Paxton v. Ward

• Citation: 199 F.3d 1197
• Decision Date: 29 December 1999
• Docket Number: Nos. 98-6236,98-6238,s. 98-6236
• Parties: (10th Cir. 1999) KENNETH WAYNE PAXTON, Petitioner-Appellee/ Cross-Appellant, v. RON WARD, Respondent-Appellant/ Cross-Appellee
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

Page 1197

199 F.3d 1197 (10th Cir. 1999)

KENNETH WAYNE PAXTON, Petitioner-Appellee/ Cross-Appellant, v. RON WARD, Respondent-Appellant/ Cross-Appellee.

Nos. 98-6236, 98-6238

UNITED STATES COURT OF APPEALS TENTH CIRCUIT

December 29, 1999

Appeal from the United States District Court for the WesternDistrict of Oklahoma. D.C. No. CIV-96-1042-A

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[Copyrighted Material Omitted] Sandra D. Howard, Assistant Attorney General, Chief, Criminal Appeals (W.A. Drew Edmondson, Attorney General of Oklahoma, with her on the brief), Oklahoma City, Oklahoma, for Respondent-Appellant/Cross-Appellee.

Robert A. Nance of Riggs, Abney, Neal, Turpen, Orbison & Lewis, Oklahoma City, Oklahoma (Gloyd L. McCoy, of Coyle & McCoy, Oklahoma City, Oklahoma, with him on the brief), for Petitioner-Appellee/Cross-Appellant.

Before SEYMOUR, Chief Judge, TACHA and KELLY, Circuit Judges.

SEYMOUR, Chief Judge.

Petitioner Kenneth Wayne Paxton was convicted of first degree murder by a jury in Oklahoma state court and sentenced to death. After he unsuccessfully brought a direct appeal and petitions for state post-conviction relief, he filed a writ of habeas corpus in federal district court pursuant to 28 U.S.C. 2254 asserting that numerous constitutional errors occurred during both his trial and his sentencing proceeding. The district court upheld Mr. Paxton's conviction, but determined that the sentencing proceeding was constitutionally flawed by the exclusion of mitigating evidence, the admission of hearsay evidence, and prosecutorial misconduct. Accordingly, the court granted a conditional writ, and allowed the state to elect whether to hold a new sentencing trial or to resentence Mr. Paxton in accordance with state law.

Both parties appeal. The state contends that in holding the death penalty invalid, the district court failed to properly apply the relevant provisions of the Antiterrorism and Effective Death Penalty Act (AEDPA), Pub. L. No. 104-132, 110 Stat. 1214 (1996) (codified in relevant part at 28 U.S.C. 2254), and failed to defer to the state court's interpretation of its own law. The state also asserts that the district court abused its discretion in fashioning the remedy. Mr. Paxton argues that he was improperly denied an instruction on a lesser included offense, and that evidence of an invalid prior conviction was improperly admitted during the sentencing phase of his trial to support two of the three aggravating circumstances found by the jury.¹

We agree with the district court's decision to uphold Mr. Paxton's conviction. We also agree that Mr. Paxton's death sentence is constitutionally infirm and that he is therefore entitled to habeas corpus relief. Finally, we hold that the district court did not abuse its discretion in remanding the matter to state court for further sentencing proceedings.

I. Background

Prior to the crime, Mr. Paxton and the victim, Donna Kay Neal, maintained a relationship that had at one point been intimate. Donna used cocaine, and Mr. Paxton sometimes handled her money for her and occasionally gave her additional money when she needed it. The night of the crime, Donna and her sister Linda Neal played bingo and then went to Donna's house, where they drank beer. They later went to the house of Edward Peters, where they all smoked cocaine. They purchased more cocaine several times during the late evening and early morning hours.

After they had spent all the money they had with them, the sisters drove to Mr. Paxton's house to borrow more. While her sister waited in the car, Donna went into the house and came back with twenty dollars. They returned to Mr. Peters' house and Mr. Peters bought more cocaine. As they sat smoking it and talking, Donna looked out the window repeatedly and said she had seen Mr. Paxton's car. When someone knocked on the door, Donna thought it was Mr. Paxton and went to the door to open it.

The trial testimony as to the events that followed is in conflict. Linda Neal testified that Donna did not have a weapon with her, and that Mr. Paxton had a gun and shot Donna after she opened the door. Mr. Peters also testified that Donna was unarmed, and that after she opened the door Mr. Paxton hit her in the face. Mr. Peters testified he told Mr. Paxton to go outside, whereupon Mr. Paxton pulled a gun from his coveralls and began shooting. Mr. Paxton, on the other hand, testified that Donna took him by the hand and led him into the house, kicked him in the thigh and in the crotch, and struck at him with a knife. He stated that he then pulled out the gun to protect himself and fired toward the doorway.

