Petition for Writ of Certiorari — Kevin Underwood, Petitioner v. Mike Carpenter, Warden
Supreme Court briefJan 14, 2019
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Capital Case
Case No. _______________________
In the Supreme Court of the United States
KEVIN RAY UNDERWOOD,
Petitioner,
v.
MIKE CARPENTER, Warden,
Oklahoma State Penitentiary,
Respondent.
APPENDIX OF ATTACHMENTS
PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
SARAH M. JERNIGAN, OBA # 21243*
PATTI PALMER GHEZZI, OBA # 6875
Assistant Federal Public Defenders
Office of the Federal Public Defender
Western District of Oklahoma
215 Dean A. McGee, Suite 707
Oklahoma City, OK 73102
(405) 609-5975; 609-5976 (fax)
Sarah_Jernigan@fd.org
Patti_Ghezzi@fd.org
COUNSEL FOR PETITIONER,
KEVIN RAY UNDERWOOD
January 14, 2019
* Counsel of record
INDEX OF APPENDICES
APPENDIX A:
Underwood v. Royal, 894 F.3d 1154 (10th Cir. 2018)
Tenth Circuit opinion denying relief (July 2, 2018)
APPENDIX B:
Underwood v. Duckworth, No. CIV-12-111-D,
2016 WL 4059162 (W.D. Okla. July 28, 2016) (unpub.)
(federal district court opinion denying relief)
APPENDIX C:
Underwood v. Carpenter, 10th Cir. No. 16-6262,
Order denying petition for rehearing (Aug. 17, 2018)
APPENDIX D:
Underwood v. State, 252 P.3d 221 (Okla. Crim. App. 201l)
(state court opinion denying direct appeal D-2008-319)
APPENDIX E:
Underwood v. State, No. PCD-2008-604 (Okla. Crim. App.
Jan. 17, 2012) (unpub.) (state court opinion denying
application for post-conviction relief)
2
1154
894 FEDERAL REPORTER, 3d SERIES
Kevin Ray UNDERWOOD,
Petitioner–Appellant,
v.
Terry ROYAL, Warden, Oklahoma
State Penitentiary, Respondent–
Appellee.
(6) determination that failure to instruct
jury that it had to find that aggravating circumstances outweighed mitigating circumstances beyond reasonable
doubt in order to impose death penalty
was reasonable.
Affirmed.
No. 16-6262
United States Court of Appeals,
Tenth Circuit.
FILED July 2, 2018
Background: Following affirmance of his
first degree murder conviction and death
sentence, 252 P.3d 221, state inmate filed
petition for writ of habeas corpus. The
United States District Court for the Western District of Oklahoma, No. 5:12-CV00111-D, Timothy D. DeGiusti, J., 2016
WL 4059162, denied petition, and petitioner appealed.
Holdings: The Court of Appeals, Matheson, Circuit Judge, held that:
(1) determination that petitioner was not
denied effective assistance due to trial
counsel’s failure to present expert rebuttal testimony relating to timing of
victim’s death was reasonable;
(2) state’s closing argument that evidence
established that petitioner had shaved
child victim’s pubic area did not violate
due process;
(3) determination that jury instruction defining ‘‘mitigating circumstances’’ and
prosecutor’s related argument did not
unconstitutionally limit jury’s consideration of mitigating evidence was reasonable;
(4) admission of victim’s parents’ sentence
recommendations did not amount to
structural error;
(5) erroneous admission of victim’s parents’ sentence recommendations was
harmless; and
1. Habeas Corpus O842
Court of Appeals’ review of federal
district court’s application of Antiterrorism
and Effective Death Penalty Act (AEDPA)
is de novo. 28 U.S.C.A. § 2254.
2. Habeas Corpus O452
State court’s decision is ‘‘contrary to’’
clearly established law, thus warranting
federal habeas relief, if it applies rule different from governing law set forth in
Supreme Court cases, or if it decides case
differently than Supreme Court has done
on set of materially indistinguishable facts.
28 U.S.C.A. § 2254(d).
See publication Words and Phrases
for other judicial constructions and
definitions.
3. Habeas Corpus O450.1
State court’s decision is ‘‘unreasonable
application’’ of clearly established federal
law, thus warranting federal habeas relief,
if it identifies correct governing legal principle but unreasonably applies that principle to facts of petitioner’s case. 28
U.S.C.A. § 2254(d).
See publication Words and Phrases
for other judicial constructions and
definitions.
4. Habeas Corpus O842, 846
If claim was not resolved by state
courts on merits and is not otherwise procedurally barred, Antiterrorism and Effective Death Penalty Act (AEDPA) does not
apply, and Court of Appeals reviews federal district court’s legal conclusions de novo
APPENDIX A
UNDERWOOD v. ROYAL
Cite as 894 F.3d 1154 (10th Cir. 2018)
1155
and its factual findings, if any, for clear
error. 28 U.S.C.A. § 2254(d).
perspective at time. U.S. Const. Amend.
6.
5. Habeas Corpus O753
12. Habeas Corpus O486(5)
While federal habeas court must entertain strong presumption that counsel’s
conduct falls within wide range of reasonable professional assistance, it nevertheless must apply closer scrutiny when
reviewing attorney performance during
sentencing phase of capital case. U.S.
Const. Amend. 6; 28 U.S.C.A. § 2254(d).
Federal habeas review is limited to
record that was before state court that
adjudicated claim on merits. 28 U.S.C.A.
§ 2254(d).
6. Criminal Law O1870
Counsel can deprive defendant of
right to effective assistance by failing to
render adequate legal assistance. U.S.
Const. Amend. 6.
7. Habeas Corpus O486(1)
To establish violation of his right to
effective assistance of counsel, habeas petitioner must show that (1) counsel’s performance was deficient, and (2) deficient
performance prejudiced defense. U.S.
Const. Amend. 6.
8. Criminal Law O1882
To establish constitutionally deficient
performance, defendant must show that
counsel’s representation fell below objective standard of reasonableness. U.S.
Const. Amend. 6.
9. Criminal Law O1871
Defendant asserting claim of ineffective assistance of counsel must overcome
presumption that, under circumstances,
challenged action might be considered
sound trial strategy. U.S. Const. Amend.
6.
10. Criminal Law O1882
To establish ineffective assistance of
counsel, counsel’s performance must have
been completely unreasonable, not merely
wrong. U.S. Const. Amend. 6.
11. Criminal Law O1870
In assessing claim of ineffective assistance of counsel, every effort must be
made to evaluate conduct from counsel’s
13. Sentencing and Punishment O1684
Under Oklahoma law, to find heinous,
atrocious, or cruel (HAC) aggravator in
death penalty case, there must be evidence
of victim’s conscious physical suffering prior to death. 21 Okla. Stat. Ann. §§ 701.11,
701.12.
14. Habeas Corpus O486(5)
State court’s determination that petitioner was not denied effective assistance
of counsel in his capital murder trial due to
trial counsel’s failure to present expert
rebuttal testimony relating to timing of
victim’s death was not contrary to, or unreasonable application of, clearly established federal law in Strickland, or unreasonable determination of fact, and thus did
not warrant federal habeas relief, where
expert’s testimony that victim could not
have been alive during her attempted decapitation had no relevance in guilt stage
and, in punishment stage, could have
drawn jury’s attention away from petitioner’s affirmative mitigation case and back to
crime’s gruesome details. U.S. Const.
Amend. 6; 28 U.S.C.A. § 2254(d).
15. Constitutional Law O4629
Criminal Law O1980
Prosecutorial misconduct can result in
constitutional error in two ways: (1) it can
prejudice specific right as to amount to
denial of that right, or (2) absent infringement of specific constitutional right, prose-
APPENDIX A
1156
894 FEDERAL REPORTER, 3d SERIES
cutor’s misconduct may render trial so fundamentally unfair as to deny defendant
due process. U.S. Const. Amends. 5, 14.
16. Constitutional Law O4629
Criminal Law O2117
Sentencing
O1780(2)
and
Punishment
State’s closing argument during guilt
and punishment phases of capital murder
prosecution that evidence established that
defendant had partially shaved child victim’s pubic area with razor did not violate
due process, despite defendant’s contention that prosecutor argued facts not in
evidence, where criminalist who examined
victim’s body at medical examiner’s office
testified that victim’s pubic area appeared
partially shaven, and remarks about shaving did not unfairly overshadow other depraved things that defendant freely admitted to doing in his confession. U.S. Const.
Amend. 14.
17. Sentencing and Punishment O1757
Eighth and Fourteenth Amendments
require that sentencer, in all but rarest
kind of capital case, not be precluded from
considering, as mitigating factor, any aspect of defendant’s character or record
and any circumstances of offense that defendant proffers as basis for sentence less
than death. U.S. Const. Amends. 8, 14.
18. Sentencing and Punishment O1757
Evidence, even if not related specifically to defendant’s culpability for crime he
committed, must be treated as relevant
mitigating evidence if it serves as basis for
sentence less than death.
19. Criminal Law O1134.51
Proper inquiry for reviewing jury instruction is whether there is reasonable
likelihood that jury has applied challenged
instruction in way that prevents consideration of constitutionally relevant evidence.
20. Habeas Corpus O497, 498
State court’s determination that jury
instruction defining ‘‘mitigating circumstances’’ as ‘‘those which, in fairness, sympathy, and mercy, may extenuate or reduce the degree of moral culpability or
blame’’ and prosecutor’s argument that it
was up to jury to decide what qualified as
mitigating evidence did not unconstitutionally limit jury’s consideration of mitigating
evidence in capital murder prosecution was
not contrary to, or unreasonable application of, clearly established federal law in
Lockett v. Ohio and Eddings v. Oklahoma,
and thus did not warrant federal habeas
relief. U.S. Const. Amends. 8, 14; 28
U.S.C.A. § 2254(d).
21. Sentencing and Punishment O1763
Eighth Amendment allows consideration of victim impact evidence relating to
victim’s personal characteristics and emotional impact of crimes on victim’s family.
U.S. Const. Amend. 8.
22. Habeas Corpus O442
Constitutional error may be disregarded on federal habeas review unless
found to have had substantial and injurious
effect or influence in determining jury’s
verdict. 28 U.S.C.A. § 2254.
23. Habeas Corpus O442
If federal habeas court is in grave
doubt as to harmlessness of state court’s
constitutional error, petitioner must win.
28 U.S.C.A. § 2254.
24. Habeas Corpus O447
Constitutional errors that rise to level
of structural error—in contrast to ordinary
trial error—require automatic reversal on
federal habeas review.
28 U.S.C.A.
§ 2254.
25. Criminal Law O1162
Defining feature of ‘‘structural error’’
requiring automatic reversal is that result-
APPENDIX A
UNDERWOOD v. ROYAL
Cite as 894 F.3d 1154 (10th Cir. 2018)
ing unfairness or prejudice is necessarily
unquantifiable and indeterminate, such
that any inquiry into its effect on case’s
outcome would be purely speculative.
See publication Words and Phrases
for other judicial constructions and
definitions.
26. Criminal Law O1162
Categories of structural error requiring automatic reversal of criminal conviction include: total deprivation of right to
counsel; lack of impartial trial judge; unlawful exclusion of grand jurors of defendant’s race; deprivation of right to selfrepresentation at trial; denial of right to
public trial; and erroneous reasonabledoubt jury instruction.
U.S. Const.
Amends. 5, 6, 14.
27. Sentencing and Punishment O1768,
1789(9)
Admission of child victim’s parents’
sentence recommendations in capital murder prosecution did not amount to structural error warranting automatic reversal
of defendant’s death sentence.
28. Habeas Corpus O508
State trial court’s erroneous admission
of murder victim’s parents’ sentence recommendations was harmless, and thus did
not warrant federal habeas relief reversing
petitioner’s death sentence, where petitioner admitted that he had murdered 10-year
old victim as part of his plan to abduct
someone, sexually molest them, eat their
flesh, and dispose of their remains, jury
was properly instructed on proper role of
victim-impact evidence, aggravating case
against petitioner was relatively strong,
jury was properly instructed on use of
mitigating evidence and its role in sentencing deliberations, and petitioner’s mitigating evidence was not sufficiently compelling as to put error’s harmlessness in
grave doubt.
1157
29. Habeas Corpus O701.1
As general rule, federal habeas court
will presume that juries follow limiting
instructions.
30. Constitutional Law O4694, 4752
Criminal Law O561(1)
Jury O34(6)
Fourteenth Amendment right to due
process and Sixth Amendment right to
jury trial, taken together, entitle criminal
defendant to jury determination that he is
guilty of every element of crime with
which he is charged, beyond reasonable
doubt. U.S. Const. Amends. 6, 14.
31. Habeas Corpus O508
State court’s determination that trial
court’s failure to instruct jury in capital
murder prosecution that it had to find that
aggravating circumstances outweighed
mitigating circumstances beyond reasonable doubt in order to impose death penalty was not contrary to, or unreasonable
application of, clearly established federal
law in Apprendi, and thus did not warrant
federal habeas relief.
U.S. Const.
Amends. 6, 14; 28 U.S.C.A. § 2254(d).
32. Criminal Law O1186.1
In conducting cumulative error review, court must inquire whether identified
harmless errors, in aggregate, had substantial and injurious effect or influence in
determining jury’s verdict.
Appeal from the United States District Court for the Western District of
Oklahoma (D.C. No. 5:12-CV-00111-D)
Sarah M. Jernigan, Assistant Federal
Public Defender (Patti Palmer Ghezzi, Assistant Federal Public Defender, Western
District of Oklahoma, with her on the
briefs), Oklahoma City, Oklahoma, for Petitioner-Appellant.
APPENDIX A
1158
894 FEDERAL REPORTER, 3d SERIES
Jennifer J. Dickson, Assistant Attorney
General (Mike Hunter, Attorney General
of Oklahoma, with her on the brief), Oklahoma City, Oklahoma, for Respondent-Appellee.
Before MATHESON, KELLY, and
BACHARACH, Circuit Judges.
MATHESON, Circuit Judge.
Kevin Ray Underwood appeals from the
federal district court’s denial of his petition
for writ of habeas corpus under 28 U.S.C.
§ 2254. In 2008, a jury convicted Mr. Underwood of first degree murder and sentenced him to death in Oklahoma state
court. The Oklahoma Court of Criminal
Appeals (‘‘OCCA’’) affirmed Mr. Underwood’s conviction and sentence and later
denied post-conviction relief.
Mr. Underwood sought federal habeas
relief from his death sentence under
§ 2254. The federal district court denied
Mr. Underwood’s requests for relief and
for a certificate of appealability (‘‘COA’’)
on all eleven grounds raised in the § 2254
application. We granted COAs on six of
the eleven grounds for relief.
Exercising jurisdiction under 28 U.S.C.
§§ 1291 and 2253, we affirm the district
court’s denial of habeas relief on all six
grounds.
I.
BACKGROUND
We begin with the relevant factual history as presented by the OCCA.1 We then
provide an overview of the procedural history leading to this appeal. We present
additional background below as relevant to
our discussion of Mr. Underwood’s claims.
1.
See 28 U.S.C. § 2254(e)(1) (‘‘[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.’’); see also Al-Yousif v. Tra-
A.
Factual History
The OCCA, in addressing Mr. Underwood’s direct appeal, set forth the following relevant facts:
[Mr. Underwood] was charged with
murdering ten-year-old [J.B.] on April
12, 2006, in Purcell, Oklahoma. [Mr. Underwood] lived alone in the same apartment complex where [J.B.] lived with
her father, Curtis Bolin. Due to her
father’s work schedule, [J.B.] was typically home alone for a period of time
after school. On the day in question,
[J.B.] played in the school library with a
friend for a short time before going
home. She was never seen alive again.
Police, firefighters, and a host of citizen
volunteers began a search for [J.B.].
The day after [J.B.]’s disappearance,
the Federal Bureau of Investigation
[the ‘‘FBI’’] added over two dozen people to the effort. On April 14, 2006, two
days after [J.B.] was last seen, police
set up several roadblocks around the
apartment complex where she lived,
seeking leads from local motorists.
Around 3:45 p.m. that day, FBI Agent
Craig Overby encountered a truck driven by [Mr. Underwood]’s father at one
of the roadblocks; [Mr. Underwood] was
a passenger in the truck. [Mr. Underwood]’s father told Overby that they
had heard about the disappearance, and
that in fact, [Mr. Underwood] was the
girl’s neighbor. From speaking with other neighbors at the apartment complex,
Overby knew that a young man living
there may have been the last person to
see [J.B.]. Overby asked if [Mr. Underni, 779 F.3d 1173, 1181 (10th Cir. 2015)
(‘‘The presumption of correctness also applies
to factual findings made by a state court of
review based on the trial record.’’ (quotations
omitted) ).
APPENDIX A
UNDERWOOD v. ROYAL
Cite as 894 F.3d 1154 (10th Cir. 2018)
wood] would come to the patrol car to
talk for a moment, and [Mr. Underwood] agreed, while his father waited in
the truck. In the patrol car, [Mr. Underwood] made statements that piqued
Overby’s interest.[ ] Overby asked [Mr.
Underwood] if he would come to the
police station for additional questioning.
Again, [Mr. Underwood] agreed, and
Overby assured [Mr. Underwood]’s father that he (Overby) would give [Mr.
Underwood] a ride home.
At the police station, [Mr. Underwood]
was interviewed by Agent Overby and
Agent Martin Maag. [Mr. Underwood]
told them about seeing [J.B.] on April
12, and discussed his activities on that
day and other matters. At the conclusion
of this interview, which lasted less than
an hour, the agents asked [Mr. Underwood] if they could search his apartment. [Mr. Underwood] agreed. The
agents accompanied [Mr. Underwood] to
his apartment around 5:00 p.m. While
looking around the apartment, Overby
saw a large plastic storage tub in [Mr.
Underwood]’s closet; its lid was sealed
with duct tape. [Mr. Underwood] saw
Overby looking at the tub, and volunteered that he kept comic books in it; he
said that he had taped the lid to keep
moisture out. Overby asked if he could
look inside the tub, and [Mr. Underwood] agreed. When Overby pulled back
a portion of the tape and lifted a corner
of the lid, he saw a girl’s shirt—and
realized that it matched [Mr. Underwood]’s description of the shirt [J.B.]
was wearing on the day she disappeared.[ ] When Overby commented that
he saw no comic books in the tub, [Mr.
Underwood] interjected, ‘‘Go ahead and
arrest me.’’ Overby immediately responded, ‘‘Where is she?’’ [Mr. Underwood] replied, ‘‘She’s in there. I hit her
and chopped her up.’’ [Mr. Underwood]
then became visibly upset, began hyper-
1159
ventilating, and exclaimed, ‘‘I’m going to
burn in Hell.’’ He was placed under arrest and escorted out to the agents’ vehicle. Agent Overby summoned local authorities to secure the scene.
Back at the police station, [Mr. Underwood] was advised of his right to remain
silent, and his right to the assistance of
counsel during any questioning, consistent with Miranda v. Arizona, 384 U.S.
436, 86 S.Ct. 1602, 16 L.Ed.2d 694
(1966). Because he asked for a lawyer,
the interview was concluded. About fifteen minutes later (approximately 5:45
p.m.), police approached [Mr. Underwood] and asked if he would reaffirm, in
writing, his original verbal consent to a
search of his apartment. [Mr. Underwood] agreed, and spent the next few
hours sitting in a police lieutenant’s office. He conversed with various officers
who were sent to guard him, and made
some incriminating statements during
that time.
