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UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
WANDA JEAN ALLEN,
Petitioner-Appellant,
v.
NEVILLE MASSIE,
Respondent-Appellee.
No. 98-6340
(D.C. No. CV-96-796-L)
(W.D. Okla.)
ORDER AND JUDGMENT(*)
Before BRORBY, BRISCOE, and MURPHY, Circuit Judges.
Petitioner appeals the district court's denial of federal
habeas corpus relief from her first degree
murder conviction and death sentence. As grounds for
relief, she asserts: (1) the trial court nullified
her self-defense theory by failing to properly instruct
and by excluding evidence, and the Oklahoma
appellate court lacked authority to consider whether
she was entitled to self-defense instructions; (2)
prosecutorial misconduct deprived her of a fair trial;
(3) trial counsel provided ineffective assistance;
(4) the trial court's refusal to provide her with a state-funded
investigator deprived her of due
process; (5) the flight instruction presumed her guilt
and deprived her of a fair trial; (6) the Oklahoma
continuing threat aggravator is unconstitutional; (7)
she was denied the due process protection of a
state procedural mechanism; (8) two aggravating factors
unconstitutionally overlapped; and (9) the
cumulative effect of the trial errors deprived her of
due process and a fair trial. The district court
granted petitioner a certificate of appealability (COA)
as to all of these issues.(1) See 28 U.S.C.
§ 2253(c); Fed. R. App. P. 22(b)(1). Our jurisdiction
arises under 28 U.S.C. §§ 1291 and 2253,
and we affirm.
I. BACKGROUND
During a domestic disturbance, petitioner shot her homosexual
lover, Gloria Leathers, in front of the
police station. On the day of the murder, the two had
been arguing at a Safeway store about Ms.
Leathers' welfare check. At Ms. Leathers' request, the
store manager called police. Petitioner gave
Ms. Leathers the check and returned to their residence.
Ms. Leathers called her mother, who took her to the residence.
Ms. Leathers also asked the police
officers to follow them and watch while she removed her
personal property. In the presence of
police officers, Ms. Leathers removed some of her property,
although petitioner and Ms. Leathers
disputed ownership of other property. During this time,
the confrontation continued. According to
Ms. Leathers' mother, petitioner pleaded with Ms. Leathers
to stay. Officer Lucas testified that he
placed a hand rake belonging to Ms. Leathers in a basket
of clothes in Ms. Leathers' mother's car.
He did so because he believed the rake could be used
as a weapon. He did not tell Ms. Leathers
that he put it there.
The officers left after they were called to respond to
a priority call. Ms. Leathers also left with her
mother, and the two of them went to the police station
to file a complaint regarding the disputed
property. Petitioner followed them. At the police station,
petitioner pleaded with Ms. Leathers to
return. During this discussion, petitioner shot Ms. Leathers
and then quickly left.
Petitioner testified at trial that after the police officers
had left her home, Ms. Leathers had assaulted
her with the rake, causing much bleeding. Petitioner
believed that Ms. Leathers was going to strike
her again with the rake at the police station. According
to petitioner, she retrieved her gun from the
glove box of her car after seeing Ms. Leathers with the
hand rake. She allegedly fired the gun in
self-defense.
Officer Lucas, however, testified that after the shooting
the hand rake was still in the basket, which
had tipped over, in the car, and at no time did he see
Ms. Leathers with the rake at the residence.
Investigator Wingert also testified that he found the
hand rake in the basket when he searched the
car after the shooting.
The jury rejected petitioner's self-defense theory and
found her guilty of first degree murder. At the
sentencing phase of the trial, the jury found two aggravating
circumstances: (1) petitioner had a prior
violent felony conviction and (2) she represented a continuing
threat to society. The jury
recommended the death penalty, and the trial court sentenced
petitioner to death.
The Oklahoma Court of Criminal Appeals affirmed petitioner's
murder conviction and death
sentence. See Allen v. State, 871 P.2d 79 (Okla. Crim.
App.), cert. denied, 513 U.S. 952 (1994).
Petitioner then sought state post-conviction relief,
which was denied by the trial court and affirmed
on appeal. See Allen v. State, 909 P.2d 836 (Okla. Crim.
App. 1995). Petitioner then commenced
federal habeas proceedings.
