Court: Court of Appeals for the Tenth Circuit; February 26, 1999; Federal Appellate Court
The United States Court of Appeals for the Tenth Circuit addressed Malcolm Rent Johnson's Petition for Rehearing in case No. 96-6336, ultimately denying the petition but acknowledging that an issue in his previous appeal was not adequately addressed. An amended opinion was issued to clarify this issue, and the suggestion for an en banc rehearing also was denied as no judges requested a poll. Johnson had filed an amended habeas corpus petition under 28 U.S.C. § 2254 in February 1994, asserting thirty-one constitutional errors related to his conviction and death sentence. The district court denied the petition on August 12, 1996, citing procedural bars and meritless claims.
Johnson's appeal focused on thirteen alleged errors violating various constitutional amendments. The court affirmed the denial, emphasizing that a party challenging peremptory challenges must produce evidence to counter the opposing party's facially neutral justifications, referencing Batson v. Kentucky. The court's jurisdiction was established under 28 U.S.C. § 1291.
The case background involved the 1981 murder of Ura Alma Thompson, an elderly woman found deceased in her apartment, with evidence of sexual assault. Johnson was arrested on a separate charge, and items linked to Thompson were found in his possession. After his arrest, police collected biological samples from him, and forensic testimony at trial indicated a match between his semen and blood type with evidence collected from the crime scene. Johnson maintained his innocence but was ultimately convicted on March 22, 1982.
At the second trial stage, the state presented evidence of Johnson's previous convictions, which included raping two women, two armed robbery charges, and one burglary. Additionally, four women testified regarding assaults by Johnson, while sixteen relatives described his troubled upbringing and responsibilities as a caregiver. Johnson's girlfriend noted his parental role towards her child. The court presented three aggravating factors to the jury: prior felony conviction, ongoing threat to society, and the heinous nature of the crime. The jury dismissed the third factor but found the first two to outweigh mitigation evidence, leading to Johnson's death sentence.
The applicability of the Antiterrorism and Effective Death Penalty Act (AEDPA) was addressed, confirming that Johnson's case fell under the pre-AEDPA version since he filed his petition in 1994. Johnson claimed that the trial court violated his Due Process rights by denying essential tools for an adequate defense, referencing Ake v. Oklahoma. He specified three violations: lack of funds for psychiatric assistance, a forensic chemistry expert, and travel funds for his counsel. The review process for these claims involved evaluating factual findings for clear error and legal conclusions de novo.
Specifically regarding psychiatric assistance, Johnson's repeated requests for funding were denied, resulting in no psychiatric evidence being presented at trial. The district court found that he did not sufficiently demonstrate that his sanity was a significant issue. Under Ake, the court must ensure access to a competent psychiatrist if sanity is a significant trial factor, but the defendant must show more than vague assertions. The case's timing posed the question of whether Johnson could meet the threshold for demonstrating that sanity was a significant factor at trial, given Ake's post-trial decision.
Petitioner did not demonstrate a significant likelihood that his sanity at the time of the offense was a crucial factor at trial, as he failed to provide evidence from the entire record that would support his claim. An expert neuropsychological evaluation presented does not indicate incompetence at the time of the crime.
In the sentencing phase, Johnson argued that his constitutional rights were violated by the denial of funds for psychiatric assistance, particularly concerning the "continuing threat" aggravating circumstance. The State did not introduce psychiatric evidence but relied on Johnson's prior convictions and unadjudicated offenses. It has been established that if the State presents evidence of a defendant's future dangerousness, an indigent defendant may require expert psychiatric assistance if their mental condition could be a significant mitigating factor.
Johnson successfully demonstrated a likelihood that his mental condition could mitigate his sentence, supported by a neuropsychological evaluation suggesting he could receive treatment that would reduce his risk of future dangerous behavior. Consequently, he is entitled to psychiatric expert assistance during the sentencing phase.
The issue of harmless error analysis arises from the denial of this entitlement, specifically whether there is a significant doubt that the psychiatric evidence could have influenced at least one juror to opt for life imprisonment instead of death. The jury’s deliberation indicated no confusion regarding the severity of Johnson’s crime. Though the jury rejected the "especially heinous, atrocious, and cruel" aggravating circumstance, they accepted both the "continuing threat" and prior violent felony convictions. Given the weight of the evidence against him, the mental health evidence presented does not create a significant doubt regarding the jury's decision.
