173 F.3d 1278 (10th Cir. 1999), 98-6301, Rogers v. Gibson

Docket Nº:98-6301.
Citation:173 F.3d 1278
Party Name:Kelly Lamont ROGERS, Petitioner-Appellant, v. Gary E. GIBSON, Warden; Attorney General of the State of Oklahoma, Respondents-Appellees.
Case Date:April 12, 1999
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

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173 F.3d 1278 (10th Cir. 1999)

Kelly Lamont ROGERS, Petitioner-Appellant,


Gary E. GIBSON, Warden; Attorney General of the State of

Oklahoma, Respondents-Appellees.

No. 98-6301.

United States Court of Appeals, Tenth Circuit

April 12, 1999

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Robert Wade Jackson, Jackson & Presson (Steven M. Presson, Jackson & Presson, with him on the brief) Norman, OK for Petitioner-Appellant.

Robert L. Whittaker, Asst. Atty. Gen. (W.A. Drew Edmondson, Atty. Gen. of OK, with him on the brief), Oklahoma City, OK for Respondents-Appellees.

Before PORFILIO, BALDOCK, and BRISCOE, Circuit Judges.

BALDOCK, Circuit Judge.

On December 17, 1991, an Oklahoma jury convicted Petitioner Kelly Lamont Rogers of first degree murder in the death of Karen Marie Lauffenburger, a student at Oklahoma State University. The same jury also convicted Petitioner of two counts of first degree robbery, one count of first degree rape, and one count of larceny of a motor vehicle. In the penalty phase of the trial, the jury recommended the death penalty for Lauffenburger's murder, fifty and seventy-five year terms for the two robbery convictions, one-hundred fifty years for the rape conviction, and fifty years for the larceny conviction.

Petitioner appealed the judgment and sentences to the Oklahoma Court of Criminal Appeals. The state appellate court denied Petitioner's appeal on January 24, 1995. Rogers v. State, 890 P.2d 959 (Okla.Crim.App.1995). The United States Supreme Court denied Rogers' Petition for Writ of Certiorari on October 10,

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1995. On September 16, 1996, Petitioner filed an application for post-conviction relief with the Oklahoma Court of Criminal Appeals. The court denied the application on February 25, 1997. Rogers v. State, 934 P.2d 1093 (Okla.Crim.App.1997). On February 28, 1997, Petitioner commenced this action in federal district court when he filed an application to proceed in forma pauperis. The district court granted the application and appointed counsel on March 4, 1997. Counsel filed the 28 U.S.C. § 2254 petition for a writ of habeas corpus on April 23, 1997, asserting fifteen grounds for relief. On June 18, 1998, the district court denied the petition and granted a certificate of appealability ("COA") under 28 U.S.C. § 2253, for three of the fifteen claims raised. 1 Petitioner timely filed a notice of appeal. In Petitioner's opening brief, he requested that we grant a COA for seven of the twelve issues on which the district court had previously denied a COA. We deny Petitioner's request for a COA for the seven additional issues. Consequently, we address the following three issues on appeal: (1) whether Petitioner was denied access to state-funded investigatory and expert assistance in violation of Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985); (2) whether variations between the allegations in the information and the proof at trial prejudiced Petitioner and renders his conviction for first degree rape constitutionally deficient; and (3) whether the unconstitutional standard of proof imposed upon Petitioner at his post-examination competency hearing violated his Fourteenth Amendment right to due process and undermined the reliability of the proceedings in violation of the Eighth Amendment. In reviewing the denial of a habeas corpus petition, we review the district court's factual findings under a clearly erroneous standard, and its legal conclusions de novo. Castro v. State of Oklahoma, 71 F.3d 1502, 1510 (10th Cir.1995). Under the AEDPA, our review of the state court's proceedings is quite limited, however. We may not grant habeas relief unless the state court's decision was:

(1) ... contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d)(1), (2). Our jurisdiction arises under 28 U.S.C. §§ 1291and 2253. We affirm.

I. Background

At approximately 10:15 p.m. on December 19, 1990, Lauffenburger's fiance discovered Lauffenburger's nude body in her apartment in Stillwater, Oklahoma. Lauffenburger, a part-time pizza delivery person, had disappeared that evening while delivering pizzas in the Stillwater area. After she failed to return from a delivery, Eric Zanotelli, the manager of the pizza restaurant where she worked, became concerned and attempted to locate her. He retraced her route and drove to the location of her last delivery, an apartment rented to Audra Lynn Todd. Petitioner lived with Todd and is the father of her three children. Todd told Zanotelli that Lauffenberger had delivered the pizza and left. Concerned, Zanotelli called Lauffenburger's fiance who went to Lauffenburger's apartment and discovered the body.