Around 9:30 p.m. that evening, [Mr. Underwood] asked to speak with the two
FBI agents he had initially talked to
(Overby and Maag). Because [Mr. Underwood] had previously asked for counsel, [Oklahoma State Bureau of Investigation (‘‘OSBI’’) ] Agent Lydia Williams
visited with him to determine his intentions. Agent Williams reminded [Mr.
Underwood] that he had earlier declined
to be questioned, and explained that because of that decision, police could not
question him any further. [Mr. Underwood] emphatically replied that he wanted to talk to the agents. Around 10:15
p.m., Agents Overby and Maag interviewed [Mr. Underwood] at the police
station. Before questioning began, Overby reminded [Mr. Underwood] of his
Miranda rights, and [Mr. Underwood]
signed a written form acknowledging
that he understood them and waived
APPENDIX A
1160
894 FEDERAL REPORTER, 3d SERIES
them. When asked if anyone had offered
him anything in exchange for agreeing
to talk, [Mr. Underwood] replied that
one of the officers had predicted things
would go better for him if he cooperated.
Besides acknowledging his waiver of Miranda rights, [Mr. Underwood] also
signed another written consent to a
search of his apartment. A video recording and transcript of the interview that
followed, which lasted about an hour,
was presented to the jury at trial and is
included in the record on appeal.
In the interview, [Mr. Underwood] describes how he had recently developed a
desire to abduct a person, sexually molest them, eat their flesh, and dispose of
their remains. He explains in considerable detail how he attempted to carry out
this plan on [J.B.], whom he had decided
was a convenient victim. [Mr. Underwood] stated that he invited [J.B.] into
his apartment to play with his pet rat.
Once [J.B.] was inside, [Mr. Underwood]
hit her on the back of the head several
times with a wooden cutting board; she
screamed in pain and begged him to
stop. [Mr. Underwood] proceeded to suffocate the girl by sitting on her and
placing his hand across her face. [Mr.
Underwood] told the agents that this
was not an easy task, and that fifteen to
twenty minutes passed before she succumbed. [Mr. Underwood] claimed he
then attempted to have sexual relations
with the girl’s body, but was unable to
perform. He then moved her body to the
bathtub and attempted to decapitate it
with a knife, but was unsuccessful at
that task as well. Frustrated, [Mr. Underwood] wrapped [J.B.]’s body in plastic sheeting and placed it in a large
plastic container which he hid in his
closet. [Mr. Underwood] also dismantled
[J.B.]’s bicycle and hid it inside his
apartment, to make it look as if she had
left the apartment complex.
[J.B.]’s remains were taken to the Medical Examiner’s office for an autopsy.
The Medical Examiner noted bruises to
the back of the girl’s head, consistent
with [Mr. Underwood]’s claim that he hit
her forcefully with a cutting board. The
examiner also noted petechia in the
girl’s eyes, and curved marks on her
face, consistent with [Mr. Underwood]’s
description of how he had suffocated
her. The most pronounced wound on the
body was a very deep incision to [J.B.]’s
neck, which was also consistent with the
injuries [Mr. Underwood] admitted to
inflicting. The Medical Examiner also
noted trauma to the girl’s genital area,
including tearing of the hymen. However, the Medical Examiner could not say
that [J.B.] was alive, or even conscious,
when her neck was cut or when she was
sexually assaulted. The official cause of
death was declared to be asphyxiation.
Underwood v. State, 252 P.3d 221, 230-31
(Okla. Crim. App. 2011) (footnotes omitted).
B.
Procedural History
The following proceedings preceded Mr.
Underwood’s present appeal: (1) jury trial
in Oklahoma state court, (2) direct appeal
and application for state post-conviction
relief in the OCCA, and (3) application for
federal post-conviction relief in the United
States District Court for the Western District of Oklahoma under § 2254. We provide a brief overview of each proceeding.
1.
Trial
In 2008, an Oklahoma jury convicted Mr.
Underwood of first degree murder, under
Section 701.7(A) of Title 21 of the Oklahoma Statutes, and sentenced him to
death.
In the guilt stage, the jury found the
evidence sufficient to establish that Mr.
APPENDIX A
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UNDERWOOD v. ROYAL
Cite as 894 F.3d 1154 (10th Cir. 2018)
Underwood murdered J.B. Underwood,
252 P.3d at 229. Although Mr. Underwood
‘‘did not formally concede his guilt TTT, but
instead required the State to present its
evidence on that issue, neither did he seriously contest the guilt-stage evidence
against him.’’ Id. at 232. ‘‘In fact, defense
counsel told the jury in guilt-stage opening
statements that it would probably find
[Mr. Underwood] guilty, but that there
would be reasons to spare his life.’’ Id. The
guilt evidence presented to the jury included a video recording and printed transcript
of Mr. Underwood’s interview with the
FBI agents, during which he had confessed to the murder. Id. at 238.
In the punishment stage, the same jury
found one aggravating circumstance and
recommended the death penalty after
weighing it against any mitigating circumstances established at trial. Id. at 229-30,
246. In its aggravation case, the State put
evidence of two aggravating circumstances
before the jury: (1) the murder was especially heinous, atrocious, or cruel (the
‘‘HAC’’ aggravator); and (2) Mr. Underwood posed a continuing threat to society
(the ‘‘continuing threat’’ aggravator). Id. at
230 n.1. The jury found the existence of
the HAC aggravator but not the continuing threat aggravator. Id. at 232. In his
mitigation case, Mr. Underwood presented
‘‘extensive evidence TTT, including the testimony of family, friends, and three experts who had evaluated [his] mental
health.’’ Id. The jury recommended the
death sentence, which the trial court imposed. Id. at 230.
2.
Direct Appeal and Application for
State Post-Conviction Relief
Mr. Underwood appealed to the OCCA,
raising a variety of trial errors, including
the six grounds for relief before us in this
2.
The Supreme Court denied Mr. Underwood’s petition for writ of certiorari. Under-
appeal. In 2011, the OCCA affirmed Mr.
Underwood’s conviction and sentence. Id.
at 258.2 The court also performed a statutorily mandated sentencing review and
concluded that ‘‘the evidence was sufficient
to support the one aggravating circumstance found by the jury’’ and that no
‘‘improper factor’’ influenced the jury’s imposition of the death sentence. Id. Mr.
Underwood then applied for post-conviction relief, which the OCCA denied in an
unpublished summary opinion in 2012.
3.
Application for Federal Post-Conviction Relief under § 2254
In 2013, Mr. Underwood filed a petition
for a writ of habeas corpus under 28
U.S.C. § 2254 in the United States District
Court for the Western District of Oklahoma. The petition presented eleven
grounds for relief, including the six before
us in this appeal. The district court denied
relief on all eleven grounds. See Underwood v. Duckworth, 2016 WL 4059162
(W.D. Okla. July 28, 2016). It also denied a
COA on all grounds. See Underwood v.
Duckworth, 2016 WL 4120772 (W.D. Okla.
July 28, 2016).
Mr. Underwood appealed, and this court
granted COAs on six of Mr. Underwood’s
grounds for relief, which we address below.
II.
DISCUSSION
We begin with our standard of review.
We then analyze the six grounds for relief
on which we have granted COA: (1) ineffective assistance of trial counsel, (2) prosecutorial misconduct, (3) improper jury instruction and prosecutor statements on
mitigating evidence, (4) admission of unconstitutional victim impact testimony, (5)
imposition of the death penalty without a
wood v. Oklahoma, 565 U.S. 1121, 132 S.Ct.
1019, 181 L.Ed.2d 752 (2012).
APPENDIX A
1162
894 FEDERAL REPORTER, 3d SERIES
jury finding that the HAC aggravator
outweighed any mitigating circumstances
beyond a reasonable doubt, and (6) cumulative error. We conclude that Mr. Underwood is not entitled to relief on any of
these grounds. Throughout our discussion,
we provide additional background information as needed.
A.
Standard of Review
[1] ‘‘Our review is TTT governed by the
Antiterrorism and Effective Death Penalty
Act of 1996 (‘AEDPA’), which requires federal courts to give significant deference to
state court decisions.’’ Lockett v. Trammel,
711 F.3d 1218, 1230 (10th Cir. 2013).3
Under AEDPA, when a state court has
decided a claim on the merits, we must
defer to the court’s adjudication of the
claim unless it:
(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).4
[2, 3] Section 2254(d)(1)’s ‘‘contrary to’’
and ‘‘unreasonable application of’’ language
denotes two distinct inquiries. ‘‘An OCCA
decision is ‘contrary to’ a clearly established law if it applies a rule different from
3.
‘‘AEDPA concerns federal court deference
to the decisions of state courts. Our review of
the federal district court’s application of AEDPA is de novo.’’ Murphy v. Royal, 875 F.3d
896, 913 n.20 (10th Cir. 2017), cert. granted, ––– U.S. ––––, 138 S.Ct. 2026, ––– L.Ed.2d
–––– (2018).
4.
AEDPA additionally provides that ‘‘a determination of a factual issue made by a State
the governing law set forth in Supreme
Court cases, or if it decides a case differently than the Supreme Court has done on
a set of materially indistinguishable facts.’’
Lockett, 711 F.3d at 1231 (alterations and
quotations omitted); see also Bell v. Cone,
535 U.S. 685, 694, 122 S.Ct. 1843, 152
L.Ed.2d 914 (2002). ‘‘An OCCA decision is
an ‘unreasonable application’ of clearly established federal law if it identifies the
correct governing legal principle TTT but
unreasonably applies that principle to the
facts of petitioner’s case.’’ Lockett, 711
F.3d at 1231 (quotations omitted); see also
Bell, 535 U.S. at 694, 122 S.Ct. 1843.
[4] ‘‘If a claim was not resolved by the
state courts on the merits and is not otherwise procedurally barred, TTT § 2254(d)
TTT do[es] not apply TTT, [and] we review
the [federal] district court’s legal conclusions de novo and its factual findings, if
any, for clear error.’’ Cole v. Trammell,
755 F.3d 1142, 1148 (10th Cir. 2014).
B.
The Six Issues on Appeal
Having presented our standard of review, we now address each of the six
grounds for relief on which we have granted COA: (1) ineffective assistance of trial
counsel, (2) prosecutorial misconduct, (3)
improper jury instruction and prosecutor
statements on mitigating evidence, (4) admission of unconstitutional victim impact
testimony, (5) imposition of the death penalty without a jury finding that the HAC
aggravator outweighed any mitigating circourt shall be presumed to be correct’’ and
that ‘‘[t]he applicant shall have the burden of
rebutting the presumption of correctness by
clear and convincing evidence.’’ 28 U.S.C.
§ 2254(e)(1). In addressing Mr. Underwood’s
challenges to the OCCA’s factual determinations in our discussion below, we apply the
§ 2254(d)(2) standard, but his arguments
would likewise fail under § 2254(e)(1).
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Cite as 894 F.3d 1154 (10th Cir. 2018)
cumstances beyond a reasonable doubt,
and (6) cumulative error.
1.
Ineffective Assistance of Counsel
Mr. Underwood contends that he is entitled to relief from his death sentence
based on his trial counsel’s failure to present expert rebuttal testimony relating to
the timing of J.B.’s death. The OCCA rejected this claim on the merits. Underwood, 252 P.3d at 252.
[5] In addressing this claim, we begin
with the relevant legal background and
additional factual and procedural background. We then examine the OCCA’s
merits decision under § 2254(d) and conclude that it was not contrary to—or an
unreasonable application of—Supreme
Court law or based on an unreasonable
determination of the facts. We therefore
affirm the district court’s denial of habeas
relief on Mr. Underwood’s ineffective assistance claim.5
a.
Legal background
We first discuss the general framework
set forth in Strickland v. Washington, 466
U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674
(1984), to address ineffective assistance
claims. We then focus on the deficient
performance part of the test, which guides
our analysis below.
5.
Mr. Underwood also sought—and was denied—an evidentiary hearing on the ineffective assistance claim in both the OCCA and
federal district court. See Underwood, 252
P.3d at 250; Underwood, 2016 WL 4059162,
at *33. Mr. Underwood asserts on appeal that
‘‘the district court’s denial of an evidentiary
hearing [on the ineffective assistance claim]
was error.’’ Aplt. Br. at 25. We decline to
address this issue because it is inadequately
briefed. See Leathers v. Leathers, 856 F.3d
729, 751 (10th Cir. 2017).
i.
Overview
[6, 7] ‘‘The Supreme Court has held
that the Sixth Amendment right to counsel
includes a right to effective representation.’’ Frost v. Pryor, 749 F.3d 1212, 1224
(10th Cir. 2014); see also Strickland, 466
U.S. at 686, 104 S.Ct. 2052. Counsel can
‘‘deprive a defendant of the right to effective assistance TTT by failing to render
adequate legal assistance.’’ Strickland, 466
U.S. at 686, 104 S.Ct. 2052 (quotations
omitted). To establish a violation under
Strickland, a habeas petitioner must show
that (1) ‘‘counsel’s performance was deficient,’’ and (2) ‘‘the deficient performance
prejudiced the defense.’’ Id. at 687, 104
S.Ct. 2052. Because we rely only on deficient performance to resolve this case, we
restrict our discussion accordingly. See
Hooks v. Workman, 689 F.3d 1148, 1186
(10th Cir. 2012) (‘‘These two prongs may
be addressed in any order, and failure to
satisfy either is dispositive.’’).
ii.
Deficient performance
[8–12] To establish constitutionally deficient performance, ‘‘the defendant must
show that counsel’s representation fell below an objective standard of reasonableness.’’ Strickland, 466 U.S. at 688, 104
S.Ct. 2052. ‘‘[T]he defendant must overcome the presumption that, under the circumstances, the challenged action might
be considered sound trial strategy.’’ Id. at
689, 104 S.Ct. 2052 (quotations omitted). In
In any event, the Supreme Court has held
‘‘that review under § 2254(d)(1) is limited to
the record that was before the state court that
adjudicated the claim on the merits.’’ Cullen
v. Pinholster, 563 U.S. 170, 181, 131 S.Ct.
1388, 179 L.Ed.2d 557 (2011). As discussed
above, Mr. Underwood cannot overcome
§ 2254(d)(1) on the record that was before
the OCCA with respect to his ineffective assistance claim. Accordingly, the ‘‘district court
[was] not required to hold an evidentiary
hearing.’’ Id. at 183, 131 S.Ct. 1388 (quotations omitted).
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894 FEDERAL REPORTER, 3d SERIES
other words, counsel’s performance ‘‘must
have been completely unreasonable, not
merely wrong.’’ Boyd v. Ward, 179 F.3d
904, 914 (10th Cir. 1999). ‘‘Every effort
must be made to evaluate the conduct
from counsel’s perspective at the time.’’
Littlejohn v. Trammell, 704 F.3d 817, 859
(10th Cir. 2013) (quotations omitted).
‘‘However, while we entertain a strong
presumption that counsel’s conduct falls
within the wide range of reasonable professional assistance, we nevertheless apply
closer scrutiny when reviewing attorney
performance during the sentencing phase
of a capital case.’’ Id. (citations and quotations omitted).
b.
Relevant facts
In his interview with the FBI agents,
Mr. Underwood described J.B.’s murder.
He told them he had ‘‘hit [J.B.] on the
back of the head several times with a
wooden cutting board’’ and that she had
‘‘screamed in pain and begged him to
stop.’’ Underwood, 252 P.3d at 231. He
stated that he had ‘‘suffocate[d] [J.B.] by
sitting on her and placing his hand across
her face’’ and that ‘‘fifteen to twenty minutes passed before she succumbed.’’ Id. He
‘‘claimed he then attempted to have sexual
relations with the girl’s body, but was unable to perform[,] TTT and attempted to
decapitate it with a knife, but was unsuccessful at that task as well.’’ Id.
During the guilt stage of Mr. Underwood’s trial, Dr. Inas Yacoub, the Medical
Examiner, testified for the State regarding
the possibility that J.B. had survived Mr.
Underwood’s attempt to suffocate her and
was still alive or even conscious when he
then attempted to sexually assault and de6.
Under Oklahoma law, the HAC aggravator
is one of several aggravating circumstances
that, if found beyond a reasonable doubt, enables the imposition of the death penalty.
Okla. Stat. tit. 21, §§ 701.11, 701.12. The
capitate her. Dr. Yacoub had previously
performed J.B.’s autopsy and determined
that J.B. died from ‘‘asphyxiation.’’ Id. at
231, 251. At trial, Dr. Yacoub testified that
the injuries observed in J.B.’s genital area
and on her neck may have occurred while
she was still alive and even conscious. Trial
Tr. Vol. VII at 1174-78, 1817-19. On crossexamination, trial counsel for Mr. Underwood elicited Dr. Yacoub’s acknowledgement that she could not determine with
scientific certainty at what point J.B. lost
consciousness. Id. at 1817-19.
[13] In the punishment stage of Mr.
Underwood’s trial, the State ‘‘incorporated
the testimony from the guilt stage to show
that the murder was especially, heinous,
atrocious, or cruel.’’ Underwood, 252 P.3d
at 232.6 In closing argument, the State
referenced Dr. Yacoub’s testimony to support its theory that J.B. experienced conscious physical suffering before her death:
‘‘And the medical examiner told you there
was probably—there’s a possibility that
there was more that preceded her last
breath. And when she talks about the injuries to her vagina, and she talks about the
injuries to her throatTTTT There’s a lot of
stuff that preceded her last breath.’’ Trial
Tr. Vol. X at 2553-54.
Before trial, Mr. Underwood’s trial
counsel ‘‘had retained [a] forensic pathologist, Dr. John Adams, to review the autopsy findings.’’ Underwood, 252 P.3d at 251.
But trial counsel never called Dr. Adams
to testify. Id.
c.
OCCA and federal district court decisions
In his appeal to the OCCA, Mr. Underwood argued that trial counsel’s failure to
HAC aggravator showing requires ‘‘evidence
of conscious physical suffering of the victim
prior to death.’’ Cheney v. State, 909 P.2d 74,
80 (Okla. Crim. App. 1995) (emphasis added)
(quotations omitted).
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call Dr. Adams to rebut Ms. Yacoub’s testimony constituted reversible error. Id. at
250. He submitted a sworn affidavit, secured by appellate counsel, in which Dr.
Adams stated his expert opinion that J.B.
could not have been alive during the attempted decapitation. Defendant’s Appeal
Exhibit A. Dr. Adams based his conclusion
in part on his observation that the crime
scene photographs showed very little blood
spatter, whereas ‘‘widespread[ ] [blood
spatter] would support a theory of antemortem injury.’’ Id. at 3-4. The OCCA
denied Mr. Underwood’s ineffective assistance claim on the merits, ‘‘discern[ing]
sound strategic reasons for the defense
team not calling its forensic pathologist,
and TTT find[ing] no prejudice flowing
from that decision.’’ Underwood, 252 P.3d
at 253. Mr. Underwood then sought federal habeas relief, which the district court
denied. Underwood, 2016 WL 4059162, at
*13.
d.
