Opposition Brief — Marlon Deon Harmon, Petitioner v. Tommy Sharp, Warden

Case No. 19-8581

IN THE SUPREME COURT OF THE UNITED STATES

MARLON DEON HARMON,

Petitioner,

-vsTOMMY SHARP, Warden,

Oklahoma State Penitentiary,

Respondent.

BRIEF IN OPPOSITION TO PETITION

FOR WRIT OF CERTIORARI

MIKE HUNTER

ATTORNEY GENERAL OF OKLAHOMA

*JENNIFER L. CRABB, OBA #20546

ASSISTANT ATTORNEY GENERAL

313 NE 21st Street

Oklahoma City, Oklahoma 73105

(405) 521-3921

(405) 522-4534 FAX

ATTORNEYS FOR RESPONDENT

fhc.docket@oag.ok.gov

jennifer.crabb@oag.ok.gov

*Counsel of record

June 26, 2020

CAPITAL CASE

QUESTION PRESENTED

Should this Court second-guess the Tenth Circuit’s application of

Brecht v Abrahamson, 507 U.S. 619 (1993) to find Petitioner’s Fifth

Amendment challenge to his sentence—which the court only assumed was

exhausted—did not warrant habeas relief?

i

TABLE OF CONTENTS

PAGE

QUESTION PRESENTED .......................................................................................... i

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

STATEMENT OF THE FACTS ................................................................................. 4

REASONS FOR DENYING THE WRIT ................................................................... 7

I.

PETITIONER’S COMPLAINT THAT THE TENTH CIRCUIT DID

NOT WRITE ITS OPINION IN THE MANNER HE BELIEVES IT

SHOULD HAVE BEEN WRITTEN PRESENTS NO COMPELLING

QUESTION FOR THIS COURT’S REVIEW ................................................ 9

A.

Background of Petitioner’s Claim..................................................... 9

B.

Petitioner Merely Complains about the Application of a

Properly Stated Rule of Law ............................................................ 13

II.

PETITIONER’S CHALLENGE TO HIS SENTENCE IS

UNEXHAUSTED ............................................................................................. 19

III.

PETITIONER ASKS THIS COURT TO FORCE THE TENTH

CIRCUIT TO INCLUDE IN ITS BRECHT ANALYSIS CLAIMS HE

FAILED TO PRESENT TO THE OCCA AT THE TIME HE RAISED

HIS FIFTH AMENDMENT CLAIM ............................................................. 20

IV.

THIS COURT SHOULD DENY THE PETITION BECAUSE THE

TENTH CIRCUIT PROPERLY FOUND HARMLESS ERROR .............. 23

CONCLUSION ........................................................................................................... 28

ii

TABLE OF AUTHORITIES

FEDERAL CASES

Brady v. Maryland,

373 U.S 83 (1963) .............................................................................................. 20, 22

Brecht v. Abrahamson,

507 U.S. 619 (1993) .............................................................. 7, 17, 18, 19, 20, 21, 23

Chapman v. California,

386 U.S. 18 (1967) ............................................................................................... 7, 21

Coleman v. Thompson,

501 U.S. 722 (1991) ................................................................................................. 23

Cullen v. Pinholster,

563 U.S. 170 (2011) ................................................................................................... 7

Davis v. Ayala,

576 U.S. 257 (2015) ................................................................................................... 7

Fairchild v. Workman,

579 F.3d 1134 (10th Cir. 2009) ............................................................................. 13

Fry v. Pliler,

551 U.S. 112 (2007) ............................................................................................. 7, 21

Harmon v. Oklahoma,

565 U.S. 918 (2011) ................................................................................................... 3

Harmon v. Royal,

No. CIV-13-80-M (W.D. Okla. Nov. 14, 2016) ....................................................... 3

Harmon v. Sharp,

936 F.3d 1044 (10th Cir. 2019) ........................................................................... 2, 3

Harrington v. California,

395 U.S. 250 (1969) ................................................................................................. 18

Herb v. Pitcairn,

324 U.S. 117 (1945) ................................................................................................. 17

Lockhart v. McCree,

476 U.S. 162 (1986) ................................................................................................. 13

iii

Miranda v. Arizona,

384 U.S. 436 (1966) ................................................................................................. 10

Schneble v. Florida,

405 U.S. 427 (1972) ................................................................................................. 18

Sexton v. Beaudreaux,

___ U.S. ___, 138 S. Ct. 2555 (2018) ........................................................................ 6

The Monrosa v. Carbon Black Export, Inc.,

359 U.S. 180 (1959) ..................................................................................... 17, 20, 23

Tison v. Arizona,

481 U.S. 137 (1987) ........................................................................................... 15, 28

United States v. Hasting,

461 U.S. 499 (1983) ................................................................................................. 18

STATE CASES

Cleary v State,

942 P.2d 736 (Okla. Crim. App. 1997) ................................................................ 28

Harmon v. State,

248 P.3d 918 (Okla. Crim. App. 2011) .................................................................. 2

Harmon v. State,

No. PCD-2008-919 (Okla. Crim. App. Jan. 4, 2013) ........................................... 3

Harmon v. State,

No. PCD-2014-71 (Okla. Crim. App. Feb. 13, 2014) ........................................... 3

Jones v. State,

128 P.3d 521 (Okla. Crim. App. 2006) ................................................................ 28

Tryon v. State,

423 P.3d 617 (Okla. Crim. App. 2018) ................................................................ 27

iv

FEDERAL STATUTES

28 U.S.C. § 2253 .......................................................................................................... 22

28 U.S.C. § 2254 ................................................................................................ 7, 19, 20

STATE STATUTES

OKLA. STAT. tit. 21, § 701.12 ....................................................................................... 2

v

Respondent respectfully urges this Court to deny the petition for writ of

certiorari to review the Order and Judgment of the United States Court of Appeals

for the Tenth Circuit entered on August 29, 2019. See Harmon v. Sharp, 936 F.3d

1044 (10th Cir. 2019).

STATEMENT OF THE CASE

Petitioner is currently incarcerated pursuant to a Judgment and Sentence

rendered in the District Court of Oklahoma County, State of Oklahoma, Case No.

