FILED
United States Court of Appeals
Tenth Circuit
May 25, 2010
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
DANNY KEITH HOOKS,
Petitioner - Appellant,
v. No. 07-6152
RANDALL G. WORKMAN, Warden,
Oklahoma State Penitentiary,
Respondent - Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
(D.C. NO. 02-CV-224-T)
Randy A. Bauman, Assistant Federal Public Defender (James A. Drummond,
Assistant Federal Public Defender, with him on the briefs), Oklahoma City,
Oklahoma, for Petitioner - Appellant.
Robert L. Whittaker, Assistant Attorney General, Criminal Division (W.A. Drew
Edmondson, Attorney General of Oklahoma, with him on the brief), Oklahoma
City, Oklahoma, for Respondent - Appellee.
Before LUCERO, MURPHY, and O’BRIEN, Circuit Judges.
MURPHY, Circuit Judge.
I. INTRODUCTION
An Oklahoma jury convicted Danny Hooks on five counts of first degree
murder and imposed five death sentences. The Oklahoma Court of Criminal
Appeals (“OCCA”) affirmed the convictions and death sentences, Hooks v. State,
19 P.3d 294, 319 (Okla. Crim. App. 2001), and denied post-conviction relief,
Hooks v. State, 22 P.3d 231, 233 (Okla. Crim. App. 2001). Hooks then filed a
28 U.S.C. § 2254 habeas corpus petition, challenging his convictions and death
sentences. The district court denied relief. Hooks appeals to this court, raising
four claims: (1) trial counsel was ineffective during the guilt and penalty phases
of trial; (2) prosecutorial misconduct denied him a fair sentencing proceeding;
(3) an Allen charge 1 given during penalty-phase deliberations coerced the jury
into returning death sentences; and (4) the cumulative impact of these errors
denied him a fundamentally fair sentencing proceeding. 2
Hooks has failed to demonstrate that the OCCA’s resolution of his claim of
ineffective assistance of trial counsel during the guilt phase is contrary to or an
1
Allen v. United States, 164 U.S. 492 (1896). “An Allen charge is a
supplemental instruction . . . designed to encourage a divided jury to agree on a
verdict.” United States v. LaVallee, 439 F.3d 670, 689 (10th Cir 2006) (quotation
omitted). Because it can have the effect of “blasting verdicts out of juries,” it is
also known as the “dynamite charge.” United States v. Zabriskie, 415 F.3d 1139,
1148 (10th Cir. 2005) (quotation omitted).
2
Because the district court granted Hooks a certificate of appealability as to
each issue raised on appeal, this court has jurisdiction pursuant to 28 U.S.C.
§§ 1291 and 2253. See Miller-El v. Cockrell, 537 U.S. 322, 336 (2003).
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unreasonable application of Strickland v. Washington, 466 U.S. 668 (1984).
28 U.S.C. § 2254(d)(1). Furthermore, the record makes clear that all aspects of
this claim raised for the first time in Hooks’s habeas petition fail on the merits.
Id. § 2254(b)(2). Accordingly, this court affirms the denial of habeas relief on
the murder convictions. Nevertheless, the Allen charge given by the trial court in
the midst of penalty-phase deliberations, when considered in the context of all
surrounding circumstances, coerced the jury into returning death sentences.
Furthermore, the OCCA’s decision to the contrary is an unreasonable application
of Lowenfield v. Phelps, 484 U.S. 231 (1988). 28 U.S.C. § 2254(d)(1).
Accordingly, this court reverses and remands to the district court to grant habeas
relief to Hooks on each of his five death sentences. 3
II. BACKGROUND
The relevant underlying historical facts were outlined by the OCCA in its
opinion on direct appeal:
On May 16, 1992, the bodies of Phyllis Adams, LaShawn
Evans, Sandra Thompson, Carolyn Watson, and Francill Roberts
were found in a small bedroom in a crack house. Each woman was
gagged and had been stabbed several times. The bodies were nude
and Thompson, Watson, and Roberts were bound. [Adams was
partially clothed but her brassiere and shirt were pulled up, exposing
her chest area. Evans and Adams were not bound, but evidence
suggested at one time Adams’s hands had been tied.] The room was
3
Because he is entitled to habeas relief on this ground, we do not reach any
of Hooks’s additional challenges to his death sentences.
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in disarray and the victims’ purses appeared to have been searched.
There were no drugs or money in the house.
Although there were five victims in a confined space, the
evidence suggested one person committed the crimes. The women
were killed in the bedroom. A trail of blood drops led to the front
door, and Luminol testing showed a single set of bloody footprints
also leading from the bedroom to the front door. There was a great
deal of the victims’ blood in the bedroom. However, the blood trail
to the door, and some other blood drops found at various places in
the bedroom, did not come from any of the victims. A bloody palm
print was on the west wall of the bedroom closet, and police found a
bloody boot print with “Honchos” embossed on the sole. Despite a
thorough investigation police found nobody who matched either the
palm print or the blood drops. In 1995 samples of the blood drops
were submitted for DNA testing, and those results were distributed
nationally in 1996. In 1997, California penal authorities informed
the Oklahoma State Bureau of Investigation (OSBI) that they had a
person with that DNA profile. Subsequent tests confirmed that the
blood trail, drops in the bedroom, and bloody palm print all belonged
to Hooks. DNA from semen found in Roberts’s mouth was also
consistent with Hooks’ DNA.
Hooks admitted he was at the house. He testified he went
there during the evening of May 15th, and sometime close to or
shortly after midnight on May 16th he was there smoking crack
cocaine with all the victims. Hooks said he only knew the woman
who rented the house, and could not remember any of the victims’
names. He said he had “regular” sex with one woman and oral sex
with another. During the night they ran out of crack and Hooks gave
two of the women $30 to go buy more. After they returned and
finished smoking, he ran out of drugs and money and left. Hooks
said he got home—about a mile from the house—around 2:00 a.m.
He decided to go back sometime after 4:00 a.m. On the way, he cut
his left index finger falling off his bicycle while trying to fix the kick
stand. When he got there the house was dark and the door was ajar.
He pushed it open and entered cautiously, closing the door behind
him, went to the bedroom and saw the bodies, and went back to the
front door. He lifted the curtain and looked outside, then decided to
go back in and check on the victims in case anyone was alive. He
returned to the bedroom and determined each victim was dead. After
he checked Evans’s body he picked up a shirt and wrapped it around
his cut finger. Hooks looked at the contents of the victims’ purses on
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the west bed, then knelt and looked under the clothes in the closet.
He then left the house, dropping the shirt by the front door, and
closed the door. Hooks did not tell anyone what he had seen because
he was afraid the authorities would revoke his California parole for
being in a crack house. Two weeks later he left the area. In
November he was arrested in Holdenville, Oklahoma, on a domestic
complaint and returned to California.
Hooks, 19 P.3d at 303-04 & n.2. Additional historical or procedural facts
necessary to the resolution of this appeal are set out more fully below.
III. AEDPA STANDARD
This court’s review is governed by the Antiterrorism and Effective Death
Penalty Act of 1996 (“AEDPA”). Snow v. Sirmons, 474 F.3d 693, 696 (10th Cir.
2007). With certain exceptions noted below, each claim Hooks raises on appeal
was resolved on the merits by the OCCA. Accordingly, this court may not grant
habeas relief on any such claim unless the decision of the OCCA “was contrary
to, or involved an unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1).
Under the “contrary to” clause, we grant relief only if the state court
arrives at a conclusion opposite to that reached by the Supreme Court
on a question of law or if the state court decides a case differently
than the Court has on a set of materially indistinguishable facts.
Under the “unreasonable application” clause, relief is provided only
if the state court identifies the correct governing legal principle from
the Supreme Court’s decisions but unreasonably applies that
principle to the facts of the prisoner’s case.
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Gipson v. Jordan, 376 F.3d 1193, 1196 (10th Cir. 2004) (quotations, alterations,
and footnote omitted). As these standards make clear, “[w]hen reviewing a state
court’s application of federal law, we are precluded from issuing the writ simply
because we conclude in our independent judgment that the state court applied the
law erroneously or incorrectly.” McLuckie v. Abbott, 337 F.3d 1193, 1197 (10th
Cir. 2003). “Rather, we must be convinced that the application was also
objectively unreasonable.” Id.
Th[e] question is not wh[at] the trial judge should have [done.] It is
not even whether it was an abuse of discretion for her to have done
so—the applicable standard on direct review. The question under
AEDPA is instead whether the determination of the [State] Supreme
Court . . . was “an unreasonable application of . . . clearly
established Federal law.” [28 U.S.C. §] 2254(d)(1). We have
explained that “an unreasonable application of federal law is
different from an incorrect application of federal law.” Indeed, “a
federal habeas court may not issue the writ simply because that court
concludes in its independent judgment that the relevant state-court
decision applied clearly established federal law erroneously or
incorrectly.” Rather, that application must be “objectively
unreasonable.” This distinction creates “a substantially higher
threshold” for obtaining relief than de novo review. AEDPA thus
imposes a “highly deferential standard for evaluating state-court
rulings,” and “demands that state-court decisions be given the benefit
of the doubt.”
Renico v. Lett, No. 09-338, 2010 WL 1740525, at *5 (May 3, 2010) (citations
omitted).
It is important to note, however, that “[t]his standard does not require . . .
abject deference, but nonetheless prohibits us from substituting our own judgment
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for that of the state court.” Snow, 474 F.3d at 696 (quotations and footnote
omitted). As the Supreme Court has made clear,
Even in the context of federal habeas, deference does not
imply abandonment or abdication of judicial review. Deference does
not by definition preclude relief. A federal court can disagree with a
state court’s . . . determination and, when guided by AEDPA,
conclude the decision was unreasonable or that the factual premise
was incorrect by clear and convincing evidence.
Miller-El v. Cockrell, 537 U.S. 322, 340 (2003); see also Miller-El v. Dretke, 545
U.S. 231, 240 (2005) (holding the AEDPA “standard is demanding but not
insatiable”).
IV. GUILT-PHASE INEFFECTIVE ASSISTANCE OF COUNSEL
A. Background
On direct appeal, Hooks alleged his trial counsel was ineffective. As a
general matter, his claim revolved around the contention counsel was unprepared
for trial and, therefore, failed to present an adequate defense to the murder
charges. Hooks briefed the following specific claims of ineffective assistance
before the OCCA: (1) trial counsel’s closing was insufficient in that it failed to
marshal the evidence supporting Hooks’s version of events on the night of the
murders; (2) trial counsel failed to timely request from Hooks’s family the work
boots he customarily wore at the time of the crime, thereby precluding their use at
trial to oppose the theory Hooks left the bloody “Honcho” boot prints at the crime
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scene; (3) trial counsel failed to object to egregious instances of prosecutorial
misconduct; and (4) trial counsel failed to move in limine to exclude Hooks’s
prior convictions for rape and assault and was, therefore, forced to elicit that
evidence himself at the beginning of Hooks’s testimony in an effort to remove its
sting if introduced by the prosecution during cross-examination. 4 After setting
out the Strickland standard and noting trial counsel was less than a “zealous
advocate,” the OCCA rejected on the merits each discrete claim of ineffective
assistance of counsel set out in Hooks’s direct-appeal brief. Hooks, 19 P.3d at
317-18.
Hooks reasserted in his federal habeas petition that trial counsel was
constitutionally ineffective. Unfortunately, his petition is far from a model of
specificity. Instead, it begins with a generalized assertion that trial counsel’s lack
of investigation and preparation prevented the presentation of a viable defense
theory during the guilt phase of the trial. It then sets out a summary listing of
trial counsel’s failures in this regard: (1) failure to contact prosecution witnesses
in advance of trial; (2) failure to engage in meaningful pre-trial motions practice;
4
Hooks also sought an evidentiary hearing to develop the factual bases of
additional claims of ineffective assistance of trial counsel appearing outside the
record on direct appeal. Okla. Stat. tit. 22, ch. 18, App. Rule 3.11(B)(3)(b). He
sought to develop claims his counsel failed to (1) investigate and present evidence
from police reports; (2) obtain his boots prior to trial; and (3) provide evidence in
support of a challenge to the racial composition of the jury venire. The OCCA
summarily rejected Hooks’s request for an evidentiary hearing. Hooks v. State,
19 P.3d 294, 317 n.65 (Okla. Crim. App. 2001).
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(3) failure to timely obtain Hooks’s work boots; (4) deferring opening statement
until the beginning of the defense’s case and then making an inadequate opening
statement; and (5) failure to present the jury with a viable theory of the case
during closing argument. Hooks also sought an evidentiary hearing to develop his
claim of ineffective assistance. 5
The district court denied habeas relief on this claim. It began by
discrediting, as inconsistent with the record, the contention that trial counsel had
undertaken so little investigation and preparation that he was forced to proceed to
trial with no strategy for dealing with the prosecution’s case. The district court
moved on to note that many of the examples of ineffective assistance identified
by Hooks had been resolved on the merits by the OCCA consistent with the
standards set out in Strickland. The district court rejected on the merits the
5
More than two years after filing his petition, Hooks sought permission to
amend it to add additional claims. According to the motion, “recently developed
facts [call into question] the strength of the blood evidence offered by the State
. . . and the ineffectiveness of . . . trial counsel for his failure to effectively
challenge that evidence.” Oklahoma asserted the district court should deny the
motion because the new claims were unexhausted and, thus, subject to an
anticipatory procedural bar. See Cummings v. Sirmons, 506 F.3d 1211, 1222-23
(10th Cir. 2007). The district court granted Hooks’s motion to amend without
addressing Oklahoma’s arguments. In its substantive response to the amended
petition, Oklahoma contended Hooks’s newly asserted claim of ineffective
assistance was time barred under § 2244(d) because it did not arise out of the
same common core of operative facts as the claims set out in Hooks’s original
§ 2254 petition. See Mayle v. Felix, 545 U.S. 644, 664 (2005). As set out below,
the district court denied the ineffective assistance claim in Hooks’s amended
§ 2254 habeas petition on the merits, without resolving the statute of limitations
or procedural bar defenses advanced by Oklahoma. Cf. 28 U.S.C. § 2254(b)(2)
(providing an unexhausted habeas claim can be denied on the merits).
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ineffective assistance claim set out in the amended § 2254 petition, concluding
the serology evidence relied on by Hooks did not negate his guilt and did not alter
the fact that trial counsel was faced with the necessity of explaining
why [Hooks] was in the house and how his blood was found at the
scene. Even had counsel presented testimony consistent with Dr.
Allen’s opinions, he would still have been faced with the almost
certain necessity of [Hooks] testifying in order to offer an
explanation to the jury for the existence of this and other evidence.
[Hooks’s] defense rested on the believability of his versions of the
events and his credibility with the jury.
Finally, the district court denied Hooks’s request for an evidentiary hearing,
noting that in analyzing the claim of ineffective assistance, it had considered all
additional evidence Hooks adduced during the federal habeas proceedings. Even
considering that additional evidence, the district court concluded the record
conclusively established Hooks was not entitled to habeas relief.
B. Analysis
On appeal to this court, Hooks raises the following claims of guilt-phase
ineffective assistance of trial counsel: (1) failure to investigate; (2) failure to
perform pre-trial motions practice; (3) failure to timely offer his work boots; (4)
failure to offer forensic evidence; (5) and deferral of opening statement. 6 Hooks
6
In the section of his brief relating to guilt-phase ineffective assistance,
Hooks summarily asserts trial counsel failed to object to improper prosecutorial
comments. Rather than identifying the comments at issue, Hooks directs this
court to the grounds for relief in Proposition I of his appellate brief. Each of the
prosecutorial comments identified in Proposition I, however, relates to the penalty
phase. Accordingly, this court does not consider this contention in resolving
Hooks’s claims of ineffective assistance during the guilt phase of trial.
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further claims the district court erred when it denied his request for an evidentiary
hearing.
To prevail on a claim of ineffective assistance, Hooks must show his
counsel’s performance “fell below an objective standard of reasonableness” and
“the deficient performance prejudiced the defense.” Strickland, 466 U.S. at
687-88. Review of counsel’s performance under Strickland’s first prong is highly
deferential: “counsel is strongly presumed to have rendered adequate assistance
and made all significant decisions in the exercise of reasonable professional
judgment.” Id. at 690. To be deficient, the performance must be “outside the
wide range of professionally competent assistance.” Id. In other words, “it must
have been completely unreasonable, not merely wrong.” Boyd v. Ward, 179 F.3d
904, 914 (10th Cir. 1999); see also Strickland, 466 U.S. at 687 (holding that to
demonstrate deficient performance, a petitioner must show “counsel made errors
so serious that counsel was not functioning as the ‘counsel’ guaranteed [a]
defendant by the Sixth Amendment”).
As for Strickland’s prejudice prong, Hooks must establish that but for
counsel’s errors, there is a reasonable probability “the result of the proceeding
would have been different.” 466 U.S. at 694. That is, Hooks must show
“counsel’s errors were so serious as to deprive [him] of a fair trial, a trial whose
result is reliable.” Id. at 687. Establishing a reasonable probability of a different
outcome requires something less than a showing “counsel’s deficient conduct
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more likely than not altered the outcome in the case.” Id. at 693. Instead, a
reasonable probability is one “sufficient to undermine confidence in the
outcome.” Id. at 694.
If Hooks is unable to show either “deficient performance” or “sufficient
prejudice,” his claim of ineffective assistance necessarily fails. Id. at 700. Thus,
it is not always necessary to address both Strickland prongs. In particular, if
Hooks is unable to satisfy his burden under Strickland’s prejudice prong, it is
unnecessary to determine whether counsel’s performance was deficient. Id. at
697. In undertaking a Strickland analysis of Hooks’s claims, this court keeps the
AEDPA standards of review firmly in mind. See supra Section III. (setting out
AEDPA standards); Wiggins v. Smith, 539 U.S. 510, 520-23 (2003) (undertaking
Strickland analysis against backdrop of AEDPA standards).
1. Failure to Investigate and Prepare
Hooks begins his briefing with a generalized assertion counsel failed to
adequately investigate and prepare for trial. Hooks asserts counsel’s conduct
“verges” on the absence of representation identified as grounds for relief in
United States v. Cronic, 466 U.S. 648, 659 (1984). A review of his brief on direct
appeal demonstrates Hooks did not raise a Cronic claim before the OCCA. It is
likewise unclear whether Hooks raised a Cronic claim before the district court.
Nevertheless, because it is abundantly clear Hooks is not, as a matter of law,
entitled to relief under Cronic, we resolve this claim on the merits. 28 U.S.C.
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§ 2254(b)(2) (providing federal habeas court can deny unexhausted claims on the
merits).
In Cronic, the Supreme Court identified three situations when Strickland
does not apply but the Court will, instead, presume prejudice without inquiring
into counsel’s performance. 466 U.S. at 658-59. Hooks invokes the second
situation identified in Cronic: a presumption of prejudice is warranted if “counsel
entirely fails to subject the prosecution’s case to meaningful adversarial testing.”
Id. at 659. The Court has made clear, however, that this exception to Strickland
will apply only in the narrowest and rarest of circumstances: “When we spoke in
Cronic of the possibility of presuming prejudice based on an attorney’s failure to
test the prosecutor’s case, we indicated that the attorney’s failure must be
complete.” Bell v. Cone, 535 U.S. 685, 696-97 (2002). Consistent with this
statement, the Court has indicated an alleged failure to adduce evidence and a
decision to waive closing argument must be analyzed under Strickland, rather
than under the rubric set out in Cronic. Bell, 535 U.S. at 697; see also Patrasso
v. Nelson, 121 F.3d 297, 302 (7th Cir. 1997) (rejecting argument Cronic should
apply because of “the magnitude of [counsel’s] multiple failures,” and holding
instead that “where ineffectiveness is due to the attorney’s lack of preparation or
skill . . . Strickland rather than Cronic applies”).
Because the record in this case demonstrates trial counsel did not “fail[] to
oppose the prosecution throughout the [trial] as a whole,” Cronic does not apply.
