreasonable, and therefore Webster was prejudiced by his counsel’s deficient conduct. The district court vacated the judgment entered pursuant to the plea agreement and denied the government’s subsequent motion to reconsider. Webster then filed a motion to suppress all evidence obtained in the search in the reinstated criminal case, which the district court granted. The government appealed the grant of habeas relief and grant of the motion to suppress.

The Tenth Circuit first considered the motion to suppress, reasoning that the grant of habeas relief was contingent on its success. The Tenth Circuit examined precedent requiring blanket suppression pursuant to the exclusionary rule, specifically addressing the cases on which the district court relied in issuing its order. The Tenth Circuit noted that blanket suppression is an extreme remedy only appropriate in the rarest circumstances, and distinguished its prior cases allowing blanket suppression. Here, the district court made specific findings that the police officers were unaware of the SCORE officers’ conduct, whereas in other cases there was a conspiracy among all involved officers. Further, in prior cases, the officers took vast amounts of property in blatant disregard of the scope of the warrant, whereas here the SCORE officers took only a few high-value items. The Tenth Circuit implied that blanket suppression is only justified when officers take numerous items outside the scope of the warrant, rather than when members of the team executing the warrant commit crimes.

Addressing Webster’s argument that blanket suppression was necessary in deterrence, the Tenth Circuit found that there could be no greater deterrent than criminal prosecution. The Tenth Circuit declined to address the habeas petition, since its reversal of suppression negated the basis for the petition.

The Tenth Circuit reversed the district court.

Tenth Circuit: Article III “In Custody” Requirement Treats Consecutive Sentences as One Continuous Stream

The Tenth Circuit Court of Appeals issued its opinion in Hagos v. Raemisch on Tuesday, December 29, 2015.

Abraham Hagos is incarcerated in Colorado state prison for multiple convictions stemming from two prosecutions. In the first case, he was convicted of first-degree murder, attempted first-degree murder, conspiracy to commit first-degree murder, and two counts of retaliation against a witness (the murder case). In the second, he was convicted of first-degree kidnapping, first-degree burglary, felony menacing, and conspiracy (the kidnapping case). He is serving two consecutive life sentences, one from each case. Hagos appealed his convictions in the kidnapping case, which were affirmed on direct appeal by the Colorado Court of Appeals. The Colorado and United States supreme courts denied certiorari. Hagos then sought state post-conviction relief, which was denied by the district court, court of appeals, and supreme court. He then filed a federal § 2254 petition, which the district court dismissed, concluding it did not satisfy the Article III case or controversy requirement. The district court issued a COA on this issue.

Hagos also appealed his convictions in the murder case. The Colorado Court of Appeals affirmed on direct appeal, and the Colorado and United States supreme courts again denied certiorari. Hagos filed a § 2254 petition in the murder case, which the district court denied. The Tenth Circuit dismissed the matter after denying Hagos’ request for a COA. Hagos then filed a post-conviction motion in state court, which is still pending.

Hagos’ § 2254 petition was pending in the Tenth Circuit when he filed his § 2254 petition in the kidnapping case. The district court sua sponte ordered Hagos to show cause why the kidnapping case proceedings should not be stayed pending the outcome of the murder case proceedings. The court evaluated the “in custody” requirement for habeas relief and decided that even if it invalidated the kidnapping convictions, Hagos would remain incarcerated for life due to the murder convictions. The district court concluded that if granting habeas relief in Hagos’ kidnapping case would not reduce his confinement, the Article III case or controversy requirement was not satisfied. The district court disagreed with Hagos’ arguments against the stay and enforced it during the pendency of the proceedings in the murder case. After the Tenth Circuit dismissed Hagos’ petition and the U.S. Supreme Court denied certiorari, the district court dismissed Hagos’ § 2254 petition in the kidnapping case for the same reasons it outlined in its stay order.

