Hogan v. Gibson

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
DEC 8 1999
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT

KENNETH HOGAN,

Petitioner - Appellant,
v.
No. 98-6299
GARY E. GIBSON; THE ATTORNEY
GENERAL OF THE STATE OF
OKLAHOMA,

Respondents - Appellees.

Appeal from the United States District Court
for the Western District of Oklahoma
(D.C. No. CIV-97-134-R)

Patrick J. Ehlers, Jr. (Janet Chesley and Vicki Ruth Adams Werneke with him on
the briefs), Assistant Federal Public Defender, Oklahoma City, Oklahoma, for
Petitioner - Appellant.

Jennifer B. Miller, Assistant Attorney General (W.A. Drew Edmonson, Attorney
General of Oklahoma with her on the brief), Oklahoma City, Oklahoma, for
Respondent - Appellee.

Before SEYMOUR, BRISCOE and LUCERO, Circuit Judges.

LUCERO, Circuit Judge.
 Kenneth Hogan appeals the denial of his petition for a writ of habeas

corpus, alleging seven grounds for relief arising out of his first-degree murder

conviction and death sentence in the District Court of Oklahoma County, affirmed

by the Oklahoma Court of Criminal Appeals. The United States District Court for

the Western District of Oklahoma granted a certificate of appealability, pursuant

to 28 U.S.C. § 2253(c) and Fed. R. App. P. 22(b)(1). Exercising jurisdiction

pursuant to 28 U.S.C. §§ 1291 and 2253, we reverse and remand to the district

court with instructions to grant the writ on the ground that Hogan was denied his

constitutional rights under Beck v. Alabama, 447 U.S. 625 (1980), when the trial

court refused to instruct the jury on the lesser included offense of first-degree

manslaughter.

I

On January 28, 1988, Kenneth Hogan stabbed and cut Lisa Stanley more

than twenty times in the throat, head, neck, chest, and back. Approximately three

of these stab wounds would have been independently fatal without immediate

medical attention. George Stanley, the victim’s husband, found her dead body

that evening in the couple’s apartment and called the police. At the crime scene,

investigators found evidence of a struggle but no sign of forced entry and

discovered a large butcher knife and red stains that appeared to be blood in the

bathroom sink. Hogan confessed to the crime six days later.

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 Hogan and the victim had been friends for several years. Although the

exact nature of their relationship was disputed at trial, Becky Glenn, Stanley’s

close friend and next-door neighbor, testified that Hogan and the victim were

close friends who saw each other regularly outside of her husband’s presence and

without his knowledge during the months leading up to the murder. Hogan’s wife

testified that Stanley frequently called Hogan during that same time period.

Although Hogan told a police officer during his interrogation that he had thought

about having sex with Stanley, there is no evidence on the record that the two

were ever intimate.

George Stanley testified at trial that approximately six days before the

murder, Hogan visited the Stanleys at their apartment, during which time he

boasted of taking a martial arts class in which he was learning how to use a knife

to cause fatal injury and displayed a knife he had brought with him. George

Stanley testified that after the visit, Lisa stated that Hogan was making her

nervous.

On the morning of the murder, George and Lisa Stanley smoked marijuana

together between approximately 11:00 and 11:45 A.M., before George left for

work. In Hogan’s February 3, 1988, confession to the police, a tape recording of

which was played to the jurors, he related the following:

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 After lying to his wife about going to work, Hogan visited the Stanley

home on the early afternoon of January 28, at Stanley’s request, to assist her with

a book report she was writing. He and the victim smoked marijuana together. 1

Stanley requested that Hogan steal a stereo for her, but he declined because of

burglary charges pending against him. Soon thereafter, the two began to argue.

Stanley threw a coat rack down in anger and refused to let Hogan leave the house.

Hogan placed his hand over her mouth to quiet her, and she threatened to scream

and bang on the apartment walls to alert the neighbors and to tell the police that

he had attempted to rape her. Stanley then ran into a bathroom and locked the

door. Hogan tried to reason with her, then kicked open the bathroom door and

threatened to tell her husband “about the stuff that she’s been doing, that he don’t

know that she is doing . . . or done.” (IV O.R. at 947 (Tr. of Feb. 3, 1988, Hogan

Interview at 3 (at trial, Def.’s Ex. 3, distributed to jury)) (“Hogan Interview”).)

Stanley ran towards the front door, but Hogan kicked the door shut and threatened

to tell both her husband and her mother about an abortion that she had shortly

before her marriage from a sexual encounter with a former boyfriend. Hogan said

Stanley then “got a wild look in her eye” and ran to the kitchen. (Hogan

1
Hogan alleges that the marijuana he and Stanley smoked had been dipped in
PCP, but a test conducted by the medical examiner’s office of Stanley’s body revealed no
evidence of PCP in her bloodstream. The record contains no evidence to support Hogan’s
allegation.

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Interview at 3.) She returned with a knife and “pushed” the knife at him. As

Hogan attempted to grab the knife from her hand, Stanley pulled the knife back

and “swung” at Hogan again, cutting him. (Id. at 3.) Hogan seized the knife, and

Stanley ran towards the kitchen, where Hogan assumed she was going to get

another knife. Hogan claimed he was afraid that Stanley would falsely accuse

him of rape to explain his injuries. Hogan chased Stanley and stabbed her

repeatedly, ultimately killing her.

Reviewing blood evidence from the crime scene, a police expert concluded

that Stanley remained in an upright position during a portion of the stabbing, and

that the stabbing began in the kitchen, with the final stabs coming in the living

room area. Expert testimony stated that it was not possible to determine whether

blood on a fragment of the knife came from only one person. In his confession,

Hogan stated that he killed her “[w]ith the knife she cut me with and it wasn’t . . .

it was like I wasn’t even there . . . just somebody else . . . it wasn’t even me . . .

