Moore v. Reynolds, 97-6065

• Decision Date: 13 July 1998
• Docket Number: No. 97-6065,97-6065
• Citation: 153 F.3d 1086
• Parties: 98 CJ C.A.R. 3786 Scotty L. MOORE, Petitioner-Appellant, v. Dan REYNOLDS; Larry Fields, Respondents-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1086

153 F.3d 1086

98 CJ C.A.R. 3786

Scotty L. MOORE, Petitioner-Appellant, v. Dan REYNOLDS; Larry Fields, Respondents-Appellees.

No. 97-6065.

United States Court of Appeals, Tenth Circuit.

July 13, 1998.

David A. Ruhnke, Ruhnke & Barrett, Montclair, New Jersey (Scott Braden, Assistant Federal Public Defender, Oklahoma City, Oklahoma, with him on the brief), for appellant.

William L. Humes, Assistant Attorney General (W.A. Drew Edmondson, Attorney General, and A. Diane Blalock, Assistant Attorney General, with him on the brief), Oklahoma City, Oklahoma, for appellees.

Before TACHA, BRORBY, and BRISCOE, Circuit Judges.

BRISCOE, Circuit Judge.

Petitioner Scotty Lee Moore, an Oklahoma state prisoner sentenced to death, appeals the district court's denial of his 28 U.S.C. § 2254 petition for writ of habeas corpus. We affirm.

I.

Moore was convicted of robbery in 1978 and served three and a half years in state confinement. After his release, he lived with an aunt and uncle in Umbarger, Texas, for a brief time and began a romantic relationship with his cousin, Vicki Caster. In late September or early October 1983, Moore and Caster went to Oklahoma City, and lived there most of October, staying initially with a friend of Moore's and later at the Airline Motel. Moore worked at a pizza restaurant, at a car wash, and as a clerk at the Airline Motel, using the alias "Jerry Whitlock." In late October, a co-worker at the Airline Motel, Alex Fernandez, accused Moore of stealing money from the business, and the owner of the motel authorized Fernandez to fire Moore.

Moore and Caster returned to Texas for a brief period, then drove to Dodge City, Kansas, where they stayed with Debbie McLaughlin, a friend of Caster's, until the middle of November. On November 11, 1983, Caster called June Setzkorn, a friend of hers who lived just outside of Dodge City, to borrow money. At Setzkorn's invitation, Moore and Caster drove to Setzkorn's house and Caster borrowed $50. Caster and Moore purchased beer and whiskey and returned to the Setzkorn home later that same evening as they knew the Setzkorns would be out of town attending a funeral. They broke into the home and stole a variety of items, including money, firearms, and ammunition. Moore and Caster also broke into the Setzkorns' adjoining meat processing business and stole additional items, including money, food stamps, and packaged meat. They dropped some of the stolen items off at a friend's house before returning to McLaughlin's house.

Moore and Caster left the next day and arrived in Oklahoma City on November 13, 1983, where they visited a nightclub and Moore tried unsuccessfully to sell some of the stolen firearms. After leaving the nightclub, Moore and Caster purchased some liquor and attempted to rob the Airline Motel, where Alex Fernandez was working the night shift. Although Moore attempted to enter the motel carrying one of the stolen firearms, he was unsuccessful, and the couple fled in their car. Later that evening, Moore called Fernandez to ask if there were any rooms available. Fernandez apparently said "no," which angered Moore.

Moore and Caster spent the next three nights with friends and, on November 16, 1983, they checked into the Swank Motel. On the evening of November 17, 1983, they went to a nightclub and again decided to rob the Airline Motel. As with their first attempt, Moore and Caster knew Fernandez would be working alone. Moore told Caster she was to open the cash register while he tied and gagged Fernandez.

Moore and Caster drove to the Airline Motel and parked behind the motel. As they walked from their car to the office, Moore said to Caster: "Dead people can't talk." Trial Transcript at 528. Caster entered the office first, walked to the counter, and began talking to Fernandez. Moore entered behind Caster, carrying a stolen .22 rifle. Moore yelled at Fernandez to look at him, then directed him to come out from behind the counter. Moore instructed Caster how to open the cash register and told her to look in the drawers for "the big money." Id. at 529. He directed Fernandez into the office restroom. As Caster was attempting to wipe away her fingerprints, she heard gunshots. She ran out of the office toward the car, with Moore following her. The couple drove around for a while and then returned to the Swank Motel and loaded their belongings. They stopped initially at a pay phone and called the Airline Motel to see if anyone would answer. There was no answer and they drove to a cafe, ate breakfast, and drove toward Texas.