The Tenth Circuit conducted a de novo review of the district court’s dismissal of Hagos’ § 2254 petition. The Tenth Circuit first noted that Hagos is “in custody” for Article III purposes because his two life sentences run consecutively, following Supreme Court precedent that explains that consecutive sentences are to be treated as a continuous stream. The Tenth Circuit found the district court’s reliance on a different case misplaced, since that ruling only affected expired concurrent sentences. The Tenth Circuit further explained that Hagos’ petition satisfied the case or controversy requirement because even though providing habeas relief in the kidnapping case would not affect the duration of his sentence, it could affect his prisoner level and availability of certain prison programs.

The Tenth Circuit reversed and remanded for consideration of Hagos’ § 2254 petition.

Tenth Circuit: No Error Where More than One Aggravating Circumstance Proved by Same Facts

The Tenth Circuit Court of Appeals issued its opinion in Jackson v. Warrior on Tuesday, November 10, 2015.

Shelton Jackson repeatedly threw the two-year-old son of his girlfriend, Monica Decator, on the ground, severely injuring the child. He hid the injured child in the crawl space of a nearby vacant house. He went to a convenience store and emptied Ms. Decator’s bank account at an ATM, then went to watch wrestling at his uncle’s apartment as he regularly did. When he returned home, he killed Ms. Decator to keep her from reporting the child abuse to authorities. He then set fire to the house. He was arrested the next afternoon, when the bus in which he was traveling to Houston made a regularly-scheduled stop. At a police station in Tulsa, he gave directions to the child’s location and gave a statement confessing to the child abuse and killing. He was charged with first degree murder, first degree arson, and injury to a minor child. A jury found him guilty of all three crimes and recommended the death penalty. On appeal, the OCCA found that Jackson’s trial attorneys were constitutionally ineffective because they conceded his guilt without consulting with him or obtaining his consent or acquiescence. The OCCA reversed and remanded the murder conviction and death sentence, and affirmed the arson and child abuse charges.

On remand, Jackson was again convicted of first degree murder. At sentencing, the state urged four aggravating factors to support a death sentence: (1) the murder was especially heinous, atrocious, or cruel; (2) Jackson killed Ms. Decator to avoid prosecution for a previous crime; (3) he posed a continuing threat; and (4) During Ms. Decator’s murder, Jackson knowingly created a great risk of death to more than one person. The state offered evidence from the trial as proof of the first three factors and introduced the testimony of a doctor to prove the fourth factor. The sentencing court dismissed the continuing threat aggravator. The defense introduced mitigating evidence, mainly based on Jackson’s history, including cognitive and functional disabilities from fetal alcohol syndrome, severe abuse, teasing, and time in a correctional facility that was later discovered to fail to protect children from abuse. The defense also introduced the testimony of Arthur Farakhan, who testified that Jackson was involved in a program for disadvantaged youth and that his life would have value in prison. The jury returned a death sentence.

On appeal after remand, Jackson asserted multiple contentions of error, including that there was insufficient evidence to prove the great risk of death aggravator beyond a reasonable doubt. The OCCA affirmed the murder conviction and death sentence. Jackson then sought post-conviction relief, contending his counsel was ineffective for calling Farakhan and failing to object to his potentially prejudicial testimony, and also for failing to raise that claim on direct appeal. The OCCA denied all requested relief. Jackson then filed a petition for habeas relief in federal district court, again arguing the evidence was insufficient to prove the great risk of death aggravator and that both trial and appellate counsel were ineffective. The district court denied habeas relief but granted a certificate of appealability.

On appeal to the Tenth Circuit, Jackson argued the trial court’s submission to the jury of the great risk of death aggravator unconstitutionally skewed its deliberations during the penalty phase. The Tenth Circuit recited Oklahoma law, which allows the “great risk of death” aggravator when another person is endangered by defendant’s acts in killing the victim. Jackson strenuously objected to the use of the great risk of death aggravator, contending that the focus should be on the killing act itself, and when he killed Ms. Decator the child was not present. The state argued that Jackson created a great risk of death to the child by killing Ms. Decator because, as his mother, she was the only person likely to look for the child. The trial court agreed with the state. The OCCA did not decide the issue because the facts used to support the great risk of death aggravator were the same facts as used to prove the “avoid arrest” aggravator, so the jury deliberations were not unconstitutionally skewed. The Tenth Circuit analyzed the case on which the OCCA relied, Brown v. Sanders, 546 U.S. 212 (2006). The Tenth Circuit determined that although Oklahoma was a state that weighed aggravating and mitigating factors, Sanders applies equally in weighing and non-weighing states, and the OCCA applied the correct rule in affirming Jackson’s sentence.