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Bell, 535 U.S. at 697; see also Hooks, 19 P.3d at 317-18 (noting trial counsel used
the evidence presented at trial to argue the prosecution had not proven Hooks
guilty of murder); infra Section IV.A.2.e. (discussing lack of prejudice flowing
from trial counsel’s deficient opening statement). Accordingly, this court moves
on to consider whether the specific acts or omissions identified by Hooks entitle
him to relief under the standard set out in Strickland. See Strickland, 466 U.S. at
690 (“A convicted defendant making a claim of ineffective assistance must
identify the acts or omissions of counsel that are alleged not to have been the
result of reasonable professional judgment.”); Cronic, 466 U.S. at 666 (holding
that absent evidence “counsel failed to function in any meaningful sense as the
Government’s adversary,” a petitioner can “make out a claim of ineffective
assistance only by pointing to specific errors made by trial counsel”).
2. Pre-Trial Motion Practice
Hooks begins with a generalized assertion his trial counsel failed to engage
in meaningful pre-trial motions practice. He then summarily identifies the
following specific deficiencies: trial counsel failed to (1) file motions challenging
the validity of the aggravating circumstances set out by the prosecution in support
of the death penalty; and (2) file a motion in limine to exclude sexual proclivity
evidence and evidence of Hooks’s prior criminal record.
As to the claim trial counsel was ineffective for failing to challenge the
validity of the aggravating circumstances set out in the prosecution’s bill of
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particulars, we simply note this alleged failure does not relate in any way to the
guilt phase of trial. Because, as set out more fully below, this court grants Hooks
habeas relief as to his death penalties on the basis of the trial court’s Allen
instruction, see infra Section V., we need not further consider this particular
allegation of ineffective assistance.
As to the assertion trial counsel should have moved in limine to exclude
evidence of his prior rape and assault convictions, we note the OCCA resolved
this exact claim on the merits under the standards set out in Strickland. Hooks, 19
P.3d at 318. The OCCA concluded trial counsel was not ineffective for failing to
seek to exclude the prior convictions because those convictions were admissible
at trial for impeachment purposes pursuant to Okla. Stat. tit. 12, § 2609(A)(1).
Hooks, 19 P.3d at 318. 7 Because Hooks does not even address the merits of the
7
The OCCA’s analysis is as follows:
When Hooks took the stand counsel made sure the jury knew
Hooks had prior convictions for rape and assault with intent to
commit bodily harm. Hooks now complains this trial strategy was
unreasonable. He suggests counsel should first have moved the trial
court to rule these prior convictions unavailable for impeachment
purposes. Prior convictions may be used to impeach a witness. In
ruling on their admissibility the court must consider (1) their
impeachment value; (2) the time of the convictions and the
defendant’s subsequent history; (3) the similarity between the prior
and charged crimes; (4) the importance of the defendant’s testimony;
and (5) whether credibility is central to the trial. We disagree with
Hooks’s claim that the prior offenses were so similar to the charged
crime of murder as to automatically prejudice the jury against him.
Hooks’s prior convictions were relevant for impeachment purposes
and admissible, and their probative value for impeachment was not
(continued...)
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OCCA’s decision, he has failed to demonstrate the OCCA’s resolution of this
claim is an unreasonable application of Strickland. 28 U.S.C. § 2254(d)(1). In
any event, because Hooks’s prior convictions were admissible as a matter of
Oklahoma law, trial counsel did not perform deficiently when he raised the matter
during direct examination in an effort to remove the sting of the evidence before
the prosecution could develop it during cross-examination. Thus, Hooks is not
entitled to habeas relief on this ground.
Hooks also asserts counsel was ineffective for failing to move in limine to
exclude “sexual proclivity evidence” independent of the evidence relating to his
past convictions. He does not, however, describe the evidence at issue, indicate
on what basis it could have been excluded, or brief how it impacted his trial.
Because the matter is only mentioned in passing and not briefed “with citations to
the authorities and parts of the record on which [Hooks] relies,” Fed. R. App. P.
28(a)(9)(A), the issue is forfeited. Bronson v. Swensen, 500 F.3d 1099, 1104
(10th Cir. 2007) (citing Rule 28(a)(9)(A) for the proposition this court has
“routinely . . . declined to consider arguments that are . . . inadequately
presented[] in an appellant’s opening brief”).
7
(...continued)
outweighed by the danger of prejudice. As the prior convictions
were admissible and would have been used for impeachment, counsel
was not ineffective for omitting to ask the trial court to prohibit the
State from using Hooks’s priors.
Hooks, 19 P.3d at 318 (footnotes omitted).
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3. Failure to Produce Work Boots
At trial, the prosecution presented evidence indicating someone wearing
“Honchos” work boots walked through blood at the crime scene, possibly while
the victims were being killed. It further adduced evidence that during the period
in question, Hooks normally wore work boots similar to the “Honchos” that left
the print at the scene of the crime. In response to the prosecution’s focus on the
“Honchos” boot print, trial counsel asked Hooks’s family to find his work boots. 8
Although a family member found the boots and brought them to the courthouse,
the trial court excluded the evidence as a discovery sanction for not giving the
boots to the prosecution during pre-trial discovery. On direct appeal, Hooks
alleged (1) the trial court’s exclusion of the boots as a discovery sanction violated
the Due Process Clause; and (2) trial counsel’s failure to obtain the boots and
make them available during pre-trial discovery, thereby leading to their exclusion,
amounted to ineffective assistance of counsel. Hooks, 19 P.3d at 306-07, 318.
The OCCA resolved these claims on the merits. As to the due process
claim, the OCCA concluded the trial court erred in excluding Hooks’s boots as a
discovery sanction. Id. at 306-07. It concluded, however, the error was harmless
beyond a reasonable doubt because the prosecution connected Hooks to the crime
8
During the prosecution’s cross-examination of Hooks, “Hooks admitted
owning two pairs of boots in 1992—a pair of Army boots and lace-up work
boots.” Hooks, 19 P.3d at 306. Hooks denied owning “Honchos” boots and
testified he left his work boots with his family when he left Oklahoma several
months after the murders. Id.
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through DNA and palm print evidence. Id. at 307. For that very same reason, the
OCCA determined Hooks was not entitled to relief on his claim of ineffective
assistance because he could not satisfy Strickland’s prejudice prong. Id. at 318;
cf. Strickland, 466 U.S. at 694 (holding that to satisfy the prejudice prong, a
petitioner must establish that but for counsel’s errors, there is a reasonable
probability the result of the proceeding would have been different).
On appeal to this court, Hooks asserts the admission of his work boots
would have cast doubt on the prosecution’s contention one person committed the
crime and would have lent credence to his assertion he arrived at the scene after
the murders had already taken place. He further asserts the decision of the OCCA
is unreasonable because it fails to adequately recognize the power of this rebuttal
evidence. In response, Oklahoma merely quotes the opinion of the OCCA on
direct appeal and asserts that decision is not an unreasonable application of
Strickland.
The decision of the OCCA—that there is no reasonable probability the
outcome of the guilt phase of Hooks’s trial would have been different if the boots
had been admitted—is not unreasonable. See McLuckie, 337 F.3d at 1197
(holding this court can issue habeas writ only if state court’s application of
Supreme Court precedent is objectively unreasonable). As recognized by the
OCCA, the boot print was the least compelling evidence tying Hooks to the crime
scene. Hooks, 19 P.3d at 307. In particular, the prosecution adduced evidence of
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a bloody palm print and a DNA match to blood at the crime scene. Id.
Furthermore, Hooks did not contest his presence at the crime scene, but instead
testified he was only present before and after the murders. Id. at 305-06.
This court’s review of the record demonstrates the prosecution’s boot print
evidence was not nearly as significant as Hooks suggests. The “Honchos” boots
admitted at trial were purchased by police at the time of the crime and were
simply a demonstrative exhibit. Id. at 306. Although the prosecution asked the
jury to infer the “Honchos” boot print came from Hooks because Hooks regularly
wore work boots at the time of the crime, it does not appear the prosecution
presented any evidence Hooks actually owned a pair of “Honchos” work boots.
See id. Furthermore, trial counsel was successful during cross-examination in
casting serious doubt on the value of the prosecution’s boot print evidence. 9 The
prosecution did not even mention the boot prints until the rebuttal portion of its
closing argument. Instead, it was defense counsel who first raised the matter in
closing, pointing out all of the problems earlier identified with the prosecution’s
assertion the “Honchos” boot prints belonged to the killer(s), let alone to Hooks.
9
For instance, trial counsel adduced testimony to the following effect:
(1) contrary to procedure, an officer was present at the crime scene in work boots
without wearing protective booties; (2) officers never compared the size of the
“Honchos” boot print to Hooks’s shoe size to see if they matched; and (3) at least
one of the individuals who discovered the bodies of the victims most likely
entered the room where the victims were found and nobody checked the shoe
prints of those individuals.
-19-
In light of the record, the OCCA reasonably determined Hooks was not
prejudiced by trial counsel’s failure to timely offer Hooks’s work boots.
Strickland, 466 U.S. at 694. Accordingly, Hooks is not entitled to habeas relief
on this ground. 28 U.S.C. § 2254(d).
4. Failure to Adduce Forensic Evidence
Hooks asserts the district court erred in denying habeas relief on his claim
trial counsel was ineffective in failing to present forensic evidence discrediting
serology evidence presented by the prosecution. The district court bypassed
potential procedural impediments to Hooks raising this claim (i.e., anticipatory
procedural bar and § 2244(d)’s limitations period) and resolved this claim on the
merits pursuant to § 2254(b)(2). It concluded Hooks had not suffered any
prejudice from trial counsel’s failure to offer evidence like that set out in the
Amended Petition because such evidence (1) did not negate guilt and (2) would
not have altered the need for Hooks to explain to the jury how his blood came to
be in the house where the murders occurred. Because it decided this matter in the
first instance, unconstrained by the standard of review set out in the AEDPA, this
court reviews the district court’s determination de novo. Young v. Sirmons, 551
F.3d 942, 970 (10th Cir. 2008).
In asserting trial counsel was ineffective in failing to develop evidence
challenging the prosecution’s serology evidence, Hooks relies on the affidavit of
Dr. Robert Allen. Hooks argues Dr. Allen’s testimony substantiates his version
-20-
of events and the absence of such evidence left his version of events entirely
uncorroborated. This argument is based on a complete misreading of Dr. Allen’s
affidavit. Hooks asserts Dr. Allen’s opinion supports the conclusion “that the
blood evidence at the crime scene indicated more than one perpetrator.” Brief of
Petitioner at 61. A close review of Dr. Allen’s affidavit, however, demonstrates it
supports no such conclusion. Instead, the limited focus of Dr. Allen’s affidavit is
as follows: the serology testing undertaken by forensic chemist Melissa Keith
could not and did not exclude the possibility of other perpetrators. In reaching
this conclusion, Dr. Allen relied on the following: (1) two potential suspects had
blood profiles so similar to Hooks’s blood profile that they could not be excluded
from the list of potential perpetrators without DNA analysis; and (2) up to thirty
potential suspects had blood profiles similar to the five victims and Keith never
undertook tests to analyze any blood evidence consistent with the blood profiles
of the victims. Thus, testimony similar to Dr. Allen’s, if introduced at trial,
would have demonstrated nothing more than the abstract possibility an unknown
person left blood at the scene of the crimes.
Placed in its proper context, even assuming its truth, Hooks has failed to
demonstrate a “reasonable probability of a different outcome” if trial counsel had
adduced testimony at trial similar to that set out in Dr. Allen’s affidavit.
Strickland, 466 U.S. at 694. In reaching this conclusion, we have nothing to add
to the district court’s cogent analysis:
-21-
Absent from Dr. Allen’s affidavit are any opinions contradicting
[Hooks’s] DNA match with the “foreign blood” left at the scene.
[Hooks’s] argument speculates that there were more than one
perpetrators and that another perpetrator might have been a source
for semen found in one of the victims and, had that perpetrator or
another perpetrator bled at the scene, might possibly have been a
source of blood serologically similar to one of the victims. Trial
counsel was faced not with speculation, but with evidence of
[Hooks’s] blood in the room with the victims’ bodies and also a
blood trail through the house. [Hooks’s] palm print in blood was left
at the closet. [The] Amended Petition and the accompanying
affidavits do nothing to exonerate [Hooks] or negate the fact that
trial counsel was faced with the necessity of explaining why [Hooks]
was in the house and how his blood was found at the scene. Even
had counsel presented testimony consistent with Dr. Allen’s
opinions, he would still have been faced with the almost certain
necessity of [Hooks] testifying in order to offer an explanation to the
jury for the existence of this and other evidence. [The] defense
rested on the believability of his versions of the events and his
credibility with the jury. As determined by the OCCA, trial counsel
utilized the State’s evidence and [Hooks’s] testimony to argue the
State had not proven [Hooks] was guilty.
5. Opening Statement
Hooks contends trial counsel provided ineffective assistance when he
reserved his opening statement until the beginning of the defense’s case and then
gave a “woefully brief and substance-lacking opening statement.” The record
conclusively demonstrates Hooks suffered no prejudice as a result of this asserted
instance of ineffective assistance. Thus, without regard to the question whether
trial counsel’s opening statement was so deficient as to satisfy Strickland’s
-22-
performance prong, Hooks is not entitled to habeas relief on this claim. 466 U.S.
at 697. 10
In Oklahoma, the opening statement has a narrow purpose: “to inform the
jury of the evidence the attorneys expect to present during the trial.” Young v.
State, 12 P.3d 20, 36 (Okla. Crim. App. 2000); Hammon v. State, 898 P.2d 1287,
1306 (Okla. Crim. App. 1995). An attorney is not allowed to argue the merits of
the case during opening statements. Newsted v. State, 720 P.2d 734, 738 (Okla.
Crim. App. 1986); see also Malicoat v. State, 992 P.2d 383, 394-95 & n.10 (Okla.
Crim. App. 2000) (discussing difference in purposes of opening statement and
10
This claim is suspended in a procedural morass. It was first raised in
Hooks’s § 2254 petition. Oklahoma responded that the claim was unexhausted.
Although it noted Hooks identified the opening statement as indicative of trial
counsel’s general failure to adequately prepare for trial, the district court did not
otherwise analyze the merits of the claim or address whether it was exhausted.
The district court’s approach is understandable. As set out above, Hooks’s habeas
filings embrace a flawed interpretation of Cronic. He assumes he is entitled to
relief if he can demonstrate his counsel’s preparation for trial was inadequate and
he can carry that burden by cursorily identifying “examples” of deficient conduct
flowing from that inadequate preparation. As previously demonstrated, however,
Cronic is not implicated by the facts of this case and Hooks can prevail only by
identifying specific errors on the part of counsel amounting to deficient
performance and by demonstrating he was prejudiced by those specific errors. In
light of Hooks’s approach, it is hardly surprising the district court thought it
unnecessary to individually analyze each of the numerous cursorily stated
“examples” of inadequate preparation set out in Hooks’s habeas petition.
Before this court, Hooks again raises the issue, this time in a discrete
section of his brief. Inexplicably, Oklahoma does not mention this aspect of
Hooks’s claim in its response brief. We choose not to enter this procedural
swamp and, instead, exercise our discretion to bypass complex issues of
exhaustion to reject the claim on the merits. Revilla v. Gibson, 283 F.3d 1203,
1211 (10th Cir. 2002). This is an especially appropriate course, as this claim
“may be disposed of in straightforward fashion on substantive grounds.” Id.
-23-
closing argument). Thus, in analyzing whether Hooks was prejudiced by
counsel’s delayed and allegedly inadequate opening statement, this court focuses
on whether the jury was able to follow Hooks’s theory of the case absent the
opening statement. Cf. Malicoat, 992 P.2d at 394-95 (concluding nothing in the
record indicated the “jurors were unable to understand or grasp the import of
counsel’s cross-examination of State witnesses” in the absence of an opening
statement by defense counsel at the beginning of trial).
Upon review of the trial transcript, this court is firmly convinced the jury’s
understanding of, and ability to follow, the defense’s case was not hampered by
trial counsel’s purportedly inadequate opening statement. The prosecution’s case,
as outlined in its opening statement, was centered mostly around (1) forensic
evidence tying Hooks to the murders, and (2) testimony of Sheila McClain,
Hooks’s “main girlfriend,” that Hooks was not at his house during the early
morning hours when the murders occurred. As is clear from trial counsel’s cross-
examination of prosecution witnesses, the defense theory was that McClain’s
testimony was not credible 11; there were serious problems with the prosecution’s
11
For instance, in his cross-examination of Rose Mary Glaze, trial counsel
cast doubt on McClain’s testimony she had spent the morning of the murders
waiting at Hooks’s trailer to see if he would show up. In particular, Glaze
testified it was unlikely anyone would approach Hooks’s trailer unless Hooks was
there to restrain his dog. During his cross-examination of Kevin Lonnie, trial
counsel refuted McClain’s assertion she never again saw Hooks after the murders
and discredited the prosecution’s assertion that Hooks abandoned his job after the
murders. Furthermore, trial counsel elicited testimony from McClain that she
(continued...)
-24-
forensic evidence 12; and the prosecution’s theory that Hooks had, by himself,
killed all five victims in a short time frame was unworthy of belief. 13 During his
brief opening statement at the beginning of the defense’s case, trial counsel
indicated Hooks would take the stand and relate to the jury what actually
happened on the morning of the murders.
Having reviewed the entire record, it is apparent the case was not factually
or conceptually difficult, turning narrowly on the credibility of McClain’s
testimony and upon the persuasiveness of the state’s forensic evidence. That
Hooks’s defense would contest those issues was clear from trial counsel’s cross-
examination of prosecution witnesses. There is simply nothing in the record
11
(...continued)
smoked cocaine and consumed alcohol during the relevant time period, left
Hooks’s trailer during the relevant time period to drink with Lorenzo Brown, and
had a poor memory of the night and morning in question.
12
Using State’s Exhibit 81, a picture of the crime scene, trial counsel was
able to impeach Officer Kent Harrville, by demonstrating that contrary to
Harrville’s testimony not all officers used protective booties while present at the
crime scene. Trial counsel further developed this evidence during cross-
examination of Mike Burke, a homicide detective, when it was revealed he was
the investigator pictured in Exhibit 81 without protective booties. Trial counsel
also demonstrated investigators had not requested blood samples from all suspects
to compare with the blood found at the murder scene. In addition, trial counsel
cross-examined Mary Long, a criminalist with the Oklahoma State Bureau of
Investigation, about the investigators’ failure to conduct DNA tests on sperm
found in some of the victims.
13
Trial counsel offered evidence during cross-examination of Dr. Larry
Balding that there were no substantial gaps in time between the deaths of the five
victims.
-25-
supporting Hooks’s assertion that the lack of an adequate opening statement
hindered the jury’s ability to follow or understand the defense case. Cf. Malicoat,
992 P.2d at 394-95. Accordingly, Hooks has failed to demonstrate any prejudice
flowing from trial counsel’s allegedly deficient opening statement and is not
entitled to relief under Strickland.
6. Evidentiary Hearing
Hooks asserts the district court erred in denying his request for an
evidentiary hearing. In so asserting, he broadly contends such a hearing would
establish trial counsel “failed to provide any reasonable advice or assistance”
during the entire course of the proceedings following the pre-trial hearing and
would include testimony from trial counsel and family members “who have
personal knowledge of [trial counsel’s] unconscionable conduct.” 14 In denying
14
Hooks’s filings make clear he desired an evidentiary hearing as an avenue
for discovery. “The purpose of an evidentiary hearing,” however, “is to resolve
conflicting evidence.” Anderson v. Attorney General, 425 F.3d 853, 860 (10th
Cir. 2005). The Rules Governing Section 2254 Cases in the United States District
Court [hereinafter “§ 2254 Rules”] provide mechanisms for discovery and
expansion of the record without the necessity of an evidentiary hearing. Rule 6, §
2254 Rules (providing district courts may authorize discovery); Rule 7, § 2254
Rules (providing district courts have discretion to expand the record with letters,
documents, exhibits, answers to interrogatories, and affidavits). These rules
allow the disposition of some petitions without the expenditure of resources
necessitated by an evidentiary hearing. Advisory Committee Notes to Rule 6,
§ 2254 Rules (“[P]re-hearing discovery may show an evidentiary hearing to be
unnecessary, as when there are no disputed issues of law or fact” (quotation
omitted)); Advisory Committee Notes to Rule 7, § 2254 Rules (“The purpose [of
this rule] is to enable the judge to dispose of some habeas petitions . . . without
the time and expense required for an evidentiary hearing.”) Thus, where the
(continued...)
