Petition for Writ of Certiorari — Tommy Sharp, Interim Warden, Petitioner v. Roderick L. Smith
Supreme Court briefMar 2, 2020
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APPENDIX TABLE OF CONTENTS
FEDERAL OPINIONS AND ORDERS
Opinion of the United States Court of Appeals for
the Tenth Circuit (August 26, 2019) .................. 1a
Memorandum Opinion of the United States
District Court for the Western District of
Oklahoma (July 13, 2017) ................................ 54a
Order of the United States Court of Appeals for
the Tenth Circuit Denying a Petition for
Rehearing (December 2, 2019) ....................... 128a
STATE OF OKLAHOMA COURTS' OPINIONS AND ORDERS
Accelerated Docket Order of the Court of Criminal
Appeals of the State of Oklahoma
(January 29, 2007).......................................... 130a
Order of the Court of Criminal Appeals of
Oklahoma Granting Rehearing
(January 13, 1997).......................................... 155a
OTHER DOCUMENTS
Petition for Writ of Habeas Corpus by a Person
in State Custody Pursuant to 28 U.S.C.
§ 2254, Relevant Excerpts (May 22, 2015) .... 195a
Tenth Circuit Opening Brief of Petitioner/
Appellant Roderick L. Smith,
Relevant Excerpts (August 3, 2018) .............. 239a
Tenth Circuit Respondent-Appellee’s (State of
Oklahoma’s) Answer Brief, Relevant Excerpts
(October 1, 2018) ............................................ 258a
APPENDIX TABLE OF CONTENTS (Cont.)
Tenth Circuit Reply Brief of Petitioner/
Appellant Roderick L. Smith,
Relevant Excerpts (December 7, 2018) .......... 291a
Prosecutor Closing Arguments at Trial,
Relevant Excerpts (March 15, 2004) ............. 305a
App.1a
OPINION OF THE UNITED STATES COURT OF
APPEALS FOR THE TENTH CIRCUIT
(AUGUST 26, 2019)
935 F.3d 1064
UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
________________________
RODERICK L. SMITH,
Petitioner-Appellant,
v.
TOMMY SHARP,
Interim Warden, Oklahoma State Penitentiary,
Respondent-Appellee.
________________________
No. 17-6184
Appeal from the United States District Court
for the Western District of Oklahoma
(D.C. No. 5:14-CV-00579-R)
Attorneys and Law Firms
Emma V. Rolls, Assistant Federal Public Defender
(Thomas D. Hird, Assistant Federal Public Defender,
with her on the briefs), Oklahoma City, Oklahoma,
for Petitioner - Appellant.
Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Tommy
Sharp, current Interim Warden of Oklahoma State Penitentiary,
is automatically substituted for Mike Carpenter, Warden, as
Respondent in this case.
App.2a
Jennifer J. Dickson, Assistant Attorney General
(Mike Hunter, Attorney General of Oklahoma, with
her on the brief), Oklahoma City, Oklahoma, for
Respondent - Appellee.
Before: LUCERO, MATHESON, and
PHILLIPS, Circuit Judges.
LUCERO, Circuit Judge.
Roderick Smith was sentenced to death by an
Oklahoma state jury for the 1993 murders of his wife
and four stepchildren. Before the resolution of Smith’s
collateral attacks on his convictions and sentence, the
Supreme Court issued its decision in Atkins v. Virginia,
536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002),
prohibiting the execution of the intellectually disabled.1
Smith filed a successor application in state court for
post-conviction relief pursuant to Atkins, and the Oklahoma Court of Criminal Appeals (“OCCA”) remanded
the case to the Oklahoma County District Court for a
jury trial to determine whether Smith was intellectually disabled. At the subsequent jury trial in 2004
(the “Atkins trial”), the jury found Smith was not
1 The Supreme Court formerly employed the phrase “mentally
retarded,” but now “uses the term ‘intellectual disability’ to describe
the identical phenomenon,” noting “[t]his change in terminology
is approved and used in the latest edition of the Diagnostic and
Statistic Manual of Mental Disorders.” Hall v. Florida, 572 U.S.
701, 704, 134 S.Ct. 1986, 188 L.Ed.2d 1007 (2014). Recently enacted
federal legislation known as Rosa’s Law, Pub. L. No. 111-256, 124
Stat. 2643 (2010), mandates the use of the term “intellectual
disability” in place of “mental retardation” in all federal enactments and regulations. We accordingly use the term intellectual
disability throughout this opinion, although many of the
sources cited employ the old terminology.
App.3a
intellectually disabled and allowed his execution to
move forward. But our circuit then granted relief on
Smith’s previously filed habeas corpus petition in Smith
v. Mullin, 379 F.3d 919 (10th Cir. 2004), entitling him
to resentencing. A jury found Smith competent to stand
trial in 2009, and he was resentenced to death in 2010.
Smith again sought federal habeas relief. The
district court denied relief in an unpublished opinion.
Smith v. Royal, No. CIV-14-579-R, 2017 WL 2992217
(W.D. Okla. July 13, 2017) (unpublished). Before us,
Smith alleges that the state prosecution in his Atkins,
competency, and resentencing trials violated several
of his constitutional rights, including his Eighth
Amendment right against cruel and unusual punishment and his Sixth Amendment right to counsel.
Specifically, Smith contends: (1) the Eighth and Fourteenth Amendments prohibit his execution because he
is intellectually disabled; (2) the jury instruction
requiring a finding that his intellectual disability was
“present and known” before the age of eighteen violated
Atkins; (3) counsel’s failure to call an expert witness
to testify about the employment capabilities of the
intellectually disabled and prepare an additional adaptive functioning measurement denied him effective
assistance of counsel during his Atkins trial; (4) counsel’s failure to introduce video footage of Smith into
the record denied him effective assistance of trial and
appellate counsel in his competency and resentencing
trials; and (5) cumulative error violated his rights
under the Sixth, Eighth, and Fourteenth Amendments.
Exercising jurisdiction under 28 U.S.C. §§ 1291
and 2253, we reverse the district court’s denial of
habeas relief on Smith’s Atkins challenge to the constitutionality of his execution. Because we grant relief
App.4a
on Smith’s Atkins challenge, we need not address
Smith’s remaining claims concerning his Atkins proceeding. We otherwise affirm the district court’s denial
of Smith’s § 2254 petition for a writ of habeas corpus.
We remand with instructions to grant a conditional
writ vacating Smith’s death sentence and remanding
to the State for a new penalty-phase proceeding.
I
A
Smith was convicted of the murder of his wife,
Jennifer Smith, and her four children from a prior
relationship. The following facts concerning the underlying offense are undisputed and taken from the opinion
of the OCCA affirming Smith’s convictions and sentences on direct appeal. Smith v. State, 932 P.2d 521,
526 (Okla. Crim. App. 1996).
On the morning of June 28, 1993, Jennifer Smith’s
mother called the police and asked them to check on
her daughter, who had not been seen or heard from
for ten days. When the responding officer arrived at
the residence where Smith and Jennifer lived with her
four children, he smelled decaying flesh and observed
many flies around the windows. The responding officer
contacted his supervisor, and the officers entered the
house together. They discovered the body of a woman
in one closet, and the body of a child in another. The
officers requested assistance from the homicide division of the police department, and the bodies of three
more children were found. The bodies were identified
as those of Jennifer and her four children, and were
determined to have been dead for at least two days
and up to two weeks.
App.5a
Later that day, Smith walked into the Oklahoma
County Sheriff’s Office. He was then arrested by the
Oklahoma City Police. Smith was interrogated and
admitted that he had stabbed Jennifer and the two
male children. Smith also admitted that he “got” the
female children, but could not remember any details.
He told the police where he had placed each of the
bodies.
B
As summarized in Smith’s first habeas case, Smith
was tried and convicted before an Oklahoma County
jury of five counts of first-degree murder. Smith v.
Mullin, 379 F.3d at 924. The jury recommended sentences of death on each count, and the Oklahoma
court agreed. Smith filed an unsuccessful direct appeal
with the OCCA, Smith v. State, 932 P.2d at 539, and
the Supreme Court denied his petition for writ of
certiorari. Smith v. Oklahoma, 521 U.S. 1124, 117 S.Ct.
2522, 138 L.Ed.2d 1023 (1997). He subsequently filed
an unsuccessful application for post-conviction relief
in the Oklahoma courts. Smith v. State, 955 P.2d 734
(Okla. Crim. App. 1998). Smith did not seek Supreme
Court review of the OCCA’s denial of post-conviction
relief.
Smith then filed his first habeas corpus action, and
the district court denied relief. Smith v. Gibson, No.
CIV-98-601-R (W.D. Okla. Jan. 10, 2002) (unpublished).
Smith appealed to this court. Pending the resolution
of that appeal, the Supreme Court held the Eighth
Amendment prohibits the execution of the intellectually
disabled. Atkins, 504 U.S. at 321, 112 S.Ct. 1904. The
state provided Smith a jury trial to prove that he is
intellectually disabled, bifurcating the further adjudica-
App.6a
tion of Smith’s challenges into an Atkins trial (and
subsequent appeals) and the federal habeas claims
that developed out of his initial conviction and sentencing.
Smith’s first Atkins trial ended in a mistrial, but
a state jury eventually concluded that he was not
intellectually disabled. Smith appealed to the OCCA,
which affirmed the jury’s verdict. Smith v. State, No.
O-2006-683 (Okla. Crim. App. Jan. 29, 2007) (unpublished) (“OCCA’s Atkins Op.”).
Shortly after Smith’s Atkins trial, however, this
court granted in part Smith’s habeas petition, entitling
Smith to resentencing due to ineffective assistance of
counsel. Smith v. Mullin, 379 F.3d 919. We specifically
held counsel’s failure to introduce any mitigation
evidence regarding Smith’s intellectual disability,
brain damage, and troubled background denied Smith
effective assistance of counsel during his sentencing
proceedings. Id. at 940-44. Prior to the resentencing
proceedings, Smith received a jury trial to determine
his competence. The jury found Smith competent, and
he was resentenced in 2010. At the resentencing, the
jury imposed two death sentences and three sentences
of life without the possibility of the parole. Following
those jury trials, Smith appealed the resentencing
and competency determinations, and the effectiveness
of counsel in those proceedings. The OCCA affirmed.
Smith v. State, 306 P.3d 557 (Okla. Crim. App. 2013),
cert. denied, 572 U.S. 1137, 134 S. Ct. 2662, 189 L.Ed.
2d 213 (2014). Smith applied for but failed to obtain
post-conviction relief in state court. Smith v. State,
No. PCD-2010-660 (Okla. Crim. App. Feb. 13, 2014)
(unpublished) (“OCCA’s Resentencing and Competency
Op.”).
App.7a
Smith then filed a second habeas petition in federal
court, bringing claims related to: (1) sufficiency of
evidence supporting the jury’s determination that he
was not intellectually disabled; (2) purported irregularities in his Atkins trial; and (3) ineffective assistance
of counsel during his Atkins, competency, and resentencing trials. The district court denied relief on all
counts. We granted certificates of appealability as to:
(1) sufficiency of evidence as to the jury’s determination that Smith was not intellectually disabled at his
Atkins trial; (2) his Atkins challenge to language in the
jury instructions at that trial; and (3) various effectiveness of counsel claims during his Atkins, competency,
and resentencing trials.
II
On appeal from orders denying a writ of habeas
corpus, “we review the district court’s legal analysis
of the state court decision de novo and its factual
findings, if any, for clear error.” Michael Smith v.
Duckworth, 824 F.3d 1233, 1241-42 (10th Cir. 2016)
(quotation omitted). But “[t]he Antiterrorism and
Effective Death Penalty Act of 1996 (“AEDPA”) circumscribes our review of federal habeas claims that were
adjudicated on the merits in state-court proceedings.”
Grant v. Royal, 886 F.3d 874, 888 (10th Cir. 2018)
(quotation omitted), cert. denied sub nom. Grant v.
Carpenter, ___ U.S. ___, 139 S. Ct. 925, 202 L.Ed.2d
659 (2019). Under AEDPA, a petitioner may obtain
federal habeas relief on a claim only if the state
court’s adjudication of the claim on the merits: (1)
“resulted in a decision that was contrary to, or involved
an unreasonable application of, clearly established
Federal law”; or (2) “resulted in a decision that was
App.8a
based on an unreasonable determination of the facts
in light of the evidence presented in the State court
proceeding.” § 2254(d)(1), (2).
The Supreme Court has explained that “[a] state
court’s determination that a claim lacks merit precludes
federal habeas relief so long as fairminded jurists
could disagree on the correctness of the state court’s
decision.” Harrington v. Richter, 562 U.S. 86, 101,
131 S.Ct. 770, 178 L.Ed.2d 624 (2011) (quotation omitted). That is, the writ may be granted only “in cases
where there is no possibility fairminded jurists could
disagree that the state court’s decision conflicts with”
Supreme Court precedent, id. at 102, 131 S.Ct. 770,
and petitioner “must show that the state court’s
ruling on the claim being presented in federal court
was so lacking in justification that there was an error
well understood and comprehended in existing law
beyond any possibility for fairminded disagreement,”
id. at 103, 131 S.Ct. 770.
Applying § 2254(d)(1)’s legal inquiry, “we ask at
the threshold whether there exists clearly established
federal law, an inquiry that focuses exclusively on
holdings of the Supreme Court.” Grant, 886 F.3d at 888
(quotation omitted). “The absence of clearly established
federal law is dispositive” and requires the denial of
relief. Id. at 889 (quotation omitted). And that Supreme
Court precedent must have been “clearly established at
the time of the [state] adjudication.” Shoop v. Hill,
___ U.S. ___, 139 S. Ct. 504, 506, 202 L.Ed.2d 461
(2019) (per curiam) (quotation omitted).
“If clearly established federal law exists, a statecourt decision is contrary to it if the state applies a
rule different from the governing law set forth in
[Supreme Court] cases, or if it decides a case differently
App.9a
than [the Supreme Court has] done on a set of
materially indistinguishable facts.” Hooks v. Workman,
689 F.3d 1148, 1163 (10th Cir. 2012) (quotation omitted). A state court decision that “identifies the correct
governing legal principle from th[e Supreme] Court’s
decisions but unreasonably applies that principle to
the facts of petitioner’s case” is an “unreasonable
application” of clearly established federal law. Wiggins
v. Smith, 539 U.S. 510, 520, 123 S.Ct. 2527, 156 L.Ed.
2d 471 (2003) (quotation omitted). “In order for a state
court’s decision to be an unreasonable application of
th[e Supreme] Court’s case law, the ruling must be
objectively unreasonable, not merely wrong; even clear
error will not suffice.” Virginia v. LeBlanc, ___ U.S.
___, 137 S. Ct. 1726, 1728, 198 L.Ed.2d 186 (2017)
(quotation omitted). Under § 2254(d)(1), we review only
the record that was before the state court that adjudicated the claim on the merits. Cullen v. Pinholster, 563
U.S. 170, 180, 131 S.Ct. 1388, 179 L.Ed.2d 557 (2011).
Applying § 2254(d)(2)’s factual inquiry, we “conclude that a state court’s determination of the facts is
unreasonable” if “the court plainly and materially
misstated the record or the petitioner shows that
reasonable minds could not disagree that the finding
was in error.” Michael Smith, 824 F.3d at 1250. But
“[e]ven in the context of federal habeas, deference
does not imply abandonment or abdication of judicial
review.” Brumfield v. Cain, ___ U.S. ___, 135 S. Ct.
2269, 2277, 192 L.Ed.2d 356 (2015). And if the petitioner shows “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 undermine the fact-finding process, ren-
App.10a
dering the resulting factual finding unreasonable.”
Byrd v. Workman, 645 F.3d 1159, 1171-72 (10th Cir.
2011).
“The § 2254 standard does not apply to issues
not decided on the merits by the state court.” Welch
v. Workman, 639 F.3d 980, 992 (10th Cir. 2011). On
those unadjudicated issues, “we review the district
court’s legal conclusions de novo and its factual
findings for clear error.” Id. “[I]f the district court
based its factual findings” related to issues that the
state court did not adjudicate on the merits “entirely
on the state court record, we review that record
independently.” Id.
“When a federal claim has been presented to a
state court and the state court has denied relief, it may
be presumed that the state court adjudicated the
claim on the merits in the absence of any indication
or state-law procedural principles to the contrary.”
Richter, 562 U.S. 86 at 99, 131 S.Ct. 770. But the
petitioner may rebut the presumption that the state
court adjudicated the petitioner’s claim on the merits.
As discussed in more detail below, in cases in which
a state court addresses only one prong of a multiprong analysis, the Supreme Court requires that
federal habeas courts address the other prongs de novo.
See Porter v. McCollum, 558 U.S. 30, 39, 130 S.Ct.
447, 175 L.Ed.2d 398 (2009) (per curiam) (“Because the
state court did not decide whether [petitioner’s] counsel
was deficient, we review this element of [petitioner’s]
Strickland claim de novo.”); Rompilla v. Beard, 545
U.S. 374, 390, 125 S.Ct. 2456, 162 L.Ed.2d 360 (2005)
(“Because the state courts found the representation
adequate, they never reached the issue of prejudice,
and so we examine this element of the Strickland
App.11a
claim de novo.” (citation omitted)); Wiggins, 539 U.S.
at 534, 123 S.Ct. 2527 (same); see also Grant, 886 F.3d
at 910 (“Because the OCCA did not—by the plain
terms of its ruling—reach the prejudice question, we
resolve this overarching question de novo.”); Hooks,
689 F.3d at 1188 (“[I]n those instances where the OCCA
did not address the performance prong of Strickland
and we elect to do so, our review is de novo.”).2
2 As we have previously observed, there is “some possible tension
between” the language in Richter requiring federal habeas
courts to grant AEDPA deference to the adjudication of claims,
not arguments, and “the approach of Wiggins and its progeny
where” we deny AEDPA deference to the “portion of a Strickland claim . . . not reached by a state court.” Grant, 886 F.3d at
910 (quotation omitted) (citing McBride v. Superintendent, SCI
Houtzdale, 687 F.3d 92, 100 n.10 (3d Cir. 2012)). But even after
Richter, this court has denied AEDPA deference to the
unadjudicated prejudice prongs of a broader Strickland habeas
claim. See id. And so, too, has the Supreme Court denied AEDPA
deference to the unadjudicated prong of a broader Atkins
habeas claim. See Brumfield, 135 S. Ct. at 2282.