Analysis
We review the OCCA’s decision under
§§ 2254(d)(1) and (d)(2) and conclude that
it was not contrary to—or an unreasonable
application of—clearly established Supreme Court law or based on an unreasonable determination of the facts. Although
the OCCA addressed both deficient performance and prejudice in its Strickland
analysis, our analysis begins and ends with
the former ground, which alone provides a
sufficient basis for denying relief. See
Hooks, 689 F.3d at 1186 (‘‘[F]ailure to
satisfy either [Strickland prong] is dispositive.’’).
i.
Section 2254(d)(1): Reasonableness
of legal determinations
[14] The OCCA’s conclusion that Dr.
Adams’s affidavit did not overcome the
presumption of sound trial strategy was
consistent with and a reasonable applica-
1165
tion of Strickland. In determining whether
counsel’s performance was deficient, ‘‘[e]very effort must be made to evaluate the
conduct from counsel’s perspective at the
time.’’ Littlejohn, 704 F.3d at 859 (quotations omitted). Here, the OCCA reasonably evaluated the value of Dr. Adams’s
rebuttal testimony from trial counsel’s perspective and determined it ‘‘might have
done more harm than good.’’ Underwood,
252 P.3d at 252.
As the OCCA reasoned, Dr. Adams’s
testimony would have had no relevance in
the guilt stage and, in the punishment
stage, could have drawn the jury’s attention away from Mr. Underwood’s affirmative mitigation case and back to the
‘‘gruesome’’ details of the crime. Id. For
example, Dr. Adams based his conclusion
that J.B. was already deceased at the
time of the attempted decapitation in part
on the absence of widespread blood spatter, as captured in the crime scene photographs. He also noted that ‘‘a massive exsanguination,’’ or loss of blood, would
support the possibility that J.B. was alive
during the attempted decapitation. Defendant’s Appeal Exhibit A at 3-4. But in his
confession, Mr. Underwood had stated
that, when he started cutting J.B.’s neck,
‘‘[he] couldn’t believe the amount of blood
that came out.’’ State’s Trial Exhibit 162
at 69. Had Dr. Adams testified, the prosecution likely would have questioned him
on cross-examination about this statement. This line of questioning could potentially have discredited Dr. Adams’s
conclusions and ‘‘would arguably have distracted the jury in a way unfavorable to
the defense.’’ Underwood, 252 P.3d at
252.
We acknowledge Mr. Underwood’s concern about the emotional impact of Dr.
Yacoub’s unrebutted testimony on the
jury, and we may even disagree with trial
counsel’s challenged course of action here.
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894 FEDERAL REPORTER, 3d SERIES
But under AEDPA’s deferential standard,
we cannot conclude that the OCCA unreasonably applied Strickland in determining
that trial counsel’s strategy was at least
reasonable.
ii. Section 2254(d)(2): Reasonableness
of factual determinations
Mr. Underwood contends that the
OCCA based its conclusion—that Dr.
Adams’s affidavit failed to overcome the
presumption of sound trial strategy—on
unreasonable factual determinations under § 2254(d)(2) because it ‘‘completely
disregarded [Dr.] Yacoub’s key prejudicial
testimony’’ and ‘‘ignored Dr. Adams’s conclusive condemnation of [her] alternate
theories.’’ Aplt. Br. at 24.7 We need not
decide whether § 2254(d)(2), rather than
§ 2254(d)(1), supplies the appropriate
standard of review.8 Under either standard, Mr. Underwood’s argument fails for
the same reason—the OCCA did not disregard Dr. Yacoub’s testimony. Rather,
the OCCA observed that her testimony
was ‘‘inconclusive’’ and reasoned that it
arguably related to ‘‘a collateral matter.’’
Underwood, 252 P.3d at 252. Likewise,
the OCCA did not disregard the testimony Dr. Adams was prepared to offer. Instead, the OCCA reasonably determined,
as discussed above, that Dr. Adams’s testimony ‘‘might have done more harm than
good.’’ Id.
2.
Prosecutorial Misconduct—Arguing
Facts Not in Evidence
Mr. Underwood contends that he is entitled to relief from his death sentence
7.
This specific argument does not appear in
Mr. Underwood’s § 2254 petition. In any
event, as we explain below, it lacks merit.
8.
We have previously said: ‘‘It is clear that,
where the state courts plainly misapprehend
or misstate the record in making their findings, and the misapprehension goes to a material factual issue that is central to petitioner’s claim, that misapprehension can fatally
based on the State’s closing argument in
both stages of the trial that the evidence
established he had shaved J.B.’s pubic region with a razor. The OCCA rejected this
claim on the merits. Underwood, 252 P.3d
at 249.
In addressing this claim, we begin with
the relevant legal background and additional factual and procedural background.
We assume without deciding that the
OCCA’s decision was based on an unreasonable determination of the facts under
§ 2254(d)(2). We therefore review the issue de novo and conclude that Mr. Underwood is not entitled to relief because he
has not shown the alleged error violated
his due process. We affirm the district
court’s denial of habeas relief on Mr. Underwood’s prosecutorial misconduct claim.
a.
Legal background
We first provide a general overview of
prosecutorial misconduct standards and
the framework under Donnelly v. DeChristoforo, 416 U.S. 637, 645, 94 S.Ct.
1868, 40 L.Ed.2d 431 (1974), for determining when prosecutorial misconduct warrants reversal of state court convictions
and sentences. We then focus on case law
regarding prosecutorial argument of facts
not in evidence, the type of misconduct
alleged here.
i.
Overview
The Supreme Court has ‘‘counselled
prosecutors ‘to refrain from improper
undermine the fact-finding process, rendering
the resulting factual finding unreasonable
[under § 2254(d)(2) ].’’ Byrd v. Workman, 645
F.3d 1159, 1171–72 (10th Cir. 2011) (quotations omitted). But Mr. Underwood argues
that the OCCA disregarded—as opposed to
misapprehended or misstated—Dr. Yacoub’s
testimony and Dr. Adams’s affidavit.
APPENDIX A
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methods calculated to produce a wrongful
conviction [or sentence].’ ’’ United States v.
Young, 470 U.S. 1, 7, 105 S.Ct. 1038, 84
L.Ed.2d 1 (1985) (alterations omitted)
(quoting Berger v. United States, 295 U.S.
78, 88, 55 S.Ct. 629, 79 L.Ed. 1314 (1935) );
see Le v. Mullin, 311 F.3d 1002, 1018 (10th
Cir. 2002). Although ‘‘the adversary system permits the prosecutor to TTT ‘strike
hard blows, he is not at liberty to strike
foul ones.’ ’’ Id. (quoting Berger, 295 U.S.
at 88, 55 S.Ct. 629).
[15] Prosecutorial misconduct does not
necessarily result in constitutional error
warranting habeas relief. ‘‘Generally,
there are two ways in which prosecutorial
misconduct TTT can result in constitutional
error.’’ Littlejohn, 704 F.3d at 837. ‘‘First,
it can prejudice a specific right as to
amount to a denial of that right.’’ Id. (alterations and quotations omitted). ‘‘Additionally, absent infringement of a specific
constitutional right, a prosecutor’s misconduct may in some instances render a habeas petitioner’s trial ‘so fundamentally
unfair as to deny him due process.’ ’’ Id.
(quoting Donnelly, 416 U.S. at 645, 94
S.Ct. 1868). ‘‘This determination may be
made only after considering all of the surrounding circumstances, including the
strength of the state’s case.’’ Malicoat v.
Mullin, 426 F.3d 1241, 1255 (10th Cir.
2005). The fundamental unfairness test
applies to instances of prosecutorial misconduct occurring in either the guilt or
sentencing stage of trial. Smallwood v.
Gibson, 191 F.3d 1257, 1275-76 (10th Cir.
1999).
2005), arguing ‘‘prejudicial facts not in evidence’’ is one type of prosecutorial misconduct. See Berger, 295 U.S. at 84, 55 S.Ct.
629. As with other types of prosecutorial
misconduct, ‘‘[t]he line separating acceptable from improper advocacy is not easily
drawn; there is often a gray zone.’’ Young,
470 U.S. at 7, 105 S.Ct. 1038.
b. Relevant facts
In closing argument in both stages of
Mr. Underwood’s trial, the State interpreted the evidence as showing that Mr. Underwood had shaved J.B.’s pubic region
with a razor. Trial Tr. Vol. VII at 1853-54
(guilt stage); Trial Tr. Vol. X at 2522, 2554
(punishment stage). The evidence included
a photograph of Mr. Underwood’s home,
taken by law enforcement, depicting a blue
object on a desk. State’s Trial Exhibit 90.
The evidence also included the testimony
of Jolene Russell, an OSBI criminalist. Ms.
Russell, after identifying the blue object in
the photograph as an ‘‘electric razor,’’ had
recalled the following observations ‘‘about
[J.B.]’s vaginal area at the morgue when
the body [was] being processed’’: (1) ‘‘loose
hairs around the pubic region,’’ (2) ‘‘[attached] pubic hair in the vaginal area,’’ and
(3) what appeared to be a ‘‘clean’’ area
above the vaginal area. Trial Tr. Vol. VI at
1522. Finally, the evidence included the
testimony of Dr. Yacoub, who recalled removing ‘‘a hair from the pubic area’’ during J.B.’s autopsy but did not otherwise
comment on the presence or absence of
hair in that area. Trial Tr. Vol. VII at
1760.
c.
ii.
Arguing facts not in evidence
Although ‘‘[a] prosecutor may comment
on and draw reasonable inferences from
evidence presented at trial,’’ Thornburg v.
Mullin, 422 F.3d 1113, 1131 (10th Cir.
9.
Because the State allocated different por-
1167
OCCA and federal district court decisions
In his appeal to the OCCA, Mr. Underwood argued that the prosecution’s remarks constituted reversible error. Underwood, 252 P.3d at 249.9 The OCCA denied
tions of the closing arguments to two different
APPENDIX A
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894 FEDERAL REPORTER, 3d SERIES
Mr. Underwood’s prosecutorial misconduct
claim on the merits, determining that the
prosecution’s remarks (1) were not improper, because they were ‘‘reasonably
based on the evidence,’’ and (2) ‘‘while
[they] may have, to some degree, underscored the vile nature of the entire crime,
[they] did not unfairly overshadow the other depraved things [Mr. Underwood] freely admitted to doing.’’ Id. In its discussion
of this claim, the OCCA stated that ‘‘[Ms.]
Russell noticed that the girl’s pubic area
appeared partially shaven.’’ Id. Mr. Underwood then sought federal habeas relief,
arguing the OCCA had misstated the evidence, and the district court denied relief.
Underwood, 2016 WL 4059162, at *23.
d.
Analysis
[16] As previously explained, we review the Mr. Underwood’s prosecutorial
misconduct claim de novo and conclude
that he is not entitled to habeas because
he has not shown the alleged error violated his due process under Donnelly.10 Mr.
Underwood contends that the OCCA ‘‘blatant[ly] misstate[d]’’ the evidence ‘‘when it
said ‘[Ms.] Russell noticed that the girl’s
pubic area appeared partially shaven.’ ’’
Aplt. Br. at 40 (quoting Underwood, 252
P.3d at 249). We need not decide whether
Mr. Underwood’s argument overcomes
AEDPA deference. Even assuming we
must review the prosecutorial misconduct
claim de novo, he is not entitled to habeas
relief. Based on our independent review of
the record, we agree with the OCCA’s
determination that the alleged prosecutorial misconduct—the remarks about shaving—‘‘did not unfairly overshadow the
prosecutors, we designate them jointly as ‘‘the
prosecution.’’
10. Mr. Underwood does not contend—nor do
we conclude—that the alleged prosecutorial
misconduct infringed any specific constitutional right. He must therefore satisfy the
other depraved things [Mr. Underwood]
freely admitted to doing’’ in his confession. Underwood, 252 P.3d at 249. The
remarks therefore did not render his trial
‘‘so fundamentally unfair as to deny him
due process.’’ Donnelly, 416 U.S. at 645,
94 S.Ct. 1868.
3.
Jury Instruction and Prosecutorial
Argument on Mitigating Evidence
Mr. Underwood contends that he is entitled to relief from his death sentence because one of the punishment stage jury
instructions, and the State’s use of it in
closing arguments, unconstitutionally limited the jury’s consideration of the mitigating evidence. The challenged instruction—
Instruction No. 12—defined ‘‘[m]itigating
circumstances’’ as ‘‘those which, in fairness, sympathy, and mercy, may extenuate
or reduce the degree of moral culpability
or blame.’’ O.R. at 1491.11 The OCCA rejected this claim on the merits. Underwood, 252 P.3d at 244.
In addressing this claim, we begin with
the relevant legal background and additional factual and procedural background.
We then examine the OCCA’s merits decision under § 2254(d) and conclude that it
was not contrary to—or an unreasonable
application of—Supreme Court law or
based on an unreasonable determination of
the facts. We therefore affirm the district
court’s denial of habeas relief on Mr. Underwood’s claim about Instruction No. 12
and the related prosecutorial arguments.
a.
Legal background
We first provide general background on
the Constitution’s requirements regarding
Donnelly fundamental unfairness standard to
show reversible constitutional error warranting habeas relief. See Littlejohn, 704 F.3d at
837.
11. ‘‘O.R.’’ refers to the record filed in Mr.
Underwood’s direct appeal to the OCCA.
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the jury’s consideration of mitigating evidence in capital sentencing proceedings.
We then discuss Grant v. Royal (Donald
Grant ), 886 F.3d 874 (10th Cir. 2018), in
which this court recently considered and
rejected a similar claim for habeas relief.
i. Overview
[17, 18] ‘‘[T]he Eighth and the Fourteenth Amendments require that the sentencer, in all but the rarest kind of capital
case, not be precluded from considering, as
a mitigating factor, any aspect of a defendant’s character or record and any of the
circumstances of the offense that the defendant proffers as a basis for a sentence
less than death.’’ Lockett v. Ohio, 438 U.S.
586, 604, 98 S.Ct. 2954, 57 L.Ed.2d 973
(1978) (plurality opinion) (footnote omitted); accord Eddings v. Oklahoma, 455
U.S. 104, 110, 102 S.Ct. 869, 71 L.Ed.2d 1
(1982). ‘‘[E]vidence, even if not related specifically to petitioner’s culpability for the
crime he committed TTT must be treated
as relevant mitigating evidence if it serves
as a basis for a sentence less than death.’’
Johnson v. Texas, 509 U.S. 350, 381, 113
S.Ct. 2658, 125 L.Ed.2d 290 (1993) (alterations, citations, and quotations omitted).
[19] ‘‘The standard against which we
assess whether jury instructions satisfy
the rule of Lockett and Eddings was set
forth in Boyde v. California, [494 U.S. 370,
110 S.Ct. 1190, 108 L.Ed.2d 316 (1990) ].’’
Johnson, 509 U.S. at 367, 113 S.Ct. 2658.
‘‘[T]he proper inquiry TTT is whether there
is a reasonable likelihood that the jury has
applied the challenged instruction in a way
that prevents the consideration of constitutionally relevant evidence.’’ Boyde, 494
U.S. at 380, 110 S.Ct. 1190. The reasonable
likelihood test also governs claims that
‘‘arguments by the prosecutor TTT reinforced an impermissible interpretation of
[the challenged jury instruction] and made
1169
it likely that jurors would arrive at such an
understanding.’’ Id. at 384.
ii. Grant v. Royal
In Grant, this court denied a habeas
petitioner’s Lockett/Eddings claim based
on punishment stage jury instructions and
prosecutorial arguments analogous to
those at issue in this case. The petitioner
‘‘argue[d] that one of the sentencing-phase
jury instructions, Instruction 12, standing
alone and in conjunction with the State’s
closing argument, unconstitutionally limited the jury’s consideration of evidence presented in mitigation of his death sentence.’’
(Donald) Grant, 886 F.3d at 930-31. The
challenged instruction read: ‘‘Mitigating
circumstances are those which, in fairness,
sympathy, and mercy, may extenuate or
reduce the degree of moral culpability or
blame.’’ Id. at 931 (quotations omitted).
During rebuttal closing argument, the
prosecutor specifically employed this language, telling the jury that ‘‘what the law
says is that before something can be mitigating it must reduce the moral culpability
or blame of the defendant.’’ Id. at 937
(alterations omitted). And, in discussing
the petitioner’s mitigating evidence relating to his alleged schizophrenia, the prosecutor argued that it ‘‘does not in any way’’
reduce the petitioner’s ‘‘moral culpability
or blame.’’ Id.
Applying AEDPA’s deferential standard
of review, we held that the OCCA neither
contradicted nor unreasonably applied
Lockett/Eddings and its progeny in rejecting the petitioner’s challenge to Instruction 12 and the prosecution’s statements
relating to the instruction. Id. at 936. We
reasoned that, ‘‘even if TTT the [prosecutorial] arguments TTT were improper, that
would not necessarily mean that the OCCA
was unreasonable in determining that
there was no Lockett error because there
was no reasonable likelihood that the jury
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was precluded TTT from considering TTT
mitigating evidence TTT that did not extenuate or reduce [the petitioner’s] moral culpability or blame.’’ Id. at 938 (emphasis in
original).
In reaching this result, we examined the
record and found reasonable support for
the OCCA’s determination. First, in addition to the challenged ‘‘moral culpability or
blame’’ language, Instruction 12 also included ‘‘language that vested the jury with
the responsibility for determining what evidence was mitigating: ‘The determination
of what circumstances are mitigating is for
you to resolve under the facts and circumstances of this case.’ ’’ Id. at 940 (quoting
Instruction 12). Second, a separate instruction—Instruction 13—‘‘informed the jury
that ‘evidence had been introduced as to
specified TTT mitigating circumstances’
and then listed TTT factors that ordinarily
would not be deemed to have extenuated
or reduced [the petitioner]’s moral culpability or blame.’’ Id. (alterations omitted)
(emphasis in original) (quoting Instruction
13). Instruction 13 also ‘‘ended with this
admonition: ‘In addition, you may decide
that other mitigating circumstances exist,
and if so, you should consider those circumstances as well.’ ’’ Id. (emphasis in
original) (quoting Instruction 13). Third, a
separate instruction—Instruction 17—
‘‘specifically admonished the jury that [the
court’s] instructions ‘contain all the law
and rules you must follow.’ ’’ Id. at 941
(quoting Instruction 17). Fourth, in unchallenged portions of the State’s closing argument, the prosecutor ‘‘spent the lion’s
share of her time casting doubt on the
veracity, credibility, and weight of the evidence supporting the mitigating circum12. Instruction 13 listed fifteen separate circumstances:
1. Kevin Ray Underwood was exposed to
severe trauma and mistreatment by his
peers while growing up, and got
stances that the court identified in Instruction 13.’’ Id. at 942. Fifth, ‘‘[a]t no point
during her opening closing remarks did
[the prosecutor] assert that the jury was
not free under the law to consider all of
the mitigating factors that the court identified in Instruction 13 on the ground that
some of them did not extenuate or reduce
moral culpability or blame.’’ Id. at 943.
b.
Relevant facts
This section presents the relevant jury
instructions and prosecutorial arguments
on the mitigating evidence given in the
punishment stage of Mr. Underwood’s trial.
i.
Jury instructions
Three of the punishment stage jury instructions—12, 13, and 20—are relevant.