Petitioner's counsel requested funding for a forensic expert to counter the testimony of forensic chemist Joyce Gilchrist, who linked evidence from the victim to the petitioner. The trial court denied this request, and the district court upheld the decision on two grounds: first, that defense counsel had adequately cross-examined forensic witnesses, highlighting the limitations of their tests; second, that the petitioner did not demonstrate how the absence of expert assistance caused a fundamentally unfair trial. The appellate review of these legal conclusions is conducted de novo.
In evaluating due process challenges regarding funding for non-psychiatric experts, three factors are considered: the impact on the petitioner's interest in trial accuracy, the burden on the government if funding is granted, and the value of the expert assistance and the associated risk of error if it is denied. The first two factors favor the petitioner, acknowledging the critical nature of accurate criminal proceedings and the state's obligation to ensure fair trials. However, the third factor is decisive, with precedents indicating that without clear evidence of the value of the requested services and substantial prejudice due to their denial, claims of due process violations are unlikely to succeed. Prior cases, such as Kennedy and Moore, illustrate that speculative arguments regarding the potential benefits of denied expert assistance do not suffice to support a due process claim.
Petitioner presented evidence from two forensic experts arguing that their testimony could have countered the prosecution's case regarding hair and fiber evidence. However, this evidence did not demonstrate that the petitioner was incapable of committing the crime. Consequently, the denial of expert assistance did not significantly prejudice his defense during the guilt phase of the trial.
Further, petitioner claimed that the trial court's refusal to provide travel funds to gather mitigating evidence violated his right to an adequate defense. The district court agreed that he failed to show substantial prejudice from this ruling.
Petitioner also asserted a Batson violation, claiming race discrimination in the prosecutor's use of peremptory challenges, which resulted in an all-white jury. The Oklahoma Court of Criminal Appeals remanded the case for an evidentiary hearing, where evidence indicated that the prosecution's strikes raised an inference of racial discrimination, establishing a prima facie Batson violation. The burden then shifted to the prosecution to provide neutral reasons for the strikes, which the trial judge ultimately accepted, concluding there was no purposeful discrimination.
On habeas review, the court must defer to the state court's factual findings unless the record does not support them. Although petitioner provided evidence suggesting the prosecutor's reasons for striking a black juror were pretextual, he failed to raise this argument at the evidentiary hearing. As a result, the court could not overturn the state court's factual determinations without evidence presented at the hearing, reinforcing that the burden of proving racial motivation lies with the challenger of the strike.
Petitioner asserts a due process violation due to prosecutorial misconduct, specifically citing the prosecutor's characterization of police chemist testimony as "conclusive" and the claim that the prosecutor misled the jury by stating that the petitioner provided no medical testimony for mitigation despite the state's refusal to provide expert assistance. The district court found that most of these misconduct allegations were procedurally defaulted, applying Oklahoma's contemporaneous objection rule, with the exception of one remark. In habeas review, issues defaulted in state court on an independent procedural ground are not addressed unless there is cause and prejudice or a fundamental miscarriage of justice. Johnson’s claims regarding the prosecutor's comments on forensic evidence and the lack of medical testimony were not deemed procedurally barred. However, the district court concluded that the remaining misconduct claims were barred because the defense counsel had not objected to them during trial, except for one disparaging remark about the defense. The Oklahoma Court of Criminal Appeals (OCCA) reviewed the misconduct claims on direct appeal but did not address them; in a subsequent post-conviction relief application, the OCCA noted the lack of objections to most remarks and ruled the claims without merit. Johnson contends that the OCCA actually applied a "fundamental error" review rather than the contemporaneous objection rule, but the court's language suggests otherwise, indicating that the prosecutorial misconduct claim was treated as newly raised in post-conviction and therefore not eligible for fundamental error review.
The court evaluated whether Oklahoma's procedural bar for denying relief was adequate, particularly concerning the contemporaneous objection rule related to prosecutorial misconduct. It noted that if Oklahoma inconsistently applies this rule, it cannot serve as a valid ground for barring claims. The cases cited by the petitioner for "fundamental error" reviews were all from direct appeals, not post-conviction proceedings. The court found no inconsistency in the Oklahoma Court of Criminal Appeals' application of procedural bars to fundamental error issues not raised on direct appeal.