Jackson next argued that even if the OCCA applied the Sanders rule correctly, it erroneously conflated admissibility and “aggravatability.” The OCCA held that the great risk of death aggravator was not supported by any evidence that was not also admissible to support other aggravators. The OCCA held that the evidence of the nature and extent of the child’s injuries could have been admitted to prove the valid avoid arrest aggravator. The Tenth Circuit further noted that evidence of the child’s injuries supported Jackson’s knowledge of those injuries and motive of avoiding arrest and prosecution. The Tenth Circuit found that the OCCA’s determination that the physician’s testimony could support the avoid arrest aggravator was not objectively unreasonable. Jackson argued that the physician’s testimony would not have been admissible to prove the avoid arrest aggravator, but the Tenth Circuit disagreed, dismissing Jackson’s argument that the evidence before the jury should have been limited to what Jackson himself admitted. The Tenth Circuit found that the nature and extent of the child’s injuries was best described by a doctor.

Turning to Jackson’s ineffective assistance claim regarding Mr. Farakhan, the Tenth Circuit again found that the OCCA’s decision was objectively reasonable. Mr. Farakhan was brought to testify in Jackson’s mitigation, but he held strong opinions that the death penalty was appropriate for intentional murder. The state questioned Mr. Farakhan about his views on the death penalty, and during this questioning defense counsel did not object. Jackson contends this was error, and his counsel should not have called Mr. Farakhan in the first place because of his views on the death penalty. The OCCA found that defense counsel’s decision to call Mr. Farakhan was neither unreasonable nor unsound, and although the prosecutor’s questioning was improper, the single potentially prejudicial statement did not undermine the rest of the mitigating evidence. The Tenth Circuit applied a “doubly deferential” standard to evaluate the ineffective assistance claim, based on both Strickland and AEDPA. The Tenth Circuit found the OCCA reasonably rejected Jackson’s ineffective assistance claim, since there was ample evidence weighing both for and against the death penalty and it substantially outweighed any potential prejudice from Mr. Farakhan’s single statement.

Finally, Jackson argued that there was cumulative error requiring reversal. The Tenth Circuit found no error, so Jackson could not prove cumulative error. The Tenth Circuit affirmed Jackson’s conviction and sentence.

Tenth Circuit: Trial Counsel’s Strategic Decision Does Not Constitute Ineffective Assistance

The Tenth Circuit Court of Appeals issued its opinion in Jones v. Warrior on Tuesday, November 10, 2015.

As Paul Howell parked his Suburban in his parents’ driveway with his two young daughters and his sister, he was shot by a black man in a white shirt with a black hat and a red bandanna covering his face. His sister grabbed the girls out of the backseat and ran them into the house, and Howell’s parents ran out to find their son, lifeless, in the driveway. The Suburban was gone. Howell died later that day from a gunshot wound to the head. Police later found the Suburban in a convenience store parking lot on the south side of Oklahoma City and canvassed the area, looking for suspects. They interviewed Kermit Lottie at a nearby auto body shop, who informed them that Ladell King and at least one other person had attempted to sell him the Suburban the previous day but he refused to buy it. Police tracked down King later that day, and he gave them a phone number and address for Julius Jones.

Police surrounded Jones’s parents house and called him to tell him that they wanted to talk to him about the murder. Jones escaped through a second-story window. Officers obtained warrants and searched the house, finding in Jones’s room a white t-shirt and black stocking cap that matched the descriptions given by Howell’s sister. Police also found a .25-caliber semi-automatic pistol and ammunition matching the bullets in the Suburban and Howell. Two days later, officers arrested Christopher Jordan, and after a citywide search, they found and arrested Jones. Jordan pleaded guilty and agreed to testify against Jones at trial. Jones was eventually found guilty of first-degree felony murder and sentenced to death.