CF-2004-4956. In 2008, Petitioner was tried by jury for one count of first degree

felony murder. A bill of particulars was filed alleging three statutory aggravating

circumstances: (1) the murder was especially heinous, atrocious, or cruel; (2) the

murder was committed while Petitioner was serving a sentence of imprisonment on

conviction of a felony; and (3) the existence of a probability that Petitioner would

commit criminal acts of violence that would constitute a continuing threat to

society.

See OKLA. STAT. tit. 21, § 701.12. The jury found Petitioner guilty as

charged, found the existence of all three aggravating circumstances, and

recommended a death sentence. Petitioner was sentenced accordingly.

The Oklahoma Court of Criminal Appeals (“OCCA”) affirmed Petitioner’s

conviction and sentence in a published opinion filed on January 27, 2011. Harmon

v. State, 248 P.3d 918 (Okla. Crim. App. 2011), as corrected (Apr. 2, 2011) (“Pet.

App. F”). The OCCA granted Petitioner’s request for rehearing on March 2, 2011,

but denied recall of the mandate, affirming the conviction and sentence. This Court

2

denied Petitioner’s petition for writ of certiorari on October 3, 2011. Harmon v.

Oklahoma, 565 U.S. 918 (2011).

Petitioner filed an application for state post-conviction relief on March 18,

2010, which was denied by the OCCA in an unpublished opinion on January 4,

2013. Harmon v. State, No. PCD-2008-919 (Okla. Crim. App. Jan. 4, 2013) (“Pet.

App. D”).

Thereafter, Petitioner filed his petition for a writ of habeas corpus with the

United States District Court for the Western District of Oklahoma on December 24,

2013. Petitioner subsequently filed a second application for post-conviction relief on

January 23, 2014, which the OCCA denied in an unpublished opinion on February

13, 2014. Harmon v. State, PCD-2014-71 (Okla. Crim. App. Feb. 13, 2014) (“Pet.

App. E”). On November 14, 2016, the federal district court denied Petitioner’s

petition for habeas corpus relief. Harmon v. Royal, No. CIV-13-80-M (W.D. Okla.

Nov. 14, 2016) (“Pet. App. C”).

Petitioner appealed the Western District of Oklahoma’s denial of habeas

relief to the Tenth Circuit. After briefing and oral argument, the Tenth Circuit

affirmed the district court’s judgment on August 29, 2019. Harmon v. Sharp, 936

F.3d 1044 (10th Cir. 2019) (“Pet. App. A”).

On May 26, 2020, Petitioner’s petition for a writ of certiorari was placed on

this Court’s docket.

3

STATEMENT OF FACTS

The OCCA set forth the relevant facts in its published opinion on direct

appeal:

On August 17, 2004, Appellant Harmon picked up his

friend, Jasmine Battle, and asked her to go with him to

rob a nearby convenience store.1 Harmon was driving a

green Honda Accord, and had brought a gun. As they

neared the Q & S convenience store at 26th Street and

Independence in Oklahoma City, Harmon got out of the

car and walked to that store while Battle drove around

the block. Shortly, she heard three gunshots and saw that

Harmon had blood on his hands when he came running

back to her. A frightened Battle abandoned the car and

left.

[n.1] Battle entered into a plea agreement,

cooperated with the State and testified against

Harmon.

A young girl riding her bicycle across from the store saw

Harmon run out of the store. He was clutching money in

one hand and a gun in the other. She watched him run

away and saw Kamal Choudhury, the owner of the store,

run out and fall to the ground. She tried to call 911 from a

pay phone outside the store. Unsuccessful, she then ran

home to tell her mother what she had witnessed. Lance

Nicholas arrived just as Choudhury emerged from the

store. He heard Choudhury calling for help and saw a red

substance on his clothes. He called 911 and tried to help

Choudhury. When Nicholas asked Choudhury to describe

the man who shot him, Choudhury pointed to Nicholas'

baseball cap, worn backwards.2 Choudhury was alert and

responsive when he was transported to the hospital, but

died early the next morning as a result of the gunshot

wounds he sustained during the robbery.

[n.2] Neighbors in the area saw a man fitting

Harmon’s description walking toward the store, a

green Honda driven by a young African American

woman circling the block, and a man running back

to the car. Witnesses described Harmon as wearing

4

shorts, a shirt, tennis shoes and a “scarf”, “do-rag”

or “beanie.”

Inside the store responding police officers found a large

amount of blood and what appeared to have been the

contents of a wallet: money, an I.D. card, and notes.

Choudhury's wallet and credit cards were missing.

Harmon's palm print was identified on a blood stained

piece of paper found among the contents of the wallet. By

the following day, Choudhury's credit cards had been used

sixteen times. A card was first used fifteen minutes after

the shooting at a gas station located a block away from

the apartment Harmon shared with his girlfriend. Cards

were also used at gas stations in El Reno and Chandler;

witnesses placed Harmon in both towns after the

shooting. Battle identified Harmon and one of his friends

on the security videotape obtained from the Chandler gas

station.

Tyrone Boston provided information to the police about

Harmon's involvement in the robbery-murder. Learning of

Boston's statement, Harmon responded by saying Boston

was a “snitch” and voicing his regret that he had not

killed him. Boston claimed to suffer from memory

problems at trial, but acknowledged that Harmon had

told him that he (Harmon) had been required to “plug” a

man.

Pet. App. F at 926-27 (paragraph numbers and footnotes omitted).

Respondent must address problems with Petitioner’s statement of the case.

See SUP. CT. R. 15.2 (Respondent is required to point out misstatements in the

petition).

First and foremost—and as will be explained in more detail infra—

Petitioner ignores that his claimed entitlement to sentencing relief is unexhausted,

and he relies extensively (and improperly) upon facts and legal claims that were not

before the OCCA when it declined to reverse Petitioner’s conviction.

5

Further, Petitioner claims the prosecution’s “theory . . . that Harmon was a

lone gunman . . . depended on the indispensable testimony of Jasmine Battle[.]”

