Opposition Brief — Ronson Kyle Bush, Petitioner v. Tommy Sharp, Interim Warden

Supreme Court briefMar 30, 2020

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No. 19-7455

In the

SUPREME COURT OF THE UNITED STATES

____________________________________

RONSON KYLE BUSH,

Petitioner,

-vsTOMMY SHARP, Interim Warden,

Oklahoma State Penitentiary,

Respondent.

____________________________________

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Tenth Circuit

____________________________________

BRIEF IN OPPOSITION TO PETITION

FOR WRIT OF CERTIORARI

____________________________________

Mike Hunter

Attorney General of Oklahoma

Caroline E.J. Hunt*

Asst. Attorney General

Counsel of Record

Oklahoma Office of the Attorney General

313 NE Twenty-First St.

Oklahoma City, OK 73105

(405) 521-3921 Fax (405) 521-4534

caroline.hunt@oag.ok.gov

*Counsel of Record

March 30, 2020

CAPITAL CASE

QUESTIONS PRESENTED

Whether this Court should grant a writ of certiorari to review

the Tenth Circuit’s rule for determining the existence of clearly established

federal law when that rule is in conflict with neither this Court nor other

circuits?

Whether this Court should grant a writ of certiorari to review a

challenge to an aggravating circumstance that was not pressed or passed

upon below and is, in any event, squarely foreclosed by this Court’s

precedents?

TABLE OF CONTENTS

PAGE

QUESTIONS PRESENTED.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i

STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

REASONS FOR DENYING THE WRIT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

PETITIONER HAS NOT SHOWN THAT THE TENTH

CIRCUIT’S DECISION CONFLICTS WITH THIS

COURT’S PRECEDENTS, AND THE CIRCUIT SPLIT

HE ALLEGES IS ILLUSORY. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

The Tenth Circuit Is Not In Conflict With This Court. . . . . . . . . . . . . . 6

The Circuit Split Petitioner Alleges Is Illusory.. . . . . . . . . . . . . . . . . . 15

Petitioner’s Claim Is Entirely Without Merit. . . . . . . . . . . . . . . . . . . . . 22

II.

PETITIONER PRESENTS AN ISSUE THAT WAS

NEITHER PRESSED NOR PASSED UPON BELOW

AND IS, IN ANY EVENT, SQUARELY FORECLOSED

BY THIS COURT’S PRECEDENTS. . . . . . . . . . . . . . . . . . . . . . . . . 23

Background of Petitioner’s HAC Claims and Pavatt. . . . . . . . . . . . . . 24

Petitioner’s Pavatt-Based Facial Challenge to HAC was Neither

Pressed Nor Passed Upon Below. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

Petitioner’s Facial Challenge to HAC is Squarely Foreclosed by this

Court’s Precedents. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

Petitioner’s Sufficiency Challenge is Likewise Unworthy of

Certiorari Review. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

iii

TABLE OF AUTHORITIES

FEDERAL CASES

Arizona v. Evans,

514 U.S. 1 (1995)...................................................................................................... 21

Atkins v. Virginia,

536 U.S. 304 (2002) ................................................................................................. 21

Barnes v. Joyner,

751 F.3d 229 (4th Cir. 2014) .................................................................................. 16

Bell v. Cone,

543 U.S. 447 (2005) ................................................................................................. 29

Blackmon v. Booker,

696 F.3d 536 (6th Cir. 2012) .................................................................................. 17

Bobby v. Bies,

556 U.S. 825 (2009) ................................................................................................. 17

Brumfield v. Cain,

135 S. Ct. 2269 (2015) ............................................................................................. 21

Bush v. Carpenter,

926 F.3d 644 (10th Cir. 2019) ....................................................................... Passim

Carey v. Musladin,

549 U.S. 70 (2006) .......................................................................................... Passim

Carter v. Kentucky,

450 U.S. 288 (1981) ................................................................................................. 12

Cole v. Trammell,

755 F.3d 1142 (10th Cir. 2014) .............................................................................. 17

Cuesta-Rodriguez v. Carpenter,

916 F.3d 885 (10th Cir. 2019) ................................................................................ 18

Cutter v. Wilkinson,

544 U.S. 709 (2005) ................................................................................................. 28

Darden v. Wainwright,

477 U.S. 168 (1986) ................................................................................................. 17

Donnelly v. DeChristoforo,

416 U.S. 637 (1974) ................................................................................................. 17

Estelle v. Williams,

425 U.S. 501 (1976) ............................................................................... 10, 13, 14, 15

Ford v. Wainwright,

477 U.S. 399 (1986) ..................................................................................... 12, 13, 20

Franklin v. Bradshaw,

695 F.3d 439 (6th Cir. 2012) .................................................................................. 17

Glenn v. Wynder,

743 F.3d 402 (3d Cir. 2014) ....................................................................... 18, 19, 20

Godfrey v. Georgia,

446 U.S. 420 (1980) ................................................................................................. 25

Hancock v. Trammell,

798 F.3d 1002 (10th Cir. 2015) .............................................................................. 26

Harris v. Alexander,

548 F.3d 200 (2d Cir. 2008) ................................................................................... 17

Holbrook v. Flynn,

475 U.S. 560 (1986) ..................................................................................... 10, 13, 14

Hope v. Pelzer,

536 U.S. 730 (2002) ................................................................................................. 12

Hopkins v. Workman,

47 F. App’x 893 (10th Cir. 2002) ........................................................................... 16

House v. Hatch,

527 F.3d 1010 (10th Cir. 2008) ..................................................................... Passim

Housen v. Gelb,

744 F.3d 221 (1st Cir. 2014) .................................................................................. 18

Jackson v. Conway,

763 F.3d 115 (2d Cir. 2014) ................................................................................... 17

Jackson v. Virginia,

443 U.S. 307 (1979) ............................................................................... 24, 25, 27, 30

Jamison v. Klem,

544 F.3d 266 (3d Cir. 2008) ................................................................................... 16

Kolender v. Lawson,

461 U.S. 352 (1983) ................................................................................................. 16

Lewis v. Jeffers,

497 U.S. 764 (1990) ..................................................................................... 30, 31, 32

Littlejohn v. Trammell,

704 F.3d 817 (10th Cir. 2013) ................................................................................ 18

Lockyer v. Andrade,

538 U.S. 63 (2003) ................................................................................................... 12

Lyons v. Brady,

666 F.3d 51 (1st Cir. 2012) .................................................................................... 17

Marshall v. Rodgers,

569 U.S. 58 (2013) ................................................................................................... 12

Maynard v. Cartwright,

486 U.S. 356 (1988) ........................................................................................... 29, 30

McWilliams v. Dunn,

137 S. Ct. 1790 (2017) ............................................................................................. 31

Musladin v. Lamarque,

555 F.3d 830 (9th Cir. 2009) ............................................... 6, 7, 8, 9, 10, 13, 15, 21

North Carolina v. Alford,

400 U.S. 25 (1970) ............................................................................................... 4, 14

Owens v. Duncan,

781 F.3d 360 (7th Cir. 2015) ............................................................................ 16, 21

Panetti v. Quarterman,

551 U.S. 930 (2007) ............................................................................... 11, 12, 13, 20

Parle v. Runnels,

505 F.3d 922 (9th Cir. 2007) .................................................................................. 18

Pavatt v. Carpenter,

928 F.3d 906 (10th Cir. 2019) .................................................................... 25, 26, 27

Pavatt v. Royal,

859 F.3d 920 (10th Cir. 2017) .................................................................... 25, 26, 27

Pavatt v. Royal,

894 F.3d 1115 (10th Cir. 2017) .................................................................. 25, 26, 27

Rashad v. Walsh,

300 F.3d 27 (1st Cir. 2002) .................................................................................... 16

Riggins v. Nevada,

504 U.S. 127 (1992) ..................................................................................... 18, 19, 20

Rivera v. Quarterman,

505 F.3d 349 (5th Cir. 2007) ............................................................................ 20, 21

Shoop v. Hill,

139 S. Ct. 504 (2019) ......................................................................................... 21, 22

Sprietsma v. Mercury Marine,

537 U.S. 51 (2002) ................................................................................................... 28