Jones appealed his convictions and death sentence to the Oklahoma Court of Criminal Appeals (OCCA). He asserted numerous claims of error, including that his trial counsel, David McKenzie, was ineffective for failing to call Emmanuel Littlejohn, an inmate who briefly shared a cell with Jordan, who Jones asserted would have testified that Jordan admitted to shooting Howell and said that Jones wasn’t involved at all. After interviewing Littlejohn and speaking to his attorney about his credibility, McKenzie decided that Littlejohn was a “pathological liar” and lacked credibility. The OCCA found that Jones’ argument about McKenzie’s ineffective assistance went to trial strategy, and found nothing unreasonable about McKenzie’s decision not to call Littlejohn. The OCCA affirmed his convictions and sentence.

Next, Jones sought post-conviction relief in state court, claiming, among other things, that McKenzie was ineffective for failing to investigate whether anyone could corroborate Littlejohn’s story. Jones asserted that Christopher Berry, another inmate who had shared a cell pod with Jordan, had heard Jordan bragging about shooting Howell. McKenzie was also Berry’s attorney, but he never asked Berry about Jones’ case. The OCCA rejected Jones’ claims, noting that Berry suffered from the same credibility problems as Littlejohn and the inmates’ accounts showed only that Jordan changed his story to suit his needs.

Jones then sought federal habeas relief. The federal district court rejected all of Jones’ eight asserted grounds for relief, but granted a certificate of appealability on only one issue: whether McKenzie was ineffective for failing to investigate Littlejohn’s claim that Jordan confessed to the shooting. Using the Strickland analysis, the Tenth Circuit determined that the OCCA had denied relief on the performance prong and had not evaluated the prejudice prong. The Tenth Circuit found that the OCCA had applied the correct legal standard in its decision, and had analyzed trial counsel’s purported deficiency for failing to investigate and present the two witnesses at trial. The Tenth Circuit found Jones failed to establish that the OCCA’s decision was contrary to established law. The Tenth Circuit similarly found no basis for Jones’ claim that the OCCA’s decision was based on an unreasonable determination of the facts.

The Tenth Circuit affirmed the district court’s denial of habeas relief, and denied Jones’ motion to extend the COA to include several additional claims of ineffective assistance.

Tenth Circuit: Juror Questionnaire, Taken in Isolation, Not Enough to Show Impermissible Bias

The Tenth Circuit Court of Appeals issued its opinion in Eizember v. Trammell on Tuesday, September 10, 2015.

When he was released from the Tulsa jail, Scott Eizember went to his ex-girlfriend’s house to exact revenge since she had alerted authorities about his violation of a protective order. He broke into a house across the street and found a shotgun. When the Cantrells, an elderly couple who lived in the house, returned home, Eizember engaged in an altercation with Mr. Cantrell where he tried to wrestle the gun from Eizember. A shot was fired during the altercation that killed Mrs. Cantrell. Eizember wrestled the gun away from Mr. Cantrell and beat him with the gun until he lost consciousness, and eventually died. Next, he headed across the street and shot Tyler Montgomery, his ex-girlfriend’s son, and beat Mr. Montgomery’s grandmother. Mr. Montgomery ran to his pickup truck to drive away but Eizember jumped into the bed of the truck. Mr. Montgomery eventually crashed the truck and ran away for help. Eizember ran the other direction and hitched a ride, but eventually shot at the other driver too.

For the next 11 days, he hid in the woods, emerging only to steal clothes and a pistol from a nearby house. He soon stole a car from outside a church and made his way out of town. When the car ran out of gas, he continued hitchhiking, and was offered a ride by Dr. Sam Peebles and his wife, whom he ordered at gunpoint to drive him to Texas. After hours in the car, Dr. Peebles was able to shoot Eizember with his own gun. Eizember wrestled the revolver away from Dr. Peebles and bludgeoned him with it, also hitting Mrs. Peebles in the head when the revolver wouldn’t fire at her. At a nearby convenience store, a clerk saw Eizember was shot and called the police. Eizember was arrested and taken to the hospital, then jail.