Pet. at 3. Actually, while Ms. Battle was an important witness, an eyewitness saw

Petitioner leave the store with a gun in his hand 1, his palm print was behind the

store counter, and he told a witness that he “had to plug a guy” (Tr. III 158-60, 17980, 192-93; Tr. IV 109, 123, 126, 157; Tr. V 24, 55, 93). Thus, there was substantial

other evidence which—quite literally—placed the gun in Petitioner’s hand.

Next, Petitioner accurately recounts that ammunition consistent with that

used in the murder was found at Christopher Lancaster’s mother’s home. Pet. at 5.

Mr. Lancaster is the person upon whom Petitioner seeks to place the blame for the

murder. Petitioner neglects to mention, however, that he was at Mr. Lancaster’s

mother’s home immediately before the murder (Tr. IV 180-86).

Finally, Petitioner relies upon characterizations of Mr. Lancaster, allegations

of Mr. Lancaster’s supposed involvement in the murder, an alleged undisclosed

agreement between Ms. Battle and prosecutors, and an assertion that Mr.

Choudhury’s family was not in favor of a death sentence that are not supported by

the record before the OCCA on direct appeal. 2 Pet. at 3-6, 8-9. None of these

factual assertions may be considered. See Sexton v. Beaudreaux, ___ U.S. ___, 138

S. Ct. 2555, 2560 (2018) (per curiam) (it is a fundamental error for a federal court to

Importantly, this witness saw pictures of both Petitioner and Mr. Lancaster, but

identified only Petitioner (Tr. III 177-178).

1

Respondent also disputes the accuracy of many of these characterizations, but

such is beyond the scope of this brief because Petitioner’s arguments based thereon

were not properly before the Tenth Circuit.

2

6

find 28 U.S.C. § 2254(d) satisfied based on arguments that were not before the state

court); Cullen v. Pinholster, 563 U.S. 170, 181-82 (2011) (“review under § 2254(d)(1)

focuses on what a state court knew and did” and is limited to the record that was

before the state court at the time of the relevant decision); see also Davis v. Ayala,

576 U.S. 257, 268 (2015) (“While a federal habeas court need not ‘formal[ly]’ apply

both Brecht[3] and ‘AEDPA[4]/Chapman,’[5] AEDPA nevertheless ‘sets forth a

precondition to the grant of habeas relief’” when a federal court conducts harmless

error analysis) (quoting Fry v. Pliler, 551 U.S. 112, 119-20 (2007) (alteration

adopted)).

REASONS FOR DENYING THE WRIT

Although not exhaustive, Rule 10 of this Court’s rules provides that “[a]

petition for a writ of certiorari will be granted only for compelling reasons” and

includes examples of grounds for granting a petition for writ of certiorari. These

include a conflict among the United States courts of appeals, a conflict between a

United States court of appeals and a state court of last resort, a conflict between

state courts of last resort, an opinion by a state court or United States court of

appeals that decides an important federal question in a way that conflicts with

relevant decisions of this Court, and an opinion by a state court or United States

court of appeals that decides an important federal question that should be settled by

this Court.

SUP. CT. R. 10.

Petitioner cannot make any of these showings.

3 Brecht v. Abrahamson, 507 U.S. 619 (1993).

4 28 U.S.C. § 2254(d).

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

7

Although Petitioner’s first question presented purports to raise an important

question, even a cursory reading of the petition reveals that Petitioner simply

believes the Tenth Circuit did not use particular words or phrases when it denied

relief. Furthermore, at bottom, Petitioner simply disagrees with the Tenth Circuit’s

conclusion that harmful error did not occur.

Both of Petitioner’s questions

presented amount to mere requests for error-correction. See SUP. CT. R. 10 (“A

petition for a writ of certiorari is rarely granted when the asserted error consists of

erroneous factual findings or the misapplication of a properly stated rule of law.”).

Petitioner’s case is also an extremely poor vehicle for exploring harmlesserror review. The main question—whether Petitioner’s death sentence was affected

by a Fifth Amendment violation—is unexhausted.

Further, the petition relies

heavily on legal claims and facts that were not properly before the Tenth Circuit.

This Court should decline Petitioner’s invitation to second-guess the Tenth

Circuit’s case-specific harmless error determination.

In any event, the Tenth

Circuit’s determination was correct. This Court should deny certiorari review.

8

I.

PETITIONER’S COMPLAINT THAT THE TENTH

CIRCUIT DID NOT WRITE ITS OPINION IN THE

MANNER HE BELIEVES IT SHOULD HAVE BEEN

WRITTEN

PRESENTS

NO

COMPELLING

QUESTION FOR THIS COURT’S REVIEW.

Throughout the petition, Petitioner complains that the Tenth Circuit failed to

use certain language, or to analyze certain factors. 6 Petitioner’s request for an

advisory opinion amounts to nothing more than a disagreement with the Tenth

Circuit’s application of a properly stated rule of law. The petition should be denied.

A.

Background of Petitioner’s Claim

Petitioner confessed his guilt to the murder of Kamal Choudhury, and to his

participation in a number of other armed robberies (5/18/2005 P.H. Ex. 3). 7 After

his confession, Petitioner agreed to talk to accomplice Jasmine Battle—who as yet

had not confessed (Tr. III 70-71). Petitioner told Ms. Battle that it “was over with

for everybody” (State’s Ex. 30 at 00:09).

At preliminary hearing, the court

suppressed Petitioner’s confession after finding he had invoked his right to remain

silent (5/18/2005 P.H. 158-59). However, during guilt stage of the trial, the State

admitted the forty-three second long video of Petitioner’s conversation with Ms.

Although Petitioner discusses many cases in which certain courts have used

certain factors in certain contexts, he does not actually take a position that such

factors should be used nor, for the most part, complain that the Tenth Circuit’s

approach is substantively wanting. Petitioner’s two substantive objections will be

addressed and shown to be without merit.

6

In second stage, the State presented evidence linking Petitioner to four other

armed robberies, one of which took place after Petitioner murdered Mr. Choudhury

(Tr. VI 97-157; Tr. VII 3-26). These robberies were in addition to the six prior

felony convictions for which Petitioner was on parole at the time of the murder (Tr.

VI 80-86).

7

9

Battle (Tr. IV 214-15; State’s Ex. 30). Ms. Battle testified that she spoke to police

because she believed Petitioner had confessed (Tr. IV 212-17).

