F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
MAR 13 2002
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT
DANIEL JUAN REVILLA,
Petitioner-Appellant,
v. No. 00-6244
GARY GIBSON, Warden,
Oklahoma State Penitentiary,
Respondent-Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
(D.C. No. CIV-98-147-M)
James L. Hankins of Hankins Law Office, Enid, Oklahoma, for
Petitioner-Appellant.
Sandra D. Howard, Assistant Attorney General, Chief, Criminal Appeals
(W.A. Drew Edmondson, Attorney General of Oklahoma, with her on the brief),
Oklahoma City, Oklahoma, for Respondent-Appellee.
Before SEYMOUR , BALDOCK , and MURPHY , Circuit Judges.
MURPHY , Circuit Judge.
I. INTRODUCTION
In 1987, an Oklahoma jury found Daniel Juan Revilla guilty of first degree
child abuse murder, Okla. Stat. tit. 21, § 701.7(C) (Supp. 1982). The jury also
found two aggravating circumstances: “especially heinous, atrocious or cruel”
conduct and “a probability that the defendant would commit criminal acts of
violence that would constitute a continuing threat to society.” The jury imposed
death as punishment. The state trial court formally imposed judgment on Revilla
in absentia , due to his escape from county jail shortly after trial.
Following his return to custody, Revilla unsuccessfully challenged his
conviction and sentence on direct appeal and through state collateral review.
See Revilla v. State , 877 P.2d 1143 (Okla. Crim. App. 1994); Revilla v. State ,
946 P.2d 262 (Okla. Crim. App. 1997). Thereafter, in January 1998, he
commenced this habeas corpus proceeding pursuant to 28 U.S.C. § 2254.
The district court ultimately denied his petition, and Revilla appealed. Upon
a thorough review of the record in light of the arguments presented, we conclude
Revilla is not entitled to habeas relief. Accordingly, as to all matters for which
a certificate of appealability (COA) has been granted, we affirm the judgment of
the district court; in all other respects, this appeal is dismissed pursuant to
28 U.S.C. § 2253(c).
-2-
II. BACKGROUND
A. Factual Background
In its opinion resolving Revilla’s direct appeal, the Oklahoma Court of
Criminal Appeals (OCCA) summarized the basic facts immediately surrounding
the death of the young victim, as well as the defense theory of how that death
innocently occurred, as follows:
Appellant was convicted of the child abuse murder of thirteen
(13) month old Mark Gomez. On January 26, 1987, Appellant took
his girlfriend, Michelle McElmurry, to the Jackson County Health
Department for a checkup. The decedent, Michelle’s son, was left
alone at the house shared by Appellant and McElmurry.
Approximately 40 minutes later, Appellant ran through the lobby of
the county hospital carrying the decedent in his arms, yelling that he
had swallowed his tongue and was not breathing. Subsequent
attempts by hospital medical personnel were unsuccessful in reviving
the unconscious infant. Hospital personnel noticed numerous
wounds and injuries to the decedent’s body, including bruises on his
back, blisters on his chest, peeling skin on his chest and groin area,
burns on his thighs and ear, and lacerations on his thighs and arms.
The autopsy report showed a swelling and bleeding of the brain and
the complete severance of the liver.
The Appellant denied causing the decedent’s death and
explained that when he returned home from dropping Michelle off at
the clinic, he saw the decedent laying on the floor. The decedent was
pale and appeared not to be breathing. Appellant attempted to revive
the decedent by striking him in the abdomen. When decedent gasped
for air, Appellant struck him again. Unable to start him breathing,
Appellant stated that he began to panic, grabbed the decedent, pulled
his clothes off, rushed him into the bathroom, placed him in the tub,
leaned over to turn on the cold water but accidently turned on the hot
water, scalding the infant. Turning the water off, he wrapped the
decedent in a blanket, and in his rush out of the bathroom, struck the
infant’s head on the door frame. Exiting the house in a hurry, he
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tripped and fell on top of the decedent onto a concrete cellar.
Appellant got up and rushed the decedent to the hospital.
Revilla , 877 P.2d at 1147. Contrary to Revilla’s theory of defense, the OCCA
specifically held the evidence “showed that [the victim’s] injuries could not have
occurred by accident, but were intentionally inflicted.” Id. at 1155.
In reviewing Revilla’s sentence, the OCCA again cited the victim’s many
injuries, and then recounted Revilla’s repeated abusiveness toward the victim
during the month leading up to the fatal incident, which it aptly characterized as
“a time of terror, torture and abuse for the young decedent:”
In addition to testimony that Appellant tried to fold decedent up in a
hide-a-bed couch; that he put him in a kitchen drawer and closed the
drawer; and that he taunted the 13 month old decedent by not letting
him go to his mother, go to sleep or play with his toys, evidence also
showed that the decedent was afraid of the Appellant and would cry
and refuse to leave with him; that Appellant had said that he hated
the decedent because he was not his child; that Appellant had slapped
the decedent and thrown him on the floor; that on one occasion
Appellant wrapped duct tape around the decedent’s shoulders, threw
him in a bathtub of cold water then hung him up by his heels; and on
another occasion that Appellant wrapped his belt around the decedent
and squeezed him.
Id. The OCCA accordingly “f[ou]nd the aggravator of ‘especially heinous,
atrocious or cruel’ supported by sufficient evidence.” Id. Further, the OCCA
noted that Revilla had at one time been in “possession of a sawed-off shotgun and
two machetes,” and, more importantly, “had written [letters] from jail threatening
Michelle McElmurry; the District Attorney; Juan Gomez, the decedent’s father;
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and Richard Taylor, McElmurry’s then roommate, with physical harm and even
death,” and concluded that “[t]his evidence of [his] violent nature, together with
the callous nature in which [he] killed Mark Gomez, support the jury’s finding of
the continuing threat aggravating circumstance.” Id. at 1156. The OCCA
therefore deemed “the sentence of death factually substantiated and appropriate.”
Id. “[F]inding no error warranting reversal or modification,” the OCCA upheld
Revilla’s conviction and death sentence for first degree murder. Id.
B. Procedural Background and Motion to Expand COA
After the denial of state post-conviction relief, Revilla filed the instant
petition raising many claims, not all of which have been pursued in this appeal.
