179 F.3d 904 (10th Cir. 1999), 98-6309, Boyd v. Ward

Docket Nº:98-6309.
Citation:179 F.3d 904
Party Name:Ronald Keith BOYD, Petitioner--Appellant, v. Ron WARD, Warden, Oklahoma State Penitentiary, Respondent--Appellee.
Case Date:June 08, 1999
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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Page 904

179 F.3d 904 (10th Cir. 1999)

Ronald Keith BOYD, Petitioner--Appellant,

v.

Ron WARD, Warden, Oklahoma State Penitentiary, Respondent--Appellee.

No. 98-6309.

United States Court of Appeals, Tenth Circuit

June 8, 1999

Appeal fom the United States District Court for the Western District of Oklahoma. (D.C. NO. CV-97-525).

David B. Autry, Oklahoma City, Oklahoma, for Petitioner-Appellant.

Seth S. Branham, Assistant Attorney General (W.A. Drew Edmondson, Attorney General and Sandra D. Howard, Assistant Attorney General, with him on the brief), Oklahoma City, Oklahoma, for Respondent-Appellee.

Before ANDERSON, TACHA, and KELLY, Circuit Judges.

ANDERSON, Circuit Judge.

Ronald Keith Boyd was convicted and sentenced to death for the murder of Oklahoma City police officer Richard Riggs. He appeals the denial of his habeas petition seeking to overturn that conviction and sentence. We affirm.

BACKGROUND

On the evening of January 7, 1986, Mr. Boyd, Byron Gibbs, Joe Jackson, and Lenora Denise Dunn were in a green van driven by Mr. Gibbs. At Mr. Boyd's request, they stopped at a convenience store called Tom's Market. Mr. Boyd and Mr. Jackson used the pay telephone. Mr. Boyd and Ms. Dunn discussed robbing the store, and Mr. Boyd handed a gun to Ms. Dunn, who used the weapon to rob the store. Mr. Gibbs testified that, after the robbery, Ms. Dunn handed the gun back to Mr. Boyd. After the robbery, the four proceeded to a nearby Phillips 66 gas station, where Mr. Boyd again used a pay telephone.

Oklahoma City Police officers Richard Riggs and Craig Gravel responded to the report of an armed robbery at Tom's Market, and were told the suspect was a black female in a green van. The officers noticed the green van parked at the Phillips 66 station and pulled their police cruiser into the station to investigate. Officer Gravel approached the rear of the van and saw that it was occupied by a female and two males. Officer Riggs walked toward Mr. Boyd, who was outside the van talking on a pay telephone. Officer Riggs twice asked Mr. Boyd to get off the phone. Mr. Boyd then dropped the receiver and approached Officer Riggs with his hands in his pockets. Officer Gravel testified that he heard Officer Riggs ask Mr. Boyd to remove his hands from his pockets. This request was immediately followed by two shots, which struck Officer Riggs in the abdomen and chest. The shot to the chest was fired from very close range. He died soon thereafter from the gun shot wounds.

A passing motorist, Stephen Gericke, testified that he saw the person talking on the phone shoot Officer Riggs. Mr. Jackson also testified that he saw Mr. Boyd fire shots from his pocket.

Officer Gravel was unable to see the shooting because he was behind the van at the time. He testified that, after the shots were fired, he saw someone standing at the rear of the van. Officer Gravel testified that he ducked and ran toward the gasoline pumps. He heard several shots fired as he was running. The green van began to roll out of the gas station parking area and eventually stopped after striking a fence across the street. Officer Gravel fired at the van as it rolled out of the station; Officer Riggs, although fatally wounded, also fired at the moving van. Officer Gravel called for back-up, other officers arrived and all the occupants of the van, except Mr. Boyd, were arrested at the scene. Ms. Dunn was arrested on the opposite side of the fence into which the van had rolled. Mr. Boyd fled on foot through an adjacent golf course. The next day, a Colt .38 revolver was found at the golf course. The State presented evidence that the bullets which killed Officer Riggs came from that Colt .38. The weapon was damaged in a manner consistent with having been struck by a bullet.

Mr. Boyd was arrested the next day at the home of a friend, Reginald Walker. Mr. Walker testified that, before the police arrived, Mr. Boyd told him:

he had panicked.... That ... Officer Riggs approached him, and he turned around, and he said he just blacked out. Blacked twice. And he just, you know, the gun went off and another shot went off, and he turned and ran.... [He panicked because] there had been a robbery and ... he had just recently gotten out of jail for some problem that he had had.... And that he was afraid of being arrested.

Tr. Vol. III at 623. At the time of his arrest, Mr. Boyd had some abrasions on his hands.