II. ANTITERRORISM AND EFFECTIVE DEATH PENALTY ACT OF 1996
A. APPLICABILITY
Petitioner contends the Antiterrorism and Effective Death
Penalty Act of 1996 (AEDPA) and its
amended standards of review should not apply because
she completed her direct criminal appeal
and filed her post-conviction application before the
effective date of AEDPA. Petitioner believes that
application of AEDPA would have an impermissible retroactive
effect. This court has held that
AEDPA and its substantive standards of review apply when
a federal habeas petition was filed after
the effective date of AEDPA, regardless of when the state
court proceedings occurred. See Moore
v. Gibson, 195 F.3d 1152, 1163 (10th Cir. 1999); Rogers
v. Gibson, 173 F.3d 1278, 1282 n.1
(10th Cir. 1999), petition for cert. filed (U.S. Nov.
5, 1999) (No. 99-6954).
B. STANDARDS OF REVIEW
Petitioner argues that if this court applies AEDPA, it
must decide what type of review AEDPA
requires. Under AEDPA,
a state prisoner will be entitled to federal habeas corpus
relief only if [s]he can establish that a claim
adjudicated by the state courts "resulted in a decision
that was contrary to, or involved an
unreasonable application of, clearly established Federal
law, as determined by the Supreme Court of
the United States," or "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." [28 U.S.C. § 2254(d).]
Further, "a determination of a factual issue made by
a State court shall be presumed to be correct."
[Id.] § 2254(e)(1). That presumption of correctness
is rebuttable only "by clear and convincing
evidence." Id.
Boyd v. Ward, 179 F.3d 904, 911-12 (10th Cir. 1999), petition
for cert. filed (U.S. Dec. 6, 1999)
(No. 99-7369).
This court has not interpreted these standards of review.
The United States Supreme Court has
granted certiorari on the issue. See Williams v. Taylor,
119 S. Ct. 1355 (1999); see also
67 U.S.L.W. 3608 (Apr. 6, 1999) (listing issues presented).
Under any possible interpretation of the
standards, we conclude the result of this appeal would
be the same. See Smallwood v. Gibson, 191
F.3d 1257, 1265 n.2 (10th Cir. 1999).
For those claims not decided on their merits by the state
courts and instead first decided by the
federal district court, this court reviews the district
court's conclusions of law de novo and factual
findings, if any, for clear error. See LaFevers, 182
F.3d at 711. When the district court's findings are
based only upon a review of the state record, this court
conducts an independent review. See
Smallwood, 191 F.3d at 1264 n.1.
III. SELF-DEFENSE THEORY
A. GIVING OF SELF-DEFENSE INSTRUCTIONS
Petitioner argues the Oklahoma Court of Criminal Appeals
erred in sua sponte considering on direct
criminal appeal whether the trial court should have given
self-defense instructions. Because there was
no dispute at trial whether the trial court should instruct
on self-defense, petitioner contends this was
not an issue preserved for appeal by the prosecution.
On direct criminal appeal, the Oklahoma Court of Criminal
Appeals concluded that petitioner did
not have a valid defense of self-defense. See Allen,
871 P.2d at 92. To support its conclusion, the
court found, based solely on petitioner's version of
the events, (1) that Ms. Leathers had withdrawn
from the conflict at the time she left the residence
and therefore petitioner was out of danger; (2) that
when petitioner followed Ms. Leathers to the police station,
petitioner became the pursuer, and she
knew the possibility of a confrontation with Ms. Leathers
was strong; and (3) that petitioner had an
opportunity to escape from the police station since she
had time to obtain a weapon from her
vehicle. See id. at 92-93. Thus, the court held that
because there was no evidence to support a
self-defense theory, petitioner was not entitled to self-defense
instructions. See id. at 93.
As petitioner points out, neither the parties nor the
trial court questioned petitioner's entitlement to
self-defense jury instructions. Petitioner, however,
did argue on appeal that the given instructions
were incomplete. Thus, the Oklahoma Court of Criminal
Appeals considered whether the evidence
warranted self-defense instructions as a first step in
determining whether the instructions were
incomplete.
In doing so, the court did not exceed its bounds. Under
Okla. Stat. tit. 22, § 1051(a), the Oklahoma
Court of Criminal Appeals may review "any decision" of
the trial court "made in the progress of the
case." See Hatch v. Oklahoma, 58 F.3d 1447, 1461 (10th
Cir. 1995) (recognizing Oklahoma Court
of Criminal Appeals has "rather sweeping discretion"
and "broad powers" in appellate process); cf.
Storer v. State, 180 P.2d 202, 206 (Okla. Crim. App.
