Petition for Writ of Certiorari — Ricky Ray Malone, Petitioner v. Tommy Sharp, Interim Warden

Supreme Court briefJul 15, 2019

Ask Donna

What actually matters in this document.

Text

Capital Case

Case No. ________________________________________

In the Supreme Court of the United States

RICKY RAY MALONE,

Petitioner,

MIKE CARPENTER, Warden,

Oklahoma State Penitentiary,

Respondent.

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Tenth Circuit

PETITION FOR WRIT OF CERTIORARI

ROBERT S. JACKSON*

Okla. Bar # 22189

925 N.W. 6th Street

Oklahoma City, OK 73106

Telephone: (405) 232-3450

Facsimile: (405) 232-3464

bob@bobjacksonlaw.com

SARAH M. JERNIGAN

Okla. Bar # 21243

Assistant Federal Public Defender

215 Dean A. McGee, Suite 707

Oklahoma City, OK 73102

Telephone: (405) 609-5975

Facsimile: (405) 609-5976

sarah_jernigan@fd.org

* Counsel of Record

COUNSEL FOR PETITIONER, RICKY RAY MALONE

Dated this 15th day of July, 2019

Capital Case

QUESTIONS PRESENTED

Where plain error review includes a built-in prejudice component,

is subjecting an acknowledged plain error to a second round of

harmlessness review pursuant to Chapman v. California, 386 U.S.

18 (1967) contrary to clearly established federal law?

Must federal courts consider the synergy amongst acknowledged

errors, when such individual errors have failed to satisfy their

substantive prejudice components, in assessing whether the

cumulative effect of the errors results in a constitutional

violation?

LIST OF PARTIES

All parties appear in the caption of the case on the cover page.

iii

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

LIST OF PARTIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv

INDEX OF APPENDICES TO PETITION .. . . . . . . . . . . . . . . . . . . . . . . . . . . vi

TABLE OF AUTHORITIES

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vii

PETITION FOR WRIT OF CERTIORARI . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

OPINIONS BELOW .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

STATEMENT OF JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

CONSTITUTIONAL AND STATUTORY PROVISIONS . . . . . . . . . . . . . . . . . 2

STATEMENT OF THE CASE .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

REASONS FOR GRANTING THE WRIT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

This Court Should Grant the Writ Because Subjecting Legal Claims,

Which Have Already Satisfied a Built-in Prejudice Component, to

a Second Layer of Harmless Error Analysis Is Fundamentally at

Odds with Decisions of This Court.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Mr. Malone Satisfied Oklahoma’s Plain Error Standard,

Which Includes a Built-in Prejudice Component. . . . . . . . . . . . . 11

This Court’s Opinions Establish that Constitutional Errors

are Only Susceptible to One Layer of Harmless Error and/or

Prejudice Review.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

The Writ Must Be Granted To Ensure State Courts Do Not

Impose a Doubly Burdensome Showing of Harm Upon

Defendants Whom Have Already Established a Prejudicial

Constitutional Error. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

II.

This Court Should Grant the Writ Because the Federal Courts Are

Inconsistent in Considering the Synergy Amongst Acknowledged

Errors When Assessing Whether the Cumulative Effect of the

Errors Results in a Violation of Constitutional Rights . . . . . . . . . . . . . 18

Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Inter - and Intra - Circuit Splits on Whether Synergistic

Effect Must Be Considered. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

CONCLUSION .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

INDEX OF APPENDICES TO PETITION

(The following attachments are located in a separate Appendix volume)

APPENDIX A:

Malone v. Carpenter, 911 F.3d 1022 (10th Cir. 2018)

(Tenth Cir. opinion denying relief, Case No. 17-6027)

(Dec. 20, 2018)

APPENDIX B:

Malone v. Royal, No. CIV-13-1115-D, 2016 WL 6956646

(W.D. Okla. Nov. 28, 2016) (federal district court

opinion denying relief)

APPENDIX C:

Malone v. Carpenter, 10th Cir. No. 17-6027, (Tenth Cir.

Order denying petition for rehearing) (Feb. 14, 2019)

APPENDIX D:

Malone v. State, 168 P.3d 185 (Okla. Crim. App. 2007)

(state court opinion denying direct appeal D-2005-600)

APPENDIX E:

Malone v. State, 293 P.3d 198 (Okla. Crim. App. 2013)

(state court opinion denying direct appeal D-2010-1084

from re-sentencing bench trial)

APPENDIX F:

Malone v. State, No. PCD-2011-248 (Okla. Crim. App.

Apr. 23, 2013) (unpub.) (state court opinion denying

application for post-conviction relief)

APPENDIX G:

Malone v. State, No. PCD-2014-969 (Okla. Crim. App.

Jan. 30, 2015) (unpub.) (state court opinion denying

second application for post-conviction relief)

APPENDIX H:

In Re: The Mental Health of Ricky Ray Malone, Case No.

MH-2016-11 Order (Pittsburg County Oct. 26, 2017)

(state court stipulated Order finding Mr. Malone

incompetent to be executed)

APPENDIX I:

Heathco v. State, No. F-2013-547, (Okla. Crim. App.

Feb. 6, 2015) (unpub.)

TABLE OF AUTHORITIES

Page

CONSTITUTIONAL PROVISIONS

U.S. Const. amend. VI. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

U.S. Const. amend. VIII. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

U.S. Const. amend. XIV. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

SUPREME COURT CASES

Brady v. Maryland, 373 U.S. 83 (1963) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Chapman v. California, 386 U.S. 18 (1967) . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

Chambers v. Mississippi, 410 U.S. 284 (1973) . . . . . . . . . . . . . . . . . . . . . . 22, 24

Ford v. Wainwright, 477 U.S. 399 (1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Knowles v. Mirzayance, 556 U.S. 111 (2009) . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Kyles v. Whitley, 514 U.S. 419 (1995) . . . . . . . . . . . . . . . . . . . . . . . . . . 14-16, 22

Taylor v. Kentucky, 436 U.S. 478 (1978). . . . . . . . . . . . . . . . . . . . . . . . . . . 22, 23