It was stabbing her and I couldn’t stop him.” (Id. at 4 (ellipses in original).)

Before fleeing the scene, Hogan threw the room’s contents into disarray,

hoping to make it appear as though there had been a fight between Stanley and an

unknown intruder. He cleaned the wounds Stanley had inflicted on his hand and

the butcher knife, left the apartment, and drove to a hospital emergency room for

treatment. Hospital staff who admitted him that afternoon testified that he gave

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conflicting stories about how he was wounded and that he did not appear to be

suffering from either an emotional disturbance or from the influence of drugs.

Hogan’s hand wounds had bled profusely and ultimately required treatment by a

surgeon. An examining physician testified that Hogan’s wounds were not

inconsistent with his grabbing the knife and having it pulled away.

Hogan later asked his wife to lie to the police about his whereabouts on

January 28 and the source of his injuries, but she instead informed investigators

that he was not home on the day of the murder, that she did not know where he

had been that day, and that he had asked her to tell the police that he had been

home all day. Bloodstains were found on Hogan’s clothes. On February 3, 1988,

the police interviewed Hogan, and during the taped interrogation he ultimately

confessed in detail to the killing.

Hogan was convicted and sentenced to death, based on the jury’s finding of

the “especially heinous, atrocious, or cruel” aggravating circumstance. A divided

Oklahoma Court of Criminal Appeals affirmed. See Hogan v. State, 877 P.2d

1157, 1164 (Okla. Crim. App. 1994) (“Hogan I”), reh’g denied, 877 P.2d at 1167,

cert. denied, 513 U.S. 1174 (1995). The conviction and sentence were affirmed

again on post-conviction review. See Hogan v. State, No. PC-95-1337, at 9

(Okla. Crim. App. Dec. 19, 1996) (“Hogan II”). After exhausting all available

remedies for post-conviction relief in Oklahoma, Hogan filed a timely petition for

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habeas corpus in federal district court in June 1997, raising thirteen claims

concerning his trial and sentencing hearing, and alleging ineffective assistance of

trial and appellate counsel. The district court denied Hogan’s petition, but

granted him a certificate of appealability as to all issues. See Hogan v. Ward, No.

CIV-97-134-R (W.D. Okla. April 24, 1998) (“Hogan III”).

II

Because Hogan filed his habeas petition on June 30, 1997, more than a year

after the April 24, 1996, effective date of the Antiterrorism and Effective Death

Penalty Act of 1996 (“AEDPA”), the provisions of AEDPA dictate our standard

of review for Hogan’s petition. See Rogers v. Gibson, 173 F.3d 1278, 1282 n.1

(10th Cir. 1999). We may not grant Hogan’s petition for a writ of habeas corpus

with respect to any claim that was adjudicated on the merits in State court
proceedings unless the adjudication of the claim—
(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as determined
by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the State
court proceeding.

28 U.S.C. § 2254(d). 2

2
Numerous circuits have attempted to elaborate on the meaning of 28 U.S.C.
§ 2254(d), as amended by AEDPA. See generally Matteo v. Superintendent, 171 F.3d
877, 885-91 (3d Cir.), cert. denied, 120 S. Ct. 73 (1999) (summarizing approaches of
other circuits and presenting a distinct interpretation). The United States Supreme Court
has granted certiorari in a case presenting for review the Fourth Circuit’s interpretation of
the standards. See Williams v. Taylor, 163 F.3d 860, 865-66 (4th Cir. 1998), cert.
(continued...)

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 III

We confront Hogan’s argument that the trial court’s failure to instruct the

jury on first-degree manslaughter and second-degree murder denied him his

constitutional due process rights as defined by Beck v. Alabama, 447 U.S. 625

(1980), and its progeny. At trial, Hogan’s counsel had requested only a first-

degree manslaughter instruction. Hogan’s claim that the trial court committed

reversible error in not giving a second-degree murder instruction was raised for

the first time on post-conviction review before the Oklahoma Court of Criminal

Appeals, which found the claim to be waived. See Hogan II, No. PC-95-1337, at

2 n.5. 3 We therefore begin by considering Hogan’s preserved Beck claim

challenging the trial court’s failure to provide the jury with a first-degree

manslaughter instruction. The Oklahoma Court of Criminal Appeals discussed

the claim in response to Hogan’s petition for rehearing of his direct appeal. See

Hogan I, 877 P.2d at 1167-68.

(...continued)
2

granted, 119 S. Ct. 1355 (Apr. 5, 1999) (No. 98-8384). For purposes of this case,
however, we need not establish a precise interpretation for this Circuit in the interim
because, as discussed at Part III.C, the Oklahoma Court of Criminal Appeals did not
adjudicate Hogan’s Beck claim on the merits.
3
“[A] state prisoner seeking federal habeas relief may not prevail on a Beck claim
as to a lesser included instruction that he or she failed to request at trial.” Hooks v.
Ward, 184 F.3d 1206, 1234 (10th Cir. 1999). Because we reverse the district court with
orders to grant the writ of habeas corpus to order a new trial, we do not address, because
they may not recur, Hogan’s claims of constitutionally ineffective assistance of counsel
arising from counsel’s failure to request a second-degree murder instruction.

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 A

Beck held that “a sentence of death [may not] constitutionally be imposed

after a jury verdict of guilt of a capital offense, when the jury was not permitted

to consider a verdict of guilt of a lesser included non-capital offense, and when

the evidence would have supported such a verdict.” 447 U.S. at 627 (quotation

omitted). The Court explained its rationale as follows: “[W]hen the evidence

unquestionably establishes that the defendant is guilty of a serious, violent

offense—but leaves some doubt with respect to an element that would justify

conviction of a capital offense—the failure to give the ‘third option’ of convicting

on a lesser included offense would seem inevitably to enhance the risk of an

unwarranted conviction.” Id. at 637. In other words, the purpose of the rule “is

to eliminate the distortion of the fact-finding process that is created when the jury

is forced into an all-or-nothing choice between capital murder and innocence.”