State v. Walton,

769 P.2d 1017 (Ariz. 1989) ..................................................................................... 30

Stouffer v. Trammell,

738 F.3d 1205 (10th Cir. 2013) .............................................................................. 17

Strickland v. Washington,

466 U.S. 668 (1984) ................................................................................................. 11

The Monrosa v. Carbon Black Exp., Inc.,

359 U.S. 180 (1959) ................................................................................................. 22

Thomas v. Goodrich,

750 F. App’x 637 (10th Cir. 2018)......................................................................... 21

Torres v. Lytle,

461 F.3d 1303 (10th Cir. 2006) .............................................................................. 17

United States v. Cronic,

466 U.S. 648 (1984) ................................................................................................. 11

vii

United States v. Williams,

504 U.S. 36 (1992) ................................................................................................... 28

Walton v. Arizona,

497 U.S. 639 (1990) ........................................................................................... 29, 30

Whatley v. Zatecky,

833 F.3d 762 (7th Cir. 2016) .................................................................................. 16

White v. Woodall,

572 U.S. 415 (2014) ..................................................................................... 12, 14, 15

Wiggins v. Smith,

539 U.S. 510 (2003) ................................................................................................. 12

Wiley v. Epps,

625 F.3d 199 (5th Cir. 2010) ............................................................................ 20, 21

Williams v. Illinois,

567 U.S. 50 (2012) ................................................................................................... 23

Williams v. Taylor,

529 U.S. 362 (2000) ................................................................................................. 12

Wright v. Van Patten,

552 U.S. 120 (2008) ............................................................................................... 6, 9

Young v. Attorney Gen. for New Mexico,

534 F. App’x 707 (10th Cir. 2013)......................................................................... 17

STATE CASES

Bush v. State,

280 P.3d 337 (Okla. Crim. App. 2012) ........................................................... Passim

FEDERAL STATUTES

28 U.S.C. § 2254 .................................................................................................. 5, 7, 12

28 U.S.C. § 2254(d) ....................................................................... 6, 7, 8, 11,15, 16, 21

28 U.S.C. § 2254(e) ....................................................................................................... 2

42 U.S.C. § 1983 .......................................................................................................... 12

viii

STATE STATUTES

Okla. Stat. tit. 21, § 701-12 ......................................................................................... 5

RULES

Sup. Ct. R. 10(a)......................................................................................................... 15

Sup. Ct. R. 10(c) ........................................................................................................... 7

Sup. Ct. R. 12.7 ............................................................................................................ 1

No. 19-7455

IN THE

SUPREME COURT OF THE UNITED STATES

RONSON KYLE BUSH,

Petitioner,

vs.

TOMMY SHARP, Interim Warden,

Oklahoma State Penitentiary,

Respondent.

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Tenth Circuit

BRIEF IN OPPOSITION TO PETITION

FOR WRIT OF CERTIORARI

Respondent respectfully urges this Court to deny Petitioner Ronson Kyle

Bush’s (hereinafter, “Petitioner”) petition for a writ of certiorari to review the

published opinion of the United States Court of Appeals for the Tenth Circuit

entered in this case on June 10, 2019, affirming the denial of habeas relief. Bush v.

Carpenter, 926 F.3d 644 (10th Cir. 2019), Pet’r Appx. A. 1

References in this brief are abbreviated as follows: citations to Petitioner’s Petition for

Writ of Certiorari are cited as “Petition”; citations to Petitioner’s trial transcripts are cited

as “Tr.”; and citations to the State’s trial exhibits are cited as “State’s Ex.” See Sup. Ct. R.

12.7.

STATEMENT OF THE CASE

Factual Background

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

forth the relevant facts in its published opinion. Bush v. State, 280 P.3d 337, 342

(Okla. Crim. App. 2012), Pet’r Appx. E. Such facts are presumed correct under the

Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”).

28 U.S.C.

§ 2254(e)(1). According to the OCCA:

On the evening of December 22, 2008, while at Billy

Harrington’s home, Ronson Bush shot Harrington six times with

Harrington’s .357 caliber revolver. Harrington made it to the front

yard of the home, where he collapsed. Bush then tied Harrington to

the back of his pickup and dragged him into a field near the house.

By all accounts, Harrington and Bush had been best friends for

a number of years. Harrington did what he could to aid Bush who

dealt with addictions, paranoia, and other related mental illnesses.

Harrington’s final attempts to assist Bush came just days before the

shooting. On December 18, Harrington attempted to take Bush to

Griffin Memorial Hospital in Norman, Oklahoma but Bush was

exceedingly drunk, and the two men fought during the trip.

Harrington left Bush in a parking lot in Norman, and drove on to

Tulsa for work. Bush hitched a ride back to Harrington’s trailer. When

Harrington arrived home that evening, accompanied by Jimmy

Barrington, they found Bush passed out on the couch with

Harrington’s firearms purposefully placed around the house.

After calling the sheriff’s office to send someone to the house,

Harrington again agreed to take Bush back to Griffin Memorial

Hospital, where Bush voluntarily admitted himself for treatment.

Bush, however, on December 22, checked himself out of the hospital,

called Harrington for a ride, and returned to Harrington’s home. Bush

drank vodka from a pint bottle purchased in Blanchard on the way

home. Once home, both men shot guns off the porch and played with

Harrington’s dog. Harrington also gave Bush a haircut.

Sometime around 7:15 p.m., Harrington was talking on the

phone with his girlfriend who could hear Bush in the background.

Bush took a photograph of Harrington and nothing seemed amiss;

minutes later, however, Bush shot and killed Harrington.

Bush explained that things started downhill when he mentioned

getting Christmas presents for Stephanie Morgan, an ex-girlfriend,

and her son. Bush said that Harrington told him that he should forget

about Morgan as she was sleeping with other people. According to

Bush, Harrington went on to say that even he had “fucked” her. Bush

said he then snapped, picked up the .357 revolver, and started shooting

Harrington. Bush kept shooting as Harrington got up, went to the

kitchen, collapsed, then got up and walked outside.

At around 7:44 p.m. Harrington’s mother, Kathy Harrington,

tried to call Harrington’s cell phone, but Bush answered. Bush kept

putting Mrs. Harrington off, probably because Harrington was already

dead. Mrs. Harrington called friends who went to the home and

discovered Harrington’s body in the field.

Bush, in the mean time, left the trailer in Harrington’s truck,

bought some beer, and drove to Ms. Morgan’s home. Bush kicked in

the back door and entered Morgan’s unoccupied home. He waited on

her to arrive and drank some alcohol from a commemorative bottle she

had stored in her bedroom.

Morgan arrived home and was unable to turn on the bedroom

lights. She heard Bush say that he heard her come in. Bush was in

the bedroom lying on the bed. Morgan tried to get away by walking

out and getting in her car. Bush, however, got in the passenger side.

Morgan was finally able to let someone know that Bush was there, get

him out of the car, and drive away.

Authorities arrived at Morgan’s home, and Bush was arrested

for violating a protective order Morgan had against him. Bush, at the

time of the arrest, confessed to shooting Harrington.

Bush, 280 P.3d at 342-43 (paragraph numbering omitted).

In the penalty phase, the defense’s theory that Petitioner received “a drug

known to exacerbate Bipolar Disorder and, indeed, to activate violent manic

episodes,” Petition at 4, was thoroughly discredited. According to the State’s expert,

Petitioner was given Celexa, a commonly prescribed Selective Serotonin Reuptake

Inhibitor (“SSRI”) that had been shown to cause aggression in a very small

percentage of patients; “aggression” did not equal homicidal violence, and no study

had ever linked Celexa to homicide; and Petitioner had previously taken SSRIs and

reported symptoms that were the opposite of aggression, including feeling “out of it”

with a lack of emotion (Tr. 1836-48). Petitioner’s suggestion that he immediately

“confessed . . . and became wracked with remorse,” Petition at 4, is likewise

inaccurate. Petitioner neglects to mention that he dragged Mr. Harrington’s stillalive body across Mr. Harrington’s large property with Mr. Harrington’s own truck,

causing catastrophic blunt force trauma to Mr. Harrington’s face and body; taunted

Mr. Harrington’s frantic mother over the phone about the fate of her son; terrorized

his ex-girlfriend, who had a protective order against him and against whom he had

previously committed domestic violence; and told multiple, ever-evolving stories

about what happened over the course of three police interviews, including claiming

at first he did not remember killing Mr. Harrington (Tr. 947-48, 968-76, 1112-13,

1117, 1133-55; State’s Exs. 11, 12, 13).

