Trice v. Ward, 98-6465

• Decision Date: 15 November 1999
• Docket Number: No. 98-6465,98-6465
• Citation: 196 F.3d 1151
• Parties: (10th Cir. 1999) EDDIE LEROY TRICE, Petitioner-Appellant, v. RON WARD, Warden, Oklahoma State Penitentiary, Respondent-Appellee
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1151

196 F.3d 1151 (10th Cir. 1999)

EDDIE LEROY TRICE, Petitioner-Appellant, v. RON WARD, Warden, Oklahoma State Penitentiary, Respondent-Appellee.

No. 98-6465

UNITED STATES COURT OF APPEALS TENTH CIRCUIT

November 15, 1999

APPEAL FROM UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA. D.C. No. 96-CV-1336-T

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[Copyrighted Material Omitted] Vicki Ruth Adams Werneke, Assistant Federal Public Defender, Oklahoma City, Oklahoma, for the appellant.

Robert L. Whittaker, Assistant Attorney General of Oklahoma (W.A. Drew Edmondson, Attorney General of Oklahoma, with him on the brief), Oklahoma City, Oklahoma, for the appellee.

Before KELLY, BRISCOE, and LUCERO, Circuit Judges.

BRISCOE, Circuit Judge.

Petitioner Eddie Leroy Trice, an Oklahoma state prisoner sentenced to death after being convicted of first-degree murder, first-degree rape, first-degree burglary, and assault and battery, appeals the district court's denial of his 28 U.S.C. § 2254 petition for writ of habeas corpus. We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.

I.

On Friday, February 13, 1987, Trice spent most of the day drinking with his roommate, Archie Landon (Landon), and Landon's brother Walter. Trice and Landon returned to their apartment between 5:30 and 6:00 p.m. Landon fell asleep on the couch and did not see Trice again until early the next morning. At some point later that evening, Trice left the apartment and drove to a house occupied by Earnestine Jones, an 84-year-old woman, and her 63-year-old, mentally retarded son Emanuel. Trice parked one block away, then walked to the Jones' house and entered through a bedroom window on the northwest side of the house. Once inside, Trice severely beat Earnestine Jones with a set of nunchucks (a martial arts weapon comprised of two pieces of wood attached by a string or chain) and raped her. Ms. Jones, who was 5' 1" tall and weighed 105 pounds, suffered a fracture to one of her eye sockets, fractures to both her lower and upper jaw, neck injuries, a crushed rib cage, internal bruises to her heart and lungs, two broken fingers, extensive bruises in the genital area, and scratches in the vaginal canal and cervix area. Although an autopsy suggested Ms. Jones likely survived for several hours after the attack, she ultimately died of the multiple blunt force injuries to her head, neck, and chest.

Trice, whose nunchucks broke during the attack on Ms. Jones, also assaulted Emanuel Jones with a hammer, puncturing his right eye, fracturing his right cheekbone, and fracturing his right forearm. Before leaving the Jones' residence, Trice stole approximately $500 in cash from Emanuel and threatened to kill him if he told anyone what happened.

Trice returned to his apartment at approximately 1:00 a.m. on Saturday, February 14. Landon, who had been sleeping on the couch, observed blood on Trice's coat and asked him what had happened. Trice said he "tore up" his nunchucks "on some homosexual's head." Trial Tr. at 635. Trice and Landon unwrapped the money, some of which was wrapped in pouches and some of which was wrapped in newspaper. Trice removed his clothes, wrapped them in his bloody coat, and left, saying he was going to burn them. After Trice returned, he and Landon proceeded to Landon's brother's apartment, where the three men spent the rest of the night drinking wine and ingesting cocaine purchased with the robbery proceeds.

Trice was subsequently arrested and charged in the District Court of Oklahoma County with four counts of criminal conduct arising out of his attack on Earnestine and Emanuel Jones: one count of first-degree malice aforethought murder; one count of first-degree rape, after former conviction of two or more felonies; one count of assault and battery with a dangerous weapon, after former conviction of two or more felonies; and one count of first-degree burglary, after former conviction of two or more felonies.

The case was tried to a jury on June 8-12, 1987. At the conclusion of the guilt phase, the jury found Trice guilty of all four counts as charged. At the conclusion of the sentencing phase, the jury sentenced Trice to death on the first- degree murder charge, and 999 years imprisonment on each of the remaining charges.