United States v. Bagley, 473 U.S. 667 (1985) . . . . . . . . . . . . . . . . . . . . . . . . . . 14

United States v. Olano, 507 U.S. 725 (1993) . . . . . . . . . . . . . . . . . . . . . . . 12, 17

Williams v. Taylor, 529 U.S. 362 (2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

vii

FEDERAL CIRCUIT COURT CASES

Alvarez v. Boyd, 225 F.3d 820 (7th Cir. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . 23

Derden v. McNeel, 978 F.2d 1453 (5th Cir. 1992) .. . . . . . . . . . . . . . . . . . . . . . 23

Cargle v. Mullin, 317 F.3d 1196 (10th Cir. 2003) . . . . . . . . . . . . . . . . . . . 21-25

Grant (Donald) v. Royal, 886 F.3d 874 (10th Cir. 2018) . . . . . . . . . . . . . . 24, 25

Grant (John) v. Trammell, 727 F.3d 1006 (10th Cir. 2013) .. . . . . . . . . . . . . . 24

Hanson v. Sherrod, 797 F.3d 810 (10th Cir. 2015). . . . . . . . . . . . . . . . . . . . . . 24

Hill v. Lockhart, 28 F.3d 832 (8th Cir. 1994) . . . . . . . . . . . . . . . . . . . . . . . 14, 15

Littlejohn v. Royal, 875 F.3d 548 (10th Cir. 2017) . . . . . . . . . . . . . . . . 21, 24, 25

Malone v. Carpenter, 911 F.3d 1022 (10th Cir. 2018) . . . . . . . . . . . 1, 16, 17, 22

Mello v. DiPaulo, 295 F.3d 137 (1st Cir. 2002) .. . . . . . . . . . . . . . . . . . . . . . . . 23

Parle v. Runnels, 505 F.3d 922 (9th Cir. 2007) . . . . . . . . . . . . . . . . . . . . . 23, 27

United States v. Delgado, 672 F.3d 320 (5th Cir. 2012) .. . . . . . . . . . . . . . . . . 26

United States v. Houston, 481 F. App’x 188 (5th Cir. 2012) . . . . . . . . . . . . . . 26

United States v. Rivera, 900 F.2d 1462 (10th Cir. 1990) . . . . . . . . . . . . . . . . . 23

United States v. Sepulveda, 15 F.3d 1161 (1st Cir. 1993) . . . . . . . . . . . . . . . . 26

United States v. Toles, 297 F.3d 959 (10th Cir. 2002) . . . . . . . . . . . . . . . . . . . 23

United States v. Valencia, 600 F.3d 389 (5th Cir. 2010) . . . . . . . . . . . . . . . . . 26

Williams v. Drake, 146 F.3d 44 (1st Cir. 1998) . . . . . . . . . . . . . . . . . . . . . . . . 26

Ybarra v. McDaniel, 656 F.3d 984 (9th Cir. 2011) . . . . . . . . . . . . . . . . . . . . . . 26

viii

FEDERAL DISTRICT COURT CASES

Malone v. Royal, Case No. CIV-13-1115-D, 2016 WL 6956646

(W.D. Okla. Nov. 28, 2016) (unpub.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

FEDERAL STATUTES

28 U.S.C. § 1254 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

28 U.S.C. § 2254 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 13

STATE COURT CASES

Bingham v. State, 169 P.2d 311 (Okla. Crim. App. 1946) . . . . . . . . . . . . . . . . . 8

Heathco v. State, No. F-2013-547, (Okla. Crim. App. Feb. 6, 2015) (unpub.). 17

Hogan v. State, 139 P.3d 907 (Okla. Crim. App. 2006) . . . . . . . . . . . . 12, 14, 16

In Re Adoption of the 2005 Revisions to the Oklahoma Uniform Jury

Instructions – Criminal (Second Edition), 119 P.3d 753

(Okla. Crim. App. 2005) .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Malone v. State, 168 P.3d 185 (Okla. Crim. App. 2007) .. . . . . 1, 5, 6, 11-13, 17

20, 21, 22

Malone v. State, 293 P.3d 198 (Okla. Crim. App. 2013) .. . . . . . . . . . . . . . . . 1, 7

PETITION FOR WRIT OF CERTIORARI

Petitioner, Ricky Malone, respectfully petitions this Court and prays that

a writ of certiorari issue to review the opinion rendered by the United States

Court of Appeals for the Tenth Circuit.

OPINIONS BELOW

The opinion of the Tenth Circuit Court of Appeals, Case No. 17-6027,

denying relief is reported at Malone v. Carpenter, 911 F.3d 1022 (10th Cir. 2018)

(Appendix A). The federal district court’s denial of the Petition for Writ of

Habeas Corpus is found at Malone v. Royal, Case No. CIV-13-1115-D, 2016 WL

6956646 (W.D. Okla. Nov. 28, 2016) (unpublished) (Appendix B). The Tenth

Circuit’s Order denying Petitioner’s Petition for Rehearing dated February 14,

2019, is found at Appendix C. The state court decision of the Oklahoma Court

of Criminal Appeals (OCCA) denying Mr. Malone’s first direct appeal (D-2005600) on August 31, 2007, is reported at Malone v. State, 168 P.3d 185 (Okla.

Crim. App. 2007) (Appendix D). The state court opinion denying direct appeal

D-2010-1084 from a re-sentencing bench trial can be found at Malone v. State,

293 P.3d 198 (Okla. Crim. App. 2013), cert. denied, 134 S. Ct. 172 (No. 12-10782

Oct. 7. 2013) (Appendix E). The OCCA’s opinion denying Mr. Malone’s Original

Application for Post-Conviction Relief can be found at Malone v. State, No. PCD2011-248 (Okla. Crim. App. Apr. 23, 2013) (unpublished) (Appendix F).

Petitioner’s Second Application for Post-Conviction Relief was denied in Malone

v. State, No. PCD-2014-969 (Okla. Crim. App. Jan. 30, 2015) (unpublished)

(Appendix G). An agreed stipulated Order finding Mr. Malone incompetent to

be executed is attached as Appendix H, In Re: The Mental Health of Ricky Ray

Malone, Case No. MH-2016-11 (Pittsburg County Oct. 26, 2017). Of note, the

Order directed Mr. Malone be housed at the Oklahoma Forensic Center in

Vinita, Oklahoma, where he is undergoing treatment aimed at restoring his

competency to be executed.