Procedural Background

Petitioner entered an Alford 2 plea to first degree murder for the death of

Billy Harrington and pleaded guilty to one count of possession of a firearm after

former conviction of a felony. Bush, 280 P.3d at 341. Pursuant to Oklahoma law,

the case proceeded to a non-jury sentencing proceeding. Id. At the conclusion of the

penalty phase, the trial judge imposed a death sentence after finding the existence

2 North Carolina v. Alford, 400 U.S. 25, 37 (1970).

of three aggravating circumstances: (1) that the murder was especially heinous,

atrocious, or cruel (“HAC”); (2) that Petitioner constitutes a continuing threat to

society; and (3) that the murder was committed while Petitioner was serving a

sentence of imprisonment. Id. at 341-42; see OKLA. STAT. tit. 21, § 701-12(4), (6), (7).

The OCCA affirmed Petitioner’s convictions and sentences, Bush, 280 P.3d at

353, and this Court denied certiorari review, Bush v. Oklahoma, 568 U.S. 1216

(2013). Thereafter, the OCCA denied Petitioner’s application for post-conviction

relief in an unpublished decision. Bush v. State, No. PCD-2010-399, slip op. (Okla.

Crim. App. Oct. 1, 2012) (unpublished), Pet’r Appx. F.

The federal district court denied Petitioner’s § 2254 petition in an

unpublished memorandum opinion. Bush v. Royal, No. CIV-13-266-R, slip op. (W.D.

Okla. Oct. 17, 2016); Pet’r Appx. B. On appeal, the Tenth Circuit affirmed the

denial of habeas relief. Bush, 926 F.3d at 647. Relevant here, the Tenth Circuit

rejected, as unsupported by clearly established Supreme Court law, Petitioner’s

claim that the trial court, in sentencing, improperly considered in aggravation an

offer of proof regarding evidence it had declared inadmissible. Id. at 651-57. The

Tenth Circuit also denied Petitioner’s pending motion for expansion of his certificate

of appealability (“COA”). Id. at 687.

The Tenth Circuit denied panel and en banc rehearing. Bush v. Sharp, No.

16-6318, Order (10th Cir. Aug. 29, 2019) (unpublished); Pet’r Appx. G.

January 24, 2020, Petitioner filed a petition for writ of certiorari with this Court

seeking review of the Tenth Circuit’s decision.

REASONS FOR DENYING THE WRIT

PETITIONER HAS NOT SHOWN THAT THE

TENTH CIRCUIT’S DECISION CONFLICTS WITH

THIS COURT’S PRECEDENTS, AND THE CIRCUIT

SPLIT HE ALLEGES IS ILLUSORY.

Petitioner’s first question presented, challenging the Tenth Circuit’s rule for

the determination of clearly established federal law, does not warrant certiorari

review. The Tenth Circuit’s rule, which the circuit announced following Carey v.

Musladin, 549 U.S. 70 (2006), and Wright v. Van Patten, 552 U.S. 120 (2008) (per

curiam), is fully supported by these cases. Nor is the rule in conflict with any of the

other Supreme Court cases cited by Petitioner. Based on the Tenth Circuit’s rule,

the panel here correctly concluded that Petitioner’s claim failed for lack of clearly

established law. Furthermore, the circuit split alleged by Petitioner is illusory. The

Tenth Circuit’s rule is in harmony with a majority of the cases identified by

Petitioner. He has shown only some tension between the Tenth Circuit’s rule and

two Fifth Circuit cases, which amounts to, at most, a shallow circuit split that does

not warrant this Court’s intervention.

Finally, even assuming the existence of

clearly established federal law, Petitioner’s underlying constitutional claim is

totally without merit. Certiorari should be denied.

The Tenth Circuit Is Not In Conflict With This Court

Petitioner contends that the Tenth Circuit applies a “factual similarity

requirement” to § 2254(d)(1)’s “clearly established Federal law” provision that is in

conflict with this Court’s cases. Petition at 10-16. “A petition for a writ of certiorari

will be granted only for compelling reasons,” including for example where “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(c). Here, however,

Petitioner has not shown any conflict between the Tenth Circuit’s test for

determining clearly established federal law and the precedents of this Court.

The Tenth Circuit’s House Rule

The AEDPA provides, in pertinent part, that habeas relief may not be

granted on a claim decided on the merits by a state court unless the state court’s

rejection of the claim “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.” 28 U.S.C. § 2254(d)(1) (emphasis added). As

Petitioner acknowledges, Petition at 10, the Tenth Circuit announced its rule for the

determination of clearly established federal law in House v. Hatch, 527 F.3d 1010

(10th Cir. 2008), cert. denied, 555 U.S. 1187 (2009).

In House, in an opinion

authored by the Honorable Jerome A. Holmes, the Tenth Circuit analyzed at length

this Court’s then-recent decision in Carey v. Musladin, 549 U.S. 70 (2006), and its

effect on the determination of clearly established federal law. House, 527 F.3d at

1015-18.

In the portion of House objected to by Petitioner, the Tenth Circuit

concluded as follows: “[I]n the post-Musladin analysis, clearly established law

consists of Supreme Court holdings in cases where the facts are at least closelyrelated or similar to the case sub judice.” House, 527 F.3d at 1016.

In the present case, the panel determined that Musladin and House

foreclosed relief:

“[I]n the post-Musladin analysis, clearly established law consists

of Supreme Court holdings in cases where the facts are at least closelyrelated or similar to the case sub judice.” [House, 527 F.3d] at 1016.

That presents a problem for Bush. None of the Supreme Court

cases he has cited in his appellate brief involved facts remotely similar

to the facts at issue in his case, i.e., a trial judge who selected and

imposed a death sentence after considering an offer of proof of

inadmissible aggravating evidence. Indeed, none of the cases he has

cited separately involved either the consideration of an offer of proof of

inadmissible evidence in any context, or a capital case. Thus, at best,

the cases cited by Bush stand for very broad principles of due process.

In light of Musladin and House, however, that is not sufficient to

constitute clearly established federal law for purposes of § 2254(d).

And, under House, “[t]he absence of clearly established federal law is

dispositive under § 2254(d)(1).” 527 F.3d at 1018.

Bush, 926 F.3d at 657.

Petitioner claims that the House rule requires “similar facts” and that this is

contrary to this Court’s precedents. Petitioner attacks a straw man. The Tenth

Circuit does not require a similar fact pattern to find clearly established Supreme

Court law, as Petitioner suggests. See Petition at 10 (“The Tenth Circuit’s holding

in this case that § 2254(d)(1) forbids relief absent prior Supreme Court decisions on

similar facts exemplifies a longstanding jurisprudence in that court that is

overwhelmingly focused on the presence or absence of such factual similarity.”

(emphasis added)). Rather, the Tenth Circuit requires only that clearly established

Supreme Court law arise in a similar context.

Indeed, the House Court made this point clear immediately after the

complained-of language: “Although the legal rule at issue need not have had its

genesis in the closely-related or similar factual context, the Supreme Court must

have expressly extended the legal rule to that context.” House, 527 F.3d at 1016-17

(citing Wright v. Van Patten, 552 U.S. 120, 124-25 (2008) (per curiam)) (emphasis

added). Footnote 5, placed at the end of this sentence, expounded on this point at

length:

Notably, the Musladin Court did not appear to

predicate the presence of clearly established federal law

upon the existence of Supreme Court holdings involving

essentially identical factual circumstances.

In other

words, the Court did not insist upon exact factual identity

between existing Supreme Court cases and the case sub

judice. For example, the Court did not focus on the

precise nature of the privately-initiated courtroom

conduct at issue—the wearing of buttons bearing the

likeness of the deceased.