The trial court

sustained defense counsel’s objection to Ms. Battle’s use of the word “confessed” and

instructed the jury to disregard what it described as “total and pure speculation and

fiction.” (Tr. IV 217-18). 8

On direct appeal, Petitioner argued that “the admission of the video taped

conversation between Marlon Harmon and co-defendant Jasmine Battle made just

after he gave an un-mirandized[9] statement to the police violated Mr. Harmon’s

privilege against self-incrimination under the federal and state constitutions.”

7/2/2009 Brief For and On Behalf Of Marlon Deon Harmon, Appellant (OCCA No.

D-2008-657) (“DA Br.”) at 33 (capitalization removed). Petitioner’s entire argument

was devoted to establishing that it was error to admit the videotape (as opposed to

Ms. Battle’s testimony regarding her conversation with Petitioner) and that such

affected the jury’s guilty verdict. DA Br. at 33-38. Not once did Petitioner mention

his sentence. Petitioner closed by asking the OCCA “to reverse and remand his case

for a new trial.” DA Br. at 38. Petitioner’s reply brief similarly focused only on his

conviction. 10/19/2009 Reply Brief (OCCA No. D-2008-657) at 5-6.

8 Although Petitioner implies the prosecutor intentionally elicited this answer, Pet.

at 7-8, the prosecutor first elicited that Ms. Battle believed that the police had

Petitioner on camera committing the crime (Tr. IV 216-17). The prosecutor then

asked Ms. Battle what she thought Petitioner meant when he said he was “through”

(Tr. IV 217). It is entirely plausible that the prosecutor expected Ms. Battle to

respond that the police had overwhelming evidence against Petitioner, rather than

that he had confessed.

9 Miranda v. Arizona, 384 U.S. 436 (1966).

10

The OCCA assumed, without deciding, that the videotape was improperly

admitted. Pet. App. F at 932-33. The court found admission of the tape harmless

because it was cumulative to Ms. Battle’s testimony and in light of the “convincing”

evidence of Petitioner’s guilt. Pet. App. F at 933-34. The OCCA said nothing about

Petitioner’s sentence. Pet. App. F at 933-34.

Petitioner raised this claim—with significant modifications that will be

addressed below—in his federal habeas petition. 12/24/2013 Petition for Writ of

Habeas Corpus Pursuant Title 28, United States Code, Section 2254 (W.D. Okla.

No. CIV-13-80) at 13-25.

The district court found the error harmless as to

Petitioner’s conviction “[b]ecause of the additional corroborated testimony Battle

gave about the crime” and the presence of Petitioner’s palm print at the scene. Pet.

App. C at 23-24. The court further held that Petitioner’s “few stray statements that

the alleged error affected both stages of his trial” were insufficient to challenge his

death sentence, that any such challenge was unexhausted, and that “the challenged

evidence had no greater force or effect in the second stage than the first[.]” Pet.

App. C. at 24 n.10.

Petitioner’s Tenth Circuit brief again significantly altered the claim, focusing

heavily on his sentence. 5/7/2018 Appellant’s Opening Brief (10th Cir. No. 16-6360)

(“10th Cir. Br.”) at 67, 73-74, 78-80.

However, beyond noting that first-stage

evidence was incorporated into the second stage, Petitioner made no attempt to

explain in what way his sentencing might have been impacted. 10th Cir. Br. at 7980.

11

The Tenth Circuit found the error harmless as to guilt because the State

presented “overwhelming” evidence of Petitioner’s participation in the felony

murder of Mr. Choudhury.

Pet. App. A at 1081-82. The court then assumed,

without deciding, that Petitioner’s challenge to his sentence was properly before it.

Pet. App. A at 1081 n.23.

The court first noted that the challenged evidence

“primarily address[ed] Petitioner’s guilt, rather than factors relevant to sentencing.

Nevertheless, guilt-phase error may also influence the jury’s determination of

sentence, resulting in penalty-phase error.” Pet. App. A at 1082. In this case, the

court found the potential prejudice in second stage to be “minimal” because “most of

that evidence does not tend to identify Petitioner as the shooter or otherwise weigh

in favor of the death penalty.” Pet. App. A at 1083. The court found “one exception

[which Petitioner himself had never identified]: Battle states in the video that a

third individual [Chris Lancaster] was not involved in the crime, which arguably

strengthens the evidence that Petitioner was the shooter.” Pet. App. A. at 1083.

However, noted the court, Ms. Battle said the same thing in her testimony and “the

abrupt manner in which she made that statement might raise suspicion in the

jury’s mind” that someone else was involved.

Pet. App. A at 1083.

The court

concluded that any “incremental residual doubt” the videotape might have erased

was insufficient for relief in light of the aggravating circumstances. Pet. App. A at

1083.

12

B.

Petitioner Merely Complains about the Application of a Properly

Stated Rule of Law.

Petitioner presents a laundry list of things the Tenth Circuit failed to say in

its opinion:

•

its discussion was only “one and one-half page[s]” long

•

its “analysis was without depth”

•

it “did not acknowledge the uniqueness of capital sentencing

proceedings”—although the court did acknowledge in Section II of its

opinion that its “‘duty to search for constitutional error with

painstaking care is never more exacting than it is in a capital case’”,

Pet. App. A at 1057 (quoting Fairchild v. Workman, 579 F.3d 1134,

1140 (10th Cir. 2009))

•

it “failed to consider” that jurors had discretion to choose any

punishment and “ignored” that one juror may prevent a death

sentence—although the court acknowledged the “one juror” factor in its

earlier discussion of Petitioner’s ineffective assistance of counsel

claims, Pet. App. A at 1059-60

•

it “dismiss[ed] . . . guilt as a sentencing factor”—in spite of its citation

to Lockhart v. McCree, 476 U.S. 162, 181 (1986) for the proposition that

residual doubt regarding guilt is an effective ground for seeking a

sentence other than death, Pet. App. A at 1083

•

it failed to account for the fact that the confession was “injected” into

second stage—in spite of its acknowledgement that “[t]he State moved

13

the evidence from the guilt phase into evidence during the sentencing

phase”, Pet. App. A at 1052

•

it ignored the damaging nature of confessions simply because it

stated, in analyzing guilt-stage error, that confessions are particularly

powerful—but failed to repeat that acknowledgment two paragraphs

later when it turned to sentencing, Pet. App. A at 1081-82

•

it failed to consider the prosecutor’s actions and “ignored the

acknowledged prejudice flowing from the prosecutors’ repeated

emphasis” of the evidence—in spite of its acknowledgment that “the

prosecutors in this case repeatedly showed the video [in first stage] . . .

and emphasized it during [first stage] closing arguments” and that

such “weigh[s] in favor of a determination that the evidence was not

harmless”, Pet. App. A. at 1081 10

•

it discounted the significance of whether Petitioner fired the fatal

shot—in spite of its express recognition of the significance thereof, Pet.