STATEMENT OF JURISDICTION

The Tenth Circuit Court of Appeals rendered its decision denying relief on

December 20, 2018, Case No. 17-6027. Mr. Malone timely filed a petition for

rehearing and rehearing en banc on February 4, 2019, which the Tenth Circuit

denied on February 14, 2019. An extension of time to file the petition for a writ

of certiorari was granted by Justice Sotomayor on May 1, 2019, extending the

time to July 15, 2019. The jurisdiction of this Court is invoked under 28 U.S.C.

§ 1254(1).

CONSTITUTIONAL AND STATUTORY PROVISIONS

U.S. Const. amend. VI provides:

In all criminal prosecutions, the accused shall enjoy the right to a

speedy and public trial, by an impartial jury of the State and district

wherein the crime shall have been committed, which district shall

have been previously ascertained by law, and to be informed of the

nature and cause of the accusation; to be confronted with the

witnesses against him; to have compulsory process for obtaining

witnesses in his favor, and to have the Assistance of Counsel for his

defence.

U.S. Const. amend. VIII provides:

Excessive bail shall not be required, nor excessive fines imposed, nor

cruel and unusual punishments inflicted.

U.S. Const. amend. XIV, § 1 provides:

All persons born or naturalized in the United States, and subject to

the jurisdiction thereof, are citizens of the United States and of the

State wherein they reside. No State shall make or enforce any law

which shall abridge the privileges or immunities of citizens of the

United States; nor shall any State deprive any person of life, liberty,

or property, without due process of law; nor deny to any person

within its jurisdiction the equal protection of the laws.

Title 28, U.S.C. § 2254(d) provides:

An application for a writ of habeas corpus on behalf of a person in

custody pursuant to the judgment of a State court shall not be

granted with respect to any claim that was adjudicated on the

merits in State court proceedings unless the adjudication of the

claim –

(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.

STATEMENT OF THE CASE

This case presents the tragic circumstance of the death of an Oklahoma

Highway Patrol Officer. In the early morning hours of December 26, 2003, Mr.

Malone set up a methamphetamine lab on the side of a rural dirt road in Cotton

County, Oklahoma. While making the drugs, Mr. Malone had taken some pain

pills and passed out in the front seat of his vehicle. A passerby, a newspaper

delivery driver, noticed Mr. Malone and being afraid he might need help, alerted

an Oklahoma Highway Patrol Trooper. Trooper Green arrived at Mr. Malone’s

location at about 6:40 in the morning. Trooper Green awoke Mr. Malone, and

an altercation ensued between the men. Tragically, the altercation ended with

the shooting death of Trooper Green.

Mr. Malone was charged with first degree murder, and a jury found Mr.

Malone guilty and imposed a death sentence. Mr. Malone’s culpability for

Trooper Green’s death was undeniable; however, it was not certain that Mr.

Malone possessed the requisite intent for first degree murder. The defense of

voluntary intoxication was presented, which could have allowed the jury to

properly convict Mr. Malone of second degree murder. Yet, the jury instructions

on the defense were significantly flawed, and counsel engaged in a pattern of

deficient performance further hampering the intoxication defense.

On direct appeal, the Oklahoma Court of Criminal Appeals (OCCA)

affirmed Mr. Malone’s conviction, but vacated the death sentence due to overly

extensive and emotional victim impact statements and the prosecutor’s

second-stage closing arguments, which together were egregiously improper and

unfairly prejudicial and clearly invited passion, prejudice, and arbitrariness into

the jury’s sentencing determination. Malone v. State, 168 P.3d 185 (Okla. Crim.

App. 2007). The case was remanded for a new sentencing trial.

With respect to Mr. Malone’s claim of erroneous jury instructions, the

OCCA found:

Malone’s jury instructions did not, by themselves, adequately

or accurately inform his jury that he should prevail on his

intoxication defense if he could establish that due to

methamphetamine intoxication at the time of the crime, he

was unable to form the required ‘malice aforethought’ for

first-degree murder, i.e., if the evidence established he was unable

to form a deliberate intent to kill Trooper Green. This Court

concludes that the failure of Malone’s jury instructions to

accurately instruct his jury in this regard constitutes plain

error. This was the critical question in determining whether

Malone could prevail on his voluntary intoxication defense, and his

jury instructions, even read as a whole, fail to adequately articulate

this standard.

Id. at 200-01 (emphasis added).

In Oklahoma, a finding of plain error entails a subsidiary finding of a

violation of substantial rights, meaning the error affected the outcome of trial.

Yet, the OCCA denied relief by concluding “although we find plain error in the

trial court’s failure to properly instruct Malone’s jury on his voluntary

intoxication defense, we do not hesitate to conclude that this error was harmless

beyond a reasonable doubt in this case.” Id. at 203.

In addition to the erroneous jury instructions, counsel’s performance was

found deficient in relation to the presentation of the intoxication defense. First,

counsel failed to object to the plainly erroneous jury instructions. And, second,

counsel failed to adequately prepare its well-credentialed addiction specialist,

a medical doctor who testified in support of the intoxication defense, by not even

having this expert witness meet with Mr. Malone until the trial was well

underway. This, in turn, forced a change in defense strategy mid-trial and

facilitated the State’s impeachment of the defense expert. Although the OCCA

recognized each of these instances as deficient performance, it declined to grant

guilt-stage relief. Id. at 220-21.

Upon the re-sentencing remand for the other issues, questions began to

arise concerning Mr. Malone’s competency to stand trial. The trial court twice

sent Mr. Malone to the Oklahoma Forensic Center in Vinita, Oklahoma, for

restoration of competency. Remarkably, defense counsel eventually stipulated

Mr. Malone was competent, waived his right to a jury trial, and proceeded with

a bench re-sentencing trial before the very same judge who had been exposed to

the tainted evidence and prosecutorial misconduct that had forced the OCCA’s

remand.