Rather, in referring to

“courtroom conduct of the kind involved here,” the Court

seemingly distinguished between the allegedly prejudicial

effect of government-sponsored, as opposed to privatelyinitiated, courtroom conduct. Arguably then, had a prior

Supreme Court holding involved the prejudicial effect of

privately-initiated courtroom conduct—even if that

conduct was unrelated to the wearing of buttons—the

Court would likely have concluded that clearly

established federal law existed.

. . . [F]ederal courts may no longer extract clearly

established law from the general legal principles

developed in factually distinct contexts.

House, 527 F.3d at 1016 n. 5 (citations omitted, final emphasis added).

The House Rule Is Fully Supported by this Court’s Cases

The House Court cited Musladin and Van Patten in support of its

requirement of a “similar factual context” for clearly established federal law.

House, 527 F.3d at 1016-17. A review of Musladin and Van Patten confirms the

correctness of the House rule. In Musladin, this Court considered whether this

Court’s precedents holding that “certain courtroom practices are so inherently

prejudicial that they deprive the defendant of a fair trial” constituted clearly

established federal law for purposes of deciding whether “buttons displaying the

victim’s image worn by the victim’s family during respondent’s trial . . . den[ied]

respondent his right to a fair trial.” Musladin, 549 U.S. at 72. This Court answered

that question in the negative. Id. at 77. This Court observed that its two cases that

“addressed the effect of courtroom practices on defendants’ fair-trial rights”—Estelle

v. Williams, 425 U.S. 501 (1976), and Holbrook v. Flynn, 475 U.S. 560 (1986)—

”dealt with government-sponsored practices.” Musladin, 549 U.S. at 75. Musladin’s

claim, on the other hand, involved “private-actor courtroom conduct.” Id. at 76.

This Court had never addressed such a claim or extended the rule from Williams

and Flynn to that context. Id. Furthermore, “part of the legal test of Williams and

Flynn—asking whether the practices furthered an essential state interest—

suggest[ed] that those cases apply only to state-sponsored practices.” Id.

Thus, in Musladin, this Court looked for a precedent with a similar factual

context to determine whether clearly established Supreme Court law existed for

Musladin’s claim. As House expressly recognized, this “Court did not focus on the

precise nature of the . . . courtroom conduct at issue,” i.e., the wearing of buttons,

but instead looked to the broader question of whether the context was the same, i.e.,

whether the conduct was privately or government-initiated. House, 527 F.3d at

1016 n. 5.

In other words, while Musladin does not require an identical fact

pattern, it does support the requirement of a “similar factual context,” as imposed

by House.

Van Patten also fully supports the House rule. In Van Patten, the Seventh

Circuit granted habeas relief based on its conclusion that United States v. Cronic,

466 U.S. 648 (1984), under which prejudice is presumed, applied to Van Patten’s

claim that counsel rendered ineffective assistance in participating in his plea

hearing only over speakerphone.

Van Patten, 552 U.S. at 121-22.

This Court

reversed, finding no clearly established federal law required that prejudice be

presumed as to Van Patten’s claim.

Id. at 126.

This Court reasoned that

Strickland v. Washington, 466 U.S. 668 (1984), ordinarily applies to claims of

ineffective assistance at the plea hearing stage, and “[n]o decision of this Court . . .

clearly establishes that Cronic should replace Strickland in this novel factual

context.”

Van Patten, 552 U.S. at 125-26 (emphasis added).

Thus, Van Patten

explicitly supports the House rule’s “similar factual context” requirement.

The House Rule Does Not Conflict with any of this Court’s

Precedents

Petitioner’s belief that the House rule contradicts this Court’s precedent rests

on a misreading of cases elucidating the difference between the “contrary to” and

“unreasonable application” clauses of § 2254(d)(1) to say something about the

meaning of the “clearly established Federal law” provision of that statute. He relies

principally on Panetti v. Quarterman, 551 U.S. 930 (2007), but also cites to a

number of other cases of this Court. Petition at 12-13. However, these cases stand

only for the unremarkable proposition that while the “contrary to” clause prohibits

a state court from deciding a case differently than this Court on “materially

indistinguishable facts,” the “unreasonable application” clause does not require

materially identical facts. See White v. Woodall, 572 U.S. 415, 427 (2014); Marshall

v. Rodgers, 569 U.S. 58, 62 (2013) (per curiam); Panetti, 551 U.S. at 953; Wiggins v.

Smith, 539 U.S. 510, 520 (2003); Lockyer v. Andrade, 538 U.S. 63, 73 (2003);

Williams v. Taylor, 529 U.S. 362, 406 (2000). 3

Nothing in the above-cited cases says or even suggests that the

“unreasonable application” clause allows a federal court to grant relief based on a

Supreme Court case that arose in a different context than the case at hand. In fact,

one case relied on by Petitioner, Woodall, found a lack of clearly established federal

law based on a difference in context—guilt phase versus penalty phase.

Specifically, the Woodall Court held that Carter v. Kentucky, 450 U.S. 288 (1981)—

which requires “at the guilt phase” “a no-adverse-inference instruction” based on a

defendant’s failure to testify—does not clearly establish the same requirement for a

capital penalty phase. Woodall, 572 U.S. at 420-27 (emphasis in original).

As noted previously, Petitioner relies principally on Panetti, claiming that

there this Court found an unreasonable application of “Ford v. Wainwright, 477

U.S. 399 (1986), even though the facts of Panetti were fundamentally different from

the facts under which Ford’s due process principles were announced.” Petition at

13. Again, Petitioner confuses facts with context. Ford brought a claim that he was

incompetent to be executed. See Ford, 477 U.S. at 403-04. This Court ultimately

3 Hope v. Pelzer, 536 U.S. 730, 741 (2002), which discusses qualified immunity for purposes

of 42 U.S.C. § 1983, and has nothing to do with § 2254, is inapposite. Petition at 12.

held that “the Eighth Amendment prohibits a State from carrying out a sentence of

death upon a prisoner who is insane.” Id. at 409-10; see also Panetti, 551 U.S. at

950-51 (explaining that Ford clearly established that a prisoner who makes a

substantial showing of incompetence is entitled to a fair hearing, including the right

to be heard and submit evidence).

Panetti also brought a claim that he was

incompetent to be executed. Panetti, 551 U.S. at 935. These are identical contexts,

and there was no question that Ford supplied the clearly established federal law

applicable to Panetti’s claim.

The Tenth Circuit Correctly Concluded that Musladin Does Not

Provide Clearly Established Federal Law Applicable to

Petitioner’s Claim

As before the Tenth Circuit, Petitioner claims that Musladin supplies the

clearly established federal law applicable to his claim, Petition at 15; Bush, 926

F.3d at 656, presumably referring to this Court’s discussion of Williams and Flynn.

The Tenth Circuit correctly rejected this argument. For starters, Petitioner fails to

appreciate the problem that contributed to the lack of clearly established law both

in Musladin and in his case. As Musladin noted, the test of Williams and Flynn—

”asking whether the practices furthered an essential state interest”—did not fit the

context in which Musladin sought to apply the test, as his case involved private

conduct and no state interest. Musladin, 549 U.S. at 76. Petitioner’s case likewise

presents a problem of fit. Williams and Flynn both dealt with “courtroom conduct”

or “practices,” id., that persisted throughout the trial, specifically, forcing the

defendant to stand trial in prison garb, Williams, 425 U.S. at 502, and the

placement of “four uniformed state troopers” seated directly behind the defendant at

trial, Flynn, 475 U.S. at 562.

Indeed, as the phrases “conduct” and “practice”

connote, Williams emphasized how the defendant’s jail clothing provided a

“constant reminder” to, and “continuing influence” on, the jury. Williams, 425 U.S.

at 504-05.

The factual context of Petitioner’s claim, involving the prosecutor’s

discrete reading of a single offer of proof to the trial judge, can hardly be described

as “courtroom conduct” or a “practice.”