1947) ("This court will closely scrutinize all
the record in every case in which appeal is taken to
see whether or not reviewing the record as a
whole the defendant has been given a fair and impartial
trial and whether his conviction has been in
accordance with constitutional principles. This is done
whether the question is properly preserved in
the lower court for presentation on appeal or not.");
Rollen v. State, 125 P. 1087, 1088 (Okla.
Crim. App. 1912) (holding, sua sponte, that evidence
did not justify self-defense instruction). The
Oklahoma Court of Criminal Appeals' consideration of
the issue did not deprive petitioner of any
state-created entitlement to review of only the issues
raised on appeal. See Hatch, 58 F.3d at 1460.
The Oklahoma appellate court's interpretation of its law
regarding entitlement to self-defense
instructions is binding on this court. See Mullaney v.
Wilbur, 421 U.S. 684, 691 (1975). The
Oklahoma appellate court's decision therefore was reasonable.
See 28 U.S.C. § 2254(d)(2).
B. INCOMPLETE INSTRUCTIONS
Petitioner argues the trial court violated her due process
and equal protection rights by failing to
inform the jury that the State had the burden of proving
petitioner did not act in self-defense. In light
of its determination that self-defense instructions were
not warranted, the Oklahoma Court of
Criminal Appeals held that the failure to give additional
self-defense instructions was not error. See
Allen, 871 P.3d at 94.
To attack a state court judgment based on erroneous jury
instructions, a petitioner must show that
the instructions rendered her trial fundamentally unfair,
resulting in a conviction that violates due
process. See Henderson v. Kibbe, 431 U.S. 145, 154 (1977).
While it is proper for a state to place
the burden on a defendant to prove an affirmative defense,
it cannot require a defendant to prove a
defense that negates an element of the charged crime.
See Patterson v. New York, 432 U.S. 197,
206-07 (1977). Here, Oklahoma law requires the prosecution
to prove, as an element of the crime,
that defendant was not acting in self-defense. See Perez
v. State, 798 P.2d 639, 640-41 (Okla.
Crim. App. 1990). In other words, Oklahoma has assumed
the burden of disproving self-defense.
In this regard, it appears that petitioner's best argument
(one which she has not specifically
expressed) is that the instructions may have led the
jury to believe she had the burden of proving her
conduct was justifiable (i.e., in self-defense) and thereby
lawful. If this is the case, then the
instructions would in fact have relieved the prosecution
of proving an essential element of the crime
of first degree murder (i.e., that the killing was unlawful).
However, reviewing the instructions as a
whole, the jury was properly informed that the prosecution
bore the burden of proving each essential
element, including unlawfulness, beyond a reasonable
doubt. Stated differently, it does not appear
that the instructions relieved the prosecution of the
burden of proving the unlawfulness of the killing.
Accordingly, the given instructions were sufficient to
withstand constitutional challenge, and the
Oklahoma Court of Criminal Appeal's decision was not
contrary to Supreme Court precedent, see
28 U.S.C. § 2254(d)(1).
C. EXCLUSION OF EVIDENCE
Petitioner argues the trial court violated her due process
rights by refusing to allow Ms. Leathers'
mother to testify that Ms. Leathers previously had killed
another woman in a confrontation, on the
basis that the testimony was inadmissible hearsay. The
Oklahoma Court of Criminal Appeals, on
direct appeal, held that the refusal to admit this hearsay
evidence was not error. See Allen, 871 P.2d
at 92, 93-94 (citing state law).
"[S]tate court rulings on the admissibility of evidence
may not be questioned in federal habeas
proceedings unless they render the trial so fundamentally
unfair as to constitute a denial of federal
constitutional rights." Duvall v. Reynolds, 139 F.3d
768, 787 (10th Cir.) (further quotation omitted),
cert. denied, 119 S. Ct. 345 (1998). The materiality
of the excluded evidence to the defense
determines if the petitioner was deprived of a fundamentally
fair trial. See Richmond v. Embry, 122
F.3d 866, 872 (10th Cir. 1997). Evidence is material
if, in light of the record as a whole, the
exclusion might have affected the trial's outcome by
creating a reasonable doubt that would not have
otherwise existed. See id. at 874.
While Ms. Leathers' mother's testimony would have provided
additional evidence to that presented
of Ms. Leathers' violent nature, petitioner has failed
to show that the testimony might have affected
the trial's outcome. Thus, the exclusion of this testimony
did not render the trial fundamentally unfair.