This bench trial resulted in Mr. Malone again being sentenced to

death.

Mr. Malone appealed to the OCCA, which affirmed the death sentence

resulting from the bench re-sentencing trial in Malone v. State, 293 P.3d 198

(Okla. Crim. App. 2013), cert. denied, 134 S. Ct. 172.

Mr. Malone unsuccessfully sought state post-conviction relief. He pursued

an original state post-conviction action during the pendency of his second direct

appeal proceedings. The OCCA denied this application by unpublished order

April 23, 2013. See Appx. F. A successive post-conviction application was filed

November 13, 2014, but the OCCA denied relief on January 30, 2015, in an

unpublished decision. See Appx. G.

Mr. Malone timely filed a Petition for Writ of Habeas Corpus in the

Western District of Oklahoma. The federal district court denied habeas relief,

discovery, and an evidentiary hearing on November 28, 2016. See Appx. B. The

district court declined to grant a certificate of appealability (COA) as to any of

the issues raised in the Habeas Petition. An appeal was timely commenced to

the Tenth Circuit Court of Appeals, Case No. 17-6027.

During the pendency of his federal habeas action, Mr. Malone returned to

state court to litigate his competency to be executed. Ultimately, this litigation

settled. On October 26, 2017, the Pittsburg County District Court entered an

agreed stipulated Order finding Mr. Malone incompetent to be executed under

Ford v. Wainwright, 477 U.S. 399 (1986), and the related state law standard,

Bingham v. State, 169 P.2d 311 (Okla. Crim. App. 1946). See Appx. H. The state

court specifically ordered that Mr. Malone may not be executed so long as he is

incompetent and shall be transported to the Oklahoma Forensic Center in

Vinita. Id. at 7. Of note, Mr. Malone is still housed at the Oklahoma Forensic

Center in Vinita and is receiving treatment aimed at restoring his competency

to be executed.

The court below granted COA and considered, inter alia, the claims

forming the basis for the questions presented in this Petition for Writ of

Certiorari. On December 20, 2018, the Tenth Circuit issued its opinion declining

to grant habeas relief. See Appx. A. The thrust of the opinion was that

“overwhelming evidence of Defendant’s guilt” required affirmance, despite the

court’s acknowledgment of the errors impacting the voluntary intoxication

defense. Id. at 1026. This opinion will be further discussed, infra, in relation to

why certiorari should be granted.

REASONS FOR GRANTING THE WRIT

This Court Should Grant the Writ Because Subjecting Legal Claims,

Which Already Have Satisfied a Built-in Prejudice Component, to a

Second Layer of Harmless Error Analysis Is Fundamentally at Odds with

Decisions of This Court.

Mr. Malone has never disputed he caused the death of Trooper Green. The

only real issue in the first stage of Mr. Malone’s trial was whether he had the

necessary intent for first degree murder. Mr. Malone raised the defense of

voluntary intoxication, and his jury was instructed as to his defense. In realty,

however, the jury instructions failed in the critical respect of actually tying Mr.

Malone’s intoxication to the mental element for first degree murder. With correct

instructions, a jury could have properly convicted Mr. Malone of second degree

murder.

The jury was given a series of instructions as to the voluntary intoxication

defense. O.R. 523-27 (Instruction Nos. 37-41) Unfortunately, the instructions,

as given, were grossly deficient and misled the jury as to Mr. Malone’s theory of

defense. Most significantly, Instruction No. 38 failed to reference the requisite

mental state – malice aforethought – for first-degree murder. Erroneously,

Instruction No. 38 merely included the technical legal term “Mens Rea,”1 which

The term “Mens Rea” is included in Oklahoma’s uniform jury instructions

with the intention that the term be replaced with the actual mens rea applicable

to the crime at issue. Here, the mens rea for murder is malice aforethought. See

OUJI-CR 8-36.

likely meant nothing to lay jurors:

The crime of murder in the first degree has [sic] an element the

specific criminal intent of Mens Rea. A person in [sic] entitled to

the defense of intoxication if that person was incapable of forming

the specific criminal intent because of his intoxication.

O.R. 524 (citing OUJI-CR 8-36) (emphasis added).2 Instruction No. 40 put the

abstract concept of Mr. Malone’s intoxication into practice by instructing the

jury:

It is the burden of the State to prove beyond a reasonable doubt that

the defendant formed the specific criminal intent of the crime of

murder in the first degree. If you find that the State has failed

to sustain that burden, by reason of the intoxication of Ricky

Ray Malone then Ricky Ray Malone must be found not guilty

of murder in the first degree. You may find Ricky Ray Malone

guilty of murder in the second degree if the State has proved beyond

a reasonable doubt each element of the crime of murder in the

second degree.

O.R. 526 (citing OUJI-CR 8-38) (emphasis added). This instruction provided the

means by which the jury could have considered and properly convicted Mr.

Malone of second degree murder. Yet, Instruction No. 38 failed to correctly

identify the mental state required for first degree murder, instead only

referencing the technical legal term “Mens Rea.” And, Instruction 40, which put

the intoxication defense into practice, likewise failed by only mentioning “specific

The typographical errors were present in the actual jury instruction and

were corrected subsequent to Mr. Malone’s trial. See In Re Adoption of the 2005

Revisions to the Oklahoma Uniform Jury Instructions – Criminal (Second

Edition), 119 P.3d 753, 776-77 (Okla. Crim. App. 2005).

criminal intent”3 instead of malice aforethought. Because the jury was not

instructed as to the meaning of mens rea, and Instruction No. 40 did not

adequately identify which specific criminal intent was to be overcome by Mr.

Malone’s intoxication, the jury was incapable of giving effect to his defense.4

Mr. Malone Satisfied Oklahoma’s Plain Error Standard, Which

Includes a Built-in Prejudice Component.

Mr. Malone presented this error on direct appeal to the OCCA. The OCCA

found the voluntary intoxication instructions to constitute plain error; however,

it declined to grant relief because it found the error to be harmless. Plain error

review was conducted because “defense counsel did not raise an objection to the

jury instructions given at Malone’s trial.” Malone, 168 P.3d at 197. With respect

to its plain error analysis, the state court specifically held:

Yet another instruction added more confusion to the mix by conflating

the intoxication defense with the “special state of mind known as willfully.” O.R.