The district court denied the petition but granted a COA on four claims:
(1) Revilla lacked the necessary culpability for capital punishment recognized in
Enmund v. Florida , 458 U.S. 782 (1982), and Tison v. Arizona , 481 U.S. 137
(1987); (2) trial counsel provided ineffective assistance by failing to request a
psychiatric expert to rebut the State’s case on the continuing threat aggravator;
(3) the heinous, atrocious, or cruel aggravator was not supported by the evidence
and thus was unconstitutionally applied; and (4) the heinous, atrocious, or cruel
aggravator merely duplicated elements of the offense and consequently failed to
narrow the class of offenders eligible for the death penalty, as required by the
Eighth Amendment.
-5-
This court conducted a case management conference at the outset of the
appeal. After the conference, the COA was expanded to include two additional
issues: (5) the pertinent evidence was insufficient to support the continuing threat
aggravator; and (6) the trial court admitted improper expert testimony of personal
opinion and statistical probabilities regarding the ultimate issue of guilt. 1
III. ANALYSIS
A. Standard of Review
Revilla filed this habeas proceeding after the April 24, 1996 effective date
of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA).
Consequently, as the district court recognized, federal review of the petition is
governed by the standards set out in 28 U.S.C. § 2254(d) and (e), 2
as amended by
1
Revilla has filed a second motion to expand the COA to add the claim that
he was improperly refused an instruction on the lesser included offense of second
degree manslaughter, contrary to Hopkins v. Reeves , 524 U.S. 88 (1998), and Beck
v. Alabama , 447 U.S. 625 (1980). The OCCA denied this claim because such an
instruction was not warranted by the record. Revilla , 877 P.2d at 1149-50. The
district court agreed. Revilla has not demonstrated “that reasonable jurists could
debate whether . . . the [claim] should have been resolved in a different manner or
that the issues presented are adequate to deserve encouragement to proceed
further,” and, thus, he has not made the “substantial showing of the denial of a
constitutional right” required by § 2253(c). Slack v. McDaniel , 529 U.S. 473, 484
(2000) (quotation omitted). His motion to expand the COA is denied.
2
The pertinent subdivisions of § 2254 provide as follows:
(d) An application for a writ of habeas corpus on behalf of a person
in custody pursuant to the judgment of a State court shall not be
granted with respect to any claim that was adjudicated on the merits
(continued...)
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AEDPA. Williams v. Taylor , 529 U.S. 362, 402 (2000). The Supreme Court
construed the language of § 2254(d)(1) in Williams , which this court has
summarized as follows:
AEDPA allows a federal court to grant habeas relief under
§ 2254(d)(1) only if the relevant state-court decision was either
“contrary to” or “an unreasonable application of” established
Supreme Court precedent. As for § 2254(d)(1)’s “contrary to”
clause, [the Court] noted that a state-court decision would be
contrary to the Court’s clearly established precedent in two
circumstances: (1) the state court applies a rule that contradicts the
governing law set forth in the Court’s cases; or (2) the state court
confronts a set of facts that are materially indistinguishable from
a decision of the Court and nevertheless arrives at a result different
from the result reached by the Supreme Court. Under the
“unreasonable application” clause, on the other hand, a federal
habeas court may grant the writ only if the state court identifies the
correct governing legal principle from the Court’s decisions but
unreasonably applies the principle to the facts of the prisoner’s case.
2
(...continued)
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.
(e)(1) In a proceeding instituted by an application for a writ of
habeas corpus by a person in custody pursuant to the judgment of
a State court, a determination of a factual issue made by a State court
shall be presumed to be correct. The applicant shall have the burden
of rebutting the presumption of correctness by clear and convincing
evidence.
-7-
To be clear, under § 2254(d)(1)’s unreasonable application clause,
a federal habeas court may not issue the writ simply because that
court concludes in its independent judgment that the relevant
state-court decision applied clearly established federal law
erroneously or incorrectly. Rather, that application must also be
unreasonable.
Thomas v. Gibson , 218 F.3d 1213, 1219-20 (10th Cir. 2000) (citations, quotations,
and associated alterations omitted).
These AEDPA principles require a state decision on the merits to which the
federal courts can defer. See 28 U.S.C. § 2254(d) (limits on review in subsections
(1) and (2) apply “with respect to any claim that was adjudicated on the merits in
the State court proceedings”), § 2254(e)(1) (presumption of correctness attaches
to “a determination of a factual issue made by a State court”). “To the extent that
the state court has not addressed the merits of a claim and the federal district
court made its own determination in the first instance, this court reviews the
district court’s conclusions of law de novo and its findings of fact, if any, for
clear error.” Cannon v. Gibson , 259 F.3d 1253, 1260 (10th Cir. 2001) (quotations
omitted).
B. Guilt Phase Issues
1. Enmund/Tison Claim
The Eighth Amendment prohibits “imposition of the death penalty on one
. . . who aids and abets a felony in the course of which a murder is committed by
others but who does not himself kill, attempt to kill, or intend that a killing take
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place or that lethal force will be employed.” Enmund , 458 U.S. at 797; see Tison ,
481 U.S. at 158 (clarifying that death penalty may be imposed on felony murder
defendant who was not actual killer and who had no specific intent to kill, if
evidence shows “major participation in the felony committed, combined with
reckless indifference to human life”). Revilla contends that this principle bars
imposition of the death penalty for his child abuse murder conviction, because
“the State was not required to prove the element of intent to kill [or even reckless
indifference], but was required [only] to prove that [he] ‘willfully’ or
‘maliciously’ injured, tortured, maimed or used unreasonable force upon the
victim.” Revilla , 877 P.2d at 1148.
This claim implicates some thorny procedural issues. The State insists it
was procedurally defaulted. Actually, owing to the complicated and uncertain
relationship this claim bears to other objections Revilla has advanced, it is not
clear the claim was exhausted, much less raised and defaulted, in state court. 3
In
contrast to its procedural complications, however, the claim may be disposed of in
3
We also note that, on occasion, the OCCA has applied an exception to its
default rule for claims involving “the sentencing to death of a person who is not
eligible for the death penalty.” Hawkins v. State , No. PC 96-1271, at 4 (Okla.
Crim. App. Mar. 18, 1998); see Clayton v. State , No. PCD-2000-1618, at 5 n.5
(Okla. Crim. App. Dec. 22, 2000). While these unpublished decisions may not be
binding authority, see Okla. Crim. R. 3.5(C)(3); Howard v. State , 738 P.2d 543,
545 (Okla. Crim. App. 1987), at the very least they reflect that Oklahoma does not
now invariably apply its default rules to bar death-ineligibility issues such as the
Enmund claim asserted here.