Moreover, Richter establishes only a rebuttable presumption that
the state court has adjudicated a claim, or portions of that
claim. See Wilson v. Sellers, ___ U.S. ___, 138 S. Ct. 1188, 1195,
200 L.Ed.2d 530 (2018) (“Richter . . . set[ ] forth a presumption,
which may be overcome when there is reason to think some
other explanation for the state court’s decision is more likely.”
(quotation omitted)). Supreme Court precedent indicates the
presumption of adjudication of an entire claim on the merits
outlined in Richter is overcome as to components of that claim
if, as in Wiggins, a state court decision explicitly rests its
analysis on a particular prong of a claim without deciding the
claim’s other prongs. Porter, 558 U.S. at 39, 130 S.Ct. 447
(2009). In other words, the Richter presumption controls if a
state court summarily resolves a claim without explanation, but
the presumption is overcome as to unadjudicated prongs of a
claim if a state court provides a reasoned explanation that rests
exclusively on one prong of a multi-prong analysis. See Mann v.
App.12a
And as with un-adjudicated prongs of Strickland ’s
two-part analysis, we review un-adjudicated prongs
of Atkins’ three-part analysis de novo. As the Supreme
Court explained in Brumfield, if the relevant state
“court never made any finding that [petitioner] failed
to produce evidence suggesting he could meet” one of
the Atkins prongs, federal habeas courts review that
prong of the Atkins analysis de novo because “[t]here
is thus no determination on that point to which a
federal court must defer in assessing whether [petitioner] satisfied § 2254(d).” 135 S. Ct. at 2282; see
also Pruitt v. Neal, 788 F.3d 248, 269 (7th Cir. 2015)
(“While the [state] court noted that ‘the evidence on the
adaptive behavior prong is at least conflicting,’ it did
not actually conclude that [petitioner] failed to establish
substantial impairment of adaptive behavior. Thus, we
review this prong de novo.” (citation omitted)).
III
Smith appeals the district court’s denial of habeas
relief on five grounds. With respect to his Atkins
trial, Smith asserts: (1) he is intellectually disabled
and his execution would violate Atkins; (2) flawed jury
instructions rendered his Atkins trial fundamentally
unfair; and (3) ineffective assistance for his counsel’s
Ryan, 828 F.3d 1143, 1168 (9th Cir. 2016) (“This distinction
between AEDPA review of summary denials and partial adjudications is apparent in post-Richter Supreme Court caselaw,
which applies de novo review to unanalyzed portions of multiprong tests.”); Grueninger v. Dir., Vir. Dep’t of Corr., 813 F.3d
517, 526 (4th Cir. 2016) (“[T]he Richter rule requiring deference
to hypothetical reasons a state court might have given for
rejecting a federal claim is limited to cases in which no state
court has issued an opinion giving reasons for the denial of
relief.” (quotation and alteration omitted)).
App.13a
failures to investigate and call an expert specializing
in the employment capabilities of the intellectually
disabled, and to refute the State’s impeachment of
Smith’s adaptive functioning measurement. Because we
grant habeas relief on Smith’s claim that his execution
would violate Atkins, we need not address the remaining claims concerning his Atkins trial.
With respect to his competency and resentencing
trials, Smith asserts he was denied effective assistance
of trial and appellate counsel for counsel’s failure to
call Anna Wright, a mental health worker at the
Oklahoma County jail, to testify and sponsor the
introduction of a video recording of Smith speaking.
Smith also asserts cumulative error.
A
Smith first argues he cannot legally be executed
pursuant to Atkins because he is intellectually disabled.
At the time of Smith’s Atkins trial, the OCCA implemented Atkins ’ prohibition on the execution of the
intellectually disabled through its decision in Murphy
v. State, 54 P.3d 556 (Okla. Crim. App. 2002), overruled in part on other grounds by Blonner v. State,
127 P.3d 1135, 1139 (Okla. Crim. App. 2006). In that
case, the OCCA articulated the following definition
of intellectual disability:
A person is “mentally retarded”: (1) If he or
she functions at a significantly sub-average
intellectual level that substantially limits his
or her ability to understand and process information, to communicate, to learn from experience or mistakes, to engage in logical
reasoning, to control impulses, and to understand the reactions of others; (2) The mental
App.14a
retardation manifested itself before the age
of eighteen (18); and (3) The mental retardation is accompanied by significant limitations in adaptive functioning in at least two
of the following skill areas: communication;
self-care; social/interpersonal skills; home
living; self-direction; academics; health and
safety; use of community resources; and work.
It is the defendant’s burden to prove he or
she is mentally retarded by a preponderance
of the evidence at trial. Intelligence quotients
are one of the many factors that may be
considered, but are not alone determinative.
However, no person shall be eligible to be
considered mentally retarded unless he or
she has an intelligence quotient of seventy or
below, as reflected by at least one scientifically
recognized, scientifically approved, and contemporary intelligent quotient test.
Id. at 567-68. Smith contends that based on the evidence presented, a reasonable jury would be compelled
to find he was intellectually disabled.
1
Smith argued insufficiency of evidence to the
OCCA in his direct appeal from the jury verdict following his Atkins trial. OCCA Atkins Op. at 6. The
OCCA concluded that “Smith failed to meet even the
first prong of the Murphy definition of mental retardation” because “[t]he evidence, viewed in the light
most favorable to the State, portrayed Smith as a
person who is able to understand and process information, to communicate, to understand the reactions
of others, to learn from experience or mistakes, and
App.15a
to engage in logical reasoning.” Id. at 11. Accordingly,
to prevail on this sufficiency of evidence challenge,
Smith must demonstrate the OCCA’s decision that
he failed to establish significantly sub-average intellectual functioning was contrary to, or an unreasonable
application of, Atkins, or an unreasonable determination of the facts. Hooks, 689 F.3d at 1165 (“A sufficiency-of-the-evidence challenge in a habeas petition
presents a mixed question of fact and law. . . . which is
why we apply both 28 U.S.C. § 2254(d)(1) and (d)(2)
when reviewing sufficiency of the evidence on habeas.”
(quotation omitted)); see also Brown v. Sirmons, 515
F.3d 1072, 1089 (10th Cir. 2008).3
But the OCCA did not adjudicate on the merits
Smith’s challenge to the sufficiency of evidence on
either the age-of-onset or the deficits in adaptive functioning prongs of Murphy, meaning there exists no
state court decision to which we must defer under
AEDPA. Grant, 886 F.3d at 888 (“[AEDPA] circumscribes our review of federal habeas claims that were
adjudicated on the merits in state-court proceedings.”
(quotation omitted)). Specifically, the OCCA made no
mention of the age-of-onset requirement beyond including it in the general definition of intellectual disability in the section of its opinion addressing Smith’s
sufficiency of evidence challenge. OCCA Atkins Op. at
6-11. And although the OCCA noted “the State presented persuasive evidence from lay witnesses to refute
3 Because the law of our circuit clearly states that a sufficiency
of evidence challenge necessarily “presents a mixed question of
law and fact,” Hooks, 689 F.3d at 1165, and Smith presented a
sufficiency of evidence challenge before the district court, we
reject the State’s contention that Smith forfeited § 2254(d)(2)
arguments by failing to raise them expressly below.
App.16a
Smith’s evidence of . . . adaptive functioning deficits,”
id. at 8, it reached no conclusions regarding the
adaptive functioning prong.
Instead, the OCCA’s dispositive language rejecting
Smith’s sufficiency of evidence claim referred only to
the first prong of the Murphy definition of intellectual
disability, detailing each component of significantly
sub-average intellectual functioning and explaining
that Smith failed to meet that prong. Id. at 11. The
OCCA neither addressed how a rational jury could
have viewed the adaptive functioning evidence, nor
concluded that the “evidence presented at trial support[ed]” a finding of deficits in adaptive functioning, as
it stated for the intellectual functioning prong. Id.
And a state court does not adjudicate a claim on the
merits without addressing the claim’s factual basis.
See Fairchild v. Workman, 579 F.3d 1134, 1149 (10th
Cir. 2009) (“A claim is more than a mere theory on
which a court could grant relief; a claim must have a
factual basis, and an adjudication of that claim
requires an evaluation of that factual basis.” (citation
omitted)).
Moreover, the OCCA couches the entirety of its
discussion regarding the “persuasive evidence” in terms
relevant to the intellectual functioning prong of Murphy,
stating the evidence “portrayed Smith as a person
who is able to understand and process information,
to communicate, to understand the reactions of others,
to learn from experiences or mistakes, and to engage
in logical reasoning.” OCCA Atkins Op. at 11. These are
Murphy’s intellectual functioning categories. Although
they may overlap with the adaptive functioning skills,
the psychological terms are different. And even if
evidence supporting these intellectual functioning
App.17a
findings could be relevant to the adaptive functioning
prong, we cannot ignore the fact that the OCCA
addresses this evidence exclusively in the context of
Murphy’s definition of the intellectual functioning
prong. Compare id. with Murphy, 54 P.3d at 567-68
(defining the intellectual functioning prong as “[i]f he
or she functions at a significantly sub-average intellectual level that substantially limits his or her ability
to understand and process information, to communicate, to learn from experience or mistakes, to engage
in logical reasoning, to control impulses, and to understand the reactions of others”). The OCCA made no
attempt to connect the evidence it considered relevant
to the intellectual functioning prong to Murphy’s
adaptive functioning categories. After acknowledging
the adaptive functioning categories in a footnote at the
beginning of its opinion, see OCCA Atkins Op. at 6
n.8, the OCCA did not mention them at all.
The OCCA’s statement that comes closest to
adjudicating on the merits the third Murphy prong
closely resembles the relevant state court statement in
Pruitt. Compare 788 F.3d at 269 (“the evidence on the
adaptive behavior prong is at least conflicting”) with
OCCA Atkins Op. at 8 (“the State presented persuasive
evidence from lay witnesses to refute Smith’s evidence
of sub-average intellectual function and of adaptive
functioning deficits”). As the Seventh Circuit similarly
concluded, such a cursory reference to the evidence
presented absent any conclusion does not constitute
an adjudication on the merits. Pruitt, 788 F.3d at
269. We determine the OCCA resolved the intellectual
disability issue on the intellectual functioning prong
and did not address the other two prongs of the
Murphy test.
App.18a
As explained above, if the state court explicitly
relies on one element of a multi-element test to the
exclusion of others, we review challenges to the
remaining elements de novo. See Brumfield, 135 S.
Ct. at 2282 (holding when relevant state “court never
made any finding that [petitioner] failed to produce
evidence suggesting he could meet” one of the Atkins
prongs, federal habeas courts review that prong de
novo because “[t]here is thus no determination on that
point to which a federal court must defer in assessing
whether [petitioner] satisfied § 2254(d)”); Pruitt, 788
F.3d at 269. Accordingly, although we grant AEDPA
deference to the OCCA’s determination on the first
Murphy prong, we review de novo Smith’s sufficiency
of evidence challenge to the age-of-onset and deficits
in adaptive functioning prongs.4
The proper standard as to the latter two prongs
are thus set forth in Jackson v. Virginia, 443 U.S.
307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), as explicated in Hooks: “whether, viewing the evidence in
the light most favorable to the prevailing party (the
State), any rational trier of fact could have found
[Smith] not mentally retarded by a preponderance of
4 In Grant, the majority concluded we may not sua sponte deny
AEDPA deference when the OCCA purportedly “misunderstood”
petitioner’s argument. 886 F.3d at 909. That rule is inapplicable
to our denial of AEDPA deference on a claim the OCCA plainly
failed to reach. Id. at 932 n.20. In Grant, the dissent did not
deny that the OCCA issued a decision on a particular claim for
relief, and instead asserted the OCCA misunderstood petitioner’s
arguments on that question. See 886 F.3d at 968 (Moritz,
dissenting) (explaining “[t]he OCCA misunderstood this argument”
and then “rejected [it]”). Unlike in Grant, there is no OCCA
determination on the adaptive functioning prong of the Murphy
analysis to which we may defer.
App.19a
the evidence.” Hooks, 689 F.3d at 1166 (emphasis in
original). And because the district court “based its
factual findings” in rejecting Smith’s claims “entirely on
the state court record, we review that record independently.” Welch, 639 F.3d at 992 (quotation omitted).
2
In addressing the Murphy prongs, we first conclude
Smith has demonstrated the OCCA either unreasonably
applied Atkins or unreasonably construed the facts in
deciding the evidence justified the jury’s verdict
regarding the intellectual functioning prong of Murphy.
Next, as the State conceded at oral argument, Smith
met the age-of-onset Murphy prong, and that prong
thus does not provide a viable justification for upholding
the jury’s determination that Smith was not intellectually disabled. Finally, we conclude Smith has successfully demonstrated that based on the evidence presented, a reasonable jury would have been compelled
to find that he suffers from deficiencies in at least two
of the nine listed skill areas of adaptive functioning.
We thus reverse the district court’s denial of this claim.
a
The first Murphy prong requires Smith prove by a
preponderance of evidence that he “functions at a
significantly sub-average intellectual level that substantially limits his [ ] ability to understand and
process information, to communicate, to learn from
experience or mistakes, to engage in logical reasoning,
to control impulses, and to understand the reactions
of others.” 54 P.3d at 567-68. Because the OCCA
adjudicated the first Murphy prong on the merits,
AEDPA constrains our review of its finding Smith
App.20a
failed to meet “the first prong of the Murphy definition,”
OCCA Atkins Op. at 11.
But this is not an insurmountable barrier. Even
under AEDPA’s deferential review, at least four of
our sibling circuits have held unreasonable a state
court’s determination that an individual was not
intellectually disabled, or that an individual failed to
meet a particular prong of the relevant definition of
intellectual disability. Pruitt, 788 F.3d at 269 (“The
[state court] made an unreasonable determination of
fact in concluding . . . that [petitioner] failed to establish
significantly subaverage intellectual functioning.”); Van
Tran v. Colson, 764 F.3d 594, 612 (6th Cir. 2014) (“In
light of the methods and analyses employed by the expert witnesses, the [state court] unreasonably determined that Van Tran was not intellectually disabled.”); Burgess v. Comm’r, Ala. Dep’t of Corr., 723
F.3d 1308, 1315-16 (11th Cir. 2013) (“[T]he ruling of
[the state court] that Burgess is not mentally retarded
was an unreasonable determination of the facts in
this case.” (quotation omitted)); Rivera v. Quarterman, 505 F.3d 349, 357 (5th Cir. 2007) (“[I]t was
unreasonable . . . to reject Rivera’s Atkins claim as
failing to even establish a prima facie case—especially
when viewed through the prism of Atkins’ command
that the Constitution places a substantive restriction
on the State’s power to take the life of a mentally
retarded offender.” (quotations omitted)).
Because Smith’s sufficiency of evidence challenge
“presents a mixed question of fact and law,” we will
grant relief if the OCCA’s decision to uphold the jury
determination on the first Murphy prong was contrary to, or an unreasonable application of, Atkins, or
was an unreasonable determination of the facts.
App.21a
Hooks, 689 F.3d at 1165. The Court’s decision in
Atkins provides the “substantive law at this basis of
his sufficiency challenge.” Hooks, 689 F.3d at 1166.
Atkins broadly imposed a “substantive restriction on
the State’s power to take the life of a mentally retarded
offender.” 536 U.S. at 321, 122 S.Ct. 2242. The Supreme
Court in Atkins accepted clinical definitions for the
meaning of the term “mentally retarded.” Id. at 308
n.3, 314-16, 122 S.Ct. 2242. And although Atkins left
the primary task of defining intellectual disability to
the states, Smith’s “sufficiency challenge inescapably
requires that we consider the kinds of evidence that
state courts may (or may not) rely upon in adjudicating
an Atkins claim.” Hooks, 689 F.3d at 1166. Atkins
clearly establishes that intellectual disability must
be assessed, at least in part, under the existing
clinical definitions applied through expert testimony.
Atkins, 536 U.S. at 308 n.3, 122 S.Ct. 2242.5
We recognized the centrality of expert testimony
to our review of Atkins verdicts in Hooks. In that
case, the defendant’s IQ test scores ranged from 53 to
80. The experts testified that he fell into a “gray
area.” Hooks, 689 F.3d at 1168. With a range of expert
testimony, the court saw no reason to overturn the
jury’s finding of not intellectually disabled. Id. And
other circuits similarly prioritize expert testimony in
review of Atkins challenges. In granting habeas relief
pursuant to Atkins in Pruitt, the Seventh Circuit
5 Atkins is thus consistent with other areas of the law concerning medical diagnoses, which place similar emphasis on expert
testimony. For example, the Supreme Court has recognized the
importance of experts in diagnosing insanity for a defense in a
criminal trial. Ake v. Oklahoma, 470 U.S. 68, 80-82, 105 S.Ct.
1087, 84 L.Ed.2d 53 (1985).
App.22a
explained that four “highly qualified experts with
extensive experience with the intellectually disabled
. . . all agreed that the [petitioner’s] IQ scores demonstrated significantly subaverage intellectual functioning
and that [petitioner] is intellectually disabled.” 788
F.3d at 267. And, as in this case, the State’s expert in
Pruitt could not claim with certainty that the petitioner
is not intellectually disabled. Id. Applying Atkins,
both Pruitt and Hooks turned on consideration of expert opinions.
As in Hooks, id. at 1167, the OCCA applied the
correct legal standard in this case, explaining that
“[w]hen a defendant challenges the sufficiency of evidence following a jury verdict finding him not mentally
retarded, [the OCCA] reviews the evidence in the
light most favorable to the State to determine if any
rational trier of fact could have reached the same
conclusion.” OCCA Atkins Op. at 6. “Because the
OCCA applied the correct legal standard, our inquiry
is limited to whether its determination that the
evidence was sufficient to support the jury’s verdict
was reasonable . . . [T]hat inquiry also requires us to
consider whether the OCCA . . . reasonably applied
Atkins.” Hooks, 689 F.3d at 1167 (quotation omitted).