See Hatch, 58 F.3d at 1468.
IV. PROSECUTORIAL MISCONDUCT
Petitioner argues that numerous instances of prosecutorial
misconduct resulted in a trial that was
fundamentally unfair and a death sentence that violates
the Eighth Amendment. Specifically, she
challenges (1) the prosecution's motion in limine blocking
admission of evidence regarding Ms.
Leathers' violent tendencies and later guilt stage closing
argument suggesting that petitioner lied about
Ms. Leathers' violent tendencies; (2) the prosecution's
misstatement of (a) Ms. Leathers' mother's
testimony in guilt stage opening argument, (b) the evidence
regarding the trajectory of the bullet in
guilt stage closing argument, (c) the evidence regarding
any blood found in petitioner's house or her
car in guilt stage closing argument, and (d) the evidence
concerning petitioner's prior manslaughter
conviction in sentencing stage closing argument; (3)
the prosecution's misstatement of the law by
attempting to define reasonable doubt in voir dire; (4)
the prosecution's diminishing of the jury's
responsibility during sentencing stage closing argument;
(5) the prosecution's comment petitioner
cried during the trial; (6) the prosecution's assertion
petitioner changed her story 150 times; and (7)
the prosecution's improper name calling. The Oklahoma
Court of Criminal Appeals, on direct
criminal appeal, carefully considered all but one of
the alleged instances of prosecutorial misconduct.
It found either no fundamental error or that the comments
were proper and supported by the
evidence. See Allen, 871 P.2d at 95-97.
Petitioner presented the alleged misstatement of Ms. Leathers'
mother's testimony claim for the first
time in the federal district court. Respondent has never
argued petitioner failed to exhaust state
remedies for this claim or that it is procedurally barred.
The federal courts may address the merits of
the claim. See 28 U.S.C. § 2254(b)(2) (permitting
federal court to deny relief on merits of
unexhausted claim); Hooks v. Ward, 184 F.3d 1206, 1216
(10th Cir. 1999) (holding State must
raise procedural bar or it is waived). The district court
concluded that the testimony and the
prosecution's statement were not materially different.
A prosecutor's improper comment or argument, not implicating
any specific constitutional right, will
require reversal of a state conviction only where the
remark sufficiently infected the trial so as to
make it fundamentally unfair and, therefore, a denial
of due process. See Donnelly v. DeChristoforo,
416 U.S. 637, 643, 645 (1974); see also Darden v. Wainwright,
477 U.S. 168, 181 (1986).
Inquiry into the fundamental fairness of a trial can
be made only after examining the entire
proceedings. See Donnelly, 416 U.S. at 643. "To view
the prosecutor's statements in context, we
look first at the strength of the evidence against the
defendant and decide whether the prosecutor's
statements plausibly could have tipped the scales in
favor of the prosecution." Fero v. Kerby, 39
F.3d 1462, 1474 (10th Cir. 1994) (quotations omitted).
"Ultimately, we must consider the probable
effect the prosecutor's [statements] would have on the
jury's ability to judge the evidence fairly." See
id. (quotations omitted).
Review of the entire proceedings convinces us petitioner's
trial was not fundamentally unfair. None of
the comments, even if improper, were significant enough
to influence the jury's decision. See Moore
v. Reynolds, 153 F.3d 1086, 1113 (10th Cir. 1998), cert.
denied, 119 S. Ct. 1266 (1999). In light
of the evidence of guilt and the weight of the aggravating
circumstances, there is not a reasonable
probability that the outcomes at either stage would have
been different without the alleged
misconduct. See Hoxsie v. Kerby, 108 F.3d 1239, 1244-45
(10th Cir. 1997).
V. INEFFECTIVE ASSISTANCE OF COUNSEL
Petitioner alleges ineffective assistance of counsel at
both stages of her trial. She argues counsel (1)
failed to assure complete instructions on self-defense;
(2) failed to present self-defense evidence; (3)
failed to object to the introduction of aggravating evidence
relating to her prior homicide conviction;
and (4) failed to present mitigating evidence.
Claims of ineffective assistance of counsel are mixed
questions of law and fact. See Wallace v.
Ward, 191 F.3d 1235, 1247 (10th Cir. 1999). "To establish
ineffective assistance of counsel, a
petitioner must prove that counsel's performance was
constitutionally deficient and that counsel's
deficient performance prejudiced the defense. . . ."
Boyd, 179 F.3d at 913 (citing Strickland v.
