Hooks v. Ward, 98-6196

• Decision Date: 16 July 1999
• Docket Number: No. 98-6196,98-6196
• Citation: 184 F.3d 1206
• Parties: (10th Cir. 1999) VICTOR WAYNE HOOKS , Petitioner-Appellant , v. RON WARD, Warden, Oklahoma State Penitentiary , Respondent-Appellee
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1206

184 F.3d 1206 (10th Cir. 1999)

VICTOR WAYNE HOOKS , Petitioner-Appellant , v. RON WARD, Warden, Oklahoma State Penitentiary , Respondent-Appellee .

No. 98-6196

UNITED STATES COURT OF APPEALS TENTH CIRCUIT

July 16, 1999

Appeal from the United States District Court for the W.D. Okla. (D.C. No. CIV-96-732-M ) [Copyrighted Material Omitted]

[Copyrighted Material Omitted] Vicki Ruth Adams Werneke, Assistant Federal Public Defender (Janet Chesley, Assistant Federal Public Defender and Patrick J. Ehlers, Jr., Assistant Public Defender, with her on the briefs), Oklahoma City, Oklahoma, for Petitioner-Appellant.

Sandra D. Howard, Assistant Attorney General, Chief, Criminal Appeals ( W. A. Drew Edmondson, Attorney General of Oklahoma, with her on the briefs), Oklahoma City, Oklahoma, for Respondent-Appellee.

Before ANDERSON, TACHA and EBEL, Circuit Judges.

EBEL, Circuit Judge, delivered the opinion of the court except as to part III. C.

EBEL, Circuit Judge

In May 1989, an Oklahoma jury convicted Victor Wayne Hooks of first degree murder and first degree manslaughter for beating to death, respectively, his common-law wife and the 24-week-old fetus she was carrying. After a one-day sentencing hearing, Hooks was sentenced to death on the murder conviction and to 500 years' imprisonment on the manslaughter conviction. On December 2, 1996, after direct and collateral appeals in the Oklahoma courts, Hooks filed a petition for writ of habeas corpus in the United States District Court for the Western District of Oklahoma pursuant to 28 U.S.C. § 2254. The district court denied Hooks' petition on all thirteen grounds advanced, and granted a certificate of appealability ("COA") under 28 U.S.C. § 2253 as to Hooks' claims of ineffective assistance of trial counsel and denial of a fair trial. Hooks filed a timely appeal in this court and requested that we grant a COA on several additional issues raised before the district court. We granted Hooks a COA on Issues I (ineffective assistance of trial and/or appellate counsel), II (trial court failure to instruct the jury on lesser included offenses), and V (constitutionality of certain aggravating sentencing factors), as raised in Hooks' brief on appeal. We REMAND for the district court to consider the adequacy of the state's claim of procedural bar on all but one of Hooks' claims of ineffective trial counsel. As to all other issues as to which a certificate of appealability has been granted, we AFFIRM.

BACKGROUND

At approximately 7:00 p.m. on October 6, 1988, defendant Hooks showed up at the home of Ms. Virginia Plumley, the mother of his putative common-law wife, Shalimein Blaine, and told her that Shalimein had been beaten and raped. Hooks, father of Shalimein's then-one-year old daughter Vargus Shalimar and the father of the fetus she was carrying, implored Ms. Plumley to check on her daughter Shalimein -- who had just moved into an apartment less than a block away from Ms. Plumley -- and to take her to the hospital. When Ms. Plumley asked Hooks what happened to Shalimein, he responded that he did not know.

After the badly beaten Shalimein had been taken down the stairs of her apartment building and placed in Hooks' Cadillac, Ms. Plumley asked Hooks again what had happened. On the drive to the hospital Hooks told a number of stories to the effect that Shalimein had taken a walk earlier in the evening, and after about two hours had returned, knocked on the door or entered her upstairs apartment, and fell into his arms beaten and bloodied. At that point, Hooks said that either he removed her clothes or she removed them herself so he could wash her in the bathtub. During the drive, Ms. Plumley noticed that Shalimein's hair was shaven and her face "was swollen real bad." Ms. Plumley told Hooks that she thought Shalimein was dead, which made him "hysterical" and prompted him to exclaim, "That's my baby, she's not dead," and "I'm going to kill" the people who did this.

Ms. Plumley asked Hooks why he had shaved Shalimein's head. He said that he had not done it and that it must have been the person who raped and beat her. When they arrived at the hospital, Hooks carried Shalimein into the hospital, asking everybody to get out of his way because "his baby had to have medical attention." After handing Shalimein over to hospital staff, Hooks called the police (but Ms. Plumley testified that since the police arrived "about a minute or two after" Hooks called, she believed someone else had called first). As doctors began efforts to revive Shalimein,¹ the police interviewed Hooks, Ms. Plumley, and her daughter Amanda.

