F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
JAN 27 2003
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT
MARCUS L. CARGLE,
Petitioner - Appellant-
Cross-Appellee,
v. Nos. 01-6027 & 01-6041
MIKE MULLIN, Warden,
Oklahoma State Penitentiary,
Respondent - Appellee-
Cross-Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
(D.C. No. CIV-97-1870-A)
Jack Fisher, Edmond, Oklahoma, Attorney for Petitioner-Appellant.
Robert L. Whittaker, Assistant Attorney General, Criminal Division, (W.A. Drew
Edmondson, Attorney General of Oklahoma with him on the briefs), Oklahoma
City, Oklahoma, for Respondent-Appellee.
Before SEYMOUR , EBEL , and HENRY , Circuit Judges.
EBEL , Circuit Judge.
Petitioner Marcus Cargle was convicted in Oklahoma of first degree murder
and sentenced to death in connection with the shooting of Richard and Sharon
Paisley during a drug transaction at their home. Present with petitioner during the
fatal incident were Christopher Todd Jackson and Christopher Todd Williams.
Apart from the critical question of who shot Sharon, most of the material facts
surrounding the homicides were not in dispute at trial.
Petitioner was nineteen years of age when the events took place. He and
several acquaintances, including Jackson, also nineteen, and Williams,
twenty-four, were socializing at his uncle’s house in the late afternoon. Earlier in
the day, petitioner had purchased $100 worth of marijuana from the Paisleys.
Dissatisfied with the marijuana, petitioner and his two friends left his uncle’s
house to recover the money he had paid to the Paisleys. Their arrival at the
Paisley home did not initially spark any confrontation; Sharon served them beer
and popcorn while Richard left to get the cash from a neighbor. Richard returned
and gave petitioner the $100, and petitioner and Jackson prepared to leave.
Just then, however, Williams returned from the bathroom brandishing a
firearm and, without warning or provocation, shot Richard in the chest. Petitioner
and Jackson did not move. Williams shot Richard again, this time in the head,
and Richard fell to the floor. According to Jackson, at this point petitioner
exclaimed “damn,” ran over to where Sharon had crawled from a couch to the
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floor, and shot her in the head. His gun jammed and, while he fumbled with it,
Williams shot Richard for a third and last time. Then, according to Jackson,
petitioner shot Sharon once more. The three men tried to wipe their fingerprints
from the scene, Williams took a television and VCR, and they left. While they
were driving away, Williams threatened petitioner and Jackson that whoever said
anything would have to die too.
Petitioner was brought to trial first. 1
Largely on the basis of Jackson’s
immunized testimony, he was convicted of murdering Sharon and aiding and
abetting in Richard’s murder. The death penalty was imposed on both counts.
The Oklahoma Court of Criminal Appeals (OCCA) affirmed the convictions and
sentences on direct appeal, see Cargle v. State , 909 P.2d 806 (Okla. Crim. App.
1995), and subsequently denied post-conviction relief almost entirely on waiver
grounds, see Cargle v. State , 947 P.2d 584 (Okla. Crim. App. 1997). Petitioner
timely filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254.
Of the many claims asserted in the petition, only the following are before
us for consideration on appeal: (1) ineffective assistance of counsel in the guilt
and penalty phases of trial; (2) prosecutorial misconduct in the guilt and penalty
phases; (3) admission of improper victim impact testimony in the penalty phase;
1
Williams was later tried, convicted of first degree murder, and, despite his
primary active role in the crime, sentenced only to life imprisonment without the
possibility of parole.
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(4) insufficient evidence as to the murder of Richard Paisley; (5) improper
excusal of veniremen because of reservations expressed about the death penalty;
(6) facial and as-applied challenges to the aggravating circumstances invoked by
the prosecution to support the death penalty; (7) failure to disclose exculpatory
evidence under Brady v. Maryland , 373 U.S. 83 (1963); and (8) cumulative error.
The district court rejected petitioner’s challenges to the guilt phase of trial
but concluded that he was entitled to sentencing relief on the bases of ineffective
assistance of counsel, improper victim impact testimony, and the cumulative
effect of these two errors during the penalty phase of trial. Accordingly, the
district court granted petitioner’s request for relief from his death sentences,
allowing the State 180 days to conduct a new sentencing hearing. Both petitioner
and the State have appealed from the district court’s rulings and judgment. As
explained below, we agree with the district court that petitioner’s death sentences
cannot stand. However, we hold that constitutional error undermines petitioner’s
convictions as well, and thus his present convictions cannot stand either.
In Part I of this opinion, we address five procedural and threshold legal
issues of general application. We must resolve these issues in order properly to
analyze the merits of the parties’ arguments.
First, we address the district court’s application of our decision in Walker
v. Attorney General , 167 F.3d 1339 (10 th Cir. 1999). In Walker , we considered
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the effect of the 1995 amendments to Oklahoma statutes governing capital
post-conviction proceedings and refused to apply those amendments retroactively
for purposes of federal application of procedural bar. Here, we conclude that the
district court read the Walker procedural-bar exception too broadly. With regard
to many of petitioner’s claims, we conclude that the Walker exception is
inapplicable and we must apply the traditional federal standards for determining
whether a procedural default is excused. See infra Part I A.
Second, we address the standard applied by the OCCA for assessing claims
of ineffective assistance of appellate counsel. That standard is relevant because
petitioner has argued that the omission of certain issues from his direct appeal
resulted from ineffective assistance of his appellate counsel (which should excuse
his procedural default) and because the OCCA rejected this argument on the
merits. We conclude that the OCCA applied an incorrect standard and, as a
result, we do not defer to its disposition. See infra Part I B.
Third, we consider the effect of the OCCA’s review of some of petitioner’s
constitutional claims under a state plain-error standard. We conclude that some
of the state plain-error rulings constitute merits determinations under federal law
while others reflect reliance on independent state grounds for disposition which
warrant application of federal procedural-bar principles. We also clarify the
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circumstances in which we defer under AEDPA to state court determinations of
federal issues on plain-error review. See infra Part I C.
Fourth, we address important issues regarding petitioner’s claims of
cumulative error. We conclude that prejudice may be cumulated among different
kinds of constitutional error, such as ineffective assistance of counsel and
prosecutorial misconduct. We further conclude that prejudice may be cumulated
among such claims when those claims have been rejected individually for failure
to satisfy a prejudice component incorporated in the substantive standard
governing their constitutional assessment. Finally, we conclude that prejudice
from guilt-phase error may be cumulated with prejudice from penalty-phase error.
See infra Part I D and E.
Fifth, we address whether it was proper under 28 U.S.C. § 2254(e)(2) for
the district court to consider evidence that was not first presented to the state
courts. As to testimonial evidence, we note that the State did not challenge the
district court’s decision to hold an evidentiary hearing. As to new documentary
evidence, we conclude that petitioner attempted to develop this material in the
state court proceedings and, as a result, this evidence should not be barred on the
ground that he failed to develop the factual basis of his claim in state court. See
infra Part I F.
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With these threshold matters resolved, we turn to the merits in Part II. We
conclude that petitioner received ineffective assistance of counsel at the guilt and
penalty phases of trial, that the prosecution engaged in prejudicial misconduct at
both phases of trial, and that the State relied on improper victim impact evidence
to support the death penalty. We hold that petitioner is entitled to relief from his
capital convictions based, individually, on ineffective assistance of counsel and,
cumulatively, on the combined impact of this error and prosecutorial misconduct.
We also hold that petitioner is entitled to relief from his death sentences based,
individually, on ineffective assistance of counsel and, cumulatively, on the
combined impact of all three errors cited immediately above. However, we reject
in Part III petitioner’s claims that there was insufficient evidence to support his
convictions and death sentences. Hence, we recognize that the State may retry
and resentence petitioner within a reasonable time without constraint by double
jeopardy concerns. These rulings render it unnecessary to address petitioner’s
other claims.
I. PROCEDURAL AND THRESHOLD LEGAL RULINGS
These appeals raise numerous issues, but our overall approach is framed by
several procedural and threshold legal rulings of general application.
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A. LIMITED SCOPE OF WALKER EXCEPTION TO PROCEDURAL BAR
The district court reached the merits of many claims defaulted by petitioner
in state court, based on an overly broad application of the exception to state
procedural bar recognized in Walker v. Attorney General , 167 F.3d 1339. In
Walker , we refused to bar a claim that was defaulted under Oklahoma’s newly
amended (in 1995) post-conviction scheme, when the procedural default occurred
before the amended statute was enacted. We noted that the 1995 amendments
made it harder in the state courts to raise new post-conviction claims based on
intervening changes in law, and we declined to give federal effect to a state
default of a claim that would not have been defaulted before the amendments. 2
We reasoned: “A defendant . . . should not be deprived of a claim for failing to
comply with a rule [i.e., the more stringent duty to anticipate changes in law and
urge currently foreclosed issues or face later waiver consequences] that only
comes into being after the time for compliance has passed.” Walker , 167 F.3d at
1345; see Mitchell , 262 F.3d at 1047.
2
The relevant change in law in Walker was the invalidation of Oklahoma’s
clear-and-convincing evidentiary standard for trial competency in Cooper v.
Oklahoma , 517 U.S. 348 (1996). Before 1995, the OCCA would have deemed
Cooper a change in law sufficient to excuse a default. Mitchell v. Gibson , 262
F.3d 1036, 1047 (10 th Cir. 2001). In Walker , however, the OCCA applied the
1995 amendments to bar a Cooper claim for being defaulted in proceedings that
predated the amendments.
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However, if claims omitted on direct state appeal would have been barred
on state post-conviction anyway, even under Oklahoma’s pre-1995 law (for
example, if they rested on authority established at the time of direct appeal), it
would not make sense to isolate the new 1995 standard as the operative cause of
the default. 3
Thus, we have not applied Walker to excuse petitioner’s default in
failing to raise claims in his direct appeal that were at the time of the default
clearly established. Here, the Walker exception to procedural default is
inapplicable to many of petitioner’s claims, including ineffective assistance of
counsel, prosecutorial misconduct, and State suppression of evidence. We will
consider whether those claims should be resolved on the merits notwithstanding
state procedural default, under the traditional federal standards for evaluating
when state procedural default should be excused.
B. OCCA’s DEPARTURE FROM FEDERAL STANDARD FOR
ASSESSING INEFFECTIVE ASSISTANCE OF APPELLATE
COUNSEL
With respect to several issues omitted from his direct appeal, petitioner
argues ineffective assistance of appellate counsel to excuse his default. See
3
The district court improperly invoked Walker for a categorical ruling that
“any claim that Petitioner raised within his post-conviction petition is properly
before this Court for review on the merits, even if the OCCA held that the claim
had been defaulted or waived.”
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generally Murray v. Carrier , 477 U.S. 478 (1986). Because the OCCA denied
petitioner’s claims of ineffective assistance of appellate counsel on the merits,
ordinarily our review would be limited to determining whether the petitioner can
show that the state court’s disposition is “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); see, e.g. , Ellis v. Hargett ,
302 F.3d 1182, 1187 (10 th Cir. 2002). However, this deferential standard of
review does not apply if the state court employed the wrong legal standard in
deciding the merits of the federal issue. See, e.g. , Revilla v. Gibson , 283 F.3d
1203, 1220 n.14 (10 th Cir.), cert. denied , (No. 02-6372) 2002 WL 31189684 (U.S.