Washington, 466 U.S. 668, 687 (1984)). To prove deficient
performance, petitioner must overcome
the presumption that counsel's conduct was not constitutionally
defective. See id. at 914.
Specifically, she "must overcome the presumption that,
under the circumstances, the challenged
action might be considered sound trial strategy." Strickland,
466 U.S. at 689 (quotation omitted).
Thus, judicial scrutiny of counsel's performance is highly
deferential. See id. For counsel's
performance to be constitutionally ineffective, it must
have been completely unreasonable, not merely
wrong. See Hoxsie, 108 F.3d at 1246.
To establish prejudice, petitioner must show that but
for counsel's deficient performance, there is a
reasonable probability that the result of the proceeding
would have been different. See Strickland,
466 U.S. at 694. If the alleged ineffective assistance
of counsel occurred during the guilt stage, the
question is whether there is a reasonable probability
the jury would have had reasonable doubt
regarding guilt. See id. at 695. In assessing prejudice,
this court looks at the totality of the evidence,
not just the evidence helpful to petitioner. See Cooks
v. Ward, 165 F.3d 1283, 1293 (10th Cir.
1998), cert. denied, 120 S. Ct. 94 (1999). When the alleged
ineffectiveness occurs during the
sentencing phase, this court considers if there is a
"reasonable probability that, absent the errors, the
sentencer . . . would have concluded that the balance
of aggravating and mitigating circumstances did
not warrant death." Strickland, 466 U.S. at 695; see
also Cooks, 165 F.3d at 1296 (requiring court
to consider strength of government's case and aggravating
factors jury found as well as mitigating
factors that might have been presented).
"This court may address the performance and prejudice
components in any order, but need not
address both if [petitioner] fails to make a sufficient
showing of one." Foster v. Ward, 182 F.3d
1177, 1184 (10th Cir. 1999).
A. FAILURE TO REQUEST BURDEN OF PROOF INSTRUCTION
Petitioner argues that counsel's failure to request or
object to the absence of an instruction informing
the jury that the prosecution was required to establish
beyond a reasonable doubt that petitioner was
not acting in self-defense was deficient performance.
She further argues that Oklahoma Court of
Criminal Appeals' opinions reversing cases where self-defense
burden of proof instructions were not
given demonstrate prejudice. Petitioner raised this claim
for the first time in federal district court. That
court denied relief, concluding that because petitioner
was not entitled to self-defense instructions,
counsel's performance could not be deficient.
Respondent argues this claim is unexhausted, but recognizes
the federal district court may deny an
unexhausted claim on its merits. See 28 U.S.C. §
2254(b)(2). Although this ineffective assistance of
counsel claim is not exhausted, the Oklahoma Court of
Criminal Appeals denied relief on the merits
of the underlying claim based on its determination that
no self-defense instructions were warranted.
Cf. Hooks, 184 F.3d at 1215. Thus, we will consider this
claim on its merits.
Without deciding whether counsel's performance was deficient,
we conclude petitioner has not
shown prejudice. See Foster, 182 F.3d at 1184-85. As
indicated above, regardless of whether
petitioner was entitled to self-defense instructions,
the given instructions were sufficient to withstand
constitutional challenge.
B. FAILURE TO PRESENT SELF-DEFENSE EVIDENCE
Petitioner argues that counsel made no effort to subpoena
or call at trial police officers who
investigated Ms. Leathers' previous homicide. Also, petitioner
argues counsel failed to present
evidence of Ms. Leathers' lengthy history of arrests
for violent acts. On direct criminal appeal, the
Oklahoma Court of Criminal Appeals determined petitioner
could not show harm because her
self-defense theory was not valid. See Allen, 871 P.2d
at 98-99.
In light of our resolution of petitioner's self-defense
issues, she could not be prejudiced by counsel's
failure to present the self-defense evidence. The Oklahoma
Court of Criminal Appeals' decision was
not contrary to or an unreasonable application of Strickland.
See 28 U.S.C. § 2254(d)(1).
C. FAILURE TO OBJECT TO ADMISSION OF EVIDENCE
Petitioner argues that counsel should have objected to
the prosecution's retrying of her prior
homicide conviction and comparison of the two homicides
at sentencing. Instead, petitioner believes
counsel should have taken advantage of the protections
of Brewer v. State, 650 P.2d 54 (Okla.
Crim App. 1982), which permits a defendant to stipulate
to a prior violent felony, thereby precluding
relitigation of that conviction.