Spaziano v. Florida, 468 U.S. 447, 455 (1984) (citing Beck, 447 U.S. at 638-43).

More recently, the Court has held there is no constitutional violation under Beck

either when a court instructs the jury on one lesser included offense supported by

the evidence even if others might be warranted, see Schad v. Arizona, 501 U.S.

624, 647-48 (1991), or when a jury is given no option other than a capital offense

at the guilt phase of a trial where the state law under which the defendant was

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convicted has no lesser included offense, see Hopkins v. Reeves, 118 S. Ct. 1895,

1900-03 (1998).

Unlike Hopkins, 118 S. Ct. at 1900, where Nebraska courts had consistently

held “that second-degree murder and manslaughter are not lesser included

offenses of felony murder,” id. (citations omitted), Oklahoma courts have treated

first-degree “heat of passion” manslaughter as a lesser included offense of first-

degree murder. See, e.g., Boyd v. Ward, 179 F.3d 904, 917 (10th Cir. 1999)

(stating that under Oklahoma law “first degree manslaughter . . . is a lesser

included offense of first degree murder”) (citing Lewis v. State, 970 P.2d 1158,

1165-66 (Okla. Crim. App. 1999)); Shrum v. State, No. F-98-497, 1999 WL

974019, at *3 (Okla. Crim. App. Oct. 27, 1999) ; Turrentine v. State , 965 P.2d

955, 969 (Okla. Crim. App. 1998) ; Le v. State , 947 P.2d 535, 546 (Okla. Crim.

App. 1997), cert. denied , 118 S. Ct. 2329 (1998); see also Hooks v. Ward , 184

F.3d at 1235-37 (analyzing Oklahoma courts’ refusal to give first-degree

manslaughter instruction under Beck ); Jackson v. State , 964 P.2d 875, 899 (Okla.

Crim. App. 1998) (Lumpkin, J., concurring) (stating that “First Degree

Manslaughter, heat of passion, could be a lesser included offense of malice

murder, based on an analysis of the elements of each offense . . . . [T]he concept

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of heat of passion is fairly embraced and included within the element of pre-

meditation”). 4

Respondent-appellee argues as a preliminary matter that Beck is

inapplicable to Oklahoma. Unlike the procedure under review in Beck, in which

the jury was forced to choose between death and acquittal, Oklahoma’s capital

trial procedure “allows a jury to know, during voir dire, that there are three

sentencing options for first degree murder: life, life without parole, and death;

therefore, the guilt determination is not dependent on the jury’s feeling on

whether the defendant deserves death.” Willingham v. State, 947 P.2d 1074, 1082

(Okla. Crim. App. 1997), cert. denied, 118 S. Ct. 2329 (1998), overruled on other

grounds by Shrum, 1999 WL 974019, at *3 & n.8. After consideration of this

distinction and careful review of Beck and its progeny, however, we determined

conclusively that “a defendant in a capital case [is entitled] to a lesser included

instruction when the evidence warrants it, notwithstanding the fact that the jury

may retain discretion to issue a penalty less than death,” and we held that the rule

4
Oklahoma at one time employed, although inconsistently, the statutory elements
test for determining whether an offense is a lesser included offense of a particular crime,
comparing the statutory elements of the lesser offense to those of the greater to determine
whether all of them are contained therein. See Shrum, 1999 WL 974019, at *3 & n.8
(overruling Willingham v. State, 947 P.2d 1074, 1080 (Okla. Crim. App. 1997) and
holding, prospectively, that Oklahoma adopts the “elements approach” for determining
whether a lesser included offense instruction is warranted); see generally Hopkins, 118 S.
Ct. at 1901 n.6 (discussing statutory elements and “cognate evidence” approaches to
determining whether one offense is a lesser included offense of another).

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in Beck indeed applies to Oklahoma. Hooks, 184 F.3d at 1227. We therefore

consider the merits of Hogan’s Beck claim.

B

In its denial of rehearing on the direct appeal, the Oklahoma Court of

Criminal Appeals briefly discussed the claim that Hogan was constitutionally

entitled to a first-degree manslaughter instruction. See Hogan I, 877 P.2d at

1167. The court noted that the jury “was given a lesser included instruction as it

related to self-defense and this clearly would be a ‘third option’ for the jury. . . .

[T]he case before us [is unlike Beck because] the jury was instructed and given a

lesser included offense option.” Id.

The Oklahoma court assumed that a self-defense instruction constitutes a

lesser included offense instruction and thus a “third option” in addition to capital

murder and acquittal. This assumption is contrary to the meaning of Beck and its

progeny. Self-defense is not a lesser included offense of a murder charge; rather,

if a defendant proves a defense of “perfect” self-defense to a murder charge, “his

homicide is justified, and he is guilty of no crime—not murder, not manslaughter,

but no crime.” 2 Wayne R. LaFave & Austin W. Scott, Jr., Substantive Criminal

Law § 7.11(a), at 271 (1986). Under Oklahoma law, homicide committed in self-

defense “[w]hen resisting any attempt to murder [the defendant], or to commit any

felony upon him” or in the defendant’s “lawful defense . . . when there is a

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reasonable ground to apprehend design to commit a felony, or do some great

personal injury, and imminent danger of such design being accomplished,” is

deemed justifiable homicide. Okla. Stat. tit. 21, § 733; see also Camron v. State,

829 P.2d 47, 56 (Okla. Crim. App. 1992) (“Our statutes recognize . . . the defense

of justifiable homicide [which] is available to any person when the homicide is

committed under one of the . . . fact situations set forth in [Okla. Stat. tit. 21,]

§ 733.”); cf. Schad, 501 U.S. at 647 (holding that the failure to give lesser

included offense instruction does not render a capital verdict unreliable if the jury

has been instructed on another lesser offense because the jury is not forced into

an all-or-nothing choice). Justifiable homicide is equivalent to acquittal and

therefore does not obviate the dilemma underlying the concerns of Beck. See

Beck, 447 U.S. 642-43.