Nov. 12, 2002). The OCCA applied the wrong standard here.
The proper standard for assessing a claim of ineffectiveness of appellate
counsel is that set forth in Strickland v. Washington , 466 U.S. 668, 104 S. Ct.
2052, 80 L.Ed.2d 674 (1984). Smith v. Robbins , 528 U.S. 259, 285 (2000)
(following Smith v. Murray , 477 U.S. 527, 535-36 (1986)). Thus, the petitioner
must show both (1) constitutionally deficient performance, by demonstrating that
his appellate counsel’s conduct was objectively unreasonable, and (2) resulting
prejudice, by demonstrating a reasonable probability that, but for counsel’s
unprofessional error(s), the result of the proceeding–in this case the appeal–would
have been different. Id. at 285 (applying Strickland ).
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A claim of appellate ineffectiveness can be based on counsel’s failure to
raise a particular issue on appeal, although it is difficult to show deficient
performance under those circumstances because counsel “need not (and should
not) raise every nonfrivolous claim, but rather may select from among them in
order to maximize the likelihood of success on appeal.” Id. at 288 (following
Jones v. Barnes , 463 U.S. 745 (1983)). Thus, in analyzing an appellate
ineffectiveness claim based upon the failure to raise an issue on appeal, “we look
to the merits of the omitted issue,” Neill v. Gibson , 278 F.3d 1044, 1057 (10 th
Cir. 2001) (quotation omitted), cert. denied , 123 S. Ct. 145 (2002), generally in
relation to the other arguments counsel did pursue. If the omitted issue is so
plainly meritorious that it would have been unreasonable to winnow it out even
from an otherwise strong appeal, its omission may directly establish deficient
performance; if the omitted issue has merit but is not so compelling, the case for
deficient performance is more complicated, requiring an assessment of the issue
relative to the rest of the appeal, and deferential consideration must be given to
any professional judgment involved in its omission; of course, if the issue is
meritless, its omission will not constitute deficient performance. 4
See, e.g. ,
4
This court recently rejected the idea that omission of a “dead bang winner”
issue is a necessary condition for prevailing on an appellate ineffectiveness claim.
Neill , 278 F.3d at 1057 n.5. Neill ’s holding does not undermine the principle that
omission of a clearly meritorious issue can be a sufficient basis for such a claim.
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Smith , 528 U.S. at 288; Banks v. Reynolds , 54 F.3d 1508, 1515-16 (10 th Cir.
1995); Mayo v. Henderson , 13 F.3d 528, 533 (2d Cir. 1994).
The OCCA, however, utilized a different analysis by applying a three-step
approach for capital cases that it had drawn from Okla. Stat. tit. 22, § 1089, in
Walker v. State , 933 P.2d 327, 333-35 (Okla. Crim. App. 1997).
Under this analysis, (1) the threshold inquiry is whether appellate
counsel actually committed the act which gave rise to the ineffective
assistance allegation. If a petitioner establishes appellate counsel
actually did the thing supporting the allegation of ineffectiveness,
this Court then (2) determines whether the performance was deficient
under the first of the two-pronged test in Strickland v. Washington ,
466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693
(1984). If this burden is met, (3) this Court then considers the
mishandled substantive claim, asking whether the deficient
performance supports a conclusion either that the outcome of the trial
would have been different but for the errors or that the defendant is
factually innocent.
Cargle , 947 P.2d at 587-88 (quotation omitted). These three steps each perform
very distinct functions. Step one is merely a fact finding step. Step two is where
the court analyzes whether there was ineffective assistance of appellate counsel
sufficient to excuse what would otherwise be procedural default. If ineffective
assistance of appellate counsel is found in step two, the OCCA then proceeds to
step three, where the omitted claim of trial error is fully reviewed on the merits.
Walker, 933 P.2d at 333-34 (“Under [§ 1089], [petitioners] must prove deficient
performance as a precondition to having their underlying claim reviewed.”).
Thus, for purposes of deciding whether to give federal deference under § 2254(d)
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to the OCCA’s finding of no ineffective assistance of appellate counsel, we focus
on step two of this Walker test.
As the OCCA acknowledged in Walker , the analysis of ineffective
assistance of counsel at step two “does not include the traditionally applied
two-pronged Strickland analysis,” because it eliminates the prejudice prong.
Walker , 933 P.2d at 333 n.23; see Le v. State , 953 P.2d 52, 54 (Okla. Crim. App.
1998) (upholding constitutionality of § 1089 despite acknowledged departure
from Strickland analysis). 5
The issue before us, then, is whether the OCCA’s
evaluation of appellate counsel’s performance in step two of its Walker analysis
comports with constitutional standards as determined by the United States
Supreme Court.
The OCCA has stated that because § 1089 eliminated the Strickland
requirement of prejudice, it therefore need not consider the merits of the omitted
claim in evaluating whether appellate counsel’s performance was deficient. In
Walker , the OCCA explained:
5
The OCCA held in Le that § 1089 did not violate constitutional strictures,
despite its displacement of the Strickland analysis for post-conviction claims of
ineffective appellate counsel, because nothing in the constitution obligates a state
legislature to extend any post-conviction remedy for such claims. Le, 953 P.2d at
54-55 (citing Coleman v. Thompson , 501 U.S. 722 (1991)). We need not consider
that question. All we address here is whether the OCCA’s resolution of
petitioner’s claim of ineffective appellate counsel comports with controlling
federal standards so as to trigger the deference principles in § 2254(d).
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Before the enactment of the new statute, post-conviction
petitioners would simply argue their barred claims and summarily
conclude that their appellate counsel’s decision not to raise them or
manner of raising them constituted ineffective assistance under the
two-pronged Strickland test. In applying the prejudice prong of the
Strickland test to these allegations, this Court was essentially forced
to examine the merits of the allegedly mishandled but technically
waived claim in order to determine whether it was so serious as to
deprive the defendant of a fair trial and thus would have forced a
reversal or sentence modification on direct appeal. By eliminating a
capital post-conviction petitioner’s burden to prove prejudice for
ineffective assistance of appellate counsel allegations, the pivotal
and narrow threshold issue is now simply whether appellate counsel’s
performance was deficient under prevailing professional norms. This
issue may be fully analyzed without examining the merits of the
technically waived, substantive claim which was allegedly
mishandled.
Walker , 933 P.2d at 334 (emphasis added).
Walker ’s step-two truncation of the Strickland test thus enables the OCCA
to reject appellate ineffectiveness allegations without any assessment of the merits
of underlying predicate claims , so that the OCCA has been able to declare that a
“failure to raise even a meritorious claim does not, in itself, constitute deficient
performance.” Slaughter v. State , 969 P.2d 990, 996 (Okla. Crim. App. 1998)
(following Mitchell v. State , 934 P.2d 346, 350 (Okla. Crim. App. 1997), and
Walker , 933 P.2d at 336-37).
The OCCA’s post- Walker case law consistently reflects its understanding
that something over and above the merits of the omitted issue must be shown
before a petitioner can establish ineffective assistance of appellate counsel. The
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OCCA has on several occasions rejected claims that procedural default should be
excused because of ineffective assistance of appellate counsel by observing that,
“beyond arguing the substantive merits of the [omitted] claim, [the petitioner]
fails to present any facts showing why this omission constituted deficient
performance.” Johnson v. State , 952 P.2d 1003, 1006 (Okla. Crim. App. 1998);
Bryan v. State , 948 P.2d 1230, 1234 (Okla. Crim. App. 1997); see also Douglas v.
State , 953 P.2d 349, 353 (Okla. Crim. App. 1998) (invoking same principle with
slightly different formulation); McGregor v. State, 935 P.2d 332, 336 (Okla.
Crim. App. 1997) (same).
Since omission of a clearly meritorious claim is not, by that fact alone,
sufficient under Oklahoma law to establish ineffective assistance of appellate
counsel, and since the merits of the omitted claim need not even be considered in
evaluating whether appellate counsel’s performance was deficient, we look to see
what Oklahoma does require in order to find ineffective assistance of appellate
counsel.
What the OCCA requires to establish ineffective assistance of appellate
counsel under step two of the Walker test is suggested by Powell v. State , 935
P.2d 378 (Okla. Crim. App. 1997), which held that an ineffectiveness claim could
not succeed where the petitioner failed to provide “any evidence why appellate
counsel failed to raise the substantive claims [now] argued,” id. at 384 (emphasis
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added). This indicates that petitioners must establish not only a meritorious
omitted issue but also an improper motive or cause behind counsel’s omission of
the issue. See, e.g. , Walker , 933 P.2d at 335-36 (rejecting ineffectiveness claim
for lack of evidence that counsel “purposefully omitted meritorious appeal issues
because he wished to avoid angering [the trial] Judge”). This appears to involve
the very inquiry that the Supreme Court specifically repudiated in Murray , 477
U.S. at 487, which rejected a test for appellate ineffectiveness that would have
required courts “to determine what prompted counsel’s failure to raise the claim
in question.”
It is clearly wrong, as a matter of federal law, to require as a necessary
condition for relief under Strickland , something beyond the obvious merit of the
omitted claim. The very focus of a Strickland inquiry regarding performance of
appellate counsel is upon the merits of omitted issues, and no test that ignores the
merits of the omitted claim in conducting its ineffective assistance of appellate
counsel analysis comports with federal law. A sufficiently meritorious omitted
claim certainly can, by itself (or in relation to other issues that counsel did
pursue), establish constitutionally deficient performance by appellate counsel.
Because the OCCA’s analysis of petitioner’s appellate ineffectiveness allegations
deviated from the controlling federal standard, see Cargle , 947 P.2d at 588-89
(repeatedly invoking principle contrasted with Strickland here), it is not entitled
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to deference. 6
Of course, in this and in every case raising an ineffective appellate
counsel issue, whether the OCCA decision should be accorded AEDPA deference
will depend upon a case-specific determination of whether the OCCA followed
established Strickland standards, including the principle that ineffective appellate
assistance can be established on the basis of the demonstrable merit of the issue
omitted by counsel on the petitioner's direct appeal.
C. STATE PLAIN ERROR REVIEW, PROCEDURAL BAR AND
§ 2254(D) DEFERENCE
The OCCA reviewed some of the issues in this case for plain error. This
raises threshold questions about the effect of state plain-error review on
procedural bar and § 2254(d) deference principles. As for procedural bar, the
question is: does a state court’s plain-error review of an issue otherwise waived
for lack of a trial objection constitute a merits decision under Harris v. Reed , 489
U.S. 255 (1989), thus negating application of procedural bar, or does OCCA’s use
6
The OCCA’s opinion here could be read as suggesting an ineffectiveness
claim also requires a showing that an “external impediment” prevented counsel
from raising the omitted issues in question. See Cargle , 947 P.2d at 588-89. That
would conflate two separate principles; ineffective assistance and interference of
an external impediment are distinct, disjunctive grounds for excusing a procedural
default. See Murray , 477 U.S. at 488. The OCCA’s references to the notion of
an external impediment are ambiguous and we read them, consistent with Murray ,
as merely indicating that petitioner had failed to show that his default could be
excused on that basis as an alternative to establishing ineffective assistance.