The petitioner asserted that he did not fail to raise claims of prosecutorial misconduct; rather, the OCCA failed to address them. He highlighted that he raised these claims at every opportunity during direct appeal, including in a petition for rehearing. The court acknowledged that Oklahoma courts do review prosecutorial misconduct claims for fundamental error, even without a contemporaneous objection, and thus concluded that the application of this rule in post-conviction proceedings was not an adequate procedural bar.
Moving to the merits of the misconduct claims, the petitioner argued that improper remarks by the prosecutor about forensic and psychiatric assistance violated his constitutional right to an adequate defense. He claimed that it was unnecessary to show the trial was fundamentally unfair for habeas relief. However, the court determined that the denial of expert assistance did not violate a specific constitutional right and assessed whether the prosecutorial conduct "infected the trial with unfairness" sufficient to deny due process.
After reviewing the totality of the circumstances, the court agreed with the district court that while the prosecutor's remarks about defense counsel were improper, the trial court's instruction to the jury to disregard them meant that the trial was not fundamentally unfair.
Johnson argues that the district court improperly addressed three allegations of prosecutorial misconduct separately and failed to consider them cumulatively with procedurally barred instances. The court agreed that the application of the procedural bar was inappropriate but found that the alleged misconduct did not constitute a due process violation based on precedents set in Brecheen and Donnelly. Factors influencing this conclusion included the totality of evidence, trial counsel's lack of objections to most comments, and the trial court's prompt jury admonition.
Johnson further claims that the State's failure to prove his intent to kill violated his Eighth Amendment rights, referencing Enmund's ruling on intent in capital murder cases. However, the court noted that the Supreme Court in Tison clarified that reckless disregard for human life suffices for capital sentencing, negating the need for an "intent to kill" instruction in the jury's guilt phase. The jury was given adequate instructions regarding the crime charged, aligning with Tison's requirements.
Lastly, Johnson contends that his death sentence contravened Beck v. Alabama due to the trial court's failure to instruct the jury on lesser included offenses. Although the district court deemed this claim procedurally barred, Johnson argues his appellate counsel's omission of this issue constitutes ineffective assistance, which could demonstrate cause and prejudice necessary to overcome procedural default. The evaluation of this claim hinges on whether the omitted issues were clearly meritorious.
In United States v. McVeigh, the defendant claimed it was unconstitutional to compel the jury to choose between convicting him of a capital offense or acquitting him. The court ruled that the jury was not forced to impose the death penalty upon conviction, as it could reject it during sentencing, distinguishing the case from Beck. Similarly, the jury in Johnson's case had the option to reject the death penalty, rendering Johnson's Beck argument insufficient to demonstrate cause and prejudice to overcome procedural bar.
Next, the court addressed whether the trial court lacked subject matter jurisdiction due to the information charging felony murder without all elements of the underlying felony of rape. The district court deemed this claim procedurally barred as it was raised for the first time in post-conviction relief. Although Johnson argued that the Oklahoma Court of Criminal Appeals recognizes jurisdictional flaws sua sponte and that procedural bar was inconsistently applied, the court found that state procedural rules were not inadequate to preclude federal review in this instance.
Johnson also claimed that the issue was meritorious and related to ineffective assistance of appellate counsel, which could provide cause and prejudice to overcome the procedural bar. However, even if the claim were not procedurally barred, it did not warrant habeas relief. The adequacy of the information was a matter of state law, and federal habeas review does not correct all state law errors. The charging instrument must provide adequate notice of the accusations, and the court found that the information sufficiently notified Johnson of the charges.
Additionally, the claim regarding duplicative aggravating circumstances submitted to the jury was found to be without merit. The aggravating circumstances of future dangerousness and prior felony conviction were deemed distinct, as they were supported by different types of evidence.
Petitioner asserts that the aggravating factors in his case were duplicative, citing United States v. McCullah, where the intent to kill significantly overlapped with a non-statutory factor regarding the commission of offenses. In McCullah, two statutory factors—intent to kill and intentional conduct with knowledge of grave risk—were found to be inherently linked. Similarly, in Davis v. Executive Director of Dept. of Corrections, two aggravators stemming from the same conduct were analyzed, but the court distinguished that the aggravating factors of past felony and future dangerousness do not necessarily share common elements. The jury's reliance on overlapping evidence did not equate to one aggravator being counted twice, ensuring the jury's process remained constitutional.