During the preliminary investigation by Oklahoma City Police Officer Robert Ardle, Hooks told essentially the same story he had told Ms. Plumley. Then, while still at the hospital, Hooks signed a search warrant authorizing a search of Shalimein's apartment. In the apartment, officers found her hair in a trash can, as well as blood on the bed, on the carpet near the bed, and on several wash cloths and towels that had been thrown in a clothes hamper. Outside Shalimein's apartment, in a trash dumpster, police found bloody clothing and wash cloths as well as a large clump of hair.

In the course of the investigation, Hooks was interviewed by Oklahoma Police Detectives Eric Mullenix and Randy Scott at approximately 1:00 a.m. on October 7th. At first, Hooks told the detectives a version of the same story he had told Ms. Plumley and Officer Ardle; however, after the detectives confronted him with questions about the hair and blood found in the apartment and the nearby dumpster, Hooks broke down crying and explained that he wanted to come clean. Hooks admitted that he and Shalimein had fought on the evening of October 6, 1988. He explained that their verbal fight over money escalated into a physical one when Shalimein slapped him in the face. Hooks admitted that he struck Shalimein with his fist, and that when she fell to the floor by the bed, he began kicking her in the stomach and the face "real hard." Hooks admitted that he beat her until she lay still on the floor with blood coming from her mouth and nose.

At that point, Hooks explained that he picked her up, took her into the bathroom, removed her clothes, and began trying to clean her up in the bathtub. In response to the detectives' inquiry about why they had found hair in the dumpster, Hooks said that he had shaved some of her hair with a razor in an effort to locate her head injuries. He further explained that Shalimein was having trouble breathing and that she eventually lost consciousness, at which point he began cleaning up the apartment and the couple's one-year old daughter Vargus Shalimar, who had gotten blood on her in the course of witnessing Hooks beat her mother. The detective then stopped the interview and asked if Hooks would restate his new story on audio tape. Hooks agreed. That tape was played for members of the jury, who were also provided with a written transcript in order to follow along.

At trial, in an effort to show the graphic and violent nature of the beating that caused Shalimein's death the state put on Oklahoma City Police Lieutenant Tom Bevel, an expert in geometric blood stain pattern interpretation and crime scene reconstruction. Lieutenant Bevel testified that the blood stains found on the blue jeans Hooks was wearing when he beat Shalimein to death were consistent with the state's theory that Hooks "stomped" Shalimein.

The state also presented the testimony of Shanna K. (Allen) Dinh, a former girlfriend of Hooks. Ms. Dinh testified that she began a sexual relationship with Hooks when she was 13 years-old -- approximately 10 years his junior -- and earned money for Hooks through prostitution and nude dancing. Ms. Dinh testified that Hooks was a violent man, and that if one of his girls refused to follow his orders she "got [her] butt kicked." Further, she explained that "whenever [Hooks] would get mad, he would look at us and say, 'One of these days I'm going to end up killing one of you bitches.'"

Ms. Dinh testified that she had Hooks' child when she was 15 years-old; and, that when she became pregnant for the second time with Hooks, "[a] beating by Victor [Hooks]" caused a miscarriage. She explained that Hooks had informed her and all the other women with whom he was involved that "if anyone ever got pregnant again [a second time], that he was going to kick it out of their ass."

As to Shalimein's second pregnancy (the one she was in when Hooks killed her), Ms. Dinh testified that Hooks said "he didn't want no more babies and that he was mad because she was pregnant again." Moreover, Ms. Dinh testified that she saw Hooks inflict violence on Shalimein "several" times, including one beating approximately one month prior to the fatal beating, during which Hooks hit Shalimein with a two-by-four, then "pushed her down on the couch, . . . spread her legs open and . . . kick[ed] her in her vagina [with cowboy boots], saying that he doesn't want this baby."

At trial, Hooks' attorney conceded that Hooks killed Shalimein, but argued that he did so unintentionally. Based on this theory, Hooks' counsel moved the trial court to instruct the jury on the lesser included offenses of second degree murder and first degree manslaughter as to Shalimein. The judge refused, and instead instructed the jury only on first degree murder.

After the foregoing events had been introduced over a two-day trial and the court issued its instructions, an Oklahoma jury convicted Hooks of first degree murder for intentionally causing Shalimein's death, and of first degree manslaughter for causing the death of the unborn quick fetus she was carrying. After a one-day sentencing hearing, during which Hooks' counsel put on the testimony of an Oklahoma County Deputy Sheriff, a clinical psychologist, and Hooks' mother and sister, the jury fixed Hooks' sentence at death for Shalimein's murder and at 500...