App. A at 1083

•

it failed to mention that the video made Petitioner appear

“unrepentant”

•

and it failed to mention mitigating evidence or the circumstances of the

murder—in spite of a four-and-a-half page long discussion of the facts

10 Neither the video nor Ms. Battle’s testimony regarding the video was mentioned

in second stage.

14

of the murder and the mitigating evidence at the beginning of the

opinion, Pet. App. A. at 1050-54. 11

Pet. at 9-14, 17-19.

After pointing out these perceived flaws in the Tenth Circuit’s opinionwriting, Petitioner points to various opinions from the Tenth Circuit, and other

circuits, which include—or do not include—particular language. 12 Pet. at 21-33.

Petitioner appears to want this Court to mandate that federal courts of appeal

always include in their opinions:

Petitioner claims the murder was “all too pedestrian.” Pet. at 19. On the

contrary, this Court has recognized that “some nonintentional murderers may be

among the most dangerous and inhumane of all—the person who tortures another

not caring whether the victim lives or dies, or the robber who shoots someone in the

course of the robbery, utterly indifferent to the fact that the desire to rob may have

the unintended consequence of killing the victim as well as taking the victim's

property.” Error! Main Document Only.Tison v. Arizona, 481 U.S. 137, 157

(1987) (emphasis added). Mr. Choudhury was murdered while doing his job,

providing a service to his community (Tr. III 107). After shooting Mr. Choudhury

twice, Petitioner went behind the store counter, removed Mr. Choudhury’s wallet

and went through its contents—discarding what he did not want—as Mr.

Choudhury lay conscious and suffering (Tr. III 114, 135, 148, 153-54, 158-63; Tr. IV

27-30, 108-26, 157; Tr. V 65-67, 75). Petitioner then generously used Mr.

Choudhury’s credit card to fill other people’s cars with gasoline (Tr. IV 71-72, 82-83,

85-93; Tr. V 6-7, 77-80, 86-87). Petitioner also attended a child’s birthday party

almost immediately after the murder (Tr. IV 76-77). Petitioner made a career of

armed robbery, and committed another robbery after killing Mr. Choudhury (Tr. VI

97-157; Tr. VII 3-26). Petitioner’s suggestion that he might not be deserving of the

death penalty because he “only” murdered someone in the course of a convenience

store robbery is wholly belied by the facts of this case.

11

12 Petitioner does not actually claim—much less show—that the courts of appeal

conflict “on the same important matter[.]” SUP. CT. R. 10(a). Rather, Petitioner has

shown that the lower courts’ opinions quite properly vary in their analyses based on

the facts of a particular case and the applicable law. See Pet. at 21 (recognizing

that “[d]eath penalty proceedings vary from state to state” and federal courts “are

called upon to review the capital proceedings in connection with a myriad of

constitutional claims from habeas petitioners.”). The lack of “uniformity” and

“discrepancies” claimed by Petitioner are simply illusory. Pet. at 21, 25.

15

•

an express acknowledgment that there is a need for heightened

reliability in capital cases—failing to admit that the Tenth Circuit

recognized that very principle in this case, Pet. App. A at 1057

•

a discussion of the distinction between weighing and non-weighing

states—although he fails to articulate the need for such discussion

•

the fact that one juror can prevent imposition of a death sentence—

which was acknowledged in this case in the context of Petitioner’s

ineffective assistance of counsel claim, Pet. App. A at 1059-60

•

a discussion of (unspecified) factors which recognize the limited

number of responses a jury has available to it

•

an analysis of the prosecutor’s reliance upon the evidence—which the

court did in this case when discussing the jury’s guilty verdict, Pet.

App. A at 1081

•

application of certain (unspecified) factors to determine the influence of

an error on the jury’s verdict

•

and an explicit acknowledgement the court is considering the record as

a whole—in spite of every indication the panel in this case did exactly

that.

Pet. at 22-33 (internal quotation marks omitted).

This Court’s

only power over state judgments is to correct them to the

extent that they incorrectly adjudge federal rights. And

[this Court’s] power is to correct wrong judgments, not to

revise opinions. [This Court is] not permitted to render

16

an advisory opinion, and if the same judgment would be

rendered by the state court after [this Court] corrected its

views of federal laws, [this Court’s] review could amount

to nothing more than an advisory opinion.

Herb v. Pitcairn, 324 U.S. 117, 125-26 (1945) 13; see The Monrosa v. Carbon Black

Export, 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.”); McClung v. Silliman, 6 [19 U.S.] Wheat. 598, 603 (1821) (on appellate

review, “[t]he question before an appellate Court is, was the judgment correct, not

the ground on which the judgment professes to proceed.”). Petitioner’s request for

an advisory opinion to improve the opinion-writing of federal courts of appeal does

not present a compelling question.

Petitioner also complains about two things that were in the Tenth Circuit’s

opinion. First, Petitioner claims the court placed the burden on him to show the

error was not harmless.

Pet. at 18.

Petitioner bases this contention on the

following language: “[Brecht] requires a greater showing of prejudice than the

standard that state courts must apply on direct appeal.” Pet. App. A at 1081. This

was simply a recognition of this Court’s statement that Brecht is “less onerous” than

the standard that applies on direct appeal. Brecht, 507 U.S. at 637. The court said

nothing that indicates it placed the burden on Petitioner to make that “greater

showing.”

13 Although Herb involved a state court judgment its reasoning applies equally to

this case.