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of the heightened standard of plain error constitute the enforcement of a state
waiver rule under Harris , thus necessitating application of procedural bar?
Courts addressing this question have arrived at very different answers. 7
As for
§ 2254(d), the question is: does a state court’s use of a plain-error standard affect
the deference that the federal court owes to the state court’s determination? Case
law explicitly addressing this question is scarce, though the Eighth Circuit
appears to hold that state plain-error review is entitled to § 2254(d) deference.
See James v. Bowersox , 187 F.3d 866, 869 (8 th Cir. 1999) (applying § 2254(d)
after noting state appellate court had summarily rejected claim on plain-error
review).
In our view, the answer to both questions depends on the substance of the
plain-error disposition. A state court may deny relief for a federal claim on
plain-error review because it finds the claim lacks merit under federal law. In
7
The Sixth and Seventh Circuits apply procedural bar to state plain error
review. See Hinkle v. Randle , 271 F.3d 239, 244 (6th Cir. 2001); Thomas v.
Gilmore , 144 F.3d 513, 518 (7th Cir. 1998). The Ninth Circuit holds otherwise,
concluding that state court plain error review is a merits determination that allows
the federal court also to conduct a merits review. See Walker v. Endell , 850 F.2d
470, 474 (9th Cir. 1987). The Eighth Circuit has inconsistent case law. S ee
Simmons v. Taylor , 195 F.3d 346, 348 (8th Cir. 1999) (citing Sweet v. Delo , 125
F.3d 1144, 1152 8 th Cir. 1997)). The Second Circuit appears to side with the
Sixth and Seventh Circuits, but qualifies its position by holding that if the state
plain-error review incorporated federal law, the resultant disposition would not
rest on the “independent state ground” necessary to support a procedural bar. See
Roy v. Coxon , 907 F.2d 385, 389-91 (2d Cir. 1990).
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such a case, there is no independent state ground of decision and, thus, no basis
for procedural bar. See Hux v. Murphy , 733 F.2d 737, 739 (10 th Cir. 1984)
(following approach we adopt here, though without consideration of analytical
complexities subsequently added by Harris and AEDPA). Consistent with that
conclusion, the state court’s disposition would be entitled to § 2254(d) deference
because it was a form of merits review. On the other hand, a state court could
deny relief for what it recognizes or assumes to be federal error, because of the
petitioner’s failure to satisfy some independent state law predicate. In such a
case, that non-merits predicate would constitute an independent state ground for
decision which would warrant application of procedural-bar principles on federal
habeas. If the state procedural bar were then excused for some reason, the federal
court would be left to resolve the substantive claim de novo, unconstrained by
§ 2254(d). See, e.g., McCracken v. Gibson , 268 F.3d 970, 977 (10 th Cir. 2001),
cert. denied , 123 S. Ct. 165 (2002); Hale v. Gibson , 227 F.3d 1298, 1238 (10 th
Cir. 2000), cert. denied , 533 U.S. 957 (2001).
D. CUMULATIVE ERROR INVOLVING SEPARATE CATEGORIES
OF ERROR
As explained in detail below, petitioner has established many instances of
constitutionally deficient performance by counsel, prosecutorial misconduct, and
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the admission of improper victim impact evidence at trial. In addition to claiming
that each of these distinct categories of error gave rise to sufficient prejudice, in
itself, to warrant habeas relief, petitioner argues that they provide an even more
compelling basis for relief when their combined prejudicial effect is collectively
assessed under cumulative-error principles.
Petitioner exhausted this claim by asserting cumulative error on both direct
appeal and post-conviction. The OCCA denied relief on appeal because the minor
trial errors it recognized did not combine to create sufficient prejudice to warrant
reversal, Cargle , 909 P.2d 833-34, and it denied relief on post-conviction because
the substantive claims raised by petitioner were rejected on procedural grounds,
Cargle , 947 P.2d at 589. Neither of these decisions assessed the aggregate
prejudice arising from the several constitutional errors we find here. Thus, our
cumulative-error review is not restricted by § 2254(d)(1)’s limited focus on
whether a state court decision was “contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the Supreme
Court of the United States.” This limitation on federal habeas review applies only
when there is an antecedent state court decision on the same matter. Lacking
such a decision, we approach the question of cumulative error as we would have
prior to AEDPA’s passage, applying the legal principles we conclude properly
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govern its disposition, whether they have been stated specifically in decisions of
the Supreme Court or derived more generally from the federal case law.
“A cumulative-error analysis aggregates all errors found to be harmless and
analyzes whether their cumulative effect on the outcome of the trial is such that
collectively they can no longer be determined to be harmless.” United States v.
Toles , 297 F.3d 959, 972 (10 th Cir. 2002) (quotation omitted); see United States
v. Rivera , 900 F.2d 1462, 1470 (10 th Cir. 1990) (en banc). Consistent with the
unqualified reference to all errors , our cases reflect application of
cumulative-error review to legally diverse claims such as those here. See, e.g. ,
Toles, 297 F.3d at 972 (prosecutorial misconduct and improper limit on defense
cross-examination); United States v. Wood , 207 F.3d 1222, 1237-38 (10 th Cir.
2000) (reversed conviction because of the cumulative effect of the improper
denial of mid-trial acquittal on first and second degree murder and evidentiary
error); Moore v. Reynolds , 153 F.3d 1086, 1113 (10 th Cir. 1998) ( Brady error and
prosecutorial misconduct); United States v. Oberle , 136 F.3d 1414, 1423 (10 th
Cir. 1998) (prosecutorial misconduct and evidentiary error).
There is a further point to be made, arising from the fact that the particular
types of error considered here are governed in the first instance by substantive
standards which already incorporate an assessment of prejudice with respect to
the trial process as a whole: Strickland errors require us to assess whether there
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is a reasonable probability that counsel’s deficient performance affected the trial
outcome; Brady errors require us to look for the same reasonable probability that
the trial outcome was affected in order to assess the necessary “materiality” of
withheld evidence; 8
and claims of prosecutorial misconduct and admission of
improper victim impact evidence require a showing of fundamental unfairness in
order to provide habeas relief, 9
unless they involve the violation of specific
constitutional rights, in which case the principles governing such rights control. 10
These substantive prejudice components essentially duplicate the function of
harmless-error review. 11
Thus, such claims should be included in the
cumulative-error calculus if they have been individually denied for insufficient
prejudice. Indeed, to deny cumulative-error consideration of claims unless they
8
See United States v. Bagley , 473 U.S. 667, 682 (1985)
9
See Darden v. Wainwright, 477 U.S. 168, 181 (1986) (applying due process
standard from Donnelly v. DeChristoforo , 416 U.S. 637 (1974), to prosecutorial
misconduct claim); Payne v. Tennessee , 501 U.S. 808, 825 (1991) (applying
Darden/Donnelly standard to claim challenging victim impact evidence).
10
See, e.g. , Le v. Mullin , 311 F.3d 1002, 1013 (10 th Cir. 2002) (discussing
specific constitutional rights implicated by prosecutorial misconduct claim); Neill ,
278 F.3d at 1051-52 (analyzing challenge to victim impact evidence implicating
Ex Post Facto Clause).
11
See Kyles v. Whitley , 514 U.S. 419, 435 (1995) (holding that once material
Brady error is found, “there is no need for further harmless-error review”); Combs
v. Coyle , 205 F.3d 269, 291 n.18 (6 th Cir.) (applying Kyles in Strickland context),
531 U.S. 1035 (2002); Barrientes v. Johnson , 221 F.3d 741, 756 (5 th Cir. 2000)
(discussing Kyles in context of Brady , Strickland and Darden/Donnelly claims),
cert. dismissed , 531 U.S. 1134 (2001).
-22-
have first satisfied their individual substantive standards for actionable prejudice
“would render the cumulative error inquiry meaningless, since it [would] . . . be
predicated only upon individual error already requiring reversal.” Willingham v.
Mullin , 296 F.3d 917, 935 (10 th Cir. 2002).
E. CUMULATING GUILT-PHASE ERROR AND PENALTY-PHASE
ERROR
Petitioner did not partition his cumulative-error allegations into separate
guilt and penalty-phase claims. Rather, he broadly asserted that “accumulation of
all the trial errors entitled [him] to relief,” collectively claiming that these errors
“result[ed] in the first and second stage of []his trial [being] unreliable.” Thus,
his cumulative-error claim raises the possibility of guilt-phase error having a
continuing, cognizable effect on the penalty phase.
This commonsense notion that sentencing proceedings may be affected by
errors in the preceding guilt phase is not novel. One especially clear affirmation
of the principle, with respect to ineffective-assistance allegations, was recently
voiced by the Fifth Circuit in Moore v. Johnson , 194 F.3d 586 (5 th Cir. 1999):
The [State’s] argument may be reduced to the premise that deficient
performance occurring at the guilt phase of a capital trial may not be
deemed to prejudice a capital defendant during the punishment phase
of a capital trial. We reject this notion. When, as here, the same jury
considered guilt and punishment, the question is whether the
-23-
cumulative errors of counsel rendered the jury’s findings, either as to
guilt or punishment, unreliable.
Id. at 619 (granting habeas relief from death sentence because counsel’s deficient
guilt-phase performance prejudiced outcome of penalty phase); see also Smith v.
Wainwright , 741 F.2d 1248, 1255 (11 th Cir. 1984) (granting evidentiary hearing
on trial ineffectiveness claim because counsel’s failure to impeach witness during
guilt phase “may not only have affected the outcome of the guilt/innocence phase,
it may have changed the outcome of the penalty trial”).
This court has likewise assessed guilt-phase errors, including prosecutorial
misconduct and evidentiary error, for prejudicial impact on subsequent capital
sentencing proceedings. See Coleman v. Saffle , 869 F.2d 1377, 1394-96 (10 th
Cir. 1989). However, given the procedural and temporal distance of guilt-phase
error from the penalty proceeding, we have noted that the chance or degree of
carry-over prejudice to the penalty phase may be attenuated. See id. at 1396.
Accordingly, our consideration of petitioner’s claim of error at the penalty
phase may be cumulated with guilt-phase error, so long as the prejudicial effect of
the latter influenced the jury’s determination of sentence.
-24-
F. NEW EVIDENCE, § 2254(E)(2), AND WILLIAMS/MILLER
EXCEPTION
The district court held an evidentiary hearing to develop the facts relating
to petitioner’s allegations of penalty-phase ineffective assistance. Ordinarily, a
petitioner must satisfy the conditions imposed by 28 U.S.C. § 2254(e)(2) before
being granted a hearing to augment the evidentiary basis for a claim. 12
However,
the State does not challenge the district court’s decision to hold the hearing, and,
though we would reach the same result in any event, the factual clarification
gained has certainly aided our informed review. Under the circumstances, we will
not second-guess the appropriateness of the hearing. Bryan v. Gibson, 276 F.3d
1163, 1172 n.6 (10 th Cir. 2001) (following Romano v. Gibson , 239 F.3d 1156,
1174 n.9 (10 th Cir.), cert. denied , 122 S. Ct. 624 (2002)).