Further, Williams and Flynn were both concerned with factors that have no

bearing on Petitioner’s claim—courtroom practices that undermine the presumption

of innocence before a jury, Williams, 425 U.S. at 503; Flynn, 475 U.S. at 567;

whether such practices serve an essential state interest, Williams, 425 U.S. at 505;

Flynn, 475 U.S. at 568; and what inferences jurors are likely to draw from such

practices, Williams, 425 U.S. at 504-05; Flynn, 475 U.S. at 569.

It is entirely

unclear how a test driven by these concerns applies in the present context: “a trial

judge who selected and imposed a death sentence after considering an offer of proof

of inadmissible aggravating evidence” during a penalty-phase proceeding following

an Alford plea. Bush, 926 F.3d at 657 (emphasis added); see also Woodall, 572 U.S.

at 421 (“it is not uncommon for a constitutional rule to apply somewhat differently

at the penalty phase than it does at the guilt phase”). It cannot be said that all

fairminded jurists would agree that the test from Williams and Flynn applies to

Petitioner’s claim; thus, the Tenth Circuit properly found that his claim failed for

lack of clearly established federal law. See Woodall, 572 U.S. at 427. 4

The Circuit Split Petitioner Alleges Is Illusory

Petitioner further contends that certiorari review is warranted “because the

Tenth Circuit’s interpretation of § 2254(d)(1)’s clearly established federal law

provision is in irreconcilable conflict with the post-Musladin decisions of other

circuits.” Petition at 16. An example of a “compelling reason[]” justifying certiorari

review is that “a United States court of appeals has entered a decision in conflict

with the decision of another United States court of appeals on the same important

matter . . . .” Sup. Ct. R. 10(a). Here, however, Petitioner has shown no such

conflict between the decision below and the other circuit cases he cites.

The House Rule Is In Harmony with the Majority of the Cases

Cited by Petitioner

To begin with, Petitioner’s allegation of a circuit split again rests on his

mistaken interpretation of the House rule. As shown above, House requires not a

similar fact pattern, but simply a similar factual context. See House, 527 F.3d at

1016-17 & n. 5. Thus, there is no conflict between the Tenth Circuit’s rule and the

cases cited by Petitioner holding that § 2254(d)(1) does not require nearly identical

facts or supports the application of a single test to a variety of fact patterns. See

Williams is the answer to the hypothetical posed by Petitioner. If a judge forced a

defendant to stand trial without clothing, Petition at 15 n. 5, then that is state-sponsored

conduct that would fall within the holding of Williams, even under the House rule. Cf.

House, 527 F.3d at 1016 n. 5 (“[H]ad a prior Supreme Court holding involved the prejudicial

effect of privately-initiated courtroom conduct—even if that conduct was unrelated to the

wearing of buttons—the Court would likely have concluded that clearly established federal

law existed.” (emphasis in original)).

Owens v. Duncan, 781 F.3d 360, 365 (7th Cir. 2015) (“It’s true that we know of no

case identical to this one . . . . But identity can’t be required.”); Barnes v. Joyner,

751 F.3d 229, 246 (4th Cir. 2014) (“There is no requirement under AEDPA that a

habeas petitioner present facts identical to those previously considered by the

Supreme Court to be entitled to relief.”); Musladin v. Lamarque, 555 F.3d 830, 839

(9th Cir. 2009) (“AEDPA does not require state and federal courts to wait for some

nearly identical factual pattern before a legal rule must be applied.”); Jamison v.

Klem, 544 F.3d 266, 273 (3d Cir. 2008) (noting § 2254 does not require finding “a

case involving a fact pattern that is identical to the facts underlying a habeas

petitioner’s claim for federal relief”); Rashad v. Walsh, 300 F.3d 27, 35 (1st Cir.

2002) (indicating that a “broad” Supreme Court rule may “appl[y] to a kaleidoscopic

array of fact patterns”).

The circuit split claimed by Petitioner is further illusory because, contrary to

his assertion, he has not shown that “functionally identical cases in different

circuits are coming out differently.” Petition at 22. Rather, he has pointed to a

litany of cases arising from widely varying contexts—contexts quite different from

the one in which his claim arose—where federal courts applied clearly established

federal law to varying fact patterns. In fact, as to multiple of these cases, the Tenth

Circuit has also found clearly established federal law applicable to the context at

issue. Compare Whatley v. Zatecky, 833 F.3d 762, 776-77 (7th Cir. 2016) (analyzing

vagueness challenge to state statute under Kolender v. Lawson, 461 U.S. 352

(1983)), with Hopkins v. Workman, 47 F. App’x 893, 896 (10th Cir. 2002)

(unpublished) (same); Owens, 781 F.3d at 365 (“The Supreme Court has made clear

in the cases we’ve cited and quoted from that a judge or a jury may not convict a

person on the basis of a belief that has no evidentiary basis whatsoever.”), with

Torres v. Lytle, 461 F.3d 1303, 1313 (10th Cir. 2006) (granting habeas relief on

grounds that a jury’s “inference must be more than speculation and conjecture to be

reasonable” and based on more than “a guess or mere possibility”); Jackson v.

Conway, 763 F.3d 115, 146-47 (2d Cir. 2014) (applying Darden v. Wainwright, 477

U.S. 168 (1986), and Donnelly v. DeChristoforo, 416 U.S. 637 (1974), to claim of

prosecutorial misconduct), with Stouffer v. Trammell, 738 F.3d 1205, 1221 (10th

Cir. 2013) (same); Blackmon v. Booker, 696 F.3d 536, 556-57 (6th Cir. 2012)

(reviewing admission of gang affiliation evidence for whether it denied the habeas

petitioner fundamental fairness), with Young v. Attorney Gen. for New Mexico, 534

F. App’x 707, 710 (10th Cir. 2013) (unpublished) (same); Lyons v. Brady, 666 F.3d

51, 55-56 (1st Cir. 2012) (finding claim regarding admission of autopsy photographs

to be governed by principle of “fundamental fairness”), and Franklin v. Bradshaw,

695 F.3d 439, 456-57 (6th Cir. 2012) (considering whether gruesome photographs

“so perniciously affect[ed] the prosecution of a criminal case as to deny the

defendant the fundamental right to a fair trial” (quotation marks omitted)), with

Cole v. Trammell, 755 F.3d 1142, 1165 (10th Cir. 2014) (reviewing challenge to

admission of gruesome photographs for “fundamental fairness”); Harris v.

Alexander, 548 F.3d 200, 206 (2d Cir. 2008) (holding refusal to instruct jury on

theory of defense violated due process), with Thomas v. Goodrich, 750 F. App’x 637,

643 (10th Cir. 2018) (unpublished) (noting that claim regarding refusal to give

theory of defense instructions was governed by “fundamental fairness” and

warranted relief only if the omission “so infected the entire trial that the resulting

conviction violates due process” (quotation marks omitted)); Parle v. Runnels, 505

F.3d 922, 927-28 (9th Cir. 2007) (finding cumulative error claim to be supported by

clearly established law); with Cuesta-Rodriguez v. Carpenter, 916 F.3d 885, 915 n.

33 (10th Cir. 2019), cert. denied, 140 S. Ct. 844 (2020) (rejecting the State’s

argument that no clearly established law recognized cumulative error theory of

relief).

Petitioner also overstates the holdings of some of the cases he cites.

Housen v. Gelb, 744 F.3d 221, 227-29 (1st Cir. 2014), for instance, the First Circuit

reserved the question of whether clearly established law existed when denying

habeas relief on a claim of inconsistent prosecution theories between codefendants.

This is entirely consistent with the Tenth Circuit’s resolution of an inconsistentprosecutions claim in Littlejohn v. Trammell, 704 F.3d 817, 852-53 (10th Cir. 2013),

where the Tenth Circuit expressed skepticism that clearly established law existed

but ultimately denied relief on grounds that the Supreme Court case relied on by

Littlejohn was decided after his conviction became final.

Petitioner also exaggerates when he claims that, in Glenn v. Wynder, 743

F.3d 402 (3d Cir. 2014), “the court found clearly established federal law to apply to a

claim similar to that raised by Mr. Bush below” based on Riggins v. Nevada, 504

U.S. 127 (1992). Petition at 18. After an eyewitness in Glenn’s murder trial offered

grossly inconsistent testimony, the trial judge struck the testimony and repeatedly

instructed the jury that it could not be considered. Glenn, 743 F.3d at 404-06.