Instruction 12—the challenged instruction—contained identical language to Instruction 12 in Grant: ‘‘Mitigating circumstances are those which, in fairness,
sympathy, and mercy, may extenuate or
reduce the degree of moral culpability or
blame. The determination of what circumstances are mitigating is for you to
resolve under the facts and circumstances of this case.’’ O.R. at 1491 (emphasis added).
Instruction 13 also contained identical
language to Instruction 13 in Grant: ‘‘Evidence has been introduced as to the following mitigating circumstances: [a list of 15
circumstances]. In addition, you may decide that other mitigating circumstances
exist, and if so, you should consider those
circumstances as well.’’ O.R. at 1492-93.12
through life only with the aid of a close
circle of ‘‘protectors’’.
2. Kevin Ray Underwood has, except for
his crime against [J.B.], no prior history
of any violent act.
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As in Grant, the circumstances enumerated in Instruction 13 included some that
‘‘ordinarily would not be deemed to have
extenuated or reduced [the petitioner]’s
moral culpability or blame.’’ (Donald)
Grant, 886 F.3d at 940 (quotations omitted). For instance, Instruction 13 listed
circumstances pertaining to Mr. Underwood’s childhood and the value others
place in his life. Compare O.R. 1492 (‘‘Kevin Ray Underwood was exposed to severe
trauma and mistreatment by his peers
while growing up’’) with (Donald) Grant,
886 F.3d at 940 (‘‘A substantial portion of
Donald Grant’s childhood was spent in a
violent and drug-infested neighborhood.’’
(quotations omitted) ); compare O.R. 1492
(‘‘Kevin Ray Underwood has family and
friends who love him, find meaning in his
life, and will continue to visit him in prison.’’) with (Donald) Grant, 886 F.3d at 940
(‘‘Donald Grant’s life will be of value to
3.
4.
5.
6.
7.
8.
9.
Kevin Ray Underwood has, except for
his crime against [J.B.] and a single
speeding ticket, no prior history of violating any law.
Kevin Ray Underwood suffers from several psychological and psychiatric disorders including, but not limited to:
schizotypal personality disorder, bi-polar disorder type II, multiple paraphilias, severe social phobia, anxiety, early
onset of neuro-developmental disorder.
None of these conditions has ever been
appropriately treated by a mental
health professional.
Kevin Ray Underwood was subjected to
emotional and verbal abuse by his parents while growing up.
Kevin Ray Underwood has family and
friends who love him, find meaning in
his life, and will continue to visit him in
prison.
Kevin Ray Underwood cooperated with
law enforcement by giving a full confession to the murder of [J.B.].
Kevin Ray Underwood has expressed
remorse for the killing of [J.B.]
Kevin Ray Underwood has spent most
of his life on the fringe of society and
constantly subjected to ridicule even
into his adult years.
1171
other persons besides himself.’’ (quotations
omitted) ).
Instruction 20 again contained identical
language to Instruction 17 in Grant, instructing the jury that court’s instructions
together ‘‘contain all the law and rules you
must follow.’’ O.R. at 1500.
ii.
Prosecutorial arguments
As in Grant, the prosecution’s closing
argument in the sentencing phase of Mr.
Underwood’s trial used the ‘‘moral culpability or blame’’ language from Instruction
12. In closing, the prosecution addressed
the jury as follows: ‘‘[T]he law TTT [t]alks
to you then about mitigating circumstances. Those are things which, in fairness, sympathy, and mercy, may extenuate
or reduce the degree of moral culpability
or blame. Reduce the moral culpability or
blame. And you have a list of a whole
10.
Kevin Ray Underwood’s multiple psychological and psychiatric problems
have prevented him from taking full
advantage of his intellect by continuing his education and gaining employment appropriate to his intelligence
level.
11. Kevin Ray Underwood will not be
around young children if sentenced to
prison for life.
12. Kevin Ray Underwood is much more
likely to be victimized in prison than
posing a risk of violence to others. In
fact, his chances of harming anyone in
prison are very, very small.
13. The symptoms and effects of Kevin
Ray Underwood’s mental illnesses can
be adequately controlled and lessened
through appropriate and low-cost
medication and treatment.
14. Kevin Ray Underwood comes from a
family with a significant history of
mental illness.
15. Kevin Ray Underwood has scored very
low on scientific testing instruments
designed to predict future violence.
O.R. at 1492-93.
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bunch of them.’’ Trial Tr. Vol. X at 2518
(emphasis added).
The prosecution then attacked each of
the circumstances listed in Instruction 13.
For many of the circumstances, the prosecution attacked the quality and quantity of
Mr. Underwood’s evidence. See, e.g., id. at
2518-19 (‘‘[Defense counsel] talk[s] about
that [Mr. Underwood] suffers from the
psychological disordersTTTT He faked the
test to look bad. You’ve got to wonder how
you can trust or judge what he says when
he’s talking to a psychiatrist.’’). But for
some of the circumstances, the prosecution’s main or only attack invoked Instruction 12’s ‘‘moral culpability or blame’’
framework. Regarding Mr. Underwood’s
alleged exposure to trauma and mistreatment by his peers, the prosecution stated:
‘‘[L]et’s say he was. Does that reduce his
blame for the killing of [J.B.]?’’ Id. at 2518.
Regarding Mr. Underwood’s alleged family support, the prosecution stated: ‘‘How
does that, the fact that you have family
and friends, reduce your blame for a
crime?’’ Id. at 2520. Regarding Mr. Underwood’s alleged inability to obtain appropriate employment due to various psychiatric
disorders, the prosecution stated: ‘‘So?
How does that lessen his blame or culpability for the crime that he didn’t have a
very good job?’’ Id. at 2523. And regarding
Mr. Underwood’s alleged significant family
history of mental illness, the prosecution
stated simply: ‘‘So?’’ Id.
‘‘decide what that means.’’ Id. at 2525. In
its rebuttal closing argument, the prosecution repeated many of the same points
highlighted above.
c.
OCCA and federal district court decisions
In his appeal to the OCCA, Mr. Underwood argued that the trial court’s wording
of Instruction 12 and the prosecution’s arguments relating to it constituted reversible error. Id. at 244. The OCCA denied
Mr. Underwood’s Lockett/Eddings claim
on the merits. Id. at 244-45. Mr. Underwood then sought federal habeas relief,
which the district court denied. Underwood, 2016 WL 4059162, at *26.
d.
Analysis
[20] We review the OCCA’s decision
under §§ 2254(d)(1) and (d)(2) and conclude that it was not contrary to—or an
unreasonable application of—clearly established Supreme Court law or based on an
unreasonable determination of the facts.
i.
Section 2254(d)(1): Reasonableness
of legal determinations
After remarking on each of the circumstances listed in Instruction 13, the prosecution concluded by advising the jury to
‘‘look at all of those mitigators’’ and to
The OCCA’s conclusion that Instruction
12 and the prosecution’s related arguments
did not warrant relief was consistent with
and a reasonable application of Lockett/Eddings and its progeny. As discussed above,
Grant so held on facts indistinguishable
from this case in all relevant respects, and
Mr. Underwood has offered no reason why
we should reverse this precedent.13 Nor
could we, as ‘‘[w]e are bound by the prece-
13. Grant in turn relied on this court’s previous decision in Hanson v. Sherrod, 797 F.3d
810 (10th Cir. 2015), which also denied habeas relief on a Lockett/Eddings claim involving
similar jury instructions and prosecutorial arguments. We stated that ‘‘[t]hough the factual
circumstances of Hanson are not entirely on
all fours with [Grant], its mode of analysis is
instructive and its substantive holding provides cogent support for the conclusion we
reach [in Grant].’’ (Donald) Grant, 886 F.3d at
939. This statement applies equally here,
where the factual circumstances are effectively on all fours with Grant. But we need not
discuss Hanson’s reasoning because Grant directly controls this case’s resolution.
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1173
dent of prior panels absent en banc reconsideration or a superseding contrary decision by the Supreme Court.’’ United States
v. Meyers, 200 F.3d 715, 720 (10th Cir.
2000) (quotations omitted). We therefore
cannot hold that the OCCA contradicted or
unreasonably applied Lockett/Eddings and
its progeny in adjudicating Mr. Underwood’s claim.
252 P.3d at 248. In light of Bosse v. Oklahoma, ––– U.S. ––––, 137 S.Ct. 1, 196
L.Ed.2d 1 (2016) (per curiam), however,
the State concedes that the admission of
the challenged evidence here—J.B.’s parents’ sentence recommendations—violated
the Eighth Amendment. The parties dispute whether this error warrants automatic relief, and, if not, whether this error
prejudiced Mr. Underwood’s defense.
ii. Section 2254(d)(2): Reasonableness
of factual determinations
In addressing this claim, we begin with
general legal background on the Constitution’s limitations on the admission of victim
impact evidence in capital cases, as well as
additional factual and procedural background relevant to Mr. Underwood’s claim.
We then consider the issues disputed by
the parties, providing additional background as needed. Because the OCCA
found no error and thus had no occasion to
address these issues, we consider them de
novo. See Cole, 755 F.3d at 1148 (‘‘If a
claim was not resolved by the state courts
on the merits[,] TTT § 2254(d) TTT do[es]
not apply TTT, [and] we review the [federal] district court’s legal conclusions de
novo and its factual findings, if any, for
clear error.’’); Lockett, 711 F.3d at 1218
(‘‘Because the OCCA erred in finding no
Eighth Amendment violation, we grant no
deference to its harmless error analysis
and consider the question de novo.’’). We
conclude that the error here neither warrants automatic relief nor prejudiced the
defense under the applicable standard. We
therefore affirm the district court’s denial
of habeas relief on Mr. Underwood’s claim
based on the admission of J.B.’s parents’
sentence recommendations.
The OCCA did not base its conclusion—
that Instruction 12 and the prosecution’s
related arguments do not warrant relief—
on an unreasonable factual determination.
Mr. Underwood argues that the OCCA
made ‘‘an unreasonable determination of
facts in that it misstate[d] the prosecution’s argument.’’ Aplt. Br. at 52 n.18. But
the OCCA’s opinion nowhere misquoted
the prosecution’s argument. Rather, the
OCCA ‘‘found no error’’ after ‘‘[c]onsidering the [prosecutorial] arguments as a
whole.’’ Underwood, 252 P.3d at 244. The
‘‘arguments as a whole’’ included ‘‘the
prosecutor[’s] t[elling] the jurors that they
were to decide what qualified as mitigating evidence, and that they could consider
factors besides those advanced by the defense.’’ Id. This court has previously characterized such statements as ‘‘ ‘encourag[ing] the jury to consider all sorts of
mitigating evidence,’ including the kind
that did not extenuate or reduce moral
culpability or blame.’’ (Donald) Grant, 886
F.3d at 942 (quoting Hanson v. Sherrod,
797 F.3d 810, 852 (10th Cir. 2015) ).
4.
Unconstitutional Victim Impact Evidence
Mr. Underwood contends that he is entitled to relief from his death sentence
based on the trial court’s admission of
unconstitutional victim impact evidence.
The OCCA found no error. Underwood,
a.
Legal background
[21] In Booth v. Maryland, 482 U.S.
496, 107 S.Ct. 2529, 96 L.Ed.2d 440 (1987),
the Supreme Court ‘‘held that ‘the Eighth
Amendment prohibits a capital sentencing
jury from considering victim impact evi-
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dence’ that does not ‘relate directly to the
circumstances of the crime.’ ’’ Bosse, 137
S.Ct. at 1 (quoting Booth, 482 U.S. at 50102, 507, n.10, 107 S.Ct. 2529 (1987) ). In
Payne v. Tennessee, 501 U.S. 808, 111
S.Ct. 2597, 115 L.Ed.2d 720 (1991), the
Court overruled Booth in part and held
that the Eighth Amendment allows consideration of ‘‘ ‘victim impact’ evidence relating to the personal characteristics of the
victim and the emotional impact of the
crimes on the victim’s family.’’ Id. at 817,
827, 111 S.Ct. 2597; see Bosse, 137 S.Ct. at
1-2.
The OCCA has long interpreted Payne
as ‘‘implicitly overrul[ing] that portion of
Booth regarding characterizations of the
defendant and opinions of the sentence.’’
E.g., Conover v. State, 933 P.2d 904, 920
(Okla. Crim. App. 1997), abrogated by
Bosse, 137 S.Ct. at 1. This court has long
disagreed with the OCCA. Starting with
United States v. McVeigh, we have interpreted Booth and Payne to prohibit the
prosecution from presenting sentencing
recommendations from family members of
the victim. 153 F.3d 1166, 1217 (10th Cir.
1998) (‘‘Payne did not overrule the prohibitions in Booth against the admission of
[victim’s family members’ sentence recommendations]’’); see also Hain v. Gibson,
287 F.3d 1224, 1238-39 (10th Cir. 2002)
(‘‘To date, three circuits, including our
own, have expressly recognized that the
portion of Booth prohibiting family members of a victim from stating ‘characterizations and opinions about TTT the appropriate sentence’ during the penalty phase of a
capital trial survived the holding in Payne
and remains valid.’’).
14. When the State noticed its intention to
present these sentence recommendations, the
trial court warned that ‘‘the Tenth Circuit is
not real favorable to this kind of testimony
but that it has been allowed in Oklahoma, but
it is one of those things that could be a risk of
The Supreme Court recently clarified
that the OCCA ‘‘remains bound by Booth’s
prohibition on characterizations and opinions from a victim’s family members about
the crime, the defendant, and the appropriate sentence unless this Court reconsiders that ban’’ and that the OCCA ‘‘erred in
concluding otherwise.’’ Bosse, 137 S.Ct. at
2.
b.
Relevant facts—the sentence recommendations
In the punishment stage of Mr. Underwood’s trial, the trial court admitted victim
impact testimony from J.B.’s mother and
father that included their opinions about
the appropriate sentence.14 After J.B.’s
mother testified to the impact of J.B.’s
loss, the following exchange occurred:
Q: [L]et me ask you, do you have a
recommendation as to the appropriate punishment for this defendant?
A: Yeah.
Q: And what is that?
A: He—The death penalty. I don’t have
my little girl.
Trial Tr. Vol. VIII at 1949-50 (emphasis
added). After J.B.’s father testified to the
impact of J.B.’s loss, a similar exchange
occurred:
Q: Do you have a recommendation for
this jury as to what you believe is
appropriate punishment for the
murder of your daughter?
A: Yes.
Q: Can you tell me what that is?
reversal.’’ Trial Tr. Vol. VIII at 1882. But the
court agreed to admit the recommendations
‘‘[a]s long as [J.B.’s parents] kn[ew] that and
they’ve made that choice,’’ as was the case.
Id.
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A: Would be the death penalty.
Id. at 1953-54 (emphasis added).
After the presentation of punishment
stage evidence, the trial court instructed
the jury on the role of victim impact evidence: ‘‘This evidence is simply another
method of informing you about the specific
harm caused by the crime in question.
You may consider this evidence in determining an appropriate punishment. However, your consideration must be limited to
a moral inquiry into the culpability of the
defendant, not an emotional response to
the evidence.’’ O.R. at 1499 (emphasis added).
At no point in its closing argument did
the prosecution expressly refer to J.B.’s
parents’ sentence recommendations. It
merely summarized other portions of their
victim impact statements, emphasizing
that J.B.’s death ‘‘is a loss that her family
will never recover from.’’ Trial Tr. Vol. X
at 2527. It also advised the jury that the
impact statements spoke to ‘‘the specific
harm that [J.B.’s] murder caused’’ and
could be considered in determining the
appropriate punishment. Id. at 2526. In
rebuttal, the prosecution ‘‘submit[ted] to
[the jury]’’ that ‘‘anything less’’ than death
would be ‘‘an injustice for [J.B.]’’ and ‘‘an
injustice for that family sitting right
there.’’ Id. at 2565.
c.
OCCA and federal district court decisions
In his appeal to the OCCA, Mr. Underwood argued that the trial court’s admission of J.B.’s parents’ sentence recommendations constituted reversible error.
Underwood, 252 P.3d at 248. The OCCA
denied Mr. Underwood’s Booth claim on
the merits, finding no error. Id. Mr. Underwood then sought federal habeas relief, which the district court denied because it determined that the error was
harmless under the standard set forth in
1175
Brecht v. Abrahamson, 507 U.S. 619, 113
S.Ct. 1710, 123 L.Ed.2d 353 (1993). Underwood, 2016 WL 4059162, at *18-*19.
d.
Structural error, Footnote Nine error, or trial error
Mr. Underwood contends that he is entitled to automatic relief from his death
sentence based on the concededly unconstitutional admission of J.B.’s parents’ sentence recommendations at his trial. The
State disagrees, arguing that Mr. Underwood is entitled to relief only if the Booth
error was not harmless under Brecht. Mr.
Underwood submits that the Booth error
warrants automatic relief because (1) it
was structural error, and (2) it falls under
the class of errors that infect a proceeding’s integrity, as described in footnote
nine of Brecht (‘‘Footnote Nine’’).
In addressing Mr. Underwood’s arguments, we first provide additional legal
background. We then consider Mr. Underwood’s arguments and conclude that he is
not entitled to automatic relief based on
the conceded Booth error here.
i.
Additional legal background
[22, 23] On habeas review, we ordinarily apply the Brecht standard to determine
whether constitutional error warrants relief from the challenged conviction or sentence. Under this standard, constitutional
error may be disregarded unless found to
have ‘‘had substantial and injurious effect
or influence in determining the jury’s verdict.’’ Brecht, 507 U.S. at 638, 113 S.Ct.
1710. ‘‘If a reviewing court is in ‘grave
doubt’ as to the harmlessness of an error,
the habeas petitioner must win.’’ Crease v.
McKune, 189 F.3d 1188, 1193 (10th Cir.
1999) (quoting O’Neal v. McAninch, 513
U.S. 432, 436, 115 S.Ct. 992, 130 L.Ed.2d
947 (1995) ). ‘‘In harmless error analysis in
a capital case, we are mindful of the need
for heightened reliability in determining a
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capital sentence.’’ Mollett v. Mullin, 348
F.3d 902, 920 (10th Cir. 2003) (quotations
omitted); see also Kyles v. Whitley, 514
U.S. 419, 422, 115 S.Ct. 1555, 131 L.Ed.2d
490 (1995) (‘‘[O]ur duty to search for constitutional error with painstaking care is
never more exacting than it is in a capital
case.’’ (quotations omitted) ).
We provide additional background on
two circumstances where constitutional error alone requires reversal and the harmless error doctrine therefore does not apply: (1) structural error, and (2) Footnote
Nine error.
1) Structural error
[24] Notwithstanding Brecht, constitutional errors that rise to the level of
‘‘structural error’’—in contrast to ordinary
‘‘trial error’’—require automatic reversal.
As the Supreme Court explained in Arizona v. Fulminante, ‘‘ ‘trial error’ TTT occur[s] during the presentation of the case
to the jury, and TTT may therefore be TTT
assessed TTT to determine whether its admission was harmless beyond a reasonable
doubt,’’ whereas ‘‘structural defects in the
constitution of the trial mechanism TTT
defy analysis by ‘harmless-error’ standards.’’ 499 U.S. 279, 307-08, 111 S.Ct.