12
§ 2254(e)(2) states:
If the [habeas] applicant has failed to develop the factual basis of a claim in
State court proceedings, the court shall not hold an evidentiary hearing on
the same claim unless the applicant shows that–
(A) the claim relies on–
(i) a new rule of constitutional law, made retroactive to cases on
collateral review by the Supreme Court, that was previously unavailable; or
(ii) a factual predicate that could not have been previously discovered
through the exercise of due diligence; and
(B) the facts underlying the claim would be sufficient to establish by clear
and convincing evidence that but for the constitutional error, no reasonable
fact-finder would have found the applicant guilty of the underlying offense.
-25-
Petitioner also supported some of his allegations, particularly those relating
to guilt-phase ineffective assistance, with documentary evidence that he had not
submitted in state court. While § 2254(e)(2) refers only to evidentiary hearings, it
governs as well “[w]hen expansion of the record is used to achieve the same end
as an evidentiary hearing.” Boyko v. Parke , 259 F.3d 781, 790 (7 th Cir. 2001);
see Dorsey v. Chapman , 262 F.3d 1181, 1190 (11 th Cir. 2001), cert. denied , 122
S. Ct. 1567 (2002). In this regard, however, petitioner requested the opportunity
to develop relevant evidence through discovery and an evidentiary hearing in state
court, which the OCCA summarily refused after rejecting his ineffectiveness
claims as procedurally defaulted (on what we explain infra were inadequate state
grounds). See Cargle , 947 P.2d at 590. Thus, petitioner did not fail “to develop
the factual basis” of his claim in state court, as that threshold condition in
§ 2254(e)(2) has been construed by this circuit and the Supreme Court. See
Williams , 529 U.S. at 435-37 (explaining “fault component” in statutory
condition); Miller v. Champion , 161 F.3d 1249, 1253 (10 th Cir. 1998) (presaging
Williams ). Therefore, petitioner properly supported his allegations with the
additional evidence submitted to the district court.
-26-
II. MERITS ANALYSIS
A. OVERVIEW
Petitioner challenges both his convictions and sentences. We conclude he
is entitled to relief in both respects on the basis of ineffective assistance of trial
counsel and, alternatively, on the basis of cumulative error combining ineffective
assistance of counsel with instances of prosecutorial misconduct and the use of
improper victim impact evidence.
We begin with a brief overview of counsel’s grossly deficient efforts and
the unusual external pressures upon counsel, as well as the weaknesses in the
State’s case which would have rendered it particularly vulnerable to true
adversarial testing. We will then take up the parties’ specific legal contentions
regarding the errors which lead us to grant petitioner habeas relief from both his
convictions and sentences.
Petitioner’s parents retained counsel in November 1993 when, unbeknownst
to them, counsel was embroiled in bankruptcy proceedings and a professional
grievance investigation against him. By the time of petitioner’s preliminary
hearing in February 1994, counsel had become the target of a criminal tax probe
as well. Within a year and a half, counsel had been convicted on a federal tax
charge and had resigned from the bar.
-27-
The strain of these overlapping pressures on counsel is evident. While his
grievance case was set, continued, and reset throughout the spring of 1994, he
never visited petitioner at the county jail. Petitioner’s parents came to see
counsel a couple of times, but these visits primarily concerned matters pertaining
to counsel’s fee. Days after yet another setting of the grievance case was
continued on May 27–and just four weeks before petitioner’s trial was scheduled
to commence–counsel finally requested a transcript of petitioner’s preliminary
hearing, went to see him at the jail for the first time, and moved for a continuance
in petitioner’s case, conceding he could not be prepared to try the case by the
June 20 trial date. When the motions for continuance and for the preliminary
hearing transcript came on for hearing on June 2, however, counsel failed to
appear and the motions consequently were denied. Two weeks later, counsel
visited petitioner for the second and last time at the jail. Petitioner claims
counsel’s desperate advice at this eleventh-hour meeting was for him to feign
incompetency when he appeared for trial the next week and, indeed, counsel
moved for a competency determination on the first day of trial. The transcript
suggests a half-hearted and promptly-abandoned acquiescence in this scheme by
petitioner, who was quickly determined competent before voir dire began.
The last-ditch efforts to forestall trial were undoubtedly driven by counsel’s
woeful state of preparation. The only potential witnesses he interviewed were
-28-
petitioner and his parents, and the value of these typically crucial discussions with
the accused and his family was greatly limited by time (counsel evidently spent
less than an hour with his client before trial) and counsel’s failure to engage
himself with the substance of the case. Petitioner and his parents said counsel
never discussed trial strategy with them, instead giving them generic assurances
that he had never lost a case. He made little or no effort to draw exculpatory or
mitigation evidence from them, or to develop and follow leads to other sources of
such information. Indeed, counsel did not even explain the two-stage process of
capital prosecution, leaving them ignorant in particular about the penalty phase
and the nature of mitigation evidence. Counsel thus essentially foreclosed any
helpful disclosures from those most likely to know, first-hand, the pertinent facts.
And in the end, none of these often critical witnesses–people whom jurors
understandably expect to hear from in the penalty phase in every death penalty
case–took the stand.
Counsel offered just two witnesses for the defense, one in the guilt phase
and one in the penalty phase, and neither presentation bespeaks professional trial
preparation. In the guilt phase, petitioner’s longtime friend, Steven Butler,
testified that Chris Jackson told him Todd Williams shot both of the victims,
contrary to Jackson’s trial testimony that petitioner shot Sharon Paisley.
Significantly, it was Butler who contacted counsel just before trial to offer this
-29-
testimony. This last-minute, fortuitous witness (who provided a mere seven pages
of direct testimony), constituted the entire defense case in the guilt phase. 13
The penalty-phase defense appears to have been, literally, an after-thought.
Counsel, who had not prepared anyone to testify at this stage of trial, waived an
opening statement. After the State completed its case in aggravation, counsel
turned to the courtroom crowd and secured his only witness when the pastor at
petitioner’s church offered to take the stand. The pastor’s brief, unprepared,
personally remote, and fairly generic testimony was “more like [a] first-time
interview[] conducted during discovery than the presentation of a defense at a
capital murder trial.” Fisher v. Gibson , 282 F.3d 1283, 1294 (10 th Cir. 2002).
Significantly, neither petitioner nor his parents testified. Indeed, from testimony
at the habeas hearing found credible by the district judge, it appears counsel
actively deterred petitioner’s parents from testifying, presumably to cover his
blatant lack of preparation, when it finally became apparent that they might do so.
Further, counsel arguably lied to the trial judge about petitioner’s alleged decision
not to testify on his own behalf. Counsel told the judge, in chambers without
petitioner present, that petitioner had, in front of his father and pastor, elected not
13
Further, Butler’s testimony just opened the door for State rebuttal from
Chris Jackson’s parents, bolstering Jackson’s self-serving trial account of the
murders with prior consistent statements he allegedly made to them shortly after
the murders were committed. Defense counsel had nothing prepared to offer by
way of sur-rebuttal.
-30-
to testify at the second stage. The habeas testimony of petitioner, his father, and
the pastor all flatly contradicted the story counsel had told the trial judge, and the
relevant portions of the state trial record contain nothing to suggest the incident
counsel described had ever taken place. In all, counsel’s gross mishandling of the
penalty-phase defense left his client’s fate to jurors who could only wonder why
neither the man himself nor any member of his family would step up to explain, in
personal human terms, why his life should be spared notwithstanding the
reprehensible conduct of which he had been found guilty.
Counsel’s failure to prepare any significant guilt or penalty-phase defense
case, as damning as that is, reflects just part of the ineffectiveness claim here.
Counsel also critically failed to investigate and effectively attack the State’s case,
particularly with regard to the two absolutely critical, yet vulnerable, witnesses
upon which the State’s case depended.
The State had no physical evidence showing that petitioner had shot either
of the victims or that he had aided and abetted either murder. The State also had
no eyewitnesses other than the three men involved in the crime, and one of them,
Todd Williams, did not appear at petitioner’s trial. The other participant, Chris
Jackson, testified he saw petitioner shoot Sharon Paisley. As a result, the State’s
capital case against petitioner rested on Chris Jackson’s shoulders–a precarious
position, in that Jackson himself had been charged in the murders until he
-31-
deflected guilt onto petitioner (and, in the process, secured immunity from aiding
and abetting charges). In essence, the case came down to a credibility battle
between Jackson and petitioner, 14
requiring the State to convince the jury beyond
a reasonable doubt that Jackson was the one telling the truth. The other critical
State witness was a third party, Luke Jones, who was not present at the murders
but who testified that petitioner had told him that he (petitioner) shot and killed
Sharon. However, Jones’ testimony, like Jackson’s testimony, was highly
impeachable by any competent lawyer.
Nevertheless, petitioner’s counsel did virtually nothing to prepare an
effective cross-examination to test their credibility. Significant grounds for such
impeachment existed, both as to the content of their testimony and as to the
consideration they received in exchange for their testimony. But, through
counsel’s inaction, and partly also through the State’s misrepresentation, counsel
simply did not have these means of impeachment at his disposal during trial.
In sum, as we explain more fully below, counsel did not properly confer
with and advise his client, did not interview and prepare even obvious defense
witnesses, did not develop available exculpatory/mitigating evidence, did not
investigate sources for impeachment of the crucial prosecution witnesses,
14
Petitioner did not testify at trial, but the jury was shown his videotaped
police interview, in which he repeatedly denied any guilt or complicity and
claimed that Williams had shot both the victims.
-32-
disloyally impeached his own client, and failed to expose the State’s relatively
weak case to meaningful adversarial testing. Petitioner was denied effective
counsel on the capital charges against him.
B. GUILT-PHASE ERRORS
1. Ineffective Assistance of Counsel
a) Standard of Review
Some of petitioner’s allegations of trial ineffectiveness were raised for the
first time in his federal petition, and we do not consider these in granting habeas
relief. 15 Most of the allegations we are concerned with were raised in petitioner’s
15
The district court properly held that such unexhausted claims, no longer
available in state court where they would be defaulted due to their omission from
petitioner’s first state post-conviction application, were procedurally barred. See
Hawkins v. Mullin , 291 F.3d 658, 668 (10 th Cir. 2002) (following Coleman v.
Thompson , 501 U.S. 722, 735 n.1 (1991)); Moore v. Schoeman , 288 F.3d 1231,
1233 (10 th Cir. 2002) (designating operative principle as “anticipatory procedural
bar”). Petitioner seeks to avoid this conclusion by arguing that an absence of
corrective process in the state criminal/post-conviction system undermines the
validity of its default rule. Although there may be an element of futility in
requiring petitioner to present his ineffectiveness claims in his first state post-
conviction petition since the OCCA routinely holds such claims procedurally
barred if not presented on direct appeal, our prior case law nevertheless requires a
petitioner to take this step to present to the OCCA his ineffectiveness claims in
the first post-conviction application before presenting those claims to a federal
court. We rejected the same basic argument in Cannon v. Gibson , 259 F.3d 1253
(10 th Cir. 2001), cert. denied , 122 S. Ct. 1966 (2002), noting it was “clearly
(continued...)