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straightforward fashion on substantive grounds. We therefore invoke our
discretion to bypass complex issues of exhaustion, see 28 U.S.C. § 2254(b), and
procedural bar, see Romero v. Furlong , 215 F.3d 1107, 1111 (10th Cir.), cert.
denied , 531 U.S. 982 (2000), to reject the claim on the merits, which is also the
course the district court followed. We review its decision de novo. Cannon , 259
F.3d at 1260.
It is essential, in applying Enmund , to appreciate a basic distinction the
Supreme Court has drawn regarding the focus of its Eighth Amendment analysis.
“Enmund does not concern the guilt or innocence of the defendant–it establishes
no new elements of the crime of murder that must be found by the jury.” Cabana
v. Bullock , 474 U.S. 376, 385 (1986). Rather,
Enmund holds only that the principles of proportionality embodied in
the Eighth Amendment bar imposition of the death penalty upon a
class of persons who may nonetheless be guilty of the crime of
capital murder as defined by state law: that is, the class of murderers
who did not themselves kill, attempt to kill, or intend to kill.
Id. Accordingly,
when a federal habeas court reviews [an Enmund claim], the court’s
inquiry cannot be limited to an examination of jury instructions.
Rather, the court must examine the entire course of the state-court
proceedings . . . to determine whether, at some point in the process,
the requisite factual finding as to the defendant’s culpability has
been made.
Id. at 387. A state trial or appellate court may make the necessary intent finding,
which is presumed correct under § 2254(e), “and unless the habeas petitioner can
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bear the heavy burden of overcoming the presumption, the [federal] court is
obliged to hold that the Eighth Amendment as interpreted in Enmund is not
offended by the death sentence.” Id. at 388.
The OCCA made the requisite finding of intent, albeit in a different legal
context. While addressing the availability of lesser included offense instructions
requested by the defense, the OCCA expressly found that the “evidence presented
by the State showed that the decedent’s death was the result of injuries
intentionally inflicted by the Appellant in a premeditated design to effect death .”
Revilla , 877 P.2d at 1149 (emphasis added). The emphasized language certainly
encompasses a culpability sufficient to satisfy the Eighth Amendment
prescriptions of Enmund and Tison , and Revilla has not cited clear and convincing
evidence to rebut this presumptively correct finding. See 28 U.S.C. § 2254(e)(1).
Further, we see no reason why the mere fact that the finding was made in the
context of a different issue should dilute its otherwise dispositive effect under
Cabana . 4
4
Our decision to affirm on this appellate-finding rationale does not imply
that an Enmund claim would otherwise necessarily be established on these facts.
Enmund , a felony murder case in which the defendant did not kill the victim, held
that the Eighth Amendment prohibits capital punishment “for one who neither
took life, attempted to take life, nor intended to take life.” Enmund , 458 U.S.
at 787, 797 (emphasis added); see Tison , 481 U.S. 149-50 (explaining that after
Enmund , “jurisdictions that limited the death penalty to” a “felony murderer who
actually killed, attempted to kill, or intended to kill . . . could continue to exact
(continued...)
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2. Admission of Expert Testimony
Revilla contends the state trial court improperly admitted certain testimony
from two experts which was damaging to the defense. When, as in this case, no
particular constitutional guarantees are implicated, such evidentiary objections
merely raise questions of state law and, therefore, are cognizable on habeas only
if the alleged error was “so grossly prejudicial [that it] fatally infected the trial
and denied the fundamental fairness that is the essence of due process.” Fox v.
Ward , 200 F.3d 1286, 1296 (10th Cir.) (quotation omitted), cert. denied , 531 U.S.
938 (2000). With this federal standard in mind, we conclude that the state courts’
resolution of Revilla’s evidentiary objections was not unreasonable and, hence,
those objections provide no basis for relief under § 2254(d)(1). See Thomas , 218
F.3d at 1225.
4
(...continued)
it” (emphasis added)). Since Revilla did in fact kill Mark Gomez, it is not clear
that Enmund would undermine use of the death penalty here, whatever his intent.
Indeed, several courts have specifically held that Enmund is inapplicable when
the defendant was actively involved in killing the victim. See, e.g. , Murray v.
Delo , 34 F.3d 1367, 1376 (8th Cir. 1994); Adams v. Wainwright , 709 F.2d 1443,
1447 (11th Cir. 1983). On the other hand, however, in Loving v. Hart , 47 M.J.
438 (C.A.A.F. 1998), the court noted “[n]either Enmund nor Tison involved an
actual killer,” concluded they “left unanswered . . . the question whether a person
who ‘actually killed’ may be sentenced to death absent a finding that the person
intended to kill,” and held “the phrase, ‘actually killed,’ as used in Enmund and
Tison , must be construed to mean a person who intentionally kills, or . . . exhibits
reckless indifference to human life.” Id. at 443. By rejecting Revilla’s Enmund
claim on the basis of Cabana ’s appellate-finding principle , we merely avoid,
rather than implicitly resolve, this debate.
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On direct appeal and in the district court, Revilla challenged the testimony
of three medical doctors, all of whom agreed that the nature and severity of the
victim’s injuries indicated they were not accidental. He does not now object to
the testimony of Dr. John Steumky, which was the most damaging. Dr. Steumky
stated that the injuries here were the type “we only see in beatings;” that the
victim “certainly is a battered child;” that the victim “was literally beaten to a
pulp and was killed;” that “[i]t absolutely defies the imagination to characterize
these injuries [as] possible C.P.R.;” and that, as to the head injury, there was “no
way” it could have been inflicted in the accidental manner explained by Revilla.
Trial Tr. for Sept. 16, 1987, at 94-96, 104. Given this testimony, it is difficult to
see how the other doctors’ cumulative and far less forceful opinions, even if
erroneously admitted, could possibly have been “so grossly prejudicial” as to have
rendered Revilla’s trial fundamentally unfair. Fox , 200 F.3d at 1296.