527, Instruction No. 41 (citing OUJI-CR 8-39). This language was confusing to

the extent it may have misled jurors to believe first degree murder to be a

general intent crime with a mental state of willfully. The OCCA concluded the

trial court was wrong to instruct the jury in this way but found the error “not

significant.” Malone, 168 P.3d at 199 nn.62-63.

On direct appeal, the OCCA was critical of the “specific criminal intent”

language, which was included in Instruction No. 40 (OUJI-CR 8-38), because the

language “did not inform Malone’s jury what specific mental state was at issue.”

Malone, 168 P.3d at 199. Subsequently, OUJI-CR 8-38 was amended to insert

the “Specific Intent Required By the Statute” in the instruction. See OUJICR(2d) 8-38 (2010 Supp.). However, Mr. Malone did not receive the benefit of

this instruction.

This leaves us with the problem in the current case that Malone’s

jury instructions did not, by themselves, adequately or accurately

inform his jury that he should prevail on his intoxication defense if

he could establish that due to methamphetamine intoxication at the

time of the crime, he was unable to form the required “malice

aforethought” for first-degree murder, i.e., if the evidence

established he was unable to form a deliberate intent to kill Trooper

Green. This Court concludes that the failure of Malone’s jury

instructions to accurately instruct his jury in this regard

constitutes plain error. This was the critical question in

determining whether Malone could prevail on his voluntary

intoxication defense, and his jury instructions, even read as

a whole, fail to adequately articulate this standard.

Id. at 200-01 (emphasis added). This holding was significant because a finding

of plain error under Oklahoma law entails, as a component, that such error

resulted in a violation of substantial rights. Hogan v. State, 139 P.3d 907, 923

(Okla. Crim. App. 2006). Specifically, pursuant to Oklahoma law, plain error

consists of: 1) an actual error (i.e., deviation from a legal rule); 2) that is plain

or obvious; and 3) that affects a defendant’s substantial rights (i.e., affects the

outcome of the proceeding). Id.; see also United States v. Olano, 507 U.S. 725,

734-36 (1993) (discussing substantial rights and plain error review in the context

of Fed. R. Crim. P. 52). Therefore, the OCCA’s finding of plain error itself

encompassed the finding that the erroneous instructions affected the outcome

of Mr. Malone’s trial, or, alternately stated, Mr. Malone was harmed as a result

of the erroneous instructions.

Nonetheless, Mr. Malone’s claim was subject to a redundant layer of

harmless error review.

Malone, 168 P.3d at 201-03.

Unequivocally

acknowledging the erroneous jury instructions to constitute plain error, the

OCCA held:

[A]lthough we find plain error in the trial court’s failure to properly

instruct Malone’s jury on his voluntary intoxication defense, we do

not hesitate to conclude that this error was harmless beyond a

reasonable doubt in this case.

Id. at 203. This harmlessness determination is contradictory considering the

state court’s earlier finding that the instructions failed to accurately instruct the

jury on the “critical question” of whether Mr. Malone was able to form malice

aforethought due to his intoxication. Id. at 200-01. This second finding of

harmlessness cannot be squared with the OCCA’s initial finding of plain error,

which included as a necessary component that Mr. Malone’s substantial rights

were violated, meaning that the erroneous instructions affected the outcome of

trial.

This Court’s Opinions Establish that Constitutional Errors

are Only Susceptible to One Layer of Harmless Error and/or

Prejudice Review.

The OCCA decision was contrary to clearly established federal law due to

the state court’s doubling up on harmless error review. See Williams v. Taylor,

529 U.S. 362, 405 (2000); 28 U.S.C. § 2254(d)(1) (holding a state court decision

is “contrary to” federal law “if the state court arrives at a conclusion opposite to

that reached by [the Supreme Court] on a question of law.”) This Court has

taken up the issue of whether a second layer of harmless error analysis may be

applied to a legal claim where the claim itself incorporates a determination of

whether the error had an affect on the outcome of the proceedings. Kyles v.

Whitley, 514 U.S. 419, 435-36 (1995). Kyles held that once a reviewing court has

found Bagley5 error then such error is not susceptible to another layer of

harmless error review. Id. at 435. A finding that a reasonable probability exists

that the result of the proceeding would have been different “necessarily entails

the conclusion that the [error] must have had ‘substantial and injurious effect

or influence in determining the jury’s verdict.’” Id. (internal citations omitted).

Just like the error discussed in Kyles, the OCCA’s plain error finding here

involved a determination that Mr. Malone’s substantial rights were violated,

meaning the error affected the outcome of the proceedings. See Hogan, 139 P.3d

at 923 (defining the components of plain error). And, Kyles made clear that in

addition to the Brady error discussed therein, other constitutional errors, which

include a built-in prejudice component cannot be subjected to a separate layer

of harmless error analysis. 514 U.S. at 436 n.9 (citing Hill v. Lockhart, 28 F.3d

832, 839 (8th Cir. 1994)). Further, Hill v. Lockhart, which this Court cited with

United States v. Bagley, 473 U.S. 667 (1985), applied Brady v. Maryland,

373 U.S. 83 (1963), in the context of the prosecution withholding impeachment

evidence.

approval in Kyles, held “it is unnecessary to add a separate layer of

harmless-error analysis to an evaluation of whether a petitioner in a habeas case

has presented a constitutionally significant claim for ineffective assistance of

counsel.” 28 F.3d at 839.

The rationale in Kyles and Hill must apply to Mr. Malone. The OCCA’s

finding of plain error, which included a finding of prejudice, is a more onerous

finding than the reasonable probability standards applied to Brady or Strickland

claims.

The OCCA found constitutional error in Mr. Malone’s voluntary

intoxication instructions utilizing its plain error review, which included the

finding of a substantial rights violation, i.e. the erroneous instructions affected

the outcome of trial. This Court’s refusal to permit two layers of harmless error

analysis once a constitutional error, which includes a built-in prejudice

component, has been found must likewise apply in Mr. Malone’s circumstance.