We conclude that in holding Smith failed to satisfy
the intellectual functioning Murphy prong, the OCCA
either relied upon an unreasonable determination of
the facts or unreasonably applied Atkins. Every IQ
test Smith took placed him firmly within the intellectually disabled range. The sub-average intellectual
ability requirement generally turns on IQ scores. See
id. at 1167-68 (“[A] capital defendant’s IQ score is . . .
strong evidence of sub-average intelligence.”); American
Association on Mental Retardation (“AAMR”), Mental
App.23a
Retardation: Definition, Classification, and Systems
of Supports at 58 (10th ed. 2002) (“In the 2002
AAMR system, the ‘intellectual functioning’ criterion
for diagnosis of mental retardation is approximately
two standard deviations below the mean, considering
the [standard error of measurement] for the specific
assessment instruments used and the instruments’
strengths and limitations.”).6 As the Supreme Court
explained in Atkins, “[i]t is estimated that between 1
and 3 percent of the population has an IQ between
70 and 75 or lower, which is typically considered the
cutoff IQ score for the intellectual function prong of
the mental retardation definition.” 536 U.S. at 309
n.5, 122 S.Ct. 2242; see also Michael Smith, 824 F.3d
at 1243 (explaining that “a clinical diagnosis of
intellectual disability generally requires an IQ score
that is approximately two standard deviations below
the mean. . . . The mean score for a standardized IQ
test is 100, and the standard deviation is approximately 15.”).
In light of Smith’s consistent scoring in the
intellectually disabled range and the Supreme Court’s
clear statements regarding the significant role of IQ
assessments under the intellectual functioning prong
of Atkins, for the OCCA’s decision to withstand
review there must be evidence that either: (1) all of
the IQ assessments administered to Smith significantly
underestimate his intellectual functioning; or (2) contrary to the clinical definitions of the intellectual
functioning prong at the time of Smith’s Atkins trial,
expert assessments relying upon standardized metrics
6 We cite to the Tenth Edition as the current AAMR at the time
of Smith’s Atkins trial in 2004.
App.24a
are not dispositive. The State cannot prevail on
either basis. The former requires an unreasonable
construction of the facts; the latter an unreasonable
application of Atkins.
Three experts testified at Smith’s Atkins trial:
Dr. Clifford Allen Hopewell, a clinical neuropsychologist retained by Smith; Dr. Frederick H. Smith, a
psychologist with the Oklahoma Department of Corrections initially retained by the State for Smith’s first
habeas petition but called to testify as an expert for
Smith at his Atkins trial; and Dr. John A. Call, a
forensic psychologist retained by the State. The doctors’
opinions largely track the clinical and legal definitions
of intellectual disability set forth in Murphy. Both
Dr. Hopewell and Dr. Smith concluded Smith was
intellectually disabled. And Dr. Hopewell testified that
Smith’s “case is pretty obvious.” Dr. Call suggested
Smith was malingering but admitted he could not
“say that [Smith] is not mentally retarded.” In other
words, although Dr. Call challenged the accuracy of
some of Smith’s tests, even Dr. Call could not conclusively contradict the ultimate diagnosis of intellectual
disability.
And Smith’s IQ scores, all of which place him in
the intellectually disabled range, strongly compel a
finding of significant deficits in intellectual functioning.
Unlike in previous cases in which we denied relief on
the intellectual functioning prong, not even one of
Smith’s IQ scores falls outside the intellectually disabled range “between 70 and 75 or lower,” Atkins,
536 U.S. at 309 n.5, 122 S.Ct. 2242; see Hooks, 689
F.3d at 1168 n.7 (noting petitioners IQ scores of: 80,
70, 61, 57, 61, 80, 72, 76, and 53, determining the 72
and 76 to be most reliable); Michael Smith, 824 F.3d
App.25a
at 1244 (noting petitioner’s IQ scores of 76, 79, and
71). In this case, the IQ scores addressed by the
OCCA in its opinion were: 65 on the Wechsler Adult
Intelligence Scale-Revised (WAIS-R); 55 on the
Wechsler Adult Intelligence Scale-III (WAIS-III); 55
(WAIS-III); 69-78 on the Raven’s Standard Progressive
Matrices, which provide a range rather than fixed
score; and 73. OCCA Atkins Op. at 7-8.7
Of the scores presented at Smith’s Atkins trial
and to the OCCA, the 55 scores were obtained by Dr.
Hopewell, one of Smith’s experts, and Dr. Call, the
State’s expert, roughly nine months apart. Dr. Hopewell
administered the WAIS-III to Smith in January
2003, and obtained a Verbal IQ interval of 51-61, a
Performance IQ interval of 59-73, and a full scale
interval of 52-60. Dr. Call’s administration of the
same assessment nine months later produced not only
an identical full scale score of 55, but also similar
intervals. Dr. Call obtained a Verbal IQ interval of
53-63, a Performance IQ interval of 58-71, and a full
scale interval of 52-60. Dr. Call’s administration of
the assessment produced age-adjusted scales either
identical to or within one point of Dr. Hopewell’s
administration in nine of the eleven areas the WAISIII measures.
Dr. Smith administered the WAIS-R and the
Raven’s Standard Progressive Matrices to Smith in
7 Smith also attempts to present scores of 55 (WAIS-III) and 55
(WAIS-IV) obtained by Drs. Hall and Ruwe in 2005 and 2010,
respectively. But these scores were obtained after Smith’s Atkins
trial, and were thus not presented to the OCCA. Under AEDPA,
our “review is limited to the record that was before the state
court,” Pinholster, 563 U.S. at 180, 131 S.Ct. 1388, and we may
not consider either score.
App.26a
1997, five years prior to the Supreme Court’s decision
in Atkins.8 On the WAIS-R assessment, Smith’s Verbal
IQ score was 64, his Performance IQ was 70, and full
scale IQ was 65. Dr. Smith testified that the score
indicated Smith was intellectually disabled.9 With
regard to the Raven’s Standard Progress Matrices,
Dr. Smith testified that assessment provides a range,
rather than a fixed score like the WAIS assessments,
and Smith obtained a range of 69 to 78. When asked
to compare the assessments’ accuracy, Dr. Smith une8 And experts on both sides believed Smith to be intellectually
disabled before Atkins was decided. Although our opinion on
Smith’s first habeas petition concerned mitigation evidence
rather than Smith’s intellectual disability, we noted the strong
evidence of his intellectual disability: “Smith is completely illiterate. Even the State’s experts and prison doctors determined
. . . Smith’s IQ to be in the mentally retarded or borderline
mentally retarded range. His understanding and his emotional
development and his ability to relate all seem to be fairly
similar to what we would perceive to be a 12-year-old-child.”
Smith v. Mullin, 379 F.3d at 941 (citations and quotation omitted).
9 Dr. Hopewell addressed the discrepancy between the scores of
55 that Dr. Call and Dr. Hopewell obtained and the 65 Dr.
Smith obtained, testifying that the scores are consistent
because Dr. Smith administered the older version of the WAIS
assessment that would have inflated Smith’s score pursuant to
the Flynn effect. As we explained in Hooks, under the Flynn
effect, “if an individual’s test score is measured against a mean
of a population sample from prior years, then his score will be
inflated in varying degrees (depending on how long ago the
sample was first employed) and will not provide an accurate
picture of his IQ.” 689 F.3d at 1169. We need not rely upon the
Flynn effect to conclude a reasonably jury would have been
compelled to find that Smith met the intellectual functioning
Murphy prong because every score placed Smith in the intellectually disabled range, but merely acknowledge its existence to
refute any suggestion that the discrepancy between Smith’s
1997 and 2003 scores support the conclusion that he malingered.
App.27a
quivocally stated the WAIS “is the premier instrument
used throughout the world for IQ measurement.”
Finally, the 73 results from a test administered
in preparation for Smith’s original criminal trial in
1994. Smith notes that the type of test administered
to obtain the 73 is unclear. Dr. Call’s testimony
provides the only source for the score in the Atkins
trial record, noting that Dr. Murphy administered
the test in 1994. The transcript from Smith’s original
criminal trial includes testimony from Dr. Murphy
that Smith’s full scale IQ is 73, and “in the mentally
retarded range of intellectual functioning.” At no
point in his testimony did Dr. Murphy state what
type of test was administered, and he did not testify
at Smith’s Atkins trial. Accordingly, although we note
the score obtained by Dr. Murphy for its consistent
placement of Smith in the intellectually disabled
range, we do not consider a score on an unknown test
and only introduced into the Atkins trial record indirectly to be of particular significance to our review.10
In view of the evidence showing Smith’s consistent
low IQ scores and Atkins’ statement that a score of
75 or lower will generally satisfy the intellectual
functioning prong of an intellectual disability diagnosis,
the State must provide some basis for a reasonable
juror to believe that every single one of Smith’s IQ
assessments was inaccurate, and that his actual IQ
was some ten to fifteen points higher than his scores
10 And we consider the reliability of a particular IQ assessment
when reviewing a sufficiency of evidence challenge under
AEDPA. See Hooks, 689 F.3d at 1170 (“Given the [uncontested]
reliability problems associated with many of the scores and the
strong reliability of the scores of 72 and 76 from [petitioner’s]
own experts, we agree that [petitioner] falls into a ‘gray area.’”).
App.28a
indicate. The OCCA dismissed the relevance of these
scores consistently placing Smith in the intellectually
disabled range by first emphasizing Dr. Call’s testimony
that Smith was likely malingering. OCCA Atkins Op.
at 8. But to the extent the OCCA determined Smith
failed to satisfy the intellectual functioning Murphy
prong because he was malingering, we conclude such
a determination amounts to an unreasonable factual
conclusion. Byrd, 645 F.3d at 1171-72 (10th Cir. 2011)
(explaining that in cases 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 undermine
the fact-finding process, rendering the resulting factual
finding unreasonable” (quotation omitted)).
As explained supra, Smith has consistently scored
in the intellectually disabled range on every IQ test
he has taken. And Smith almost certainly scored in
that range when he was first placed in courses for the
educable mentally handicapped while in grade school,
as special education instructors from his school testified
that placement in such courses required IQ testing in
the intellectually disabled range. Dr. Hopewell testified
that children would not fake an intellectual disability
for placement in the educable mentally handicapped
courses. Two of Smith’s high school teachers testified
that Smith was one of the lower functioning students
in their educable mentally handicapped courses.
As all three experts expressly testified, Smith’s
consistent placement in the intellectually disabled
range provides compelling evidence that he was not
malingering. Dr. Hopewell testified that Smith’s consistent scoring across a wide range of tests and his
App.29a
prior experience with the intellectually disabled refuted
any claims that Smith was malingering. Dr. Smith
testified that Smith’s scores from 1997 through 2003
demonstrate a “remarkable” consistency difficult to
reconcile with a malingering diagnosis. And Smith
obtained the 65 score in 1997 on the assessment that
Dr. Smith administered, five years prior to the Supreme
Court’s decision in Atkins, calling into question any
purported motivation for malingering. Even the State’s
expert, Dr. Call, agreed that comparing test performance on the same or similar tests over time would
provide one way of assessing whether an individual
was malingering. Moreover, as the Seventh Circuit
explains, “a defendant cannot readily feign the symptoms of mental retardation.” Newman v. Harrington,
726 F.3d 921, 929 (7th Cir. 2013) (quotation omitted).
The State’s assertion that Smith was malingering
thus rests on Dr. Call, the sole expert to so testify.
Unlike Dr. Hopewell, who had extensive experience
with both the intellectually disabled and malingering
patients, Dr. Call had no prior experience with the
intellectually disabled and practiced almost exclusively
in the unrelated field of forensic psychology. See
Lambert v. State, 126 P.3d 646, 651-52 (Okla. Crim.
App. 2005) (“Dr. Call is a forensic psychologist. His
practice has not primarily been in the field of mental
retardation, and he has not had a mentally retarded
patient in a clinical setting for fifteen years. However,
since 2002 he has made a specialty of examining
capital defendants for mental retardation.”). The
OCCA had previously chastised Dr. Call because he
“himself made up and administered a non-standardized
test . . . not administered pursuant to accepted scientific
norms . . . to convince the jury Petitioner was malin-
App.30a
gering.” Salazar v. State, 126 P.3d 625, 632 (Okla.
Crim. App. 2005). Moreover, Dr. Call could not conclude that Smith is not intellectually disabled. Presented with the testimony of two experts who concluded Smith was intellectually disabled, Dr. Call
could only state that the record established that
Smith had neither an intellectual disability nor an
absence thereof. And the OCCA noted an identical
admission from Dr. Call to deemphasize his malingering diagnosis in concluding a defendant met the
first Murphy prong in Lambert. 126 P.3d at 651 (“Dr.
Call did not testify that Lambert was not mentally
retarded. In fact, he explicitly stated he could not say
that Lambert was not mentally retarded.”).
The OCCA also emphasized Dr. Call’s testimony
that the tests he and Dr. Hopewell administered to
assess malingering demonstrate “Smith did not put
forth his best efforts during his and Dr. Hopewell’s
testing and that Smith’s I.Q. test results were unreliable.” OCCA Atkins Op. at 8. Dr. Call testified that
the Test of Memory and Malingering and 15-Item
Memory Test both demonstrated Smith was malingering. Dr. Hopewell disputed this conclusion, testifying
the assessments of malingering that he and Dr. Call
administered would not accurately assess the intellectually disabled.
Even if the OCCA had used the malingering
assessments to disregard Smith’s scores (both 55) on
the WAIS-III assessments, Smith still averaged a 69
on the remaining fixed score assessments. For a
reasonable jury not to be compelled to conclude that
Smith satisfied the first Murphy prong based on the
malingering assessments, there must exist some basis
for the jurors to infer that Smith’s actual IQ falls
App.31a
outside the intellectually disabled range. But every
score presented refuted such an inference. And “[w]hile
the jury may draw reasonable inferences from direct
or circumstantial evidence, an inference must be more
than speculation and conjecture to be reasonable.”
Torres v. Lytle, 461 F.3d 1303, 1313 (10th Cir. 2006).
The OCCA’s conclusion that Smith “failed to meet
even the first prong of the Murphy definition,” OCCA
Atkins Op. at 11, is thus an unreasonable determination of the facts in light of Smith’s consistent IQ
scores that demonstrate significantly subaverage
intellectual functioning. See Pruitt, 788 F.3d at 267
(“Even when viewed through AEDPA’s deferential
lens, the [state court’s] determination that [petitioner]
failed to demonstrate significantly subaverage intellectual functioning . . . was objectively unreasonable.
. . . The record establishes that [petitioner’s] reliable
IQ scores consistently demonstrated significantly
subaverage intellectual functioning.”).11
The OCCA attempted to justify its disregard for
Smith’s consistent IQ scores by explaining “the State
presented persuasive evidence from lay witnesses to
refute Smith’s evidence of subaverage intellectual
11 Because we conclude the OCCA’s holding that Smith failed
to meet the intellectual functioning prong constitutes a “decision that was based on an unreasonable determination of the
facts,” § 2254(d)(2), we have necessarily concluded that Smith
has carried his Jackson burden. A reasonable jury would have
been compelled to find that Smith satisfied the intellectual
functioning Murphy prong. See Hooks, 689 F.3d at 1166
(explaining Jackson, as applied to the Atkins context, requires
assessing “whether, viewing the evidence in the light most
favorable to the prevailing party (the State), any rational trier
of fact could have found [petitioner] not mentally retarded by a
preponderance of the evidence” (emphasis in original)).
App.32a
functioning.” OCCA Atkins Op. at 8. But to the extent
that the OCCA determined Smith failed to satisfy
the intellectual functioning Murphy prong because of
evidence from lay witnesses, such a determination
constitutes an unreasonable application of Atkins.
See Wiggins, 539 U.S. at 520, 123 S.Ct. 2527.
Atkins demands the Eighth Amendment’s prohibi-
tion of the execution of the mentally disabled tracks
the “national consensus [that] developed against” the
execution of “offenders possessing a known IQ less
than 70.” Atkins, 536 U.S. at 316 & 309 n.5, 122
S.Ct. 2242 (“[A]n IQ between 70 and 75 or lower . . . is
typically considered the cutoff IQ score for the intellectual function prong of the mental retardation definition.”). The Diagnostic and Statistical Manual of
Mental Disorders, cited by the Atkins court, id. at 308
n.3, 122 S.Ct. 2242, is even more explicit: “Intellectual
functioning is typically measured with individually
administered and psychometrically valid, comprehensive, culturally appropriate, psychometrically sound
tests of intelligence.” Am. Psychiatric Ass’n, Diag-
nostic and Statistical Manual for Mental Disorders
at 37 (4th ed.-Text Rev. 2000). And, citing Atkins, we
have similarly concluded that “[a]n IQ score of 70 or
below . . . is [ ] strong evidence of sub-average intelligence.” Hooks, 689 F.3d at 1168. This court has
noted that “[t]he [Supreme] Court in Atkins . . . base[d]
its analysis on clinical definitions of intellectual disability, and the [Supreme] Court has since recognized
that such definitions were a fundamental premise of
Atkins.” Michael Smith, 824 F.3d at 1243.
Therefore, the OCCA’s determination Smith did
not satisfy the first prong of the Murphy definition
constitutes either an unreasonable determination of
App.33a
the facts, or amounts to an unreasonable application
of Atkins because such determination requires the
OCCA to have disregarded the clinical definitions
Atkins mandated states adopt. We conclude the OCCA
erred in determining a reasonable jury would not have
been compelled to find Smith intellectually disabled.
b
The State conceded at oral argument that there
exists insufficient evidence for a reasonable jury to
conclude that Smith’s symptoms did not manifest
before the age of eighteen. The record supports the
State’s concession: throughout his schooling, Smith
was placed in educable mentally handicapped courses,
and placement in those courses required Smith submit
to a psychometrist-administered test and score a full
scale IQ in the intellectually disabled range. Two of
Smith’s teachers from his educable mentally handicapped courses confirmed that his placement in those
classes was appropriate. We accordingly conclude
that Smith’s sufficiency of evidence challenge prevails
with regards to the age-of-onset prong of the Murphy
definition of intellectual disability.
c
Finally, Smith must demonstrate that a rational
jury would have been compelled to find he satisfied the
adaptive functioning prong of the Murphy analysis:
“that he has significant limitations in adaptive functioning in at least two of the nine listed skill areas.”