The court also previously dismissed the petitioner's challenge regarding the use of unadjudicated offenses to support the continuing threat aggravating circumstance. Additionally, pre-indictment delays only constitute a constitutional violation if they result in substantial prejudice or arise from improper prosecutorial motives, neither of which were established in this case. The district court found no significant prejudice related to the petitioner's seven-day detention before being brought before a magistrate.
Johnson contends that the district court erred by denying his request for an evidentiary hearing concerning the denial of funds for expert assistance, which he claims hindered his ability to present evidence of ineffective assistance of trial and appellate counsel. The district court's denial of the evidentiary hearing was reviewed for abuse of discretion and was upheld, as there were no disputed factual issues warranting a hearing; the habeas petition could be resolved based on the existing record and applicable law.
No evidentiary hearing is required when there are no disputed facts and the issues can be resolved based on the existing record and applicable law. In the case of Johnson, the record was deemed sufficient to address all raised issues. Johnson's request for an evidentiary hearing, framed as an ineffective assistance claim, centered on the denial of funds for psychiatric expert assistance and travel, which are legal issues rather than factual disputes. Consequently, Johnson was not entitled to an evidentiary hearing, and the district court acted within its discretion by denying the request.
Additionally, Johnson sought to dismiss his appointed lead counsel, Thomas M. Lahiff, and replace him with co-counsel Vicki Werneke. The district court denied this motion, citing a lack of service on current counsel and the timing of the motion post-briefing. Subsequently, Lahiff was permitted to withdraw, with the Federal Public Defender's Office continuing representation. Although habeas petitioners lack an independent Sixth Amendment right to counsel, they do have a statutory right to qualified legal counsel in federal post-conviction proceedings. The standards for substituting counsel require showing good cause, such as conflicts or breakdowns in communication. Although the district court did not perform the necessary inquiry regarding Johnson's dissatisfaction, this claim is moot since he is now represented by the counsel he sought. Furthermore, Johnson's assertions regarding Lahiff's ineffective performance lack sufficient detail to demonstrate any resulting prejudice.
Counsel could have presented Batson and subject matter jurisdiction claims more effectively, but the resolution of these issues indicates no prejudice to the petitioner. The court previously ruled that a trial court's failure to inform the jury about the option of returning a life sentence, despite aggravating circumstances, does not violate the Eighth and Fourteenth Amendments, referencing Duvall v. Reynolds as precedent. The petitioner claims the prosecution violated Brady v. Maryland by withholding exculpatory evidence related to specific discovery requests, including information about criminal defendants prosecuted for raping elderly women, potential suspects, and unsolved rapes in Oklahoma City from 1980 to 1982. For a Brady violation, the petitioner must demonstrate that evidence was suppressed, favorable, and material. The court finds the petitioner has not established the materiality of the requested information, as the argument that it could have changed the trial's outcome is speculative. Although the petitioner asserts that evidence regarding other rape defendants could have countered uncharged rapes presented during sentencing, the court concludes that this speculation does not meet the threshold for materiality. Furthermore, the prosecution provided the name of a suspect, Lamar Hamilton, fulfilling part of the discovery request, and no evidence has been presented to indicate additional information about his arrest would have been material to the case.
Petitioner claims that his inability to identify specific exculpatory evidence is due to former habeas counsel's failure to file a discovery motion in the district court. However, such an omission, even if unexcused, would not demonstrate the existence of exculpatory, material evidence. Additionally, the relevance of the crime incident report, the arrest report of Mr. Johnson, and the inventory from Mr. Johnson's apartment is not established. Under the Brady standard, the prosecution is not obligated to provide a comprehensive account of all investigative work. The district court's finding that the petitioner did not show how these items are favorable or material stands unchallenged. After considering the collectively alleged suppressed evidence, it is determined that the government did not fail to disclose any evidence that is materially favorable. The district court's judgment is affirmed. Furthermore, while Batson applies retroactively to this case, the Oklahoma Court of Criminal Appeals found the prosecutor's explanations for jury selection to be neutral and logical. The amendments to 28 U.S.C. 2254 made by AEDPA clarify that ineffective assistance of counsel in collateral proceedings cannot be grounds for relief, but pre-AEDPA law is applied in this case.