Accord Knowles v. Mirzayance, 556 U.S. 111, 123 (2009) (applying general

standards in habeas review).

The Writ Must Be Granted to Ensure State Courts Do Not

Impose a Doubly Burdensome Showing of Harm Upon

Defendants Who Have Already Established a Prejudicial

Constitutional Error.

Rule 10 of this Court provides, inter alia, that reasons for a grant of

certiorari include where “a state court or a United States court of appeals . . . has

decided an important federal question in a way that conflicts with relevant

decisions of this Court.” Sup. Ct. R. 10. Here, the decision below is in conflict

with the clearly established rule of Kyles v. Whitley that two layers of harmless

error review may not be applied to a constitutional error which includes a builtin prejudice component.

Certiorari should be granted to reaffirm the

fundamental principal that once a criminal defendant has demonstrated a

prejudicial constitutional error, he need not show a second time that he was

harmed as result of such error.

In the decision below, the Tenth Circuit Court of Appeals reviewed Mr.

Malone’s claim of instructional error pursuant to the restrictions imposed by the

AEDPA. Malone v. Carpenter, 911 F.3d 1022, 1032 (10th Cir. 2018). The

appeals court paid little attention to whether the OCCA’s stacking of plain error

and harmless error analyses was contrary to clearly established federal law.

Instead, the appeals court determined that the OCCA’s mention of “plain error”

only entailed the finding “that the error is plain or obvious.”6 Id. (citing Hogan,

139 P.3d at 923). Therefore, the appeals court ultimately held, “the OCCA’s

statement that there was ‘plain error’ encompassed no determination regarding

Interestingly, the State never asserted this position below. Instead, the

State argued “[w]hether Oklahoma’s plain error rule permits a harmless error

analysis is a question of state law,” which ostensibly presented no constitutional

issues appropriate for federal habeas review. See e.g., Malone v. Carpenter, Case

No. 17-6027, Supplemental Brief of Respondent-Appellee, at 14-15 (10th Cir. Aug.

16, 2018).

prejudice.” Id.

As shown, supra, the OCCA was not equivocal in its holding of plain error,

nor did that court specifically limit its finding to Mr. Malone only satisfying the

plain error component that the error was plain or obvious:

This Court concludes that the failure of Malone’s jury instructions

to accurately instruct his jury in this regard constitutes plain error.

....

[A]lthough we find plain error . . . we do not hesitate to conclude

that this error was harmless beyond a reasonable doubt in this case.

Malone, 168 P.3d at 201-03. The OCCA’s subjecting plain error to a second layer

of harmlessness review is not limited to Mr. Malone’s case. In fact, two OCCA

judges have taken issue with this practice:

Under the third element of plain error, the burden is on the

defendant to show that the obvious error affected substantial rights.

In other words, the defendant must show that the error was

prejudicial and affected the outcome of the district court

proceedings. It is in this analysis that a reviewing court considers

the prejudicial impact or harmlessness of the alleged error.

Conducting a separate harmless error analysis after finding the

existence of the three elements of plain error-as the majority does

in this case-does not comport with traditional plain error review.

See United States v. Olano, 507 U.S. 725, 734-35 (1993). For this

reason, I concur in result.

Heathco v. State, No. F-2013-547, (Okla. Crim. App. Feb. 6, 2015) (Johnson &

Lewis, JJ., concurring in results) (unpublished) (opinion attached hereto as

Appx. I). Judges Johnson’s and Lewis’s concurrence in Heathco confirms the

OCCA’s finding of plain error in Mr. Malone’s case was not limited to merely a

determination that the error was plain or obvious, as the circuit court found

below.

Assuming certiorari is granted, a likely result would be a remand to the

Tenth Circuit Court of Appeals to consider the instructional errors affecting the

voluntary intoxication defense de novo and absent AEDPA constraint. Further,

a grant of certiorari would compel state courts such as the OCCA to refrain from

engaging in a second layer of harmless error review, which deprived Mr. Malone

of relief for a constitutional error that had already been deemed prejudicial, all

in contravention of this Court’s clearly established law.

II.

This Court Should Grant the Writ Because the Federal

Courts Are Inconsistent in Considering the Synergy

Amongst Acknowledged Errors When Assessing Whether the

Cumulative Effect of the Errors Results in a Violation of

Constitutional Rights.

Background.

As noted, Mr. Malone maintained throughout that he did not intentionally

kill Trooper Green with malice aforethought. Rather, Mr. Malone was so

intoxicated on methamphetamine and pain pills at the time of the homicide that

he could not form the necessary intent for first-degree murder. Thus, the critical

issue before the jury at trial was whether the homicide was the result of malice

aforethought or whether Mr. Malone was so intoxicated that he was unable to

form the requisite intent.

At trial, three acknowledged errors eliminated from the jury’s

consideration the question of first-degree murder versus second-degree murder.

First, as discussed previously, a series of incorrect jury instructions failed to

apprise Mr. Malone’s jury of the contours of the intoxication defense. Critically,

the instructions failed to link Mr. Malone’s intoxication to malice aforethought,

and instead, only informed the jurors that his intoxication had to overcome the

technical legal term “Mens Rea.” No further explanation or guidance was offered

to allow the jury to understand this instruction. Second, Mr. Malone’s own

counsel stood idly by, without objecting to the erroneous intoxication

instructions, giving the jurors no reason to believe the jury instructions were

anything other than proper. Counsel solidified the jurors’ confusion by reurging

in closing arguments the erroneous instructional language:

We’re not talking alcohol; we’re talking meth. Meth intoxication.

Can negate the ability alone to form the mens rea for murder in the

first degree of the specific intent [sic].

Tr. 1, Vol. 5 at 1251.

The effect of these two errors, which the Oklahoma court recognized

impacted the “critical question” at the heart of Mr. Malone’s defense, was

compounded exponentially by a third error – further deficient performance.