-33-
application for post-conviction relief. The OCCA summarily rejected these
claims of attorney ineffectiveness because they were not raised on direct appeal.
However, these claims require consideration of matters outside the trial court
record and we have repeatedly held under such circumstances that Oklahoma’s
procedural bar rule is inadequate to bar federal review. See Revilla v. Gibson ,
283 F.3d at 1220; Sallahdin v. Gibson , 275 F.3d 1211, 1234 (10 th Cir. 2002);
Romano, 239 F.3d at 1179 . Because the OCCA did not address the merits of
these allegations, our review is not constrained by the deference principles in
§ 2254(d). See Revilla , 283 F.3d at 1220; Sallahdin , 275 F.3d at 1234-35.
We also consider one ineffectiveness claim that was rejected on its merits
in state court. The OCCA held counsel’s failure to obtain the preliminary hearing
transcript “fell below acceptable levels of professionalism,” but denied relief
because petitioner could not show that this error would likely have had an effect
on the outcome of the proceeding. Cargle , 909 P.2d at 833. Because this
prejudice determination was neither contrary to nor an unreasonable application
of Strickland , we cannot grant relief on this error alone. However, our decision
to grant relief on ineffective assistance grounds is a function of the prejudice
15
(...continued)
foreclosed by a series of Tenth Circuit cases affirming the adequacy of the
Oklahoma procedural bar relating to claims not raised in an initial state petition
for post-conviction review.” Id. at 1266. It remains so.
-34-
flowing from all of counsel’s deficient performance–as Strickland directs it to be.
See Strickland , 466 U.S. at 694-96 (repeatedly stating prejudice inquiry in
aggregate terms of reasonable probability counsel’s errors affected outcome of
proceeding); see Fisher , 282 F.3d at 1307-11 (assessing prejudice from counsel’s
“numerous shortcomings [and] omissions,” and holding “these errors” had a
“devastating impact on the defense”); Turner v. Duncan , 158 F.3d 449, 457 (9 th
Cir. 1998) (“it is appropriate to consider the cumulative impact of [counsel’s]
errors in assessing prejudice”). Given the OCCA’s procedural rejection of nearly
all of petitioner’s allegations of ineffectiveness, an adequate assessment of
prejudice arising from the ineffectiveness of petitioner’s counsel has never been
made in the state courts, so we have no state decision to defer to under § 2254(d)
on this issue.
b) Failure to Interview and Call Witnesses
Counsel failed to speak with many obvious potential witnesses. Even a
rudimentary investigation would have involved contacting, for example, those
people who were with petitioner and Jackson at petitioner’s uncle’s house when
they left to go to the Paisleys’ home and when they returned. In this group were
petitioner’s aunt, Dewonna Cargle, and Jackson’s girlfriend, Angel Harris. Both
of these women would have contradicted various aspects of Jackson’s “innocent”
-35-
account of his conduct that cast blame instead on petitioner. Indeed, these two
women would have testified that immediately upon his return from the Paisleys’,
Jackson bragged about having killed one or both of the victims himself.
Jackson evidently told yet another story about the murders to Mark Gaddis,
another possible witness that counsel never pursued, even though the application
for petitioner’s arrest warrant referred to an informant (Mark Gaddis), who later
testified at Todd Williams’ trial. The prosecution did not call Gaddis as a
witness, and defense counsel flatly ignored the matter. Gaddis was contacted in
connection with these habeas proceedings, however, and gave a much cloudier
picture of what Jackson had said about the murders. Gaddis revealed that Jackson
made the much more equivocal statement that Williams had made either him
(Jackson) or petitioner shoot Sharon. Further, after it became known he was to be
a prosecution witness, Jackson assured Dewonna Cargle he would straighten it out
and not let petitioner go down for something he did not do. Even more telling
was Jackson’s alleged pretrial offer to petitioner’s parents, which they recounted
in affidavits and at the habeas hearing, that he would not testify against petitioner
if they paid him money. Thus, at least five potential witnesses stated that, before
trial, Jackson had indicated his testimony would be materially different than it
turned out to be, had suggested that his testimony remained open to influence and
alteration, and had made statements flatly contradicting his testimony. All of this
-36-
could have been discovered if counsel had properly interviewed these witnesses
before trial, but he did not do so.
A similar story of dereliction surrounds the State’s other key witness, Luke
Jones. Luke Jones testified that petitioner had confessed to him that he had killed
Sharon Paisley, while the two of them were staying with petitioner’s mother
shortly after the murders. However, Jones’ credibility was open to impeachment
through an obvious source–his wife, Tisha Harris, who was the victim of repeated
protection-order violations for which Jones was confined when he offered his
information against petitioner. Jones told Tisha Harris he was not worried about
the protection-order violations because he had information to offer the authorities
about a murder that petitioner had witnessed. Then, in direct contradiction of his
later trial testimony, Jones expressly exonerated petitioner, telling Tisha Harris
that petitioner said he had not killed anyone. Counsel, however, never
interviewed Harris and, thus, was unaware of this impeachment evidence, which
certainly would have amplified suspicions roused by what the jury knew of the
consideration given by the State in exchange for Jones’ appearance at trial.
Over and above the incremental benefit each of these six witnesses would
have added to the defense in impeaching the government’s two central witnesses
(Jackson and Jones), there is the larger point that they could have, collectively,
provided an effective overall defense strategy (particularly in a case resting
-37-
almost entirely on the credibility of these two inherently vulnerable prosecution
witnesses) that counsel utterly failed to see, much less effectively employ:
showing that the case involved such a tangle of inter- and intra-witness
inconsistency that the jury could not be confident enough in any person’s word to
justify holding petitioner responsible for first degree murder beyond a reasonable
doubt.
With the kind of trial preparation expected of any competent counsel in a
death case, counsel could have left the jury faced with: (1) Angel Harris,
Dewonna Cargle, Gaddis, and Butler, all contradicting Jackson’s trial testimony
with his own prior inconsistent statements on several key points, including
attribution of guilt for the murders to himself and/or Williams; (2) petitioner’s
parents and Dewonna Cargle indicating that Jackson had held out his trial
testimony as a matter subject to influence and change; (3) Gaddis and Butler
relating petitioner’s accounts of his own innocence; and (4) Tisha Harris’
impeachment of Jones with his prior statement to her expressing petitioner’s
innocence. Instead of exposing this Gordian knot of inconsistencies and lies,
counsel effectively acquiesced in the case being tried as a neat three-act play:
Jackson and Jones establishing petitioner’s guilt; Butler, alone, trying to save his
friend by insisting Jackson had told him petitioner was innocent; and Jackson’s
parents brought out at the end to confirm that Jackson had been telling a
-38-
consistent story ever since the murders occurred. There is no plausible reason
other than counsel’s self-inflicted ignorance for allowing the prosecution to
control the presentation in this way and, in our view, the difference in these
scenarios reflects a persuasive case for Strickland prejudice. There are,
moreover, further omissions by counsel to consider.
c) Failure to Impeach Jackson Based upon Undisclosed Bias and
State Inducement for his Testimony
Counsel failed to inquire into a deferred sentence pending (and not
accelerated) against Jackson at the time of trial and counsel failed to discover and
present to the jury the true extent of the immunity afforded Jackson when he
agreed to testify against petitioner. 16
Jackson’s written agreement with the district attorney was admitted at trial.
It granted Jackson “immunity from prosecution for the crimes of Murder in the
First Degree involving the deaths of Richard and Sharon Paisley and Accessory to
Murder involving the deaths of Richard and Sharon Paisley.” The document
16
Additionally, as noted previously, counsel did not obtain the preliminary
hearing transcript with which to cross-examine Jackson. Although we accept the
OCCA determination that this was not sufficiently prejudicial in itself to warrant
relief, we can consider de novo its prejudicial impact in conjunction with other
counsel error.
-39-
affirms that it reflects “the entire agreement” between Jackson and the district
attorney.
However, there evidently was an additional, and quite significant, quid pro
quo for Jackson’s cooperation, which was not recited in the agreement and never
disclosed to the jury. In 1992, Jackson had been charged for assault with a deadly
weapon, carrying a maximum twenty-year sentence. In exchange for his guilty
plea to that offense, sentencing was deferred for five years. Thus, if Jackson had
any other state law violation during this five-year period, he could be sentenced
immediately on the assault offense. Jackson’s admitted conduct in this case
(assisting in wiping off fingerprints at the scene and agreeing with the others not
to tell the authorities anything) made him a potential accessory under Okla. Stat.
tit. 21 § 173, thereby exposing him to an immediate sentence of up to twenty
years’ imprisonment on the pre-existing assault conviction in addition to the
uncertain charges that could have been brought against him in this case. When
asked by an investigator, in connection with this habeas proceeding, whether
non-acceleration of the deferred sentence had been a (tacit) part of his agreement
to testify in petitioner’s case, Jackson admitted that he had received an assurance
from the district attorney that nothing would come up in court about the deferred
sentence.
-40-
Counsel knew about Jackson’s deferred sentence. Any competent attorney
would have discerned the legal connection between Jackson’s conduct in this case
and the conditions sufficient to trigger acceleration of the deferred sentence. 17
Quite apart from the tacit quid pro quo assurances, Jackson’s mere exposure to
this punitive threat was pertinent to the jury’s assessment of his motivation for
testifying. Like a pending criminal charge or possible probation violation, this
threat was “relevant to show pro-government bias on the part of the testifying
witness, on the theory that the witness might tailor [his] testimony to please the
prosecutor.” Stephens v. Hall , 294 F.3d 210, 224 (1 st Cir. 2002); see Davis v.
Alaska , 415 U.S. 308, 311 (1974). Yet counsel erroneously confessed a pretrial
motion in limine preventing the defense “from mentioning, referring to, inferring
or in any way informing the jury” about Jackson’s deferred sentence. 18
17
In addition to omitting any reference to the deferred sentence in the written
plea agreement, which furthermore represented that it was the parties’ entire
agreement, the State represented in its motion in limine that “[t]he deferred
sentence is not included in [Jackson’s] agreement to testify.” We do not suggest
that these representations by the State make counsel’s own omissions reasonable,
but even supposing they did, they would also excuse petitioner’s failure to
exhaust his related Brady claim (which our ineffectiveness analysis renders
redundant). See Cannon , 259 F.3d at 1269. And, as discussed earlier, our
cumulative prejudice analysis is not affected by the label applied to the errors
involved.
18
The motion asserted as justification for the relief request that a deferred
sentence is not a prior conviction for purposes of “impeachment by evidence of
conviction of a crime” under Okla. Stat. tit. 12, § 2609. See White v. State , 702
P.2d 1058, 1062 (Okla. Crim. App. 1985). However, there is an obvious
(continued...)