-26-
Hooks’s request for an evidentiary hearing, the district court concluded that even
assuming the truth of Hooks’s factual assertions, he was not entitled to habeas
relief. See Miller v. Champion, 161 F.3d 1249, 1253 (10th Cir. 1998) (holding
that under pre-AEDPA law a habeas petitioner is entitled to an evidentiary
hearing “so long as his allegations, if true and if not contravened by the existing
factual record, would entitle him to habeas relief”). 15
“A district court’s decision to grant or deny an evidentiary hearing in a
habeas proceeding is reviewed for an abuse of discretion.” Anderson v. Attorney
General, 425 F.3d 853, 858 (10th Cir. 2005). Because, as set out fully above,
14
(...continued)
purpose is to discover evidence creating a genuine issue of fact as to a petitioner’s
entitlement to habeas relief, the appropriate course is to employ Rules 6 and 7,
rather than to request an evidentiary hearing. See United States v. Velarde, 485
F.3d at 553, 559-60 (10th Cir. 2007). Of course, the limitations set out in §
2254(e)(2) apply “when expansion of the record is used to achieve the same end
as an evidentiary hearing.” Cargle v. Mullin, 317 F.3d 1196, 1209 (10th Cir.
2003) (quotation and alteration omitted). Only when a petitioner diligently
sought to develop the factual basis of a habeas claim in state court can he utilize
the procedures set out in Rules 6 and 7. Id.
15
The district court utilized this standard because the OCCA summarily
denied Hooks’s request for an evidentiary hearing. See Bryan v. Mullin, 335 F.3d
1207, 1215 (10th Cir. 2003) (en banc) (holding that when a petitioner seeks an
evidentiary hearing in state court to develop the factual basis of a claim, but the
state court denies such a hearing, entitlement to a federal court hearing is
analyzed pursuant to pre-AEDPA law rather than the standards set out in §
2254(e)(2)). Under the particular facts of this case, however, § 2254(e)(2) might
indeed operate as a limitation on Hooks’s entitlement to an evidentiary hearing.
Some aspects of Hooks’s federal habeas claim of ineffective assistance were not
embraced in his state-court request for an evidentiary hearing. Nevertheless,
because Hooks is not entitled to an evidentiary hearing under any standard, we
need not labor over the proper application of § 2254(e)(2) in this case.
-27-
each of Hooks’s claims of ineffective assistance of trial counsel is resolvable
solely on the basis of the existing record, the district court did not abuse its
discretion in denying Hooks’s general request for an evidentiary hearing. Miller,
161 F.3d at 1253. Likewise, the general and conclusory nature of the allegations
in Hooks’s request for an evidentiary hearing, fully support the district court’s
decision to deny that request. Hatch v. Oklahoma, 58 F.3d 1447, 1471 (10th Cir.
1995), overruled in part on other grounds by Daniels v. United States, 254 F.3d
1180, 1188 n.1 (10th Cir. 2001) (en banc).
V. PENALTY-PHASE Allen INSTRUCTION
A. Clearly Established Supreme Court Precedent
“The very object of the jury system is to secure unanimity by a comparison
of views, and by arguments among the jurors themselves.” Allen v. United States,
164 U.S. 492, 501 (1896). This object is achievable only if individual jurors will
“listen with deference to the arguments” of other jurors “with a distrust of [their]
own judgment,” particularly when “a large majority of the jury tak[es] a different
view of the case.” Id. at 501-02. For that very reason, the use of an Allen charge
to encourage jury unanimity “has long been sanctioned” by the Supreme Court.
Lowenfield, 484 U.S. at 237. The need for unanimity, however, is reduced in the
context of penalty-phase proceedings because a deadlocked jury will not result in
a mistrial. Okla. Stat. Ann. tit. 21, § 701.11 (providing that “[i]f the jury cannot,
-28-
within a reasonable time, agree as to punishment, the judge shall dismiss the jury
and impose a sentence of imprisonment for life” with or without parole); see also
Lowenfield, 484 U.S. at 238 (recognizing identical feature of Louisiana law
reduced need for unanimity, noting that fact “obviously weighs in the
constitutional calculus,” but ultimately concluding it is not “dispositive”).
Nevertheless, the state retains “a strong interest in having the jury express the
conscience of the community on the ultimate question of life or death.”
Lowenfield, 484 U.S. at 238 (quotation omitted). Thus, even in death-penalty
proceedings, trial courts are entitled to direct juries to deliberate for a reasonable
time before declaring a mistrial. Id.
Nevertheless, “[a]ny criminal defendant, and especially any capital
defendant, being tried by a jury is entitled to the uncoerced verdict of that body.”
Id. at 241. Accordingly, a trial court must be vigilant to instruct the jury in a way
that, given all the surrounding circumstances, does not coerce the jury into
returning a death verdict. Id. at 238-39 (noting that despite general propriety of
encouraging additional deliberations through an Allen charge, Court was
“naturally mindful . . . that the qualitative difference between death and other
penalties calls for a greater degree of reliability when the death sentence is
imposed”). In resolving whether any particular Allen charge crossed over the
boundaries of propriety to coercion, reviewing courts must “consider the
-29-
supplemental charge given by the trial court in its context and under all the
circumstances.” Id. at 237 (quotation omitted).
The dissent spills much ink arguing that the rule set out in Lowenfield is
sufficiently general that this court’s review of the decision of the OCCA should
be “‘doubly deferential.’” Dissenting Op. at 9 (citing Knowles v. Mirzayance,
129 S. Ct. 1411, 1420 (2009)); see also id. at 3-9 (collecting cases). We have no
reason to quibble with the dissent’s assertion. 16 On the other hand, to the extent
16
Although we agree with the dissent’s assertion that Lowenfield is
sufficiently general that this court’s review of the OCCA’s decision should be
doubly deferential, we cannot agree with the dissent’s unsupported assertion that
the standard set out in Lowenfield is somehow less revealing than the standard set
out in Strickland. Dissenting Op. at 8 & n.5 (“But unlike Strickland and it’s
progeny, which at least provide guidance for its application, Lowenfield
establishes nothing more than a general (perhaps merely aspirational) principle
without a hint as to how courts are to determine whether a Constitutional
violation occurred.” (footnote omitted)). The Supreme Court has made clear that
the Strickland standard is purposefully general and context specific:
We established the legal principles that govern claims of
ineffective assistance of counsel in Strickland v. Washington, 466
U.S. 668 (1984). An ineffective assistance claim has two
components: A petitioner must show that counsel’s performance was
deficient, and that the deficiency prejudiced the defense. Id., at 687.
To establish deficient performance, a petitioner must demonstrate
that counsel’s representation “fell below an objective standard of
reasonableness.” Id., at 688. We have declined to articulate specific
guidelines for appropriate attorney conduct and instead have
emphasized that “[t]he proper measure of attorney performance
remains simply reasonableness under prevailing professional
norms.” Ibid.
Wiggins v. Smith, 539 U.S. 510, 521 (2003) (emphasis added). This general
standard has not prevented the Supreme Court from granting habeas relief
applying the AEDPA deferential standard in an appropriate case. Id. at 537-38.
Likewise, the rule set out in Lowenfield is necessarily general and context
(continued...)
-30-
the dissent is asserting “double deference” is a synonym for “abject deference,”
we simply note such an approach is precluded by this court’s decision in Snow,
474 F.3d at 696, and the Supreme Court’s decision in Miller-El, 537 U.S. at 340.
B. Background
1. Trial Proceedings
At the conclusion of the penalty-phase, the trial court instructed the jury it
had the duty to impose sentence upon Hooks. The trial court listed for the jury
the statutory aggravating circumstances at issue in the case, defined those
aggravating circumstances, and instructed the jury it was authorized to consider
imposing a sentence of death only if it first unanimously found beyond a
reasonable doubt that one or more of those aggravating circumstances existed.
The trial court defined the term “mitigating circumstances” and instructed the jury
that “unanimous agreement of jurors concerning mitigating circumstances is not
required.” The trial court instructed the jury as to its task during the selection
phase of penalty deliberations 17 as follows:
16
(...continued)
specific, as an otherwise unremarkable Allen charge may be rendered coercive in
light of remarkable surrounding circumstances. In contrast to the dissent’s
assertion, nothing in either the text of AEDPA or the decisions of the Supreme
Court categorically rule out the availability of habeas relief under the rule set out
Lowenfield.
17
See Tuilaepa v. California, 512 U.S. 967, 971 (1994) (describing
“eligibility decision” and “selection decision” and noting they together constitute
the two phases in death penalty deliberations).
-31-
If you unanimously find that one or more of the aggravating
circumstances existed beyond a reasonable doubt, the death penalty
shall not be imposed unless you also unanimously find that any such
aggravating circumstance or circumstances outweigh the finding of
one or more mitigating circumstances. Even if you find that the
aggravating circumstances outweigh the mitigating circumstances,
you may impose a sentence of imprisonment for life with the
possibility of parole or imprisonment for life without the possibility
of parole.
The trial court concluded with a catch-all instruction stating as follows:
All the previous instructions given you in the first part of this
trial apply where appropriate . . . .
....
You have already elected a foreperson. In the event you assess
the death penalty, your verdict must be unanimous. You may also
return a unanimous verdict of imprisonment for life without the
possibility of parole or imprisonment for life with the possibility of
parole. . . . When you have reached your verdict, all of you in a
body must return it into open court.
The law provides that you shall now listen to and consider the
further arguments of attorneys.
Consistent with the concluding line of the trial court’s instructions, the case
proceeded immediately to closing arguments. During those arguments, the
prosecutors actively presented misleading statements to the jury as to the need for
a unanimous verdict. The prosecution’s closing arguments were presented in two
parts. The first part was presented by Brad Miller. Miller set about to mislead
the jury as to its sentencing role by informing jurors (1) the jury’s work would be
wasted if it failed to reach a unanimous verdict, (2) any argument by defense
counsel that it took the vote of only one juror to prevent imposition of the death
penalty amounted to a request for “jury nullification,” and (3) failure to deliberate
-32-
in a manner leading to a unanimous verdict would amount to operating outside the
law. Miller argued to the jury as follows:
It [sic] is certainly nothing easy about asking 12 strangers that don’t
know each other to come into the room here and listen to all of this
and end up with unanimity going in the same direction. It’s a
tremendously difficult process and we know that.
But again, it’s the best system in the world. And it requires,
though, these 12 people, these 12 strangers to come together and
collaborate, discuss, make a decision. The system would actually
grind to a halt. Think about it. It would grind to a screeching halt if
juries didn’t come together and do that.
If we couldn’t depend on 12 citizens to come together and go
in the same direction, then we would never have a verdict. There
would never be a disposition. Defendant[s] would go back to jail and
wait for the next trial and they’d go back to jail and wait for the next
trial and no one would ever be acquitted and no one would ever be
sent on to the penitentiary.
....
Now I suggest that [defense counsel] will probably say
something to the affect [sic] that someone on this jury could hold up
a decision. He will likely tell you that it just takes one person to stop
all this. That is such a common argument down here that it’s got a
name. It’s called jury nullification.
Nullification means an action impeding or attempting to
prevent the operation or enforcement of the law. Websters.
Nullification means an action impeding or attempting to prevent the
operation of the law.
In other words, to nullify a jury, a jury’s job, a jury’s efforts
really requires only convincing one or two people to cripple it, to
stop it. And while I don’t want to beat this down I have got to tell
you one more time that that’s not what we’re about. This system,
and I remind you, is about deliberation. To do otherwise eviscerates
the system. It cuts it up literally. It cuts it up. The very law that we
live by. The 12 of you must resolve this case, all 12, I suggest.
During his closing argument, defense counsel responded to Miller’s
misstatements of the law by simply noting for the jury that the defense “will ask
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and tell [the jury] that it only takes one” because “that happens to be the law in
Oklahoma.” Robert Macy then delivered the final segment of the prosecution’s
closing argument. Macy concluded his closing argument by reaffirming Miller’s
misstatements of Oklahoma law and by reasserting that any result other than a
unanimous verdict would be anathema to the principles underlying our legal
system:
[Defense counsel] mentioned that any one of you can control
the result in this trial and you can do that legally. But ladies and
gentlemen, there is not one chair up there. There’s [sic] 12. Twelve
chairs. And there’s [sic] 12 chairs for that purpose. The
Constitution of the United States guarantees a person a trial by a jury
of his peers, not by one person, by a jury of his peers.
There’s been far too much work go into this case. It’s far too
important in this case for someone to play martyr and try to hang it
up.
After deliberating for approximately five hours, the jury sent a note to the
trial court stating: “We’re 11 to one in favor of the death penalty but one person
who refuses to change refers on grounds not related to the law. The 11 request
this juror be interviewed and replaced with an alternate.” The trial court and the
parties engaged in a colloquy as to how to best respond to the jury’s note.
Defense counsel requested an instruction to the jury consistent with OUJI-CR
4-83, the Oklahoma Uniform Jury Instruction specifically applicable to
deadlocked death-penalty deliberations: “If, on further deliberation you are
unable to agree unanimously as to punishment, I shall discharge you and impose a
sentence of imprisonment for life without the possibility of parole or
-34-
imprisonment for life with the possibility of parole.” The prosecution objected to
instructing the jury pursuant to OUJI-CR 4-83, not on its content but on its
timing. The prosecution asserted the instruction was an Allen charge and it was
too early in deliberations to give the jury such a charge. The trial court rejected
defense counsel’s request and instructed the jury as follows: “Ladies and
gentlemen of the jury, the law does not authorize me to grant your request.
Please continue with your deliberation.”
Within ten minutes the jury returned a note saying “We are unable to reach
any unanimous sentence.” Defense counsel immediately moved for a mistrial,
noting (1) the jury’s first note demonstrated it was operating under a
misunderstanding of the law and (2) the short time-frame between the trial court’s
answer to the first note and the jury’s assertion of deadlock demonstrated further
deliberations would not be fruitful. The trial court overruled Hooks’s motion for
a mistrial on the grounds the jury had not deliberated long enough to justify such
a request and stated it would give the Allen charge set out OUJI-CR 10-11. OUJI-
CR 10-11 is the Oklahoma uniform Allen charge applicable to juries deadlocked
during guilt-phase deliberations. Defense counsel objected to instructing the jury
consistent with OUJI-CR 10-11, asserting that instruction failed to “fully explain
the sentencing phase of a death penalty case.” The trial court overruled defense
counsel’s objection, refused defense counsel’s request to ask jurors whether
-35-
further deliberation would be helpful before giving the Allen charge, and
instructed the jury consistent with OUJI-CR 10-11. 18
18
The instruction given by the trial court in this case, which is virtually
identical to the form version of OUJI-CR 10-11, with the exception of the time
frames, states as follows:
This case has taken approximately 57 hours of trial time. You
have deliberated for approximately 6 1/2 hours. You report to me
that you are experiencing difficulty in arriving at a verdict.
This is an important case and a serious matter to all concerned.
You are the exclusive judges of the facts; the court is the judge of the
law. Now I most respectfully and earnestly request of you that you
return to your jury room and resume your deliberations. Further
open and frank discussion of the evidence and law submitted to you
in this case may aid you in arriving at a verdict.
This does not mean that those favoring any particular position
should surrender their honest convictions as to the weight or effect of
any evidence solely because of the opinion of other jurors or because
of the importance of arriving at a decision. No juror should ever
agree to a verdict that is contrary to the law in the court’s
instructions, nor find a fact or concur in a verdict which in good
conscience he or she believes to be untrue.
This does mean that you should give respectful consideration
to each other’s views and talk over any differences of opinion in the
spirit of fairness and candor. If at all possible, you should resolve
any differences and come to a common conclusion, that this case may
be completed. Each juror should respect the opinion of his or her
fellow jurors, as he or she would have them respect his or hers, in an
earnest and diligent effort to arrive at a just verdict under the law and
the evidence.
You may be as leisurely in your deliberations as the case may
require and take all the time necessary. The giving of this instruction
at this time in no way means that it is more important than any other
instruction. On the contrary, you should consider this instruction
together with and as part of the instructions which I previously gave
you.
In stating the foregoing, I again repeat: you are the judges of
the facts; the court is the judge of the law. In making all statements
made to you I have not, nor do I now, express or intimate, nor
(continued...)
-36-
At approximately 7:30 p.m., the jury sent out a note asking for its evening
break. The trial court and the parties quickly realized the jurors expected to go
home for the evening, as they had during first-stage deliberations. Both defense
counsel and the prosecution objected to breaking sequestration during second
stage deliberations. The trial court had the jury returned to the courtroom and
instructed the jurors they were being sent for a dinner break and should “plan to
commence with your deliberations when you do return.”
While the jury was away for dinner, the trial court reserved a motel in case
jurors wanted to break for the evening. After the jury returned from dinner, the
court met with counsel and proposed telling the jurors about logistical
considerations relating to the jury’s choice to take a break from deliberations for
the evening. In particular, the trial court proposed telling the jury that if it
wanted to take an evening break, it must tell the court by 10:30 p.m. so that
rooms could be secured for the evening. Defense counsel requested that the trial
court first ask the jury whether further deliberations would be helpful before
discussing with the jury the logistics of an overnight hotel stay. The trial court
denied defense counsel’s request and proceeded to instruct the jury that if it
18
(...continued)
indicate, in any way the conclusions to be reached by you in this
case, nor do I intend in any way or manner to coerce a verdict, nor
directly or indirectly to force a verdict in this case. I only ask that
you return to your jury room and, again, diligently and earnestly
under your oaths resume your deliberations.
-37-
wanted to take an evening break it must inform the court by 10:30 p.m. At no
point did the trial court tell the jury its deliberations would not continue
indefinitely. Forty minutes later the jury returned a unanimous death sentence.
2. Oklahoma Appellate Proceedings
On direct appeal, Hooks alleged that the combination of circumstances
cataloged above coerced the jury into returning a death sentence. Hooks, 19 P.3d
at 309. Despite recognizing multiple errors on the part of the trial court and
misconduct on the part of both Miller and Macy, the OCCA denied relief. Id. at
310-12, 314-16. The author of the majority opinion, Judge Chapel, would have
granted Hooks relief on the basis that the “dangerous combination” of “egregious
errors” “may have encouraged and perpetuated any jurors’ misunderstanding of
the law.” Id. at 312 nn.33, 36. Because Judge Chapel’s colleagues “unanimously
disagree[d] with [him] as to [the] matter,” he “yield[ed] to their collective
wisdom” and wrote the opinion to affirm. Id. at 312 n.36. Thus, some portions of
the opinion of the OCCA on direct appeal reflect only the views of Judge Chapel,
while some portions reflect the views of the court. 19
19
In reflecting his individual views, Judge Chapel opined:
[P]rosecutorial misconduct in the second stage infected the
sentencing proceeding with unfairness and deprived Hooks of a fair
sentencing hearing. The second stage argument was especially
egregious, as the misstatements of law, combined with errors in
instruction . . . , suggested that a hung jury was somehow illegal.
This may have led to a misconception among the majority of Hooks’s
jurors . . . . We have repeatedly condemned the Oklahoma County
(continued...)
-38-
The OCCA first took up Hooks’s challenge to the way the trial court
informed the jury it would be sequestered until the end of deliberations. Id. at
310. In particular, Hooks asserted that under all the circumstances, the trial
court’s logistics discussion with the jury “suggested jurors could not leave until
they had a unanimous verdict” and thereby “put unbearable pressure on the
holdout juror.” Id. Although it recognized the inference “that the quick return of
a verdict after this instruction suggests coercion,” the OCCA rejected such an
inference because every statement of the trial court during the logistics discussion
amounted to an “accurate statement of law.” Id.
The OCCA recognized that the trial court erred when, prior to releasing the
jury for further deliberations after dinner, it failed to admonish jurors not to
abandon their honestly held beliefs. Id. at 310 & n.25 (citing Lowenfield for
19
(...continued)
District Attorney’s reliance on improper argument . . . . In addition
to our warnings, federal reviewing courts have also repeatedly
condemned Mr. Macy and prosecutors from his office for their
habitual misconduct in argument. This Court has let this flagrant
disregard of our rulings pass too long. The second stage argument
here contained several comments the prosecutors knew to be error,
included for the purpose of inflaming the jury’s passions and
encouraging a sentencing verdict based on passion or prejudice rather
than the evidence. The errors in argument, combined with the errors
in instructing the deadlocked jury, prejudiced Hooks’s ability to
receive a fair sentencing hearing. I believe the misstatements of law
regarding jury nullification deprived Hooks of his right to a properly
instructed capital jury, and ought to result in relief even if the other
comments did not render the proceedings as a whole fundamentally
unfair.