Specifically, trial counsel called a well-credentialed addiction expert as the

centerpiece of Mr. Malone’s intoxication defense. Yet, shockingly, counsel did

not have the expert meet or evaluate Mr. Malone until the middle of trial. This

late meeting between expert and defendant resulted in new facts coming to light

– contrary to those defense counsel had previously provided the expert. This

drastic change in facts devastated the very theory counsel had laid out for the

jury. As such, defense counsel was forced to modify the theory of defense in the

midst of trial, allowing the State to impeach and discredit the critical addiction

specialist, and otherwise undermine Malone’s voluntary intoxication defense.

Because the issues of intent and intoxication were at the very core of the

defense, it was imperative that the jurors be given the proper standard by which

to assess Mr. Malone’s guilt. And, trial counsel had no more important job than

to defend against an attack on Mr. Malone’s sole defense – that his actions

precipitated from extreme intoxication instead of malice aforethought. Yet,

counsel failed miserably by standing idly by as the defense was undercut by the

jury instructions and counsel’s own deficiencies.

The Oklahoma Court of Criminal Appeals recognized both that the

instructions were legally inadequate and that counsel’s conduct with respect to

the same was deficient, but the court declined to grant relief, concluding Mr.

Malone “could not have been prejudiced.” Malone v. State, 168 P.3d 185, 198203, 221 (Okla. Crim. App. 2007). Cf. id. at 201 (“This was the critical question

in determining whether Malone could prevail on his voluntary intoxication

defense, and his jury instructions, even read as a whole, fail to adequately

articulate this standard”). Like the other two errors, the OCCA did not hesitate

to find counsel’s performance deficient with respect to the expert’s preparation:

[I]t is unreasonable and deficient performance for attorneys who are

defending a case in which the only plausible defense to first-degree

murder involves drug use that impaired the defendant’s mental

processes—where the fact that the defendant killed the victim is

established by overwhelming evidence—to fail to arrange a meeting

between the defendant and his chosen expert until the defendant’s

murder trial is well underway.

Id. at 220. However, the state court found again that Mr. Malone was not

prejudiced by counsel’s mishandling of the expert. Id.

Given that all three of these acknowledged errors cut the legs out from

underneath Mr. Malone’s voluntary intoxication defense, the errors possessed

“‘an inherent synergistic effect’ that . . . made them collectively more potent than

the sum of their parts.” Littlejohn v. Royal, 875 F.3d 548, 571 (10th Cir. 2017)

(citing Cargle v. Mullin, 317 F.3d 1196, 1221 (10th Cir. 2003)). The jury was

unable to properly consider the expert’s testimony, as well as the other evidence

at trial, that Mr. Malone lacked the specific intent for first degree murder under

the erroneous jury instructions.

On federal appellate review, the Tenth Circuit expeditiously disposed of

Mr. Malone’s cumulative error claim. The circuit court discussed the three

acknowledged errors and stated each error considered in isolation failed to merit

relief. However, the court ostensibly did not consider the synergistic effect of the

combined errors on Mr. Malone’s defense. The circuit court went as far as

acknowledging that it has “awarded relief when the errors [have] an ‘inherent

synergistic effect’ on the outcome”; however, there was no further discussion or

analysis of the synergy amongst the errors. Malone v. Carpenter, 911 F.3d 1022,

1040 (10th Cir. 2018) (citing Cargle, 317 F.3d at 1221). Instead, the circuit court

concluded only that the Brecht standard had not been met and that the evidence

against Mr. Malone was “far too compelling.”7 Malone, 911 F.3d at 1040.

Inter- and Intra-Circuit Splits on Whether Synergistic Effect

Must Be Considered.

Beyond reviewing errors in their individual capacities, this Court has

made clear that it is necessary to also consider the aggregate impact of errors in

a case.

Taylor v. Kentucky, 436 U.S. 478, 487 n.15 (1978); Chambers v.

Mississippi, 410 U.S. 284, 298 (1973). See also Kyles v. Whitley, 514 U.S. 419,

421 (1995). A cumulative-error analysis, which itself is an extension of the

harmless-error analysis, “aggregates all errors found to be harmless and

analyzes whether their cumulative effect on the outcome of the trial is such that

Cumulative error was considered by the courts below; however, the

OCCA failed to include the attorney errors in its analysis and the federal courts

failed to account for the whole of the effect caused by these three specific errors.

See, e.g., Malone, 168 P.3d at 233 (failing to include deficient attorney

performance in cumulative error analysis). As such, the circuit court’s

cumulative consideration was de novo, absent AEDPA constraint.

collectively they can no longer be determined to be harmless.” Cargle, 317 F.3d

at 1206 (quoting United States v. Toles, 297 F.3d 959, 972 (10th Cir. 2002)). See

also United States v. Rivera, 900 F.2d 1462, 1470 (10th Cir. 1990). The rationale

for this analysis is that denial of due process can arise from a single, prejudicial

error or from the combined effect of less prejudicial errors that collectively run

afoul of the fundamental fairness guarantee. Taylor, 436 U.S. at 487 n.15. See

also Rivera, 900 F.2d at 1469 (“The cumulative effect of two or more individually

harmless errors has the potential to prejudice a defendant to the same extent as

a single reversible error.”).

To this end, the circuit courts have been called upon to review for

cumulative error, with many circuits recognizing and placing heavy emphasis

on the synergy and/or interplay amongst the errors in assessing their cumulative

effect. Id. See also Mello v. DiPaulo, 295 F.3d 137, 151-52 (1st Cir. 2002);

Derden v. McNeel, 978 F.2d 1453, 1454, 1456 (5th Cir. 1992) (requiring errors to

“so infect[] the entire trial that the resulting conviction violates due process”);

Alvarez v. Boyd, 225 F.3d 820, 824 & n.1 (7th Cir. 2000) (considering errors

together to determine whether they so infected jury deliberations such that they

denied petitioner a fundamentally fair trial); Parle v. Runnels, 505 F.3d 922, 928

(9th Cir. 2007) (“[W]here the combined effect of individually harmless errors

renders a criminal defense ‘far less persuasive than it might [otherwise] have

been,’ the resulting conviction violates due process.”) (citing Chambers, 410 U.S.

at 294, 298, 302-03).

