139 F.3d 768 (10th Cir. 1998), 96-6329, Duvall v. Reynolds

Docket Nº:96-6329, 97-6299.
Citation:139 F.3d 768
Party Name:John W. DUVALL, Petitioner-Appellant, v. Dan REYNOLDS, Respondent-Appellee.
Case Date:March 04, 1998
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

Page 768

139 F.3d 768 (10th Cir. 1998)

John W. DUVALL, Petitioner-Appellant,

v.

Dan REYNOLDS, Respondent-Appellee.

Nos. 96-6329, 97-6299.

United States Court of Appeals, Tenth Circuit

March 4, 1998

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Don J. Gutteridge, Jr., Oklahoma City, OK, appearing for Petitioner-Appellant.

William L. Humes, Assistant Attorney General (W.A. Drew Edmondson, Attorney General of Oklahoma and Sandra D. Howard, Assistant Attorney General, with him on the brief), Oklahoma City, OK, appearing for Respondent-Appellee.

Before TACHA, BALDOCK, and KELLY, Circuit Judges.

ORDER

The petition for rehearing by the panel is granted. The original opinion is withdrawn. This opinion is ordered substituted for the original opinion filed in this case.

No member of the active court called for a poll, the en banc suggestion is denied.

OPINION

TACHA, Circuit Judge.

John Wayne Duvall, an Oklahoma state prisoner sentenced to death, appeals the district court's denial of his petition for a writ of habeas corpus under 28 U.S.C. § 2254. We exercise jurisdiction pursuant to 28 U.S.C. § 1291. For the reasons set forth below, we affirm.

BACKGROUND

In August 1985, Mr. Duvall, his common-law wife Karla, and their son Marcus, moved into a duplex in Duncan, Oklahoma. Several months later, due to marital difficulties, Mr. Duvall moved out.

On Thursday, September 18, 1986, Mr. Duvall went to the Stephens County Courthouse. He asked to speak with Alvie Chasteen, a county commissioner and former assistant police chief. At Mr. Duvall's request, Mr. Chasteen accompanied him to an office in the Sheriff's Department. Mr. Chasteen asked whether Mr. Duvall was in trouble. Mr. Duvall responded, "I killed my wife Monday night."

Mr. Chasteen immediately contacted Sheriff Bill Alexander, who read Mr. Duvall his Miranda rights. Mr. Duvall executed a waiver form and stated that he desired to talk to the authorities.

According to Mr. Duvall's confession, he received a call from his wife, Karla, on Monday afternoon. He stated that she was angry

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with him because he arranged for her drug prescription to be canceled. She managed, however, to secure a supply of the drug in spite of Duvall's efforts to prevent her from obtaining drugs.

Mr. Duvall explained that he went to a local bar that evening. At about 9:00 pm, an acquaintance gave him a ride to the duplex where his wife lived. He waited on the porch of an empty duplex next door. At about 10:30 pm, he knocked on his wife's door. Karla answered the door and inquired about their son. He replied that their son was at his grandmother's home. Mr. Duvall then grabbed Karla by the throat, forced his way into the apartment, and threw her on the floor. After Mr. Duvall dragged Karla into the kitchen, he took some knives from a drawer and stabbed her multiple times. At Karla's request, Mr. Duvall helped her to the shower, washed her off, and laid her on the bed. Karla pleaded for Duvall's help. Mr. Duvall replied, "[I]t's just too late for that." State's Ex. 24 (transcript of police interview). He then placed a pillow over Karla's head and suffocated her.

On September 19, 1986, the State of Oklahoma charged Mr. Duvall with murder in the first degree. On November 17, 1986, the State filed a Bill of Particulars seeking the death penalty based on two aggravating circumstances: (1) that Mr. Duvall was previously convicted of a felony involving the use or threat of violence to the person and (2) that the murder was especially heinous, atrocious, or cruel.

During the guilt phase of the trial, a jury convicted Mr. Duvall of one count of murder in the first degree. During the penalty phase of the trial, the jury found that both of the above statutory aggravating circumstances existed and recommended that Mr. Duvall be sentenced to death. On May 20, 1987, the trial judge sentenced Mr. Duvall to death in accordance with the jury's recommendation. On May 28, 1991, the Court of Criminal Appeals of Oklahoma affirmed Mr. Duvall's conviction. Duvall v. State, 825 P.2d 621 (Okla.Crim.App.1991). On October 5, 1992, the United States Supreme Court denied certiorari. Duvall v. Oklahoma, 506 U.S. 878, 113 S.Ct. 224, 121 L.Ed.2d 161 (1992).