Petitioner first presented this claim in federal district
court, which denied relief on the merits. See 28
U.S.C. § 2254(b)(2). Even though this ineffective
assistance claim is not exhausted, the Oklahoma
Court of Criminal Appeals denied a claim based on Brewer
on its merits on direct criminal appeal.
Thus, we will consider the merits of the claim. Cf. Hooks,
184 F.3d at 1215.
Even if petitioner had stipulated her prior homicide involved
violence, the evidence at issue was
admissible to support the continuing threat aggravator.
See discussion of issue IX infra at 25-26.
Because counsel could not have prevented admission of
the evidence, failure to object was not
deficient performance. Also, petitioner has not shown
prejudice.
D. FAILURE TO OBTAIN OR PRESENT MITIGATING EVIDENCE
Petitioner argues counsel failed to investigate her background
and erred in presenting a picture of her
as "normal." If counsel had conducted a minimal investigation,
petitioner opines he would have
learned that petitioner is not "normal," because she
had a troubled childhood, is retarded, may have
cerebral damage, suffered from head injuries, and has
psychological problems. All of this, according
to petitioner, indicates that she acted in a state of
diminished capacity without an intent to kill and did
not process information as a normal person would. Also,
petitioner believes this evidence would
have rebutted prosecutorial suggestions that she was
not truthful.
On direct criminal appeal, the Oklahoma Court of Criminal
Appeals found no merit to this claim after
determining petitioner failed to present a sufficient
reason why she did not inform her attorney of
these facts. See Allen, 871 P.2d at 99. Additionally,
the court held that the evidence concerning
mental retardation and petitioner's violent nature as
a child would have been more harmful than
helpful and contrary to petitioner's mother's testimony.
See id.
"[C]ounsel's duty to investigate all reasonable lines
of defense is strictly observed in capital cases."
Nguyen v. Reynolds, 131 F.3d 1340, 1347 (10th Cir. 1997);
see also Brecheen v. Reynolds, 41
F.3d 1343, 1366 (10th Cir. 1994) (in sentencing phase,
attorney has duty to conduct reasonable
investigation, which includes investigation into defendant's
background; failure to conduct reasonable
investigation may be deficient performance). In deciding
whether there is a reasonable probability
this evidence would have changed the outcome of the sentencing
phase, this court keeps in mind the
mitigating evidence actually presented, the strength
of the State's case, and the aggravating factors
the jury found. See Moore, 153 F.3d at 1098 (dicta);
see also Capps v. Sullivan, 921 F.2d 260,
263 (10th Cir. 1990) (in assessing whether petitioner
was prejudiced by counsel's deficient
performance, court "must review counsel's performance
and the trial record, consider the new
evidence and alternative strategy which an allegedly
competent attorney would have presented, and
make a judgment whether, had the new material and strategy
been used it remains confident the jury
verdict would have been the same").
Trial counsel presented five mitigation witnesses who
presented a similar picture of petitioner's
background, which was contrary to much of the evidence
petitioner claims should have been
presented. In his affidavit, counsel stated that he interviewed
the witnesses after learning about them
from petitioner and her mother. He admitted that he did
not pursue information about petitioner's
foster care or the fact that her foster mother had placed
her in a state facility. He did not interview or
contact the foster mother. Although counsel was not aware
that petitioner had a low IQ or had had
psychological testing, counsel stated that he knew petitioner
had suffered a head injury. Counsel did
not search for medical or psychological records or seek
expert testing of petitioner. Counsel
maintained that it was difficult to investigate due to
time limits and lack of investigative help and
financial support.
Without deciding whether counsel's performance was deficient,
we conclude petitioner has not
proven a reasonable probability that additional mitigation
evidence would have changed the jury's
verdict. See Foster, 182 F.3d at 1189; see also id. at
1184 (permitting court to address only
performance or prejudice component if petitioner fails
to make sufficient showing of that
component). This court has determined, on numerous occasions,
that evidence of a low IQ and/or
brain damage does not outweigh evidence supporting the
conviction and multiple aggravating
circumstances. Id. (citing cases). Also, petitioner's
troubled childhood, including a history of violent
behavior, could have cut in favor of the continuing threat
aggravator. Thus, if the mitigating evidence
petitioner points to had been presented, it would not
have been sufficient to offset, explain, or justify
Ms. Leathers' murder. See Nguyen, 131 F.3d at 1349. The
Oklahoma Court of Criminal Appeals'
decision was not an unreasonable application of Strickland.