Hooks, 19 P.3d at 314 n.51 (citations omitted); see also id. at 317 n.57.
-39-
proposition that such an instruction lessens coercion on holdout jurors); see also
id. at 310 (“Under those circumstances the trial court had a duty to ensure each
juror understood his or her obligation to hold fast to firm convictions, and not to
concur in a finding or verdict simply to reach a unanimous decision.”). The
OCCA concluded, however, that this error did not require reversal because
(1) none of the trial court’s other after-dinner instructions were improper;
(2) “Hooks’s jury had received a proper Allen instruction, [20] including the
admonition at issue, within the preceding two or three hours”; and (3) “[t]here
were no intervening substantive communications or instructions between the Allen
instruction and the after-dinner exchange.” Id. at 310.
The OCCA likewise agreed with Hooks that the trial court erred when it
gave the Allen instruction set out in OUJI-CR 10-11, instead of the capital
deadlock instruction set out in OUJI-CR 4-83. Id. at 310-11. It cursorily denied
relief on the basis of this error, however, simply noting as follows:
We continue to hold that an Allen instruction, while no longer the
appropriate instruction under these circumstances, is not per se error
in the second stage of a capital case. The trial court gave the correct
Allen instruction. We have already determined that the trial court’s
actions were not inherently or explicitly coercive.
20
In utilizing this terminology, it is clear the OCCA was simply stating that
OUJI-CR 10-11 is, in the abstract, a properly stated Allen instruction, not that it is
the proper instruction to give to a jury deadlocked during penalty-phase
deliberations. Hooks, 19 P.3d at 310 (“Hooks claims the trial court erred in
refusing to give the capital deadlock instruction, OUJI-CR (2d) 4-83. Hooks is
right.”).
-40-
Id. at 312.
The OCCA rejected Hooks’s contention that the jury’s initial note to the
court, the note requesting removal of a juror who refused to vote with the
majority, indicated a misunderstanding of the law which should have been
remedied by an instruction similar to OUJI-CR 4-83. Id. The OCCA noted it was
“troubled by the suggestion that the jury believed Oklahoma law required
imposition of the death penalty.” Id. It nevertheless concluded Hooks’s assertion
of error failed because the jury was properly instructed as to both the eligibility
and selection phases of death-penalty deliberations. 21 Id.
Finally, the OCCA agreed with Hooks’s contention that the prosecutors
misstated the law in an attempt to “diminish[] the jury’s individual sense of
morality and mercy.” Id. at 316. In particular, the OCCA noted Miller and Macy
had misstated the law in three key ways:
First, all twelve jurors do not have to unanimously agree in capital
sentencing proceedings. Second, the failure to agree does not
amount to jury nullification. Oklahoma law specifically provides
that the jury may not reach a unanimous verdict. As the law provides
21
In this regard, the OCCA stated as follows:
The jury was accurately instructed that it was authorized to impose
the death penalty if it unanimously found one or more aggravating
circumstances, and then found that circumstance outweighed any
mitigating evidence. Nothing in the instructions suggested the jury
was required to impose a death sentence if it found at least one
aggravating circumstance. Instruction 11 told the jury it could
impose a sentence of life or life without parole even after finding
aggravating circumstances outweighed mitigating circumstances.
Hooks, 19 P.3d at 312.
-41-
for this result, failure to agree cannot be said to impede or obstruct it.
Third, deadlocked juries are instructed not to abandon their honestly
held convictions or concur in a verdict which they cannot in good
conscience accept . . . while attempting to resolve their differences.
The closing arguments complained of here suggest jurors should in
fact abandon their honestly held beliefs if those beliefs will result in
a less than unanimous verdict.
Id. (footnote omitted). Ultimately, however, the OCCA denied relief, simply
concluding that “despite these erroneous arguments the jury was deadlocked for
several hours. We must conclude that the jurors in this case were not misled.”
Id.
3. Federal District Court Habeas Proceedings
The district court concluded Hooks was not entitled habeas relief because
the OCCA’s resolution of his jury-coercion claim was neither contrary to, nor an
unreasonable application of, clearly established Supreme Court precedent. In
analyzing the Allen charge, the district court utilized the four factors identified by
this court in United States v. Arney, 248 F.3d 984, 988 (10th Cir. 2001) 22: “(1) the
language of the instruction, (2) whether the instruction is presented with other
instructions, (3) the timing of the instruction, and (4) the length of the jury’s
subsequent deliberations.”
22
An Arney analysis, though helpful in reviewing a claim of jury coercion in
habeas proceedings, is not dispositive under the AEDPA. Gilbert v. Mullin, 302
F.3d 1166, 1173 n.3 (10th Cir. 2002) (“Although Arney sets forth the factors
under which a federal appellate court reviews the supplemental jury instructions
used by a federal district court, we note that this standard is higher than our more
deferential review pursuant to AEDPA.”).
-42-
The district court noted the trial court’s instruction was a “modified”
Allen charge, a supplemental instruction in which the court asks all jurors, rather
than only those in the minority, to carefully consider their views. See Gilbert v.
Mullin, 302 F.3d 1166, 1173-74 (10th Cir. 2002) (discussing how “modified”
Allen charge differs from “traditional” Allen charge). Such instructions generally
do not “unduly emphasize the importance of reaching a verdict.” Id. at 1174.
Thus, the district court concluded the language of the Allen charge itself was not
coercive.
The district court recognized the jury was presented with many instructions
discussing unanimity, but was presented with no instruction indicating unanimity
was not required as to the ultimate sentence imposed or the consequences if the
jury was unable to reach unanimity. Nevertheless, the district court relied on
precedent indicating the Eighth Amendment does not require a trial court to
instruct the jury on the consequences of their failure to agree. See Neill v.
Gibson, 278 F.3d 1044, 1053-54 (10th Cir. 2001) (discussing Eighth Amendment
implications of failing to instruct jury on consequences of not reaching a
unanimous verdict during penalty phase of capital trial). Furthermore, according
to the district court, Hooks’s trial counsel argued to the jury during closing
arguments that the jury did not have to be unanimous and that if one or more
-43-
jurors held out death would not be imposed. 23 Thus, according to the district
court, the OCCA’s determination that the instructions as a whole did not coerce
the jury was not an unreasonable application of Lowenfield.
As to the timing of the Allen instruction, the district court simply noted that
prior to the giving of the charge, the jury had not absolutely declared further
deliberations would be fruitless. Furthermore, the instruction was given in the
afternoon, rather than late at night. According to the district court, there was
nothing in the timing of the Allen charge that rendered it coercive. The district
court did not, however, recognize that the Allen instruction was given soon after
the second jury note indicating an inability to reach a unanimous verdict and after
the request of Hooks’s counsel to inquire of the jury whether further deliberations
would be meaningful.
Finally, the district court acknowledged that the jury deliberated for
approximately two and one-half hours after receiving the Allen charge before
returning a verdict. Citing several cases from this court, the district court
concluded that substantial time gap weighed against Hooks’s jury-coercion
argument.
In conclusion, the district court stated:
23
Based solely on these limited arguments on the part of defense counsel
during closing arguments, the district court eliminated from the coercion equation
the misconduct on the part of the prosecutors. As set out more fully below, this
erroneous legal ruling seriously undermines the district court’s coercion analysis.
-44-
Considering the totality of the circumstances in which the
Allen charge was given in [Hooks’s] case, the Court concludes that it
was not coercive in such a way as to deny him a fair trial and due
process of law. The OCCA’s determination that [Hooks] was not
entitled to relief is neither contrary to, nor an unreasonable
application of, clearly established federal law.
C. Analysis
1. AEDPA Deference
Hooks asserts the trial court’s Allen instruction, “in its context and under
all the circumstances,” was so coercive as to deny him a reliable sentencing
proceeding. Lowenfield, 484 U.S. at 237 (quotation omitted). He further argues
this court should review his jury coercion claim de novo because the OCCA’s
compartmentalized adjudication of the claim is contrary to Lowenfield. See
Brown v. Uphoff, 381 F.3d 1219, 1225 (10th Cir. 2004) (holding that when a state
court adjudication is contrary to clearly established Supreme Court precedent, this
court must review de novo whether petitioner is entitled to habeas relief). In the
alternative, Hooks argues the record-based indicia of coercion are so
overwhelming that the OCCA’s refusal to grant relief on this issue amounts to an
unreasonable application of Lowenfield. 28 U.S.C. § 2254(d)(1).
Hooks asserts that in contrast to Lowenfield’s clear direction to review the
coerciveness of an Allen charge under the totality of the circumstances, 484 U.S.
at 237, the OCCA reviewed the factors bearing on this question individually and
in isolation. Oklahoma, on the other hand, asserts the OCCA used a totality-of-
-45-
the-circumstances test consistent with Lowenfield, relying on footnote 33 of the
OCCA’s opinion. See Hooks, 19 P.3d at 312 n.33. The problem with Oklahoma’s
assertion, of course, is that footnote 33 of the OCCA’s opinion represents only the
views of Judge Chapel. Id. (“I note the errors in instruction were exacerbated by
the egregious errors in argument discussed in Proposition II [involving
prosecutorial misconduct]. I believe this dangerous combination warrants
relief.”); see also supra Section V.B.2 (discussing unusual nature of OCCA
opinion, in which the author of the opinion dissented from the outcome on this
issue in a series of footnotes).
It is certainly true that Judge Chapel considered the coerciveness of the
Allen charge given during the penalty phase in light of all the surrounding
circumstances. Hooks, 19 P.3d at 312 nn.33 & 36, 314 n.51, 317 n.57, 318 n.68.
Whether the OCCA majority undertook to analyze Hooks’s claim in a manner
consistent with Lowenfield cannot be definitively determined from the opinion.
Although the opinion of the OCCA cites to Lowenfield in two footnotes, it does so
only to briefly note (1) a quick return of a verdict following an Allen charge can
indicate coercion, (2) an instruction to a deadlocked jury not to surrender honestly
held beliefs reduces coercion, and (3) a jury instruction as to the consequences of
failing to reach unanimity reduces coercion. Hooks, 19 P.3d at 310 & n.24; Id. at
310 n.25. But cf. Early v. Packer, 537 U.S. 3, 8 (2002) (per curiam) (holding
AEDPA’s “contrary to” clause “does not require citation of our cases—indeed, it
-46-
does not even require awareness of our cases, so long as neither the reasoning nor
the result of the state-court decision contradicts them”). Nowhere does the OCCA
indicate it is evaluating the coerciveness of the Allen charge given at Hooks’s
trial by reference to all surrounding circumstances. But cf. id. at 9 (“Compliance
with Lowenfield . . . does not demand a formulary statement that the trial court’s
actions and inactions were noncoercive ‘individually and cumulatively.’ It
suffices that that was the fair import of the [state court] opinion.”). Nor does the
“fair import” of the OCCA opinion indicate the court undertook such a highly
contextualized analysis. Id.; cf. infra Section V.C.2.b. (discussing OCCA’s
compartmentalized analysis of Miller’s and Macy’s prosecutorial misconduct).
There are, however, indications the OCCA aggregated all “errors” in
deciding this (possibly distinct) question: Was Hooks afforded a fundamentally
fair sentencing proceeding? Hooks, 19 P.3d at 318 (“[W]e find the combination
of errors [surrounding the Allen charge] did not infect the . . . sentencing
proceeding with unfairness, and does not require relief.”); see also id. at 312 n.36
(stating that although Judge Chapel thought the constellation of errors
surrounding the trial court’s Allen charge required relief, his “colleagues . . .
unanimously disagree[d]”); id. at 314 n.51 (same). The OCCA’s “combination of
errors,” however, excludes other relevant contextual circumstances, such as the
timing of the Allen instruction, the significance of the jury notes, and the impact
of the trial court’s decision to give the instruction to an apparently deadlocked
-47-
jury. Whether the limited analysis set out in the text of the OCCA opinion is
consistent with Lowenfield’s “coercion” analysis is problematic. Cf. Fry v. Pliler,
127 S. Ct. 2321, 2325 n.1 (2007) (assuming state court determination of “‘no
possible prejudice’” did not amount to an application of the harmless-beyond-a-
reasonable-doubt standard set out in Chapman v. California, 386 U.S. 18 (1967)).
Unfortunately, neither party has directed this court to any relevant
precedent on that question. Likewise, it is impossible to tell from Judge Chapel’s
footnotes the exact basis upon which his colleagues disagreed with him, i.e., the
mode of his analysis or his conclusion. Ultimately, because Hooks is entitled to
habeas relief even under AEDPA’s deferential review for objective
reasonableness, we decline to resolve the very difficult question of whether the
analysis of the OCCA is “contrary to” Lowenfield. Accordingly, this court
proceeds to the question whether the OCCA’s denial of relief on Hooks’s claim
his death sentences were coerced is an unreasonable application of the general
standard set out in Lowenfield.
2. Discussion
This court approaches the OCCA decision fully cognizant of the limited
nature of federal habeas review under the provisions of AEDPA. See supra
Section III. (explicating § 2254(d)(1)’s review standards). The deference
accorded that decision, however, is not abject, and the record in this case so
overwhelmingly demonstrates the jury’s death sentences were coerced that the
-48-
OCCA’s contrary decision is not just wrong, it is unreasonable. See Snow, 474
F.3d at 696 (noting that despite § 2254(d)’s high standard, it does not require
“abject deference” on the part of this court); McLuckie, 337 F.3d at 1197 (noting
this court cannot grant habeas relief unless the relevant state court decision is
both wrong and objectively unreasonable). As set out more fully below, the
record in this case reveals an ever-rising tide of coercion ultimately resulting in
five unanimous death sentences. From the initial jury instructions, focused
narrowly on the concept of unanimity; to misconduct on the part of the
prosecutors, designed to mislead the jury about its role in the sentencing process
and the need for unanimity; to the note from the jury singling out a lone juror as
operating outside the law by refusing to concur in a death verdict, a note
demonstrating the jury’s misunderstanding of law consistent with the prosecutors’
misleading closing arguments; to the trial court’s unadorned response that it
lacked the power to remove the lone dissenting juror, a response failing in any
way to correct the jury’s express misunderstanding of its role in the sentencing
process; to the trial court’s guilt-phase-focused Allen charge, reinforcing the need
for unanimity so the “case may be completed”; to the trial court’s discussion with
the jury, undertaken in response to the jury’s wish to return home for the evening,
informing the jury its only options were to deliberate into the night or return to
deliberate in the morning after spending the night at a hotel, the record in this
-49-
case so indicates jury coercion that it was an unreasonable application of
Lowenfield for the OCCA to deny Hooks relief.
a. Initial Second Stage Jury Instructions
Placing the Allen charge in context, as required by Lowenfield, begins by
recognizing that the relevant instructions given by the trial court prior to closing
arguments exclusively discussed the concept of unanimity, even with regard to the
possible non-death sentences. For example, Instruction Number 14 stated as
follows:
In the event you assess the death penalty, your verdict must be
unanimous. You may also return a unanimous verdict of
imprisonment for life without the possibility of parole or
imprisonment for life with the possibility of parole. When you have
reached your verdict, all of you in a body must return it into open
court.
There is, however, no discussion in the instructions of the effect of the jury
failing to reach a unanimous verdict. This court certainly recognizes that such an
instruction is required only in unusual circumstances. See Jones v. United States,
527 U.S. 373, 381-82 (1999) (holding Eighth Amendment does not require trial
courts to instruct jury on consequences of failure to agree on sentence, unless to
fail to do so would affirmatively mislead the jury regarding its role in the
sentencing process). Nevertheless, the failure to so inform the jury is certainly
one of the contextual circumstances bearing on the question of jury coercion in
this particular case. Lowenfield, 484 U.S. at 234 (recognizing that before the case
-50-
was submitted to the jury, the trial court “charged the jury that if it were unable to
reach a unanimous recommendation, the court would impose a sentence of life
imprisonment without the possibility of parole”); Darks v. Mullin, 327 F.3d 1001,
1014 (10th Cir. 2005) (noting inclusion of language consistent with Okla. Stat.
Ann. tit. 21, § 701.11 reduces possibility of coercion flowing from Allen charge).
The absence of such an instruction is particularly meaningful in this case given
the prosecutorial misconduct—misrepresenting the jury’s duty under Oklahoma
law to reach a unanimous verdict—that occurred immediately after the initial
penalty-phase instructions. Jones, 527 U.S. at 381-82.
b. Prosecutorial Misconduct
The concluding line of the trial court’s penalty-phase instructions
admonished the jury as follows: “The law provides that you shall now listen to
and consider the further arguments of attorneys.” The prosecutors, Miller and
Macy, then immediately proceeded to mislead the jury as to its role in sentencing
by informing jurors (1) the jury’s work would be wasted if it failed to reach a
unanimous verdict, (2) defense counsel’s argument that it took the vote of only
one juror to prevent imposition of the death penalty constituted a request for “jury
nullification,” and (3) failure to deliberate in a manner leading to a unanimous
verdict would amount to operating outside the law. Hooks, 19 P.3d at 316. 24
24
The OCCA summarized Miller and Macy’s clear misstatements of law:
(1) juror unanimity is not required in capital sentencing proceedings; (2) the
(continued...)
-51-
Thus, immediately following the jury instructions, which spoke only of
unanimity, the prosecutors engaged in intentional misconduct designed to
misinform the jurors that it is improper for individual jurors to holdout against a
majority vote and thereby prevent a unanimous verdict. 25 There is no doubt the
24
(...continued)
failure to agree is not jury nullification and it does not impede or obstruct
enforcement of the law; and (3) jurors are not to abandon honestly held beliefs to
avoid a less than unanimous verdict. Hooks, 19 P.3d at 316.
25
Footnote 51 of the OCCA’s opinion specifically states that this
misconduct was intentional and calculated to mislead the jury. Hooks, 19 P.3d at
314 n.51 (“The second stage argument here contained several comments the
prosecutors knew to be error, included for the purpose of inflaming the jury’s
passions and encouraging a sentencing verdict based on passion or prejudice
rather than the evidence.”). While the bulk of footnote 51 consists of the
individual views of Judge Chapel, it is unclear whether this specific view is
shared by the majority. The context, extent, and repetition of the second-stage
misconduct of Miller and Macy in this case, together with their history of
misconduct in death penalty cases, confirms the characterizations set out in
footnote 51. “Our past experiences with [these prosecutors] leave us convinced
that [their] ‘inappropriate’ commentary was intentional and calculated.” Duckett
v. Mullin, 306 F.3d 982, 993-94 n.4 (10th Cir. 2002) (discussing at length Macy’s
history of prosecutorial misconduct, including his misconduct in this very case
(citing Hooks, 19 P.3d at 314 n.51)); Paxton v. Ward, 199 F.3d 1197, 1216-18
(10th Cir. 1999) (labeling misconduct on the part of Macy as “deceitful[]”);
Douglas v. Workman, 560 F.3d 1156, 1190 (10th Cir. 2009) (per curiam)
(granting habeas relief on the basis Miller engaged in “deliberate deception of a
court and jurors by the presentation of known false evidence” and “took
affirmative steps, [after the trial was completed], to cover up” his misconduct).
More telling, however, the OCCA itself, a court far more familiar with Macy and
the attorneys from his office, has likewise noted the repetitive and recalcitrant
nature of the misconduct committed by Macy and his attorneys. Hooks, 19 P.3d
at 314 n. 51 (collecting federal habeas cases discussing misconduct); id. at 316-17
& n.55 (collecting OCCA opinions for proposition that Macy’s office consistently
ignored OCCA opinions directing that prosecutors stop engaging in improper
death-phase arguments). As this court has previously noted, “Macy’s persistent
(continued...)
-52-
intentional misconduct on the part of Miller and Macy violated Hooks’s
constitutional rights.