Glenn later claimed that the eyewitness’s “unreliable testimony rendered his trial

fundamentally unfair” and “the trial judge’s curative instructions could not purge

the record of the taint from this testimony.” Id. at 407. The Third Circuit did

analyze this claim for fundamental fairness, but the court did not appear to even

consider whether the claim was actually supported by clearly established law and

made no mention whether the State had raised any such argument. See id. at 40709. 5 As far as Riggins, where this Court decided whether forced administration of

antipsychotic medication during trial is unconstitutional, the Third Circuit did not

discuss the facts of that case and in fact cited to language from the dissent to that

opinion. See id. at 407 (“To prevail on his due process claim, Glenn must prove that

he was deprived of ‘fundamental elements of fairness in [his] criminal trial.’”

(quoting Riggins, 504 U.S. at 149 (Thomas, J., dissenting))); but see Williams, 529

U.S. at 412 (clearly established law refers to the “holdings” of this Court). While

Petitioner characterizes Glenn as finding “that Riggins’s ‘broad[] principles of due

process’ qualified as clearly established federal law even though the claim at issue

5 Petitioner cites to footnote 6 of that opinion.

Petition at 18. But, in footnote 6, the Third

Circuit merely concluded that Glenn properly relied on circuit cases as “evidence that the

Superior Court unreasonably applied Supreme Court precedent concerning broader

principles of due process.” Glenn, 743 F.3d at 408 n. 6. Footnote 6 involved no analysis of

whether relevant Supreme Court law existed.

in Riggins was completely different,” Petition at 18, Glenn can hardly be described

thusly given its dearth of analysis. 6

Any Tension Between the House Rule and Two Outlier Fifth

Circuit Cases Does Not Create a Sufficient Circuit Split to

Warrant this Court’s Review

The closest Petitioner comes to showing some tension between the House rule

and the case law of another circuit is his citation to Wiley v. Epps, 625 F.3d 199 (5th

Cir. 2010), and Rivera v. Quarterman, 505 F.3d 349 (5th Cir. 2007). Petition at 19.

In both Wiley and Rivera, the Fifth Circuit applied Panetti—a case that, as

previously discussed, dealt with competency to be executed—to hold that capital

defendants who make a prima facie showing of intellectual disability are entitled to

the procedures outlined in Ford, including a hearing. Wiley, 625 F.3d at 207-08;

Rivera, 505 F.3d at 357-58.

Any tension between the House rule—requiring that clearly established law

originate in, or have been applied to, the same context as the case at hand—and

these two Fifth Circuit cases does not justify certiorari review. First, Petitioner’s

case does not involve an intellectual disability claim or the Tenth Circuit’s refusal to

apply Panetti to such a claim, so it is not the case “that functionally identical cases

in different circuits [have come] out differently.” Petition at 22.

Second, respectfully, Wiley and Rivera are outliers that were wrongly decided

and create, at most, a very shallow circuit split. Neither Wiley nor Rivera cited, let

6 In addition, Glenn involved evidence that was ultimately held to be inadmissible heard by

a jury during the guilt stage, whereas Petitioner’s claim involves an offer of proof heard by

the judge during sentencing. Even if Glenn found clearly established law in a reasoned

analysis, the context is so different than Petitioner’s case that Glenn cannot be described as

conflicting with the panel’s opinion below.

alone discussed, Musladin. It is clear based on Musladin that it was improper for

the Fifth Circuit to take clearly established law from the competency context and

import it into the Atkins context. See Musladin, 549 U.S. at 76. In fact, in Shoop v.

Hill, 139 S. Ct. 504, 506-07 (2019), this Court considered a state court intellectual

disability decision from 2008 and determined that only Atkins v. Virginia, 536 U.S.

304 (2002), supplied clearly established law at that time. And this Court has said

that Atkins “did not provide definitive procedural or substantive guides for

determining” intellectual disability. Bobby v. Bies, 556 U.S. 825, 831 (2009); cf. also

Brumfield v. Cain, 135 S. Ct. 2269, 2276 (2015) (“Because we agree that the state

court’s rejection of Brumfield’s request for an Atkins hearing was premised on an

‘unreasonable determination of the facts’ within the meaning of § 2254(d)(2), we

need not address whether its refusal to grant him expert funding . . . reflected an

‘unreasonable application of clearly established Federal law,’ § 2254(d)(1).”

(alteration adopted)), id. at 2294-95 (Thomas, J., dissenting) (“Atkins thus did not

imply—let alone hold—that a prisoner is entitled to a hearing on an Atkins claim.”).

In sum, the House rule is overwhelmingly consistent with the law of other

circuits. Wiley and Rivera are both erroneously decided and outliers. This shallow

conflict in the law is unworthy of certiorari review. Cf. Arizona v. Evans, 514 U.S.

1, 24 n. 1 (1995) (Ginsburg, J., dissenting) (“We have in many instances recognized

that when frontier legal problems are presented, periods of ‘percolation’ in, and

diverse opinions from, state and federal appellate courts may yield a better

informed and more enduring final pronouncement by this Court.”). Moreover, Wiley

and Rivera were both decided pre-Shoop, and if the Fifth Circuit were to reconsider

the issue now, it would likely decide the issue differently. This Court’s intervention

is unnecessary.

Petitioner’s Claim Is Entirely Without Merit

Even assuming the existence of clearly established federal law applicable to

Petitioner’s claim, his claim is entirely without merit and would not entitle him to

relief even if reviewed on its merits by the Tenth Circuit. Accordingly, Petitioner’s

case is a poor vehicle for resolution of the first question presented. See McClung v.

Silliman, 6 [19 U.S.] Wheat. 598, 603 (1821) (“question before an appellate Court is,

was the judgment correct, not the ground on which the judgment professes to

proceed”); The Monrosa v. Carbon Black Exp., Inc., 359 U.S. 180, 184 (1959) (this

Court decides cases only “in the context of meaningful litigation,” and when the

challenged issue may not affect the ultimate judgment of the court below, that issue

“can await a day when [it] is posed less abstractly”).

During Petitioner’s penalty phase bench trial, the State attempted to offer

testimony from “a jail-house snitch,” Jackie Nash. Bush, 280 P.3d at 348. The trial

court excluded the testimony under Oklahoma law due to lack of notice to Petitioner

that the evidence would be used in aggravation but allowed the prosecutor to make

an offer of proof. Id. On appeal, the OCCA rejected Petitioner’s claim that the offer

of proof was so prejudicial that it was impossible to ignore and that it influenced the

court’s sentencing decision. Id. at 348-49. The OCCA held that Petitioner failed to

“overcome the presumption that the trial court only considered competent and

admissible evidence in reaching its decision.”

Id. at 348.

This decision was

eminently reasonable and fully supported by the record.

“When the judge sits as the trier of fact, it is presumed that the judge will

understand the limited reason for the disclosure of the underlying inadmissible

information and will not rely on that information for any improper purpose.”

Williams v. Illinois, 567 U.S. 50, 69 (2012). Here, even absent such a presumption,

the trial court explicitly recognized that the offer of proof was not evidence.

Specifically, after the prosecutor gave the offer of proof, trial counsel voiced her

concerns that the trial court was sitting in judgment of Petitioner and requested

that the trial court consider the proffer “in it’s [sic] proper place” (Tr. 1317). In

response, the trial court assured trial counsel that “argument or statement by []

counsel is not evidence” (Tr. 1317). In addition, when the trial court announced

Petitioner’s death sentence, it gave a lengthy discussion of the evidence and

aggravating circumstances on which it relied, making no mention of the Nash

proffer of proof (Tr. 1874-1880).

Given all of the above, the OCCA reasonably

rejected Petitioner’s claim that the trial court improperly considered the offer of

proof. Petitioner’s case is a poor choice for certiorari review.

II.