In any event, the OCCA held the opinions related by Dr. William Newland
and Dr. Larry Balding were properly admitted, and Revilla has not shown that
holding to be inconsistent with controlling evidentiary principles. Dr. Newland
had assisted in emergency room attempts to revive the victim. He indicated that,
based on information received from others regarding Revilla’s account of events
and his own observation of the victim, the victim’s injuries were caused by
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“non-accidental trauma.” See Trial Tr. for Sept. 14, 1987, at 94-101, 103-08.
The OCCA concluded:
We find no error in the admission of Dr. Newland’s testimony
as that of an expert witness. Due to his education and experience,
as set forth in the record, he was qualified to give an expert opinion
as to the cause of the injuries. While he testified that he did not
remember the exact people who gave him the background
information on the decedent, Dr. Newland stated that his conclusions
were based upon his clinical observations of the severity of the
injuries, plus any available history of the victim. This testimony was
properly admitted under 12 O.S. 1981, § 2702.
Revilla , 877 P.2d at 1150.
Revilla does not cite any contrary authority, but objects in conclusory
fashion that the OCCA approved “baseless speculation” constituting an
“extremely prejudicial personal expression of [his] guilt and an opinion on the
ultimate issue of the validity of [his] theory of defense.” Br. of Appellant, at 31.
His objection to the foundation for Dr. Newland’s opinion is plainly belied by the
record and the quoted passage from the OCCA’s decision. His objection that the
opinion expressed a direct, conclusive position on the ultimate issue of guilt is
undercut by Dr. Newland’s specific clarification that by “non-accidental trauma”
he meant only that the victim’s injuries “would have had to have been inflicted
and not the child doing it to himself.” Trial Tr. for Sept. 14, 1987, at 103.
Revilla’s defense that he accidentally killed the victim is not necessarily opposed,
much less definitively contradicted, by that statement.
-14-
Dr. Balding related the findings of a correlational study done at Michigan
State University, to the effect that “[i]f you have a severe head injury especially
with death of the child that in the vast majority of cases, . . . maybe ninety five
percent I think was one figure[,] . . . this represented some form of child abuse.”
Trial Tr. for Sept. 15, 1987, at 112. He also said he “share[ed] that opinion.” Id.
Revilla contends this testimony constituted “an unmistakable expert opinion of
[his] guilt, stating a 95% probability that Mark was fatally injured in the course of
child abuse,” which “relieved the jury from deciding [his] guilt on the facts of
this case.” Br. of Appellant, at 31-32. The OCCA rejected this objection, noting
that Dr. Balding’s testimony “was an opinion on the cause of the decedent’s
injuries, not on [Revilla’s] guilt;” that “[n]o undue emphasis was placed on the
statistical figures;” and that Dr. Balding “was thoroughly cross-examined by
[defense counsel].” Revilla , 877 P.2d at 1150-51 (also noting OCCA had
previously “approved of testimony regarding professional studies of which an
expert is aware”).
We agree that the broad statistical finding related by Dr. Balding did not
translate into a statement of Revilla’s probable guilt. As Dr. Balding described it,
the study was concerned with distinguishing “accident versus inflicted type
injuries,” and, in keeping with that limited focus, its conclusion was “basically
that severe head injury in children does not result from what we call everyday
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falls, from running, from falling off a bed, from falling off a couch.” Trial Tr.
for Sept. 15, 1987, at 112 (emphasis added). Again, Revilla’s defense at trial did
not involve denying he had caused injury; indeed, he specifically admitted
bumping the victim’s head into a door frame and landing on top of him as the two
fell onto a concrete cellar. Thus, Revilla’s own account indicated the victim’s
head injury fell into the “inflicted” category, rendering the study effectively
superfluous on the point and at the same time providing an explanation which, if
believed, contradicted the inference of guilt he now asserts that categorization
necessarily compelled. For both these reasons, he cannot now claim the study
obviated or overwhelmed the jury’s particularized assessment of his guilt on the
evidence presented.
C. Penalty Phase Issues
1. Duplication between Heinous, Atrocious, or Cruel Aggravator and
Elements of Child Abuse Murder
Revilla contends the heinous, atrocious, or cruel aggravator merely
duplicated elements of child abuse murder and thus failed to narrow the class of
offenders subject to capital punishment, as required by the Eighth Amendment.
See generally Lowenfield v. Phelps , 484 U.S. 231, 244 (1988) (holding capital
sentencing scheme must “genuinely narrow the class of persons eligible for the
death penalty and . . . reasonably justify the imposition of a more severe sentence
-16-
on the defendant compared to others found guilty of murder”) (further quotation
omitted). On direct appeal, he challenged the constitutionality and application of
the aggravator in several respects but not on the basis of duplication. When he
did raise the latter objection on post-conviction, the OCCA declined to reach it,
noting that “[i]nsofar as [the] current claim is the same as was raised on direct
appeal, it is res judicata ,” and that “[a]ny difference in the claims renders the
post-conviction claim waived.” Revilla , 946 P.2d at 266. Accordingly, the State
insists the claim is procedurally barred. Once again, however, we elect to avoid
complex procedural bar issues and resolve the matter “more easily and succinctly”
on the merits. 5
Romero , 215 F.3d at 1111.
5
Revilla asserts ineffective assistance of appellate counsel as cause for his
default of the duplication claim. In resolving the matter, the district court worked
backward through procedural-bar analysis: first holding the duplication issue had
no merit, then rejecting the ineffective assistance claim for lack of prejudice
because the duplication issue would not have prevailed, and finally holding the
duplication issue barred because its default was not excused by ineffective
assistance. The State contends we can affirm that result on a more direct basis,
without looking to the merits of the underlying duplication issue. Noting that the
ineffective assistance claim raised here has not been exhausted (and arguing that
it would now be barred), the State insists it cannot serve to excuse any default.
See Edwards v. Carpenter , 529 U.S. 446, 453 (2000) (ineffective assistance claim
asserted to excuse default must not be procedurally barred itself); Murray v.
Carrier , 477 U.S. 478, 489 (1986) (ineffective assistance claim invoked asserted
to excuse default must itself be exhausted). In any event, however, we note that
the procedural-bar question would still be complicated, if not foreclosed, by the
fact that we are dealing here with another death-eligibility challenge, potentially
implicating the same procedural default exception applied by the OCCA in the
Hawkins case, discussed above in connection with Revilla’s Enmund claim.