The Supreme Court has held that “the jury must not be misled regarding the
role it plays in the sentencing decision.” Romano v. Oklahoma, 512 U.S. 1, 8
(1994); see also id. at 9 (noting that to establish an Eighth Amendment violation,
“a defendant necessarily must show that the remarks to the jury improperly
described the role assigned to the jury by local law” (quotation omitted));
Caldwell v. Mississippi, 472 U.S. 320, 340 (1985) (applying heightened review to
prosecutorial misconduct because prosecutor sought to mislead jury about “its
role in the capital sentencing procedure”). More specifically, the Court has
likewise indicated that misstatements to the jury regarding the consequences of
deadlock “could give rise to an Eight Amendment problem.” Jones, 527 U.S. at
381-82. This court recently applied Jones in a context analogous to the case at
hand. See Neill, 278 F.3d at 1053-54.
In Neill, the petitioner asserted the trial court’s failure to instruct the jury
on the consequences of deadlock deprived him of his Eighth Amendment rights.
Id. at 1053. Key to the petitioner’s claim was the following isolated misstatement
25
(...continued)
misconduct . . . has without doubt harmed the reputation of Oklahoma’s criminal
justice system and left the unenviable legacy of an indelibly tarnished legal
career.” Duckett, 306 F.3d at 994. In light of the record in this case, the opinion
of the OCCA on direct appeal, and the history of these two prosecutors, the
dissent’s efforts to rehabilitate Miller and Macy and minimize their misconduct,
Dissenting Op. at 9-22, are wholly unconvincing.
-53-
of Oklahoma law on the part of the prosecutor during his closing argument: if the
jury was unable to reach a unanimous verdict, the result would be a retrial. Id. In
rejecting the petitioner’s Eighth Amendment claim, this court noted that following
this isolated misstatement, the prosecutor correctly stated “that if defense counsel
could get one juror to vote against the death penalty, that punishment could not be
imposed.” Id. Furthermore, in the defense’s closing argument, petitioner’s
counsel accurately informed the jury that if a single juror refused to vote for
death, the trial court would declare a deadlock and impose a life sentence. Id.
Finally, in the concluding segment of his closing argument, the prosecutor again
correctly noted there could be no “mistrial” at sentencing and if a single juror
opposed the death penalty, the petitioner would receive a life sentence. Id. Not
surprisingly, in light of that record, this court concluded “the prosecutor’s single
misstatement did not mislead the jury concerning its sentencing role. An
instruction on the consequences resulting from the jury’s failure to reach a
unanimous sentencing decision, therefore, was unnecessary.” Id. at 1053-54
(citing Jones, 527 U.S. at 381-82). 26
26
The district court relied on Neill to conclude Miller’s and Macy’s
misconduct had no impact on the jury’s penalty-phase deliberations because
defense counsel properly described for the jury its role at sentencing during his
closing argument. See supra n.22. Unlike in Neill, however, Miller and Macy
made multiple, intentional misstatements to the jury regarding its role at
sentencing. As part of that misconduct, Miller anticipated defense counsel’s
closing arguments regarding the jury’s proper role at sentencing and told the jury
defense counsel’s arguments amounted to a request for “jury nullification,” an
(continued...)
-54-
Unlike the case in Neill, the prosecutors here engaged in wholesale and
repeated attempts to mislead the jury as to its sentencing role under Oklahoma
law. The OCCA specifically held that Miller’s and Macy’s remarks were wholly
inconsistent with Oklahoma law. Hooks, 19 P.3d at 316; supra n.23 (setting forth
OCCA’s conclusion that Miller and Macy misstated Oklahoma law regarding the
jury’s sentencing role in three key particulars). Thus, it seems apparent Miller’s
and Macy’s misconduct invaded Hooks’s Eighth Amendment rights by suggesting
“jurors should in fact abandon their honestly held beliefs if those beliefs will
result in a less than unanimous verdict.” Hooks, 19 P.3d at 316. By “improperly
describing the role assigned to the jury by local law,” the prosecutors thereby
caused the jury to “feel less responsible than it should for the sentencing
decision.” Romano, 512 U.S. at 9 (quotations omitted).
Nevertheless, the OCCA denied relief on this ground, holding as follows:
“[D]espite [the prosecutors’] erroneous arguments the jury was deadlocked for
several hours. We must conclude the jurors were not misled.” Hooks, 19 P.3d at
26
(...continued)
illegal practice at odds with the very foundations of this country’s legal system.
With this background in mind, it is simply not reasonable to conclude that defense
counsel’s brief statements during closing arguments cured any and all ill effects
flowing from Miller’s and Macy’s intentional misconduct. This was verified
when the jury in this case sent a note to the trial court asserting a single juror was
operating at odds with the law by refusing to change her vote to ensure a
unanimous verdict. Thus, the district court committed a critical legal error in
relying upon Neill and removing from the coercion equation the misconduct on
the part of Miller and Macy.
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316. That ruling amounts to “an unreasonable determination of the facts in light
of the evidence presented” during the penalty phase of Hooks’s trial. 28 U.S.C. §
2254(d)(2). 27 The mere fact the jury remained deadlocked for “several hours”
after the misconduct says very little about the misconduct’s impact. The record
simply reveals that one single juror was unconvinced, at least for a period of time,
27
Both parties identify this determination (i.e., the jury was not misled) as
one of fact subject to review under 28 U.S.C. § 2254(d)(2). It is possible,
however, that the OCCA was instead expressing that Miller’s and Macy’s
misconduct was harmless. As set out below, this court concludes it is
unnecessary to decide whether Hooks is entitled to habeas relief based solely on
the prosecutors’ misconduct because he is entitled to habeas relief on the basis of
his Lowenfield claim, a claim that includes as only a part of its calculus the
misconduct of Miller and Macy. To be clear, this court’s conclusion that the jury
was misled does not, standing alone, entitled Hooks’s to habeas relief. Instead, it
would be necessary to determine whether that misconduct was harmless under one
of the potentially applicable standards of review. See, e.g., Brecht v.
Abrahamson, 507 U.S. 619, 637 (1993) (Applicable standard of review in habeas
“is whether the error had substantial and injurious effect or influence in
determining the jury’s verdict. Under this standard, habeas petitioners . . . are not
entitled to habeas relief based on trial error unless they can establish that it
resulted in actual prejudice.” (quotations and citation omitted)); id. at 638 n.9
(“Our holding does not foreclose the possibility that in an unusual case, a
deliberate and especially egregious error of the trial type, or one that is combined
with a pattern of prosecutorial misconduct, might so infect the integrity of the
proceeding as to warrant the grant of habeas relief, even if it did not substantially
influence the jury’s verdict.”); Duckett, 306 F.3d at 992 (“The Eighth Amendment
requires that sentencing procedures in a capital case be evaluated under a
heightened standard of reliability. We have therefore held that the standard
governing appellate review of closing arguments during the sentencing stage of
capital cases is whether the comments might have affected the sentencing
decision.” (quotation, alteration, and citation omitted)). Because we do not
resolve whether Hooks is entitled to habeas relief solely on the basis of
prosecutorial misconduct, we also need not resolve what standard of review
would apply should the OCCA’s ruling be considered a determination of
harmlessness.
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to abandon her honestly held beliefs in order for the jury to reach unanimity. The
passage of time does not rule out the possibility that other jurors also favored a
life sentence, but acquiesced in a death sentence because they believed holding
out would amount to, in the words of Miller, “impeding or attempting to prevent
the operation or enforcement of the law.”
More importantly, unlike in Neill, the record contains a singularly clear
indication Miller’s and Macy’s misconduct did, in fact, mislead the jury. After
deliberating for several hours, the jury sent a note to the trial court indicating as
follows: (1) it was eleven to one in favor of imposing the death penalty; (2) the
sole holdout juror refused to change her vote “on grounds not related to the law,”
and (3) the eleven jurors favoring death unanimously requested the trial court to
remove the holdout juror and replace her with an alternate. Hooks, 19 P.3d at
308, 312. A review of the entire state court record indicates that the assertion in
the jury note flowed directly from the prosecutors’ misconduct. There is a
complete absence from the trial transcript of any other basis for the jury to
conclude unanimity was the overriding obligation of the jury. Thus, this court
concludes the OCCA’s determination that the jury was not misled by the
prosecutors’ intentional misstatements of law is so at odds with the state court
record as to be unreasonable. 28 U.S.C. § 2254(d)(2). 28
28
Surprisingly, in analyzing whether Miller’s and Macy’s misconduct
misled the jury, the OCCA did not consider the jury’s note. Hooks, 19 P.3d at
(continued...)
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Although Hooks makes a strong argument that he is entitled to habeas relief
solely on the basis of Miller’s and Macy’s misconduct, 29 this court need not
definitively resolve that question. As set out above, it is clear the prosecutors’
misconduct achieved its intended purpose: the jury was misled to believe it was
28
(...continued)
316. This failure to account for the jury’s note in its analysis of prosecutorial
misconduct most likely flows from the OCCA’s rejection, as “pure speculation,”
Hooks’s claim that the jury’s note demonstrated it misunderstood its role at
sentencing. Id. According to the OCCA, because nothing in the trial court’s
instructions mandated the imposition of the death penalty, ipso facto, the jury
could not have been misinformed about its role. Id. This conclusion, whether
one of fact or law, is unreasonable. 28 U.S.C. § 2254(d).
The jury’s note made clear at least eleven jurors were operating under a
mistaken view of Oklahoma law. Those jurors stated that in refusing to change
her vote, the holdout juror was acting in derogation of Oklahoma law. But see
Hooks, 19 P.3d at 316 (“[A]ll twelve jurors do not have to unanimously agree in
capital sentencing proceedings. . . . [T]he failure to agree does not amount to jury
nullification.”). This was precisely the mistaken impression Miller and Macy set
about to instill in the jury. The prosecutors argued the jury had a duty to reach a
unanimous verdict and if any single juror refused to go along, that juror was
engaging in the unlawful practice of “jury nullification.” This misconduct is the
one and only record-based explanation for the misunderstanding reflected in the
jury’s note.
In light of the record in this case, it would certainly have been reasonable
for the OCCA to conclude the jury’s misunderstanding of the law did not flow
from the trial court’s penalty-phase instructions. The OCCA’s follow-up
conclusion, that because the jury’s confusion did not flow from those instructions
it did not exist, however, is inconsistent with the state court record. In
completely discounting the jury’s note from its coercion calculus, the OCCA did
not just err, it reached an unreasonable determination in light of the record before
it. 28 U.S.C. § 2254(d).
29
See Woodson v. North Carolina, 428 U.S. 280, 305 (1976) (holding the
Eighth Amendment requires that sentencing procedures in capital cases be
evaluated under a heightened standard of reliability); Coleman v. Brown, 802 F.2d
1227, 1238-39 (10th Cir. 1986) (same).
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the obligation of a juror holding a minority opinion to abandon that opinion if it
was necessary for the jury to reach a unanimous sentence. The coercion flowing
from this misconduct, when combined with coercion flowing from the trial court’s
Allen charge, undoubtedly coerced the jury’s death sentences. Accordingly, it is
unnecessary to determine whether Miller’s and Macy’s misconduct, standing
alone, entitles Hooks to habeas relief.
c. The First Jury Note
Beyond verifying the impact of the prosecutorial misconduct, the first jury
note has further demonstrative significance to the jury-coercion question. That
first jury note, which disclosed the jury’s numerical division and the eleven-to-
one majority favoring death, commenced a quickly unfolding series of
communications between the jury and the court, culminating in the Allen charge,
the incorrect instruction to a dead-locked jury in an Oklahoma capital case.
In response to the jury’s note requesting removal of the sole holdout juror,
the trial court consulted with defense counsel and the prosecutors. Defense
counsel immediately argued the trial court should dispel the jury’s
misunderstanding about the legality of a juror refusing to vote for the death
penalty by giving the jury the appropriate capital deadlock instruction in OUJI-
CR 4-83, informing the jury the court would impose a life sentence should it
remain unable to reach a unanimous verdict. Cf. Lowenfield, 484 U.S. at 240
(noting petitioner’s failure to object to state court’s jury poll “indicates that the
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potential for coercion argued [on appeal] was not apparent to one on the spot”).
The trial court overruled defense counsel’s request and simply informed the jury
it lacked the power to remedy the situation: “Ladies and gentlemen of the jury,
the law does not authorize me to grant your request. Please continue with your
deliberations.”
The trial court’s failure to rectify the jury’s misunderstanding, by giving
Oklahoma’s capital deadlock instruction as requested by defense counsel, ramped
up the pressure on the lone holdout juror to capitulate and reach a unanimous
verdict. That is, rather than correct the jury’s misunderstanding that the holdout
had a legal obligation to abandon her views for the sake of unanimity, the trial
court’s message served to heighten the frustrations of the jurors by indicating
nothing more than the court was powerless to address the majority jurors’
apparently valid concerns. As indicated by defense counsel’s objection, and
under all the circumstances, the coercive nature of the trial court’s handling of the
jury’s note was readily apparent at that time. Id.
The jury’s note also contributed to an atmosphere of coercion in other
ways. Hooks asserts the jury’s note, which disclosed the panel’s numerical
division and that an eleven-to-one majority favored death, further increased the
pressure on the holdout juror to accede to the majority’s wishes and change her
vote. Id. at 239-41 (recognizing that in certain circumstances, polling of the jury
could be relevant to the question of coercion on habeas review). In the exercise
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of its supervisory powers over federal courts, the Supreme Court has set out a per
se rule: inquiry by a court into a jury’s numerical division is so inherently
coercive it mandates reversal of a conviction. Brasfield v. United States, 272
U.S. 448, 449-50 (1926). A number of courts have held that Brasfield’s per se
rule applies whether the trial court learns of the jury’s numerical division through
polling or through spontaneous disclosure. See, e.g., United States v. Lloyd, 515
F.3d 1297, 1302-03 (D.C. Cir. 2008); Sanders v. Lamarque, 357 F.3d 943, 944
(9th Cir. 2004).
Brasfield’s per se rule does not, however, apply in the habeas context.
Lowenfield, 484 U.S. at 240 n.3. Nevertheless, Brasfield is “instructive as to the
potential dangers of jury polling.” Id. at 240; Gilbert v. Mullin, 302 F.3d 1166,
1175-76 (10th Cir. 2002). In Gilbert, this court concluded a state court’s poll of
the jury prior to, and in concert with, the giving of a Allen charge did not coerce
the jury because: (1) the poll “garnered only information concerning the
numerical division of the jury and carefully avoided eliciting information
concerning the direction in which the jury was leaning; (2) the court never learned
which specific jurors were in the minority; and (3) the poll did not disclose “the
precise numerical division amongst the jurors.” Id. at 1176 & n.5. In this case,
on the other hand, the jury’s note told the court the exact numerical split, the
direction the jury was leaning, and that the eleven jurors in the majority believed
the holdout was illegally refusing to change her vote. That the trial court gave an
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Allen charge within a few minutes of the disclosure of the information that there
was but one holdout against the death penalty certainly bears on the coerciveness
of the Allen charge. Lowenfield, 484 U.S. at 240.
d. The Allen Charge
No more than ten minutes after the trial court told the jury it was without
power to replace the holdout juror with an alternate, the jury sent a second note to
the trial court indicating it was “unable to reach any unanimous sentence.” At a
conference in chambers, the trial court informed the parties it intended to give the
Allen charge set out in OUJI-CR 10-11. See supra n.17 (setting out text of OUJI-
CR 10-11). Macy agreed this was the appropriate course of action. Defense
counsel objected to the giving of OUJI-CR 10-11 as inapplicable to the penalty
phase of a capital trial and, instead, requested that the trial court give the capital
deadlock instruction set out in OUJI-CR 4-83. Lowenfield, 484 U.S. at 240
(noting that presence of defense objection is relevant to appearance of coercion
flowing from giving of Allen charge). The trial court overruled defense counsel’s
objection and instructed the jury consistent with OUJI-CR 10-11.
On direct appeal, the OCCA concluded the trial court erred in giving OUJI-
CR 10-11 to a deadlocked capital jury during penalty-phase deliberations.
Hooks, 19 P.3d at 312. It nevertheless concluded the Allen charge actually given
was not inherently coercive. Id. Hooks asserts the trial court’s failure to give the
correct Oklahoma deadlock instruction weighs heavily in favor of habeas relief.
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It is clear, however, that “federal habeas corpus relief does not lie for errors of
state law.” Estelle v. McGuire, 502 U.S. 62, 67 (1991) (quotation omitted).
Thus, this court’s task is simply to analyze whether the OCCA’s
determination—that the Allen charge actually given was not coercive under the
totality of the circumstances—is an unreasonable application of Lowenfield. 28
U.S.C. § 2254(d)(1). Hooks is certainly correct to note, however, that the absence
of a correct statement to the jury regarding the consequences of failing to reach a
unanimous verdict is relevant to the question of the coerciveness of an Allen
charge. Lowenfield, 484 U.S. at 234; Darks, 327 F.3d at 1012, 1014.
This court has approved an instruction nearly identical 30 to the one given
here. Gilbert, 302 F.3d at 1171-73, 1176 (10th Cir. 2002). In Gilbert, this court
concluded there was nothing inherently coercive in the language of this type of
instruction. Id. at 1174 (citations omitted). In Gilbert, however, the Allen
instruction was not given against a backdrop of misconduct on the part of
prosecutors intentionally designed to convince the jury that holding out against a
30
The only material difference between the Allen instruction in Gilbert and
the one at issue here is that the Gilbert instruction asked the jury to “try one more
time” to reach a unanimous verdict. Gilbert, 302 F.3d at 1173; id. at 1175 (noting
instruction “clearly signal[ed] to the jury it would not be held indefinitely”).
Here, on the other hand, there was nothing to indicate any kind of durational limit
on deliberations. Furthermore, as set out more fully below, the discussions
between the trial court and the jury regarding lodgings for the night certainly
magnified the appearance the trial court expected significant, and perhaps
indefinite, additional deliberation. Thus, the otherwise subtle difference between
the instruction given in Gilbert and the one given here is not without significance,
especially considering the differing contexts.
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majority verdict was an exercise in illegal “jury nullification.” Nor did the Allen
instruction in Gilbert follow a note from the jury disclosing its numerical division
and asking the trial court to remove a juror because she refused to change her
vote to one in favor of the death penalty for a legally illegitimate reason. These
contextual facts mandate a different outcome in this case.
Against this background, the language of the Allen charge given in this
case, though nearly identical to that approved in Gilbert, cannot be considered
non-coercive. In particular, the Allen charge instructed the jury that “[i]f at all
possible, you should resolve any differences and come to a common conclusion
that this case can be completed.” See supra n.17 (emphasis added). Thus, the
Allen instruction suggested the case against Hooks would not be completed in the
absence of unanimity. 31 This suggestion from the trial court itself was a perfect
31
The dissent asserts that the remainder of the trial court’s Allen charge
dissipated any suggestion that only a unanimous verdict would bring the case to
“completion.” Dissenting Op. at 25-26. The problem, of course, is that the
language quoted by the dissent merely admonishes jurors to adhere to their honest
convictions. It does nothing to dispel the notion, drilled into the jurors by Miller
and Macy, that failure to reach unanimity would amount to a gross waste of
judicial resources:
[The jury system], it’s the best system in the world. And it requires,
though, these 12 people, these 12 strangers to come together and
collaborate, discuss, make a decision. The system would actually
grind to a halt. Think about it. It would grind to a screeching halt if
juries didn’t come together and do that.
If we couldn’t depend on 12 citizens to come together and go
in the same direction, then we would never have a verdict. There
would never be a disposition. Defendant[s] would go back to jail and
wait for the next trial and they’d go back to jail and wait for the next
(continued...)
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fit with Miller’s and Macy’s improper closing arguments strongly emphasizing
that if the jury failed to reach a unanimous verdict the court’s, parties’, and jury’s
efforts would be wasted. The prosecutorial misconduct was exacerbated by the
trial court’s refusal to give the explanation in OUJI-CR 4-83 that in the event of
deadlock, the court would impose a life sentence. Cf. Lowenfield, 484 U.S. at 234
(noting as part of contextual analysis that during initial penalty-phase
instructions, trial court informed jury “that if it were unable to reach a unanimous
recommendation, the court would impose a sentence of life imprisonment”);
Darks, 327 F.3d at 1014 (same). This context caused an otherwise proper Allen
instruction to heighten the risks of jury coercion.
For these same reasons, two additional Arney factors also weigh in support
of our conclusion the Allen charge coerced the jury into returning death sentences.