1246, 113 L.Ed.2d 302 (1991).
[25] ‘‘A defining feature of structural
error is that the resulting unfairness or
prejudice is necessarily unquantifiable and
indeterminate, such that any inquiry into
its effect on the outcome of the case would
be purely speculative.’’ United States v.
Solon, 596 F.3d 1206, 1211 (10th Cir. 2010)
(quotations omitted); see also United
States v. Gonzalez-Lopez, 548 U.S. 140, 149
n.4, 126 S.Ct. 2557, 165 L.Ed.2d 409 (2006)
(‘‘[A]s we have done in the past, we rest
our conclusion of structural error upon the
difficulty of assessing the effect of the
error.’’). In contrast, the effect of ordinary
trial errors ‘‘may ‘be quantitatively as-
sessed in the context of other evidence
presented.’ ’’ Gonzalez-Lopez, 548 U.S. at
148, 126 S.Ct. 2557 (quoting Fulminante,
499 U.S. at 307-08, 111 S.Ct. 1246).
[26] The Supreme Court has recognized the following categories of structural
error: ‘‘a total deprivation of the right to
counsel; the lack of an impartial trial
judge; the unlawful exclusion of grand jurors of defendant’s race; a deprivation of
the right to self-representation at trial; the
denial of the right to a public trial; and an
erroneous reasonable-doubt jury instruction.’’ Solon, 596 F.3d at 1211.
2) Footnote Nine error
Apart from structural error, the Supreme Court in Brecht suggested another
potential type of error warranting automatic relief. In Footnote Nine, the Court
stated that Brecht ‘‘does not foreclose the
possibility that in an unusual case, a deliberate and especially egregious error of the
trial type, or one that is combined with a
pattern of prosecutorial misconduct, might
so infect the integrity of the proceeding as
to warrant the grant of habeas relief, even
if it did not substantially influence the
jury’s verdict.’’ 507 U.S. at 638 n.9, 113
S.Ct. 1710.
This court has not previously had occasion to apply Footnote Nine to a Booth
error involving the admission of unconstitutional sentence recommendations in a
capital case. But we find Duckett v. Mullin, 306 F.3d 982 (10th Cir. 2002), in which
we applied Footnote Nine to alleged prosecutorial misconduct, instructive.
In Duckett, the habeas petitioner argued
for application of Brecht ’s Footnote Nine
exception to the harmless error doctrine
based on the Oklahoma prosecutor’s improper remarks in both the guilt and sentencing stages of the trial. Id. at 993. The
prosecutor in Duckett had made improper
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remarks such as, in arguing for the death
sentence, asking the jury whether it would
serve ‘‘justice [to] send this man down to
prison, let him have clean sheets to sleep
on every night, three good meals a day,
visits by his friends and family, while [the
victim] lies cold in his grave?’’ Id. at 992.
This particular prosecutor ‘‘ha[d] been
chastised for participating in the same
type of improper argumentation in other
cases.’’ Id. at 993. Both the OCCA and
federal courts had ‘‘repeatedly condemned
[him] and prosecutors from his office for
their habitual misconduct in argument.’’
Id. at 993 n.4 (quotations omitted). Accordingly, ‘‘our past experiences with this prosecutor le[ft] us convinced that his inappropriate commentary at trial was intentional
and calculated.’’ Id. at 993 (quotations
omitted). We further observed that the
prosecutor’s ‘‘persistent misconduct TTT
has without doubt harmed the reputation
of Oklahoma’s criminal justice system and
left the unenviable legacy of an indelibly
tarnished legal career.’’ Id. at 994. And we
emphasized that ‘‘[o]ur nation’s confidence
in the fair and just administration of the
death penalty is disserved by prosecutors
who cynically test the bounds of the harmless-error doctrine.’’ Id.
Even so, we determined that the challenged prosecutorial misconduct did not
rise to the level of Footnote Nine error,
noting that ‘‘[t]he due process concerns
flagged by footnote nine of Brecht will
manifest themselves only in very limited
circumstances.’’ Id. at 994-95. Specifically,
we stated that the key inquiry governing
‘‘whether the footnote’s exemption will be
applicable ‘is whether the integrity of the
proceeding was so infected that the entire
trial was unfair[,]’ ’’ and we could not conclude that that was so on Duckett ’s facts.
Id. at 995 (quoting Hardnett v. Marshall,
25 F.3d 875, 879 (9th Cir. 1994) ); see also
Torres v. Mullin, 317 F.3d 1145, 1159
(10th Cir. 2003) (declining to apply Footnote Nine in a post-Duckett case involving
the same Oklahoma prosecutor).
ii.
Analysis
Mr. Underwood is not entitled to automatic relief because the Booth error here
constituted neither structural error nor
Footnote Nine error. We address each argument in turn.
1) Structural error
[27] The admission of J.B.’s parents’
sentence recommendations does not
amount to structural error. The error’s
effect may be evaluated in light of the
other evidence at trial and thus is not
‘‘necessarily unquantifiable and indeterminate.’’ Solon, 596 F.3d at 1211.
Mr. Underwood contends that ‘‘judges
from this Court have indicated, rightly so,
that sentencing recommendations by victim’s family members can rise to the level
of structural error, requiring automatic reversal.’’ Aplt. Suppl. Br. at 5-6 (citing
Hain, 287 F.3d at 1239 n.11; DeRosa v.
Workman, 696 F.3d 1302, 1305 (10th Cir.
2012) (Mem.) (Lucero, J., dissenting from
denial of rehearing en banc) ). We disagree. In Hain, we remarked that ‘‘[t]he
decision in Booth does not expressly indicate whether the [Supreme] Court believed
[victim impact] errors to be trial errors
subject to harmless error review, or structural error requiring automatic reversal.’’
287 F.3d at 1239 n.11. We ‘‘[n]evertheless
TTT d[id] not believe the OCCA unreasonably applied Booth in concluding that such
errors are subject to harmless error review.’’ Id.
Since Hain, we have repeatedly applied
Brecht’s harmless error analysis to Booth
errors on de novo review, thus necessarily
concluding that such errors are indeed
subject to harmless error review. See, e.g.,
Grant v. Trammell (John Grant), 727 F.3d
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1006, 1016-17 (10th Cir. 2013). Contrary to
Mr. Underwood’s assertion, Judge Lucero
did not disagree with this legal conclusion
in his dissent from the denial of rehearing
en banc in DeRosa. See DeRosa, 696 F.3d
at 1305 (‘‘Were the option not foreclosed by
precedent, one could make a strong case
that the [OCCA’s] pattern of ignoring the
United States Supreme Court should be
immune from harmless error review as
akin to structural error.’’ (emphasis added) ).
fected the trial as to make the proceeding
fundamentally unfair and thus immune
from harmless-error review.’’ 306 F.3d at
994, 995 (emphasis added). Duckett therefore compels us to conclude that the trial
in the present case was not rendered fundamentally unfair by the Booth error, notwithstanding the fact, as Mr. Underwood
puts it, ‘‘that Oklahoma courts and prosecutors have continued to pursue the very
victim-impact evidence precluded by
Booth—for nearly 30 years.’’ Aplt. Suppl.
Br. at 6-7.
2) Footnote Nine error
The admission of J.B.’s parents’ sentence recommendations does not amount
to Footnote Nine error. As discussed
above, ‘‘[t]he due process concerns flagged
by footnote nine of Brecht will manifest
themselves only in very limited circumstances.’’ Duckett, 306 F.3d at 994-95. Mr.
Underwood contends that we are faced
with such a circumstance here. He asserts
that the ‘‘OCCA, state trial judges, and
prosecutors have repeatedly and deliberately violated capital defendants’ Eighth
Amendment rights through the admission
of victim[s’] family members’ sentencing
recommendations.’’ Aplt. Suppl. Br. at 6.
He further asserts that ‘‘this pattern has
impugned the very integrity of the fair
trial process.’’ Id. at 6-7.
e.
Brecht harmless error analysis
[28] Mr. Underwood contends that he
is entitled to relief from his death sentence
because he can show ‘‘substantial and injurious effect’’ under the Brecht standard.
We first provide additional background on
this court’s application of Brecht to the
admission of unconstitutional sentence recommendations. We then summarize the
mitigating and aggravating evidence presented at Mr. Underwood’s trial to provide
context for our analysis. Guided by our
precedents, we evaluate the conceded
Booth error’s prejudicial impact in light of
this context and conclude that it does not
warrant habeas relief.
i.
Additional legal background
We agree that the OCCA has disregarded longstanding Supreme Court precedent
and has refused to recognize Booth errors.
But even in Duckett, where we acknowledged that the prosecutor’s flagrant and
persistent misconduct was ‘‘emphatically
not condoned by this court TTT [and] has
without doubt harmed the reputation of
Oklahoma’s criminal justice system,’’ we
nevertheless said that the application of
Footnote Nine requires more—it requires
that the error ‘‘in the present case so in-
This court has held that the admission of
unconstitutional victim sentence recommendations required reversal under the
Brecht standard in only one case: Dodd v.
Trammell, 753 F.3d 971 (10th Cir. 2013).
Before Dodd, ‘‘no prior panel of this court
ha[d] ruled that victim recommendations of
the death penalty required reversal.’’ Id. at
997. The Dodd panel acknowledged ten
previous decisions holding ‘‘that such testimony was harmless.’’ Id.15 It cited three
factors warranting a different result in
15. The panel cited (John) Grant, 727 F.3d at
1015–17; Lockett, 711 F.3d at 1226, 1238–40;
Lott v. Trammell, 705 F.3d 1167, 1202, 1214,
1218–19 (10th Cir. 2013); DeRosa v. Work-
APPENDIX A
UNDERWOOD v. ROYAL
Cite as 894 F.3d 1154 (10th Cir. 2018)
that case: (1) ‘‘the sheer volume of [the
unconstitutional] testimony,’’ which included a ‘‘drumbeat’’ of seven death recommendations; (2) that the jury did not find
the HAC aggravator or the continuing
threat aggravator;16 and (3) that the defendant’s guilt ‘‘was not as clear cut’’ as in
previous decisions, due to the prosecution’s
sole reliance on circumstantial evidence.
Id. at 997-98. Based on these factors, the
panel found itself ‘‘in grave doubt about
the effect of the error on the jury’s sentencing decision’’ and held that ‘‘the admission of the sentence recommendations in
this case was not harmless.’’ Id. at 999
(citations and quotations omitted).
ii.
Additional relevant facts
To determine whether J.B.’s parents’
statements had a substantial and injurious
effect on the jury’s sentencing decision, we
must consider them in the overall context
of the trial and the ‘‘record as a whole.’’
Brecht, 507 U.S. at 638, 113 S.Ct. 1710; see
also Lockett, 711 F.3d at 1239 (‘‘In evaluating whether the unconstitutional portions
of the [victim impact] statement had a
substantial and injurious effect on the jury,
we must consider it in the context of all of
the aggravating and mitigating evidence.’’).
We therefore summarize the aggravating
and mitigating evidence presented during
the sentencing phase of Mr. Underwood’s
trial.
1179
1) The aggravating case
The State’s aggravating case consisted
primarily of the guilt stage evidence, which
it incorporated into the punishment stage.
The guilt stage evidence included, most
notably, the video recording and transcript
of Mr. Underwood’s interview with the
FBI, during which, as the OCCA wrote, he
‘‘describe[d] how he had recently developed a desire to abduct a person, sexually
molest them, eat their flesh, and dispose of
their remains’’ and ‘‘explain[ed] in considerable detail how he attempted to carry
out this plan on [J.B.], whom he had decided was a convenient victim.’’ Underwood,
252 P.3d at 231. These details included
that he had (1) ‘‘hit [J.B.] on the back of
the head several times with a wooden cutting board’’ and heard her ‘‘scream[ing] in
pain and beg[ing] him to stop,’’ (2) ‘‘suffocate[d] [J.B.] by sitting on her and placing
his hand across her face TTT [for] fifteen to
twenty minutes,’’ (3) ‘‘attempted to have
sexual relations with [J.B.]’s body,’’ and (4)
‘‘attempted to decapitate [J.B.’s body] with
a knife.’’ Id. The guilt stage evidence also
included crime scene photographs taken at
Mr. Underwood’s apartment, photographs
of J.B.’s body taken at the Medical Examiner’s office, and physical items taken from
Mr. Underwood’s apartment that corroborated his confession.17
man, 679 F.3d 1196, 1236–37, 1240 (10th Cir.
2012), reh’g denied in DeRosa, 696 F.3d 1302;
Selsor v. Workman, 644 F.3d 984, 1025, 1027
(10th Cir. 2011); Welch v. Workman (Gary
Welch), 639 F.3d 980, 996–1000, 1002–04
(10th Cir. 2011); Welch v. Sirmons (Frank
Welch), 451 F.3d 675, 703–04 (10th Cir.
2006); Hooper v. Mullin, 314 F.3d 1162, 1174
(10th Cir. 2002); Willingham v. Mullin, 296
F.3d 917, 930–32 (10th Cir.2002); and Hain,
287 F.3d at 1234–36, 1239–40. Dodd, 753
F.3d 971 at 997.
HAC aggravator and that, in two of the remaining three decisions, the jury found the
continuing threat aggravator. 753 F.3d at
998. And ‘‘[i]n the only case in which the jury
did not find either [of these] aggravator[s], the
two victim statements ‘did not expressly refer
to the defendant being put to death; instead,
they both simply stated without embellishment that they agreed with the prosecution’s
‘‘recommended sentence.’’ ’ ’’ Id. (alterations
omitted) (quoting Selsor, 644 F.3d at 1027).
16. The Dodd panel noted that in seven of the
ten decisions it reviewed, the jury found the
17. For example, the State entered into evidence the cutting board that Mr. Underwood
APPENDIX A
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894 FEDERAL REPORTER, 3d SERIES
2) The mitigating case
Mr. Underwood’s mitigating case consisted of testimony from 19 witnesses over
three days. They included family members,
friends, former teachers, supervisors, and
coworkers who had known Mr. Underwood
at various points in his life, a physician
who had treated Mr. Underwood for depression, jail officials who had had contact
with Mr. Underwood since his arrest, and
three experts who had evaluated Mr. Underwood’s psychological and psychiatric
health and his likelihood of committing
future violence.18
After hearing this testimony, the jury
was instructed that ‘‘[e]vidence ha[d] been
introduced as to the following mitigating
circumstances:’’
1.
Kevin Ray Underwood was exposed
to severe trauma and mistreatment
by his peers while growing up, and
got through life only with the aid of
a close circle of ‘‘protectors’’.
2.
Kevin Ray Underwood has, except
for his crime against [J.B.], no prior
history of any violent act.
3.
Kevin Ray Underwood has, except
for his crime against [J.B.] and a
single speeding ticket, no prior history of violating any law.
4.
Kevin Ray Underwood suffers from
several psychological and psychiatric
disorders including, but not limited
to: schizotypal personality disorder,
bi-polar disorder type II, multiple
paraphilias, severe social phobia,
anxiety, early onset of neuro-developmental disorder. None of these
conditions has ever been appropriately treated by a mental health professional.
described using to hit J.B. in his confession.
State’s Trial Exhibit 171.
5. Kevin Ray Underwood was subjected to emotional and verbal abuse by
his parents while growing up.
6. Kevin Ray Underwood has family
and friends who love him, find meaning in his life, and will continue to
visit him in prison.
7. Kevin Ray Underwood cooperated
with law enforcement by giving a
full confession to the murder of
[J.B.].
8. Kevin Ray Underwood has expressed remorse for the killing of
[J.B.].
9. Kevin Ray Underwood has spent
most of his life on the fringe of
society and constantly subjected to
ridicule even into his adult years.
10. Kevin Ray Underwood’s multiple
psychological and psychiatric problems have prevented him from taking full advantage of his intellect by
continuing his education and gaining employment appropriate to his
intelligence level.
11. Kevin Ray Underwood will not be
around young children if sentenced
to prison for life.
12. Kevin Ray Underwood is much
more likely to be victimized in prison than posing a risk of violence to
others. In fact, his chances of
harming anyone in prison are very,
very small.
13. The symptoms and effects of Kevin
Ray Underwood’s mental illnesses
can be adequately controlled and
lessened through appropriate and
low-cost medication and treatment.
14. Kevin Ray Underwood comes from
a family with a significant history
of mental illness.
18. The State called its own expert to rebut the
defense experts’ testimony. Trial Tr. Vol. X at
2427-88.
APPENDIX A
UNDERWOOD v. ROYAL
Cite as 894 F.3d 1154 (10th Cir. 2018)
15.
Kevin Ray Underwood has scored
very low on scientific testing instruments designed to predict future
violence.
O.R. at 1492-93.
iii. Analysis
Based on our careful review of the entire record, we conclude, guided by our
precedents, that the admission of J.B.’s
parents’ sentencing recommendations did
not have a ‘‘substantial and injurious effect
or influence in determining the jury’s verdict.’’ Brecht, 507 U.S. at 638, 113 S.Ct.
1710. Three considerations taken together
lead us to this conclusion: (1) the offending
statements were relatively brief and emotionally restrained; (2) the aggravating
case was relatively strong; and (3) the
mitigating case, while not insubstantial,
was not sufficient to overcome the aggravating evidence. In discussing these considerations below, we also note that none
of the factors that warranted reversal in
Dodd are present in this case.
1) The sentence recommendations
1181
see also Lockett, 711 F.3d at 1239 (‘‘The
[victim’s parents]’ request for the death
penalty was a single, concise sentence. In
contrast, the three victim statements that
were held to be harmless in [Welch v.
Workman, 639 F.3d 980, 990, 999 (10th
Cir. 2011) ] contained extremely emotional
pleas for the death penalty.’’).
[29] ‘‘Further, the jury was properly
instructed by the trial court on the TTT
proper role of victim-impact evidence.’’ DeRosa v. Workman, 679 F.3d 1196, 1237
(10th Cir. 2012), reh’g denied in DeRosa,
696 F.3d 1302; see O.R. at 1499 (‘‘[Y]our
consideration must be limited to a moral
inquiry into the culpability of the defendant, not an emotional response to the
evidence.’’). ‘‘As a general rule, we presume that juries follow [limiting] instructions.’’ United States v. Lane, 883 F.2d
1484, 1498 (10th Cir. 1989).
Finally, unlike in Dodd, in which the
State ‘‘went to the extraordinary length of
eliciting [a death penalty] recommendation
from six, and perhaps seven, TTT witnesses,’’ 19 the sentence recommendations
presented at Mr. Underwood’s trial were
more akin to a ‘‘one-off or a mere aside’’
than ‘‘a drumbeat.’’ 753 F.3d at 997.
The offending statements, J.B.’s parents’
sentence recommendations, were ‘‘relatively pallid in comparison to other victim
impact statements this circuit has found
harmless.’’ Lockett, 711 F.3d at 1239. In
response to the prosecution’s question eliciting their sentence recommendation,
J.B.’s mother stated ‘‘The death penalty. I
don’t have my little girl.’’ and J.B.’s father
stated ‘‘Would be the death penalty.’’ Trial
Tr. Vol. VIII at 1950, 1954. ‘‘This court has
held far more extensive pleas to lack the
required ‘substantial and injurious’ effect
on a jury’s verdict when the evidence
against the defendant at sentencing was
strong.’’ (John) Grant, 727 F.3d at 1017;
Although the jury found that only one
aggravating circumstance—the HAC aggravator—existed beyond a reasonable
doubt, the aggravating case against Mr.