-17-
The district court held the duplication claim could not succeed because
(1) the heinous, atrocious, or cruel aggravator did not duplicate the elements of
child abuse murder, and (2) even assuming it did, Revilla’s death sentence could
be upheld based on the jury’s finding of an additional aggravator, i.e., that Revilla
was a “continuing threat to society.” While the second rationale reflects a
misapplication of controlling law, 6
the first appears borne out by a comparison of
Revilla’s offense and the heinous, atrocious, or cruel aggravator.
The district court noted two distinctions between the offense and the
aggravator. First, regarding the nature of the defendant’s actions, the aggravator
requires conduct that is “extremely wicked,” “shockingly evil,” “outrageously
wicked and vile,” “pitiless,” “designed to inflict a high degree of pain” or
involves “indifference to, or enjoyment of, the suffering of others.” Alverson v.
State , 983 P.2d 498, 516 (quotation omitted). Nothing in the offense replicates
these extreme formulations. Second, regarding the violence done to the victim,
6
Clemons v. Mississippi , 494 U.S. 738, 745 (1990) held that, in a state with
a “weighing” capital sentencing scheme, an appellate court may properly affirm
a death sentence, despite invalidating a predicate aggravator, if the court upholds
the sentence “after itself finding that the one or more remaining aggravating
factors outweigh the mitigating evidence.” Here, the OCCA did not invalidate the
heinous, atrocious, or cruel aggravator and thus had no occasion to engage in the
“actual reweighing” allowed by Clemons . See id. at 752. In essence, the district
court applied “a rule authorizing or requiring affirmance of a death sentence so
long as there remains at least one valid aggravating circumstance,” which
Clemons specifically held was not permissible. Id. at 751-52.
-18-
the aggravator requires “torture” or “serious physical abuse” resulting in
“conscious physical suffering.” Id. at 515-16. The offense requires only
“unreasonable force” or an “act which caused injury,” provided death results.
Fairchild v. State , 998 P.2d 611, 622 (Okla. Crim. App. 1999). Revilla’s
assertion that, because the abuse required for the offense must be fatal , it must as
a practical matter satisfy the aggravator, is meritless. The victim’s death, which
for the offense need not be intended, does not necessarily establish the requisite
callousness of the defendant or suffering of the victim. See Malicoat v. State , 992
P.2d 383, 399-400 (Okla. Crim. App. 2000) (rejecting similar claim of duplication
between child abuse murder and heinous, atrocious, or cruel aggravator).
In any event, we discern a much more basic deficiency in Revilla’s
duplication claim. In Lowenfield , the Supreme Court clarified the constitutional
requirement that a capital sentencing scheme “genuinely narrow the class of
persons eligible for the death penalty,” by explaining that
the narrowing function required for a regime of capital punishment
may be provided in either of these two ways: The legislature may
itself narrow the definition of capital offenses . . . so that the jury
finding of guilt responds to this concern, or the legislature may more
broadly define capital offenses and provide for narrowing by jury
findings of aggravating circumstances at the penalty phase.
484 U.S. at 244, 246 (further quotation omitted). In short, “[t]he use of
‘aggravating circumstances’ is not an end in itself, but a means of genuinely
narrowing the class of death eligible persons,” and there is “no reason why this
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narrowing function may not be performed by jury findings at . . . the guilt phase.”
Id. at 244-45. From these premises, the Court concluded that so long as “the
‘narrowing function’ was performed by the jury at the guilt phase when it found
defendant guilty of [multiple] murder[,] . . . the fact that the aggravating
circumstance [found at the penalty phase] duplicated [that] element[] of the crime
does not make [a capital] sentence constitutionally infirm.” Id. at 246.
This court has followed the same reasoning to hold that if an offense
element adequately performs the necessary narrowing function, the Eighth
Amendment is satisfied and it is immaterial whether that element happens to be
duplicated by a specified aggravator. See United States v. Chanthadara , 230 F.3d
1237, 1261 (10th Cir. 2000); United States v. McCullah , 76 F.3d 1087, 1109 (10th
Cir.), reh’g denied , 87 F.3d 1136, 1138 (1996) (en banc). Thus, the very premise
of Revilla’s duplication argument–that child abuse murder is so reprehensible that
it effectively entails the material requirements of the heinous, atrocious, or cruel
aggravator–logically forecloses his conclusion that the constitutional narrowing
function was not properly effectuated in his case. 7
7
This court has recognized that the heinous, atrocious, or cruel aggravator,
as narrowly construed by the Oklahoma courts, is adequate for Eighth Amendment
purposes. See LaFevers v. Gibson , 182 F.3d 705, 721 (10th Cir. 1999).
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2. Insufficient Proof of Heinous, Atrocious, or Cruel Aggravator
Revilla argues that the State failed to adduce sufficient proof of the
heinous, atrocious, or cruel aggravator and that its consequent application to his
case was unconstitutional. This claim was raised and rejected on his direct
appeal. See Revilla , 877 P.2d at 1155. The controlling standard is whether any
rational trier of fact could have found the aggravator beyond a reasonable doubt.
Hale v. Gibson , 227 F.3d 1298, 1334-35 (10th Cir. 2000), cert. denied , 121 S. Ct.
2608 (2001). 8
The victim’s death was undoubtedly preceded by serious physical abuse.
The testimony, records, and physical evidence presented at trial clearly support
the litany of injuries recited by the OCCA, which
8
The proper standard for reviewing the OCCA’s disposition under AEDPA,
is, however, unsettled.
If we treat the issue as a legal determination, we look to 28 U.S.C.
§ 2254(d)(1) and determine whether the state court decision was
contrary to or an unreasonable application of clearly established
federal law. If, on the other hand, it is a factual question, we look to
§ 2254(d)(2) and decide whether the state court determination was an
unreasonable determination of the facts in light of the evidence
presented to the state court. Further, § 2254(e)(1) requires us to
afford a presumption of correctness to a state court’s factual
findings.
Hale , 227 F.3d at 1335 n.17. “Because we would reject [Revilla’s] claims under
either standard, we find it unnecessary to decide the issue.” McCracken v.
Gibson , 268 F.3d 970, 981 n.5 (10th Cir. 2001). Ultimately, the critical question
is “whether the OCCA’s decision was reasonable.” Id. at 981.
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included burns to the [victim’s] cheek, ear, and upper thighs [and
chest, from which the skin was actually peeling off when the victim
arrived at the hospital]; lacerations on his arms; bruises on his back;
head injuries, including a subdural hemorrhage which resulted in
swelling of the brain, [9] and a complete transection of his liver.