PETITIONER PRESENTS AN ISSUE THAT WAS

NEITHER PRESSED NOR PASSED UPON BELOW

AND

IS,

ANY

EVENT,

SQUARELY

FORECLOSED BY THIS COURT’S PRECEDENTS.

Petitioner’s second question presented primarily seeks certiorari review on

whether he should have received a COA on a facial overbreadth challenge to HAC,

though he also briefly hints at a sufficiency-of-the-evidence challenge under Jackson

v. Virginia, 443 U.S. 307 (1979). Neither issue warrants certiorari review. When

the pleadings below are reviewed, as well as the Tenth Circuit cases from the

Pavatt litigation on which Petitioner relies, it is clear the facial challenge he

presently raises was neither pressed nor passed upon below. In any event, his

facial challenge is plainly without merit under this Court’s well-settled precedent.

Furthermore, to the extent Petitioner seeks certiorari review on his sufficiency

challenge, this fact-bound issue is unworthy of this Court’s review.

This Court

should deny certiorari review.

Background of Petitioner’s HAC Claims and Pavatt

On direct appeal, Petitioner raised two challenges to the HAC aggravator.

First, he claimed the evidence in his case was insufficient to support the aggravator

(“sufficiency challenge”).

Pet’r Appx. H6-H10.

Second, he claimed the HAC

aggravator “is unconstitutionally vague and overbroad as it is currently applied”

(“facial challenge”). Pet’r Appx. H19-H21. The OCCA denied relief on both claims.

Bush, 280 P.3d at 345-47.

In his § 2254 petition, filed in December 2013, Petitioner included his

sufficiency challenge but did not include his facial challenge. Pet’r Appx. I2-I4.

Petitioner did not raise his facial challenge again until his Application for a COA

filed in the Tenth Circuit in October 2017, after the district court denied both

habeas relief and a COA on all issues raised before it. Bush v. Royal, No. 16-6318,

Application for Certificate of Appealability at 136-39 (10th Cir. Oct. 30, 2017) (“1st

COA App.”). Petitioner also raised his sufficiency challenge in his COA Application,

relying extensively on a then-recent decision in which the majority in a three-judge

panel of the Tenth Circuit held that the OCCA improperly applied the HAC

aggravating circumstance to the facts of the petitioner’s case.

Id. at 71-77; see

Pavatt v. Royal, 859 F.3d 920 (10th Cir. 2017) (Pavatt I), 7 opinion superseded on

denial of rehearing by Pavatt v. Royal, 894 F.3d 1115 (10th Cir. 2017) (Pavatt II),

opinion vacated on rehearing en banc by Pavatt v. Carpenter, 928 F.3d 906 (10th

Cir. 2019) (en banc) (Pavatt III), cert. denied, Pavatt v. Sharp, No. 19-697, 2020 WL

411708 (2020).

Respondent filed a response to Petitioner’s COA Application. Bush v. Royal,

No. 16-6318, Respondent-Appellee’s Response to Petitioner’s Application for

Certificate of Appealability (10th Cir. Dec. 28, 2017) (“COA App. Response”).

Respondent asserted that, to the extent Petitioner had attempted to transform his

sufficiency challenge to rely on Pavatt I, any such claim was both unexhausted and

forfeited. Id. at 30-31. Specifically, Petitioner never raised a claim, to the OCCA or

the district court, that HAC was unconstitutionally vague as applied to him. Id. As

to Petitioner’s facial challenge, “Petitioner raised this claim on direct appeal, Bush,

280 P.3d at 347, but did not do so in his § 2254 petition, thereby forfeiting it, see

In Pavatt I, the majority found the OCCA’s denial of Petitioner’s Jackson challenge to

HAC to be contrary to, and an unreasonable application of, this Court’s decision in Godfrey

v. Georgia, 446 U.S. 420 (1980), because, within that sufficiency claim, the OCCA did not

consider “whether the definition [of the aggravator] it applied satisfies the Eighth

Amendment.” Pavatt I, 859 F.3d at 936-37 & n. 5. The panel majority believed the victim’s

murder did not represent “the sort of suffering that could in a ‘principled way . . .

distinguish this case, in which the death penalty was imposed, from the many cases in

which it was not.’” Id. at 935 (quoting Godfrey, 446 U.S. at 433) (alteration adopted). In

other words, Pavatt I found HAC to be unconstitutionally vague as applied to Pavatt.

Hancock[ v. Trammell], 798 F.3d [1002,] 1011 [(10th Cir. 2015)].”

COA App.

Response at 61.

Petitioner filed a reply to Respondent’s response. Bush v. Royal, No. 16-6318,

Reply in Support of Certificate of Appealability (10th Cir. Jan. 12, 2018) (“COA App.

Reply”). As to his sufficiency challenge, Petitioner argued emphatically that Pavatt

I granted relief on a sufficiency claim, and thus, his argument based on Pavatt I was

exhausted. See id. at 7-9. As to Petitioner’s facial challenge, his reply neither

mentioned that challenge nor denied that he had forfeited same.

Following the aforementioned briefing and a case management conference, in

February 2018, a judge of the Tenth Circuit denied Petitioner a COA as to both his

HAC claims but granted him COAs as to five other issues. Bush v. Royal, No. 166318, Order (10th Cir. Feb. 9, 2018) (unpublished). Petitioner filed a motion to

expand the COA, in which he requested an additional COA on a single claim:

“whether, in light of Pavatt v. Royal, 859 F.3d 920 (10th Cir. 2017), the evidence

was insufficient to support the heinous, atrocious, and cruel aggravating

circumstance.” Pet’r Appx. J1. Petitioner’s motion was referred to the panel.

Meanwhile, during the pendency of Petitioner’s appeal, significant changes

occurred in the Pavatt litigation. In July 2018, following Respondent’s Petition for

Panel Rehearing or Rehearing En Banc, the Tenth Circuit voted to rehear Pavatt en

banc.

Pavatt III, 928 F.3d at 911.

Contemporaneously, the panel issued an

amended opinion in response to the rehearing petition, adding the following

relevant

language:

“We

are

not

saying

that

the

OCCA

this

case

unconstitutionally applied a constitutionally acceptable narrowing construction of

the State’s HAC aggravator [as Respondent had argued in the rehearing petition].

We are saying that it did not apply the narrowing construction that we previously

approved.” Pavatt II, 894 F.3d at 1132.

In June 2019, on en banc review, the Tenth Circuit determined that the

OCCA reasonably denied Petitioner’s Jackson claim, Pavatt III, 928 F.3d at 917-22;

found Petitioner’s “as-applied challenge to the HAC aggravator” unexhausted and

“subject to an anticipatory procedural bar” as well as outside the scope of the COA,

id. at 922-26; and “conclude[d] that there is no facial challenge to the HAC

aggravator that is properly before” the court, id. at 926. The judge who authored

Pavatt I and Pavatt II dissented on grounds that Oklahoma’s construction of HAC—

which applied “unless the victim was rendered unconscious immediately upon

receiving the fatal blow”—did not “distinguish[] in a principled manner those

deserving the death penalty from the many first-degree murderers who do not.” Id.

at 936 (Hartz, J., joined by Kelly, J., and Lucero, J., dissenting) (emphasis in

original).

That same month, the panel denied relief in this case. As to Petitioner’s

pending motion, the panel noted simply that “Bush’s motion to expand the

certificate of appealability is DENIED.” Bush, 926 F.3d at 687.

Petitioner’s Pavatt-Based Facial Challenge to HAC was Neither

Pressed Nor Passed Upon Below

Before this Court, Petitioner cites repeatedly to the Pavatt III dissent and

resurrects his facial challenge to HAC to argue that he should receive certiorari

review on whether that challenge warranted a COA. See Petition at 22-27. As

shown above, however, in more than six years of federal habeas litigation,

Petitioner raised a facial challenge to HAC only once—in his original COA

application to the Tenth Circuit. 1st COA App. at 136-39. He did not raise a facial

challenge in either his habeas petition, thereby forfeiting any such challenge, or in

his motion to expand the COA, meaning the panel never passed upon the request

for a COA on that claim. COA App. Response at 61; Pet’r Appx. J1-J15. 8 Indeed, as

previously demonstrated, Petitioner was adamant that his Pavatt-based claim was

a sufficiency-of-the-evidence challenge. COA App. Reply at 7-9. He should not be

permitted now to reinvent his claim in light of the changing Pavatt opinions and

Judge Hartz’s ultimate theory for relief in Pavatt III.