Trice filed a direct appeal challenging his convictions and death sentence, asserting twenty-two propositions of error. On April 15, 1993, the Oklahoma Court of Criminal Appeals affirmed Trice's convictions and sentences. Trice v. State, 853 P.2d 203 (Okla. Crim. App. 1993) (Trice I). Trice's subsequent petition for writ of certiorari was denied by the United States Supreme Court on December 13, 1993. Trice v. Oklahoma, 510 U.S. 1025 (1993).

Trice filed an application for post-conviction relief with the trial court. On November 18, 1994, the trial court denied Trice's application. Trice appealed to the Court of Criminal Appeals. On February 29, 1996, the Court of Criminal Appeals affirmed the trial court's denial of post-conviction relief. Trice v. State, 912 P.2d 349 (Okla. Crim. App. 1996) (Trice II). Trice filed his federal habeas petition on December 30, 1996. The district court denied relief on all grounds.

II.

Applicability/retroactivity of AEDPA

Trice contends the district court erred in applying the standards of review outlined in the Antiterrorism and Effective Death Penalty Act (AEDPA). Although Trice acknowledges his federal habeas petition was filed after the effective date of the AEDPA, he argues the standards of review set forth therein are inapplicable to his case because they would have an unconstitutional retroactive effect. According to Trice, his "entitlement to a federal evidentiary hearing and to plenary federal review vested when he pled fact based issues in state court and was denied a hearing and relief on the merits." Appellant's Opening Brief, at 17.

We are unpersuaded. We have repeatedly held that the "AEDPA applies to cases filed after its effective date, regardless of when state court proceedings occurred." Moore v. Gibson, 195 F.3d 1152, (10th Cir. 1999); Rogers v. Gibson, 173 F.3d 1278, 1282 n.1 (10th Cir. 1999). Although we have never addressed specifically the retroactivity arguments asserted by Trice, other circuits have uniformly rejected similar arguments. See, e.g., Mueller v. Angelone, 181 F.3d 557, 572 (4th Cir.) ("We thus conclude that petitioner has not identified any new legal consequences that, had he known of them in advance, might have in any way affected his conduct before filing his federal habeas petition, and that he has identified no retroactive effect, impermissible or otherwise, under Landgraf [v. USI Film Products, 511 U.S. 244 (1994)]."), cert. denied, 120 (1999); Graham v. Johnson, 168 F.3d 762, 781 (5th Cir. 1999) ("A statute does not operate 'retrospectively' merely because it is applied in a case arising from conduct antedating the statute's enactment or upsets expectations based in prior law."); Drinkard v. Johnson, 97 F.3d 751, 766 (5th Cir.1996) ("[Petitioner] cannot argue credibly that he would have proceeded any differently during his state post-conviction proceedings had he known at the time of those proceedings that the federal courts would not review claims adjudicated on the merits in the state court proceedings de novo."), cert. denied, 520 U.S. 1107 (1997). Because we agree with the analysis contained in those opinions, we proceed to outline and apply the AEDPA standards of review to Trice's petition.

Standards of review

Under the AEDPA,

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." [28 U.S.C. § 2254(d).] Further, "a determination of a factual issue made by a State court shall be presumed to be correct." [Id.] § 2254(e)(1). That presumption of correctness is rebuttable only "by clear and convincing evidence." Id.

Boyd v. Ward, 179 F.3d 904, 911-12 (10th Cir. 1999). "If, however, a state court did not decide a claim on its merits and instead the federal district court decided the claim in the first instance, this court reviews the district court's conclusions of law de novo and factual findings, if any, for clear error." Wallace v. Ward, 191 F.3d at 1235, (10th Cir. 1999).

III.

Denial of evidentiary hearing

Trice contends the district court erred by not conducting an evidentiary hearing on his ineffective assistance of counsel claims. In Miller v. Champion, 161 F.3d 1249, 1253 (10th Cir. 1998), we held that the AEDPA's restrictions on evidentiary hearings do not apply where a habeas petitioner has "diligently sought to develop the factual basis underlying his habeas petition, but a state court has prevented him from doing so." Although Trice falls within this exception because he sought and was denied an evidentiary hearing in connection with his application for post-conviction relief, we conclude he is not entitled to an evidentiary hearing under pre-AEDPA standards because we can fully resolve his ineffective assistance of counsel claims on the record before us. See Foster v. Ward, 182 F.3d 1177, 1184 (10th Cir. 1999).

Ineffective assistance of trial counsel

Trice contends his trial counsel was ineffective in several respects, all of which were allegedly prejudicial to him. To prevail on his claims of ineffective assistance, Trice must satisfy two requirements. First, he must demonstrate that his counsel's performance was constitutionally deficient, i.e., that it fell below an objective...