Revilla , 877 P.2d at 1155.
The only issue concerns the requirement of conscious physical suffering.
The medical evidence showed that the severe injuries inflicted on the morning the
victim died, i.e., the transected liver, the head trauma, and the chest and leg
burns, all occurred at or about the time of death, but no particular order was
established. Further, the medical witnesses indicated that death or
unconsciousness could have resulted immediately from either the liver or the head
injury, and none of the witnesses offered an opinion whether the victim remained
conscious.
Thus, the crucial question “is whether Oklahoma adduced sufficient
evidence from which a reasonable fact finder could have concluded beyond
a reasonable doubt that [the victim] was conscious during some part of the
[abuse].” Thomas , 218 F.3d at 1227 (footnote omitted). The OCCA noted the
uncertainties, but nevertheless concluded “that numerous severe injuries were
9
The severity of the head injuries should not be overshadowed by the fatal
trauma to the liver. Medical evidence at trial indicated that the head injuries
alone could possibly have resulted in death and would certainly have resulted in
profound brain damage.
-22-
inflicted upon the decedent prior to his death and that the decedent suffered pain
before his death.” Revilla , 877 P.2d at 1155. The first half of that statement,
regarding the infliction of serious multiple injuries prior to the victim’s death, is
certainly a reasonable conclusion on the evidence recited. But injury before death
does not constitute conscious suffering, particularly in a case such as this, when
one or more of the victim’s injuries could have caused the immediate loss of
consciousness and there is no evidence suggesting the order in which the injuries
were inflicted.
We need not definitively accept or reject any purported inferential link
between multiple injuries and conscious suffering here, because there is an
independent basis in the OCCA opinion for its finding of conscious suffering.
Specifically, the OCCA cited the month-long period of torture and physical abuse
preceding the fatal incident as “[f]urther evidence supporting this [heinous,
atrocious, or cruel] aggravator.” Id. at 1155. The possibility of relying on abuse
temporally removed from the immediate circumstances causing the victim’s death
raises several questions primarily involving state law.
The initial question is whether evidence of such abuse is even admissible to
prove conscious suffering for purposes of the heinous, atrocious, or cruel
aggravator. Since its opinion in Revilla , the OCCA has held that evidence of
prior child abuse inflicted up to nineteen days before the victim’s death is
-23-
admissible to prove serious physical abuse and torture for purposes of the
heinous, atrocious, or cruel aggravator, provided the abuse was part of “a
continuing course of conduct.” 10
Malicoat , 992 P.2d at 399.
The next question is whether Revilla’s pre-murder abuse of the victim falls
under this continuing-course-of-conduct principle. We think it does. The
multiple incidents involved here occurred over a fairly short span of time, which
the OCCA itself characterized as “a time of terror, torture and abuse for the young
decedent,” Revilla , 877 P.2d at 1155. These events are certainly comparable in
this respect to the continuing course of conduct the OCCA recognized in
Malicoat .
The more difficult question is whether such abuse is alone sufficient to
satisfy the conscious-suffering requirement of the heinous, atrocious, or cruel
aggravator. The OCCA did not have to decide this question in Malicoat , in which
the aggravator was supported by expert testimony describing the victim’s likely
suffering at the time of death and the defendant’s own admission that the victim
10
Revilla contends this holding “skews the common understanding of what is
meant by death being preceded by conscious physical suffering.” Reply Br. at 17.
Because the meaning of the aggravator is a matter of state law, however, we defer
to the OCCA’s authoritative construction. See Davis v. Executive Dir. of Dep’t of
Corr. , 100 F.3d 750, 771 (10th Cir. 1996); Zeitvogel v. Delo , 84 F.3d 276, 283
(8th Cir. 1996). Only then do we move on to determine whether this construction
unravels the OCCA’s previous constitutional narrowing of the heinous, atrocious,
or cruel aggravator to circumstances of conscious suffering, see generally
Thomas , 218 F.3d at 1226.
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had screamed in pain as he hit her. 11
See Malicoat , 992 P.2d at 398-99. If such
abuse is admissible to show the conscious suffering required for the aggravator,
however, it must necessarily be probative on the issue; and, if sufficiently
probative, it need not be combined with other evidence of conscious suffering
contemporaneous with or immediately preceding death. Thus, Malicoat ’s
rationale, if not its specific holding, necessarily establishes that pre-murder abuse,
which is not contemporaneous with death, can alone be sufficient to establish the
conscious suffering element of the heinous, atrocious, or cruel aggravator.
With that legal premise established, we have no difficulty concluding that,
as a factual matter, the month-long course of “terror, torture, and abuse” Revilla
inflicted on the victim in this case, 12
see Revilla , 877 P.2d at 1155, satisfies the
conscious suffering requirement. Indeed, while the particular facts pertinent to
the aggravator are unavoidably unique to each case, see Phillips v. State , 989 P.2d
1017, 1039 (Okla. Crim. App. 1999), the abuse in question here was comparable
in severity to that supporting the heinous, atrocious, or cruel aggravator in
11
In Malicoat , the question of pre-murder abuse arose from the defendant’s
objection that such evidence had improperly prejudiced his penalty-phase
proceedings. Malicoat , 992 P.2d at 399. Thus, the OCCA had only to hold that
the evidence was admissible for purposes of the aggravator; whether the evidence
was alone sufficient to establish conscious suffering was not in issue.
12
Injuries associated with the continuing abuse noted by the OCCA in this
case included severe burns on the victim’s ears, as well as bruises and abrasions
to various parts of his body.
-25-
numerous other cases, where the injuries were inflicted immediately before the
victim died or lost consciousness. 13
Cf., e.g., Medlock v. Ward , 200 F.3d 1314,
1317 (10th Cir.), cert. denied , 531 U.S. 882 (2000); Hooks v. Ward , 184 F.3d
1206, 1240 (10th Cir. 1999); Fairchild , 998 P.2d at 628; Willingham v. State , 947
P.2d 1074, 1085 (Okla. Crim. App. 1997); Smith v. State , 932 P.2d 521, 535
(Okla. Crim. App. 1996).