OCCA Atkins Op. at 6. As explained by the OCCA,
the “adaptive functioning skill areas are: communication; self-care; social/interpersonal skills; home living;
self-direction; academics; health and safety; use of
App.34a
community resources; and work.” Id. at 6 n.8. Because
the OCCA did not adjudicate this prong of Murphy
on the merits, we review the evidence and conduct the
legal analysis de novo. Brumfield, 135 S. Ct. at 2282.
Under de novo review, we are not constrained to
consider only Supreme Court precedent “clearly established at the time of the [state] adjudication,” as
required under AEDPA. Shoop, 139 S. Ct. at 506. We
thus apply the general rule for retroactive application
of law to convictions under collateral attack to assess
whether the Supreme Court’s recent applications of
Atkins “are novel.” Chaidez v. United States, 568
U.S. 342, 348, 133 S.Ct. 1103, 185 L.Ed.2d 149 (2013).
In general, “[o]nly when we apply a settled rule
may a person avail herself of the decision on collateral
review.” Id. at 347, 133 S.Ct. 1103. To determine
whether a post-conviction constitutional rule applies
to a case on collateral review, the court must first
“determine when the defendant’s conviction became
final.” Beard v. Banks, 542 U.S. 406, 411, 124 S.Ct.
2504, 159 L.Ed.2d 494 (2004). It then must decide
“whether the rule is actually ‘new.’” Id. Typically, a
rule is “new” if it either “breaks new ground or imposes
a new obligation on the States or the Federal Government,” or its “result was not dictated by precedent
existing at the time the defendant’s conviction became
final.” Teague v. Lane, 489 U.S. 288, 301, 109 S.Ct.
1060, 103 L.Ed.2d 334 (1989). A result is not dictated
by precedent if “reasonable jurists could have differed
as to whether [precedent] compelled” the result.
Beard, 542 U.S. at 414, 124 S.Ct. 2504. If the rule is
not new, the petitioner may “avail herself of the decision
on collateral review.” Chaidez, 568 U.S. at 347, 133
S.Ct. 1103. But “if the rule is new,” it is not retroactively
App.35a
applicable on collateral review unless “it falls within
either of the two exceptions to nonretroactivity.”
Beard, 542 U.S. at 414, 124 S.Ct. 2504.
When the Supreme Court “appl[ies] a general standard to the kind of factual circumstances it was meant
to address, [it] will rarely state a new rule.” Chaidez,
568 U.S. at 348, 133 S.Ct. 1103. And the Supreme
Court’s post-Atkins jurisprudence has expressly confirmed that its reliance on the clinical standards
endorsed in Atkins constitutes a mere application of
that case. We thus conclude these cases do not state
a new rule. As the Supreme Court explained in Hall:
Atkins did not give the States unfettered
discretion to define the full scope of the constitutional protection. The Atkins Court twice
cited definitions of intellectual disability. . . .
Atkins itself not only cited clinical definitions
for intellectual disability but also noted that
the States’ standards, on which the Court
based its own conclusion, conformed to
those definitions. . . . The clinical definitions
of intellectual disability, which take into
account that IQ scores represent a range,
not a fixed number, were a fundamental premise of Atkins . . . If the States were to have
complete autonomy to define intellectual
disability as they wished, the Court’s decision
in Atkins could become a nullity, and the
Eighth Amendment’s protection of human
dignity would not become a reality. This
Court thus reads Atkins to provide substantial guidance on the definition of intellectual
disability.
App.36a
572 U.S. at 720-21, 134 S.Ct. 1986 (emphasis added);
see also Michael Smith, 824 F.3d at 1243 (“The Court
in Atkins did, however, base its analysis on clinical
definitions of intellectual disability.”); Hooks, 689
F.3d at 1166 (“[T]he definition of mental retardation
. . . although dependent on state law (here, Murphy),
ultimately has Eighth Amendment underpinnings
pursuant to Atkins.”). And the Supreme Court reiterated this reading of Atkins in Moore v. Texas (Moore
II), ___ U.S. ___, 139 S. Ct. 666, ___ L.Ed.2d ___
(2019), explaining that “[w]hile our decisions in Atkins
and Hall left to the States the task of developing
appropriate ways to enforce the restriction on executing
the intellectually disabled, a court’s intellectual disability determination must be informed by the medical
community’s diagnostic framework.” Id. at 669 (citations
and quotations omitted).
As in Strickland, the Supreme Court in Atkins
declared “a rule of general application . . . designed for
the specific purpose of evaluating a myriad of factual
contexts.” Chaidez, 568 U.S. at 348, 133 S.Ct. 1103
(quotation omitted). The application of this general
rule to Hall, Moore v. Texas (Moore I), ___ U.S. ___,
137 S. Ct. 1039, 197 L.Ed.2d 416 (2017), and Moore
II cannot be understood to “yield[ ] a result so novel
that it forges a new rule, one not dictated by precedent”,
Chaidez, 568 U.S. at 348, 133 S.Ct. 1103 (quotation
omitted), in light of the Court’s proclamation in Hall
that “Atkins . . . provide[s] substantial guidance on the
definition of intellectual disability,” 572 U.S. at 721,
134 S.Ct. 1986. The Court’s application of Atkins
more closely resembles, for example, our conclusion
that the extension of Strickland’s guarantee of effective
counsel to the plea-bargaining context merely applied
App.37a
Strickland rather than created a new rule. In re
Graham, 714 F.3d 1181, 1183 (10th Cir. 2013) (per
curiam).
Accordingly, we consider on de novo review the
Supreme Court’s application of Atkins in Hall, Moore
I, and Moore II. The Court’s decisions in Moore I and
Moore II, which directly address the adaptive functioning component of the clinical definitions that
Atkins mandated, make clear that no reasonable jury
could conclude Smith failed to establish by a preponderance of evidence that he suffered deficits in at
least two areas of adaptive functioning, with the most
compelling evidence concerning academics and communication. And the State conceded at oral argument
that Smith demonstrated significant limitations in
adaptive functioning in the academics category.
Dr. Hopewell, the only expert to conduct a formal
assessment of Smith’s adaptive functioning capacities,
concluded Smith suffers from profound deficits in at
least five of the nine adaptive functioning areas: communication; academics; social skills; home living; and
health and safety. Dr. Hopewell based this assessment
on the Vineland Adaptive Behavior Scales assessment;
his own interactions with Smith; and his review of
Department of Corrections testing on Smith’s adaptive
functions, which revealed significant deficits in reading,
writing, and personal finances (placing Smith at the
third and fifth grade levels). With regard to Smith’s
significant communication deficits, Dr. Hopewell noted
that Smith could not keep a cellmate because his
fellow prisoners would become bored with his lack of
App.38a
engagement, and frustrated that he spent much of
his time completing grade-school level coloring books.12
Dr. Hopewell also administered the Wide Range
Achievement Test III (WRAT-III), intended to assess
an individual’s ability in reading, writing, and arithmetic to substantiate the finding of significant deficits
in the functional academics category of adaptive
functioning. Smith scored at the kindergarten or first
grade level in each academic area, at or below two
standard deviations from the mean. Dr. Hopewell
characterized Smith as functionally illiterate, unable
to read more than a few words at a very basic level.
And Smith’s teachers from high school confirmed
his illiteracy, with one teacher testifying that she
never asked Smith to read aloud because of his illiteracy, and another stating it was “very, very likely”
that he graduated high school without having learned
to read. Smith was unable to fill out job applications
without the assistance of his teachers. Evidence of
Smith’s adult illiteracy arose out of his employment;
one teacher in the school where Smith worked as a
custodian noted that he was unable to read notes
containing special cleaning requests. And we noted
12 Although Dr. Call heavily criticized Dr. Hopewell’s administration of the Vineland test directly to Smith, rather than a
caretaker, it remains the only formal assessment of adaptive
functioning conducted at the time of Smith’s Atkins trial. And,
as Dr. Hopewell explained, his analysis of Smith’s deficits in
adaptive functioning was not wholly reliant on the Vineland
assessment, because he determined many of Smith’s deficits to
be manifest without testing, and thus “pathological.” Dr. Hopewell
also made efforts to independently verify or corroborate Smith’s
deficits by speaking with his nurse, prison guards, and his
attorneys.
App.39a
the evidence that “Smith is completely illiterate” in
resolving Smith’s first habeas petition. Smith v.
Mullin, 379 F.3d at 941.
Only Smith presented a standardized assessment
of his adaptive behavior; contrary to the AAMR’s
recommendations, the State neither conducted nor
presented a single standardized assessment of Smith’s
adaptive behavior. AAMR, Mental Retardation: Definition, Classification, and Systems of Supports at 83
(10th ed. 2002) (“Regardless of the purpose of diagnosis . . . adaptive behavior should be measured with
a standardized instrument that provides normative
data on people without mental retardation.”). The evidence Smith presented, including the only formal
assessment of his deficits in adaptive functioning
corroborated by expert testimony and testimony from
Smith’s teachers and colleagues about his deficits,
thus overwhelmingly supports Smith’s claim that he
satisfies the third Murphy prong.
The evidence the State emphasizes on appeal to
refute Smith’s adaptive functioning argument carries
little weight in light of the Supreme Court’s warnings
against undue emphasis on “perceived adaptive
strengths,” Moore I, 137 S. Ct. at 1050, and “lay
stereotypes of the intellectually disabled,” id. at 1052.
As the Supreme Court explained in Moore I:
[T]he medical community focuses the adaptive-functioning inquiry on adaptive deficits.
E.g., AAIDD–11, at 47 (“significant limitations
in conceptual, social, or practical adaptive
skills [are] not outweighed by the potential
strengths in some adaptive skills”); DSM–5,
at 33, 38 (inquiry should focus on “[d]eficits
in adaptive functioning”; deficits in only
App.40a
one of the three adaptive-skills domains
suffice to show adaptive deficits).
Id. at 1050 (alterations in original); see also Brumfield,
135 S. Ct. at 2281 (“[I]ntellectually disabled persons
may have ‘strengths in social or physical capabilities,
strengths in some adaptive skill areas, or strengths
in one aspect of an adaptive skill in which they otherwise show an overall limitation.’” (quoting AAMR,
Mental Retardation: Definition, Classification, and
Systems of Supports at 8 (10th ed. 2002))).
Evidence that rests on lay stereotypes about the
intellectually disabled, such as the incorrect stereotypes that they cannot have jobs or relationships, is
similarly disfavored. See Moore II, 139 S. Ct. at 672. As
the Court explained in Moore I, “the medical profession has endeavored to counter lay stereotypes of the
intellectually disabled” and “[t]hose stereotypes, much
more than medical and clinical appraisals, should
spark skepticism.” 137 S. Ct. at 1052. In light of the
Supreme Court’s admonitions against consideration
of adaptive strengths and lay stereotypes, no rational
jury could decide that Smith failed to demonstrate by
a preponderance of evidence deficits in adaptive
functioning. All the evidence emphasized by the State
falls into one or both of those two disfavored categories.
The State first emphasizes the testimony of
Smith’s former prison case manager, Watts, who
testified that Smith could communicate with her and
“use manipulative behavior to get a more desirable
cell or cellmate.” However, Watts has no experience
with intellectual disabilities, and the State’s own expert
acknowledged at the proceeding that the intellectually
disabled can lie. Additionally, the Supreme Court has
“caution[ed] against reliance on adaptive strengths
App.41a
developed in prison.” Moore II, 139 S. Ct. at 671
(quotation omitted); Moore I, 137 S. Ct. at 1050 (citing
DSM-5 for the proposition that “[a]daptive functioning
may be difficult to assess in a controlled setting (e.g.,
prisons, detention centers); if possible, corroborative
information reflecting functioning outside those settings
should be obtained”).
Reliance on the testimony of Smith’s insurance
agent and work supervisor by the State is similarly
unavailing. As with Smith’s prison case manager, these
individuals have no experience in diagnosing intellectual disability, and based their opinions exclusively
on lay stereotypes. Moreover, the testimony of Smith’s
insurance agent concerned two interactions with Smith
over ten years earlier cumulatively taking roughly an
hour. The mere fact that Smith’s insurance company
wanted to hire him, or that his work supervisor did
not have problems with Smith’s performance of his
work duties, is of limited significance. The Supreme
Court has repudiated the notion that persons with
intellectual disability “never have . . . jobs” when “it
is estimated that between nine and forty percent of
persons with intellectual disability have some form
of paid employment.” Moore II, 139 S. Ct. at 672
(citations and quotations omitted). Even if clinically
informed, evidence of perceived adaptive strengths
such as the ability to hold down a job does not constitute
“evidence adequate to overcome . . . objective evidence
of [the individual’s] adaptive deficits.” Moore I, 137 S.
Ct. at 1050. As Dr. Hopewell explained in his testimony,
a work-related deficit in adaptive functioning does
not require the individual be incapable of work;
instead, the deficit is assessed against the population
App.42a
in general, the overwhelming majority of which can
perform work at a much higher level than can Smith.
Reference to the testimony of an assistant district
attorney from the team that prosecuted Smith’s initial
criminal trial does not overcome the strong medical
evidence of significant deficits in adaptive functioning.
The assistant district attorney testified that Smith
filed and presented several motions on his behalf, and
made good arguments in support of those motions.
But one of those motions was a request that the
prosecutor’s table be moved because Smith thought
the prosecutor was making faces at him, which the
prosecutor denied making at the Atkins trial. And
the Supreme Court has warned against using papers
an individual files in court as convincing evidence of
communication skills, especially where, as in this
case, evidence suggests the papers were written by a
cellmate. See Moore II, 139 S. Ct. at 671 (noting such
evidence “lacks convincing strength without a determination about whether [the individual] wrote the
papers on his own”). Further, Smith’s counsel from
his criminal trial refuted the State’s suggestion that
Smith played any role in his own defense, testifying
that Smith spent most of the trial drawing and did
not have “much of a clue about what was going on.”
The State next emphasizes Smith’s relationship
with Laura Dich to refute Smith’s evidence of deficits
in adaptive functioning. Such emphasis further evinces
impermissible “reliance upon . . . lay stereotypes of the
intellectually disabled,” as the Court has warned
against adopting the “incorrect stereotypes that persons
with intellectual disability never have [relationships].”
Moore II, 139 S. Ct. at 672 (quotations omitted). And
the State makes no efforts on appeal to provide any
App.43a
scientific or clinical justifications that would render
meaningful evidence of Smith’s relationships.13 Even
if we were to accept the lay stereotype evidence above
as relevant, the State’s failure to connect that evidence
to any areas of adaptive functioning renders the
evidence uncompelling in this context. See Van Tran,
764 F.3d at 612 (“[T]he [state court] unreasonably
determined that Van Tran was not intellectually disabled. The [state court] emphasized too heavily in its
analysis the facts of the crime, which are not relevant
to the analysis of most of the areas of adaptive
behavior, especially that of functional academics.”).
In sum, Atkins and its progeny prohibit states
from “disregard[ing] established medical practice.”
Moore I, 137 S. Ct. at 1049 (alteration in original).
“[O]ur precedent [does not] license disregard of current
medical standards.” Id. And our review of the record
indicates Smith could only fail to establish by a preponderance of evidence significant deficits in adaptive
functioning in at least two of the enumerated areas if
the jury disregarded medical standards in favor of lay
stereotypes and undue emphasis on adaptive strengths
in the precise manner prohibited by the Supreme
Court in Moore I and Moore II. Only speculation or
conjecture based on lay stereotype could support a
jury verdict finding Smith failed to demonstrate
13 The testimony of Dr. Call, the State’s primary expert witness,
provides no such basis. Dr. Call acknowledged that the intellectually disabled can lie, hold a job, work hard, drive, cook, clean,
use a telephone, marry, and love. To the extent the State would
rely upon Dr. Call’s testimony to refute Smith’s showing of
deficits in adaptive function, Dr. Call explicitly acknowledged
that he did not assess Smith using any “standardized instrument,” and could therefore not definitively testify to Smith’s
deficits in adaptive functioning.
App.44a
significant deficits in adaptive functioning. And “[w]hile
the jury may draw reasonable inferences from direct
or circumstantial evidence, an inference must be more
than speculation and conjecture to be reasonable.”
Torres, 461 F.3d at 1313 (quotation omitted).
Because Smith has demonstrated a reasonable
jury would have been compelled to conclude he satisfied
all three prongs of the Murphy test, we reverse the
district court’s denial of his habeas petition for relief
on this claim.
B
Because we grant habeas relief on Smith’s sufficiency of evidence Atkins challenge, we do not need
to address Smith’s Atkins challenge to the “present
and known” jury instruction or his claims of ineffective
assistance of counsel at his Atkins proceedings. See
Pruitt, 788 F.3d at 270 (“[Petitioner] raises three
alleged errors in support of his ineffective-assistanceof-counsel claim, but we need address only one—
whether trial counsel was ineffective at the penalty
phase in investigating and presenting evidence that
[petitioner] suffered from paranoid schizophrenia.”).
Were we to grant Smith relief on those claims, the
appropriate remedy would entitle Smith to relitigate
intellectual disability at a new Atkins trial. But we
hold Smith is intellectually disabled as a matter of law
and therefore constitutionally ineligible for execution.
Accordingly, any relief we could grant on Smith’s
remaining claims concerning his Atkins trial would
App.45a
be meaningless because the State is not permitted to
conduct a new Atkins trial.14
We must nevertheless consider Smith’s ineffective
assistance of counsel claim concerning counsel’s representation at the competency and resentencing trials.
The relief Smith seeks on that claim could require
the OCCA to vacate his sentences and order a new
competency trial. Only if Smith were found competent
could the OCCA then order resentencing, including
on Smith’s three murder convictions for which he was
not sentenced to death. Accordingly, we address this
claim and affirm the district court’s denial of habeas
relief.
Smith argues his counsel at the competency and
resentencing trials, and attendant direct appeal, was
constitutionally ineffective for failing to present to
the jury a video recording of an interview with Smith,
which he contends would have shown his humanity
and intellectual disability. Specifically, Smith argues
that counsel was ineffective in these proceedings for
failing to call Anna Wright, a mental health worker
at the Oklahoma County jail, to testify and sponsor
the introduction of a video recording of Smith speaking.
14 We also need not address Smith’s cumulative error argument
for purported aggregated constitutional violations. “A cumulativeerror analysis merely aggregates all the errors that individually
have found to be harmless, and therefore not reversible, and it
analyzes whether their cumulative effect on the outcome of the
trial is such that collectively they can no longer be determined to
be harmless.” Hanson v. Sherrod, 797 F.3d 810, 852 (10th Cir.