Gilbert, 302 F.3d at 1173 (examining, as part of Arney analysis, whether the
Allen instruction was separated in time from the initial instructions and whether
the instruction was given after a jury expressed it was deadlocked). Giving an
Allen charge separate from and later than other instructions risks “having the jury
give disproportionate weight to the new charge.” Id. at 1174. Likewise, “there is
an inherent danger in giving a supplemental instruction to an apparently
31
(...continued)
trial and no one would ever be acquitted and no one would ever be
sent on to the penitentiary.
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deadlocked jury.” Id. (quotations omitted). 32 The trial court gave the Allen
instruction some four or more hours after the initial penalty-phase instructions.
Although this sequence of events is likely to intensify coercion, it alone is not
enough to suggest undue coercion. Id. Here, however, the trial court’s
Allen charge was given within approximately fifteen minutes of the jury’s
disclosure of its predisposition and numerical vote, a request for removal of a
juror who refused to change her vote to conform with the majority, and the trial
court’s vague response that it was powerless to remove the juror. Most
importantly, the record indicates no impetus for the jury’s communications with
the court other than Miller’s and Macy’s misleading assertions that lack of
unanimity was an unlawful exercise in jury nullification. In this context, it is
appropriate to conclude these two Arney factors strongly indicate coercion, and
such conclusion is not inconsistent with Gilbert.
Finally, Oklahoma notes the jury’s verdict was rendered almost four and
one-half hours after the Allen charge was given by the trial court. Oklahoma
argues this fact fully supports the OCCA’s conclusion that the trial court’s Allen
32
These are not per se rules. For instance, “we have regularly approved the
giving of supplemental Allen charges during jury deliberations.” Gilbert, 302
F.3d at 1174. This court has also noted a trial court “is not required to accept the
judgment of a jury that it is hopelessly deadlocked, and may require it to continue
deliberating, so long as the court says nothing coercive to the jury.” Id.
(quotation omitted). Nevertheless, consideration of these contextual facts is
necessary to resolve the ultimate question whether the trial court’s Allen charge
coerced the death sentences at issue in this case.
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instruction did not coerce the jury’s death sentences in this case. See Lowenfield,
484 U.S. at 420 (noting the jury’s return of a verdict soon after the giving of an
Allen instruction “suggests the possibility of coercion”). This assertion, however,
ignores the subsequent unfolding of significant proceedings in the trial court.
At approximately 7:30 p.m. the jury sent a note to the judge inquiring about
breaking for the evening. Hooks, 19 P.3d at 309. At that point, the jury had
deliberated for approximately seven hours and thirty minutes. “Everyone realized
that the jurors expected to go home, as they had during first stage deliberations,”
and be allowed to return in the morning to resume deliberations. Id. The parties,
however, agreed the jury should remain sequestered until the conclusion of
penalty-phase deliberations. Id. The trial court informed counsel it had reserved
hotel rooms for the jury in case jurors desired to break for the evening and
proposed informing the jurors of this fact prior to their resumption of
deliberations. Id. Although defense counsel did not object to such a course of
action in the abstract, he requested that the trial court first inquire of the jurors
whether they were at an impasse. Id. The trial court refused. Instead, it
informed the jury “motel rooms were reserved should the jurors care to break for
the evening and resume deliberations the next day.” Id. The trial court noted
“jurors were free to continue deliberations into the night, but needed to decide
whether to use the motel rooms by 10:30 p.m.” Id. The trial court finished by
informing the jury that until the completion “of this proceeding, I cannot release
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you to go to your respective dwellings.” Id. Finally, without admonishing the
jurors not to abandon their honestly held beliefs, the trial court released the jurors
for further deliberations. Id. at 309-10. Forty minutes later, the jury returned a
verdict of death on each of the five counts.
The district court’s logistical instructions concerning their further
deliberations increased the pressure on the jury to reach a unanimous verdict. No
matter their technical accuracy, 33 the clear import of those instructions was that
the jury must to continue to deliberate, perhaps indefinitely, either through the
night or the next morning after a night of sequestration. Miller and Macy, of
course, had previously led the jury to believe that failure to reach a unanimous
verdict would result in an enormous waste of judicial resources because the
penalty phase would have to be retried. Likewise, the trial court’s Allen charge,
preceded immediately by the pointed communications between the jury and the
court concerning the holdout juror, significantly amplified the impact of Miller’s
33
The OCCA held the trial court’s statement regarding sequestration was
“an accurate statement of law—the jury was sequestered and jurors could not be
separated until they either reached a verdict or an impasse was declared.” Hooks,
19 P.3d at 310. The problem, of course, was that Miller and Macy had actively
misled the jury regarding the consequences of the failure to reach unanimity,
misinforming the jury it must reach a unanimous sentence reflecting the majority
view to prevent the waste of resources that would accompany a retrial. With that
misconduct as background, the trial court then consistently refused to accurately
instruct the jury that a lack of unanimity would effectively end the case and result
in life sentences. Finally, the trial court’s logistical instructions implied that
deliberations might very well continue indefinitely.
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and Macy’s misconduct by asking the jury to reach unanimity “that the case could
be completed.” See supra n.17.
Against this backdrop, in response to a note from the jury indicating it
would like to return home for an evening break, the trial court simply indicated
the jury should continue to deliberate, at its own pace, either into the night or the
next morning after being sequestered in a hotel. Hooks, 19 P.3d at 309. It failed
to remind the jurors “not to abandon their honestly held beliefs,” id. at 310, and
did not provide any signal to the jury that it would be asked to do anything other
than deliberate indefinitely until it reached unanimity. Cf. Gilbert, 302 F.3d at
1172, 1175 (noting potential for coercion reduced where trial court informed jury
as part of Allen charge that it “was conscious of the hour” and “would like for
[the jury] to try one more time”). Instead, the trial court told the jury that if it
wanted motel rooms, it had to inform the court by 10:30 that evening. Hooks, 19
P.3d at 309. Thus, the trial court’s logistical instructions heightened an already
coercive atmosphere, resulting in the jury returning five death sentences forty
minutes later. It is this forty-minute period, rather than the several-hour period
following the Allen charge, that is the appropriate focus to measure the likelihood
of coercion. In light of all that happened previously, the only reasonable
conclusion is that the short time period between the trial court’s discussion with
the jury over sequestration and the return of the death sentences strongly indicates
the death sentences in this case were coerced. Lowenfield, 484 U.S. at 240.
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3. The Dissent
a. AEDPA Deference
The dissent asserts this court’s decision to grant Hooks habeas relief
somehow labels the OCCA, the federal district court judge, and the dissenter
himself as unreasonable. Dissenting Op. at 3 (“At the risk of joining the OCCA
and the district court in being labeled unreasonable in the assessment of
Constitutional imperatives in this case, I disagree.”); id. at 26 (“I am not
convinced the OCCA, which studiously inquired, has passed beyond the edge of
reasonableness.”). This assertion demonstrates a deep and fundamental
misunderstanding of the AEDPA’s standard of review. The Supreme Court has
made it abundantly clear that AEDPA’s “unreasonable application” prong calls on
this court to undertake an objective assessment of the state court decision, not a
subjective assessment of the views of the judges on the relevant state court (or,
for that matter, the views of individual federal judges).
There remains the task of defining what exactly qualifies as an
“unreasonable application” of law under § 2254(d)(1). The Fourth
Circuit held in [Green v. French] that a state-court decision involves
an “unreasonable application of . . . clearly established Federal law”
only if the state court has applied federal law “in a manner that
reasonable jurists would all agree is unreasonable.” [143 F.3d 865,
870 (4th Cir 1998)]. The placement of this additional overlay on the
“unreasonable application” clause was erroneous. . . .
Defining an “unreasonable application” by reference to a
“reasonable jurist,” however, is of little assistance to the courts that
must apply § 2254(d)(1) and, in fact, may be misleading. Stated
simply, a federal habeas court making the “unreasonable application”
inquiry should ask whether the state court’s application of clearly
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established federal law was objectively unreasonable. The federal
habeas court should not transform the inquiry into a subjective one
by resting its determination instead on the simple fact that at least
one of the Nation’s jurists has applied the relevant federal law in the
same manner the state court did in the habeas petitioner’s case. The
“all reasonable jurists” standard would tend to mislead federal habeas
courts by focusing their attention on a subjective inquiry rather than
on an objective one.
Williams v. Taylor, 529 U.S. 362, 409-10 (2000). Thus, AEDPA mandates that
this court focus only on the decision before the court on habeas review, not on
whether the individual judges on the relevant state court are generally reasonable
individuals. 34 Likewise, to the extent it asserts this court should deny habeas
relief because it and the district court judge disagree with the outcome, the dissent
again demonstrates a deep and fundamental misunderstanding of AEDPA’s
standard of review. The Williams court specifically rejected such a standard as
embodying an improper subjective standard. Id. at 410 (rejecting Fifth Circuit’s
34
If that were the question, no petitioner would ever be entitled to habeas
relief. This court has no doubt that the state court judges in Oklahoma, Colorado,
Kansas, New Mexico, Wyoming, and Utah are eminently reasonable individuals
and that each and every one of them is attempting to do justice in all cases that
come before them. Nevertheless, reasonable judges make mistakes sometimes,
even big, unreasonable mistakes. In those situations, the Supreme Court has not
hesitated to grant habeas relief. See, e.g., Abdul-Kabir v. Quarterman, 550 U.S.
233, 259 (2007) (concluding Texas Court of Criminal Appeals’ resolution of
petitioner’s claim was not a reasonable application of Supreme Court precedent);
Miller-El v. Dretke, 545 U.S. 231, 265 (2005) (concluding Texas state court
factual finding was unreasonable); Wiggins v. Smith, 539 U.S. 510, 527 (2003)
(holding that the “Maryland Court of Appeals’ application of Strickland’s
governing legal principles was objectively unreasonable”).
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standard which denied habeas relief as long as any one judge on three-judge panel
was unwilling to grant habeas relief).
As noted by the Supreme Court, “[t]he term ‘unreasonable’ is no doubt
difficult to define.” Id. It is certainly not unusual or untoward that individual
members of a panel of judges would reach different conclusions as to the whether
a state court decision is an unreasonable application of clearly established federal
law. That is particularly true in this difficult case. What is unusual and wrong
after Williams is to transform the inquiry into a subjective one, differentiating
jurists as “reasonable” and “unreasonable.” In granting Hooks habeas relief, this
court is well aware of the costs involved. See Dissenting Op. at 28-29 (noting
difficulties Oklahoma might encounter in attempting to retry the penalty phase of
Hooks’s trial). We cannot, however allow that consideration to deflect this court
from its duty to grant habeas relief in an appropriate case. See supra note 34
(collecting cases in which the Supreme Court has granted habeas relief under the
highly deferential AEDPA standards of review).
b. Merits
In asserting Hooks is not entitled to habeas relief as to his death sentences,
the dissent employs a piece-by-piece analysis, arguing the individual instances of
misconduct and error during the penalty phase are insufficient, standing alone, to
conclude the OCCA’s resolution of Hooks’s jury coercion claim amounts to an
unreasonable application of Lowenfield. Unfortunately, the dissent fails in the
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end to step back and take a look at the whole. In so doing, the dissent fails to
remain true to Lowenfield, which mandates that in resolving the question of
whether a jury verdict was coerced, reviewing courts must consider the Allen
charge “in its context and under all the circumstances.” 484 U.S. at 237
(quotation omitted).
The bulk of the dissent is directed toward an effort to dilute the importance
of the prosecutors’ misstatements regarding jury unanimity and nullification. The
dissent asserts those statements were nothing more than, at most, minor
misstatements of the law. Dissenting Op. at 9-22. The OCCA certainly does not
share the dissent’s characterization of Miller’s and Macy’s conduct during penalty
phase closing arguments. Hooks, 19 P.3d at 314 (“Prosecutors . . . engaged in
egregiously improper argument which we have often condemned.”); id. at 316
(“The closing arguments complained of here suggest jurors should in fact abandon
their honestly held beliefs if those beliefs will result in a less than unanimous
verdict. These misstatements of law could have deprived Hooks of his right to a
properly instructed capital jury, and come close to requiring relief even if the
other comments did not render the proceedings as a whole fundamentally
unfair.”). 35 The dissent’s weak protestations to the contrary, it simply cannot be
35
In his dissent, Judge O’Brien asserts the OCCA’s unanimous concerns
about Miller’s and Macy’s misconduct were “overwrought.” Dissenting Op. at
21. The irony of the dissent’s assessment speaks for itself. The dissent further
asserts that our reading of the prosecutors’ statements is “selective.” Dissenting
(continued...)
-73-
debated that the prosecutors’ remarks to the jury regarding jury nullification and
the need for unanimity misinformed the jury of its proper role under Oklahoma’s
death penalty scheme. Hooks, 19 P.3d at 316. 36
The dissent’s failure to recognize the import of the prosecutors’ misconduct
leads it to similarly minimize additional aspects of the penalty phase indicative of
35
(...continued)
Op. at 10. It is the dissent, however, that in trying to rehabilitate the prosecutors’
clearly improper comments on jury unanimity and nullification adopts a selective
and stilted view of the record. Miller’s and Macy’s improper remarks about jury
unanimity and nullification certainly do not stand alone. Hooks, 19 P.3d at 315
(holding prosecutors misstated the law as applied to Oklahoma’s heinous,
atrocious, or cruel aggravating circumstances and, additionally, encouraged the
jurors to decide the question on the basis or sympathy for the victims); id.
(holding prosecutors erroneously argued to the jury the victims were kidnaped,
thereby “dangerously skirt[ing] the border of impropriety); id. at 316-17 (stating
that prosecutors, in direct defiance of the directions of the OCCA, had utilized the
“infamous ‘three hots and a cot’” argument and had exhorted the jury to “‘pray if
you want to’”). Nor can it be debated that Miller’s and Macy’s misconduct was
intentional. As detailed at length above, these prosecutors have a long and
infamous history of engaging in misconduct. See supra n.25. The OCCA itself
noted that Miller and Macy continued to make improper arguments to the jury in
direct contravention to the directions of the OCCA. Hooks, 19 P.3d at 317. A
review of the entire record in this case reveals that Miller’s and Macy’s
exhortations to the jury that failure to reach unanimity would amount to nothing
other than jury nullification was a plain, intentional, and ultimately successful
attempt to subvert the jury’s understanding of its proper role during death penalty
deliberations.
36
The dissent asserts that, in any event, the majority has engaged in “over
reading of Supreme Court precedent” by relying on the Supreme Court’s decision
in Romano v. Oklahoma, 512 U.S. 1 (1994). Dissenting Op. at 17 & n.10. What
the dissent fails to acknowledge, however, is the Supreme Court itself has
recognized that the principles set out in Romano are implicated when a jury is
misled as to the consequences of deadlock. Jones v. United States, 527 U.S. 373,
381-82 (1999).
-74-
coercion. For instance, the dissent asserts the jury’s note requesting the removal
of a juror is minimally probative because it could be related to matters other than
the prosecutors’ misstatements of the jury’s role. Dissenting Op. at 24. The
dissent engages in pure speculation in asserting there may have been benign
explanations for the jury’s request to remove a juror who refused to a death
sentence. Id. As noted at length above, however, such speculation is utterly at
odds with the record in this case. See supra at 56-57. The record reveals one,
and only one, concrete basis upon which a majority of the jury could conclude it
was improper for a single juror to refuse to acquiesce in a death sentence:
Miller’s and Macy’s improper comments on jury unanimity and nullification.
Similarly, in assessing the coercive nature of the trial court’s Allen charge
in this particular case, the dissent does not even consider the timing of the charge
(no more than ten minutes after the jury asked the court to remove the lone
dissenting juror and immediately after a protestation of deadlock) or the fact the
jury returned a verdict no more than forty minutes after it was informed it would
be sequestered for the evening if it was unable to quickly return a verdict. 37 See
supra 63-66. The failure to account for these contextual circumstances in
37
Instead, the dissent asserts “[t]here is no reason to think any juror would
assume deliberations would be interminable.” Dissenting Op. at 26. In support of
this assertion the dissent notes the jury deliberated for thirteen hours during the
guilt phase but only eight during the penalty phase. Id. Of course, the guilt phase
lasted twelve days, while the penalty phase, including opening and closing
arguments, lasted no more than a couple of hours.
-75-
analyzing whether the OCCA’s decision was an unreasonable application of
Lowenfield, especially in light of the failings of the dissent identified above,
seriously undermines the dissent’s criticism of the decision to grant Hooks habeas
relief as to his death sentences.
4. Conclusion
This court is precluded from issuing the writ simply because it determines
in its independent judgment that the OCCA applied Lowenfield erroneously or
incorrectly. McLuckie, 337 F.3d at 1197. “Rather, we must be convinced that the
application was also objectively unreasonable.” Id. This, however, is one of
those rare cases where the record so clearly and unequivocally demonstrates jury
coercion that the OCCA’s contrary conclusion is unreasonable. Cf. Early v.
Packer, 537 U.S. 3, 11 (2002) (per curiam) (reversing grant of habeas relief on
jury coercion claim because it was reasonable to conclude on the record the jury
had not been coerced).
All aspects of the penalty phase, excluding only the presentation of
evidence, emphasized the concept of jury unanimity. This emphasis began with
the initial penalty-phase instructions and concluded with the Allen charge, the
incorrect instruction for a deadlocked jury in an Oklahoma capital case.
Sandwiched between the initial instructions and the Allen charge was even more
communication about jury unanimity. Miller and Macy engaged in active
prosecutorial misconduct that went to the very heart of the jury’s understanding
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of its role at sentencing. The obvious effect of this misconduct, as demonstrated
by the jury’s first note to the trial court, was that the jury believed it was
unlawful to maintain an honestly held position if to do so would prevent the jury
from reaching a unanimous verdict. The trial court’s Allen charge fifteen minutes
later served to seriously exacerbate coercion by failing to inform the jury of the
actual sentencing consequences of deadlock. The Allen charge itself magnified
the prosecutorial misconduct by reaffirming that the jury should work in earnest
to reach a unanimous verdict so the case could be “completed.” Thus the jury,
infected with the concept that absent unanimity a retrial would occur and troubled
by its lack of unanimity, was never told the trial court would impose a life
sentence in the event of deadlock. These facts, when combined with the trial
court’s inartful responses to the first note from the jury and the jury’s request to
return home for the evening, compel the conclusion the death sentences were
coerced and require relief under Lowenfield. This is especially true given the
heightened entitlement of a defendant facing the death penalty to an uncoerced
verdict of the jury. Lowenfield, 484 U.S. at 241; Kyles v. Whitley, 514 U.S. 419,
422 (1995) (holding a federal habeas court’s “duty to search for constitutional
error with painstaking care is never more exacting than it is in a capital case”
(quotation omitted)). Failure to grant relief on this record would amount to
nothing more than “abject deference” to the decision of the OCCA, something to
-77-
which no state court is entitled under AEDPA. Snow, 474 F.3d at 696 (quotation
omitted).
VI. CONCLUSION
The district court’s denial of habeas relief on the five murder convictions is
AFFIRMED. That part of the district court’s order denying habeas relief on the
five death sentences is, however, REVERSED. The matter is REMANDED to
the district court for the issuance of an order consistent with this opinion.
-78-
07-6152, Hooks v. Workman
O’BRIEN, J., concurring and dissenting.
After a twelve day trial and thirteen hours of deliberation, an
Oklahoma jury convicted Danny Hooks of five counts of first degree
murder for the brutal slayings of five women. After a one day sentencing
hearing and approximately eight hours of deliberation, the jury sentenced
him to death on each count. After a thorough review of the trial record and
the record of state post conviction proceedings the Oklahoma Court of
Criminal Appeals (OCCA) unanimously affirmed the convictions and death
sentences. After careful consideration of the record, the federal district
court denied habeas relief. I join the majority opinion in denying habeas
relief on the guilt phase issues, but respectfully dissent from its conclusion
that the five death sentences were constitutionally infirm.
The majority opinion is studious and thorough. It convincingly
demonstrates that the OCCA may have erred in considering the ultimate
issue, whether the jury’s verdict was coerced. Were this case here on
direct review I could comfortably join. But it is not.
The decisions of the OCCA are entitled to substantial deference. The
Supreme Court has made that abundantly clear, particularly of late, by
repeatedly reversing courts of appeals for over-reading its precedents.
Substantial deference does not mean abject deference; I fully understand.