Our inquiry, however, must proceed beyond mere analysis of Oklahoma law
to resolve whether the heinous, atrocious, or cruel aggravator, under the
circumstances of this case, continues to adequately narrow the class of persons
eligible for the death penalty consistent with the Eighth Amendment. See
Tuilaepa v. California , 512 U.S. 967, 972 (1994) (explaining aggravating
circumstance “may not apply to every defendant convicted of a murder; it must
apply only to a subclass of [such] defendants”). To resolve that inquiry, we
compare the scope of the statutory offense with that of the aggravator.
The child abuse murder statute applies to any defendant who willfully
“used unreasonable force upon a minor child” or “committed any act which
13
Revilla argues in passing that the State did not prove he had inflicted the
earlier abuse. The record contains ample evidence, both direct and circumstantial,
tying him to the course of abuse summarized by the OCCA. See Revilla , 877 P.2d
at 1155. Indeed, on direct appeal, Revilla objected to the prejudicial effect of the
evidence admitted to show his commission of “other crimes/bad acts” injurious to
the victim. Id. at 1152.
-26-
caused injury to a minor child,” whenever such force or act “resulted in the death
of that child.” Fairchild , 998 P.2d at 622. The heinous, atrocious, or cruel
aggravator narrows this broad class of offenders by requiring (1) that the victim
consciously suffer serious abuse or torture and (2) that the offender’s conduct
reflect wickedness, pitilessness, or deliberate infliction of, indifference to, or
enjoyment of suffering. Alverson , 983 P.2d at 516. Even if the conduct
considered under these constraints is expanded to include physical abuse not
contemporaneous with death but part of a continuing course of conduct
culminating in the fatal abusive incident, the aggravator would still significantly
narrow the class of defendants eligible for the death penalty by excluding those
who have caused the death of a child through a single or isolated incident of
violence. This narrowing continues to reasonably justify the more severe
punishment of those who qualify.
Finally, consideration of conduct which is not contemporaneous with the
murder is not generally prohibited under the Eighth Amendment. For example,
Oklahoma’s “prior violent felony” and “continuing threat” aggravators have
supported numerous death penalty verdicts without constitutional difficulty. See
Trice v. Ward , 196 F.3d 1151, 1172-73 (10th Cir. 1999); Boyd v. Ward , 179 F.3d
904, 922 (10th Cir. 1999). See generally Tuilaepa , 512 U.S. at 977 (“Both a
backward-looking and a forward-looking inquiry are a permissible part of the
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[capital] sentencing process, . . . and the States have considerable latitude in
determining how to guide the sentencer’s decision in this respect.”).
In sum, Revilla’s continuing course of pre-murder abuse of the victim was
admissible to show the conscious suffering required for the heinous, atrocious, or
cruel aggravator; this evidence was sufficient to satisfy the State’s burden; and
the OCCA’s application of the aggravator on the facts of record was consistent
with governing constitutional principles. We therefore reject Revilla’s claim that
the heinous, atrocious, or cruel aggravator was impermissibly applied to his case.
3. Insufficient Proof of Continuing Threat Aggravator
This claim was raised and rejected on the merits in Revilla’s direct appeal.
See Revilla , 877 P.2d at 1155-56. Again, the controlling standard is whether any
rational trier of fact could have found the aggravator beyond a reasonable doubt,
Hale , 227 F.3d at 1334-35 (10th Cir. 2000), and, under AEDPA, we ask only
“whether the OCCA’s decision was reasonable.” McCracken , 268 F.3d at 981.
The OCCA affirmed the jury’s finding of a continuing threat on the basis of
the callousness reflected in Revilla’s abusive conduct toward the victim, the
implication of violence in his possession of two machetes and a sawed-off
shotgun, and, most importantly, the express threats of violence and death he made
regarding the victim’s mother and her roommate, the victim’s father, and the
district attorney. See id. at 1156. The district court concluded that this evidence
-28-
was sufficient, under the controlling habeas standards, to support the finding
upheld by the OCCA, and we agree.
Revilla contends, however, that the OCCA’s decision is inconsistent with
Ochoa v. State , 963 P.2d 583 (Okla. Crim. App. 1998), which invalidated
a continuing threat finding because “the State [had failed to] present sufficient
evidence concerning prior convictions or unadjudicated crimes to show a pattern
of criminal conduct that will likely continue in the future.” Id. at 603 (quotation
omitted). Revilla reads too much into Ochoa , which held only that the particular
evidence of prior criminal conduct in that case was insufficient to establish the
continuing threat aggravator. “Contrary to [Revilla’s] contention, a pattern of
criminal activity is not required to prove this aggravator.” James v. Gibson , 211
F.3d 543, 559 (10th Cir. 2000) (noting other types of evidence which may support
aggravator) (emphasis added), cert. denied , 531 U.S. 1128 (2001). Revilla also
insists there is no principled factual distinction between Ochoa and this case,
because “like [his] case, the State proved simply that Ochoa engaged in a single
act of violence.” Br. of Appellant, at 39. This argument is plainly belied by the
distinctive facts here, including Revilla’s pattern of child abuse and his threats of
violence after the murder. Indeed, the latter seem uniquely probative on the
question of future violence and, indeed, the OCCA has relied on such threats to
support the aggravator on numerous occasions. See Torres v. State , 962 P.2d 3,
-29-
23 n.98 (Okla. Crim. App. 1998) (citing several cases expressly relying on threats
of harm or death); see also James , 211 F.3d at 559 (noting “threats against others
are among the factors which may be considered in determining if there was
sufficient evidence to support the continuing threat aggravator”).
4. Ineffective Assistance of Counsel (Failure to Request Ake Expert)
Revilla contends that he was entitled to a psychiatric expert to rebut the
State’s case on the continuing threat aggravator, see Ake v. Oklahoma , 470 U.S.
68 (1985), and that trial counsel’s failure to request an expert constituted
ineffective assistance under Strickland v. Washington , 466 U.S. 668 (1984). He
did not, however, raise this issue until his post-conviction proceeding, at which
time he claimed both that trial counsel was ineffective for failing to request an
expert and that appellate counsel was ineffective for failing to raise trial counsel’s
omission. The OCCA held the trial ineffectiveness claim was defaulted, because
it “relie[d] on facts which [could have been] discerned from a review of the
record and upon facts within Petitioner’s own personal knowledge.” Revilla , 946
P.2d at 265 (also holding default not excused by appellate ineffectiveness claim,
which court rejected on merits). As Revilla was represented by new counsel on
direct appeal, the OCCA’s ruling might, at first blush, appear to provide an
adequate basis for procedural bar under English v. Cody , 146 F.3d 1257, 1264
(10th Cir. 1998).