Eizember was eventually convicted of first-degree murder for Mr. Cantrell’s death, second-degree felony murder for Mrs. Cantrell’s death, assault and battery with a dangerous weapon for beating Montgomery’s grandmother, shooting with intent to kill for Mr. Montgomery, and first-degree burglary for breaking into the Cantrells’ home. He unsuccessfully appealed to the Oklahoma Court of Criminal Appeals (OCCA) and the U.S. Supreme Court denied certiorari. The OCCA also denied his petition for post-conviction relief, as did a federal district court, but the district court granted Eizember a Certificate of Appealability on several issues.

On appeal, Eizember argued that two jurors, D.B. and J.S., should have been excluded because they were impermissibly biased in favor of the death penalty. The Tenth Circuit, noting that both the OCCA and the federal district court rejected this claim, disagreed with Eizember. The Tenth Circuit applied a Witt standard and agreed with the OCCA that, when considered in context, D.B.’s answers did not show impermissible bias. Although the questionnaire answers pointed out by Eizember tended to show bias toward the death penalty, D.B.’s answers during voir dire showed that she could fairly consider all sentencing options. The Tenth Circuit held that the trial court did not clearly err by retaining D.B. as a juror. As for J.S., his answers tended to show less bias than D.B.’s answers, so the Tenth Circuit found no error in the trial court’s refusal to dismiss him. The dissent suggested that the OCCA did not apply the Witt standard at all in rejecting Eizember’s arguments against retaining D.B. and J.S. on the jury, therefore relying on an incorrect legal standard and necessarily mandating reversal, but the majority did not agree.

Eizember next argued that the jury was confused about the meaning of life with the possibility of parole as a sentencing option due to a prospective juror’s erroneous comment during voir dire. The Tenth Circuit disagreed, finding that the parties agreed the jurors were properly instructed on the meaning of life with the possibility of parole as a sentencing option. Eizember argued that his sentences should be vacated due to the jury’s confusion, but the Tenth Circuit again disagreed, finding that even if there had been error vacating the sentences was not the proper remedy.

Next, Eizember argued that the jury was improperly instructed on the elements of second-degree “depraved mind” murder, and the prosecution agreed. Eizember contended that because of the improper instruction, he was deprived of his federal due process rights to have the jury instructed on a non-capital alternative offense. The Tenth Circuit again disagreed, finding that although the instruction incorrectly advised the jury of the non-capital offense of “depraved mind” murder, the jury was properly instructed on felony murder, which is a non-capital offense. Eizember argued that the jury would not have been able to convict him of felony murder, but the Tenth Circuit rejected this argument as well, noting that Eizember requested the felony murder instruction. Eizember next argued that his attorney’s failure to object to the incorrect “depraved mind” instruction constituted ineffective assistance of counsel. The OCCA found that the incorrect instruction had no impact on Eizember’s rights, because it is unavailable under state law when a jury finds a killing intentional beyond a reasonable doubt, as it did in Eizember’s case.

The judgment of the district court was affirmed. Chief Judge Briscoe wrote a detailed dissent regarding D.B.’s bias in favor of the death penalty.

Tenth Circuit: Miller v. Alabama Only Affected Mandatory Life Sentences for Juvenile Offenders

The Tenth Circuit Court of Appeals issued its opinion in Davis v. McCollum on Tuesday, August 25, 2015.

When he was 16, Johnny Davis was involved in a botched convenience store robbery that resulted in the murder of the store clerk. In 1992, under the Oklahoma sentencing scheme in effect at the time, he was sentenced to a discretionary sentence of life imprisonment without the possibility of parole. Davis appealed, and the OCCA affirmed his sentence in 1995 on direct appeal. He did not appeal the OCCA’s determination and his sentence became final. In June 2013, Davis filed a pro se application for postconviction relief in state court, which claimed his age at the time of the offense precluded the sentence of life without parole. Two weeks later, with the assistance of counsel, he filed a second application, asserting the same claims. The state court denied his applications and the OCCA affirmed those denials.