See 28 U.S.C. § 2254(d)(1).
VI. STATE FUNDED INVESTIGATOR
Petitioner argues that the trial court's denial of her
request for a state-funded investigator to assist her
counsel violated her due process rights. Counsel requested
an investigator, without further
elaboration, based on petitioner's inability to pay for
an investigator and counsel's inability to prepare
a proper defense without an investigator.(2) Petitioner
maintains the lack of an investigator hampered
her ability to establish her self-defense theory. With
an investigator, petitioner believes she could
have obtained evidence regarding Ms. Leathers' killing
of another. In addition, petitioner argues that
the trial court's failure to grant the motion for an
investigator caused her to have ineffective
representation.
On direct criminal appeal, the Oklahoma Court of Criminal
Appeals determined petitioner failed to
establish prejudice from the lack of appointment of an
investigator, because she failed to give specific
reasons why an investigator was needed, a self-defense
theory or lesser charge of manslaughter
were without merit, and there was overwhelming evidence
of guilt. See Allen, 871 P.2d at 89.
An indigent defendant must have "a fair opportunity to
present [her] defense." Ake v. Oklahoma,
470 U.S. 68, 76 (1985). It is undisputed petitioner is
indigent. There, however, was no due process
violation because petitioner offered "little more than
undeveloped assertions that the requested
assistance would be beneficial." Caldwell v. Mississippi,
472 U.S. 320, 323-24 n.1 (1985). By
failing to provide specific reasons for her request for
an investigator, petitioner "failed to meet [her]
burden of showing that investigative assistance was necessary
to an adequate defense." Rogers, 173
F.3d at 1287. The Oklahoma Court of Criminal Appeals'
decision was not contrary to Supreme
Court precedent. See 28 U.S.C. § 2254(d)(1). Also,
in light of the above resolution of the
self-defense and ineffective assistance of counsel issues,
any denial of investigative assistance was
harmless.
Petitioner's argument that the trial court's failure to
provide her with an investigator caused her to
receive ineffective assistance of counsel is conclusory
and unsupported. Moreover, assuming the trial
court's alleged Ake error could have rendered counsel's
performance constitutionally deficient, any
deficiency in performance was not prejudicial. See White
v. Johnson, 153 F.3d 197, 208 (5th Cir.
1998) (dicta), cert. denied, 119 S. Ct. 1048 (1999).
To the extent petitioner suggests that counsel was ineffective
for failing to provide a proper request
for an investigator, the argument is also conclusory.
Even if counsel's request was deficient, petitioner
has failed to show the outcome would have been different
with investigative assistance.
VII. FLIGHT INSTRUCTION
Petitioner argues the flight instruction presumed her
guilt and therefore denied her due process and a
fair trial. She raised this argument for the first time
on state post-conviction review. The Oklahoma
Court of Criminal Appeals held that it was waived. See
Allen, 909 P.2d at 838-39 & 838 n.2. The
federal district court, however, reviewed the claim on
its merits and concluded, based on Nguyen,
131 F.3d at 1356-57, which considered an identical instruction,
that petitioner's constitutional rights
were not violated.
Respondent correctly argues that this claim is procedurally
barred. "When a federal habeas petitioner
has defaulted [her] federal claims in state court pursuant
to an adequate and independent state
procedural rule, federal habeas review of the claims
is barred absent a showing of cause and
prejudice or of a fundamental miscarriage of justice."
Walker v. Attorney Gen., 167 F.3d 1339,
1344 (10th Cir. 1999) (citing Coleman v. Thompson, 501
U.S. 722, 750 (1991)), cert. denied, 120
S. Ct. 449 (1999). Petitioner admits she cannot show
prejudice because Nguyen has adversely
decided this issue. Also, petitioner cannot make a showing
of factual innocence required for a
fundamental miscarriage of justice in light of her admission
that she shot Ms. Leathers. See Schlup v.
Delo, 513 U.S. 298, 321 (1995).
VIII. CONTINUING THREAT AGGRAVATING CIRCUMSTANCE
Petitioner argues that Oklahoma's continuing threat aggravating
circumstance is unconstitutionally
overbroad. This court has rejected this argument. See,
e.g., Foster, 182 F.3d at 1194; Castro v.