An issue that was neither pressed nor passed upon in the lower courts is not

an appropriate issue for certiorari review. See Cutter v. Wilkinson, 544 U.S. 709,

718 n. 7 (2005) (Supreme Court is “a court of review, not of first view”); Sprietsma v.

Mercury Marine, 537 U.S. 51, 55-56 (2002) (the Supreme Court does not grant

certiorari to address arguments not pressed or passed upon below); United States v.

Williams, 504 U.S. 36, 41 (1992) (Supreme Court’s traditional rule precludes grant

of certiorari where “the question presented was not pressed or passed upon below”).

Petitioner’s raising of a facial challenge once, in a COA application, is not sufficient

8 Petitioner’s suggestion that his facial challenge was debatable because of the Pavatt III

dissent is thus a red herring. Petition at 26-27. Petitioner’s facial challenge was not even

before the panel in his motion to expand the COA. And the facial challenge was not

debatable when raised in his original COA application because it had been forfeited in the

district court. Petitioner’s suggestion that the Tenth Circuit applied an overly rigorous

standard in denying him a COA on his facial challenge is entirely without support. Petition

at 26-27.

to have “pressed” the issue below. Thus, the facial challenge Petitioner presently

raises was neither pressed nor passed upon below and is not appropriate for

certiorari review.

Petitioner’s Facial Challenge to HAC is Squarely Foreclosed by this

Court’s Precedents

Petitioner’s second question presented is further unworthy of certiorari

review because his challenge to HAC is entirely without merit. Petitioner appears

to suggest that Oklahoma’s construction of HAC is unconstitutionally overbroad

because it applies to any murder where death is non-instantaneous. Petition at 2324.

However, Oklahoma law restricts the HAC aggravating circumstance to

instances of torture or serious physical abuse and that limitation was applied in

this case. See Bush, 280 P.3d at 345. A torture or serious physical abuse limitation

has been approved by this Court, as have similar constructions—none of which have

included a duration requirement on a victim’s suffering. See Bell v. Cone, 543 U.S.

447, 457-59 (2005) (per curiam) (finding Tennessee’s especially heinous, atrocious or

cruel aggravator constitutional where the state court had construed “torture” to

mean a non-instantaneous death in which a victim has time to feel fear and try to

protect herself); Walton v. Arizona, 497 U.S. 639, 654-55, 698-99 (1990) (Blackmun,

J., dissenting) (finding Arizona’s especially heinous, cruel or depraved aggravator,

that is “virtually identical to the construction [the Court] approved in Maynard,”

constitutional, over the dissent’s concern that Arizona does not require an extended

duration of suffering) 9; Maynard v. Cartwright, 486 U.S. 356, 365 (1988) (declining

to hold “that some kind of torture or serious physical abuse is the only limiting

construction of the heinous, atrocious, or cruel aggravating circumstance that would

be constitutionally acceptable” (emphasis added)).

The OCCA found HAC not facially unconstitutional. Bush, 280 P.3d at 347.

Given the above-cited cases of this Court, that decision is clearly not contrary to, or

an unreasonable application of, clearly established federal law.

As Petitioner’s

facial challenge is without merit, this Court should not grant his petition for

certiorari review.

Petitioner’s Sufficiency

Certiorari Review

Challenge

Likewise

Unworthy

Citing to Pavatt I, Petitioner also asserts in conclusory fashion that “to apply

the [HAC] aggravating circumstance on the facts of [his] case—where there was

insufficient evidence to support a constitutionally acceptable construction of the

aggravating circumstance—is to violate [his] clearly established Fourteenth

Amendment rights under Jackson . . . .” Petition at 22-23.

To the extent that Petitioner claims he should have received a COA on his

sufficiency challenge, certiorari review on the fact-bound issue of whether there was

9 The Tenth Circuit dissenters’ concern about a “sharpshooter bonus,” Petition at 23, was

shared by the dissent in Walton, and thus rejected by this Court. Walton, 497 U.S. at 696

(Blackmun, J., dissenting); see Lewis v. Jeffers, 497 U.S. 764 (1990) (noting this Court

rejected Justice Blackmun’s arguments in Walton). Moreover, this concern focuses on the

intent of the killer, which is certainly a proper consideration for an aggravating

circumstance, but not the only one. It is also proper to focus on the suffering of the victim.

See Walton, 497 U.S. at 646 (approving “‘a victim’s uncertainty as to his ultimate fate’” as

an adequate limiting construction) (quoting State v. Walton, 769 P.2d 1017, 1032 (Ariz.

1989)).

sufficient evidence of HAC in his case is not warranted. See McWilliams v. Dunn,

137 S. Ct. 1790, 1802 n. 2 (2017) (Alito, J., dissenting) (“the question decided is not

just narrow, it is the sort of factbound question as to which review is disfavored”).

Furthermore, it is not debatable whether the evidence was sufficient to show

conscious physical suffering in this case. See Jeffers, 497 U.S. at 781-83 (evidence

presented at trial must be sufficient for a rational trier of fact to find the

aggravating circumstance proven beyond a reasonable doubt). Petitioner admitted

Mr. Harrington was in the recliner when he initially shot him and, after the initial

shot, Mr. Harrington went to the kitchen, collapsed, got back up, and then

staggered outside (State’s Ex. 11). Mr. Harrington suffered two gunshot wounds to

the back of his body, one in his back and one to his neck (State’s Ex. 151). Bloody

footprints in the entry way and on the porch show that Mr. Harrington was moving

after he sustained at least some of the wounds (State’s Ex. 50-51, 90-91).

The

medical examiner, Dr. Inas Yacoub, testified that the gunshot wound to the back

was fatal and was more than likely the ultimate or penultimate shot Mr.

Harrington received prior to collapsing. She testified that it was her opinion that

the injuries to Mr. Harrington’s nose and mouth were pre-mortem wounds and

occurred while Mr. Harrington was still alive and being dragged by his own vehicle

(Tr. VI 1112-13). Dr. Yacoub also testified that she could not state that any of the

wounds would have made Mr. Harrington lose consciousness (Tr. VI 1113-14). Dr.

Yacoub testified that certain bones were shattered when Mr. Harrington was shot

and that those injuries would be painful. She also discussed the pain associated

with the bullet that pierced Mr. Harrington’s lung and would have caused difficulty

breathing (Tr. VI 1109-11).

The OCCA’s decision finding sufficient evidence of

HAC, Bush, 280 P.3d at 345-47, was not contrary to, or an unreasonable application

of, this Court’s precedent.

To the extent that Petitioner is hinting at an as-applied vagueness challenge,

like that on which relief was granted in Pavatt I, same is both unexhausted, as

discussed above, and clearly foreclosed by Jeffers, 497 U.S. at 779:

[I]f a State has adopted a constitutionally narrow construction of a

facially vague aggravating circumstance, and if the State has applied

that construction to the facts of the particular case, then the

‘fundamental constitutional requirement’ of ‘channeling and limiting

. . . the sentencer’s discretion in imposing the death penalty’ . . . has

been satisfied.”

Petitioner’s as-applied vagueness challenge is meritless. As none of Petitioner’s

challenges to HAC merits relief, this Court should deny the instant petition.

Conclusion

Based on the foregoing, certiorari review should be denied as to Petitioner’s

second question presented.

CONCLUSION

For the reasons set forth above, Respondent respectfully requests this Court

deny the Petition for Writ of Certiorari.

Respectfully Submitted,

MIKE HUNTER

ATTORNEY GENERAL OF OKLAHOMA

s/ CAROLINE E.J. HUNT

CAROLINE E.J. HUNT, OBA #32635*

ASSISTANT ATTORNEY GENERAL

313 NE 21st Street

Oklahoma City, Oklahoma 73105

(405) 521-3921

FAX (405) 521-4534

ATTORNEYS FOR RESPONDENT

*Counsel of record

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.