Underwood was relatively strong. The existence of the HAC aggravator in itself
provides a relatively strong basis for the
death penalty as compared to the other
aggravating circumstances (apart from the
continuing threat aggravator). See Dodd,
753 F.3d at 998 (‘‘This was also a signifi-
19. In Dodd, six of the State’s witnesses recommended death in response to a question
posed by the prosecutor, while a seventh wit-
ness ‘‘included her recommendation of the
death sentence in the statement she read to
the jury.’’ 753 F.3d at 997.
2) The aggravating case
APPENDIX A
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894 FEDERAL REPORTER, 3d SERIES
cantly weaker case for the death penalty.
Unlike seven of our precedents, the jury
did not find the [HAC] aggravating circumstance.’’). Moreover, ‘‘the evidence of
[this] aggravating circumstance[ ] was substantial.’’ Lockett, 711 F.3d at 1240. The
jury heard Mr. Underwood’s confession, in
which he acknowledged the planned nature
of the crime, exhibited comprehension of
its wrongfulness, and recounted its brutal
details, including J.B.’s resistance, his feelings of sexual arousal, and his efforts to
decapitate her.20
man when he committed this terrible
crime.’’ Trial Tr. Vol. X at 2536; see also
id. at 2538-39, 2541-43, 2546. Counsel also
referenced the testimony given by the defense team’s psychiatric expert, Dr. Martin
Kafka—that proper treatment could potentially lessen the effects of Mr. Underwood’s psychiatric disorders and paraphilias. Id. at 2545; see Trial Tr. Vol. IX at
2262-65.
Mr. Underwood’s mitigating case, as
summarized above, contained substantial
testimony addressing multiple mitigating
factors. In closing argument, defense counsel emphasized the strongest parts of the
case for mitigation. Counsel emphasized
Mr. Underwood’s various mental health
issues, repeatedly describing him as ‘‘a
disturbed and conflicted, mentally ill young
The mitigation case, in particular the
evidence pertaining to his psychiatric disorders and his amenability to treatment,
was not, as we have said in another case,
‘‘less than compelling.’’ Selsor v. Workman, 644 F.3d 984, 1027 (10th Cir. 2011)
(finding a Booth error harmless under
Brecht in part based on the weakness of
the mitigating evidence, which consisted of
testimony from one jail employee and four
prison employees, two of whom conceded
that the habeas petitioner’s prison record
was simply ‘‘a little better than average’’
(quotations omitted) ). Although stronger
than the evidence in Selsor, Mr. Underwood’s evidence was not sufficiently compelling as to put us in ‘‘grave doubt’’ as to
the Booth error’s harmlessness, in light of
the strength of the aggravating circumstance in this case. See (John) Grant, 727
20. See State’s Trial Exhibit 162 at 27 (‘‘I
certainly planned this out, I mean I’d been
thinkin’ about it for at least a month.’’); id. at
41 (‘‘I know what I did was wrong, and TTT I
know that I deserve to be punished for it.’’);
id. at 56 (‘‘[W]hen she first came in [to the
apartment], it was like oh, now’s my chance,
but then, you know, then I had to say no, I
can’t do it, and I just kinda struggled with
myself the whole times she was in there.’’); id.
at 59 (‘‘[T]hen finally I was just like you
know, either do it or tell her to get the hell
out of the apartment, TTT and finally I did
it.’’); id. at 61 (‘‘I whacked her with [a cutting
board], and she’s TTT like ouww, and started
crying and she’s like, oh God I’m sorry TTT so
I whacked her again, and she jumped up, and
TTT I couldn’t believe it didn’t knock her
out.’’); id. at 62 (‘‘[A]fter I hit her a couple
times, I finally just had to, you know jump up
and grab her, and TTT I couldn’t believe how
strong she was. I could barely hold her
down.’’); id. at 63 (‘‘[O]nce I TTT finally got
her down to the ground, TTT we struggled. [I]t
took me probably fifteen, twenty minutes to
kill her.’’); id. (‘‘I was, kinda sittin’ on her TTT
clamping TTT my hand on her [face and
nose].’’); id. at 67-68 (‘‘I was gonna try to
have sex with her TTT, but the way she was
like laying right on the floor I couldn’t really
get to her very good.’’); id. at 69-71 (‘‘And so I
was like TTT I’m just gonna go ahead and
drag her into the tub and behead herTTTT [S]o
I started sawing at her neckTTTT I went to her
spine and I, just sawed and sawed and sawed,
and could not get through that last.’’); id. at
71 (‘‘I was disgusted at first, but then once I
was climbing down on top of her, holding her
down and choking her, I got aroused again.’’).
Finally, in contrast to Dodd, guilt in this
case, established in large part by Mr. Underwood’s own confession, ‘‘was TTT as
clear cut as in cases in which we have
ruled that victim recommendations were
harmless.’’ 753 F.3d at 998.
3) The mitigating case
APPENDIX A
UNDERWOOD v. ROYAL
Cite as 894 F.3d 1154 (10th Cir. 2018)
F.3d at 1017 (‘‘To be sure, [the petitioner]
did respond with evidence of his amenability to treatment and evidence about his
troubled childhood. But even viewed in its
totality the case against him remained considerable.’’).21 ‘‘Lastly, the jury was properly instructed on the use of mitigating
evidence and its role in the sentencing
deliberations,’’ further reducing the likelihood that the admission of J.B.’s parents’
testimony prejudiced Mr. Underwood’s defense. Selsor, 644 F.3d at 1027 (alterations
and quotations omitted).
* * * *
Based on the foregoing, Mr. Underwood
is not entitled to relief because the Booth
error here does not warrant automatic reversal and, applying Brecht, ‘‘[g]iven that
this case contains similarly strong evidence
[as in previous cases] against the defendant and yet a comparatively muted pair
of pleas, we are hard pressed to see how
we could, faithful to our precedent, find
TTT reversible error.’’ (John) Grant, 727
F.3d at 1017.
1183
cause it was unconstitutionally imposed
without a jury finding beyond a reasonable
doubt that the HAC aggravator outweighed the mitigating evidence. The
OCCA rejected this claim on the merits.
Underwood, 252 P.3d at 246.
In addressing this claim, we begin with
the relevant legal background and additional factual and procedural background.
We then examine the OCCA’s merits decision under § 2254(d) and conclude that it
was not contrary to—or an unreasonable
application of—Supreme Court law or
based on an unreasonable determination of
the facts. We therefore affirm the district
court’s denial of habeas relief on Mr. Underwood’s claim that the state trial court
failed to require the jury to find the aggravating circumstances outweighed the mitigating circumstances beyond a reasonable
doubt.
a.
Legal background
Mr. Underwood contends that he is entitled to relief from his death sentence be-
We first provide a general overview of
the reasonable doubt standard’s applicability to capital sentencing facts. We then
discuss Matthews v. Workman, 577 F.3d
1175 (10th Cir. 2009), in which this court
21. Mr. Underwood’s three expert witnesses
generally agreed that he suffered from a variety of psychological and psychiatric disorders,
including, most notably: schizotypal personality disorder, the less severe of the two types of
bipolar disorder, depression, anxiety, and social phobia. Trial Tr. Vol. IX at 2178-82, 225162, 2327-31. The State’s rebuttal expert, who
did not personally evaluate Mr. Underwood
but reviewed the defense experts’ work, testified that he ‘‘would TTT defer to their diagnoses’’ and ‘‘ha[d] no reason to doubt those
diagnoses and their competence as examiners.’’ Trial Tr. Vol. X at 2472-73.
But even with these diagnoses, ‘‘[the defense experts’] testimony never indicated
that Mr. [Underwood]’s [mental health issues] caused his behavior to be ‘impulsive’
or ‘aggressive’ in a way that would mean-
ingfully explain his involvement in [J.B.’s]
murder[ ],’’ thus reducing the mitigating
force of the mental health evidence in this
case. See (Donald) Grant, 886 F.3d at 922
(emphasis in original). Indeed, Dr. Kafka
testified that, ‘‘even though [Mr. Underwood’s violent and sexual] thoughts themselves were impulsive-like TTT in that TTT
they were just vibrating back and forth in
his mind, TTT he put them into a plan of
action that was planned out and not impulsive.’’ Trial Tr. Vol. IX at 2261 (emphasis
added). And Mr. Underwood self-reported
on a sexual compulsive disorder questionnaire that he ‘‘ha[s] much control and [is]
usually able to stop or divert sexual obsessions with some effort and concentration.’’
Id. at 2226.
5.
Jury’s Weighing of Aggravating and
Mitigating Circumstances
APPENDIX A
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894 FEDERAL REPORTER, 3d SERIES
previously considered and rejected the
same challenge to Oklahoma’s capital sentencing scheme before us in this appeal.
i. Overview
[30] The Fourteenth Amendment right
to due process and the Sixth Amendment
right to a jury trial, taken together, entitle
a criminal defendant to ‘‘a jury determination that he is guilty of every element of
the crime with which he is charged, beyond a reasonable doubt.’’ Apprendi v.
New Jersey, 530 U.S. 466, 476-77, 120 S.Ct.
2348, 147 L.Ed.2d 435 (2000) (brackets and
quotations omitted). In Apprendi, the Supreme Court held that ‘‘any fact that increases the penalty for a crime beyond the
prescribed statutory maximum’’ is an element that ‘‘must be submitted to a jury,
and proved beyond a reasonable doubt.’’
Id. at 490, 120 S.Ct. 2348.
by a jury.’’ Id. at 609, 122 S.Ct. 2428
(citations and quotations omitted).22
The Supreme Court likewise applied Apprendi in invalidating Florida’s capital sentencing scheme in Hurst v. Florida, –––
U.S. ––––, 136 S.Ct. 616, 193 L.Ed.2d 504
(2016). Under Florida’s scheme, the trial
court alone made the findings necessary
for imposing the death penalty: that (1)
‘‘sufficient aggravating circumstances exist,’’ and (2) ‘‘there are insufficient mitigating circumstances to outweigh the aggravating circumstances.’’ Hurst, 136 S.Ct. at
622 (quotations omitted). But the Supreme
Court’s holding in Hurst only referenced
the first of these required findings: ‘‘Florida’s sentencing scheme, which required
the judge alone to find the existence of an
aggravating circumstance, is therefore unconstitutional.’’ Id. at 624 (emphasis added). The Court thus did not address
whether the second of the required findings—that mitigating circumstances do not
outweigh the aggravating circumstances—
is also subject to Apprendi’s rule.
In Ring v. Arizona, 536 U.S. 584, 122
S.Ct. 2428, 153 L.Ed.2d 556 (2002), the
Supreme Court applied the Apprendi rule
in invalidating Arizona’s capital sentencing
system. Arizona’s system authorized
judges to make the factual finding necessary for imposing the death sentence—
that at least one aggravating circumstance
existed. Ring, 536 U.S. at 597-98, 122 S.Ct.
2428. The Court held that ‘‘[b]ecause Arizona’s enumerated aggravating factors operate as the functional equivalent of an
element of a greater offense [by increasing
the maximum penalty], TTT the Sixth
Amendment requires that they be found
In Matthews, this court rejected an Apprendi challenge to Oklahoma’s capital
sentencing scheme. Under Oklahoma’s
scheme, the death penalty may not be
imposed ‘‘[u]nless at least one of the statutory aggravating circumstances TTT is
[found by a unanimous jury beyond a reasonable doubt] or if it is found that any
such aggravating circumstance is outweighed by the finding of one or more
22. The Arizona scheme invalidated in Ring
required judge-made findings of aggravating
circumstances beyond a reasonable doubt.
536 U.S. at 597, 122 S.Ct. 2428. In contrast, Oklahoma’s scheme requires jurymade findings that (1) at least one aggravating circumstance exists and (2) the aggravating circumstance(s) outweigh the mitigating. Mr. Underwood nevertheless contends
that Oklahoma’s scheme violates Apprendi
because, although the jury must make the
first determination beyond a reasonable
doubt, it need not do so as to the second.
Even though Oklahoma’s scheme does not
allow judge-made findings, we consider
Ring in addressing Mr. Underwood’s claim
because the Apprendi rule entitles a defendant to a determination by the jury and
also to a determination beyond a reasonable
doubt of ‘‘any fact TTT that increases the
maximum penalty for a crime.’’ Apprendi,
530 U.S. at 476, 120 S.Ct. 2348.
ii. Matthews v. Workman
APPENDIX A
UNDERWOOD v. ROYAL
Cite as 894 F.3d 1154 (10th Cir. 2018)
mitigating circumstances.’’ Okla. Stat. tit.
21, § 701.11. The Matthews petitioner
sought habeas relief based on the trial
court’s punishment stage jury instructions,
arguing that the jury should ‘‘have been
instructed that it had to find beyond a
reasonable doubt that aggravating factors
outweighed the mitigating.’’ Matthews, 577
F.3d at 1195 (emphasis in original). Considering the issue de novo, we held that
the weighing of aggravating and mitigating
circumstances under Oklahoma’s scheme is
not subject to the Apprendi rule because it
‘‘is not a finding of fact TTT but a highly
subjective, largely moral judgment regarding the punishment that a particular person deserves.’’ Id. (quotations omitted).23
b.
Relevant facts
In the punishment stage of Mr. Underwood’s trial, the trial court instructed the
jury in accordance with Oklahoma’s capital
sentencing scheme:
If you unanimously find that one or
more of the aggravating circumstances
existed beyond a reasonable doubt, the
death penalty shall not be imposed unless you also unanimously find that any
such aggravating circumstance or circumstances outweigh the finding of one
or more mitigating circumstances. Even
if you find that the aggravating circumstances outweigh the mitigating circumstance, you may impose a sentence of
imprisonment for life with the possibility
23. Two state supreme courts have taken the
opposite approach in applying Apprendi to the
weighing of aggravating and mitigating circumstances in capital sentencing. See Hurst v.
State, 202 So.3d 40, 44 (Fla. 2016) (interpreting Hurst as requiring that ‘‘all critical findings necessary before the trial court may consider imposing a sentence of death must be
found unanimously by the jury,’’ including
‘‘the finding that the aggravating factors outweigh the mitigating circumstances’’); Rauf v.
State, 145 A.3d 430, 434 (Del. 2016) (invali-
1185
of parole or imprisonment for life without the possibility of parole.
O.R. at 1494. The jury was therefore not
instructed to find that the aggravating circumstances outweighed the mitigating circumstances beyond a reasonable doubt.
c.
OCCA and federal district court decisions
In his appeal to the OCCA, Mr. Underwood argued that the failure to instruct
the jury to find the aggravating circumstances outweighed the mitigating circumstances beyond a reasonable doubt constituted reversible error. Underwood, 252
P.3d at 246. The OCCA denied Mr. Underwood’s Apprendi claim on the merits, citing Matthews. Id. Mr. Underwood then
sought federal habeas relief, which the district court denied. Underwood, 2016 WL
4059162, at *31.
d.
Analysis
[31] We review the OCCA’s decision
under § 2254(d)(1) and conclude that it
was not contrary to—or an unreasonable
application of—clearly established Supreme Court law.24 Matthews forecloses us
from concluding otherwise. Matthews held
that Oklahoma’s capital sentencing scheme
does not violate Apprendi even though it
does not require the jury to find that the
aggravating circumstances outweigh the
mitigating circumstances beyond a reasonable doubt. Matthews, 577 F.3d at 1195.
We therefore cannot hold that the OCCA
dating Delaware’s capital sentencing scheme
in part because it did not require a jury to
find that aggravating circumstances outweigh
mitigating circumstances beyond a reasonable
doubt).
24. Mr. Underwood does not—nor do we—
identify any § 2254(d)(2) unreasonable factual determination underlying the OCCA’s adjudication of the Apprendi claim.
APPENDIX A
1186
894 FEDERAL REPORTER, 3d SERIES
contradicted or unreasonably applied Apprendi in adjudicating Mr. Underwood’s
claim. See Meyers, 200 F.3d at 720 (‘‘We
are bound by the precedent of prior panels
absent en banc reconsideration or a superseding contrary decision by the Supreme Court.’’ (quotations omitted) ); see
also Lockett, 711 F.3d at 1254-55 (holding
that an analogous Apprendi claim was
‘‘foreclosed by our decision TTT in TTT
Matthews’’).
Mr. Underwood makes much of the Supreme Court’s references in Hurst to judicial weighing of aggravating and mitigating circumstances under the Florida
scheme it invalidated. Hurst post-dates the
OCCA’s decision and thus cannot serve as
clearly established federal law for purposes of our review under AEDPA. See
Greene v. Fisher, 565 U.S. 34, 38, 132 S.Ct.
38, 181 L.Ed.2d 336 (2011) (explaining that
§ 2254(d)(1) ‘‘requires federal courts TTT
to measure state-court decisions against
[the Supreme] Court’s precedents as of the
time the state court renders its decision.’’
(quotations omitted) ). We do not treat it
as such in considering whether the
OCCA’s decision was reasonable under
§ 2254(d)(1). We instead address whether
Hurst enables us to overrule Mathews,
which forecloses Mr. Underwood’s argument that the OCCA’s decision was contrary to or an unreasonable application of
the preexisting Supreme Court decisions,
absent en banc reconsideration.
Hurst does not supply a superseding
contrary Supreme Court decision that
25. In our above discussion of the prosecutorial misconduct claim, we did not determine
whether the alleged error constituted actual
error but instead concluded that any potential
error did not merit habeas relief because it
did not rise to the level of a due process
violation. If the alleged prosecutorial misconduct constituted actual error, we must include
it in our cumulative error analysis. Cargle v.
Mullin, 317 F.3d 1196, 1207 (10th Cir. 2003)
(‘‘[C]laims of prosecutorial misconduct TTT re-
would allow us to overrule Matthews. Although Hurst contains some preliminary
discussion of Florida judges’ authority to
both find and weigh aggravating circumstances independently of the jury in capital cases, it invalidated Florida’s scheme
specifically ‘‘to the extent [it] allow[s] a
sentencing judge to find an aggravating
circumstance TTT that is necessary for imposition of the death penalty.’’ 136 S.Ct. at
622, 624 (emphasis added). Because Hurst
did not directly address Apprendi’s application to the weighing of aggravating and
mitigating circumstances, it does not contravene Matthews.
6.
Cumulative Error
[32] Finally, Mr. Underwood contends
that the errors he alleges, taken together,
deprived him of a fair trial. ‘‘Because the
OCCA [found no error and thus] did not
conduct a cumulative-error analysis TTT,
we must perform our own de novo, employing the well-established standard
found in Brecht.’’ (Donald) Grant, 886
F.3d at 955. ‘‘In doing so, we inquire
whether the identified harmless errors, in
the aggregate, ‘had a substantial and injurious effect or influence in determining the
jury’s verdict.’ ’’ Id. (alterations omitted)
(quoting Brecht, 507 U.S. at 637, 113 S.Ct.