The events leading up to Lauffenburger's murder transpired as follows. After Lauffenburger delivered the pizza to Todd's apartment around 7:00 p.m., Petitioner took a knife from Todd's apartment,

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followed Lauffenburger and robbed her of $40.00. Petitioner and Lauffenburger then drove to her apartment where Petitioner raped her. After the rape, Petitioner drove Lauffenburger to a nearby automated teller machine, where she withdrew $175.00 from her account at 7:52 p.m. Petitioner then returned Lauffenburger to her apartment and murdered her. After the murder, Petitioner drove, in Lauffenburger's car, to the vicinity of Todd's apartment where Lauffenburger's 1984 Toyota Tercel, keys and identification were found at 5:15 a.m. the next morning.

On December 20, 1990, Defendant was charged by Information with first degree murder for Lauffenburger's death. The court declared Petitioner indigent on December 26, 1990, and appointed counsel the same day. On January 29, 1991, Petitioner was charged by Information with two counts of robbery by force, first degree rape, and larceny of a motor vehicle. Defendant was tried before a jury and convicted on all counts. In the penalty phase, the jury found three aggravating factors: (1) the murder was especially heinous, atrocious, or cruel; (2) Petitioner posed a continuing threat to society; and (3) Petitioner had previously been convicted of a felony involving violence. The jury recommended the death penalty, and the trial court sentenced Petitioner to death for the murder conviction.

II. Analysis

  1. Investigatory and Expert Assistance

    Petitioner, relying heavily on Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985), argues that he was denied access to state-funded investigatory and expert assistance in violation of the Eighth and Fourteenth Amendments of the United States Constitution. Petitioner alleges two specific Ake violations: (1) denial of funds for a qualified mental health expert; and (2) denial of funds for an investigator and forensic expert. The facts relevant to these claims are set forth below.

    On September 19, 1991, Petitioner's appointed counsel, Jack S. Bowyer, filed a motion with the trial court to retain an expert witness at state expense. The motion did not identify the type of expert or explain how the expert would aid in the defense. However, at a hearing held the same day, Bowyer explained that he needed funds to hire an investigator to gather witness statements and to hire a forensics expert and a medical doctor to test the state's theories of the case. The trial court denied the requests.

    At the November 18, 1991, motion hearing, the state requested an examination of Petitioner by a state psychiatrist. Bowyer opposed the motion and requested that, if granted, Petitioner was entitled to state funds to employ his own psychiatrist. On December 2, 1991, the trial judge granted the state's motion and granted Petitioner's request to hire, at public expense, a mental health professional to conduct a competency examination. Dr. Thomas A. Goodman, M.D., a psychiatrist, conducted the state's examination of Petitioner. Dr. Jack P. Schaefer, Ph.D., a clinical psychologist examined Petitioner for the defense. Dr. Schaefer only evaluated Petitioner's competency to stand trial and did not address Petitioner's mental condition at the time of the offense. Dr. Schaefer did not assist Bowyer during the guilt or penalty stages of the trial.

    The trial court held a post-examination competency hearing on December 6, 1991, and determined that Petitioner was competent to stand trial. At the hearing, Bowyer argued that he had been unable to employ a mental health expert whose credentials equaled Dr. Goodman's. Bowyer asked for a continuance so he could hire another mental health expert. The trial judge denied the request. After the trial began on December 9, 1991, Bowyer renewed his request for a continuance based in part on his need for additional time to find a mental health expert who could render an opinion regarding Petitioner's mental condition when the crime was committed. The trial judge denied the request,

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    noting that Dr. Schaefer had testified as an expert witness on numerous occasions and was "fully qualified as a mental health professional."

    1. Psychiatric Expert

    Petitioner argues that the trial court erred by refusing to provide his counsel with additional time and funds to hire a mental health expert who could assist with both the guilt and penalty phases of the trial. Petitioner asserts that if his requests were granted, evidence about his neuropsychological development and abilities, as documented by Petitioner's June 15, 1996, examination by Michael M. Gelbort, Ph.D., a licensed psychologist, could have been discovered and presented at trial and that such evidence would have altered the trial's outcome.

    An indigent defendant must have "a fair opportunity to...

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