Similarly, the state appellate court’s original conclusion on direct appeal

that a manslaughter instruction was not necessary because there was “sufficient

evidence” to support a finding of premeditation in the trial record is squarely

contrary to the holding of Beck. Hogan I, 877 P.2d at 1160. Beck, 447 U.S. at

627, requires a court to consider whether there is sufficient evidence to warrant

instructing the jury on a lesser included offense, not whether there is sufficient

evidence to warrant conviction on the greater offense. A Beck claim is not the

functional equivalent of a challenge to the sufficiency of the evidence for

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conviction; rather, Beck focuses on the constitutionality of the procedures

employed in the conviction of a defendant in a capital trial and is specifically

concerned with the enhanced risk of an unwarranted capital conviction where the

defendant’s life is at stake and a reasonable jury could have convicted on a lesser

included offense. See id. at 637. Given these concerns, the sufficiency of the

evidence of the greater offense is distinct from the Beck inquiry into whether the

evidence might allow a jury to acquit a defendant of the greater of the offenses

and convict him or her of the lesser. 5

C

Neither the Oklahoma Court of Criminal Appeals’ inquiry as to whether

instructing the jury on self-defense when a lesser included offense is available

and supported by the evidence, nor its finding that there was sufficient evidence

to convict appellant of the greater offense, satisfies the constitutional

requirements of Beck and its progeny. Supreme Court precedent requires that the

jury in a capital case be provided, in appropriate circumstances, with more than a

5
Moreover, even under our rule of deference to state court interpretations of
state law, see Boyd, 179 F.3d at 917, we must note that the conclusion of the Court of
Criminal Appeals is “clearly inaccurate” under established state law, which dictates that
evidence of intent does not render improper instruction on manslaughter. Le, 947 P.2d at
546 (“The State suggests that the [first-degree manslaughter] instruction is improper
wherever there is evidence of intent. This is clearly inaccurate; under that theory a
heat-of-passion instruction would never be appropriate where there was evidence of
malice murder.”).

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choice between first-degree murder and acquittal. See, e.g., Spaziano, 468 U.S. at

456 (“We reaffirm our commitment to the demands of reliability in decisions

involving death and to the defendant’s right to the benefit of a lesser included

offense instruction that may reduce the risk of unwarranted capital convictions.”).

The Oklahoma Court of Criminal Appeals’ rejection of Hogan’s Beck claim on

grounds either that Hogan’s self-defense instruction constituted a lesser included

instruction, or that the evidence was sufficient to support conviction on the

greater charge, is in gross deviation from, and disregard for, the Court’s rule in

Beck.

Under Beck, a petitioner is required to establish not only the denial of a

lesser included offense instruction, but also that he presented sufficient evidence

to warrant such an instruction. See Beck, 447 U.S. at 637. Thus, while the

Oklahoma Court of Criminal Appeals cited a standard consistent with Beck, see

Hogan I, 877 P.2d at 1160 (stating that “[t]he trial court only has the duty to

instruct on lesser degrees when required by the evidence”) (citing Dunford v.

State, 702 P.2d 1051 (Okla. Crim. App. 1985); Jones v. State, 650 P.2d 892

(Okla. Crim. App. 1982)), we do not find the expected analysis under that

standard in the discussion that follows. Instead, the Oklahoma Court of Criminal

Appeals engaged in the wrong inquiry—asking on rehearing whether Hogan’s

self-defense instruction constituted a lesser included instruction, or initially

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whether the evidence was sufficient to support conviction on the greater charge ,

but never engaging in the correct inquiry as to whether Hogan presented

sufficient evidence to warrant a first-degree manslaughter instruction.

Pursuant to AEDPA, the applicable standard of review depends on whether

we characterize an examination of the sufficiency of the evidence for a lesser

included offense instruction as a “determination of a factual issue,” 28 U.S.C.

§ 2254(e)(1), or a legal conclusion. If the determination of insufficient evidence

is a legal conclusion, we are to ask whether it was contrary to or an unreasonable

application of clearly established Supreme Court precedent. See 28 U.S.C.

§ 2254(d)(1). If, on the other hand, it is a factual determination, we ask whether

it represented “an unreasonable determination of the facts in light of the evidence

presented,” 28 U.S.C. § 2254(d)(2), and give the state court’s determination a

presumption of correctness that can be rebutted only by clear and convincing

evidence. See 28 U.S.C. § 2254(e)(1). As we recently noted in Moore v. Gibson,

Nos. 98-6004, -6010, 1999 WL 765893, at *22-23 (10th Cir. Sept. 28, 1999)

(citing cases), our precedents have not been consistent in their treatment of

whether a question of sufficiency of the evidence represents a legal conclusion or

a factual determination. But cf. Bryson v. Ward, 187 F.3d 1193, 1207 (10th Cir.

1999) (treating determination that evidence did not support lesser included

offense instructions as factual determination subject to presumption of correctness

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under 28 U.S.C. § 2254(e)(1)). We need not determine definitively which is the

more appropriate analysis, however, because there is no finding discernible to us

that is entitled to any kind of deference under the standards of review provided

for by 28 U.S.C. § 2254(d)(2) & (e)(1). 6 Deference to the state court under

AEDPA is only required for “any claim that was adjudicated on the merits in

State court proceedings.” 28 U.S.C. § 2254(d); see, e.g., Moore, 1999 WL

765893, at *7; Wallace v. Ward, No. 98-7116, 1999 WL 705152, at *3 (10th Cir.