Such labeling may have emotional appeal, but it does not inform the
debate. The touchstone of habeas review in this case is the reasonableness
of the OCCA’s decisions. That is my focal point; I have neither said nor
implied that the general reasonableness (or reputation) of any judge or
court is in play. And my purpose is not to “rehabilitate” the prosecutors.
The OCCA has clearly said the prosecutors’ arguments were out of bounds
and amounted to prosecutorial misconduct. But it also unanimously held,
correctly in my view, that their remarks did not so poison the well so as to
deny Hooks a fair sentencing hearing. The majority studiously avoids
saying the OCCA unreasonably applied federal law in so concluding, but
then it goes to great length in accusing the prosecutors of sowing the
devil’s seed and reaping the harvest of one lost soul. On that narrow point,
if Supreme Court precedent is being unreasonably applied it comes from
the hand of the majority, not the OCCA.
The majority identifies no violation of federal law in the instruction
to the jury, initially or during deliberations, and the trial judge’s possible
mismanagement of the jury may deserve criticism but is not, by itself, a
basis for habeas relief. Unless prosecutorial misconduct clearly and
irretrievably mislead jurors and infected the jury’s deliberations the
majority’s reason for affording habeas relief fails, even under its
accumulation theory; not because it is wrong but because, in a broad view
of the facts, the OCCA’s contrary conclusion (no jury coercion) is not
unreasonable.
- 2 -
While acknowledging deference is due to state judicial decisions the
majority says “The deference accorded [the OCCA] decision . . . is not
abject, and the record in this case so overwhelmingly demonstrates the
jury’s death sentences were coerced that the OCCA’s contrary decision is
not just wrong, it is unreasonable. See Snow, 474 F.3d at 696 (noting that
despite § 2254(d)’s high standard, it does not require ‘abject deference’ on
the part of this court, . . .)” Majority Op. at 50-51. After listing the
events it views as “an ever-rising tide of coercion” it concludes “the record
in this case so indicates jury coercion that it was an unreasonable
application of Lowenfield [v. Phelps, 484 U.S. 231 (2008)] for the OCCA
to deny Hooks relief.” Id. at 52. Strong stuff. At the risk of joining the
OCCA and the district court in being labeled unreasonable in the
assessment of Constitutional imperatives in this case, I disagree.
I.
I start by charting our limited role in habeas cases, such as this. My
understanding of it apparently differs, at least in application, from that of
the majority. The Supreme Court has explained how the sails should be
trimmed:
Th[e] question is not wh[at] the trial judge should have [done.]
It is not even whether it was an abuse of discretion for her to
have done so -- the applicable standard on direct review. The
question under AEDPA is instead whether the determination of
the [State] Supreme Court . . . was “an unreasonable
application of … clearly established Federal law.”
§2254(d)(1).
- 3 -
We have explained that “an unreasonable application of federal
law is different from an incorrect application of federal law.”
Indeed, “a federal habeas court may not issue the writ simply
because that court concludes in its independent judgment that
the relevant state-court decision applied clearly established
federal law erroneously or incorrectly.” Rather, that
application must be “objectively unreasonable.” This
distinction creates “a substantially higher threshold” for
obtaining relief than de novo review. AEDPA thus imposes a
“highly deferential standard for evaluating state-court rulings,”
and “demands that state-court decisions be given the benefit of
the doubt.”
Renico v. Lett, --- S. Ct. ---, No. 09-338, 2010 WL 1740525, at *5 (May 3,
2010) (citations omitted).
It has repeatedly emphasized that in implementing the Antiterrorism
and Effective Death Penalty Act of 1996 (AEDPA) a federal court may
disturb a state-court ruling only when the law being applied is “clearly
established” and the application of that “clearly established” law is
unreasonable. 1 “[The] Court has held on numerous occasions that it is not
an unreasonable application of clearly established Federal law for a state
court to decline to apply a specific legal rule that has not been squarely
established by this Court.” Knowles v. Mirzayance, 129 S. Ct. 1411, 1419
(2009) (quotations omitted); see also Wright v. Van Patten, 552 U.S. 120,
126 (2008) (per curiam) (“Because our cases give no clear answer to the
1
The phrase “clearly established Federal law, as determined by the
Supreme Court of the United States . . . refers to the holdings, as opposed
to the dicta, of [the] Court’s decisions as of the time of the relevant state-
court decision.” Williams v. Taylor, 529 U.S. 362, 412 (2000).
- 4 -
question presented, . . . it cannot be said that the state court unreasonably
applied clearly established Federal law.”) (quotations and alterations
omitted); Schriro v. Landrigan, 550 U.S. 465, 478 (2007) (Supreme Court
had never addressed “a situation in which a client interferes with counsel's
efforts to present mitigating evidence . . . .”); Carey v. Musladin, 549 U.S.
70, 76 (2006) (“This Court has never addressed a claim that such private-
actor courtroom conduct was so inherently prejudicial that it deprived a
defendant of a fair trial.”): Early v. Packer, 537 U.S. 3, 11 (2002) (“Even
if we agreed with the Ninth Circuit majority . . . that there was jury
coercion here, it is at least reasonable to conclude that there was not,
which means that the state court’s determination to that effect must
stand.”).
In Mirzayance, the Court reviewed the Ninth Circuit’s conclusion
that, to be of effective assistance to a capital defendant, counsel must
pursue what he reasonably believes to be a futile defense because there was
nothing to lose by doing so. Bewildered by such an expansive reading of
Strickland, the Supreme Court reversed, saying: “This Court has never
established anything akin to the Court of Appeals’ ‘nothing to lose’
standard for evaluating Strickland claims.” Mirzayance, 129 S. Ct. at
1419. Mirzayance thus punctuates the key requirement of the AEDPA, 28
U.S.C. § 2254(d)(1) — a federal court may not grant a state prisoner’s
habeas application unless the relevant state-court decision “was contrary
- 5 -
to, or involved an unreasonable application of, clearly established Federal
law, as determined by the Supreme Court of the United States.” Id. at
1418 (quotations omitted).
The rigor of that requirement was reinforced again this term in
Berghuis v. Smith, -- U.S. --, 130 S. Ct. 1382, 1392 (2010) (“[O]ur Duren
decision hardly establishes - no less ‘clearly’ so - that Smith was denied
his Sixth Amendment right to an impartial jury drawn from a fair cross
section of the community.”) 2 and in Thaler v. Haynes, -- U.S. --, 130 S.
Ct. 1171, 1175 (2010) (“Accordingly, we hold that no decision of this
Court clearly establishes the categorical rule on which the Court of
Appeals appears to have relied, and we therefore reverse . . . .”). 3 Our
2
In Berghuis, the Court reversed the Sixth Circuit’s determination
that the Michigan Supreme Court had unreasonably applied Duren v.
Missouri, 439 U.S. 357 (1979), when it rejected the defendant’s argument
that African-Americans had been systematically excluded from the jury
pool. The Court stated: “As the Michigan Supreme Court correctly
observed, . . . neither Duren nor any other decision of this Court specifies
the method or test courts must use to measure the representation of
distinctive groups in jury pools.” Berghuis, 130 S. Ct. at 1393. Because
the Michigan court’s ruling that Smith had failed to prove a systematic
exclusion was not unreasonable, “the Sixth Circuit had no warrant to
disturb it.” Id. at 1388.
3
In Thaler, “the question [was] whether any decision of th[e] Court
‘clearly establishes’ that a judge, in ruling on an objection to a peremptory
challenge under Batson v. Kentucky, . . . must reject a demeanor-based
explanation for the challenge unless the judge personally observed and
recalls the aspect of the prospective juror’s demeanor on which the
explanation is based.” 130 S. Ct. at 1172 (citation omitted). “Batson
requires a judge ruling on an objection to a peremptory challenge to
- 6 -
task is to first look for “a specific legal rule” that has been “squarely
established” by the Supreme Court. Mirzayance, 129 S. Ct. at 1419. The
majority says Lowenfield established such a rule. Let’s see.
Lowenfield claimed the trial court violated his Constitutional rights
by giving an “Allen” jury charge and polling the jury. The Supreme Court
said:
We hold that on these facts the combination of the polling of
the jury and the supplemental instruction was not “coercive” in
such a way as to deny petitioner any constitutional right. By so
holding we do not mean to be understood as saying other
combinations of supplemental charges and polling might not
require a different conclusion. Any criminal defendant, and
especially any capital defendant, being tried by a jury is
entitled to the uncoerced verdict of that body.
Lowenfield, 484 U.S. at 241. The majority seizes on the last sentence as
the yardstick by which the OCCA’s treatment of this case must be
measured. But an entitlement to an “uncoerced verdict” is hardly a
specific legal rule. The sentence is so general as to offer no guidance
beyond the specific holding dictated by the facts of that case — jury
undertake a sensitive inquiry into such circumstantial and direct evidence
of intent as may be available. . . . This general requirement however, . . .
did not clearly establish the rule on which the Court of Appeals’ decision
rests.” Id. at 1174 (quotation and citation omitted). Batson noted the need
for a judge ruling on an objection to a peremptory challenge to “tak[e] into
account all possible explanatory factors in the particular case.” Batson v.
Ky., 476 U.S. 79, 95 (1986) (quotation omitted). But Batson plainly did
not go further and hold that a demeanor-based explanation must be rejected
if the judge did not observe or cannot recall the juror’s demeanor. Id.
- 7 -
polling and an Allen charge in that case did not amount to coercion. 4 As to
what does constitute jury coercion, Lowenfield is no more revealing than
saying a defendant is entitled to effective assistance of counsel. Strickland
v. Washington, 466 U.S. 668 (1984). But unlike Strickland and it’s
progeny, which at least provide guidance for its application, 5 Lowenfield,
establishes nothing more than a general (perhaps merely aspirational)
principle without a hint as to how courts are to determine whether a
Constitutional violation occurred. When such a general standard is
4
The facts in Lowenfield are, admittedly, less unsettling than these,
but nothing in that decision suggests its unique facts establish a floor for
future reasonableness determinations, as the majority implies.
5
A convicted defendant’s claim that counsel's assistance was
so defective as to require reversal of a conviction or death
sentence has two components. First, the defendant must show
that counsel's performance was deficient. This requires
showing that counsel made errors so serious that counsel was
not functioning as the ‘counsel’ guaranteed the defendant by
the Sixth Amendment. Second, the defendant must show that
the deficient performance prejudiced the defense. This requires
showing that counsel’s errors were so serious as to deprive the
defendant of a fair trial, a trial whose result is reliable. Unless
a defendant makes both showings, it cannot be said that the
conviction or death sentence resulted from a breakdown in the
adversary process that renders the result unreliable.
Strickland, 466 U.S. at 687. And “it is the responsibility of the courts to
determine the nature of the work that a defense attorney must do in a
capital case in order to meet the obligations imposed by the Constitution.”
Bobby v. Van Hook, 130 S. Ct. 13, 20 (2009) (J. Alito concurring) (“I see
no reason why the ABA Guidelines should be given a privileged position in
making that determination.”).
- 8 -
involved, as in Strickland analysis, “a state court has even more latitude to
reasonably determine that a defendant has not satisfied that standard.”
Mirzayance, 129 S. Ct. at 1420; see also Lett, 2010 WL 1740525 at *5
(“This type of general standard triggers another consideration under
AEDPA . . . the nature of the relevant rule that the state court must
apply.”) (quotations omitted); Yarborough v. Alvarado, 541 U.S. 652, 664
(2004) (“[E]valuating whether a rule application was unreasonable requires
considering the rule’s specificity. The more general the rule, the more
leeway courts have in reaching outcomes in case-by-case
determinations.”). Our review of the OCCA’s decision in this case should
be “doubly deferential,” Mirzayance, 129 S. Ct. at 1420, since no specific
violation of the U.S. Constitution is identified.
II.
The keystone of the majority’s cascading-errors-inescapably-lead-to-
coercion analysis 6 is the prosecutors’ “misstatements of law.” And the
label course 7 consists of a series of suppositions — 1) the jury was actually
6
Such an approach avoids cumulative error analysis wherein specific
errors of Constitutional dimension are first identified and the cumulative
effect of those identified errors are then considered (factors not amounting
to error are excluded from the analysis). See United States v. Rivera, 900
F.2d 1462, 1470 (10th Cir.1990) (en banc) (“a cumulative-error analysis
aggregates only actual errors to determine their cumulative effect. ”).
7
The course of bricks forming an arch and tying into the keystone.
See http://www.gobrick.com/BIA/technotes/t31.htm (last visited May 11,
- 9 -
misled about the need for unanimity in applying mitigating facts to the
ultimate decision (even though the jury instructions were abundantly clear
and correct on the point), 2) the jury’s ambiguous note to the court
necessarily exposed juror confusion, and 3) there is a clear cause and
effect relationship between the actions of the prosecutors and the presumed
jury confusion. According to this theory, because the jury’s possible
misunderstanding went uncorrected during the jury deliberation process,
the verdict was coerced. The OCCA saw it differently.
To decide whether the OCCA’s decision to the contrary is
“objectively unreasonable,” or even wrong, we must take a close look at
the events, especially the prosecutors’ arguments, in context. The majority
does so selectively, and thus fails to provide necessary context. It decries
Prosecutor Miller’s remarks, that it is not easy “asking 12 strangers that
don’t know each other to come into the room here and listen to all of this
and end up with unanimity going in the same direction.” Majority Op. at
34. But at that point, Miller was recalling for the jurors their guilt phase
deliberations and urging them to continue the deliberative process in the
same spirit. Because the closing arguments are critical to the majority’s
coercion theory, a more complete airing is necessary. Miller said:
Because you all play a role in this. It’s a deliberative process.
2010).
- 10 -
That’s why we have 12. That’s why we ask you to deliberate.
Because it allows the world, a rational thinking world anyway
to know with great certainty that at least within our human
capabilities everything has been done and everything has been
talked about to come to a fair conclusion. Fair to everyone.
And that’s what you all did.
Now it is no easy task and we all recognize it. It is certainly
nothing easy about asking 12 strangers that don’t know each
other to come into the room here and listen to all of this and
end up with unanimity going in the same direction. It’s a
tremendously difficult process and we know that.
But again, it’s the best system in the world. And it requires,
though, these 12 people, these 12 strangers to come together
and collaborate, discuss, make a decision. The system would
actually grind to a halt. Think about it. It would grind to a
screeching halt if juries didn’t come together and do that.
If we couldn’t depend on 12 citizens to come together and go in
the same direction, then we would never have a verdict. There
would never be a disposition. Defendant’s [sic] would go back
to jail and wait for the next trial and they’d go back to jail and
wait for the next trial and no one would ever be acquitted and
no one would ever be sent on to the penitentiary.
So what you went through the last few days is exactly what
everyone that sits in the chairs goes through, and fortunately,
by far and away, the great majority come to a decision that we
all can live with and justice can be done now that is your role.
That’s what we want you to do.
As you each agreed in voir dire, every single one of you would
not be sitting here unless you agreed in unanimity that the
defendant was guilty then each of you said you would fully and
fairly consider all three possible punishments not to the
exclusion of any but all three. Now is that time.
But you can’t even do that yet. You couldn’t even do that
because there are so many systems within this system to make
sure the defendant is protected. You couldn’t even do all three
unless the state could first prove that at least one of the
statutory aggravators existed. There are eight of them and
we’ve alleged six.
- 11 -
(Tr. of Proceedings, Stage II, Vol. IX at 2021-22) (emphasis added).)
He then started talking about the six aggravating factors the state had
alleged (the instructions clearly informed the jurors that the state was
obligated to prove each aggravator beyond a reasonable doubt to their
unanimous satisfaction). Miller claimed the state had proved all six
aggravators and started detailing the proofs. As he got to the fourth
aggravator he digressed to speak of the time and effort the state spent to
insure a fair trial for Hooks and contrasted Hooks’s unceremonious
execution of the victims. He commented about how we afford such rights
to criminal defendants because it is the law. He then made the jury
nullification remarks condemned by the majority.
Now I suggest that Mr. Box will probably say something to the
affect that someone on this jury could hold up a decision. He
will likely tell you that it just takes one person to stop all this.
That is such a common argument down here that it’s got a
name. It’s called jury nullification.
Nullification means an action impeding or attempting to
prevent the operation or enforcement of the law. Websters.
Nullification means an action impeding or attempting to
prevent the operation of the law.
In other words, to nullify a jury, a jury’s job, a jury’s efforts
really requires only convincing one or two people to cripple it,
to stop it. And while I don’t want to beat this down I have got
to tell you one more time that that’s not what we’re about.
This system, and I remind you, is about deliberation. To do
otherwise eviscerates the system. It cuts it up literally. It cuts
it up. The very law that we live by. The 12 of you must
resolve this case, all 12, I suggest.
Now you worked through in stage one and I asked you to all,
- 12 -
every one of you give it equal vigor. Give it more vigor, if
necessary, to work through it now. Decide what’s appropriate
for him.
(Id. at 2028.) Immediately after those words he discussed the fifth
aggravator (committing these crimes while being a parole absconder) and
then moved on to the continuing threat aggravator. His statements
regarding “jury nullification” 8 were made in the middle of and, to my
lights, in connection with his argument about proving aggravators. It
seems he was arguing that no juror should ignore the obligation to
deliberate with respect to aggravating factors because unanimity was
required as to each before it could be considered in the ultimate calculus.
And with respect to finding aggravators, individual jurors do not have the
same latitude to “vote their conscience” irrespective of the facts as they do
in ultimately deciding whether the death sentence is appropriate.
After going through each aggravator Miller turned to a discussion of
mitigating factors. Significantly he made no mention of jury nullification
while speaking about mitigating factors. He suggested the claimed
8
Miller’s statements about jury nullification were improvident,
unnecessary (because of strength of the state’s case), and unfortunate — a
circumstance clearly addressed by the OCCA. But in the context of
arguing that the jury should (unanimously) find the aggravating factors to
be proved (beyond a reasonable doubt) I don’t see them as prejudicing
Hooks, particularly not to the extent that he was deprived of a fair trial.
The OCCA saw it the same way. Was the OCCA wrong? Maybe.
Unreasonable? Hardly.
- 13 -
mitigating factors did not amount to much but he did not misrepresent the
law as to how the jury, or individual jurors, should ultimately use them.
Analyzing whether prejudice sufficient to “render petitioner’s trial
unfair” is evident on the record, a totality of the circumstances approach is
necessary. Darden v. Wainwright, 477 U.S. 168, 183 n.15 (1986). There
was no objection to the prosecutors’ remarks and defense counsel’s
rebuttal was more than “simply noting for the jury that the defense ‘will
ask and tell [the jury] that it only takes one’ because ‘that happens to be
the law in Oklahoma.’” Majority Op. at 35. Defense counsel stated:
All of you told me you could be your own person and that you
could stay with what you thought was right, if you thought it
was right. And evidently during the [guilt] deliberation there
was some that had differences of opinions and those persons
changed.
As we go into this stage of the trial, as the state said earlier,
that we will ask and tell you that it only takes one. Well, the
reason we tell you that is that happens to be the law in
Oklahoma.
If one of you --- now you don’t all have to reach a unanimous
verdict in this case so don’t be misled and think that. You do
not have to do that. You do not.
If you --- one of you believes the appropriate penalty – and
each of you told me when we asked you to start with that you
do believe in a case where there were five deaths that you
could consider, legitimately consider all three penalties.
At this point and time when you go back to deliberate this case
you all don’t have to decide. The state said you all have to
make a decision. You all have to decide. You don’t have to do
that.
If one of you, two of you or more of you believes that the
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penalty should be less, one penalty or the other, you must stay
with that position. And when you return your verdict you do
not have to say you are all unanimous or you will be here for
the rest of your days or hours. One person can say I do not
want death, two, any number can and there’s not a death
penalty.
(Tr. of Proceedings, Stage II, Vol. IX at 2037-38.) Defense counsel clearly
informed the jury a unanimous verdict was needed only to impose the death
penalty, as the court’s instructions clearly provided. 9
A totality of circumstances analysis must also include both the
prosecutors’ and defense counsel’s reference to voir dire in closing
arguments. The jury’s contemplation of its role at the penalty phase was
discussed well before the closing arguments at sentencing. The jury voir
9
Generally, “arguments of counsel . . . carry less weight with a jury
than do instructions from the court.” Waddington v. Sarausad, 129 S. Ct.
