Moore v. Gibson
| Decision Date | 28 September 1999 |
| Docket Number | No. 98-6004,98-6004 |
| Citation | 195 F.3d 1152 |
| Court | U.S. Court of Appeals — Tenth Circuit |
| Parties | (10th Cir. 1999) DEWEY GEORGE MOORE, Petitioner-Appellant and Cross-Appellee, v. GARY E. GIBSON, Warden, Oklahoma State Penitentiary, Respondent-Appellee and Cross-Appellant. & 98-6010 |
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA. D.C. NO. CIV-95-2018-A
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[Copyrighted Material Omitted] Steven M. Presson (Robert Wade Jackson, with him on the briefs), Jackson & Presson, P.C., Norman, Oklahoma, for Petitioner-Appellant and Cross-Appellee.
Sandra D. Howard (W.A. Drew Edmondson, Oklahoma Attorney General with her on the brief), Assistant Attorney General, Chief, Criminal Appeals, Oklahoma City, Oklahoma, for Respondent-Appellee and Cross-Appellant.
Before BRORBY, KELLY, and MURPHY, Circuit Judges.
Petitioner Dewey George Moore appeals the district court's denial of federal habeas relief from his Oklahoma first degree murder conviction and death sentence. See 28 U.S.C. § 2254. Petitioner was convicted of first degree murder and kidnaping for the abduction and murder of twelve-year-old Jenipher Gilbert. Respondent cross appeals, challenging the district court's determination that the Antiterrorism and Effective Death Penalty Act of 1996 does not apply to petitioner's habeas petition.
As grounds for habeas relief, petitioner asserts: 1) he is entitled to discovery and an evidentiary hearing on his allegations that police planted evidence against him; 2) the State's chief witness, a forensic chemist, falsely testified at trial, depriving petitioner of due process and a fair trial; 3) the trial court erred in dismissing a prospective juror for cause; 4) the prosecutor's misconduct deprived petitioner of a fair trial; 5) the application of Oklahoma's "especially heinous, atrocious or cruel" aggravating circumstance was unconstitutional; 6) there was insufficient evidence to support the jury's finding that the murder was "especially heinous, atrocious or cruel;" 7) Oklahoma's continuing threat aggravating circumstance is unconstitutionally overbroad; 8) petitioner's trial and direct appeal attorneys were constitutionally ineffective; and 9) the cumulative effect of these errors deprived petitioner of a fair trial. The district court granted petitioner a certificate of appealability as to all of these issues. See 28 U.S.C. § 2253(c); Fed. R. App. P. 22(b)(1). We affirm the district court's denial of habeas relief, with the exception of its treatment of petitioner's claim that police planted evidence against him, which we remand to the district court for discovery.
The victim was abducted on September 27, 1984, at approximately 9:30 P.M., following a junior high school football game. Two adults and a fifteen-year-old student witnessed the abduction. All three indicated that the victim had been forced into a yellow car. At trial, both adults identified petitioner's yellow car as looking like the car in which the victim was abducted.
The day after the abduction, the student witness, Paulo Gomes, identified two men from a photo array, one of whom was petitioner, as similar to the man he had seen abduct the victim. At trial, the student again identified petitioner as looking like the man who forced the victim into the yellow car.
The victim's partially clad body was found at 11:00 A.M. the morning after the abduction in a field ten miles from the school. She had been strangled and suffocated and had died several hours before her body was found. The pep club uniform she had been wearing at the time of the abduction was never found. There was duct tape in her hair and markings on her body indicating that she had been bound with tape around her wrists, arms, ankles, thighs, back, neck and face. There were also tape marks indicating placement over her nose and mouth. She had suffered bruising or abrasions to her face, neck, back and buttocks.
Petitioner lived near the junior high school. On the night of the abduction, he had visited his brother's family, who lived just three quarters of a mile from the school. He left his brother's home between 9:15 P.M. and 9:30 P.M.
The next morning, petitioner left his yellow car parked in front of his home and walked an eighth of a mile to a grocery store. There, petitioner stole a car and drove to the construction site where he worked. Petitioner told his boss that he had suffered a "mild coronary" the previous night and had been treated at a hospital. He further related that, as a result, he would have to quit his job. The boss described petitioner that morning as wide-eyed and very nervous. Petitioner collected his wages and left. Police arrested him later that morning for driving a stolen vehicle.