17

Second, Petitioner argues the Tenth Circuit’s “inquiry ended by asking only

whether there was sufficient evidence for this jury to find that the aggravating

circumstances existed”, contrary to Brecht. Pet. at 19. Petitioner finds this alleged

error in the court’s holding, at the end of its second stage harmless error analysis,

that the incremental residual doubt that might have existed absent the videotape

did not warrant relief in light of the aggravating circumstances. Pet. App. A at

1083. The court reached this conclusion after discussing the ways in which the

videotape might have been prejudicial in second stage, and the magnitude of any

potential prejudice. Pet. App. A at 1082-83. The court did not deny relief simply

because there was sufficient evidence of three aggravating circumstances. Rather,

the court properly weighed the evidence in aggravation against any possible

prejudice that might have been occasioned by the videotape. In Brecht itself this

Court found the error harmless by balancing the prejudicial effect of the error with

the “if not overwhelming, certainly weighty” evidence of guilt. Brecht, 507 U.S. at

639; cf. United States v. Hasting, 461 U.S. 499, 512 (1983) (finding harmless error

on direct review in light of the “overwhelming” evidence of guilt); Schneble v.

Florida, 405 U.S. 427, 430-32 (1972) (finding harmless error on direct review in

light of the “overwhelming” evidence of guilt versus the prejudicial effect of the

erroneously admitted evidence); Harrington v. California, 395 U.S. 250, 254 (1969)

(finding harmless error on direct review in light of the “overwhelming” evidence of

guilt). Petitioner has failed to show error.

18

The Tenth Circuit applied a properly stated rule of law to the facts of

Petitioner’s case.

That court’s failure to craft its opinion in precisely the way

Petitioner would prefer does not present a compelling question for this Court. See

SUP. CT. R. 10 (“A petition for a writ of certiorari is rarely granted when the

asserted error consists of . . . the misapplication of a properly stated rule of law.”).

Certiorari should be denied.

II.

PETITIONER’S CHALLENGE TO HIS SENTENCE

IS UNEXHAUSTED.

Petitioner claims the Tenth Circuit improperly applied Brecht to hold that

the erroneous admission of his in-custody admission did not affect his death

sentence. Petitioner did not argue before the OCCA that his death sentence was

affected by this error. 14 The Tenth Circuit bypassed exhaustion and ruled on the

merits. Respondent has never waived exhaustion and does not do so now. See 28

U.S.C. § 2254(b) (a writ of habeas corpus may not be granted on an unexhausted

claim and the State will not be deemed to have waived this requirement unless it

does so expressly). In light of this threshold question, this case is a poor vehicle for

Petitioner’s questions presented.

Petitioner asks this Court to provide guidance on the application of Brecht,

and to decide whether the Tenth Circuit properly applied Brecht in his case.

However, federal courts may not grant habeas relief for claims that were not

14 Petitioner also did not argue the confession could have impacted the jury’s finding

that the murder was especially heinous, atrocious, or cruel. Compare Pet. at 16-17

with DA Br. at 33-38.

19

exhausted in state court. 28 U.S.C. § 2254(b). 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.” The Monrosa, 359 U.S. at 184. As Petitioner’s challenge to his

death sentence was not raised in state court, he may not obtain relief. 15 This Court

should decline to grant the writ, which will only force this Court to address

exhaustion in the first instance, or to remand to the Tenth Circuit to address

exhaustion. The petition should be denied.

III.

PETITIONER ASKS THIS COURT TO FORCE THE

TENTH CIRCUIT TO INCLUDE IN ITS BRECHT

ANALYSIS CLAIMS HE FAILED TO PRESENT TO

THE OCCA AT THE TIME HE RAISED HIS FIFTH

AMENDMENT CLAIM.

Petitioner faults the Tenth Circuit for not including, as part of the “record as

a whole”, claims of ineffective assistance of counsel and an alleged Brady 16 violation

that were not before the OCCA when it decided the Fifth Amendment claim at issue

in this case. This is clearly improper under the Antiterrorism and Effective Death

Penalty Act (“AEDPA”), 28 U.S.C. § 2254(d).

Petitioner asks this Court to clarify what it means to consider the “record as

a whole” when applying Brecht. Pet. at 30-33. Whatever it might mean in other

contexts, it is crystal clear that, under AEDPA, the federal court is limited to the

15 As mentioned previously, the Western District agreed Petitioner’s challenge to his

sentence was unexhausted, and further determined it had been inadequately

briefed in the habeas petition. Pet. App. C. at 24 n.10.

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

20

record, and the claims, that were before the state court when it addressed the error

under review. See Beaudreaux, 138 S. Ct. at 2560 (it is a fundamental error for a

federal court to find AEDPA satisfied based on arguments that were not before the

state court); Pinholster, 563 U.S. at 181-82 (“review under § 2254(d)(1) focuses on

what a state court knew and did” and is limited to the record that was before the

state court at the time of the relevant decision); see also Ayala, 576 U.S. at 268

(“While a federal habeas court need not ‘formal[ly]’ apply both Brecht and

‘AEDPA/Chapman,’ AEDPA nevertheless ‘sets forth a precondition to the grant of

habeas relief’” when a federal court conducts harmless error analysis) (quoting Fry,

551 U.S. at 119-20 (alteration adopted)). As will be shown, none of the “record” that

Petitioner complains the Tenth Circuit failed to consider was properly before it.

Petitioner complains that the Tenth Circuit did not consider the mitigating

evidence that could have been presented had trial counsel not been allegedly

ineffective. Pet. at 32. This claim was not properly before the OCCA in connection

with the Fifth Amendment claim, which Petitioner had raised on direct appeal. See

Pet. App. F at 932-34. Petitioner did not argue that trial counsel was ineffective for

failing to present additional mitigating evidence until his first post-conviction

application. 3/18/2010 Original Application for Post Conviction Relief (OCCA No.

PCD-2008-919) (“1st PC App.”) at 7-19. The OCCA procedurally barred this claim.

Pet. App. D at 2-3.