Caster asked Moore why he had killed Fernandez and Moore replied: "You'd be dead, too, if you had been shot five times in the head." Id. at 531. Moore told her he directed Fernandez to lay face down and not to move and then shot him in the head. Moore said "he couldn't figure out why every time he pulled the trigger there [were] little red balls of fire that come out." Id. at 532. Finally, Moore said "he didn't know it could be so easy to kill someone." Id. at 532-33.

Motel employees discovered Fernandez' body later that morning and called the police. The police found several .22 casings on the floor in the bathroom near Fernandez' body, as well as outside the bathroom in the lobby area. Bloodstain evidence indicated Fernandez had been shot multiple times in the back of the head while lying in the same position on the bathroom floor. There were no signs of a struggle. An autopsy indicated Fernandez suffered five gunshot wounds to the head, all fired from approximately the same angle.

Moore and Caster visited the home of Moore's sister and brother-in-law in Big Springs, Texas, on the morning of November 20, 1983. During the visit, Moore gave the .22 rifle he had used to kill Fernandez to his brother-in-law and told him to keep it for Moore's nephew. Moore's brother-in-law agreed, and retained custody of the rifle until it was recovered by the police. According to Caster, Moore told her he needed to get rid of the rifle and he believed it would not be found at his brother-in-law's house.

On November 23, 1983, Moore and Caster were stopped by police in LaMesa, Texas, because their vehicle's headlights were not on. During the stop, Moore told Caster (who was in the driver's seat) he was not going to jail. Moore proceeded to place the car in gear and press on the gas pedal from his position in the passenger seat. He directed Caster to drive, saying "If I have to, I'll take a few of them [the police] with me." Id. at 543. As Caster drove away at a high rate of speed, officers fired shots at the vehicle. The vehicle came to a stop after its front tires were blown out. Caster and Moore were arrested and taken into custody. Caster subsequently agreed to cooperate with authorities.

After a five-day jury trial in Oklahoma state court, Moore was convicted of first degree felony murder on October 19, 1984, and was sentenced to death. On direct appeal, the Oklahoma Court of Criminal Appeals affirmed Moore's conviction and sentence. Moore v. State, 736 P.2d 161 (Okla.Crim.App.1987). The Court of Criminal Appeals denied his petition for rehearing and his petition for writ of certiorari was denied by the United States Supreme Court on October 5, 1987. Moore v. Oklahoma, 484 U.S. 873, 108 S.Ct. 212, 98 L.Ed.2d 163 (1987).

Moore filed an application for post-conviction relief in state court, which was denied on June 9, 1988. On appeal, the Oklahoma Court of Criminal Appeals rejected most of the arguments raised by Moore, but agreed the "especially heinous, atrocious or cruel" aggravating circumstance was invalid. Moore v. State, 809 P.2d 63, 65 (Okla.Crim.App.1991), cert. denied, 502 U.S. 913, 112 S.Ct. 313, 116 L.Ed.2d 255 (1991). Specifically, the court noted it had previously limited this aggravating circumstance "to those murders which were preceded by torture or serious physical abuse," and concluded the record in Moore's case was "void of any torture or serious physical abuse suffered by Mr. Fernandez prior to his death." Id. Independently reweighing the aggravating and mitigating circumstances, the court found the evidence at the sentencing phase was sufficient to support the jury's findings on the remaining three aggravating circumstances (i.e., that Moore would constitute a continuing threat to society, that the murder was committed for the purpose of avoiding or preventing a lawful arrest or prosecution, and that Moore was previously convicted of a felony involving the use or threat of violence to a person). Although the court noted Moore had presented "much evidence in mitigation," it concluded the sentence of death was "factually substantiated and appropriate" in light of the remaining three aggravating circumstances. Id. at 65-66.

On May 21, 1992, Moore and other death row inmates filed a civil action pursuant to 42 U.S.C. § 1983 in Oklahoma federal district court challenging an Oklahoma State Penitentiary policy prohibiting barrier-free or contact visits with counsel, psychologists, and other health professionals. The federal district court held the challenged policy violated plaintiffs' constitutional rights, but determined alterations of the policy unilaterally adopted by penitentiary officials during the litigation were in compliance with constitutional requirements. At the time it entered final judgment, the federal district court dissolved the stays of execution it had entered on behalf of Moore and his fellow plaintiffs. On appeal, this court remanded and directed the district court to enter an order invalidating the modified restrictions on contact visits between plaintiffs and their counsel. Mann v. Reynolds, 46 F.3d 1055, 1064 (10th Cir.1995). However, this court refused to enter new stays of execution. Id. at 1063.

Following dissolution of the stay of execution in the civil action, Moore's execution was rescheduled for July 12, 1994. This prompted a flurry of activity, including simultaneous efforts at...