823, 827 (2009). Instruction No. 14 stated: “In the event you assess the
death penalty, your verdict must be unanimous. You may also return a
unanimous verdict of imprisonment for life without the possibility of
parole or imprisonment for life with the possibility of parole.” (R. Vol. II
at 299 (emphasis added).) Instruction 8 told the jury “Should you
unanimously find that one or more aggravating circumstances existed
beyond a reasonable doubt, you are authorized to consider imposing a
sentence of death. If you do not unanimously find beyond a reasonable
doubt that one or more of the aggravating circumstances existed, you are
prohibited from considering the penalty of death.” (Id. at 291 (emphasis
added).) Instruction 11 informed the jury: “If you unanimously find that
one or more of the aggravating circumstances existed beyond a reasonable
doubt, the death penalty shall not be imposed unless you also unanimously
find that any such aggravating circumstance or circumstances outweigh the
finding of one or more mitigating circumstances. Even if you find that the
aggravating circumstances outweigh the mitigating circumstances, you may
impose a sentence of imprisonment for life with the possibility of parole or
imprisonment for life without the possibility of parole.” (Id. at 295.)
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dire contained significant discussions of the jurors’ responsibility to
consider all three sentencing options — death, life without the possibility
of parole and life with the possibility of parole.
After the defendant’s closing argument, Prosecutor Macy addressed
the jury. He spent some time discussing the gruesome facts of the multiple
murders, some of the sentencing aggravators, and Hooks’s lifestyle. He
then remarked on the irony of Hooks asking for mercy when he showed
none to his victims. He spoke of the difficult job the jury did during the
guilt phase and then said:
We know that you’re getting ready to face the toughest part of
your job in just a few minutes. Mr. Box mentioned that any
one of you can control the result in this trial and you can do
that legally. But ladies and gentlemen, there is not one chair
up there. There’s 12. Twelve chairs. And there’s 12 chairs for
that purpose. The Constitution of the United States guarantees
a person a trial by a jury of his peers, not by one person, by a
jury of his peers. There’s been far too much work gone into
this case. It’s far too important in this case for someone to
play martyr and try to hang it up.
(Id. at 2057-58 (emphasis added).)
Nothing more was said about a single juror possibly thwarting the
will of other jurors. Prosecutor Macy went on to discuss “the two lives of
Danny Hooks.” (Id. at 2058.) He referred to the testimony about his
family and upbringing and contrasted it with his other life – his drug and
alcohol abuse, his sexual proclivities, his prior kidnapping and rape
conviction, these violent murders and his lack of remorse. There was no
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mention of jury nullification and no further mention of what was required
to obtain or avoid the death penalty. Macy’s acknowledgement that a lone
juror can prevent the death penalty, but should not on the facts of this case,
cannot be so prejudicial as to render the sentencing fundamentally unfair.
The OCCA so concluded. I agree.
One could put a more sinister spin on the prosecutors’ words, as the
majority does. The majority may be wrong in its darker musings, but it is
not unreasonable. The converse is also true. The OCCA may have been
wrong in assessing the prejudicial effect of what it determined to be
prosecutorial misconduct, but not even the majority claims its decision
incorrectly or unreasonably applied Supreme Court precedent. See Darden,
477 U.S. at 180 (“The relevant question is whether the prosecutors’
comments ‘so infected the trial with unfairness as to make the resulting
conviction a denial of due process.’”) (quoting Donnelly v. DeChristoforo,
416 U.S. 637, 643 (1974)). And it cannot be an unreasonable application
of Lowenfield’s extremely general statement. 10 Deference is due the
10
The majority relies upon a phrase in Romano v. Oklahoma, “the
jury must not be misled regarding the role it plays in the sentencing
decision.” 512 U.S. 1, 8 (1994). That reference is puzzling in that
Romano held only that the admission of a prior death sentence did not
deprive Romano of a fair sentencing proceeding. Id. at 12-13. Over
reading Supreme Court precedent is precisely the reason the Supreme Court
reversed in Lett, Berghuis, Thaler, Mirzayance, Van Patten, Alvarado,
Landrigan, Carey and Early.
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OCCA’s decision irrespective of whether it has articulated its reasons to
our satisfaction. 11 We are not here to grade its papers, but to assess the
Romano did, however, summarize how the Supreme Court viewed
Caldwell v. Mississippi, 472 U.S. 320 (1985), saying:
The prosecutor in Caldwell, in remarks which “were quite
focused, unambiguous, and strong,” misled the jury to believe
that the responsibility for sentencing the defendant lay
elsewhere. Id., at 340, 105 S. Ct., at 2645. The trial judge
“not only failed to correct the prosecutor’s remarks, but in fact
openly agreed with them.” Id., at 339, 105 S. Ct., at 2645.
The plurality concluded that the prosecutor’s remarks, along
with the trial judge’s affirmation, impermissibly “minimize[d]
the jury’s sense of responsibility for determining the
appropriateness of death.” Id., at 341, 105 S. Ct., at 2646.
[W]e have since read Caldwell as “relevant only to certain
types of comment - those that mislead the jury as to its role in
the sentencing process in a way that allows the jury to feel less
responsible than it should for the sentencing decision.”
Darden v. Wainwright, 477 U.S. 168, 184, n.15, 106 S. Ct.
2464, 2473, n.15, 91 L.Ed.2d 144 (1986). Thus, “[t]o establish
a Caldwell violation, a defendant necessarily must show that
the remarks to the jury improperly described the role assigned
to the jury by local law.” Dugger v. Adams, 489 U.S. 401, 407,
109 S. Ct. 1211, 1215, 103 L.Ed.2d 435 (1989); see also
Sawyer v. Smith, 497 U.S. 227, 233, 110 S. Ct. 2822, 2826-
2827, 111 L.Ed.2d 193 (1990).
Id. at 8-9.
11
“Avoiding these pitfalls [decisions contradicting governing law
announced by the Supreme Court or arriving at a result different from
Supreme Court precedent on materially indistinguishable facts] does not
require citation of our cases -- indeed, it does not even require awareness
of our cases, so long as neither the reasoning nor the result of the state-
court decision contradicts them.” Early, 537 U.S. at 8 (emphasis in
original).
- 18 -
results of its efforts as directed by the AEDPA.
To set up the straw man it purports to topple, the majority uses
snippets from the OCCA opinion, saying, for instance: “Thus, it seems
apparent Miller’s and Macy’s misconduct invaded Hooks’s Eighth
Amendment rights by suggesting ‘jurors should in fact abandon their
honestly held beliefs if those beliefs will result in a less than unanimous
verdict.’” Majority Op. at 58 (quoting Hooks v. Okla., 19 P.3d 294, 316
(Okla. Crim. App. 2001)). The entire quote is as follows:
The closing arguments complained of here suggest jurors
should in fact abandon their honestly held beliefs if those
beliefs will result in a less than unanimous verdict. These
misstatements of law could have deprived Hooks of his right to
a properly instructed capital jury, and come close to requiring
relief even if the other comments did not render the
proceedings as a whole fundamentally unfair. We note,
however, that despite these erroneous arguments the jury was
deadlocked for several hours. We must conclude that the jurors
in this case were not misled.
Hooks, 19 P.3d at 316 (emphasis added). 12
The expanded quote highlights the fact that the OCCA did not shy
12
The majority discounts the OCCA’s consideration of the time
spent in deliberations stating “[t]he record simply reveals that one single
juror was unconvinced, at least for a period of time . . .” Majority Op. at
59. It then speculates that “the passage of time does not rule out the
possibility that other jurors also favored a life sentence, but acquiesced in
a death sentence because they believed holding out would amount to, in the
words of Miller, ‘impeding or attempting to prevent the operation or
enforcement of the law.’” Id. at 59-60. This type of conjecture has no
place in our deferential review under the AEDPA.
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away from what it considered the seriousness of the prosecutorial
misconduct or its effect. 13 The OCCA majority opinion concluded:
These missteps are particularly unnecessary here, where the
evidence amply supported the State’s case and the jury
verdicts. This Court has in the past warned prosecutors against
misconduct that can endanger a case. However, we do not find
these errors entitle Hooks to relief.
Hooks, 19 P.3d at 314. 14 The OCCA went on to say: “In summary,
13
As the majority acknowledges, the OCCA identified the specific
misstatements and discussed the seriousness of the prosecutors’
misconduct. However, as the majority also acknowledges, prosecutorial
misconduct does not compel a finding of coercion.
Improper prosecutorial argument will only warrant federal
habeas relief if it renders a petitioner’s trial or sentencing
fundamentally unfair. To establish that a prosecutor’s remarks
were so inflammatory that they prejudiced substantial rights, a
petitioner must overcome a high threshold: he or she must
demonstrate either persistent and pronounced misconduct or
that the evidence was so insubstantial that absent the remarks,
the jury would not have imposed the death penalty.
Short v. Sirmons, 472 F.3d 1177, 1195 (10th Cir. 2006) (citing Donnelly v.
DeChristoforo, 416 U.S. 637, 642 (1974), and Berger v. United States, 295
U.S. 78, 89 (1935)).
14
The majority opinion was written by Judge Chapel and joined by
Judges Strubhar and Johnson. In a footnote, apparently joined by no other
judge, Judge Chapel expressed a personal opinion that prosecutorial
misconduct infected the sentencing, entitling Hooks to relief. He was also
concerned that official judicial condemnation of the practices of that office
had failed to arrest offending conduct and, in part, reversal was necessary
to send an effective message. He concluded by saying: “While I would
remand the case for resentencing as a sanction for deliberate prosecutorial
misconduct, my colleagues disagree. I yield to them on this issue.”
Hooks, 19 P.3 at 314, n.51 (emphasis added). I am not sure what to make
of the footnote, it does not appear to be a dissent. But one thing is clear —
the two concurring judges clearly and expressly said it was inappropriate
- 20 -
prosecutors skirted the border of impropriety or engaged in outright
improper argument in both first and second stage. However, after a
thorough review of the entire record we conclude the prosecutorial
misconduct did not affect Hooks’s rights, and does not require relief.” Id.
at 317. In a concurring opinion Judge Lumpkin, joined by Judge Lile, also
addressed the attorney misconduct issue, saying:
I agree that failure of a prosecutor to adhere to rulings of this
Court in the scope and type of closing argument as has been
discussed and ruled upon in the opinions of this Court is a
breach of professional conduct. If this Court, or members of
the Court, believe a [sic] “egregious” breach of duty has been
performed by an attorney then it is incumbent on us to refer the
matter for proper bar discipline. While I find some of the
argument inappropriate and unwarranted, I cannot find any
error which would require relief in this case.
Id. at 322.
On several occasions in the majority and concurring opinions the
OCCA expressed serious concerns with the prosecutors’ arguments and its
consideration of their conduct. A careful reading of the transcript suggests
the majority may have been overwrought with the prosecutors’ remarks.
Nonetheless, the OCCA prudently resisted the temptation to reverse as a
sanction for their misconduct. Considering the arguments and instructions
to impose a reversal and retrial as a sanction on prosecutors. Those judges
properly restricted their analysis to possible prejudicial affect. Apparently
the other judges in the majority at least implicitly adhered to that more
circumspect reasoning as the court clearly held the misconduct did not
prejudice Hooks’s trial rights.
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it concluded the jurors “were not misled” and “the prosecutorial
misconduct did not affect Hooks’s rights, and does not require relief.” Id.
at 316, 317. If we accord AEDPA deference to the OCCA we cannot
conclude its determination was an objectively unreasonable application of
federal law. In any event, while the prosecutors’ remarks were erroneous,
they were not, fairly regarded, an invidious part of “an ever-rising tide of
coercion,” as the majority claims. Majority Op. at 51.
III.
The next (chronological) issue has to do with the jury note. The
OCCA described Hooks argument on direct appeal:
Hooks claims the trial court erred in failing to provide
guidance to the jury in response to a question which indicated a
clear misunderstanding of the law. During second-stage
deliberations the jury sent out a note complaining that the
holdout juror, refusing to change her vote, “refers on grounds
not related to the law.” Hooks claims this phrase indicates the
jury misunderstood Oklahoma law by believing that the law
might require a death sentence, and argues the trial court erred
in failing to correct this misunderstanding. Hooks suggests the
trial court should have emphasized that the law never requires a
jury to impose the death penalty. 15
Hooks, 19 P.3d at 312. The OCCA said it “is troubled by the suggestion
that the jury believed Oklahoma law required imposition of the death
penalty. However, such an interpretation is pure speculation.” Id. It
15
The manner in which the note was handled is also part of Hooks’s
more general complaint about juror coercion.
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reviewed the jury instructions and concluded there was no error as the jury
was accurately advised of the law, specifically that it could impose a life
sentence even if it found one or more aggravating circumstances
outweighed mitigating circumstances.
The majority does not specifically address the issue as framed by the
OCCA. Instead it redirects the inquiry, saying, “It is clear the prosecutors’
misconduct achieved its intended purpose: the jury was misled to believe it
was the obligation of a juror holding a minority opinion to abandon that
opinion if it was necessary for the jury to reach a unanimous sentence.”
Majority Op. at 61-62. 16 That is certainly an inference one could draw
16
The majority faults the OCCA for failing to consider the “refers
on grounds not relevant to the law” note in determining that the
prosecutors’ statements did not mislead the jury, Majority Op. at 60-61,
n.28, and concludes the note can be read but one way. Id. at 60. But, the
OCCA did discuss the note. Hooks, 19 P. 3d at 312. The fact that it did
not specifically mention it in its discussion of prosecutorial misconduct is
insignificant. The Supreme Court dealt with a similar argument in Early v.
Packer (reversing the Ninth Circuit):
The contention that the [state] court “failed to consider” facts
and circumstances that it had taken the trouble to recite strains
credulity. The Ninth Circuit may be of the view that the Court
of Appeal did not give certain facts and circumstances adequate
weight (and hence adequate discussion); but to say that it did
not consider them is an exaggeration . . . . Compliance with
Lowenfield v. Phelps, does not demand a formulary statement
that the trial court's actions and inactions were noncoercive
“individually and cumulatively.” It suffices that that was the
fair import of the Court of Appeal’s opinion.
537 U.S. at 9.
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from the enigmatic note and circumstances surrounding it. But its
inference is not necessitated by the language of the note or the record.
Other explanations are certainly not beyond the pale — the juror may have
engaged in fanciful speculation about facts not in evidence or sought to
base a decision on the character of the victims, perhaps by refusing to
consider the death penalty because the victims were “crack heads.” We
can’t know for sure what motivated the note, but speculation cannot inform
the debate, whether it is mine or the majority’s. Certainly the note is part
of the overall prejudice calculus — the OCCA assigned it little or no
weight because its meaning was speculative; the majority assigns it great
weight. One may be right and the other wrong, but that does not make
either unreasonable.
As the OCCA noted, none of the jury instructions, either at the guilt
or penalty phase, misstated the law. Ten minutes after its first note, the
jury informed the court it could not unanimously impose a death penalty —
reflecting a correct understanding of the law. And that brings us to the
Allen issues.
IV.
As the majority acknowledges, an Allen charge is an acceptable
method of encouraging juries to reach a difficult decision. But the issues
surrounding the giving of an Allen instruction in this case are somewhat
unique. The trial judge at first refused to give any Allen instruction
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because the jury had not deliberated for sufficient time. While it might
have been better to have given the instruction requested by defense
counsel, refusing to do so, particularly in the early stages of deliberation,
does not appear to be contrary to federal law. See Jones v. United States,
527 U.S. 373, 381-82 (1999). Best practices cannot translate into
constitutional imperatives.
The Allen charge ultimately to be given is an issue of state law. The
OCCA recognized the Allen instruction ultimately given in this case should
have been tailored to the death penalty, but it also specifically held that
the instruction given was not a misstatement of Oklahoma law — “[t]he
trial court gave the correct Allen instruction.” Hooks, 19 P.3d at 312.
The majority concludes the Allen instruction finally given was
coercive because it “suggested the case against Hooks would not be
completed in the absence of unanimity.” Majority Op. at 68 (emphasis
added). However, the majority ignores the plain language of the
instruction:
This does not mean that those favoring any particular position
should surrender their honest convictions as to the weight or
effect of any evidence solely because of the opinions of other
jurors or because of the importance of arriving at a decision.
No juror should ever agree to a verdict that is contrary to the
law in the court’s instructions, nor find a fact or concur in a
verdict which in good conscience he or she believes to be
untrue.
State Court Record at 300 (emphasis added). As noted by the OCCA, this
- 25 -
is the last instruction the jury received and it ties to the other instructions
clearly telling the jury unanimity is required only to impose the death
penalty, not to avoid it, and a death sentence need not be imposed even if
the aggravating factors outweigh the mitigating factors. See n.9, supra.
There is no reason to think any juror would assume deliberations
would be interminable and the trial court is not required to tell them the
effect of their failure to agree. Jones, 527 U.S. at 381. This jury
deliberated for thirteen hours in the guilt phase, but only eight in the
penalty phase. A trial judge may have an obligation to end deliberations at
some point and impose a life sentence. But, jurors are made of pretty stern
stuff and the trial judge is in the best position to assess whether the
process has overburdened any of them. See Lett, 2010 WL 1740525 at *6
(“the trial court is in the best position to assess all the factors which must
be considered in making a necessarily discretionary determination whether
the jury will be able to reach a just verdict if it continues to deliberate.”
(quotations omitted)). And state appellate courts are well able to correct
abuses. Absent specific guidance from the Supreme Court, which Hooks
has not identified, such decisions ought not to be micromanaged by federal
courts.
V.
I am not convinced the OCCA’s decisions, which studiously inquired
into each error alleged by Hooks, passed the edge of reasonableness. The
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instructions contained no legal error. Prosecutor Miller’s erroneous
closing arguments were temporally related to his discussion of aggravating
factors. They were followed by defense counsel’s rebuttal emphasizing
that the death penalty could not be imposed if any juror thought it
inappropriate even if the aggravating factors outweighed the mitigating
factors. Prosecutor Macy’s argument acknowledged the law as stated by
defense counsel (single juror death penalty veto) but argued it should not
be done in this case. He did not mention jury nullification. The presiding
juror’s note requesting removal of another juror contains little insight as to
its meaning and shortly thereafter the jury sent a note correctly stating the
law — it could not reach a unanimous decision on imposing the death
penalty. The jury then received a proper Allen charge reminding all jurors
not to surrender honest convictions to the will of the majority. The only
other communication with the jury concerned the logistics of sequestration.
In sum, the OCCA identified trial errors relating to Oklahoma law. It
also identified and employed the proper federal law for assessing the
impact of those errors of state law — whether, taken as a whole, the errors
denied Hooks a fair sentencing hearing. At the end of the day it decided
the errors, alone or in combination, did not entitle Hooks to relief. The
OCCA also identified and applied the general Lowenfield requirement that
a defendant is entitled to an uncoerced jury decision. It concluded the
sentencing jury was not coerced. I am not sure it was correct in that
- 27 -
assessment but I join the district court in concluding its decision was not
contrary to, or an unreasonable application of, clearly established federal
law, as determined by the Supreme Court, especially if its decision is
afforded proper deference. It was not unreasonable for the OCCA to
conclude the horrific facts of this case (multiple murders by a previously
convicted kidnapper/rapist), rather than a possible misunderstanding of the
law or the stresses of jury service, motivated the jury to recommend five
death sentences.
We have an interesting circumstance here. If the opinion of the
district judge who originally considered these habeas claims is included,
two federal judges think the OCCA’s assessment of the federal
Constitutional issues was not objectively unreasonable and two think it was
objectively unreasonable. The State of Oklahoma is left with the resulting
detritus. So much for applied federalism and comity.
And where does our decision leave the State? It can accept a federal
court veto of the jury’s sentencing decision and settle for a life sentence.
Or it can empanel a new jury, which will not have heard the guilt phase
evidence, and hope to convince the new jury to ratify the trial jury’s
sentences. And it will have to do so at least eighteen years after the
murders were committed and time has scattered witnesses, eroded
memories, rusted the community’s sense of outrage with this mass murder,
dulled the voices of the victims’ families and turned the fire in the
- 28 -
prosecutors’ bellies to ash (because the attention of new prosecutors has
been diverted to more recent atrocities and the task of resurrecting and
presenting a very old case to an uniformed jury is daunting, indeed).
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