Petitioner also complains about alleged prosecutorial misconduct in using the

statement. Pet. at 6-8, 12-14. Yet, Petitioner did not include these arguments in

21

his direct appeal brief. DA Br. at 33-38. It was not until his first application for

post-conviction relief that Petitioner claimed the prosecutors committed misconduct

by eliciting Ms. Battle’s opinion that she thought Petitioner had confessed to police,

and by relying on her testimony in closing argument. 1st PC App. at 37-40. The

OCCA also barred this claim. Pet. App. D at 2-3.

Similarly, Petitioner complains that the Tenth Circuit did not consider

evidence to impeach Ms. Battle’s testimony which he claims the prosecutors

suppressed. Pet. at 4, 6, 19. Petitioner did not present this claim in state court

until he filed his second application for post-conviction relief. 1/23/2014 Second

Application for Post-Conviction Relief (OCCA No. PCD-2014-71) at 2-12. The OCCA

barred this claim. Pet. App. E at 2-3.

Finally, although Petitioner now complains equally about the videotape and

Ms. Battle’s testimony, his direct appeal claim was limited solely to admission of the

videotape. DA Br. at 33-38. The fact that the OCCA found any error harmless in

part because the videotape was “simply” cumulative of Ms. Battle’s testimony

proves that court did not understand Petitioner to be complaining about her

testimony. Pet. App. F at 933.

The Tenth Circuit was prohibited by Pinholster from considering any of these

claims or arguments in connection with Petitioner’s Fifth Amendment claim.

Petitioner also did not have a certificate of appealability for the prosecutorial

misconduct or Brady claims he relies on in the petition. 6/22/2017 ORDER (10th

Cir. No. 16-6360). See 28 U.S.C. § 2253(c) (requiring a certificate of appealability

22

before an appeal may be taken from a habeas proceeding). Petitioner offers no

authority or justification for his contention that a federal court of appeals must

include claims in its Brecht analysis which it could not otherwise consider on the

merits.

The same is true of the procedurally barred claims, which could not

independently form the basis for relief. See Coleman v. Thompson, 501 U.S. 722,

729-30 (1991) (federal habeas relief is unavailable when a state court denies a claim

on independent and adequate state procedural grounds).

All of these procedural obstacles, which are unacknowledged by Petitioner,

render the instant petition a very poor vehicle for answering his questions

presented.

IV.

THIS COURT SHOULD DENY THE PETITION

BECAUSE THE TENTH CIRCUIT PROPERLY

FOUND HARMLESS ERROR.

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.” The Monrosa, 359

U.S. at 184. The Tenth Circuit correctly found harmless error.

The first indication that the admission of the videotape did not contribute to

the verdict is trial counsel’s belief that it was “relatively innocuous.” 17 (Tr. III 79).

17 Petitioner did not argue before the OCCA that the video was prejudicial because

he used a racial epithet and seemed unrepentant, or because Ms. Battle denied

Christopher Lancaster’s complicity. See Beaudreaux, 138 S. Ct. at 2560 (the court

of appeals made fundamental errors, including “consider[ing] arguments against

23

Further,

Petitioner’s

accomplice,

Jasmine

Battle,

testified

that

Petitioner

committed the robbery (Tr. IV 184-192). Ms. Battle’s testimony was corroborated by

her accurate recollection of the number of shots fired, and a number of witnesses

who saw a man fitting Petitioner’s description in the vicinity of the store (Tr. III

199-200, 202-03, 210-13; Tr. IV 38-43, 58-59, 187, 189). Ms. Battle and the other

witnesses also described a green Honda Accord driven by a young black female as

Petitioner’s means of transportation (Tr. III 217; Tr. IV 40, 51, 53, 184). Petitioner’s

girlfriend owned a green Honda Accord that she let him drive on the day of the

murder (Tr. IV 71-72).

An eyewitness identified Petitioner as the man who ran from the store with a

gun in his hand (Tr. III 158-59, 192-93). Ms. Battle and other witnesses saw the

robber wearing a do-rag or beenie cap that looked similar to a baseball cap that was

worn backwards (Tr. III 210-13, 217; Tr. IV 187). Before he died, Mr. Choudhury

was asked by Lance Nicholas to describe the man who shot him. Mr. Choudhury

pointed to Mr. Nicholas’ baseball cap, which was turned backwards (Tr. III 150-51).

Mr. Choudhury’s credit cards were used almost immediately after the murder

at a gas station that was just one block from Petitioner’s home (Tr. III 124; Tr. V 7780). Ms. Bolden testified that Petitioner had put gasoline in her car before he came

home that evening (Tr. IV 82-83). When Petitioner did arrive home, he felt the need

to change clothes before going with Ms. Bolden to El Reno for a birthday party (Tr.

IV 75-77). Later that night, in El Reno, Petitioner put gasoline in two other people’s

the state court’s decision that Beaudreaux never even made in his state habeas

petition.”).

24

cars (Tr. IV 6-7). Mr. Choudhury’s credit cards were also used at two gas stations in

El Reno that night (Tr. V 87).

Petitioner did not have any credit cards of his own (Tr. IV 84). Yet, although

she denied any memory of it at trial, Ms. Bolden had told the police that she was

with Petitioner one time when he used a credit card (Tr. IV 83-84). Furthermore,

Petitioner and an acquaintance were videotaped using one of Mr. Choudhury’s

credit cards (Tr. IV 85-86, 91-93, 224-25; Tr. V 86).

Behind the store counter, among large blood stains, was some money, an ID

card and a scrap of paper (Tr. IV 108). Mr. Choudhury’s wallet was missing (Tr. III

114; Tr. IV 108). Petitioner’s palm print was found on the scrap of paper, which is

believed to have come out of Mr. Choudhury’s wallet (Tr. IV 123, 126, 157). A

bloodstained bullet found on the floor behind the store counter and one recovered

from Mr. Choudhury’s body were both .38 caliber and were fired by the same gun

(Tr. IV 13, 130, 145). The gun that fired the bullets was most likely a .38 special or

a .357 Magnum, both of which are typically revolvers, although it could have been a

9 millimeter or .357 Sig (Tr. IV 145, 148). No casings were found at the scene (Tr.