On September 29, and again on October 4, 1984, police executed search warrants for petitioner's home, where he lived alone, and his car. During the first search, officers found, among other things, a partially packed suitcase in petitioner's home and a used feminine napkin under petitioner's bed. At the time she was abducted, the victim had been menstruating. The used feminine napkin found in petitioner's home, however, appeared to be of a different type than that found at the victim's home.
A week after the murder, a paper bag was found on the roof of the grocery store located near petitioner's home and near where he stole the car on the morning following the abduction. Inside the bag was a used feminine napkin of the same type found at the victim's home, containing blood of the same type as the victim. The bag also contained a knife, a belt matching markings made on the victim's arms, a fingernail that did not match either petitioner or the victim, several pieces of duct tape, including a wad of tape with hair stuck to it, a garment label, several cigarette butts, and an earring similar to that worn by the victim on the night she was abducted.
At trial, the State presented the testimony of a forensic chemist, Janice Davis. Her testimony linked the victim, the contents of the paper bag, petitioner, his car, the stolen car, and petitioner's home. Among other things, the chemist identified hair similar to the victim's found on and underneath a bed, on a couch, and in the living room in petitioner's home; in a glove found in the stolen car; in petitioner's yellow car; and on the duct tape in the paper bag. In addition, fibers found on the victim's body were similar to carpet fibers taken from petitioner's car, floor mats and his home, including those from an afghan in his living room. Fibers found in petitioner's living room, bedroom, and hair brush, and from the knife found in the paper bag on the grocery store roof, were similar to fibers taken from pep club uniforms like the one worn by the victim on the night of the abduction. A single limb hair found on the victim was similar to petitioner's limb hair. The chemist testified that, based upon the hair, fiber and serological evidence, she was convinced that the victim had been in petitioner's car and home.
The jury convicted petitioner of first degree murder and kidnaping. During the capital sentencing proceeding, the trial court incorporated all of the guilt phase evidence. In addition, the State presented evidence of petitioner's prior felony convictions for attempted first degree rape, aggravated kidnaping, indecency with a child, assault and battery with a dangerous weapon, child beating, and robbery with a dangerous weapon.
A woman who had previously lived with petitioner also testified concerning an incident when petitioner entered her home, tied her up and stared at her. The woman's daughter testified that petitioner sexually abused her. She also testified concerning an incident during which petitioner awakened the witness, then five or six years old, and her two brothers, then ages four and eight, in the middle of the night, tied them up without clothes and then stared at them while they struggled to get free.
One of petitioner's former wives testified to petitioner's abusive behavior towards her and their children, including incidents when he would tie her up, rape her and then attempt to choke or smother her.
In mitigation, petitioner presented evidence of his regular involvement with his church, his generally polite and kind demeanor, his father's abuse, other incidents of petitioner's abuse of women and children, his significant mental health problems exacerbated by his drinking, and his good behavior while in prison. A defense psychologist specifically testified that petitioner suffers from an incurable borderline personality disorder, primarily due to his father's abuse, but that he could function well in a structured prison environment. The psychologist indicated that petitioner would probably remain a threat if released back into society, but that he did not present a threat to anyone in prison.
The jury found the existence of three aggravating circumstances: petitioner had previously been convicted of a violent felony, he presented a continuing threat to society, and the murder was especially heinous, atrocious or cruel. The jury sentenced petitioner to death on the first degree murder conviction and to 999 years' imprisonment on the kidnaping conviction.
The Oklahoma Court of Criminal Appeals affirmed petitioner's convictions and sentences. See Moore v. State, 788 P.2d 387 (Okla. Crim. App. 1990). The United States Supreme Court denied certiorari. See Moore v. Oklahoma, 498 U.S. 881 (1990). Petitioner then sought state post-conviction relief, which the Oklahoma Court of Criminal Appeals denied. See Moore v. State, 889 P.2d 1253 (Okla. Crim. App. 1995). The United States Supreme Court again denied certiorari. See Moore v. Oklahoma, 516 U.S. 881 (1995). Petitioner commenced this proceeding seeking federal habeas...
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