Sept. 10, 1999); Hooks, 184 F.3d at 1223. Here, because the Oklahoma Court of

Criminal Appeals made no findings as to whether Hogan had presented sufficient

evidence to warrant a first-degree manslaughter instruction, it is axiomatic that

there are no findings to which we can give deference. As such, we will consider

Hogan’s Beck claim on the merits. Hooks, 184 F.3d at 1223. Since the state

court did not decide the claim on its merits, and instead the federal district court

decided the claim in the first instance, we review the district court’s conclusions

of law de novo and factual findings, if any, for clear error. See, e.g., Moore,

1999 WL 765893, at *7; LaFevers v. Gibson, 182 F.3d 705, 711 (10th Cir. 1999).

6
We note that although we cannot resolve this inconsistency, this panel
unanimously agrees that the correct approach is to treat a determination of the sufficiency
of the evidence for a lesser included offense instruction as a conclusion of law. See
Bryson, 187 F.3d at 1210-13 (Briscoe, J., concurring).

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 Although Beck did not establish a clear rule as to the precise quantum of

evidence that would warrant an instruction on a lesser included offense, the Beck

Court noted that “[i]n the federal courts, it has long been ‘beyond dispute that the

defendant is entitled to an instruction on a lesser included offense if the evidence

would permit a jury rationally to find him guilty of the lesser offense and acquit

him of the greater.’” Beck, 447 U.S. at 635 (quoting Keeble v. United States, 412

U.S. 205, 208 (1973)). 7 This Circuit has since adopted and applied that standard

in considering the sufficiency of the evidence of a lesser included offense for

Beck purposes on habeas review. See, e.g., Hatch v. Oklahoma, 58 F.3d 1447,

1454 (10th Cir. 1995) (denying Beck claim because “there is not ‘evidence,

which, if believed, could reasonably have led to a verdict of guilt of a lesser

offense’”) (quoting Hopper v. Evans, 456 U.S. 605, 610 (1982)); Parks v. Brown,

840 F.2d 1496, 1499-1502 (10th Cir. 1987), rev’d on other grounds, 860 F.2d

1545 (10th Cir. 1988) (en banc), rev’d on other grounds sub nom. Saffle v. Parks,

494 U.S. 484 (1990); see also Cordova v. Lynaugh, 838 F.2d 764, 767 (5th Cir.

1988), overrulling on other grounds recognized by Vanderbilt v. Collins, 994 F.2d

189, 195 (5th Cir. 1993) (holding that “the federal standard—a lesser included

offense must be given when a jury could rationally convict of the lesser offense

7
The Court in Beck, 447 U.S. at 636 n.12, surveyed the practice of the states and
found it consistent with this standard.

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and acquit on the greater offense—is equivalent to the Beck standard”). 8 To

succeed in his claim that the trial court’s failure to instruct the jury on first-

degree manslaughter violated Beck, Hogan must demonstrate that the evidence

presented at trial would permit a rational jury to find him guilty of first-degree

manslaughter and acquit him of first-degree murder. See Hopper, 456 U.S. at

610.

The relevant portion of Oklahoma’s first-degree manslaughter statute

defines the crime as homicide “perpetrated without a design to effect death, and

in a heat of passion, but in a cruel and unusual manner, or by means of a

dangerous weapon.” Okla. Stat. tit. 21, § 711(2). 9 Heat of passion and the lack

8
We note that the sufficiency standard for lesser included instructions in
Oklahoma, see Okla. Stat. tit. 22, § 916, is consistent with the standard cited in Beck and
adopted by this Circuit. See Beck, 447 U.S. at 636 & n.12 (discussing various state
descriptions of quantum of proof required for a lesser included offense instruction and
characterizing all as consistent with the standard “where the evidence warrants it”); Boyd
v. State, 839 P.2d 1363, 1367 (Okla. Crim. App. 1992) (holding that trial courts are
required to instruct the jury “on every degree of homicide which the evidence in any
reasonable view suggests”); Shrum, 1999 WL 974019, at *1 (holding that trial court
“must include all lesser included offenses supported by the evidence”); see also Le, 947
P.2d at 546 (holding that where there is evidence of intent and a first-degree murder
instruction is given, a heat-of-passion manslaughter instruction is also required if
evidence exists to support a conviction under Oklahoma’s manslaughter statute).
9
By contrast, under Oklahoma law, “[a] person commits murder in the first degree
when he unlawfully and with malice aforethought causes the death of another human
being. Malice is that deliberate intention unlawfully to take away the life of a human
being, which is manifested by external circumstances capable of proof.” Okla. Stat. tit.
21, § 701.7(A). The design to effect death “is inferred from the fact of killing, unless the
circumstances raise a reasonable doubt whether such design existed.” Okla. Stat. tit. 21, §
(continued...)

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of design to effect death are related requirements: “[T]he ‘heat of passion must

render the mind incapable of forming a design to effect death before the defense

of manslaughter is established.’” Allen v. State, 821 P.2d 371, 374 (Okla. Crim.

App. 1991) (quoting Walker v. State, 723 P.2d 273, 284 (Okla. Crim. App.

1986)); see generally Brown v. State, 777 P.2d 1355, 1358 (Okla. Crim. App.

1989) (explaining that Oklahoma subscribes to the “minority view” of first-degree

manslaughter that requires both heat of passion and no design to effect death).

“The elements of heat of passion are 1) adequate provocation; 2) a passion or

emotion such as fear, terror, anger, rage or resentment; 3) [the] homicide occurred

while the passion still existed and before a reasonable opportunity for the passion

to cool; and 4) a causal connection between the provocation, passion and

homicide.” Charm v. State, 924 P.2d 754, 760 (Okla. Crim. App. 1996) (citing

Allen, 821 P.2d at 374).