In May 2014, Davis filed a pro se federal habeas petition, asserting that (1) his life without parole sentence violated the Constitution because of the new standard expressed by the Supreme Court in Miller v. Alabama, 132 S. Ct. 2455 (2012); (2) his counsel was ineffective at trial and on appeal; and (3) as a juvenile offender, his sentence was unconstitutional. The district court denied him a COA, finding his second and third claims were time-barred and the first issue lacked merit because Miller was inapposite. Davis appealed.

The Tenth Circuit, using AEDPA deference, agreed with the district court that the second and third claims were time-barred. Because his conviction became final before the enactment of AEDPA, his deadline to file was in April 1997. The Tenth Circuit next addressed whether Miller created a new constitutional rule for all cases in which juvenile offenders were sentenced to life without the possibility of parole. The Tenth Circuit noted that Miller only created a new rule for cases in which a juvenile offender was sentenced under a mandatory sentencing scheme; because the Oklahoma court had discretion to impose life with the possibility of parole, Miller was inapplicable to Davis’s case.

The district court’s denial of a COA to Davis was affirmed.

Tenth Circuit: Lesser Included Offense Must Have Nearly Identical Elements as Charged Offense

The Tenth Circuit Court of Appeals issued its opinion in United States v. Barrett on Wednesday, August 19, 2015.

Kenneth Barrett had outstanding warrants for failure to appear at a state court trial for drug charges, and in 1999 an Oklahoma drug task force learned Barrett was manufacturing and selling methamphetamine out of his home. Officers obtained a warrant and devised a plan to execute it at night. Barrett opened fire on the officers as they attempted to execute the warrant, killing one officer. Barrett was charged in Oklahoma state court with one count of first-degree murder and three counts of shooting with intent to kill. His first state trial resulted in a hung jury, and in 2004 he was retried and found guilty of two lesser included offenses—manslaughter instead of first-degree murder and assault with a dangerous weapon instead of shooting with intent to kill. He was sentenced to 30 years in prison.

In September 2004, Barrett was charged with various federal drug and murder offenses in the U.S. District Court for the Eastern District of Oklahoma: (1) causing Officer Eales’ death in the course of using a firearm in the furtherance of a drug-trafficking offense, (2) causing Eales’ death in the course of using a firearm in the furtherance of a crime of violence, and (3) intentionally killing Eales during a federal drug offense while Eales was engaged in his official duties. A jury convicted him of all three counts. He was sentenced to life in prison on the first two counts and death on the third count. On direct appeal, the Tenth Circuit affirmed the convictions and sentence. Barrett then sought relief under 28 U.S.C. § 2255, but the district court denied a COA. The Tenth Circuit granted a COA on seven issues related to ineffective assistance of counsel.

The Tenth Circuit addressed Defendant’s arguments in turn. It found no error with defense counsel’s decisions to utilize the same police tactics expert that was used in the state court, since the strategy worked in state court. The Tenth Circuit noted that the decision of which expert to call is quintessentially a matter of strategy for the trial attorney and it would hesitate to question any of defense counsel’s decisions. Defendant also argued his trial counsel erred by failing to counter the government’s crime scene reconstruction expert, and the Tenth Circuit again disagreed, finding the expert’s testimony was full of problems for the prosecution and defense counsel was well within reason to use the same strategy they used in the state trial. Defendant also argued his counsel was ineffective for failing to present mental health evidence during the guilt phase, but the Tenth Circuit determined Defendant failed to show prejudice.

Next, Defendant argued the jury instructions insufficiently advised the jury on lesser included offenses. The Tenth Circuit evaluated Defendant’s proffered lesser included offense instructions and found them inapposite because they were not lesser included offenses of the charged offenses. The Tenth Circuit noted that, to be a lesser included offense, it must contain the same elements as the charged offense except for the thing that makes the greater offense greater. Because the elements of the proposed lesser included offenses were not the same as the charged offenses, Defendant’s argument failed. Defendant’s arguments that his counsel should have requested instructions on victim identity and drug manufacturing similarly failed.