2015) (quotation omitted). Because we reverse only on Smith’s
claim that the Eighth Amendment prohibits his execution, there
are no harmless errors to aggregate. Id. at 853 (“Because [petitioner] has failed to prove at least two errors, we have no
occasion to apply a cumulative error analysis.”).
App.46a
Wright assisted in a video interview of Smith conducted in preparation for one of Smith’s prior cell
mate’s clemency hearing. Smith claims this video
would have made clear his intellectual disability and
demonstrated his humanity to the juries in those
proceedings. Smith also attaches an auxiliary ineffective assistance of appellate counsel claim to this
failure, arguing his appellate counsel at resentencing
was ineffective for failing to raise the deficiency of
his trial counsel on direct appeal.
1
The Sixth Amendment guarantees a criminal
defendant “the right . . . to have Assistance of Counsel
for his defense.” U.S. Const. amend. VI. Criminal
defendants’ constitutional right to counsel encompasses
post-conviction Atkins proceedings. Hooks, 689 F.3d
at 1184. (“We have concluded that defendants in Atkins
proceedings have the right to effective counsel secured
by the Sixth and Fourteenth Amendments.”).
The right to counsel requires a minimum quality
of advocacy from a professional attorney. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80
L.Ed.2d 674 (1984). A defendant can establish a constitutional violation of the right to counsel where
“counsel’s performance was deficient,” and “the deficient
performance prejudiced the defense.” Id. at 687, 104
S.Ct. 2052. “These two prongs may be addressed in
any order, and failure to satisfy either is dispositive.”
Hooks, 689 F.3d at 1186.
To establish deficient performance, “the defendant
must show that counsel’s representation fell below
an objective standard of reasonableness” as assessed
from counsel’s perspective at the time. Strickland, 466
App.47a
U.S. at 688, 104 S.Ct. 2052. In this way, “hindsight is
discounted by pegging adequacy to counsel’s perspective
at the time investigative decisions are made.” Rompilla,
545 U.S. at 381, 125 S.Ct. 2456 (quotation omitted). In
so doing, we determine “whether an attorney’s representation amounted to incompetence under prevailing
professional norms, not whether it deviated from best
practices or most common custom.” Richter, 562 U.S.
at 105, 131 S.Ct. 770. And “counsel is strongly presumed to have rendered adequate assistance and made
all significant decisions in the exercise of reasonable
professional judgment.” Hooks, 689 F.3d at 1168
(quotation omitted); see also Strickland, 466 U.S. at
689, 104 S.Ct. 2052 (“[A] court must indulge in a
strong presumption that counsel’s conduct falls within
the wide range of reasonable professional assistance;
that is, the defendant must overcome the presumption that, under the circumstances, the challenged
action might be considered sound trial strategy.”
(quotation omitted)). “In other words, [counsel’s performance] must have been completely unreasonable,
not merely wrong.” Byrd, 645 F.3d at 1168 (quotation
omitted).
“[T]o establish prejudice, the defendant must show
that, but for counsel’s deficient performance, there is
a reasonable probability the result of the proceeding
would have been different.” Michael Smith, 824 F.3d
at 1249. “[I]n the capital-sentencing context, if the
petitioner demonstrates that there is a reasonable
probability that at least one juror would have refused
to impose the death penalty, the petitioner has
successfully shown prejudice under Strickland.” Grant,
886 F.3d at 905 (quotation omitted). “The likelihood
of a different result must be substantial, not just con-
App.48a
ceivable.” Richter, 562 U.S. at 112, 131 S.Ct. 770. To
assess “whether an inadequate investigation prejudiced a habeas petitioner, we reweigh the evidence
on both sides, this time accounting for the petitioner’s
proposed additions,” and “account for how the state
would have responded to the omitted evidence.” Postelle
v. Carpenter, 901 F.3d 1202, 1217 (10th Cir. 2018)
(quotation omitted), cert denied, ___ U.S. ___, 139
S.Ct. 2668, 204 L.Ed.2d 1073 (2019).
In cases in which the OCCA has adjudicated a
Strickland claim on the merits, our review of the
OCCA decision is “doubly deferential” because “[w]e
take a highly deferential look at counsel’s performance
through the deferential lens of [AEDPA].” Pinholster,
563 U.S. at 190, 131 S.Ct. 1388 (citations and quotations omitted). Applying, AEDPA deference, we must
“determine whether reasonable jurists could agree
with the OCCA that [Smith’s] trial and appellate
counsels acted reasonably.” Johnson v. Carpenter,
918 F.3d 895, 900 (10th Cir. 2019). But, as explained
supra, we do not apply this double deference to an
unadjudicated Strickland prong if the OCCA’s decision rests entirely on a single prong. See, e.g., Porter,
558 U.S. at 39, 130 S.Ct. 447.
2
The parties agree that the OCCA adjudicated
the merits of Smith’s ineffective assistance of counsel
claims concerning Wright’s testimony and the attendant
video. See OCCA Resentencing and Competency Op.
at 9-10 n.5. The OCCA addressed deficient performance
and prejudice, holding both that Smith failed to
demonstrate counsel’s purported failings amounted
to more than a strategic decision and that Smith
App.49a
failed to demonstrate the omitted materials are “of a
character substantially different from the evidence
that trial counsel ultimately chose to use,” rendering
their omission immaterial. Id. The OCCA also explained
Wright had characterized her interactions with Smith
as limited, and that the interview’s persuasive force
on the question of Smith’s intellectual functioning
was debatable. Id.
Smith nonetheless contends we should review
these ineffective assistance claims de novo because
the OCCA “misidentified” the allegations by holding
Smith alleged mere strategic error rather than counsels’
failures to investigate and prepare. He relies on
Chadwick v. Janecka, 312 F.3d 597 (3d Cir. 2002), in
which that court stated “if an examination of the
opinions of the state courts shows that they misunderstood the nature of a properly exhausted claim and
thus failed to adjudicate that claim on the merits,
the deferential standards of review in AEDPA do not
apply.” Id. at 606. Smith explains that he couched his
ineffective assistance claim in terms of counsels’
failure to develop, prepare, and investigate for trial.
But the OCCA need not accept an inaccurate
characterization of a claim to adjudicate that claim
on the merits. And the OCCA did not misconstrue
Smith’s claim by concluding that he alleges only an
imprecise strategic decision by counsel. OCCA Resentencing and Competency Op. at 9-10. Smith does not
and cannot dispute that his counsel was aware of
Wright and the video testimony because counsel provided notice that she intended to present Wright at
the competency and resentencing trials and intended to
have her authenticate and sponsor the video recording
in question. Any failure to present the evidence thus
App.50a
cannot amount to a failure to investigate; counsel
merely chose not to present the evidence after investigating. The OCCA’s presumption that counsel made
an appropriate strategic decision not to present the
evidence thus properly understands Smith’s argument.
See Burt v. Titlow, 571 U.S. 12, 22-23, 134 S.Ct. 10, 187
L.Ed.2d 348 (2013) (noting the strong presumption
that counsel “made all significant decisions in the
exercise of reasonable professional judgment” (quotation omitted)). Accordingly, because the OCCA sufficiently understood Smith’s resentencing and competency ineffective assistance claims to have adjudicated
those claims on the merits, we afford “both the state
court and the defense attorney the benefit of the
doubt” required by AEDPA. Woods v. Donald, ___
U.S. ___, 135 S. Ct. 1372, 1376, 191 L.Ed.2d 464
(2015) (quotation omitted).
Applying this standard, we reject Smith’s claim
that counsel inadequately investigated and prepared
for trial by failing to submit evidence of which counsel was fully aware. Smith submits an affidavit from
his trial counsel, attesting that her failure to present
Wright and the video was due to a “lack of investigation and preparation.” We may not consider this
affidavit on habeas review because it was not presented to the OCCA. Pinholster, 563 U.S. at 181, 131
S.Ct. 1388 (“[R]eview under § 2254(d)(1) is limited to
the record that was before the state court that
adjudicated the claim on the merits.”).15 Smith con15 Smith asserts on appeal that we may consider the affidavits
of trial and appellate counsel because the OCCA never adjudicated
Smith’s allegations of deficient performance. This assertion
fails for the same reason as Smith’s efforts to free this claim
from the confines of AEDPA deference: the OCCA’s rejection of
App.51a
ceded before the OCCA that trial counsel was aware
of Wright and the video because counsel provided notice
that she intended to present Wright and the video at
the hearings in question.
This analysis would not change even were we to
consider the affidavits submitted for the first time on
habeas review. The affidavit from Smith’s trial counsel
during the resentencing and competency hearings
states only that trial counsel could not recall why she
did not call Wright to testify. Because, at best, the
“evidence establishes that there is no discernable
explanation for counsel’s failure to call” the witness
in question, Smith “most certainly ha[s] not overcome the strong presumption that counsel’s conduct
fell within the wide range of reasonable professional
assistance.” Sallahdin v. Mullin, 380 F.3d 1242, 124849 (10th Cir. 2004) (quotation omitted).
Smith contends the OCCA’s deficiency determination is unreasonable because the OCCA declined
to identify any strategic justification for the failure of
his counsel to present Wright’s testimony and the
attendant video. But “[i]t should go without saying
that the absence of evidence cannot overcome the
strong presumption that counsel’s conduct fell within
the wide range of reasonable professional assistance.”
Titlow, 571 U.S. at 23, 134 S.Ct. 10 (quotation omitted).
That presumption places “the burden to show that
counsel’s performance was deficient . . . squarely on”
Smith, id. at 22-23, 134 S.Ct. 10, and Smith fails to
Smith’s characterization of his claim does not preclude it from
adjudicating that claim on the merits. And the OCCA plainly
did adjudicate this claim on the merits, holding that Smith
failed to satisfy either prong of the Strickland analysis. OCCA
Resentencing and Competency Op. at 9-10.
App.52a
identify any support in the record to carry that
burden. Moreover, after review of the video recording,
we do not consider the OCCA’s conclusion that the
“persuasive force” of the evidence was “debatable,”
OCCA Resentencing and Competency Op. at 10 n.5,
to be an “unreasonable determination,” § 2254(d)(2).
Relying upon Bullock v. Carver, 297 F.3d 1036
(10th Cir. 2002), Smith also argues that an “objectively
unreasonable” strategic decision may satisfy the
deficient performance prong of the Strickland analysis.
Id. at 1051. But Smith has failed to carry his burden
to establish the objectively unreasonable nature of
that decision in light of the OCCA’s determination
that the evidence was of little utility because of
Wright’s limited interactions with Smith and the
debatable value of the video.16
Accordingly, we conclude that Smith has failed
to demonstrate ineffective assistance of trial counsel
for failure to call Wright as a witness to sponsor the
introduction of the video interview of Smith. And
16 Moreover, even if Smith’s counsel performed deficiently,
Smith fails to demonstrate the OCCA’s prejudice determination
was unreasonable. Smith contends the video renders obvious
his humanity and intellectual disability, and emphasizes the
uniquely persuasive nature of video evidence. “The likelihood of
a different result must be substantial, not just conceivable.”
Richter, 562 U.S. at 112, 131 S.Ct. 770. And Smith fails to
demonstrate that the OCCA obviously erred in concluding the
video recording did not present substantially different evidence
of Smith’s intellectual disability and humanity from the
materials counsel did use at the resentencing and competency
proceedings. See Johnson, 913 F.3d at 902 (concluding the
omission of video evidence was not prejudicial because the jury
had already heard significant testimony in support of the issue
that the omitted video evidence would have bolstered).
App.53a
because trial counsel’s performance was neither deficient nor prejudicial for failing to introduce the evidence in question, Smith’s ineffective assistance of
appellate counsel necessarily fails. Johnson, 918 F.3d
at 906 (“[B]ecause we conclude that trial counsel was
not deficient . . . [Petitioner’s] auxiliary claim cannot
succeed. Appellate counsel cannot be ineffective for
omitting an unsuccessful issue on appeal.”).17
IV
For the foregoing reasons, we REVERSE in part
and AFFIRM in part the district court’s decision
denying Smith’s § 2254 petition for a writ of habeas
corpus. We REMAND with instructions to grant a
conditional writ vacating Smith’s death sentence and
remanding to the State.
17 Because we reject as unmeritorious Smith’s ineffective assistance claim, we also reject as unnecessary Smith’s request for
an evidentiary hearing on the question.
App.54a
MEMORANDUM OPINION OF THE
UNITED STATES DISTRICT COURT FOR
THE WESTERN DISTRICT OF OKLAHOMA
(JULY 13, 2017)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
________________________
RODERICK L. SMITH,
Petitioner,
v.
TERRY ROYAL,
Warden, Oklahoma State Penitentiary,
Respondent.1
________________________
Case No. CIV-14-579-R
Before: David L. RUSSELL,
United States District Judge.
Petitioner, Roderick L. Smith, a state court prisoner, has filed a Petition for a Writ of Habeas Corpus
seeking relief pursuant to 28 U.S.C. § 2254. Doc. 18.
This is Petitioner’s second habeas petition.
In 1994, in Oklahoma County District Court Case
No. CF-1993-3968, Petitioner was tried by jury for
1 Pursuant to Fed. R. Civ. P. 25(d), Terry Royal, who currently
serves as warden of the Oklahoma State Penitentiary, is hereby
substituted as the proper party respondent.
App.55a
the murders of his wife and her four children. Petitioner
was found guilty and was sentenced to death on all
five counts. In 1998, after an unsuccessful pursuit for
relief in the state courts, Petitioner initiated his first
habeas corpus action, and in 2002, the Court denied
Petitioner relief. Smith v. Gibson, No. CIV-98-601-R
(W.D. Okla. Jan. 10, 2002) (unpublished). Six months
later, the Supreme Court held that the Eighth Amendment prohibits the execution of a mentally retarded
offender, Atkins v. Virginia, 536 U.S. 304, 321 (2002),
and in March 2004,2 Petitioner was given the opportunity to prove that he is mentally retarded.3 A state
court jury concluded that he is not (O.R. VI, 1115),
and the Oklahoma Court of Criminal Appeals (hereinafter “OCCA”) affirmed the jury’s verdict. Smith v.
State, No. O-2006-683 (Okla. Crim. App. Jan. 29, 2007)
(unpublished). In July 2004, the Tenth Circuit affirmed
this Court’s denial of relief with respect to Petitioner’s
convictions, but found that Petitioner was entitled to
a new sentencing proceeding due to ineffective assistance of counsel. Smith v. Mullin, 379 F.3d 919 (10th
Cir. 2004).
2 This was actually Petitioner’s second mental retardation trial.
The first one, held in November 2003, ended in a mistrial (O.R.
V, 993-98).
3 In Hall v. Florida, 572 U.S. ___, 134 S. Ct. 1986, 1990 (2014),
the Supreme Court began using the term “intellectual disability”
instead of “mental retardation.” Nonetheless, for purposes of
simplicity and consistency, the Court will address Petitioner’s
claims utilizing the old terminology which was used throughout
Petitioner’s state court proceedings. See Howell v. Trammell,
728 F.3d 1202, 1206 n.1 (10th Cir. 2013); Hooks v. Workman,
689 F.3d 1148, 1159 n.1 (10th Cir. 2012).
App.56a
In 2009, Petitioner had a jury trial to determine
to his competence. Found competent (O.R. XII, 2276),
Petitioner was then resentenced in 2010. This time
around, the jury imposed two death sentences and
three sentences of life without the possibility of
parole (O.R. XIII, 2611-30). Petitioner appealed these
sentences to the OCCA. The OCCA affirmed in a
published opinion. Smith v. State, 306 P.3d 557
(Okla. Crim. App. 2013), cert. denied, 134 S. Ct. 2662
(2014). Petitioner was unsuccessful in his pursuit of
post-conviction relief. Smith v. State, No. PCD-2010660 (Okla. Crim. App. Feb. 13, 2014) (unpublished).
Petitioner presents seven grounds for relief. His
first three grounds relate to the state court determination that he is not mentally retarded. Ground Four is
a challenge to the legal representation he received at
his competency trial and resentencing. In Grounds
Five and Six, Petitioner argues that execution for his
crimes would violate the Eighth Amendment’s prohibition against cruel and unusual punishment. His final
ground alleges cumulative error. Respondent has
responded to the petition and Petitioner has replied.
Docs. 35 and 43. In addition to his petition, Petitioner
has filed motions for discovery and an evidentiary
hearing. Docs. 20 and 38. After a thorough review of
the 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
herein, Petitioner is not entitled to his requested relief.
App.57a
I.
A.
Standard of Review
Exhaustion as a Preliminary Consideration
The exhaustion doctrine, a matter of comity which
has long been a part of habeas corpus jurisprudence,
requires the Court to consider in the first instance
whether Petitioner has presented his grounds for
relief to the OCCA. As the Supreme Court stated 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.” The exhaustion
doctrine is set forth in 28 U.S.C. § 2254(b). Section
2254(b)(1)(A) prohibits the Court from granting
habeas relief in the absence of exhaustion (although
Section 2254(b)(1)(B) sets forth two limited exceptions to this rule), but Section 2254(b)(2) expressly
authorizes the Court to deny habeas relief “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, the Court must
also examine how the OCCA adjudicated each of
Petitioner’s grounds for relief, i.e., whether the OCCA
addressed the merits of Petitioner’s grounds or declined
to consider them based on a state procedural rule. “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
App.58a
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.
Limited Merits Review
When the OCCA has addressed the merits of one
of Petitioner’s grounds for relief, the Court reviews
that ground in accordance with the standard of relief
set forth in 28 U.S.C. § 2254(d). Pursuant to that section
of the Antiterrorism and Effective Death Penalty Act
of 1996 (hereinafter “AEDPA”), in order for Petitioner
to obtain relief, he must show that the OCCA’s
adjudication of a claim either
(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.
See Cullen v. Pinholster, 563 U.S. 170, 181 (2011) (ack-
nowledging that “[t]he petitioner carries the burden
of proof”). The very focus of this statutory provision
is the reasonableness of the OCCA’s decision. “The
question under AEDPA is not whether a federal court
believes the [OCCA’s] determination was incorrect but
whether that determination was unreasonable—a
substantially higher threshold.” Schriro v. Landrigan,
550 U.S. 465, 473 (2007). In other words, “[i]t is not
enough that [this] [C]ourt, in its independent review
App.59a
of the legal question, is left with a firm conviction
that the [OCCA] was erroneous.” What is required is
a showing that the OCCA’s decision is “objectively
unreasonable.” Lockyer v. Andrade, 538 U.S. 63, 7576 (2003) (internal quotation marks and citations
omitted).