Ward, 138 F.3d 810, 816-17 (10th Cir.), cert. denied,
119 S. Ct. 422 (1998); Nguyen, 131 F.3d
at 1353-54. The prior resolution is binding, see Foster,
182 F.3d at 1194, and, contrary to
petitioner's argument, en banc consideration of Nguyen
is not warranted.
IX. DENIAL OF PROCEDURAL MECHANISM
Petitioner argues that she was denied the due process
protection of a mandatory in camera hearing
to determine if her prior manslaughter conviction had
involved violence or a threat of violence. See
Brewer, 650 P.2d at 63. On direct criminal appeal, the
Oklahoma Court of Criminal Appeals held
that the restraints of Brewer were not applicable because
the State was required to prove the
continuing threat aggravator. See Allen, 871 P.2d at
100.
This court will not disturb the Oklahoma appellate court's
interpretation of its own procedural rule
and conclusion that the rule was not violated. See Mullaney,
421 U.S. at 691. Petitioner's alleged
violation of state law does not warrant habeas relief
because she was not deprived of a
fundamentally fair trial. See Boyd, 179 F.3d at 917.
X. OVERLAPPING AGGRAVATING FACTORS
Petitioner argues that the jury's finding of both the
previous conviction of a violent felony and
continuing threat aggravators based on the same conduct
is unconstitutional. Petitioner further argues
that the evidence presented to support her continuing
threat aggravator completely subsumed the
evidence offered to support the prior violent felony
aggravator. On direct criminal appeal, the
Oklahoma Court of Criminal Appeals held that the two
do not overlap. See Allen, 871 P.2d at
100-01.
Contrary to petitioner's argument, United States v. McCullah,
76 F.3d 1087 (10th Cir. 1996), reh'g
en banc, 87 F.3d 1136, 1137 (10th Cir. 1996), is factually
distinguishable from the case at bar.
Unlike McCullah, one of the aggravators here does not
completely subsume the other. See id. at
1111. The prior violent felony aggravator focuses on
the nature of petitioner's past criminal conduct,
while the continuing threat aggravator focuses on possible
future conduct. See Johnson v. Gibson,
169 F.3d 1239, 1252 (10th Cir. 1999), cert. denied, 120
S. Ct. 415 (1999); Cooks, 165 F.3d at
1289. Also, petitioner's prior manslaughter conviction
established the existence of the prior violent
felony aggravator, whereas that felony along with other
independent evidence all supported finding
the existence of the continuing threat aggravator. Because
this case is distinguishable from McCullah,
and is foreclosed by Johnson and Cooks, petitioner's
claim does not warrant habeas relief.
XI. CUMULATIVE ERROR
Petitioner argues the cumulative effect of the trial errors
resulted in an unfair trial, a denial of due
process, and a death sentence that violates the Eighth
Amendment. The federal district court
correctly determined that there was no cumulative error.
See Moore, 153 F.3d at 1113
("Cumulative error analysis applies where there are two
or more actual errors; it does not apply to
the cumulative effect of non-errors."); see also Newsted
v. Gibson, 158 F.3d 1085, 1097 (10th Cir.
1998) ("A non-error and a non-prejudicial error do not
cumulatively amount to prejudicial error."),
cert. denied, 119 S. Ct. 1509 (1999).
XII. EVIDENTIARY HEARING
Petitioner requests remand for an evidentiary hearing
on her ineffective assistance of counsel claim.
An evidentiary hearing is not warranted, because the
existing factual record is sufficient to resolve the
claim. See Foster, 182 F.3d at 1184.
The judgment of the United States District Court for the
Western District of Oklahoma is
AFFIRMED.
Entered for the Court
Wade Brorby
Circuit Judge
FOOTNOTES
Click footnote number to return to corresponding location in the text.
*. This order and judgment is not binding precedent, except
under the doctrines of law of the case,
res judicata, and collateral estoppel. The court generally
disfavors the citation of orders and
judgments; nevertheless, an order and judgment may be
cited under the terms and conditions of 10th
Cir. R. 36.3.
1. The district court believed it was required to grant
COA on all issues in capital cases. This court
has held, however, that district courts need not grant
COA on all issues in capital cases. See
LaFevers v. Gibson, 182 F.3d 705, 710 (10th Cir. 1999).
2. In his affidavit, trial counsel stated that he believed
that he had argued at a hearing, which was not
recorded, that he needed investigative assistance to
develop the self-defense theory, to obtain
evidence to support a lesser included offense instruction
on manslaughter, to obtain evidence of Ms.
Leathers' violent background, and to develop mitigating
evidence.
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