The Tenth Circuit last addressed Defendant’s argument that his counsel was ineffective for failing to explore evidence of his mental health issues during the penalty phase. The Tenth Circuit examined the record and found that defense counsel had not explored potential mitigating evidence of Defendant’s mental health issues at all. The Tenth Circuit reversed the death sentence and remanded for resentencing.

The Tenth Circuit reversed and remanded the death sentence and affirmed in all other respects.

Tenth Circuit: High AEDPA Burden Precludes Reversal Where Error Not Clearly Shown

The Tenth Circuit Court of Appeals issued its opinion in Hancock v. Trammell on Tuesday, August 18, 2015.

Phillip Hancock’s ex-girlfriend was staying with Bob Jett when Hancock was asked to come pick her up. When he arrived at Jett’s house, the girlfriend was not there but Jett and another man, James Lynch, were. Later, Ms. Shawn Tarp arrived at the house and the four did meth together. An altercation ensued, and Jett, who was armed, tried to force Hancock into a large cage with Lynch’s help. Jett was swinging a metal bar at Hancock, and it may have hit his head. At some point during the scuffle, Hancock got the gun from Jett and shot both Jett and Lynch. Lynch collapsed and Hancock chased Jett out the back door, then shot him again. Tarp was hiding in a back room, and after the shots subsided she emerged, but Hancock did not shoot her. He calmly apologized to her for what she witnessed and asked her to wait a few minutes before leaving, which she did.

Hancock was charged with two counts of first-degree murder. He admitted that he shot the men, but asserted he did so in self-defense. The jury rejected his defense and found him guilty on both counts of murder. He was sentenced to death. He was unsuccessful in his direct appeal to the Oklahoma Court of Criminal Appeals (OCCA) and in post-conviction proceedings. He applied for a writ of habeas corpus from the federal district court, which denied his request, and he appealed to the Tenth Circuit. Four issues were certified for review: (1) whether the state court denied him due process by allowing the prosecution to elicit testimony about his prior conviction for manslaughter in which he asserted self-defense, (2) whether the state court misled the jury by giving unwarranted instructions on self-defense and allowing the prosecutor to make improper comments in closing, (3) whether Hancock’s trial counsel was ineffective for failing to request a jury instruction on the lesser-included offense of manslaughter, and (4) cumulative error.

The Tenth Circuit first addressed the issue of the 1982 manslaughter conviction. Hancock urged a right to habeas relief because the OCCA did not adjudicate the merits of his due process claim and it based its decision on an unreasonable factual determination. The Tenth Circuit held that Hancock failed to raise his due process claim in district court and therefore forfeited the argument. The Tenth Circuit noted, however, that even if the OCCA did not specifically mention Hancock’s due process claim, it unquestionably reviewed his claim on the merits. The Tenth Circuit continued that Hancock’s argument was invalid because the OCCA concluded Hancock waived his argument by eliciting evidence of the manslaughter conviction on direct examination.

Hancock also argued the OCCA mistakenly thought the state court had allowed the manslaughter evidence as impeachment evidence under Okla. Stat. tit. 12, § 2609(B), which governs impeachment with convictions over 10 years old. The Tenth Circuit noted “If the OCCA had misunderstood the basis for the district court’s ruling, as Mr. Hancock argues, the mistake would likely have constituted an unreasonable determination of fact and allowed us to consider the merits of the underlying constitutional claim,” but determined that Hancock had not met the heavy AEDPA burden of showing a factual misunderstanding. Hancock argued the state did not allow the evidence under § 2609(B); rather, he argued it either admitted the evidence as “other act” evidence under Okla. Stat. tit. 12, § 2404(B), or as a form of relevant evidence. The Tenth Circuit noted that although the state court did not rely on § 2609(B), the OCCA clearly did, but it did not say whether it thought the state court had relied on § 2609(B) also. The Tenth Circuit remarked that it could reach the merits of the constitutional claim only if the OCCA rested its decision on a mistaken factual view of the record. The majority wrestled with the OCCA opinion and decided that although it was not clear on which section the OCCA based its opinion, Hancock failed to meet his high burden to show that the OCCA’s view was mistaken. The dissent, penned by Judge Lucero, strongly disagreed with the majority’s conclusion, finding that the OCCA’s opinion was incorrect and its error substantially influenced Hancock’s due process rights. Judge Lucero would have reversed and remanded on this point.