The Supreme Court has repeatedly acknowledged
that Section 2254(d) “‘erects a formidable barrier to
federal habeas relief for prisoners whose claims have
been adjudicated in state court[,]’” and that “[i]f [it]
is difficult to meet, that is because it was meant to
be.” White v. Wheeler, 577 U.S. ___, 136 S. Ct. 456,
460 (2015) (quoting Burt v. Titlow, 571 U.S. ___, 134
S. Ct. 10, 16 (2013)); Harrington v. Richter, 562 U.S.
86, 102 (2011). Section 2254(d) “stops short of imposing
a complete bar on federal-court relitigation of claims
already rejected in state proceedings.” Richter, 562
U.S. at 102. What remains, then, is a very narrow
avenue for relief, one that permits relief only “where
there is no possibility fairminded jurists could disagree that the [OCCA’s] decision conflicts with [the
Supreme] Court’s precedents.” Id. (emphasis added).
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. As a condition for obtaining
habeas corpus from a federal court, a state
prisoner must show that the state court’s
ruling on the claim being presented in federal
court was so lacking in justification that there
was an error well understood and comprehended in existing law beyond any possibility
for fairminded disagreement.
App.60a
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.
II.
A.
Analysis
Ground One: Sufficiency
(Mental Retardation)
of
the
Evidence
Petitioner’s first ground for relief is an Atkins
claim. He argues that because he is mentally retarded,
his two death sentences cannot stand. The question
of whether or not Petitioner is mentally retarded was
submitted to a jury in 2004. The twelve-member jury
listened to five days of testimony from twenty-three
witnesses, ultimately concluding that Petitioner is not
mentally retarded. On appeal to the OCCA, Petitioner
challenged the jury’s verdict, claiming it was contrary
to the clear weight of the evidence. The OCCA denied
relief on the merits. Smith, No. O-2006-683, slip op.
at 6-11.
In denying Petitioner relief, the OCCA acknowledged that in mental retardation proceedings, Petitioner has the burden to prove by a preponderance of
the evidence “‘1) that he functions at a significantly
sub-average intellectual level that substantially limits
his ability to understand and process information, to
communicate, to learn from experience or mistakes,
to engage in logical reasoning, to control impulses,
and to understand the reactions of others; 2) that his
mental retardation manifested itself before the age of
18; and 3) that he has significant limitations in
adaptive functioning in at least two of the nine listed
skill areas [communication; self-care; social/interper-
App.61a
sonal skills; home living; self-direction; academics;
health and safety; use of community resources; and
work].’” Id. at 6 & n.8 (quoting Myers v. State, 130
P.3d 262 (Okla. Crim. App. 2005), for the definition
of mental retardation developed by the OCCA in
Murphy v. State, 54 P.3d 556, 567-68 (Okla. Crim.
App. 2002)).4
“When a defendant challenges the sufficiency of
the evidence following a jury verdict finding him not
mentally retarded, [the OCCA] reviews the evidence
in the light most favorable to the State to determine
if any rational trier of fact could have reached the
same conclusion.” Smith, No. O-2006-683, slip op. at
6. The Tenth Circuit has found this to be “the
relevant constitutional standard.” Hooks, 689 F.3d at
1166. “Put a different way, if any rational trier of
fact could have found that [Petitioner] failed to
establish, by a preponderance of the evidence, that
he is mentally retarded, then the jury verdict must
be upheld.” Id. This is a mixed question of law and
fact. Id. at 1165.
Although the standard of review applied to a jury
verdict in a mental retardation proceeding is a modification of the standard set out in Jackson v. Virginia,
443 U.S. 307 (1979), the deference is the same: a jury
verdict is given substantial deference. Because it is
the jury’s job “to resolve conflicts in the testimony, to
4 Before Oklahoma enacted Atkins legislation, the OCCA defined
mental retardation and set forth the procedures for mental
retardation proceedings in Murphy. Because Oklahoma’s Atkins
statute was not enacted until July 1, 2006, see Okla. Stat. tit.
21, § 701.10b, some two years after Petitioner’s mental retardation
trial, Petitioner’s proceeding was governed by Murphy. See
Hooks, 689 F.3d at 1165 & nn.4 & 5.
App.62a
weigh the evidence, and to draw reasonable inferences
from basic facts to ultimate facts[,]” its verdict will be
“impinge[d] . . . only to the extent necessary to guarantee the fundamental protection of due process of law.”
Id. at 319. And, in the habeas context, “a second
layer of deference” is added. This Court does “not
directly review the jury’s verdict[,]” but looks to the
OCCA’s resolution of the sufficiency claim to determine if “the OCCA correctly identified the governing
legal principle from Jackson and reasonably applied it
to the facts of [Petitioner’s] case.” Hooks, 689 F.3d at
1167. Therefore, in order to obtain relief, Petitioner
must overcome these layers of deference and show
that all fairminded jurists would agree that the
OCCA “got it wrong.” Lockett v. Trammel [sic], 711
F.3d 1218, 1231 (10th Cir. 2013). See also Frost v.
Pryor, 749 F.3d 1212, 1225 (10th Cir. 2014) (“If . . . some
fairminded jurists could possibly agree with the
[OCCA’s] decision, then it was not unreasonable and
the writ should be denied.”).
In reviewing the OCCA’s resolution of this claim,
the Court can only consider the evidence which the
OCCA had before it. Pinholster, 563 U.S. at 181; Hooks,
689 F.3d at 1167. Because Petitioner’s Ground One is
a challenge to the jury’s verdict, the evidence before
the OCCA was the evidence that was presented to
the jury. Despite these review parameters, Petitioner’s
argument for relief relies heavily on evidence which
was not presented at his mental retardation trial. The
Court will not consider this evidence.5 The following
is a summary of the trial evidence.
5 In his reply, Petitioner states that with one exception (Attachment 5, Report of Dr. Terese Hall, dated September 12, 2005),
all of his later developed evidence is simply “additional confirming
App.63a
Petitioner’s Trial Evidence
Two experts, Dr. Clifford Alan Hopewell and Dr.
Fred Smith, testified on Petitioner’s behalf. Dr. Hopewell, a clinical neuropsychologist who had been
involved in Petitioner’s case since 1997, testified that
in his opinion, Petitioner is “within the range of mild
mental retardation” (Tr. 3/9/04, 30, 42, 46). Dr.
Hopewell tested Petitioner’s intelligence quotient (I.Q.)
using the third revision of the Wechsler Adult
Intelligence Scale (WAIS-III). Petitioner’s full scale
score was a 55, a score which reflected significantly
sub-average intellectual functioning (id. at 55-56).
Dr. Hopewell testified that this score substantially
limits Petitioner’s ability to understand and process
information, to communicate, to learn from experiences
or mistakes, to engage in logical reasoning, to control
impulses, and to understand the reactions of others
(id. at 57).
To assess Petitioner’s adaptive functioning, Dr.
Hopewell administered the Vineland Test6 and the
evidence” which this Court can consider once it determines that
he has satisfied Section 2254(d). Reply at 1-3. This is incorrect.
A jury verdict cannot be invalidated based on evidence which it
did not hear. Matthews v. Workman, 577 F.3d 1175, 1185 (10th
Cir. 2009) (“[I]t makes no sense for us, in reviewing whether a
jury’s verdict was based on sufficient evidence, to consider facts
the jury never heard.”). Although Petitioner asserts that Dr. Hall’s
report is an exception to Pinholster because it was presented to
the OCCA in support of a trial counsel ineffectiveness claim,
the fact remains that this Court cannot consider later developed
evidence when evaluating the OCCA’s determination of a
sufficiency of the evidence claim. Hooks, 689 F.3d at 1168 n.7.
6 With the exception of communication, Dr. Hopewell gave only
general testimony about the adaptive functioning he assessed
with the Vineland. Although he testified that the Vineland tests
App.64a
Wide Range Achievement Test (WRAT-III),7 concluding
that Petitioner has significant deficits in all areas
(Tr. 3/9/04, 61, 65, 68, 130). Regarding communication,
Dr. Hopewell found that Petitioner was “impoverished.”
While Petitioner could talk and communicate about
basic things, Dr. Hopewell described Petitioner’s
communication skills as limited and lacking in both
detail and spontaneity. He testified that Petitioner’s
communication was at an eight-year-old level (id. at
62-64). Regarding academics (as tested with the
WRAT-III), Dr. Hopewell testified that Petitioner
was at the kindergarten or first-grade level in spelling
and writing (id. at 65-66). He also noted that Petitioner
is functionally illiterate (id. at 66-67).
Dr. Hopewell testified that he had seen evidence
that Petitioner had this condition before age 18 and
that he did not believe that Petitioner was malingering
or faking his condition (id. at 71, 73, 77).
five areas of adaptive functioning, he did not specify which ones,
but simply stated that Petitioner tested out at an eight-year-old
level on some things “like communication . . . and being able to
do things and fix things and so forth” and at a five-year-old
level “on a couple of things” (Tr. 3/9/04, 64). When asked if he
believed that Petitioner had deficits in at least five of the areas
of adaptive functioning, he responded that Petitioner had
deficits in all of them (id. at 67-68). On cross-examination of Dr.
John Call, defense counsel elicited the results of the Dr. Hopewell’s
Vineland testing in three primary areas: communication at four
years, nine months; daily living skills at five years, eight
months; and socialization at five years, eight months (Tr. 3/15/04,
49-51).
7 Dr. Hopewell testified that the WRAT tests reading, writing,
and math (Tr. 3/9/04, 65). Dr. Call testified that it tests reading,
spelling, and math (Tr. 3/15/04, 27).
App.65a
Dr. Smith, a psychologist with the Oklahoma
Department of Corrections, testified about his evaluation and testing of Petitioner in 1997. On the Wechsler
Adult Intelligence Scale–Revised (WAIS-R), Petitioner’s
full scale I.Q. score was a 65, and on the Standard
Progressive Matrices, also known as the Raven’s,
Petitioner’s I.Q. score was between 69 and 78. Dr.
Smith testified that Petitioner’s score on the WAIS-R
was indicative of mental retardation (Tr. 3/10/04, 15762). Although Dr. Smith believed that Petitioner was
“a little bit brighter than what he tested out to be on
the [WAIS-R],” he did not believe that Petitioner was
faking. In his opinion, Petitioner “is consistent with
mental retardation in his general level of functioning
and speech” (id. at 163, 167-68). Noting that adaptive
functioning is difficult to measure in a structured
prison setting, Dr. Smith did not determine if Petitioner
had any adaptive functioning deficits (id. at 164, 18687). Ultimately, Dr. Smith testified that Petitioner
was “right on [the] cusp” of being mentally retarded,
but that he would “vote for mental retardation” (id. at
168).
Although all of Petitioner’s school records except
his high school transcript had been destroyed, school
administrators and teachers testified that Petitioner
was in special education classes beginning in elementary school (Tr. 3/9/04, 202-04; Tr. 3/10/04, 8-11, 14;
Def.’s Exs. 1-3). Paul Preston, who taught high school
special education, was Petitioner’s teacher for four
years. He described Petitioner as having very low/
limited abilities. Although Petitioner received custodial training during high school, Mr. Preston testified
that he would be surprised to learn that Petitioner
worked as a janitorial supervisor because he did not
App.66a
believe that Petitioner had the skills for such a position (Tr. 3/10/04, 22, 28, 31, 43). Another special
education teacher, Mona Autry, also had Petitioner
as a student. She testified that Petitioner functioned
in her classes at about a third grade level. Although
Petitioner tried hard, Ms. Autry testified that
Petitioner was one of her lower functioning students.
Like Mr. Preston, she testified that she would be
“[e]xtremely surprised” to learn that Petitioner was
able to become a head janitor (id. at 94, 99-101, 104,
114). Both Ms. Autry and Mr. Preston acknowledged
Petitioner’s very limited ability to read (id. at 34, 100).
Madeline Corsoro was the music teacher at the
elementary school where Petitioner was employed as
head custodian. They worked together for about five
years. Petitioner was responsible for cleaning her
room and he also helped her with other things from
time to time. Ms. Corsoro testified that through her
interaction with Petitioner, she discovered that he
could not read (Tr. 3/10/04, 45-53; Def.’s Ex. 4).
Although witnesses testified that Petitioner was
able to drive a car, Lee Frizzell, an Oklahoma Department of Public Safety employee, testified that Petitioner
did not have a driver’s license (Tr. 3/9/04, 112-14;
Tr. 3/10/04, 63, 66, 75-76; Tr. 3/12/04, 41).
Petitioner’s cousin, Chris Scott, testified that
Petitioner was a loner, that he was slower than everyone else, that he did not read, and that Petitioner’s
mother did everything for him (Tr. 3/10/04, 69-71).
For about a year, Mr. Scott worked as a janitor with
Petitioner. Mr. Scott testified that although Petitioner
was his supervisor, Petitioner did not perform supervisory duties. Mr. Scott’s mother, who hired Petitioner,
App.67a
handled the paperwork, ordering, and time cards (id.
at 71-74).
Jack Fisher, an attorney who had previously
represented Petitioner, described Petitioner “like an
11 or 12-year-old child” whose “main concern in life
is that he have pens and coloring books.” Mr. Fisher
identified a folder containing numerous coloring pages
Petitioner had colored and sent to him. Mr. Fisher
testified that he purchased coloring books for Petitioner
and sent him money to buy felt pens at the prison
commissary. Mr. Fisher did not bother sending Petitioner any books because Petitioner “can’t read more
than just maybe a few words.” Mr. Fisher testified
that Petitioner was not smart enough to make the
decision to malinger (Tr. 3/10/04, 147-50, 151, 155;
Def.’s Ex. 7).
Norman Cleary, who had shared a cell with
Petitioner over the years, testified about his interaction with Petitioner in prison (Def.’s Ex. B at 4).8
When Petitioner first moved into his cell, Mr. Cleary
knew “within 30 minutes . . . that [Petitioner] had some
problems” (id. at 5). He testified that Petitioner could
not read or write, and although he tried to teach
Petitioner to read, “it was hopeless” (id. at 5-6, 7, 911). Mr. Cleary testified that Petitioner would color
in his coloring books and watch TV all day (id. at 78). Mr. Cleary helped Petitioner write and address
letters and fill out his canteen slips (id. at 12-13, 158 Because Mr. Cleary was scheduled to be executed on February 17, 2004, he gave videotaped testimony on February 4,
2004, and a transcript of his testimony was then read to the
jury (O.R. V, 1013-19; Tr. 3/10/04, 196). The transcript was
preserved for the record as Defendant’s Exhibit B.
App.68a
16). Mr. Cleary testified that Petitioner could not tell
time (except with a digital clock) or play simple games
(except for Tic-Tac-Toe) (id. at 13-15, 29-30). When
Petitioner would frequently cut himself and do nothing
to address the bleeding, Mr. Cleary administered the
first aid Petitioner needed (id. at 17-18). Mr. Cleary
testified that other inmates took financial advantage
of Petitioner (id. at 18-20).
Petitioner’s mother, Eva Cates, testified that
Petitioner “was very, very slow” from the start. For
him, walking, talking, and potty training were all
delayed developments (Tr. 3/11/04, 5-7). Ms. Cates
testified that other kids were cruel and would tease
Petitioner because he acted like a two-year-old (id. at
7). Ms. Cates testified that she was told that Petitioner
was placed in special education classes (id. at 8). She
did not teach Petitioner to cook because she “didn’t
want him to play with fire when [she] wasn’t there” (id.
at 9).
State’s Trial Evidence
The State retained Dr. John Call, a forensic
psychologist, to review Dr. Hopewell’s opinion and conduct his own evaluation (Tr. 3/15/04, 3-7). It was Dr.
Call’s opinion that no reliable documentation existed
to indicate that Petitioner was mentally retarded (id.
at 39, 67).
Dr. Call disagreed with Dr. Hopewell’s conclusion
that Petitioner was not malingering. To determine
if Petitioner was malingering, Dr. Hopewell administered two tests, the Test of Memory and Malingering
(TOMM) and the 15-Item Memory Test. Petitioner’s
results on both of these tests showed that Petitioner
was malingering; however, Dr. Hopewell discounted
App.69a
these results due to Petitioner’s low score on the
WAIS-III. Dr. Call testified that there was no research
to support Dr. Hopewell’s disregard for the malingering
test results based on Petitioner’s low I.Q. (id. at 1222, 24-25, 37). When Dr. Call himself administered
the WAIS-III and the TOMM to Petitioner, he received
the same results as Dr. Hopewell; however, giving
appropriate consideration to Petitioner’s scores on
the TOMM, Dr. Call testified that Petitioner’s WAISIII score must be deemed invalid due to malingering.
In sum, because there was evidence that Petitioner
was malingering during both testing sessions, Dr.
Call testified that neither his results nor Dr. Hopewell’s
results could be considered valid I.Q. assessments
(id. at 25-26, 38-39, 69-70).
Dr. Call also took note of other I.Q. tests Petitioner
had taken. In 1994, Petitioner received an I.Q. score
of 73, and in 1997, he received a 70. Dr. Call testified
that the drop from a 73 in 1994 to a 55 in 2003 was
significant, and he explained how easy it would be to
malinger on the WAIS test (Tr. 3/15/04, 34-38).
Dr. Call disagreed with Dr. Hopewell’s use of the
Vineland Test to assess Petitioner’s adaptive functioning. Because Dr. Hopewell administered the test
to Petitioner, and not to a third-party observer like a
parent or a teacher as the Vineland was specifically
designed, Dr. Call testified that Dr. Hopewell’s assessment of adaptive functioning was also invalid. Acknowledging that adaptive functioning is extremely difficult to assess in a prison setting, as Dr. Smith likewise testified, Dr. Call did not do any formal adaptive
functioning assessment of Petitioner. He did, however,
testify that the Adaptive Behavior Assessment System,
Second Edition (ABAS-II), could have been used.