-41-
Thus, counsel abandoned an important avenue of impeachment as to the
State’s star witness. This involves a dimension of prejudice distinct from the
prior-inconsistent-statement evidence noted earlier in Part II B 1 (b): “A
colorable showing of bias can be important because, unlike evidence of prior
inconsistent statements–which might indicate that the witness is lying–evidence of
bias suggests why the witness might by lying.” Hall , 294 F.3d at 224. And such
impeachment “‘increases in sensitivity in direct proportion to [the] witness’s
importance’ to [the] state’s case.” Jones v. Gibson , 206 F.3d 946, 955-57 (10 th
Cir. 2000) (discussing counsel’s inability to question witness regarding pending
charges against her).
The State may permissibly offer certain forms of advantageous treatment,
such as forbearance on potential charges or favorable recommendations as to
sentencing, to secure the cooperation of a witness. See generally United States v.
Singleton , 165 F.3d 1297 (10 th Cir. 1999) (en banc). Critical to the sanction of
this practice, however, are certain procedural safeguards, “prohibiting the
18
(...continued)
distinction between general impeachment by prior conviction and particularized
impeachment through “possible biases, prejudices, or ulterior motives” arising in
connection with as-yet uninitiated or uncompleted criminal prosecution. Davis ,
415 U.S. at 316-17. Section 2609 does not preempt other means of impeachment,
and “a witness may be cross-examined about any matter tending to show his bias.”
Beck v. State , 824 P.2d 385, 388 (Okla. Crim. App. 1991) (holding trial court
erred in restricting cross-examination of witness about pending charges and
charges which had been dismissed).
-42-
government’s deliberate use of perjured testimony, requiring the government to
timely disclose the [terms of witness agreements], and providing [the defense] an
adequate opportunity to cross-examine the witnesses about those agreements.”
United States v. Fria Vazquez Del Mercado , 223 F.3d 1213, 1215 (10 th Cir.),
cert. denied , 531 U.S. 1027 (2000); see also Romano , 239 F.3d at 1174 (“The
government must disclose any understanding or agreement it has with its
witnesses.”). A conviction based on testimony implicating concealed incentives
to an important witness is potentially tainted. See Giglio v. United States , 405
U.S. 150, 154-55 (1972); Carriger v. Stewart , 132 F.3d 463, 479-82 (9 th Cir.
1997) (reversing conviction for nondisclosure of evidence relating to witness
agreement and explaining that “criminals who are rewarded by the government
[by being granted immunity] for their testimony are inherently untrustworthy”).
While challenges in this regard are typically advanced in connection with
allegations of misconduct by the prosecution, they may also be advanced, as here,
in connection with a claim that petitioner’s “trial attorney was ineffective for
failing to investigate adequately whether [a witness] had a deal with prosecutors.”
Romano , 239 F.3d at 1173 n.7; see also Hall , 294 F.3d at 214. The prejudice
flowing from such counsel error is magnified here by the crucial nature of
Jackson’s testimony to the State’s case.
-43-
d) Counsel’s Failure to Challenge the State’s Bolstering of
Jones’ Testimony through Mitchell
Jones was the State’s other critical witness, because he testified petitioner
had confessed to him about killing Sharon Paisley. The State apparently tried to
bolster the credibility of Jones’ testimony by emphasizing its originality (and,
hence, freedom from influence). Detective Ron Mitchell told the jury that before
Jones came forward with his account of the murders, Mitchell did not know how
the murders had occurred and had never even heard of petitioner, Williams, or
Jackson. The district court found Mitchell’s representations of such prior
ignorance incredible. We agree. Weeks before Jones offered any information,
Gaddis had already spoken with the authorities, relating what petitioner had told
him about the murders and identifying all three participants. As Mitchell was the
detective in charge of the investigation, to suggest that Mitchell did not know
those details when Jones first talked to authorities would have been ludicrous.
Indeed, on the same day Jones talked to the State, Mitchell prepared an arrest
warrant based on information from Jones and Gaddis . 19 Even minimal effort on
counsel’s part, such as reading the arrest warrant for his client, would have
revealed enough of these facts to permit pointed impeachment of Mitchell’s
professed ignorance of those facts before learning of them from Jones.
19
Mitchell was able to identify Williams–whose last name Jones did not even
know–by name, date of birth, physical description and last known address.
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Nevertheless, the district court discounted the matter, concluding there was
no reasonable probability that impeaching Mitchell would have changed the trial
outcome. Admittedly, Mitchell himself did not play an important role in the
State’s case. Yet this impeachment would have shown the jury that even the
police testimony in this case may not be believed, making the jury’s task of
discerning the truth of petitioner’s guilt beyond a reasonable doubt even less
attainable. Further, for the jury to see the police as lying on this point would
have destroyed the State’s effort to bolster Jones–and left the jury understandably
suspicious of this mercenary criminal informant whose dubious credibility had
prompted such an improper vouching effort.
e) Counsel’s Disparagement of his own Client
Petitioner’s counsel failed to pursue a defense based on a severe injury to
petitioner’s right hand that occurred less than two months before the shooting and
instead suggested to the jury that petitioner (his own client) had lied about the
significance of the injury during his videotaped police interview. 20
While we
agree with the district court that counsel’s decision not to press the issue of
20
Counsel ridiculed petitioner’s post-arrest videotaped statement that a very
serious (and factually substantiated) injury to his right hand, requiring surgery
less than two months before the murders, would have impeded his ability to use a
weapon, inexplicably describing petitioner’s statement as “the old phony my hand
don’t work now deal.”
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petitioner’s hand injury as an affirmative defense could be justified as a matter of
defense strategy, 21
there is disloyalty and impeachment by counsel of his own
client implicated here which is not obviated by that strategy.
When counsel mocked petitioner’s complaints of a medically established
injury to his hand as an “old phony” ruse, counsel demonstrated a “fundamental
violation of his duty of loyalty by exhibiting actual doubt and hostility toward his
client’s case.” Fisher , 282 F.3d at 1300. In essence, counsel gratuitously called
his client a liar, in a case that was all about credibility (though petitioner did not
take the stand at trial, the jury was shown the police interview in which he denied
committing the murder). “We can neither discern nor conceive of a trial strategy
that would justify this treatment of one’s own client, which so clearly cast doubt
upon . . . his credibility and integrity before the jury.” Id. at 1302.
f) Failure to Object to Prosecutorial Misconduct
Petitioner also complains counsel ineffectively challenged or failed to
challenge certain alleged instances of prosecutorial misconduct. The latter
21
While the evidence showed that the injury had been severe, it did not
necessarily preclude petitioner’s firing of the gun that killed Sharon Paisley, with
his left hand if necessary. Under the circumstances, we cannot say this is that
rare occasion when counsel’s informed strategic choice was professionally
unreasonable. Bullock v. Carver , 297 F.3d 1036, 1046 (10 th Cir.), cert. denied,
2002 WL 3197528 (U.S. Dec. 16, 2002).
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allegations will be taken up in their own right below and, particularly in light of
our cumulative-error analysis, we need not redundantly and prematurely consider
them here. There is, however, one relevant point that may best be noted now.
That is, any effort by the State to deflect responsibility for prosecutorial
misconduct or to discount the resultant prejudice by blaming defense counsel for
not objecting to/curing the errors would support petitioner’s case for relief in
connection with his associated allegations of ineffective assistance.
g) Conclusion as to Ineffective Assistance at the Guilt Stage
For the reasons set forth above, we conclude that petitioner is entitled to
habeas relief from his conviction based upon the ineffectiveness of his counsel at
the guilt phase of his trial. See Strickland , 466 U.S. 668.
2. Prosecutorial Misconduct
a) Statement that State Does not Prosecute Innocent People
During closing argument, the prosecutor assured the jury that his office
prosecutes only those who are guilty:
Ladies and Gentleman, all we want is justice. . . . [W]hat in the
world have I or [assistant district attorney] Mrs. Smith or the D.A.’s
Office or the police department got to gain by even trying to convict
an innocent person? It would destroy our credibility. It would–it
would fly in the face of everything we believe in and everything we
do. We don’t do those things.
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“‘[I]t is always improper for a prosecutor to suggest that a defendant is
guilty merely because he is being prosecuted.’” Washington v. Hofbauer , 228
F.3d 689, 701-02 (6 th Cir. 2000) (quoting United States v. Bess , 593 F.2d 749,
754 (6th Cir. 1979) (collecting cases)); Hopkinson v. Shillinger , 866 F.2d 1185,
1209 (10 th Cir.) (such suggestions are “particularly egregious”), aff’d 888 F.2d
1286 (10 th Cir. 1989) (en banc), overruling on other grounds recognized in Davis
v. Maynard , 911 F.2d 415, 417 (10 th Cir. 1990); Devine v. United States , 403
F.2d 93, 96 (10 th Cir. 1968) (such suggestions “are to be deplored”); United
States v. Splain , 545 F.2d 1131, 1134 (8 th Cir. 1976) (such suggestions “have no
place in a criminal trial”); see Young , 470 U.S. at 18 (prosecutor’s expression of
personal opinion of guilt is improper).
Several important considerations explain the universal denunciation of this
type of argument. As the State’s official representative prosecuting the case on
the public’s behalf, the prosecuting attorney “carries a special aura of legitimacy
about him,” Bess , 593 F.2d 755. Thus, “‘the prosecutor’s opinion carries with it
the imprimatur of the Government and may induce the jury to trust the
Government’s judgment rather than its own.’” Hopkinson , 866 F.2d at 1209
(quoting Young , 470 U.S. at 18-19). Further, the prosecutor’s personal
“experience in criminal trials may induce the jury to accord unwarranted weight
to [his opinions regarding the defendant’s guilt].” Splain , 545 F.2d at 1135; see
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Bess , 593 F.2d at 755. Finally, the jury might think that the prosecutor’s opinion
is based on evidence beyond that presented at trial.
In short, prosecutorial arguments such as the one quoted above “infringe
upon the role of the jury as fact finder and determiner of guilt or innocence. They
amount to inadmissible and highly prejudicial evidence.” Bess , 593 F.2d at 755;
see also Splain , 545 F.2d 1134-35 (explaining that prosecutor who expresses
personal opinion of case “transgress[es] his inviolate responsibility of objectively,
yet forcefully, presenting the Government’s case at trial and leaving the ultimate
question of innocence or guilt to the jury ” (emphasis added)).
Whether habeas relief is warranted on this basis alone depends on a
“fundamental fairness” assessment of the misconduct viewed in the context of the
entire trial. See Hopkinson , 866 F.2d at 1210. We need not decide that issue here
because in any event it offers substantial additional support for petitioner’s claim
of cumulative error. 22
22
This misconduct claim was first raised on state post-conviction, where it
was held defaulted. Petitioner argued the default should be excused on the basis
of appellate counsel’s ineffectiveness, a claim the OCCA denied under the wrong
performance standard (see earlier discussion). On de novo consideration, we
conclude appellate counsel was professionally deficient in failing to recognize the
obvious and serious misconduct noted above. As for prejudice, we have no
trouble concluding that, as part of the cumulative-error claim pursued on direct
appeal (and post-conviction), it would and should have played a material role in
creating a reasonable probability of a favorable outcome. Thus, we consider it in
that regard here.