The Tenth Circuit turned its attention to Hancock’s argument that the state court erred by limiting the self-defense instruction and allowing the prosecutor to make improper closing remarks based on the limited instruction. At trial, the court instructed the jury on self-defense and the “aggressor” exception. Hancock argued there was no evidentiary basis for three parts of the instructions: (1) self-defense is not available for a person who voluntarily enters into combat, (2) a person can regain the right to self-defense if he withdraws from the confrontation, and (3) the use of words alone cannot turn someone into an aggressor. The Tenth Circuit found no error. The Tenth Circuit reviewed Hancock’s claim that the evidence was insufficient to justify these portions of the instructions and disagreed, finding the evidence showed that there was mutual combat between Jett and Hancock, at some point Jett turned away from Hancock and he chased after Jett to shoot him again, and Jett was provoking Hancock with his words. The Tenth Circuit similarly rejected Hancock’s argument that the prosecutor’s closing remarks about Jett running away were improper, finding Hancock forfeited this argument by failing to raise it in his habeas petition.

Next, the Tenth Circuit turned to Hancock’s argument that his trial counsel was ineffective because he failed to request an instruction on criminal attempt manslaughter. Because the trial counsel had requested and received a heat of passion manslaughter instruction, the Tenth Circuit found it was a reasonable trial strategy for counsel to have chosen the heat of passion instruction over the criminal attempt instruction, which was less applicable to the facts of Hancock’s case. The Tenth Circuit disagreed with Hancock that his counsel’s decision constituted deficiency.

Finally, the Tenth Circuit found no cumulative error. The Tenth Circuit found no constitutional violations and lack of prejudice on Hancock’s ineffective assistance claims. Hancock also requested to expand his certificate of appealability, but the Tenth Circuit denied his motion, finding that no reasonable jurist could find the district court’s conclusions wrong.

The Tenth Circuit affirmed Hancock’s convictions and sentence. Judge Lucero wrote a thoughtful and provocative dissent.

Tenth Circuit: District of Columbia Superior Court is State Court for Habeas Purposes

The Tenth Circuit Court of Appeals issued its opinion in Eldridge v. Berkebile on Tuesday, June 30, 2015.

Clinton Eldridge pleaded guilty in the District of Columbia Superior Court to several violent felonies and is incarcerated in a federal prison. He filed a habeas petition under 28 U.S.C. § 2241, contending the Bureau of Prisons (BOP) incorrectly calculated his sentence by not crediting the nine years he served from his original sentencing hearing through resentencing. He also contended the district court failed to address his arguments concerning the 235 days served between his arrest and original sentencing and for the 61 days he served after his parole was revoked.

The Tenth Circuit first addressed jurisdiction. Because Eldridge was sentenced in the D.C. Superior Court, the Tenth Circuit concluded he was a state prisoner for purposes of 28 U.S.C. § 2253(c)(1), and he needed to obtain a Certificate of Appealability prior to filing a federal habeas petition under § 2241. The Tenth Circuit found Eldridge failed to make a “substantial showing of the denial of a constitutional right,” which he would need to do to obtain a COA. The Tenth Circuit noted Eldridge was mistaken about the court’s failure to credit the nine years served between his original sentencing and resentencing and also the presentence confinement, and the court correctly refused to credit the time Eldridge served for his previous juvenile sentences. The Tenth Circuit concluded Eldridge failed to make the requisite showing for a COA.

The Tenth Circuit denied a COA and dismissed the appeal, also denying as moot Eldridge’s motion to proceed in forma pauperis.