-30-
However, Revilla’s trial ineffectiveness claim relies on a psychiatric report
and affidavits which were not a part of the record on direct appeal. In such
circumstances, we have held “[t]he State’s procedural bar . . . is inadequate to
preclude federal habeas review [under English ].” Romano , 239 F.3d at 1180. We
therefore proceed to the merits. Under the circumstances, we do not have a state
court disposition of the trial ineffectiveness claim for purposes of AEDPA. 14
Revilla’s claim is not that he was denied an expert, but that counsel was
ineffective for failing to request one. The latter claim does not turn on whether
14
We recognize that the OCCA rejected Revilla’s appellate ineffectiveness
claim because, in its view, the underlying trial ineffectiveness claim would not
have prevailed. However, this indirect assessment of the trial ineffectiveness
claim was tainted by an improper legal standard. The OCCA misread Lockhart v.
Fretwell , 506 U.S. 364 (1993), to add a new element to Strickland ’s prejudice
test, so that a reasonable likelihood of a different outcome was not enough to
warrant relief unless the original outcome was in some additional sense
“fundamentally unfair or unreliable.” Revilla , 946 P.2d at 265. The Supreme
Court has repudiated this view, explaining that Strickland ’s outcome-alteration
test still controls “virtually all ineffective-assistance-of-counsel claims” and that
Lockhart is implicated only in the exceptional case where the different outcome
posited for purposes of Strickland would ultimately be attributable to an error of
law or some other impropriety. See Williams , 529 U.S. at 391-92; Tucker v.
Catoe , 221 F.3d 600, 608 (4th Cir.) ( Williams “dismissed the idea that we must
separately inquire into fundamental fairness even if a petitioner is able to show
that his lawyer was ineffective and that the ineffectiveness probably affected the
outcome of the proceeding”), cert. denied , 531 U.S. 1054 (2000). Because the
OCCA discounted the trial ineffectiveness claim under an improperly heightened
standard, we resolve the claim unconstrained by AEDPA deference. See Romine
v. Head, 253 F.3d 1349, 1365 (11th Cir. 2001); Copperwood v. Cambra , 245 F.3d
1042, 1046 (9th Cir.), cert. denied , 122 S. Ct. 228 (2001); Mask v. McGinnis , 233
F.3d 132, 140 (2d Cir. 2000), cert. denied , 122 S. Ct. 322 (2001).
-31-
the law and evidence mustered in this habeas proceeding establish Revilla’s right
to an expert, but on whether counsel acted below professional standards in failing
to request an expert on the basis of the law and facts available to him in 1987.
See, e.g. , Moore v. Marr , 254 F.3d 1235, 1243 (10th Cir. 2001); Stouffer v.
Reynolds , 168 F.3d 1155, 1162 (10th Cir. 1999).
The state of the law in 1987 clearly undercuts the ineffective assistance
claim. Ake held only that an indigent capital defendant must, upon request, be
provided an expert for the penalty phase “when the State presents psychiatric
evidence of the defendant’s future dangerousness.” 15
470 U.S. at 83. Strictly
applying Ake , Oklahoma courts initially recognized this right only when the State
presented its own penalty-phase expert, which it did not do here. See Brewer v.
State , 718 P.2d 354, 363-64 (Okla. Crim. App. 1986). This circuit later extended
Ake to require an expert if the State puts on any evidence, psychiatric or
otherwise, of future dangerousness, so long as the defendant’s mental condition
would likely have been a significant mitigating factor. See Liles v. Saffle , 945
F.2d 333, 341 (10th Cir. 1991); Rogers v. Gibson , 173 F.3d 1278, 1285 (10th Cir.
1999). Oklahoma ultimately adopted this broader view in Fitzgerald v. State , 972
15
We note that the Supreme Court has been reticent to provide any further
guidance on the scope of Ake . See Caldwell v. Mississippi , 472 U.S. 320, 323 n.1
(1985); Johnson v. Oklahoma , 484 U.S. 878, 880 (1987) (Marshall, J., dissenting
from denial of certiorari).
-32-
P.2d 1157, 1169 (Okla. Crim. App. 1998). Against this legal backdrop, we cannot
say counsel’s failure to request an expert was professionally unreasonable in
1987, at a time when Ake itself did not establish the validity of such a request,
state case law rejected it, and even this circuit’s extension of Ake would not take
place for several years.
The known and knowable facts in 1987 also undercut the ineffective
assistance claim. The pertinent sentencing facts known to trial counsel and
shown by the record 16
were that Revilla’s parents were divorced, that Revilla’s
father was an irresponsible drinker, and that Revilla had essentially made his own
way in life since his early teens. These matters may have been helpful by way of
general mitigation and, indeed, were mentioned in this regard at trial. They do
not, however, establish that counsel should have recognized “a mental status exam
would produce mitigating evidence,” which is the factual prerequisite for the
ineffective assistance claim Revilla now asserts. Romano , 239 F.3d at 1182
(rejecting claim that trial counsel was ineffective for failing to pursue psychiatric
evaluation); see also Mayes v. Gibson , 210 F.3d 1284, 1289 n.3 (10th Cir.)
(same), cert. denied , 531 U.S. 1020 (2000).
16
Revilla refers to additional facts, allegedly “available” to counsel, shown
by affidavits introduced in later post-conviction proceedings, but he has failed to
demonstrate that trial counsel knew or reasonably should have known about these
additional matters.
-33-
In sum, the parties’ focus on Strickland prejudice, and their associated
mistaken reliance on current facts and legal authorities not available to counsel in
1987, has diverted attention from a proper contextual assessment of Revilla’s
ineffective assistance claim. Pursuant to such an assessment, we reject the
claim based on Revilla’s failure to demonstrate constitutionally deficient
performance by counsel.
IV. CONCLUSION
For the reasons set forth above, this court concludes that none of the
grounds asserted herein warrant habeas relief. With respect to the objection
regarding instruction on lesser included offenses, Revilla has failed to make the
threshold “substantial showing of the denial of a constitutional right,” and is,
therefore, DENIED a certificate of appealability under § 2253. As to all other
issues before the court, the judgment of the district court is AFFIRMED.
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