App.70a
Based on his interviews with certain prison personnel
and his own interaction with Petitioner, Dr. Call did
not believe that Petitioner had any deficiencies in any
particular area of adaptive functioning (id. at 22-25,
30-34, 48-49).
Like Dr. Hopewell, Dr. Call also gave Petitioner
the WRAT-III. Although Dr. Call expected results
similar to those received by Dr. Hopewell, the results
were not the same. One major difference was in spelling. When Dr. Call administered the test, Petitioner
could not even spell his last name or recognize several
additional letters—letters he was able to identify for
Dr. Hopewell just eight months before.9 After the
State made reference to admitted exhibits wherein
Petitioner had previously signed his name, Dr. Call
testified that absent some significant brain damage
since the time Petitioner had signed those documents
(which there was no evidence of), it was clear to him
that Petitioner was not putting forth his best effort
(Tr. 3/9/04, 148; Tr. 3/15/04, 26-30, 70; State’s Exs. 12, 5 and 6).
Ruby Badillo was an insurance agent who met
with Petitioner and his wife about life insurance. Ms.
Badillo testified that Petitioner “seemed perfectly
normal” and “very sociable.” Ms. Badillo stated that
if Petitioner had had any kind of physical or mental
challenge, she would not have been able to help him
obtain a life insurance policy. After meeting with
Petitioner for almost an hour, Ms. Badillo even asked
9 Dr. Hopewell tested Petitioner in January 2003 and Dr. Call
tested Petitioner in September 2003 (Tr. 3/9/04, 129; Tr. 3/15/04,
36, 44). Petitioner’s reference in the petition to a December
2003 testing by Dr. Hopewell is incorrect. Pet. at 12.
App.71a
Petitioner if he would be interested in working at her
company selling insurance and other services (Tr.
3/11/04, 46-52; State’s Ex. 6).
Emma Watts, Petitioner’s case manager at the
Oklahoma Department of Corrections, testified about
her interaction with Petitioner over a two to threeyear period. She described Petitioner as quiet and
respectful (id. at 55-57). But for his cell change requests,
which she felt were manipulative, she testified that
Petitioner was no different from the other inmates
(id. at 57, 61).
Mark Woodward was Petitioner’s supervisor at
work in the months immediately preceding Petitioner’s
crimes. Mr. Woodward testified that as head custodian, Petitioner was the “go-to person if there was
something that had to be done.” Petitioner supervised four to five employees and did so adequately.
No family members worked with Petitioner while Mr.
Woodward was his supervisor (Tr. 3/11/04, 68-73). Mr.
Woodward communicated with Petitioner through a
pager, and Mr. Woodward testified that Petitioner
knew how to operate the school’s zoned alarm system
(id. at 73-79). Mr. Woodward testified that Petitioner
had access to carpet cleaners at the school and that
from his review of crime scene photos, he could tell
that the carpets had been cleaned by a cleaner
similar to the ones at the school (id. at 79-81).
Fern Smith, one of the assistant district attorneys
who originally prosecuted Petitioner, testified about
her observations of him in 1993 and 1994. Ms. Smith,
who has a Master’s Degree in Special Education and
previously taught high school special education before
becoming an attorney, testified that she “didn’t notice
anything unusual or out of the ordinary during the
App.72a
times that [she] was in court with [Petitioner].” Ms.
Smith told the jury that Petitioner filed and argued
some of his own motions and that he was “articulate”
and “knew what he was doing.” Ms. Smith further
testified that Petitioner “made good arguments” and
“knew why he was presenting them.”10 Ms. Smith also
testified that during his original trial Petitioner took
notes and discussed the notes with his attorney,
which was very different from how Petitioner was
currently acting in front of the jury. Based on her
observations of Petitioner, Ms. Smith did not see
anything that indicated he was mentally retarded
(Tr. 3/11/04, 100-05, 111).11
Oklahoma City Police Officer John Maddox, who
investigated the scene of Petitioner’s crimes, testified
that the crime scene had been altered after the
crimes occurred (Tr. 3/11/04, 112-14). Some evidence
was hidden in closets and under a bed, other evidence
was concealed, and the title to Petitioner’s car was
found in the attic (id. at 114, 116). There was also
evidence that the crime scene had been cleaned. After
running some tests, the police determined that evidence
had been removed from the carpet and from the
kitchen and bathroom sinks (id. at 116-17). Officer
Maddox testified that all of these actions were done
10 Even the Tenth Circuit noted that “[w]hile [Petitioner’s]
presentation did not reveal the skills of a trained legal mind, he
put forth a coherent argument and demonstrated comprehension of both a lawyer’s duties and the concept of a ‘fair trial.’”
Smith, 379 F.3d at 932.
11 In rebuttal, Kenneth Watson, Petitioner’s original trial counsel,
testified that Petitioner did not know what was going on, that
he was unable to assist in his defense, and that Petitioner doodled
on a pad of paper most of the time (Tr. 3/15/04, 72-73).
App.73a
to delay the investigation and did in fact do so, as
Petitioner’s crimes were not detected for some seven
to ten days after their commission (id. at 116, 121-23).
Officer Maddox also testified about his interview
of Petitioner on June 30, 1993. He testified that
Petitioner understood his rights and answered some
questions before pulling an attorney’s business card
out of his pocket and indicating that he did not want
to talk anymore (id. at 117-19). He also testified how
Petitioner was able to return a bicycle to a retail
store and obtain a refund (id. at 119-20).
In the months before Petitioner’s crimes, Petitioner
was having an affair with Laura Dich.12 Petitioner
met Ms. Dich at a flea market. They exchanged phone
numbers and began seeing each other the next day.
Although Ms. Dich contacted Petitioner by pager and
only met with Petitioner at certain times of the night,
Ms. Dich had no idea that Petitioner was married
and had kids. Ms. Dich saw Petitioner about four
times a week and she considered him her boyfriend.
Petitioner told her that he loved her and wanted to
marry her and have kids with her. Petitioner maintained a sexual relationship with Ms. Dich and he
rented a motel room for this specific purpose on more
than one occasion. Ms. Dich testified that Petitioner
acquired and paid for the motel room without her
assistance (Tr. 3/12/04, 6-24, 26-27, 29).
Mariette Love, Petitioner’s mother-in-law, testified
that although she did not have a lot of contact with
Petitioner, she did not believe he had anything wrong
with him mentally. She did acknowledge, however,
12 Ms. Dich’s prior testimony was read to the jury (Tr. 3/12/04, 4).
App.74a
that Petitioner was a little slow, that “he didn’t know
what he should have known,” and that she was not
particularly happy with her daughter being in a
relationship with him (id. at 32-34, 37-39).
Cherie Mishion, Petitioner’s wife’s niece, testified
about the time she spent with Petitioner and his
family. She told the jury about Petitioner’s care of
the kids and about how he would drive, read the
paper, and cook breakfast. Petitioner even taught her
how to drive. Ms. Mishion never had the impression
that Petitioner was mentally handicapped or slow
because he was no different than the rest of the family
and was able to do what others could do (id. at 40-45).
Dina Dean was Petitioner’s sister-in-law. Like
Ms. Mishion, she testified about her familial relationship with Petitioner. She described Petitioner as
“kind of stand-offish,” but other than that he was
normal. Because Ms. Dean had a younger sister who
was “slow”, she had a point of reference. She testified
that in comparison to her sister, Petitioner was normal
(id. at 47-51).
OCCA’s Decision
As noted above, in denying Petitioner relief on
the sufficiency issue, the OCCA applied the correct
constitutional standard. The question therefore is
whether the OCCA applied it reasonably given the
presented evidence. In upholding the jury’s verdict,
the OCCA analyzed the issue as follows:
Evidence of [Petitioner’s] intellectual functioning was controverted at trial by the experts.
[FN9] [Petitioner’s] primary expert, Dr.
Clifford Hopewell, tested him in January
App.75a
2003 and scored his full scale I.Q. at 55. Dr.
Hopewell concluded that [Petitioner] is mildly
mentally retarded and that he has adaptive
functioning deficits in at least five areas.
Dr. Frederick Smith, another psychologist
who evaluated [Petitioner] in prison in
1997, testified that his testing showed that
[Petitioner’s] full scale I.Q. was 65, some
ten points higher than Dr. Hopewell’s score.
Dr. Smith was left with the impression during
his evaluation that [Petitioner] was actually
brighter than what his I.Q. test score
showed. He wrote in a memo shortly after
the evaluation that he suspected that
[Petitioner’s] score was somewhat low in
terms of accuracy. Dr. Smith also administered the Raven’s Standard Progressive
Matrices that showed [Petitioner’s] I.Q. was
in the range of 69 to 78. He testified that he
now believes [Petitioner’s] I.Q. is closer to 70.
FN9. Intelligence quotients are one of the
many factors that may be considered,
but are not alone determinative. Myers,
2005 OK CR 22, ¶ 8, 130 P.3d at 268.
The State presented the testimony of forensic
psychologist Dr. John Call to refute [Petitioner’s] expert evidence of subaverage intellectual functioning. Dr. Call gave [Petitioner]
the Wechsler Adult Intelligence Scale-III
(WAIS-III) I.Q. test and reviewed Dr. Hopewell’s data and score on this same test, as
well as several other tests. He found that
[Petitioner] failed two tests designed to detect
malingering given by Dr. Hopewell. [FN10]
App.76a
According to Dr. Call, [Petitioner’s] performance on these two tests provides significant
doubt about his efforts on the WAIS-III I.Q.
test and the validity of Dr. Hopewell’s overall
testing. Dr. Call also gave [Petitioner] one of
the malingering tests (Test of Memory and
Malingering) during his evaluation and found
that [Petitioner] failed again. Dr. Call concluded that [Petitioner’s] score suggested a
lack of effort on his part calling into doubt
the reliability and validity of the I.Q. score
that both he and Dr. Hopewell obtained.
[FN11] Dr. Call noted a previous I.Q. test
given by Dr. Murphy in 1994 in which
[Petitioner] scored a full scale I.Q. of 73. Dr.
Call believed lack of effort on [Petitioner’s]
part was one possible explanation to account
for the discrepancy in the subsequent scores.
In Dr. Call’s opinion, the data showed that
[Petitioner] did not put forth his best efforts
during his and Dr. Hopewell’s testing and
that [Petitioner’s] I.Q. test results were
unreliable and suspect.
FN10. The tests were the 15-Item Test
and the Test of Memory and Malingering
commonly referred to as the TOMM test.
FN11. Dr. Call’s I.Q. testing of [Petitioner] also showed a full scale I.Q. score of
55.
Though evidence of [Petitioner’s] I.Q. was
disputed, the State presented persuasive
evidence from lay witnesses to refute [Petitioner’s] evidence of subaverage intellectual
functioning and of adaptive functioning defi-
App.77a
cits. Emma Watts, [Petitioner’s] former case
manager, now unit manager in prison, testified that she had daily contact with [Petitioner] for two years while acting as his case
manager. Watts described [Petitioner] as
quiet and respectful for the most part; he
appeared to be like the other inmates in her
unit. He was able to communicate with her
and she found that he understood how to use
manipulative behavior to get a more desirable
cell or cellmate.
Ruby Badillo, a provider of financial services,
testified that she met with [Petitioner] and
his wife twelve years ago about purchasing
life insurance. She recalled that [Petitioner]
was kind and attentive to his wife. She
identified their application and [Petitioner’s]
signature. She said that [Petitioner] neither
indicated that he had any physical or mental
challenges nor did she suspect that he had
any based on their conversation. She described
[Petitioner] as “perfectly normal” and “very
sociable.” [Petitioner] appeared so personable
and capable that Badillo tried to recruit him
to work for her company selling insurance
policies and presenting other financial services to would-be customers.
Mark Woodward, the facilities manager for
a company providing custodial services to
local schools, testified that [Petitioner] was the
head custodian at Washington Irving Elementary School. Woodward described [Petitioner]
as the “go-to” person if something needed to be
done at the school. [Petitioner] was respon-
App.78a
sible for supervising a staff of four to five
people working shifts from 7 a.m. until 11
p.m. and insuring that their time cards were
filled out. [Petitioner] had to delegate
custodial duties and, if someone was absent
from work, reassign that person’s duties.
Woodward identified [Petitioner’s] job application and signature; he also identified various
forms that [Petitioner] had signed or filled
out for his employment. He noted that
[Petitioner] checked on his job application
form that he could read, write and speak the
English language. Woodward testified that he
effectively communicated with [Petitioner]
in person and through the use of a digital
pager. He recalled an occasion when he had
to reprimand [Petitioner] for not wearing his
uniform and thereafter [Petitioner] followed
the rules and wore his uniform. According
to Woodward, [Petitioner] effectively operated
the school’s multi-zone alarm system and
cleaning equipment. Woodward described
[Petitioner] as a typical head janitor.
Fern Smith, one of the assistant district attorneys who prosecuted [Petitioner’s] murder case,
testified that [Petitioner] filed and presented
several motions on his own behalf. She said
that [Petitioner] was articulate and made
“good” arguments to the court in support of his
motions. She did not notice anything unusual
or out of the ordinary about [Petitioner’s]
demeanor during trial or his many court
appearances. She recalled him taking notes
and conferring with counsel during trial.
App.79a
Ms. Smith, who was once a special education teacher of mentally retarded students,
stated there was nothing in her contacts
with [Petitioner] that led her to believe that
[Petitioner] was mentally retarded.
Laura Dich testified that she met [Petitioner]
in April 1993 at a flea market and they began
dating shortly thereafter. [Petitioner] did
not give her his home phone number, instead
he had her use his digital pager number to
contact him. [Petitioner] lied to Dich and told
her that he lived with a cousin instead of
with his wife and step-children and Dich
claimed that she was none the wiser. [FN12]
Dich testified that by the end of May 1993,
her relationship with [Petitioner] was progressing and [Petitioner] told her that he
wanted to marry and have children with
her. Dich, who was only 19 years old and
still living with her parents, testified that
[Petitioner] took her to a motel on several
occasions and that it was [Petitioner] who
rented and paid for the motel room.
FN12. Once when Dich paged [Petitioner], an upset woman returned the page
causing Dich concern, but [Petitioner]
convinced her for the most part that he
had no other girlfriends.
The evidence presented at trial supports a
finding that [Petitioner] failed to meet even
the first prong of the Murphy definition of
mental retardation. The evidence, viewed in
the light most favorable to the State, portrayed [Petitioner] as a person who is able
App.80a
to understand and process information, to
communicate, to understand the reactions of
others, to learn from experience or mistakes,
and to engage in logical reasoning. He held
down a job with supervisory functions, carried
on an affair, argued motions on his own behalf
and manipulated those around him. The jury’s
verdict finding that [Petitioner] is not mentally retarded is justified.
Smith, No. O-2006-683, slip op. at 7-11.
Analysis
Petitioner asserts that the OCCA’s decision is
“patently unreasonable.” He claims that “the OCCA
disregarded the clinical diagnostic practices and definitions of professionals in the field of intellectual disability by substituting its own I-know-it-when-I-seeit approach.” Characterizing the evidence as a “consensus of professionals in the field of intellectual disability,” Petitioner additionally argues that the OCCA
decision is inconsistent with expert opinion and with
“the requirements of Atkins.” Pet. at 39-46. In sum,
he declares that “the OCCA arbitrarily relied on
isolated factors that it unreasonably believed were
inconsistent with intellectual disability while disregarding the wealth of evidence that shows [Petitioner] is
intellectually disabled.” Reply at 5. However, Petitioner’s arguments for relief are extensively supported by
evidence which the jury did not hear and which this
Court cannot consider in deciding his claim. Focusing
on the evidence presented at trial and the OCCA’s
review of that evidence, the issue of whether Petitioner
is mentally retarded is not as clear cut as Petitioner
alleges.
App.81a
Although Petitioner claims that the OCCA violated
Atkins by disregarding expert opinion, what the OCCA
found was a dispute among the experts. Although Dr.
Hopewell believed that Petitioner’s I.Q. testing showed
sub-average intellectual functioning, the State’s expert,
Dr. Call, questioned that conclusion based on additional testing that indicated Petitioner was not putting
forth his best effort. Smith, No. O-2006-683, slip op.
at 7-8. The same is true regarding Petitioner’s adaptive
functioning. While Dr. Hopewell found that Petitioner
had deficits in all areas of adaptive functioning (Tr.
3/9/04, 63-65, 67-68), Dr. Call testified that Dr. Hopewell’s assessment was invalid because the test was
inappropriately administered (Tr. 3/15/04, 22-25). In
addition, as with the testing of Petitioner’s intellectual
function, Dr. Call testified that he believed that
Petitioner did not put forth his best effort in adaptive
functioning testing. Dr. Call’s opinion is supported by
the fact that Petitioner could not even spell his last
name for Dr. Call, when he had done so on prior occasions, including for Dr. Hopewell just eight months
earlier (Tr. 3/9/04, 129, 148; Tr. 3/15/04, 26-30, 36, 44;
State’s Ex. 1).
Petitioner’s assessment of the evidence also fails
to give due consideration to the very posture of the
claim. This is a sufficiency-of-the-evidence claim.
Although Petitioner argues with great fervor that he
is mentally retarded, that is not for this Court to decide.
Petitioner had the opportunity to prove he is mentally
retarded. However, a jury determined that he had
failed to meet his burden of proof. That jury verdict,
and its subsequent validation by the OCCA, is what
is under review here, and the Court’s review is largely
limited due to the deference afforded the jury’s verdict
App.82a
and the AEDPA deference afforded the OCCA’s decision.
While Petitioner clearly does not agree with the
jury’s verdict, it was the jury’s job to assess the
evidence, and the OCCA found that when viewing the
evidence in light most favorable to the State, a rational
trier of fact could have reached the same conclusion.
In addition to Dr. Call’s testimony, which called into
question Petitioner’s primary expert, evidence from
lay witnesses showed that Petitioner had skills and
strengths which the jury could consider in assessing
whether Petitioner had significant limitations. See
Smith, No. O-2006-683, slip op. at 11 (“[Petitioner]
held down a job with supervisory functions, carried
on an affair, argued motions on his own behalf and
manipulated those around him.”). Although Petitioner
argues that his strengths were overemphasized and
inappropriately considered, the Tenth Circuit has
held that “[b]oth strengths and deficiencies enter
into [the mental retardation determination] because
they make up the universe of facts tending to establish
that a defendant either has ‘significant limitations’
or does not. Not only does Murphy not require the
OCCA to focus on deficiencies to the exclusion of
strengths but—most relevant to our inquiry here—
neither does Atkins.” Hooks, 689 F.3d at 1172.