The phrase “a design to effect death” is treated as synonymous with “an

intent to kill.” See, e.g., Smith v. State, 932 P.2d 521, 532-33 (Okla. Crim. App.

1996). Thus, under Oklahoma law, even if a person kills in the heat of passion,

the killing may not be classified as first-degree manslaughter if the person

intended death to result from the act. A defendant is thus entitled to a

(...continued)
9

702. Moreover, “[a] design to effect death sufficient to constitute murder may be formed
instantly before committing the act by which it is carried into execution.” Okla. Stat. tit.
21, § 703.

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manslaughter instruction only if the evidence at trial would allow a jury to

rationally conclude the defendant’s rage rendered him or her incapable of forming

a design to effect death. See Allen, 821 P.2d at 374.

We agree with the district court that the Oklahoma Court of Criminal

Appeals, on direct appeal, failed “to consider what, if any, evidence supported

Hogan’s theory of manslaughter.” Hogan III, No. CIV-97-134-R, at 14. The

Oklahoma Court of Criminal Appeals stated:

[H]eat of passion alone does not reduce a homicide to manslaughter
without adequate provocation. We have held the fatal blow or blows
must be the unpremeditated result of the passion aroused. The
statement of the defendant plus the facts show that the blows did not
come because of any overt acts on the part of the deceased, but came
because the defendant believed the reporting of attempted rape,
together with his pending burglary charge, would result in his
imprisonment.

Hogan I, 877 P.2d at 1160 (internal citation omitted). Despite having paraphrased

the contents of Hogan’s confession in its recitation of the facts of the case, see id.

at 1159-60, the state appeals court’s analysis excerpted above does not confront

the merits of Hogan’s Beck claim. The Hogan I majority fails completely to

discuss Hogan’s statements in his confession that the victim initially committed

the overt act of coming at him with a knife and that the murder weapon was the

knife with which she originally attacked him. Nor does the court acknowledge, in

determining that the evidence was insufficient to warrant a manslaughter

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instruction, that Hogan’s knife injuries were corroborated by medical personnel at

the hospital where Hogan sought treatment after the murder.

Absent, too, is any mention of Hogan’s statement that he thought Stanley

was running to the kitchen to retrieve another knife when he began to stab her.

Specifically, Hogan told the police the following:

I was putting my coat on . . . and she just pushed [the knife] right at
me . . . I didn’t know what to say, do, or think, I just grabbed the
knife . . . and it hurt, it hurt, cause when I grabbed it, she pulled it
back and she swung at me again and got there, that’s when I just sw
[sic]. . . just bent it down and it just come right out of her hand and
she just ran back toward the kitchen like she was gonna get another
one and I, and I just knew that she was gonna tell the Police that I’d
tried to rape her, that’s why she cut me and I knew they’d believe her
over me cause I, cause I have burglary charges against me . . . .

(Hogan Interview at 3-4 (ellipses in original).) Under Oklahoma law, homicide

in response to a victim’s unprovoked attack with a dangerous weapon may

constitute first-degree manslaughter. See Le, 947 P.2d at 546 & n.21 (citing

Hayes v. State, 633 P.2d 751, 752 (Okla. Crim. App. 1981); Farmer v. State, 565

P.2d 1068, 1070 (Okla. Crim App. 1970); Williams v. State, 513 P.2d 335, 336-38

(Okla. Crim. App. 1973)).

Furthermore, the confession, along with other testimony introduced at trial,

demonstrates that the victim and defendant had a longstanding, close relationship

prior to the homicide, and that the defendant was visiting the victim at her request

in order to assist her in writing a book report for a class she was taking. There

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was no evidence introduced at trial that the defendant and victim had ever

assaulted each other, or even argued prior to the homicide. Finally, Hogan’s

confession alleged Stanley “got a wild look in her eye” immediately prior to

attacking him with a knife, and that he and the victim were both consumed by the

passion of their argument.

Although Hogan’s confession, along with other evidence in the record, can

be read to support a conclusion that Hogan killed Stanley out of his fear of

incarceration, it also may be used by a jury to rationally find that Hogan had

established adequate provocation and a causal connection between Stanley’s

initial attack and the homicide. The confession also may evidence Hogan’s fear

that the victim was attempting to get another knife, that his anger and rage arose

from the argument that consumed the two close friends, and that he acted before

there was any reasonable opportunity for his passion to cool. In conclusion, these

elements of Hogan’s confession could lead a reasonable jury to find adequate

provocation, heat of passion resulting from fear and terror, causation, and

immediacy, so as to warrant a first-degree manslaughter instruction. See Le, 947

P.2d at 546-47; Charm, 924 P.2d at 760; see also Wood v. State, 486 P.2d 750,

752 (Okla. Crim. App. 1971) (“It is the general rule that passion resulting from

fright or terror may be sufficient to reduce a homicide from murder to

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manslaughter and such a killing may be closely akin to a killing in self-defense.”)

(citation omitted).

Hogan’s confession, the central facet of the case against him, also could

have led a reasonable jury to conclude that his heat of passion rendered him

incapable of forming a design to effect death. Hogan described the killing as

follows: “[I]t was like I wasn’t even there . . . just somebody else . . . it wasn’t

even me. . . . It was stabbing her and I couldn’t stop him.” (Hogan Interview at

4.) In his confession, Hogan also specifically denied intending to kill Stanley: “I

didn’t even realize that I’d killed her until the next day, all I knew was my hand

hurt and she was dead,” (id.); “I mean I didn’t do it on purpose, I can’t even sleep

at night without waking up,” (id.); “I didn’t mean to hurt her,” (id. at 3). While a

jury might have disbelieved these statements as self-serving, had it believed them,

it could have concluded Hogan’s fear and anger rendered him incapable of

forming the requisite intent.