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b) Vouching for Jackson
Petitioner argued on his direct appeal that the prosecution had improperly
vouched for Jackson’s credibility through introduction of and commentary on
Jackson’s immunity agreement. The immunity agreement, which was introduced
into evidence, recited that (1) Jackson would testify truthfully, (2) he would
subject himself to scientific testing, (3) his information must be capable of
corroboration by independent evidence, and (4) the agreement would be void
should evidence arise that he was a principal in the murders.
The OCCA approved the admission of the agreement into evidence. The
OCCA held the provision relating to truthfulness was not a problem because that
provision did “‘no more than reveal that [Jackson] had an obligation to testify
truthfully and explain the consequences of a breach of that obligation.’” Cargle ,
909 P.2d at 823 (quoting state decision quoting United States v. Bowie , 892 F.2d
1494, 1498 (10th Cir. 1990)). The provisions relating to corroboration
(provisions 2 and 3, above) raised more concern, as the use of testimonial
agreements “‘becomes impermissible vouching . . . when the prosecutors
explicitly or implicitly indicate that they can monitor and accurately verify the
truthfulness of the witness’ testimony.’” Id. (quoting state decision quoting
Bowie , 892 F.3d at 1498); see Young , 470 U.S. at 16, 18 (recognizing it is
improper for prosecution to “convey the impression that evidence not presented to
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the jury, but known to the prosecutor, supports the charges against the
defendant”). However, the OCCA noted that while “the agreement said Jackson’s
information must be ‘capable’ of being corroborated independently, it does not
state authorities have done so or would be able to do so.” Cargle , 909 P.2d at
823. Thus, the OCCA held no error had been committed.
That conclusion is at least suspect under controlling federal law as
determined by the United States Supreme Court. The agreement’s requirement
that (1) Jackson’s account be capable of confirmation by independent evidence
and (2) that he would subject himself to scientific testing (for the obvious purpose
of corroboration), coupled with the fact that the government put on his testimony,
unavoidably implies to the jury that his truthfulness was corroborated outside the
record by the State, and thus those provisions in the agreement lent “the
imprimatur of the Government” to his testimony, potentially “induc[ing] the jury
to trust the Government’s judgment rather than its own view of the evidence.”
Young , 470 U.S. at 18-19. In Bowie , 892 F.2d at 1498, we held that “use of the
‘truthfulness’ portions of [a plea agreement to testify] becomes impermissible
vouching . . . when the prosecutors explicitly or implicitly indicate that they can
monitor and accurately verify the truthfulness of the witness’ testimony.”
(Emphasis added.) It is clearly impermissible to bolster a State witness by
suggesting that information available to the prosecution but not presented to the
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jury supports the witness’s testimony. Bowie , 892 F.2d at 1498; see Young , 470
U.S. at 18.
In any event, the constitutionally improper use of this agreement to vouch
for the truthfulness of Jackson’s testimony became unmistakable during the
State’s closing argument. During closing argument, the prosecutor said:
I want you to look at [the immunity agreement] very carefully. . . . If
we come up with any evidence showing he’s a principal in these
murders, this agreement is not worth the paper its written on, and
he’s charged. What this says to you is as of this good day not one
iota of evidence has come forth that Chris Jackson was involved in
these killings, the actual murders .
(Emphasis added). If this were just a comment on the trial evidence, the jury
could disregard it in light of its own knowledge of the evidence presented; but the
unqualified statement that no evidence “has come forth” would reasonably have
been understood by the jury to refer to all police investigation in the case.
Of course, unless specific constitutional guarantees are implicated, “a
prosecutor’s misconduct will require reversal of a state court conviction only
where the remark sufficiently infected the trial so as to make it fundamentally
unfair, and, therefore, a denial of due process.” Duckett v. Mullin , 306 F.3d 982,
988 (10 th Cir. 2002). Improper vouching for witnesses falls within this general
principle. See, e.g. , Moore v. Gibson , 195 F.3d 1152, 1173, 1175 (10 th Cir.
1999); Kappos v. Hanks , 54 F.3d 365, 367 (7 th Cir. 1995). Viewing the remark
quoted above and the vouching provisions of the immunity agreement within the
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context of the entire proceedings, we cannot say that this, by itself, resulted in a
fundamentally unfair trial. Duckett , 306 F.3d at 989. However, we do consider
the misconduct and resultant prejudice substantial enough to play a role in our
assessment of cumulative error.
3. Cumulative Error
As explained earlier, we review petitioner’s claim of cumulative error de
novo, unconstrained by the deference limitations in § 2254(d) because the OCCA
did not conduct the appropriate cumulative error review. And, while cumulative
error is typically expressed as an aggregate of “all errors found to be harmless,”
Toles , 297 F.3d 972 (quotation omitted), we consider all the substantive errors
identified above, even though such errors were individually determined not to
warrant habeas relief because of a lack of sufficient prejudice under substantive
constitutional standards which incorporated prejudice components serving
essentially the same function as a harmless-error inquiry.
Cumulative-error analysis is “an extension of the harmless-error rule,” and
“is determined by conducting the same inquiry as for individual error.” United
States v. Rivera , 900 F.2d 1462, 1469, 1470 (10 th Cir. 1990); see Wood , 207 F.3d
at 1237. Thus, the appropriate legal standard for a cumulative-error claim
depends on the harmless-error standard that would apply to the constituent errors.
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Rivera , 900 F.2d at 1470 n.6; see Wood , 207 F.3d 1237-38. The harmless-error
standard for individual habeas claims depends on the state courts’ disposition. If
the state courts did not address a harmless-error issue (or did so under the wrong
standard), we apply the standard generally adopted for habeas purposes in Brecht
v. Abrahamson , 507 U.S. 619, 637-38 (1993). Herrera v. Lemaster , 301 F.3d
1192, 1200 (10 th Cir. 2002) (en banc). Here, as we have noted, due in large part
to its imposition of inadequate procedural defaults, the OCCA did not address the
accumulated errors we have before us. Thus, consistent with Herrera and Rivera ,
we apply the Brecht standard, asking whether the many errors we have identified
during the guilt phase of this trial collectively “had substantial and injurious
effect or influence in determining the jury’s verdict.” Brecht , 507 U.S. at 638
(quotation omitted).
We have already explained in detail the nature and impact of the numerous
instances of ineffectiveness of trial counsel (and associated/alternative Brady
error) and prosecutorial misconduct with which we are concerned, and need not
repeat that discussion here. We emphasize, however, that these were not isolated,
insular errors scattered randomly throughout the proceedings. On the contrary,
these errors had an inherent synergistic effect which pertained to the two
absolutely critical witnesses for the State–Jackson and Jones. Defense counsel
unreasonably failed to challenge these vulnerable witnesses, while the prosecution
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impermissibly bolstered and vouched for them. Moreover, the prosecution invoked
its own professional expertise and the official imprimatur of the State to influence
the jury’s assessment of the evidence. In such a weak case totally dependent on
the credibility of these two witnesses, we have no difficulty in concluding that
habeas relief is warranted on the basis of cumulative error.
C. PENALTY-PHASE ERRORS
1. Ineffective Assistance of Counsel
“The sentencing stage is the most critical phase of a death penalty case. Any
competent counsel knows the importance of thoroughly investigating and
presenting mitigating evidence.” Romano , 239 F.3d at 1180. Dereliction of this
duty is constitutionally impermissible. Battenfield v. Gibson , 236 F.3d 1215,
1228-29 (10 th Cir. 2001) (collecting cases). The district court found counsel’s
patently inadequate, strategically bereft, and ethically dubious penalty-phase effort
to be an overwhelming display of deficient performance. We agree for
substantially the reasons stated by the district court and recited earlier in this
opinion. We therefore turn to the question of prejudice, asking “whether there is a
reasonable probability that, absent [counsel’s] errors, the sentencer . . . would have
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concluded that the balance of aggravating and mitigating circumstances did not
warrant death.” Strickland , 466 U.S. at 695.
In addressing penalty-phase prejudice, we evaluate the mitigation evidence
counsel failed to present relative to what was presented; the aggravating factors
found by the jury; and the overall strength of the State’s case. See Hale , 227 F.3d
at 1316 (following Stafford v. Saffle , 34 F.3d 1557, 1564 (10 th Cir. 1994)); Moore
v. Reynolds , 153 F.3d at 1098. The district court discussed at some length the
available mitigation evidence counsel failed to present. Petitioner’s mother
“would have told the jury about the circumstances surrounding Petitioner’s
premature birth [when she was fifteen years old and unmarried], his physical
problems as a child, his learning problems, his numerous moves during his
childhood, and the fact that Petitioner’s father was rarely around, did not support
the family, abused drugs, and abused her.” She also “would have told the jury that
she loved her son and that his life should be spared.” The district court noted
other witnesses with potentially significant mitigating information to offer, such as
family members who would have testified about petitioner’s positive personal
qualities and involvement with the children at his mother’s day care center, and
petitioner’s common-law wife who would have said he had acted like a father to
her young son. Finally, there was petitioner himself. He testified at the habeas
hearing that, had counsel advised him about the penalty phase and the nature of
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mitigation, he would have expressed to the jury his remorse over the consequences
of the incident he participated in (while insisting on his innocence of the murder
charges) and would have asked the jury for mercy, particularly with his family in
mind.
“Mitigating evidence plays an overwhelmingly important role in the just
imposition of the death penalty.” Romano , 239 F.3d at 1180 (quotation omitted).
“The presentation of mitigation evidence affords an opportunity to humanize and
explain–to individualize a defendant outside the constraints of the normal rules of
evidence.” Mayes v. Gibson , 210 F.3d 1284, 1288 (10 th Cir.), cert. denied , 531
U.S. 1020 (2000)). “As a practical matter, the defendant probably has little or no
chance of avoiding the death sentence unless the defense counsel gives the jury
something to counter both the horror of the crime and the limited information the
prosecution has introduced about the defendant.” Romano , 239 F.3d at 1180
(quotation omitted). Here, as a result of counsel’s utter lack of preparation, the
jury heard only brief, personally remote, and fairly generic testimony from
petitioner’s pastor, who simply could not relate the individualized, humanizing
facts that other potential witnesses could have provided. The inescapable message
sent to the jury was that no one who really knew the young man they had found
guilty of murder–not parents, not family members, not friends–would take the
stand to explain why his life was still worth saving. And the young man never
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spoke to them himself to express remorse or to otherwise suggest why he should
not be defined solely by the terrible act of which he stood convicted.
As for aggravating factors, the jury did find several which would have
weighed against any mitigation offered. However, the number of aggravators
over-represents their collective substance. The “heinous, atrocious or cruel”
aggravator associated with Sharon Paisley’s murder was clearly unsupported and
was struck by the OCCA on direct appeal for lack of evidence that petitioner had
inflicted any conscious suffering. There was sufficient evidence of the aggravator
with regard to Richard’s murder, but that was only indirectly attributable to
petitioner. Most other aggravators, other than the continuing threat of violence
aggravation, were of a relatively technical legal nature, for which the pertinent
evidence was not overwhelming nor indicative of much additional moral
egregiousness over and above the murders themselves.