Given the evidence presented to the jury, the
OCCA’s assessment of that evidence in upholding the
jury’s verdict, and the double-deference review this
Court must apply in its review, the Court concludes
that Petitioner is not entitled to relief on his first
ground for relief. Ground One is therefore denied.
App.83a
B.
Ground Two: Challenges to the Atkins Trial
In his Ground Two, Petitioner cites irregularities
in his mental retardation trial. He challenges the
admission of evidence regarding his crimes, claims
the prosecutors committed misconduct, and finds fault
with a single instruction given to the jury.13 The
OCCA addressed all of these claims on the merits
and denied relief. Smith, No. O-2006683, slip op. at
3-5, 17-18. Applying AEDPA deference, the Court
concludes that Petitioner is not entitled to relief.
Petitioner’s first complaint concerns the testimony
of Officer Maddox and the prosecution’s reference to
the same in closing argument. As detailed in Ground
One, supra, Officer Maddox testified about how the
crime scene had been altered. He discussed hidden
evidence and indications that the crime scene had
been cleaned. Officer Maddox also testified about his
interview with Petitioner and Petitioner’s ability
during that interview to understand his legal rights.
Petitioner asserts that the admission of this evidence
was “especially egregious,” “highly prejudicial,” and
“unquestionably vague and confusing.” Pet. at 57, 60.
13 Petitioner begins his Ground Two with a history/overview of
mental retardation trials in Oklahoma in an effort to show that
he never had a fair chance to receive a jury determination that
he is mentally retarded. Pet. at 47-55. Within that discussion,
Petitioner mentions, among other general complaints, the jury
instruction defining the term mentally retarded, the prosecution’s “novel interpretation” of the instruction, and an appeal
that was “cramped,” “abbreviated,” and “clearly insufficient.” The
Court does not construe these references as additional grounds
for relief and notes that while Respondent has specifically
argued that the instruction and prosecutorial misconduct references are unexhausted claims, Petitioner has made no attempt
to counter the argument.
App.84a
He contends that this evidence was admitted in
violation of the OCCA’s decision in Lambert v. State,
71 P.3d 30, 31 (Okla. Crim. App. 2003), wherein the
OCCA held that “[t]he jury should not hear evidence
of the crimes for which [the defendant] was convicted,
unless particular facts of the case are relevant to the
issue of mental retardation.” Petitioner additionally
asserts that admission of this evidence “made it
impossible to regard the verdict as [ ] factually reliable
. . . [as] required by Atkins.” Pet. at 60.
In denying Petitioner relief on this claim, the
OCCA held as follows:
[Petitioner] argues in his first proposition that
the district court erred in allowing Detective
Maddox to testify, over objection, that the concealing of evidence and altering of the crime
scene were thoughtful, deliberate actions
undertaken by [Petitioner] to avoid detection
and which show that [Petitioner] is capable of
logical reasoning. He maintains this testimony
was beyond Detective Maddox’s personal
knowledge and is nothing but speculation.
A trial court’s decision to admit evidence
will not be disturbed on appeal absent a
showing of abuse of discretion accompanied
by prejudice. Howell v. State, 2006 OK CR
28, ¶ 33, 138 P.3d 549, 561. Detective Maddox testified that he was the lead investigator
in the crime for which [Petitioner] was convicted. He explained that evidence at the
crime scene was hidden in closets and in the
attic and that a bed had been “remade” in
such a way as to conceal evidence hidden
underneath it. He further explained that
App.85a
police determined that the carpet at the scene
had been cleaned based on tracks in the carpet consistent with a carpet cleaning machine
and tests confirming that evidence on the
carpet had been removed through a cleaning
process. The prosecutor asked Detective
Maddox what the condition of the crime
scene indicated to him about the mental
ability of the perpetrator and Maddox testified that the placement of the evidence
indicated the perpetrator thoughtfully hid
evidence to avoid detection.
The district court did not err in allowing this
testimony. Jurors were told that [Petitioner]
had been found guilty of a crime, but neither
the crime itself nor the sentence imposed
was revealed. Throughout the trial, no reference was made to the death penalty, capital
punishment, or death row. No facts of the
murders [Petitioner] committed were introduced and the district court confined the
evidence to the narrow issue of mental retardation. [Petitioner’s] ability to recognize the
wrongfulness of his criminal acts and to
conceal evidence of his crimes is relevant to
the issue of whether he is capable of logical
reasoning and whether he is mentally
retarded. The evidence regarding the crime
scene was presented without prejudicial
details of the crime itself to comport with
our prior decisions concerning admission of
evidence related to the crime and admission
of this evidence was not unfairly prejudicial.
See e.g., Lambert v. State, 2003 OK CR 11,
App.86a
¶ 3, 71 P.3d 30, 31. Maddox’s opinion that
[Petitioner] deliberately hid evidence to
avoid being caught was rationally based on
his perceptions of the crime scene and his
dealings with [Petitioner] and were helpful
to the jury’s determination of whether
[Petitioner] is mentally retarded. Such lay
opinion testimony is admissible under 12
O.S.2001, § 2701. This claim is denied.
Smith, No. O-2006-683, slip op. at 3-4 (footnotes
omitted).
This a state law evidentiary claim. Because this
Court is only empowered “to vindicate [Petitioner’s]
constitutional rights,” Petitioner “is entitled to relief
only if [the] alleged state-law error [ ] was so grossly
prejudicial that it fatally infected the trial and denied
the fundamental fairness that is the essence of due
process.” Hooks, 689 F.3d at 1180 (internal quotation
marks and citation omitted). The Court concludes
that relief is not warranted under this standard of
review. Officer Maddox’s testimony was presented in
generic terms. The jury did not hear the gruesome
details of Petitioner’s crimes or how Petitioner’s victims
were discovered. See Smith, 379 F.3d at 923-34. The
jury was not told that Petitioner’s five victims were
shoved into closets and under a bed and that the
carpets and sinks had been cleaned to remove the
evidence of blood. Instead the jury heard that the
scene had been altered–that Petitioner had taken
certain actions to cover up his crimes. The OCCA did
not act unreasonably in determining that this evidence,
and evidence of Petitioner’s interaction with Officer
Maddox, was relevant and admissible to the issue of
Petitioner’s mental abilities.
App.87a
Petitioner’s next complaint concerns five comments
made by the prosecutors during voir dire, opening
statement, and closing statement. Petitioner asserts
that the comments were “misleading,” “argumentative,”
“inaccurate,” “[d]enigrating and disparaging,” and
“deceptive.” Pet. at 61, 62, 66. Alleging that the comments “thoroughly permeated the entire proceedings,”
he claims that he has been denied fundamental fairness and is entitled to relief. Reply at 17.
“Prosecutors are prohibited from violating fundamental principles of fairness, which are basic requirements of Due Process.” Hanson v. Sherrod, 797 F.3d
810, 843 (10th Cir. 2015), cert. denied, 136 S. Ct.
2013 (2016). Therefore, when a petitioner alleges
prosecutorial misconduct, the question is whether the
prosecutor’s actions or remarks “so infected the trial
with unfairness as to make the resulting conviction a
denial of due process.” Donnelly v. DeChristoforo, 416
U.S. 637, 643 (1974). Evaluating the alleged misconduct in light of the entire proceeding, the reviewing
court must determine “whether the jury was able to
fairly judge the evidence in light of the prosecutors’
conduct.” Bland v. Sirmons, 459 F.3d 999, 1024 (10th
Cir. 2006).
In denying Petitioner relief on this claim, the
OCCA held as follows:
[Petitioner] argues in his eighth proposition
that he was denied a fair trial on the issue
of mental retardation because of prosecutorial
misconduct. Allegations of prosecutorial misconduct do not warrant reversal unless the
cumulative effect of error found deprived the
defendant of a fair trial. Warner v. State,
2006 OK CR 40, ¶ 197, 144 P.3d 838, 891.
App.88a
[Petitioner] challenges one of the prosecutor’s
statements during jury selection relating to
the burden of proof, two statements in opening statement about the experts review of the
evidence and three statements made during
closing argument. The defense’s objection to
the prosecutor’s question during jury selection about the burden of proof was sustained
before any juror answered; the trial court
advised the prosecutor to rephrase. We find
the trial court’s ruling cured any error in
light of the instructions and other discussion about the burden of proof. McElmurry
v. State, 2002 OK CR 40, ¶ 126, 60 P.3d 4,
30 (sustaining an objection generally cures
any error.). The trial court also sustained
the defense’s objection to the first challenged
remark during opening statement because
it was argumentative and the prosecutor
followed the court’s ruling and outlined the
evidence. The second objection, for the same
reason (argumentative), was properly overruled because the prosecutor was merely
outlining the evidence. Howell, 2006 OK CR
28, ¶ 7, 138 P.3d at 556 (The purpose of
opening statement is to tell the jury of the
evidence the attorneys expect to present
during trial and its scope is determined at
the discretion of the trial court.). Likewise,
any error in the prosecutor’s statement during
closing argument brought to the court’s attention was cured when the trial court sustained
[Petitioner’s] objection. McElmurry, 2002 OK
CR 40, ¶ 126, 60 P.3d at 30. The other two
statements challenged in closing argument
App.89a
were not met with objection and a review of
the remarks shows they were fair comments
on the evidence. This claim is denied.
Smith, No. O-2006-683, slip op. at 17-18.
Although Petitioner argues that the OCCA gave
this claim “short shrift,” Pet. at 65, the Court finds
that the OCCA’s above analysis is both sufficient and
reasonable under the AEDPA. The record reflects
that with respect to the first three comments complained of by Petitioner, the trial court appropriately
responded to Petitioner’s objections. See Le v. Mullin,
311 F.3d 1002, 1013 (10th Cir. 2002) (a fundamental
fairness assessment includes consideration of the trial
court’s “cautionary steps . . . to counteract improper
remarks”). To the extent the question during voir
dire was “probably a little on the edge,” Petitioner
objected to it at the onset before any harm could
develop and the trial court directed the prosecutor to
rephrase the question (Tr. 3/8/04, 155-56). Petitioner’s
objection to the opening statement comment was
initially sustained as argumentative, but then overruled when the prosecutor rephrased the comment
within acceptable parameters of outlining the evidence
to the jury (Tr. 3/9/04, 22-23). And finally, when the
prosecutor made the comment in closing argument
that the defense “don’t put in front of you what they
don’t want you to see,” the trial court sustained the
objection (Tr. 3/15/04, 103), thereby curing any harm.
See Hanson, 797 F.3d at 845 n.13 (a sustained objection is presumed to cure any error).
As for the remaining two comments, both of
which also occurred in closing argument, Petitioner
made no objection to them at trial (Tr. 3/15/04, 95,
110-11). See Le, 311 F.3d at 1013 (acknowledging
App.90a
that the absence of an objection is “relevant to a
fundamental fairness assessment”). In the first of
these comments, the prosecutor stated that Petitioner
is “either a bottom dweller, slobbering, or he’s just
right on the cusp” (Tr. 3/15/04, 95). Although referring
to a person with mental retardation as a “slobbering
bottom dweller” is harsh and inappropriate, the
Court cannot conclude that this single reference
rendered the entire proceeding fundamentally unfair.
The comment was not objected to, the prosecutor made
the reference only once, and it was made within an
otherwise permissible argument discussing Petitioner’s
expert evidence. As for the third unobjected-to comment, it concerned Officer Maddox’s testimony, which
the Court has already addressed herein. Because the
evidence was relevant and admissible, the prosecutor’s
reasonable comments based on the officer’s testimony
did not deny Petitioner due process. See United
States v. Dazey, 403 F.3d 1147, 1170 (10th Cir. 2005)
(“The prosecutor is entitled to argue to the jury that
it should draw reasonable inferences from the evidence
to support the government’s theory of the case.”).
Petitioner’s final complaint concerns Jury Instruction No. 17 which required the jury to determine
whether “the mental retardation [was] present and
known before [Petitioner] was eighteen (18) years of
age” (O.R. VI, 1138). Petitioner contends that the
language “present and known” is contrary to Atkins,
which referred to mental retardation manifesting
itself (or the onset occurring) before the age of eighteen.
Atkins, 536 U.S. at 308 n.3. Pet. at 70-71.
“A habeas petitioner who seeks to overturn his
conviction based on a claim of error in the jury
instructions faces a significant burden.” Ellis v. Hargett,
App.91a
302 F.3d 1182, 1186 (10th Cir. 2002). “Unless the
constitution mandates a jury instruction be given, a
habeas petitioner must show that, in the context of
the entire trial, the error in the instruction was so
fundamentally unfair as to deny the petitioner due
process.” Tiger v. Workman, 445 F.3d 1265, 1267
(10th Cir. 2006).
In denying Petitioner relief on this claim, the
OCCA relied on its prior decisions in Howell v. State,
138 P.3d 549 (Okla. Crim. App. 2006), and Myers v.
State, 130 P.3d 262 (Okla. Crim. App. 2005). Smith,
No. O-2006-683, slip op. at 5. In Myers, the OCCA
held as follows:
Jury instructions are sufficient if, when read
as a whole, they state the applicable law.
McGregor v. State, 1994 OK CR 71, ¶ 23,
885 P.2d 1366, 1380. As used in this context,
the word “manifest” is a transitive verb and
the word “known” is an adjective. The Random House Unabridged Dictionary defines
“known” as perceived or understood as fact
or truth; apprehended clearly and with
certainty. See “know” & “known” Random
House Dictionary (2nd ed. 1997). It defines
“manifest” as “to make clear or evident to
the eye or the understanding; show plainly
. . . to prove; put beyond doubt or question.”
See “manifest” Random House Dictionary
(2nd ed. 1997).
We find that the words “present and known”
are words of common everyday understanding that do not require a level of proof above
that required to prove that a condition
“manifested” itself. “Known” as it relates to
App.92a
the jury instruction used in this case does
not require a scientific finding or a medical
diagnosis. See Murphy I, 2002 OK CR 32,
¶ 31 n.19, 54 P.3d at 567 n.19. The retardation
has only to have been perceived or recognized
by someone before the defendant reached
the age of 18. The court’s instruction accurately stated the applicable law and therefore we find that the district court did not
abuse its discretion in giving this uniform
instruction.
Myers, 130 P.3d at 269.
Petitioner has not shown that the OCCA’s analysis
is unreasonable. In addition to the fact that Petitioner’s
claim has been specifically rejected in both Howell v.
Workman, No. CIV-07-1008-D, 2011 WL 5143069, at
*20-21 (W.D. Okla. Oct. 28, 2011) (unpublished), and
Myers v. Workman, No. 02-CV-140-GKF-PJC, 2010
WL 2106456, at *57-59 (N.D. Okla. May 25, 2010)
(unpublished), when the Court considers the additional step taken by the trial court to clarify this
issue, Petitioner’s argument is especially weak. Pulling
clarifying language from the Murphy decision, Murphy,
54 P.3d at 567 n.19, the trial court further instructed
the jury as follows:
Whether mental retardation before the age
of eighteen was present and known is a question of fact to be decided by you the jury. To
establish that the first signs of mental retardation appeared and were recognized before
[Petitioner] turned eighteen, lay opinion and
poor school records may be considered.
App.93a
(O.R. VI, 1140; Tr. 3/15/04, 75-77). Therefore, reviewing
the instructions as a whole and giving the OCCA’s
decision appropriate deference, the Court finds that
no relief is warranted on this claim.
In conclusion, for the reasons set forth above,
the Court finds that Petitioner has not demonstrated
his entitlement to relief for the claims raised in his
Ground Two. Ground Two is therefore denied.
C.
Ground Three: Ineffective Assistance of Atkins
Trial Counsel
In his third ground for relief, Petitioner argues
that his Atkins trial counsel was ineffective for two
reasons. First, Petitioner faults his trial counsel for
failing to retain and present for testimony an expert
like Theresa Flannery of the Dale Rogers Training
Center.14 Petitioner contends that Ms. Flannery should
have testified to educate the jury regarding his ability
to work as a head custodian despite his limited intelligence. Second, Petitioner asserts that his trial counsel should have retained an expert like Dr. Terese
Hall to assess his adaptive functioning using the
ABAS-II. Because his expert at trial failed to use this
test and was criticized by the State’s expert for
failing to do so, Petitioner asserts that Dr. Hall’s
results should have been presented to the jury to
establish his significant limitations in adaptive functioning. Had trial counsel presented these two pieces
14 “Dale Rogers Training Center is the oldest and largest community vocational training and employment center in Oklahoma
that serves persons with disabilities. . . . [It] provides individuals
whose IQ levels test 75 or below with meaningful, productive,
and compensated work.” Pet’r’s Attach. 20 at 1.
App.94a
of additional evidence, Petitioner claims that he would
not be under a death sentence today.
As an initial matter, the Court must first determine whether the OCCA’s determination of these
claims is entitled to AEDPA deference, a matter
which the parties dispute. The record reflects that in
his presentation of these ineffectiveness claims to the
OCCA, Petitioner attached four exhibits to his application for relief, including an August 2006 affidavit from
Ms. Flannery (Pet’r’s Attach. 20), Dr. Hall’s September 2005 report (Pet’r’s Attach. 5), and a September
2006 affidavit from trial counsel (Pet’r’s Attach. 15).
In denying Petitioner relief, the OCCA analyzed
Petitioner’s claims and discussed his extra-record
material as follows:
[Petitioner] contends in his ninth proposition
that he was denied a fair trial because of
ineffective assistance of counsel. He contends
that trial counsel failed to investigate and
fully present evidence demonstrating that
he, in his status as a custodial supervisor,
was working at his full potential as a person
with mental retardation.
This Court reviews claims of ineffective
assistance of counsel under the two-part
Strickland test that requires an appellant to
show: [1] that counsel’s performance was
constitutionally deficient; and [2] that counsel’s performance prejudiced the defense,
depriving the appellant of a fair trial with a
reliable result. Strickland v. Washington,
466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80
L.Ed.2d 674 (1984); Davis v. State, 2005 OK
CR 21, ¶ 7, 123 P.3d 243, 246. Under this
App.95a
test, [Petitioner] must affirmatively prove
prejudice resul
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