The facts of this case strikingly resemble those of Williams, 513 P.2d at

335, in which the Oklahoma Court of Criminal Appeals found that a first-degree

manslaughter instruction was warranted. The defendant in Williams, who was the

only witness to his murder of his wife, testified in his own defense and provided a

description of the crime remarkably similar to that which the jury in Hogan’s trial

heard in Hogan’s confession to the police. Following an argument in which his

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wife warned him that “I think I’ll just cut your black heart out,” Williams

testified:

[S]he went through that room that went into her bedroom, which was
the short way to the kitchen and I had this pistol right there beside
my bed in the bottom drawer and I picked it up thinking that she
would probably come back. . . . [A]nd then I discovered she was
using the telephone and I walked over there and I said “Honey don’t
call, don’t call. I’ll leave.” And the next thing I saw was something
up here which I thought was a butcher knife and I had the pistol in
my left hand. I didn’t have no idea of using it. I was going to try to
protect myself to get out of the house and I wanted to stop her from
making the telephone call. So she drew back and swung at me and I
threw my right arm to try to ward off the blow and she missed me. I
don’t know if she even touched me or not. I just don’t know and I
just had the gun down there and I just pulled the trigger and when it
went off . . . I’ve shot a .45 pistol a lot in training bird dogs to keep
them from going gun-shy as a puppy, but in an inclosure I had never
heard one and I’ll tell you honestly it’s a terribly loud noise and I
just went blank and just stood there just pumping that gun.

Id. at 336 (ellipsis in original). As in Hogan’s confession, the assailant attempted

to leave the scene prior to the homicide but claimed he was barred from doing so

by the victim; as in Hogan’s confession, the victim attacked first with a knife; and

as in Hogan’s confession, the assailant described the killing itself in distanced,

passive terms—“I just went blank and just stood there just pumping that gun,” id.,

in Williams’s case, and “[I]t was like I wasn’t even there . . . just somebody else .

. . it wasn’t even me. . . . It was stabbing her and I couldn’t stop him,” in

Hogan’s. (Hogan Interview at 4.) Just as Hogan stabbed his victim multiple

times, creating three wounds that would have been independently fatal, the

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defendant in Williams shot his wife eight times at close range, and expert

testimony at trial stated that any one of five wounds could have independently

been fatal. See Williams, 513 P.2d at 336. In short, the circumstances

surrounding Hogan’s attack and the attack itself bear a striking resemblance to

those before the court in Williams.

After reviewing the defendant’s testimony in Williams, the Oklahoma Court

of Criminal Appeals concluded that “[t]he jury might reasonably interpret the

evidence to show that the initial firing of the gun was caused by a sudden and

unexpected attempt to attack defendant with a pair of scissors and fired by the

defendant while in a heat of passion,” and that a jury could have interpreted the

defendant’s testimony as proof of a “lack of a premeditated design to effect

death.” Id. at 338. Therefore, the Williams Court held that the trial court

committed reversible error in failing to give the jury a first-degree manslaughter

instruction. Id. at 338-39. In the case before us, a jury could reasonably

interpret Hogan’s description of his initial stabbing of Stanley as a response,

made in the heat of passion, to her knife attack, based on his belief that, having

been disarmed, Stanley was running to the kitchen to obtain another weapon.

Under Oklahoma’s own law in Williams, Hogan’s confession constitutes

sufficient trial evidence of heat of passion and lack of intent to kill presented at

trial to warrant a first-degree manslaughter instruction, and that a reasonable juror

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could have convicted Hogan of manslaughter and acquitted him of first-degree

murder.

The district court, after concluding the state appellate court conducted an

incorrect legal analysis of Hogan’s Beck claim, nevertheless found the evidence

at trial insufficient to support an instruction on a lesser included offense. See

Hogan III, No. CIV-97-134-R, at 14-15. We disagree. Most significantly, the

district court dismissed the contents of Hogan’s confession—including its

description of the events leading up to the murder and of the murder itself—as

mere “self-serving statements” that “are insufficient to support manslaughter

instructions.” Id. at 15 (citing Ross v. State, 717 P.2d 117, 121 (Okla. Crim. App.

1986), affirmed, 487 U.S. 81 (1988)). Hogan’s confession, however, was the

centerpiece of the government’s case and is the only account in the record of the

murder itself. As discussed above, the ambiguity of the statements therein permit

reasonable inferences of both first-degree murder and first-degree manslaughter.

It is unreasonable to recognize the confession for only one of these possible

inferences: that Hogan, motivated by fear and anger that Stanley might wrongly

accuse him of rape, acted with malice and intent to kill. Given the centrality of

the confession to the case, it is unreasonable to ignore it to the extent it supports

an alternative inference, one that is inculpatory as to first-degree manslaughter

- 27 -
and exculpatory as to first-degree murder: that Hogan, reacting to adequate

provocation, acted in a heat of passion and without a design to effect death. 10

The district court also erroneously concluded that the multiple stab wounds

Hogan inflicted upon Stanley, viewed by themselves, “clearly indicate[] Hogan

had a ‘design to effect death,’” and that Hogan was therefore not entitled to

manslaughter instructions. Hogan III, No. CIV-97-134-R, at 16; see Okla. Stat.