IV 133). Officers found an empty .38 special ammunition box and a 9 millimeter

ammunition box at Christopher Lancaster’s mother’s house, the last place

Petitioner visited before the murder (Tr. IV 168-172, 229). 18

18 Petitioner relies upon a 9 millimeter gun that was connected to Mr. Lancaster to

imply Mr. Lancaster may have shot Mr. Choudhury. Pet. at 6. The sole basis for

this claim is the fact that officers testified that the murder weapon in this case was

most likely a .38 special or a .357 Magnum, both of which are typically revolvers,

although it could have been a 9 millimeter or .357 Sig. (Tr. IV 145, 148). However,

25

Tyrone Boston provided information to the police (Tr. IV 175).

When

Petitioner found out, he said Mr. Boston was a snitch and that he “should have

killed that mother fucker” (Tr. IV 175). Mr. Boston claimed to suffer from memory

problems at trial, but he told the police that Petitioner stated he “had to plug” Mr.

Choudhury (Tr. V 24, 93).

The evidence described above is overwhelming and leaves no doubt as to

Petitioner’s guilt. As observed by the Tenth Circuit, nothing in the video speaks to

who actually shot Mr. Choudhury, which is the only relevant inquiry for sentencing

since Petitioner does not deny committing felony murder. 19 Further, there is no

question that Petitioner stood over Mr. Choudhury, rifling through his wallet, as he

lay dying (Tr. III 114; Tr. IV 109, 192).

Petitioner demonstrated no remorse.

aError! Main Document Only.s no shell casings were found at the scene, officers

believed the gun that killed Mr. Choudhury was likely a revolver, not a semiautomatic like Mr. Lancaster’s (Tr. IV 133, 145, 148). Petitioner provides no actual

connection between Mr. Lancaster’s gun and the murder of Mr. Choudhury. From

the materials provided by Petitioner it is unclear when Mr. Lancaster hid this 9

millimeter, except that it was some time prior to his arrest on September 8, 2004,

which was well after the murder of Mr. Choudhury on August 17, 2004. 1st PC

App., Attachment 10. Mr. Lancaster apparently used the gun in question to shoot

Tyrone Boston three days after the murder of Mr. Choudhury, giving him plenty of

reason to try to dispose of the gun. 1st PC App., Attachments 3, 12. The OCCA

considered the gun in connection with an ineffective assistance of counsel claim and

concluded that Petitioner was asking the court “to speculate here that this gun has

some connection to the instant case, but provide[d] no evidence that the gun was

used in this case nor does he argue that this possible murder weapon was used

solely by Lancaster in an effort to show that he was not the shooter.” Pet. App. D at

7.

19 Respondent disagrees with the Tenth Circuit that Ms. Battle’s statement that Mr.

Lancaster was not involved points to Mr. Lancaster as the shooter. Pet. App. A at

1083. In any event, as explained above, Petitioner did not make this argument on

direct appeal. See Beaudreaux, 138 S. Ct. at 2560 (the court of appeals made

fundamental errors, including “consider[ing] arguments against the state court’s

decision that Beaudreaux never even made in his state habeas petition.”).

26

Rather, Petitioner immediately used one of Mr. Choudhury’s credit cards, then went

home, changed clothes, and went to a birthday party (Tr. IV 76-77; Tr. V 80).

Petitioner continued to use Mr. Choudhury’s credit cards, even to put gas in other

people’s cars (Tr. V 6-7, 77-87). When describing the murder, Petitioner said he had

to “plug” a guy (Tr. V 24).

Other evidence presented in second stage established that Petitioner had six

prior felony convictions and made a career out of committing armed robbery (Tr. VI

80-86, 97-157; Tr. VII 3-26). In addition to the four armed robberies presented to

the jury, Petitioner had committed a number of violent crimes including attempting

to sexually assault another inmate while in possession of a shank and stabbing

another inmate (Tr. VI 88, 97-110, 125-129, 141-147, 151-157; Tr. VII 13-21, 32-36,

41-45). Even after the possibility of harming someone during a robbery became a

reality when Mr. Choudhury was killed, Petitioner continued to commit armed

robbery (Tr. VIII 90). Detective Bill Lord testified that while Petitioner was in jail,

he found out that Tyrone Boston had been giving information to the police (Tr. IV

174-175). Petitioner called Mr. Boston a snitch and said he “should have killed that

mother fucker.” (Tr. IV 175).

Petitioner was on parole for convictions in Arkansas (Tr. VI 85-86).

Mr.

Choudhury lived for almost twelve hours after he was shot (Tr. III 112-113). Mr.

Choudhury was conscious, moaning in pain and begging for help (Tr. III 135-136,

148, 153-154).

The evidence overwhelmingly establishes the three aggravating

factors. See Tryon v. State, 423 P.3d 617, 650 (Okla. Crim. App. 2018) (a murder is

27

especially heinous, atrocious, or cruel if, inter alia, the victim experiences conscious

physical suffering); Jones v. State, 128 P.3d 521, 549 (Okla. Crim. App. 2006) (the

State may use a defendant’s prior acts of violence to prove he poses a continuing

threat to society); Cleary v State, 942 P.2d 736, 747 (Okla. Crim. App. 1997)

(approving application of the “while serving a sentence of imprisonment” aggravator

to a defendant who is on parole).

Petitioner’s history and the facts of this crime easily place Mr. Choudhury’s

murder in the category of the worst of the worst. See Tison, 481 U.S. at 149 (stating

that “some nonintentional murderers may be among the most dangerous and

inhumane of all-the person who tortures another not caring whether the victim lives

or dies, or the robber who shoots someone in the course of the robbery, utterly

indifferent to the fact that the desire to rob may have the unintended consequence

of killing the victim as well as taking the victim's property.”). The videotape simply

had no effect on the jury’s sentencing determination.

Petitioner presents no

compelling question which warrants this Court’s intervention.

respectfully asks this Court to deny the petition for writ of certiorari.

CONCLUSION

The Petition for Certiorari should be denied.

28

Respondent

Respectfully submitted,

Mike Hunter

Attorney General of Oklahoma

Jennifer L. Crabb

Asst. Attorney General

Counsel of Record

Oklahoma Office of the Attorney General

313 NE Twenty-First St.

Oklahoma City, OK 73105

jennifer.crabb@oag.ok.gov

Counsel for Respondent

29