Here, the cumulative effect of the trial errors deprived Mr. Malone of his

constitutional right to a fair and reliable trial. The errors’ cumulative effect

came from their synergy; all three errors impacted Mr. Malone’s voluntary

intoxication defense. This synergy is the very type of combination that should

have warranted relief. See, e.g., Cargle, 317 F.3d at 1206. As discussed herein,

by omitting a discussion of the errors’ combined synergistic effect, the Tenth

Circuit is in conflict with its own precedent as well as other United States courts

of appeals, not to mention with prior decisions of this Court. This Court’s

settling hand is necessary to maintain uniformity of the circuits’ decisions.

The Tenth Circuit Court of Appeals has made clear that the “synergistic

effect of errors” is grounds for relief. See John Grant v. Trammell, 727 F.3d

1006, 1026 (10th Cir. 2013) (discussing synergy of errors in cumulative error

context); Cargle, 317 F.3d at 1221 (finding cumulative error due to synergistic

effect of errors); Hanson v. Sherrod, 797 F.3d 810, 853 (10th Cir. 2015) (finding

alleged errors presented “no such ‘synergistic’ effect”); Donald Grant v. Royal,

886 F.3d 874, 956 (10th Cir. 2018) (acknowledging synergistic effect “such that

the errors may be ‘collectively more potent than the sum of their parts’”);

Littlejohn, 875 F.3d at 571 (finding no “particularized synergy” between alleged

errors).

The Tenth Circuit’s precedent is best demonstrated in Donald Grant, 886

F.3d at 954-57, and Littlejohn, 875 F.3d at 570-71.

In Grant, the court

considered two instances of deficient attorney performance, concluding the two

errors did not collectively render Grant’s trial fundamentally unfair. 886 F.3d

at 956.

It was only then, after this initial determination, that the court

considered whether the two errors possessed an “inherent synergistic effect,”

which could warrant relief. Id. The Grant court observed that the petitioner

had failed to argue the two errors in question had any particularized synergy;

therefore, the court declined to apply the “synergy principle of Cargle.” Id.

In Littlejohn, the circuit court considered three errors in cumulation. 875

F.3d at 570. First, the errors, termed “three dashes of modest prejudice,” were

considered in the aggregate such that the errors failed to result in a “recipe”

worthy of habeas relief. Id. Then, the Tenth Circuit considered whether the

three errors were synergistic such that collectively the errors were “more potent

than the sum of their parts.” Id. at 571 (citing Cargle, 317 F.3d at 1221). While

ultimately the Littlejohn court concluded there was no “particularized synergy”

between a notice error and two other errors, the Court made clear the synergistic

element of its analysis. Id.

Other appeals courts are in step with this practice. See, e.g., Williams v.

Drake, 146 F.3d 44, 49 (1st Cir. 1998) (“[W]e will order a new trial on the basis

of cumulative error only if multiple errors synergistically achieve ‘the critical

mass necessary to cast a shadow upon the integrity of the verdict.’”) (quoting

United States v. Sepulveda, 15 F.3d 1161, 1196 (1st Cir. 1993)); Sepulveda, 15

F.3d at 1196 (“a column of errors may sometimes have a logarithmic effect,

producing a total impact greater than the arithmetic sum of its constituent

parts. . . . [T]he errors were not portentous; . . . [T]hey possessed no special

symbiotic effect”); United States v. Houston, 481 F. App’x 188, 194 (5th Cir. 2012)

(“[T]he synergistic effect of these errors as a whole severely prejudiced Houston.

. . . Cumulative error analysis evaluates ‘the number and gravity of the errors

in the context of the case as a whole’ (quoting United States v. Valencia, 600 F.3d

389, 429 (5th Cir. 2010)) . . . . ‘The doctrine justifies reversal only in the unusual

case in which synergistic or repetitive error violates the defendant’s

constitutional right to a fair trial’” (quoting United States v. Delgado, 672 F.3d

320, 344 (5th Cir. 2012))); Alvarez v. Boyd, 225 F.3d 820, 824 (7th Cir. 2000) (“To

prevent the synergistic effect of these errors from escaping review, courts

attempt to determine whether the whole is greater than the sum of its parts.”);

Ybarra v. McDaniel, 656 F.3d 984, 1001 (9th Cir. 2011) (“We have granted

habeas relief under the cumulative effects doctrine when there is a ‘unique

symmetry’ of otherwise harmless errors, such that they amplify each other in

relation to a key contested issue in the case” (quoting Parle, 505 F.3d at 933)).

In each of these cases, the various circuits have recognized and applied a

synergistic effect analysis as part of the court’s cumulative error review.

However, other circuits – namely, the Second, Third, Fourth, Sixth, Eighth,

Eleventh, and Twelfth Circuits – have either not recognized this crucial

component or have failed to consistently apply the standard. Either way, this

Court should grant the writ of certiorari to clarify that the synergistic effect of

combined errors must not be bypassed by the federal courts when conducting a

cumulative error analysis.

In a case such as this, the synergistic effect of recognized errors can and

does have a significant impact. Clarification from this Court is needed to enforce

this necessary consideration in capital cases.

CONCLUSION

It is beyond dispute that the jury instructions failed to adequately apprise

Mr. Malone’s jury of his voluntary intoxication defense. Yet, the OCCA applied

two distinct layers of prejudice review to save the capital conviction. A grant of

certiorari is necessary to ensure state courts do not ignore the prior decisions of

this Court, which require reversal once prejudice has been shown to result from

a constitutional violation. Apart from the erroneous instructions, two instances

of ineffective counsel also encroached upon Mr. Malone’s right to present his

defense. Yet, the Tenth Circuit and other circuit courts will fail to review

constitutional errors – not warranting relief individually – for their combined

synergistic effect. At minimum, the Constitution requires that Mr. Malone have

the opportunity to present his intoxication defense to a properly instructed jury.

Petitioner, Ricky Malone, respectfully prays this Court grant the petition for

writ of certiorari to emphasize habeas petitioners need not show they have been

doubly harmed prior to garnering relief and to make clear the standards upon

which the circuit courts must review the combined effect of synergistic

constitutional errors.

Respectfully submitted,

s/ Robert S. Jackson