tit. 21, § 702 (providing the fact of killing permits an inference of design to effect

death absent reasonable doubt arising from the circumstances). Under Oklahoma

law, depending on the evidence as to the totality of the circumstances surrounding

the homicide, a defendant may still be eligible for a first-degree manslaughter

instruction even where the defendant is alleged to have caused multiple,

10
The fact that a confession may be to some degree self-serving does not deprive
a jury of its prerogative to consider that fact in evaluating the credibility of a claim of
provocation and passion. See, e.g., Provo v. State, 549 P.2d 354, 356-57 (Okla. Crim.
App. 1976); Williams, 513 P.2d at 338. Ross held that self-serving statements of
wishing merely to wound, combined with expressions of regret, were insufficient to
warrant a first-degree manslaughter instruction. Ross, 717 P.2d at 121-22 (citing
Lumpkin v. State, 683 P.2d 985, 988 (Okla. Crim. App. 1984)). Viewed in light of the
consideration of such statements in cases such as Williams, however, it is obvious the
insufficiency of evidence for a manslaughter instruction in Ross stemmed not merely
from the self-serving character of the statements but also from the absence of any of the
other elements of first-degree manslaughter. See Okla. Stat. tit. 21, § 711 (defining
elements of manslaughter in the first degree). Such an interpretation of Ross is mandated
by its citation to Lumpkin, which nowhere holds that self-serving statements are
categorically inadmissible, but rather rejects arguments regarding heat of passion and
misdemeanor manslaughter instructions for lack of any evidence regarding heat of
passion and an underlying misdemeanor, respectively. See 683 P.2d at 988.

- 28 -
independently-fatal wounds. See Williams, 513 P.2d at 336-39; cf. Duvall v.

State, 825 P.2d 621, 627 (Okla. Crim. App. 1991) (considering “the nature of

[numerous stab] wounds and surrounding circumstances,” including no evidence

of heat of passion, in holding that no instruction on manslaughter was required in

a capital murder trial). Furthermore, we reiterate that under Oklahoma law,

evidence of intent does not necessarily prohibit a court’s issuing an instruction on

manslaughter. See supra note 5 (quoting Le, 947 P.2d at 546).

Nevertheless, respondent-appellee argues, under Darks v. State, 954 P.2d

152 (Okla. Crim. App. 1998), that premeditation can be inferred directly from the

homicide itself, without considering the circumstances thereof. 11 Cf. Okla. Stat.

tit. 21, § 702 (“A design to effect death is inferred from the fact of killing, unless

the circumstances raise a reasonable doubt whether such design existed.”). In

Darks, 954 P.2d at 161, the court found that four gunshots made at close range to

vital parts of the victim’s body led to the conclusion that there was insufficient

evidence to warrant a manslaughter instruction. The key, undisputed

circumstances of the homicide in Darks, however, which involved multiple

gunshots to the head and back and no mutual combat, are clearly distinguishable

11
While we are bound to defer to state courts’ “subsidiary interpretations of state
law,” Boyd, 179 F.3d at 917 (citing Davis, 100 F.3d at 771), we note that no Oklahoma
state court—certainly not the court reviewing Hogan’s claims—has interpreted Darks as
urged by the appellee in this case. We owe no deference to a novel view of state law
urged by a party to a case and never enunciated by a state court.

- 29 -
from the facts in the case before us. Darks and his victim had a longstanding

animosity over the custody of their child, and the victim had called the police

immediately before the murder and claimed that the defendant had run her car off

the road and taken the child from her. See id. at 156-57. Accordingly, we cannot

conclude that the Court of Criminal Appeals in Darks impliedly overruled its own

long-established case law, which holds that the quantity and quality of the wounds

cannot be viewed by themselves to be irrefutable evidence of premeditation

precluding a first-degree manslaughter instruction. 12

As discussed above, despite the circumstantial evidence of intent provided

by the nature of the killing, there was also direct testimonial evidence by Hogan

that he lacked a design to effect death. Beck requires that where the evidence

supports such alternative theories, the jury be presented the option to choose

between them, and not only to choose between a capital conviction and acquittal.

Based on our review of the record, we conclude that petitioner-appellant’s

constitutional rights were violated by the trial court’s refusal to instruct the jury

on first-degree manslaughter, despite evidence sufficient to warrant the

instruction; that the Oklahoma Court of Criminal Appeals acted contrary to

established Supreme Court precedent in its review of Hogan’s Beck claim because

12
Our rejection of appellee’s urged interpretation is bolstered by the statutory
instruction to consider whether accompanying circumstances permit a “reasonable
doubt”as to intent to kill. Okla. Stat. tit. 21, § 702.

- 30 -
of its failure to query whether the evidence was sufficient to warrant a lesser

included offense instruction; and that the district court’s conclusion that the

evidence was insufficient to warrant the instruction was erroneous.

Hogan himself confessed to committing a reprehensible act of violence.

By denying the jury the option to convict him on a lesser, non-capital offense

supported by the evidence, thus leaving only a choice between conviction of

capital murder and acquittal, Oklahoma may have “encourage[d] the jury to

convict for an impermissible reason—its belief that the defendant is guilty of

some serious crime and should be punished.” Beck , 447 U.S. at 642. Hogan

must, therefore, be retried. 13

Having reached that conclusion, we decline to consider the other trial-

related issues Hogan raises in his appeal—including his claim counsel rendered

ineffective assistance in failing to seek a second-degree murder

instruction—because they may not recur in his retrial. See, e.g., United States v.

Torrez-Ortega, 184 F.3d 1128, 1137 n.8 (10th Cir. 1999); United States v.

Sullivan, 919 F.2d 1403, 1421 (10th Cir. 1990).

13
A Beck error can never be harmless. See Hopper, 456 U.S. at 610 (“[T]he jury
[in a capital case] must be permitted to consider a verdict of guilt of a noncapital offense
‘in every case’ in which ‘the evidence would have supported such a verdict.’”). As the
Fifth Circuit has noted, “[t]he nature of the initial [Beck] inquiry itself is very similar to a
harmless error analysis. If the instruction was refused, but the jury could not rationally
convict on the lesser offense, then the alleged error would be harmless. In other words,
the harm is subsumed in the test itself.” Cordova, 838 F.2d at 770 n.8.

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 IV

The judgment of the district court denying the writ is reversed. We

REVERSE and REMAND to the district court to grant the writ, conditioned

upon the retrial of Hogan by the State of Oklahoma.

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