After his arrest, Mr. Boyd was interviewed by Detective Bob Horn. He admitted to Detective Horn that he was on the telephone at the Phillips 66 gas station when the officers arrived. He also stated that he saw a hitchhiker reach in his backpack, pull out a gun and fire at Officer Riggs.

Mr. Boyd was charged by information with murder in the first degree by malice aforethought and robbery with firearms. He was convicted of both. In the penalty phase of the trial, the jury found the following three aggravating circumstances: (1) the murder was committed for the purpose of avoiding arrest or prosecution; (2) the existence of a probability that Mr. Boyd would commit acts of violence which would constitute a continuing threat to society; and (3) the victim was a peace officer killed in the performance of his duties. Mr. Boyd was sentenced to death for the murder conviction and fifty years imprisonment for the robbery with firearms. The conviction and sentence were affirmed on direct appeal. Boyd v. State, 839 P.2d 1363 (Okla.Crim.App.1992), cert. denied, 509 U.S. 908, 113 S.Ct. 3005, 125 L.Ed.2d 697 (1993).

Mr. Boyd then filed an application for post-conviction relief in state court and requested an evidentiary hearing. The state court denied the petition and did not hold an evidentiary hearing. That denial was affirmed on appeal. Boyd v. State, 915 P.2d 922 (Okla.Crim.App.), cert. denied, 519 U.S. 881, 117 S.Ct. 207, 136 L.Ed.2d 142 (1996). Mr. Boyd then filed the present habeas petition in federal district court. The court denied his request for an evidentiary hearing and denied the petition. The court granted Mr. Boyd a certificate of appealability as to all issues raised in the habeas petition.

On appeal from that denial, Mr. Boyd argues thirteen major issues: (1) trial counsel was ineffective in both the guilt/innocence and penalty phases of his trial; (2) appellate counsel was ineffective; (3) his due process rights were violated by the state's introduction of unreliable and misleading scientific evidence; (4) his due process rights were violated by the court's failure to instruct the jury on the lesser included offenses of second degree murder and first degree manslaughter; (5) his due process rights were violated by prosecutorial misconduct occurring in the guilt/innocence and the penalty phases of the trial; (6) his Eighth and Fourteenth Amendment rights were violated by the court's failure to instruct the jury on the mitigating circumstance that Mr. Boyd had no previous convictions for violent crime; (7) he was denied the right to call certain witnesses in support of his defense; (8) his due process rights were violated by the court's failure to give accomplice corroboration instructions; (9) his Eighth and Fourteenth Amendment rights were violated by the introduction of evidence of unadjudicated acts in the penalty phase of the trial; (10) the "continuing threat" aggravator is unconstitutionally vague and overbroad, in violation of the Eighth and Fourteenth Amendments; (11) the court failed to limit the jury's consideration of the "avoid arrest" aggravator; (12) various jury instructions given in the penalty phase violated the Eighth and Fourteenth Amendments; and (13) he was denied an evidentiary hearing in federal court.

Within those thirteen issues, Mr. Boyd argues many subsidiary issues: more than a dozen specific instances of trial counsel ineffectiveness; numerous instances of appellate counsel ineffectiveness; multiple subsidiary issues with respect to the testimony of various witnesses, including firearms expert Sergeant Golightly and medical examiner Dr. Choi; multiple instances of alleged prosecutorial misconduct; and multiple subsidiary issues with respect to jury instructions in both phases of the trial.

The habeas provisions have been amended by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). Under amended 28 U.S.C. § 2254(d), a state prisoner will be entitled to federal habeas corpus relief only if he can establish that a claim adjudicated by the state courts "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," or "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." Further, "a determination of a factual issue made by a State court shall be presumed to be correct." 28 U.S.C. § 2254(e)(1). That presumption of correctness is rebuttable only "by clear and convincing evidence." Id.

The parties do not dispute the applicability of these provisions on appeal. The parties also do not attempt to further define these standards of review. We have acknowledged that "the AEDPA increases the deference to be paid by the federal courts to the state court's factual findings and legal determinations." Houchin v. Zavaras, 107 F.3d 1465, 1470 (10th Cir.1997). We note also that the Supreme Court has granted certiorari in a case involving the interpretation of the AEDPA, which we presume will resolve some of these issues. See Williams v. Taylor, 163 F.3d 860 (4th Cir.1998), cert. granted, --- U.S. ----, 119 S.Ct. 1355, --- L.Ed.2d ----, 67 U.S.L.W. 3608, 3613 (April 5, 1999) (No. 98-8384). Pending that resolution, for completeness of disposition and for purposes of this case only, without creating any standard for this circuit in other cases, we elect to review Mr. Boyd's contentions...

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