1710). We include the following in our cumulative error analysis: (1) the alleged
prosecutorial misconduct—the remarks
about shaving;25 and (2) the conceded
quire a showing of fundamental unfairness in
order to provide habeas relief, unless they
involve the violation of specific constitutional
rightsTTTT [S]uch claims should be included
in the cumulative-error calculus if they have
been individually denied for insufficient prejudice.’’). For purposes of our cumulative error
analysis, we assume without deciding that the
alleged prosecutorial misconduct constituted
actual error and proceed accordingly.
APPENDIX A
ALPENGLOW BOTANICALS, LLC v. U.S.
Cite as 894 F.3d 1187 (10th Cir. 2018)
Booth violation—the sentence recommendations.
Mr. Underwood has failed to show that
the alleged prosecutorial misconduct and
the conceded Booth error, taken together,
suffice to meet Brecht ’s standard for
showing prejudice. As discussed above, the
aggravating evidence presented in this
case—including the gruesome details of
Mr. Underwood’s plans and the actual
murder as described in his confession—
was particularly strong, whereas the mitigating evidence was not. And, although we
have recognized that ‘‘harmless individual
errors TTT may be collectively more potent
than the sum of their parts, ‘‘Mr. [Underwood] makes no argument that the two
errors that we have assumed here possess
any particularized synergies.’’ Id. at 956
(quotations omitted). Mr. Underwood is
therefore not entitled to habeas relief
based on their cumulative effect on the
jury’s sentencing determination.
III.
CONCLUSION
We affirm the district court’s denial of
Mr. Underwood’s § 2254 petition for writ
of habeas corpus.
,
ALPENGLOW BOTANICALS, LLC, a
Colorado Limited Liability Company;
Charles Williams; Justin Williams,
Plaintiffs-Appellants,
v.
UNITED STATES of America,
Defendant-Appellee.
No. 17-1223
United States Court of Appeals,
Tenth Circuit.
Filed July 3, 2018
Background: Taxpayer, a limited liability
company that operated a state-sanctioned
1187
medical marijuana dispensary, brought action against the United States, seeking a
tax refund and alleging that the IRS exceeded its statutory and constitutional authority by denying taxpayer’s business tax
deductions. The United States District
Court for the District of Colorado, Raymond P. Moore, District Judge, 2016 WL
7856477, granted IRS’s motion to dismiss
for failure to state a claim, and, 2017 WL
1545659, denied taxpayer’s motion for reconsideration. Taxpayer appealed.
Holdings:
The Court of Appeals,
McHugh, Circuit Judge, held that:
(1) IRS did not exceed its authority in
denying taxpayer’s business deductions;
(2) taxpayer did not plausibly allege a
claim that the IRS improperly disallowed the cost of goods sold as an
exclusion from income;
(3) Internal Revenue Code provision prohibiting any deduction or credit for any
business that consists of trafficking in
controlled substances within the meaning of the Controlled Substances Act
does not violate the Eighth Amendment;
(4) taxpayer was not entitled to alter or
amend district court’s judgment that
taxpayer was not entitled to amend
complaint; and
(5) district court did not abuse its discretion in failing to consider taxpayer’s
untimely argument that under purported ‘‘dead letter rule’’ IRS was prohibited from denying deductions based on
public policy of non-enforcement of the
law.
Affirmed.
1. Controlled Substances O9
The federal government classifies
marijuana as a controlled substance under
APPENDIX A
Underwood v. Duckworth, Not Reported in F.Supp.3d (2016)
2016 WL 4059162
Only the Westlaw citation is currently available.
United States District Court,
W.D. Oklahoma.
Kevin Ray Underwood, Petitioner,
v.
Kevin Duckworth, Interim Warden,
Oklahoma State Penitentiary, Respondent. 1
Case No. CIV-12-111-D
|
Signed 07/28/2016
Attorneys and Law Firms
Patti P. Ghezzi, Sarah M. Jernigan, Federal Public
Defender, Oklahoma City, OK, for Petitioner.
Jennifer J. Dickson, Oklahoma City, OK, for Respondent.
MEMORANDUM OPINION
TIMOTHY D. DeGIUSTI,
DISTRICT JUDGE
UNITED
STATES
*1 Petitioner, a state court prisoner, has filed a petition
for writ of habeas corpus seeking relief pursuant to
28 U.S.C. § 2254. Doc. 19. Petitioner challenges the
conviction entered against him in Cleveland County
District Court Case No. CF-07-513. 2 Tried by a jury in
2008, Petitioner was found guilty of first degree murder
and sentenced to death. In support of his death sentence,
the jury found one aggravating circumstance, namely, (1)
the murder was especially heinous, atrocious, or cruel.
Criminal Appeal Original Record (hereinafter “O.R.”) 8,
at 1508.
Petitioner has presented eleven grounds for relief.
Respondent has responded to the petition and Petitioner
has replied. Docs. 19, 32, and 45. In addition to his
petition, Petitioner has filed motions for discovery and an
evidentiary hearing. Docs. 20 and 27. After a thorough
review of the entire state court record (which Respondent
has provided), the pleadings filed in this case, and the
applicable law, the Court finds that, for the reasons set
forth below, Petitioner is not entitled to his requested
relief.
I. Procedural History.
Petitioner appealed his conviction and sentence to
the Oklahoma Court of Criminal Appeals (hereinafter
“OCCA”). The OCCA affirmed in a published opinion.
Underwood v. Oklahoma, 252 P.3d 221, 258-59 (Okla.
Crim. App. 2011). Petitioner sought review of the
OCCA's decision by the United States Supreme Court,
which denied his writ of certiorari on January 18,
2011. Underwood v. Oklahoma, 132 S. Ct. 1019 (2012).
Petitioner also filed a post-conviction application, which
the OCCA denied in an unpublished opinion. Underwood
v. Oklahoma, No. PCD-2008-604 (Okla. Crim. App. Jan.
17, 2012).
II. Facts.
In adjudicating Petitioner's direct appeal, the OCCA set
forth a summary of the facts. Pursuant to 28 U.S.C. §
2254(e)(1), “a determination of a factual issue made by
a State court shall be presumed to be correct.” Although
this presumption may be rebutted by Petitioner, the Court
finds that Petitioner has not done so, and that in any
event, the OCCA's statement of the facts is an accurate
recitation of the presented evidence. Thus, as determined
by the OCCA, the facts are as follows:
[Petitioner] was charged with murdering ten-year-old
Jamie Bolin on April 12, 2006, in Purcell, Oklahoma.
[Petitioner] lived alone in the same apartment complex
where Jamie lived with her father, Curtis Bolin. Due to
her father's work schedule, Jamie was typically home
alone for a period of time after school. On the day
in question, Jamie played in the school library with a
friend for a short time before going home. She was never
seen alive again.
Police, firefighters, and a host of citizen volunteers
began a search for Jamie. The day after Jamie's
disappearance, the Federal Bureau of Investigation
added over two dozen people to the effort. On April
14, 2006, two days after Jamie was last seen, police set
up several roadblocks around the apartment complex
where she lived, seeking leads from local motorists.
© 2018 Thomson Reuters. No claim to original U.S. Government Works.
APPENDIX B 1
Underwood v. Duckworth, Not Reported in F.Supp.3d (2016)
Around 3:45 p.m. that day, FBI Agent Craig Overby
encountered a truck driven by [Petitioner's] father at
one of the roadblocks; [Petitioner] was a passenger in
the truck. [Petitioner's] father told Overby that they
had heard about the disappearance, and that in fact,
[Petitioner] was the girl's neighbor. From speaking with
other neighbors at the apartment complex, Overby
knew that a young man living there may have been the
last person to see Jamie. Overby asked if [Petitioner]
would come to the patrol car to talk for a moment,
and [Petitioner] agreed, while his father waited in the
truck. In the patrol car, [Petitioner] made statements
that piqued Overby's interest. [FN3] Overby asked
[Petitioner] if he would come to the police station for
additional questioning. Again, [Petitioner] agreed, and
Overby assured [Petitioner's] father that he (Overby)
would give [Petitioner] a ride home.
*2 FN3. At trial, Overby testified: “He told me that
he was afraid that he was considered a suspect because
he'd been hanging around outside his apartment a lot
during the last couple of weeks.... He said he was the last
person to see Jamie before she disappeared, and that t
h e media reports of the clothing that she was wearing
when she b e c a m e missing were incorrect.”
At the police station, [Petitioner] was interviewed by
Agent Overby and Agent Martin Maag. [Petitioner]
told them about seeing Jamie on April 12, and discussed
his activities on that day and other matters. At the
conclusion of this interview, which lasted less than
an hour, the agents asked [Petitioner] if they could
search his apartment. [Petitioner] agreed. The agents
accompanied [Petitioner] to his apartment around 5:00
p.m. While looking around the apartment, Overby saw
a large plastic storage tub in [Petitioner's] closet; its
lid was sealed with duct tape. [Petitioner] saw Overby
looking at the tub, and volunteered that he kept comic
books in it; he said that he had taped the lid to
keep moisture out. Overby asked if he could look
inside the tub, and [Petitioner] agreed. When Overby
pulled back a portion of the tape and lifted a corner
of the lid, he saw a girl's shirt—and realized that it
matched [Petitioner's] description of the shirt Jamie
Bolin was wearing on the day she disappeared. [FN4]
When Overby commented that he saw no comic books
in the tub, [Petitioner] interjected, “Go ahead and
arrest me.” Overby immediately responded, “Where is
she?” [Petitioner] replied, “She's in there. I hit her and
chopped her up.” [Petitioner] then became visibly upset,
began hyperventilating, and exclaimed, “I'm going to
burn in Hell.” He was placed under arrest and escorted
out to the agents' vehicle. Agent Overby summoned
local authorities to secure the scene.
FN4. Overby testified: “[D]uring the earlier interview,
Mr. Underwood told me that the media reports about
what Jamie was last seen wearing were wrong, that he
had actually seen her wearing a b l u e shirt. And then I
saw the blue shirt inside the box or the tub.”
Back at the police station, [Petitioner] was advised of
his right to remain silent, and his right to the assistance
of counsel during any questioning, consistent with
Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16
L.Ed.2d 694 (1966). Because he asked for a lawyer,
the interview was concluded. About fifteen minutes
later (approximately 5:45 p.m.), police approached
[Petitioner] and asked if he would reaffirm, in writing,
his original verbal consent to a search of his apartment.
[Petitioner] agreed, and spent the next few hours sitting
in a police lieutenant's office. He conversed with various
officers who were sent to guard him, and made some
incriminating statements during that time.
Around 9:30 p.m. that evening, [Petitioner] asked
to speak with the two FBI agents he had initially
talked to (Overby and Maag). Because [Petitioner]
had previously asked for counsel, OSBI Agent Lydia
Williams visited with him to determine his intentions.
Agent Williams reminded [Petitioner] that he had
earlier declined to be questioned, and explained that
because of that decision, police could not question
him any further. [Petitioner] emphatically replied that
he wanted to talk to the agents. Around 10:15 p.m.,
Agents Overby and Maag interviewed [Petitioner] at
the police station. Before questioning began, Overby
reminded [Petitioner] of his Miranda rights, and
[Petitioner] signed a written form acknowledging that
he understood them and waived them. When asked
if anyone had offered him anything in exchange for
agreeing to talk, [Petitioner] replied that one of the
officers had predicted things would go better for him
if he cooperated. Besides acknowledging his waiver of
Miranda rights, [Petitioner] also signed another written
consent to a search of his apartment. A video recording
and transcript of the interview that followed, which
lasted about an hour, was presented to the jury at trial
and is included in the record on appeal.
© 2018 Thomson Reuters. No claim to original U.S. Government Works.
APPENDIX B 2
Underwood v. Duckworth, Not Reported in F.Supp.3d (2016)
*3 In the interview, [Petitioner] describes how he
had recently developed a desire to abduct a person,
sexually molest them, eat their flesh, and dispose of
their remains. He explains in considerable detail how he
attempted to carry out this plan on Jamie Bolin, whom
he had decided was a convenient victim. [Petitioner]
stated that he invited Jamie into his apartment to play
with his pet rat. Once Jamie was inside, [Petitioner] hit
her on the back of the head several times with a wooden
cutting board; she screamed in pain and begged him
to stop. [Petitioner] proceeded to suffocate the girl by
sitting on her and placing his hand across her face.
[Petitioner] told the agents that this was not an easy
task, and that fifteen to twenty minutes passed before
she succumbed. [Petitioner] claimed he then attempted
to have sexual relations with the girl's body, but was
unable to perform. He then moved her body to the
bathtub and attempted to decapitate it with a knife,
but was unsuccessful at that task as well. Frustrated,
[Petitioner] wrapped Jamie's body in plastic sheeting
and placed it in a large plastic container which he hid
in his closet. [Petitioner] also dismantled Jamie's bicycle
and hid it inside his apartment, to make it look as if she
had left the apartment complex.
Jamie Bolin's remains were taken to the Medical
Examiner's office for an autopsy. The Medical
Examiner noted bruises to the back of the girl's head,
consistent with [Petitioner's] claim that he hit her
forcefully with a cutting board. The examiner also noted
petechia in the girl's eyes, and curved marks on her
face, consistent with [Petitioner's] description of how
he had suffocated her. The most pronounced wound
on the body was a very deep incision to Jamie's neck,
which was also consistent with the injuries [Petitioner]
admitted to inflicting. The Medical Examiner also
noted trauma to the girl's genital area, including tearing
of the hymen. However, the Medical Examiner could
not say that Jamie was alive, or even conscious,
when her neck was cut or when she was sexually
assaulted. The official cause of death was declared to be
asphyxiation.
Underwood, 252 P.3d at 230-31.
III. Standard of Review.
A. Exhaustion as a Preliminary Consideration.
The exhaustion doctrine is a matter of comity. It provides
that before a federal court can grant habeas relief to a state
prisoner, it must first determine that he has exhausted all
of his state court remedies. As acknowledged in Coleman v.
Thompson, 501 U.S. 722, 731 (1991), “in a federal system,
the States should have the first opportunity to address
and correct alleged violations of state prisoner's federal
rights.” While the exhaustion doctrine has long been a
part of habeas jurisprudence, it is now codified in 28
U.S.C. § 2254(b). Pursuant to 28 U.S.C. § 2254(b)(2), “[a]n
application for a writ of habeas corpus may be denied on
the merits, notwithstanding the failure of the applicant to
exhaust the remedies available in the courts of the State.”
B. Procedural Bar.
Beyond the issue of exhaustion, a federal habeas court
must also examine the state court's resolution of the
presented claim. “It is well established that federal courts
will not review questions of federal law presented in a
habeas petition when the state court's decision rests upon
a state-law ground that ‘is independent of the federal
question and adequate to support the judgment.’ ” Cone v.
Bell, 556 U.S. 449, 465 (2009) (quoting Coleman, 501 U.S.
at 729). “The doctrine applies to bar federal habeas when
a state court declined to address a prisoner's federal claims
because the prisoner had failed to meet a state procedural
requirement.” Coleman, 501 U.S. at 729-30.
C. Merits.
When a petitioner presents a claim to this Court, the
merits of which have been addressed in state court
proceedings, 28 U.S.C. § 2254(d) governs his ability to
obtain relief. Cullen v. Pinholster, 563 U.S. 170, 181 (2011)
(acknowledging that the burden of proof lies with the
petitioner). Section 2254(d) provides as follows:
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 in State court proceedings
unless the adjudication of the claim—
© 2018 Thomson Reuters. No claim to original U.S. Government Works.
APPENDIX B 3
Underwood v. Duckworth, Not Reported in F.Supp.3d (2016)
*4 (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.
The focus of Section 2254(d) is on the reasonableness of
the state court's decision. “The question under AEDPA
[Antiterrorism and Effective Death Penalty Act of
1996] is not whether a federal court believes the state
court's determination was incorrect but whether that
determination was unreasonable—a substantially higher
threshold.” Schriro v. Landrigan, 550 U.S. 465, 473 (2007).
“Under § 2254(d), a habeas court must determine what
arguments or theories supported ... the state court's
decision; and then it must ask whether it is possible
fairminded jurists could disagree that those arguments
or theories are inconsistent with the holding in a prior
decision of [the Supreme] Court.” Harrington v. Richter,
562 U.S. 86, 102 (2011). Relief is warranted only “where
there is no possibility fairminded jurists could disagree
that the state court's decision conflicts with [the Supreme
Court's] precedents.” Id. (emphasis added). The deference
embodied in “Section 2254(d) reflects the view that
habeas corpus is a ‘guard against extreme malfunctions
in the state criminal justice systems,’ not a substitute for
ordinary error correction through appeal.” Id. at 102-03
(citation omitted). When reviewing a claim under Section
2254(d), review “is limited to the record that was before
the state court that adjudicated the claim on the merits.”
Pinholster, 563 U.S. at 181.
IV. Analysis.
A. Ground One: Ineffective Assistance of Counsel.
Petitioner alleges that his trial and appellate counsel were
constitutionally ineffective for several reasons. Petitioner
claims that trial counsel (1) failed to fully present
mitigation evidence through lay witnesses; (2) failed to
employ and properly utilize expert services, (3) failed to
preserve the record via in-trial objections, (4) failed to
raise a challenge to the execution of the mentally ill, (5)
failed to rebut attacks on expert diagnoses, and (6) failed
to rebut the medical examiner's testimony. Petition at
7-25. Petitioner claims that appellate counsel also failed
to properly utilize expert services and failed to raise
violations of the trial court's gag order on appeal. 3 Id. at
11-13, 20.
1. Clearly Established Law.
Counsel is constitutionally ineffective when counsel's
deficient performance prejudiced the defense. Strickland
v. Washington, 466 U.S. 668, 687 (1984). On habeas
review, courts must apply the highly deferential standards
of Strickland and the AEDPA to the facts of the case
and decide whether “there is any reasonable argument
that counsel satisfied Strickland's deferential standard.”
Harrington, 562 U.S. at 101, 105. Courts cannot disturb a
state court's ruling unless the petitioner demonstrates that
the state court applied the highly deferential Strickland
test in a way that every fair minded jurist would agree was
incorrect. Id.
*5
Courts analyze counsel's performance for
“reasonableness under prevailing professional norms.”
Strickland, 466 U.S. at 688. The Supreme Court shuns
specific guidelines for measuring deficient performance,
as “[n]o particular set of detailed rules for counsel's
conduct can satisfactorily take account of the variety of
circumstances faced by defense counsel, or the range of
legitimate decisions regarding how best to represent a
criminal defendant.” Id. at 688-89. Instead, courts must be
highly deferential when reviewing counsel's performance,
and the petitioner must overcome the presumption that
the “challenged action[s] might be considered sound trial
strategy.” Id. at 689 (quoting Michel v. Louisiana, 350 U.S.
91, 101 (1955)) (internal quotation marks omitted).
If a petitioner can show deficient performance, he must
then also show prejudice by establishing “a reasonable
probability that, but for counsel's unprofessional errors,
the result of the proceeding would have been different.”
Id. at 694. In Oklahoma, where the jury can only impose
a death sentence unanimously, the question is whether
there exists a reasonable possibility “that at least one juror
would have struck a different balance but for counsel's
putative misconduct.” Wackerly v. Workman, 580 F.3d
1171, 1176 (10th Cir. 2009) (quoting Wiggins v. Smith,
539 U.S. 510, 537 (2003)) (internal quotation marks
omitted). When evaluating omitted information, courts
© 2018 Thomson Reuters. No claim to original U.S. Government Works.