On December 4, 1992, Mr. Duvall filed an "Application for Post-Conviction Relief" in the district court of Stephens County. The district court denied the application on June 8, 1993. Duvall v. State, No. CRF-86-251 (Okla.Dist.Ct.1993). On June 17, 1993, Mr. Duvall filed a "Notice of Intent to Appeal" the denial of post-conviction relief. On February 10, 1994, the Court of Criminal Appeals of Oklahoma dismissed the appeal for lack of jurisdiction because Mr. Duvall failed to file a Petition in Error and a copy of the district court's order. Duvall v. State, 869 P.2d 332, 334 (Okla.Crim.App.1994). The Court of Criminal Appeals ordered that Mr. Duvall be executed on April 8, 1994. Id. On March 28, 1994, the Court of Criminal Appeals denied Mr. Duvall's motion for reconsideration. Duvall v. State, 871 P.2d 1386 (Okla.Crim.App.1994).

On March 23, 1994, Mr. Duvall filed an "Application to Stay Execution" in the United States District Court of the Western District of Oklahoma. The district court determined that it lacked jurisdiction to grant a stay and dismissed the petition because Mr. Duvall did not file a habeas petition with his motion. Duvall v. Reynolds, No. 94-CV-404-R (W.D.Okla. Mar. 24, 1994). On April 4, 1994, we granted the stay and remanded the case to the district court for further proceedings. Duvall v. Reynolds, No. 94-6106 (10th Cir. Apr. 4, 1994).

On November 14, 1994, Mr. Duvall filed a petition for a writ of habeas corpus with the United States District Court for the Western District of Oklahoma. In his petition Mr. Duvall raised fourteen grounds of error, including ineffective assistance of counsel during both the guilt and penalty phases of his trial. On November 27, 1995, at Mr. Duvall's request, the district court conducted an evidentiary hearing to consider whether Mr. Duvall received ineffective assistance of counsel during the penalty phase of his trial. On July 10, 1996, the district court rejected Mr. Duvall's habeas claim of ineffective assistance of counsel during the penalty phase of his trial. On August 22, 1996, the district court concluded that Mr. Duvall was not

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entitled to relief on his remaining claims and dismissed his petition. The district court granted Mr. Duvall's motion for a certificate of appealability on September 26, 1996.

On appeal from the denial of his habeas petition, Mr. Duvall asserts that: (1) he received ineffective assistance of counsel at trial because his attorney failed to present any mitigating evidence during the penalty phase, 1 (2) the State failed to disclose exculpatory evidence, (3) the trial court failed to instruct the jury on the lesser included offenses of murder in the second degree and manslaughter in the first degree, (4) the trial court erred in admitting Mr. Duvall's prior bad acts, (5) the trial court prevented Mr. Duvall from introducing evidence of the decedent's prior drug conviction in support of his defense, (6) the trial court failed to instruct the jurors that they could impose a life sentence even if they found an aggravating circumstance, (7) the jury instructions confused the jury regarding its responsibility to weigh mitigating circumstances, (8) the jury instruction concerning the aggravating circumstance "especially heinous, atrocious, or cruel" was unconstitutionally vague, (9) the prosecutor made improper statements during closing arguments, and (10) the State failed to give Mr. Duvall adequate notice of the witnesses and evidence that the State intended to use during the penalty phase of the trial.

DISCUSSION

Before we address the merits of Mr. Duvall's claims, we must first address the applicability of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L. No. 104-132, 110 Stat. 1214, to this case. Title I of the AEDPA, entitled "Habeas Corpus Reform," altered the law governing habeas corpus petitions in two ways. First, the AEDPA made a number of procedural and substantive changes to the habeas corpus provisions in Chapter 153 of Title 28 of the United States Code. AEDPA §§ 101-106 (codified at 28 U.S.C. §§ 2244, 2253-55). Second, the AEDPA created chapter 154, which establishes special habeas corpus procedures that supplement the provisions of Chapter 153 in capital cases. AEDPA § 107 (codified at 28 U.S.C. §§ 2261-66).

In Lindh v. Murphy, --- U.S. ----, ----, 117 S.Ct. 2059, 2068, 138 L.Ed.2d 481 (1997), the Supreme Court held that the amended provisions of Chapter 153 apply only to habeas cases filed after the AEDPA became effective on April 24, 1996. In contrast to the amendments to Chapter 153, Congress provided that Chapter 154's new habeas procedures for capital cases "shall apply to cases pending on or after the date of enactment of this Act." AEDPA § 107(c); Lindh, --- U.S. at ----, 117 S.Ct. at 2063 (quoting § 107(c)). Mr. Duvall's habeas claim falls within this time frame. Chapter 154's special procedures, however, are available only to states that qualify by ensuring that indigent capital defendants receive competent legal representation. See 28 U.S.C. § 2261(a)-(c).

In this appeal, Oklahoma does not argue that it is a qualifying state for purposes of the AEDPA's new capital habeas corpus procedures. Equally important, in a recent case Oklahoma conceded that it is not a qualifying state for purposes of the new capital habeas corpus provisions. Williamson v. Ward, 110 F.3d 1508, 1513 n. 5 (10th Cir.1997). In light of Lindh and Oklahoma's concessions, we review the denial of Mr. Duvall's habeas...

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