Finally, as discussed in connection with our analysis of guilt-phase error, the
State’s case against petitioner was not particularly strong. Even on Jackson’s
testimony, petitioner’s conduct was reactive and precipitous rather than coldly
deliberative or sadistic, and, as noted above, his victim was not subjected to
conscious physical suffering before she died.
Weighing all of these considerations, we agree with the district court that,
had clearly available mitigating evidence been investigated and presented by
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professionally competent counsel, there is a reasonable probability that a different
sentencing result would have obtained. Counsel’s conduct “so undermined the
proper functioning of the adversarial process that the [penalty phase of] trial
cannot be relied on as having produced a just result,” and petitioner’s consequent
sentence is constitutionally invalid. Strickland , 466 U.S. at 686.
2. Prosecutorial Misconduct
The district attorney engaged in a wide range of improper argument, such as
misstating facts, personally attacking petitioner and his counsel, assuring the jury
that aggravating circumstances would not have been charged unless appropriate,
and indicating his own personal opinion regarding the appropriateness of the death
penalty. Because of procedural bar complications, however, we limit our focus to
the following exhortation to the jury, which petitioner challenged on direct appeal:
Ladies and gentlemen, you the jury, [assistant district attorney] Mrs.
Smith and me, and the police, all fulfilled their roles in this case
because that’s our duty. . . . [T]his defendant . . . committed a crime
so vile, so vicious, so despicable, so unnecessary that the death
penalty is the only answer. Sure your job is hard, but you can do it.
Only you can do it. The police department has done all that it can do.
When I sit down, Mrs. Smith and I will have done all that we can do.
Only the 12 of you can finish the job by going up in that jury room
and bringing back a verdict of death. Unless you do that, the efforts
of the police department and my office have all been in vain.
We agree with the district court that “[t]his is an extremely improper
argument” because “it profoundly misleads the jury” about its role in the criminal
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process “by suggesting that jurors are part of ‘the team’ of the prosecution and
police, rather than impartial arbiters between the State and the defendant.” The
Supreme Court has stressed repeatedly “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) (following Caldwell v. Mississippi , 472 U.S. 320 (1985)); see also Young ,
470 U.S. at 18 (holding prosecutor’s effort “to exhort the jury ‘to do its job’ . . .
has no place in the administration of justice”).
We also agree with the district court that, in rejecting petitioner’s challenge
on direct appeal, the OCCA “did not adequately recognize the serious impropriety
of the district attorney’s argument, nor did the court adequately state or consider
Petitioner’s challenge to this argument.” The OCCA described the argument as
merely “acknowledging to the jury the difficulty of their task and asking them
seriously to consider the punishment options available.” Cargle , 909 P.2d at 824.
That argument would, of course, be perfectly acceptable, but it is clearly not the
argument quoted above. The OCCA, in effect, edited out the obvious,
impermissible thrust of the prosecution’s remarks and then approved of the
innocuous remainder. Such analysis is not a reasonable application of the
controlling precedent and, therefore, is not entitled to deference under § 2254(d).
Although that improper jury argument may very well have been so
prejudicial in itself as to render the penalty-phase proceedings fundamentally
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unfair, we need not decide that issue because, when considered with the other
errors at the sentencing stage, we have no difficulty finding cumulative error.
3. Victim Impact Evidence
The district court also granted relief based on petitioner’s claim that the
nature and extent of victim impact evidence admitted during the penalty phase
went beyond the limits established in Payne v. Tennessee , 501 U.S. 808. While we
agree that the evidence exceeded the bounds delimited in Payne , we cannot affirm
the district court’s grant of relief in this regard, because, in our view, the OCCA’s
decision denying relief is entitled to deference under § 2254(d)(1).
The evidence in question included a lengthy and very emotional statement
read by Richard Paisley’s sister (Nancy Davis), similar though briefer testimony
from Sharon Paisley’s mother (Shirley Howell), and a number of photographs of
the victims while they were alive–one of Richard with his date of birth and date of
death written on the back. On petitioner’s direct appeal, the OCCA related the
witness testimony in great detail, see Cargle , 909 P.2d at 824-25 nn.12 & 13, and
discussed at length the concerns raised by both the testimony and the photographs,
id. at 829-30. We need not repeat that discussion here. We accept the OCCA’s
conclusions that “from the standpoint of admissibility of victim impact evidence,
much of it [was] irrelevant,” id. at 829; “the probative value of Ms. Davis’s
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statement is substantially outweighed by its prejudicial effect,” id. at 830; and “it
was error to admit the photographs,” which were irrelevant and prejudicial, id.
After acknowledging these various instances of Payne error, the OCCA
concluded they were “harmless beyond a reasonable doubt.” Id. at 835 (noting
there was sufficient proof of several aggravating circumstances). That the OCCA
applied the federal Chapman standard for harmless error, which its language
clearly suggests, is confirmed by its citation to a prior decision which in turn
expressly relied on Chapman . Thus, in determining whether habeas relief is
warranted on the basis of Payne , “the proper question [under § 2254(d)] is whether
the [OCCA’s] application of the Chapman standard was objectively unreasonable.”
Saiz v. Burnett , 296 F.3d 1008, 1012 (10 th Cir. 2002).
This court has held improper victim impact evidence of similar–indeed more
poignant–character was insufficient to warrant habeas relief. See, e.g. ,
Willingham , 296 F.3d at 930-31; Hain v. Gibson , 287 F.3d 1224, 1239-40 (10 th
Cir. 2002), petition for cert. filed, (No. 02-6438) (U.S. Sept. 14, 2002). We note
that neither of the witnesses explicitly requested or recommended the death
penalty, so this case does not implicate the special concerns underlying the
categorical prohibition on such testimony. See Hain , 287 F.3d at 1238; Robison v.
Maynard , 829 F.2d 1501, 1504-05 (10 th Cir. 1987), overruled on other grounds ,
Romano , 239 F.3d at 1169. Under the circumstances, we cannot say the OCCA
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was objectively unreasonable in holding that the admission of this improper victim
impact evidence was harmless.
Though Payne error thus will not support habeas relief on its own, it is still
relevant to our analysis of cumulative penalty-phase error. We agree with the
district court’s observation that the adverse effect of the victim impact evidence
becomes significant “when [it] is considered within the context of the meager
amount of mitigating evidence put on by Petitioner’s trial counsel, and the fact
that counsel’s constitutionally ineffective investigation and capital-stage
presentation failed to develop and put on a substantial amount of additional
mitigating evidence.”
4. Cumulative Error
We have already held that counsel’s dereliction of his professional duty to
develop and present mitigation evidence was, in itself, sufficiently egregious and
prejudicial to warrant habeas relief. Given the seriousness of the other errors
considered above, we also deem it appropriate to hold, alternatively, that
petitioner’s capital sentence is also fatally undermined on cumulative error
principles.
As was the case with guilt-phase cumulative error, this claim was exhausted
in state court, but the OCCA did not recognize and address the collective errors we
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have before us here. Thus, we address the issue de novo under the Brecht
standard, asking whether the various errors we have identified collectively “had
substantial and injurious effect or influence in determining the jury’s [sentence].”
Brecht , 507 U.S. at 637 (quotation omitted).
That question is not difficult to answer. As the district court noted, the
effect of the improper victim impact evidence was highlighted by the conspicuous
absence of counterbalancing mitigation evidence from the defense. Amplifying
the resultant prejudice was the district attorney’s exhortation to the jury to do its
job as part of the prosecution team and impose the death sentence which was, in
the prosecutor’s opinion, the only appropriate response to petitioner’s crimes.
Finally, the apparent strength of the State’s case with respect to those crimes was
greatly inflated by petitioner’s counsel’s failure to challenge the State’s vulnerable
witnesses, and the prosecution’s impermissible vouching for them, during the guilt
phase. We conclude that the death sentences imposed in this case were
substantially influenced by cumulative error and, therefore, cannot stand.
III. EVIDENTIARY SUFFICIENCY/DOUBLE JEOPARDY ANALYSIS
Our decision to grant relief on the guilt and penalty-phase grounds cited
above will leave the State the opportunity to retry petitioner. We must therefore
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consider challenges made by petitioner to the sufficiency of the evidence which, if
granted, would foreclose retrial under double jeopardy principles. See, e.g. ,
United States v. Smith , 82 F.3d 1564, 1567-68 (10 th Cir. 1996); United States v.
Massey , 687 F.2d 1348, 1354 (10 th Cir. 1982).
Petitioner argues that the evidence was insufficient to find him guilty of
aiding and abetting in Richard’s murder. The OCCA rejected this claim under the
controlling standard from Jackson v. Virginia , 443 U.S. 307, 319 (1979), i.e.,
“whether, after viewing the evidence in the light most favorable to the prosecution,
any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.” The district court held this disposition was entitled to
deference under § 2254(d), and we agree. The district court articulated the
following rationale for this conclusion, with which we concur:
The fundamental problem for Petitioner . . . is that even if he
had no intention of shooting anyone before he entered the Paisley
home and before Williams emerged from the bathroom, his actions in
response to the initial shots by Williams–namely, jumping up, going
across the room, pulling a gun out, and beginning to shoot Sharon
Paisley as her husband crawled across the floor–are enough to uphold
his conviction for Richard Paisley’s murder, under the Jackson
sufficiency-of-the-evidence test. A rational trier of fact could
conclude that . . . [he] made a conscious and deadly decision to
prevent Sharon Paisley from interfering with the murder of her
husband, by shooting her too.
While this basis for holding petitioner responsible for Williams’ unexpected attack
on Richard Paisley is inferential, it is, nonetheless, legally sufficient.
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Petitioner also challenged the sufficiency of the evidence supporting the
aggravators underlying his sentence. We need not determine whether there was
sufficient evidence to support every aggravator; one will suffice. In Poland v.
Arizona , 476 U.S. 147 (1986), the Court rejected the argument that a sentencing
body’s failure to find a particular aggravating circumstance constitutes an acquittal
for purposes of double jeopardy on that aggravator in the event of retrial. Id. at
155-56. Only a finding “that no aggravating circumstance is present is an
‘acquittal’ barring a second death sentence proceeding.” Id. at 156 (emphasis
added); see Romano , 239 F.3d at 1178 (holding Poland analysis applies to
Oklahoma death penalty scheme).
The OCCA found sufficient evidence to support several aggravators as to
each murder count. Our agreement as to the continuing threat aggravator, which
applied to both, is enough to allay the double jeopardy concerns recognized in
Poland . 23
23
Because of our decision to grant habeas relief on the basis of ineffective
assistance of counsel and, alternatively, on the basis of cumulative error, we need
not address any of petitioner’s other claims.
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IV. CONCLUSION
We AFFIRM the judgment of the district court invalidating petitioner’s
death sentences and REVERSE its judgment denying habeas relief as to
petitioner’s murder convictions. We therefore grant the writ both as to the
convictions and the death sentences, with the condition that the State may retry
petitioner within a reasonable time. If retrial is not commenced within such time,
the State may be subject to further federal proceedings to order petitioner’s
release. See Fisher , 282 F.3d at 1311.
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