APPENDIX B 4
Underwood v. Duckworth, Not Reported in F.Supp.3d (2016)
consider both the benefits and the negative effects of that
information. Id. at 1178.
2. Failure to fully present mitigation
evidence through lay witnesses.
During the penalty phase, defense counsel presented
fourteen lay witnesses who testified to various aspects of
Petitioner's personal, social, and family history. Trial Tr.
vol. VIII, 1955-2147, vol. IX, 2383-95. Petitioner claims
that counsel failed to fully develop the testimony of those
witnesses, although counsel knew that the witnesses could
share even more information. Petition at 8-9. Petitioner
alleges that this “vanilla” presentation prevented the jury
from hearing the totality of Petitioner's history and also
created a disconnect between the evidence Petitioner's
experts referenced and what the jury actually heard. Id. at
9-10.
Petitioner raised the issue on direct appeal. Underwood,
252 P.3d at 250, 253. Petitioner submitted affidavits and
reports that reflected information not presented at trial,
although the information came from four individuals who
testified at trial, and one who defense counsel listed as
a witness but never called. Appl. for Evidentiary Hr'g,
Underwood v. State, No. D-2008-319, Exs. B-F. 4 The
OCCA held that defense counsel fully investigated and
presented a comprehensive mitigation case, and declined
to second-guess counsel's questioning. Underwood, 252
P.3d at 253. 5
*6 Petitioner's claim of deficient performance is not
premised on a lack of investigation, but rather a lack of
presentation. Petition at 7-8. Petitioner takes issue with
defense counsel's decision to present certain information
only in conjunction with expert testimony. Id. Therefore,
rather than determining whether counsel conducted a
thorough investigation, this Court analyzes whether
counsel acted reasonably with the information that the
investigation uncovered.
Petitioner claims that defense counsel did not elicit
information at trial explaining that Petitioner was
“different,” his family had a history of mental illness,
that his father ridiculed him, his mother had fits of rage,
schoolchildren bullied him, he was not the same after
high school, he experienced anxious fear and isolation in
college, he took antidepressants, and his friends thought
he acted differently based on whether he took those
medications. Id.
Fourteen of the lay witnesses who testified consisted
of family members, friends, coworkers, and teachers.
Underwood, 252 P.3d at 253. These witnesses testified
extensively about Petitioner's background, including
much of the evidence that Petitioner claims his counsel
omitted. Petitioner's cousin, friend, employer, and aunt
all testified that he was “different.” Trial Tr. vol. VIII,
1960-63, 2004, 2030-31, 2065. His father's ridicule was
well supported by trial testimony from his cousin and
friends. Id. at 1963-64, 1976, 2006-07. His mother's temper
issues also came out in testimony. Id. at 1976-77, 2011,
Trial Tr. vol. IX, 2394. Witnesses described Petitioner's
encounters with bullying at length. Trial Tr. vol. VIII,
1960, 1975, 2005. His employer and aunt detailed the
issues he faced in college. Id. at 2035, 2070. His doctor
told of his prescription medications for depression. Id.
at 2057-59. Petitioner discounts this testimony as merely
“overviews” that present a “vanilla” version of Petitioner's
life. Petition at 9. Even if this Court did assume that
defense counsel presented a bland mitigation case, there
is no clearly established federal law equating uninspired
performance with constitutionally deficient performance.
Petitioner had a constitutional right to a rigorous testing
of evidence in an adversarial proceeding, not a dynamic
presentation.
The purportedly omitted information—the history of
mental illness, details of his mother's rage issues, and
Petitioner's behavior when on his medications—also fail
to show deficient performance on the part of defense
counsel. While Petitioner allows no possible strategic
reason for defense counsel to avoid those subjects with
lay witnesses, this Court must presume that counsel acted
reasonably. The record supports that presumption.
Evidence of Petitioner's family history of mental health
was sparse. Petitioner's cousin stated that their aunt
Gail Coburn had a history of depression, once to the
point of hospitalization, and that Petitioner's paternal
grandmother also struggled with depression. Appl. for
Evidentiary Hr'g, Ex. B at 2. Randy White stated that
Petitioner's mother's family had a history of emotional
and mental instability. Appl. for Evidentiary Hr'g, Ex. E
at 4. Defense counsel could have reasonably concluded
that pursuing that subject with those witnesses could
cause more harm than good. First, neither Petitioner's
© 2018 Thomson Reuters. No claim to original U.S. Government Works.
APPENDIX B 5
Underwood v. Duckworth, Not Reported in F.Supp.3d (2016)
cousin nor Randy White had any personal knowledge of
Petitioner's family history with mental illness, meaning
their testimony would rest on hearsay and speculation.
Introducing that information through a mental health
expert would be a cleaner avenue. Second, Gail Coburn
testified at length for the defense and her testimony
painted a very sympathetic picture of Petitioner's life.
Trial Tr. vol. VIII, 2063-74. It is conceivable that counsel
decided to shield Ms. Coburn from impeachment based
on her mental health issues.
*7 The lack of detailed testimony regarding Petitioner's
mother's rage issues also fails to show deficient
performance. As an initial matter, the report of Chris
Lansdale's interview and accompanying investigator
affidavit, which was submitted on direct appeal, is
unquestionably inadmissible hearsay. This Court may
therefore disregard the information contained in that
affidavit. See Neill v. Gibson, 278 F.3d 1044, 1056 (10th
Cir. 2001) (courts have the discretion not to consider
investigator affidavits regarding discussions with jurors).
Still, even considering that report, counsel's performance
was not deficient in how they chose to address that issue.
Lansdale testified at trial that he once heard Connie
Underwood shouting angrily, and that Petitioner told
him to stay in Petitioner's bedroom until the incident
passed. Trial Tr. vol. VIII, 1977. On cross-examination,
the prosecution asked Lansdale if that was the only
incident he had encountered, and Lansdale responded,
“That's the only instance I can say I was there for. I'd
heard of other instances that Randy and Dave had seen
things like that. That's the only one I can personally
say I was there for.” Id. at 1992. As Petitioner points
out, this is a flat contradiction of the investigator's
report of his interview with Lansdale, which relates an
incident where Connie Underwood broke an oak table
in a fit of rage. Appl. for Evidentiary Hr'g, Ex. C-1. It
is unlikely that Lansdale would forget that incident on
the stand. It is instead reasonable to assume from his
explicit testimony that Lansdale was not present for that
incident. Defense counsel might have reasonably arrived
at the same conclusion, and decided not to pursue that line
of questioning with Lansdale based on his limited personal
knowledge.
Defense counsel also reasonably opted not to call Randy
White. Defense counsel told the jury that they had
decided not to call two other witnesses, because their
testimony would be cumulative. Trial Tr. vol. X, 2536.
Defense counsel's decision was a strategic one, and
certainly reasonable. White's testimony may have added
some information regarding Connie Underwood's temper,
but also carried a great impeachment risk. Lansdale
identified White as one of the bullies that tormented
Petitioner. Appl. for Evidentiary Hr'g, Ex. C-1. Also,
White had just been released from prison, where he
served time for forgery. Appl. for Evidentiary Hr'g,
Ex. E at 1. White's testimony would have been largely
cumulative, and would have given the prosecutors ample
fodder for impeachment. Defense counsel could have
reasonably decided that the best way to present Connie
Underwood's rage issues was through their experts. While
the prosecution tried to exploit the supposed disconnect
between the expert and lay testimony, this Court cannot
say that defense counsel performed deficiently by deciding
that the evidence would be better conveyed by the experts,
rather than by lay witnesses who would face withering
cross-examination.
Counsel also could have reasonably decided to avoid
evidence of Petitioner's behavior when on his medications.
David McDade found Petitioner more “normal” when on
his medications, while Lansdale said that Petitioner was
more relaxed and social when not on medications. Appl.
for Evidentiary Hr'g, Exs. C-1, D. This contradicting
testimony would have been unhelpful, especially since
one of Petitioner's experts attributed Petitioner's changes
in mood and behavior to his bipolarity and hypomania,
not his medications. Trial Tr. vol. IX, 2179-81. Defense
counsel's focus on Petitioner's mental illness, rather
than contradictory evidence of his behavior while
on medication was reasonable. Based on the above
discussion, it is clear that defense counsel performed
reasonably under the prevailing professional norms in
presenting the mitigation evidence.
*8 Even if Petitioner could establish that defense
counsel's performance was deficient, he cannot show
prejudice. Petitioner argues primarily that the omission
of the details mentioned above undercut the expert's
testimony and made it appear that the experts were
relying on exaggerated or inaccurate information. Petition
at 9-10. Petitioner also claims that the additional
information would support the mitigating factors that the
defense offered. Id. Neither argument is persuasive.
© 2018 Thomson Reuters. No claim to original U.S. Government Works.
APPENDIX B 6
Underwood v. Duckworth, Not Reported in F.Supp.3d (2016)
First, nothing in the record indicates that the jury
doubted Petitioner's experts' diagnoses and testimony.
All three experts testified that Petitioner would not
pose a continuing threat to society. Trial Tr. vol. IX,
2184-85, 2265-66, 2346. In spite of evidence in the record
supporting a finding of a continuing threat, the jury
rejected that aggravating circumstance. O.R. 8 at 1508.
The jury apparently credited the expert testimony. As
Petitioner can only speculate to the contrary, this Court
cannot fault the OCCA for rejecting that speculation.
Second, the omitted evidence would have had very little
impact on the trial, especially in light of the evidence that
did populate the record. This additional information may
have shown that Petitioner's mother was somewhat more
prone to rage than witnesses said. His father was perhaps
a bit harsher on him than the jury heard. Petitioner
was more isolated and anxious than the record reflected.
Courts do not award habeas relief based on a showing
that defense counsel could have presented a little more
to the jury. Instead, courts typically find prejudice when
counsel completely omits any evidence of sexual abuse,
physical abuse, mental illness, and the like. See Rompilla
v. Beard, 545 U.S. 374, 390-93 (2005); Williams v. Taylor,
529 U.S. 362, 396-97 (2000); Wilson v. Sirmons, 536
F.3d 1064, 1093-95 (10th Cir. 2008). The OCCA was not
unreasonable in determining that counsel's failure to add
more detail to an already comprehensive mitigation case
prejudiced the defense. Relief is denied on this issue.
3. Failure to Employ and
Properly Utilize Expert Services.
Petitioner also claims that although defense counsel called
upon three experts to examine him and testify about
his mental health, defense counsel did not investigate
whether Petitioner suffered from a developmental
disorder. Petition at 12. Petitioner claims that defense
counsel knew of his clear markers for a developmental
disorder, but chose to present evidence of Schizotypal
Personality Disorder (“SPD”). Id. 12 & n.8. A different
expert, Dr. Gary Jones, later diagnosed Petitioner with
Asperger's Disorder (“Asperger's”), a diagnosis that
Petitioner believes defense counsel should have discovered
and presented at trial. Id. at 11-12; App. to Appl.
for Post-Conviction Relief, Underwood v. State, No.
PCD-2008-604, Ex. 3. Petitioner raised this issue in his
application for post-conviction relief. Underwood v. State,
PCD-2008-604, slip-op. at 3-4. The OCCA found that
Petitioner did not suffer prejudice from counsel presenting
his SPD diagnosis rather than an Asperger's diagnosis,
and denied the claim. Id. at 4-5.
The thrust of Petitioner's argument is that Asperger's is a
brain condition and developmental disorder as opposed
to a personality disorder, like SPD, and therefore holds
more mitigating weight with jurors. Petition at 12 n.8,
14. Petitioner's arguments are unpersuasive for several
reasons.
First, the similarities between Asperger's symptoms and
SPD symptoms make it improbable that the jury would be
swayed just by switching the label. Petitioner argues that
Asperger's is characterized by “obsessive preoccupations,
emotional immaturity, lack of empathy, poor social
judgment, and poor impulse control.” Id. at 13. At trial,
the jury heard that SPD is characterized by odd or
eccentric thinking, tendency to think about one's self
rather than others, poor social skills, and inability to
pick up on social cues. Trial Tr. vol. IX, 2181, 2253.
The significant overlap shows that the jury would have
heard largely the same information, but with a different
diagnosis. In fact, two of the defense experts actually
mentioned that Asperger's and SPD were similar, and
one even testified that although he did not specifically
diagnose him with the disease, he actually thought
Petitioner may have Asperger's. Id. at 2181, 2287. The
jury therefore heard that the disorders were very similar
and that one expert actually thought Petitioner might
have Asperger's. It is unlikely going one step further and
diagnosing Petitioner with Asperger's would alter any
juror's perspective.
*9 Second, Petitioner's insistence that the jury would
have responded more favorably to Asperger's because
it is an “organic brain condition” and a developmental
disorder is unfounded. The assertion that Asperger's
is an “organic brain condition” is unsupported by the
record that the OCCA considered. 6 Also, the trial
experts referred to SPD as a “developmental disorder,” a
“neurodevelopmental disorder,” and a “brain condition.”
Id. at 2181, 2252-54. While Petitioner argues that
these statements by the experts were inaccurate and
confusing, the jury heard evidence that Petitioner had
a neurodevelopmental disorder or brain condition that
produced nearly the same symptoms as Asperger's.
Presenting a different developmental disorder and brain
© 2018 Thomson Reuters. No claim to original U.S. Government Works.
APPENDIX B 7
Underwood v. Duckworth, Not Reported in F.Supp.3d (2016)
condition would likely have failed to change a juror's
mind.
Third, while the Asperger's diagnosis could not have
improved the defense's position regarding the continuing
threat aggravator—the jury rejected that aggravator—
it could have undercut the defense on that point. Dr.
Jones detailed Petitioner's lack of remorse and empathy
for his young victim. App. to Appl. for Post-Conviction
Relief, Ex. 3 at 8. It is apparent to this Court that rather
than persuading jurors to spare him, Petitioner's robotic
ruthlessness to an innocent child could have precipitated
a finding that he posed a continuing threat.
Finally, the overwhelming weight of the evidence
supporting the especially heinous, cruel, and atrocious
aggravator makes it highly unlikely that substituting
Asperger's for SPD would have changed the trial's
outcome. This Court agrees with the logic of the Seventh
Circuit:
[T]his was no crime of anger, no
quick burst of uncontrollable rage
immediately regretted. The lead-up
was cold and calculated, at points
terrifyingly clinical. [This Court]
cannot fathom what could cause
one to desire to [murder and violate
this] child. Perhaps that is what we
simply call “evil.” But [this Court is]
certain counsel's failure to throw in
a few more tidbits from the past or
one more diagnosis of mental illness
onto the scale would not have tipped
it in [Petitioner's] favor.”
Eddmonds v. Peters, 93 F.3d 1307, 1322 (7th Cir. 1996).
The OCCA reasonably found that evidence Petitioner
suffered from Asperger's would not have altered the
outcome of his trial. For the same reason, Petitioner also
cannot show any prejudice from appellate counsel's failure
to raise that issue on direct appeal. Regarding appellate
counsel ineffectiveness claims, the question is whether,
absent the appellate counsel's deficient performance, there
is a reasonable probability that the petitioner would have
prevailed on appeal. Smith v. Robbins, 528 U.S. 259, 285
(2000). There is no reasonable probability that Petitioner
would have prevailed in his appeal by raising a claim
that the OCCA denied as meritless in the post-conviction
proceeding. 7
4. Failure to Make Contemporaneous Objections.
The prosecution introduced many photographs and items
into evidence in the guilt stage. While defense counsel
objected to many items and photographs, counsel did not
object to the introduction of a bowl, meat tenderizer,
skewers, handcuffs, a plastic Barbie doll head, the
narration of a dissection video, and a blood-soaked
towel. Petition at 17-18. Defense counsel made a blanket
objection to incorporating all the guilt stage evidence into
the penalty stage, but did not specify to which exhibits they
objected. Id. at 18. Petitioner claims that counsel's failure
to properly object allowed the jury to consider highly
irrelevant and prejudicial evidence. Petitioner raised this
claim on direct appeal. Underwood, 252 P.3d at 250-51.
The OCCA found that any objections to the evidence
would have been properly overruled, therefore Petitioner
did not suffer any prejudice from defense counsel's failure
to object. Id.
*10 As discussed further in Ground Seven, the OCCA
reasonably found that this evidence was admissible under
Oklahoma law. Infra pp. 59-63. These items went to
Petitioner's intent and state of mind and to corroborate
his detailed and damning confession. While the evidence
is certainly inflammatory, Petitioner's was the most
inflammatory of crimes. In that context, the prejudicial
nature of the evidence did not substantially outweigh
its probative value. Therefore, Petitioner cannot show
prejudice from counsel's failure to object to admissible
evidence. See Hale v. Gibson, 227 F.3d 1298, 1321-22 (10th
Cir. 2000) (no prejudice when trial counsel fails to object
to admissible evidence); see also Savage v. Bryant, 636
Fed.Appx. 437, 440-41 (10th Cir. 2015) (same); Haney v.
Addison, 275 Fed.Appx. 802, 806 (10th Cir. 2008) (same).
The OCCA reasonably concluded that counsel's failure to
raise a meritless objection to admissible evidence did not
prejudice the defense. Relief is denied on this issue.
5. Failure to Raise the Claim that
the Eighth Amendment Prohibits the
Execution of Mentally Ill Persons.
© 2018 Thomson Reuters. No claim to original U.S. Government Works.
APPENDIX B 8
Underwood v. Duckworth, Not Reported in F.Supp.3d (2016)
Petitioner claims that trial counsel was ineffective for not
arguing at trial that Petitioner's death sentence would
violate the Eighth Amendment because he was mentally
ill. Petition at 19. Petitioner raised this claim on direct
appeal. The OCCA rejected the claim, holding that any
such challenge would have been properly overruled, and
therefore Petitioner could not show prejudice. Underwood,
252 P.3d at 250-51.
As discussed further in connection with Ground Ten,
the Supreme Court has never prohibited the execution of
persons who are mentally ill, but not mentally retarded.
Infra pp. 70-72. Therefore, any claim advancing that
theory is meritless. Although counsel may advocate for
expanding the meaning of our “evolving standards of
decency,” this Court cannot find prejudice where counsel
opts not to tilt at that particular windmill. See Dennis v.
Poppel, 222 F.3d 1245, 1261 (10th Cir. 2000). The OCCA's
decision was not unreasonable, and relief is denied on that
point.
6. Failure to Raise the Gag Order Violation on Appeal.
Petitioner complains that appellate counsel failed to raise
two issues on direct appeal related to pretrial publicity.
Early in Petitioner's criminal proceedings, the trial court
signed an agreed order that the parties would refrain
from making extrajudicial statements regarding the case.
O.R. 1 at 33. Later, in response to concerns that the
press was disseminating the filed pleadings in the case
to the public, the trial court ordered that any filing
containing sensational material or that could “lend itself
to sensational type of headlines” would be filed under seal.
In Camera Hr'g Tr. 12-13, Aug. 30, 2007. In spite of that
order, the State publicly filed a “Second Supplemental
Notice of Intent to Offer Victim Impact Evidence,”
which contained Curtis Bolin's proposed victim impact
testimony about Miss Bolin. O.R. 5 at 988-90. Also, some
of the trial court's ruling on Petitioner's motion to s
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