After Mr. Paxton began shooting, Linda ran out the front door and Mr. Peters ran into the bathroom. Mr. Peters testified that Mr. Paxton followed him, pushed the bathroom door open, pointed the gun at his head and fired, hitting him in the neck. After he recovered consciousness, he went out and saw Donna lying on the floor. He did not see a knife lying beside her. Mr. Peters testified that he ran outside and was pounding on the doors of neighboring houses when he saw Mr. Paxton's car return. He saw the driver get out and walk toward his house, and then saw the driver come out and head back toward the car. Mr. Paxton testified to the contrary, stating that Mr. Peters had a gun and had tried to shoot him but the gun misfired, and that he shot back in self-defense. He denied returning to the house after initially driving away.

Linda Neal testified that after Mr. Paxton began shooting, she ran out the front door past the body of her sister and tried to get into the passenger side of her car. She noticed no knife lying on the floor by her sister. As she tried to get her car door open she saw Mr. Paxton standing by the front door, and she thought he was reloading his gun. He chased her around her car and then rested the gun on the hood and shot at her. She heard the bullet go past her head and ran to a filling station, where she called the police. Mr. Paxton denied chasing Linda Neal or shooting at her, stating that he only got into his car and left.

When the police arrived at Mr. Peters' house, they found Donna Neal lying dead inside. A knife was lying by her left hand and she had a small cut on her left palm. She had been shot in the back of the head, and also had bruises and scratches to her mouth and nose.

Mr. Paxton was tried on charges of first degree murder in the death of Donna Neal, shooting with intent to kill Mr. Peters, discharging a firearm with intent to kill Linda Neal, and possession of a loaded firearm. In addition to giving an instruction on first degree murder, the trial court instructed the jury on the lesser included offense of first degree manslaughter and on Mr. Paxton's claim of self-defense. The jury convicted Mr. Paxton of first degree murder as well as the other three counts.

At sentencing, the state sought the death penalty on the basis of three aggravating circumstances, arguing that Mr. Paxton had previously been convicted of a felony involving the use of violence, that he knowingly created a great risk of death to more than one person, and that he would constitute a continuing threat to society. In addition to the evidence introduced during the guilt phase of the trial, the state offered in support of these aggravating circumstances evidence that Mr. Paxton had been convicted of first degree manslaughter in 1965, and that he had been charged in the 1979 shooting death of his wife. Over the objection of Mr. Paxton, the trial court concluded that hearsay statements made by Mr. Paxton's then-three-year-old daughter, Pamela, implicating him in her mother's death were admissible as excited utterances.

Mr. Paxton's 1979 prosecution for the shooting of his wife had been dismissed upon the state's motion. The court order in that case recited the state's assertion that dismissal would best meet the ends of justice because Mr. Paxton had been cleared by a polygraph test. Although the jury was presented with a stipulation that the proceeding had been dismissed, the trial court did not allow the defense to tell the jury the reason for the dismissal, citing state law forbidding admission of polygraph results in any circumstances. In closing argument at Mr. Paxton's capital sentencing proceeding, the prosecutor addressed the dismissal and argued to the jury that the defense could have put on evidence, if it had any, to show that Mr. Paxton had not shot his wife. The prosecutor further asserted that the reason for the dismissal was unknown and implied it might have occurred because Pamela was afraid to testify against her father. The jury found all three aggravating circumstances established and fixed Mr. Paxton's punishment at death.

Mr. Paxton filed a direct criminal appeal contending, inter alia, that the trial court erred in refusing to give his requested instruction on second degree murder, in allowing the admission of Pamela's statements as excited utterances, and in refusing to allow admission of the results of the polygraph. Mr. Paxton also contended that the prosecutor's closing argument regarding the dismissal of the 1979 prosecution rendered his sentencing proceeding fundamentally unfair. The state court of criminal appeals affirmed his conviction and sentence. See Paxton v. State, 867 P.2d 1309 (Okla. Crim. App. 1993).

Mr. Paxton then filed a petition for state post-conviction relief, seeking to appeal out of time his 1965 manslaughter conviction on the ground that he was denied the effective assistance of appellate counsel. The state court held that Mr. Paxton had waited too long to make this claim and that consideration of the issue was therefore barred by laches. See Paxton v. State, 903 P.2d 325 (Okla. Crim. App. 1995). Mr. Paxton thereafter filed another application for state post-conviction relief challenging his capital murder conviction and sentence, again raising, among other issues,...