James v. Gibson
| Citation | 211 F.3d 543 |
| Decision Date | 02 May 2000 |
| Docket Number | No. 98-7139,98-7139 |
| Parties | (10th Cir. 2000) TERRANCE A. JAMES, Petitioner-Appellant, v. GARY GIBSON, Warden; GARY D. MAYNARD, Director, Oklahoma Department of Corrections, Respondents-Appellees |
| Court | U.S. Court of Appeals — Tenth Circuit |
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF OKLAHOMA (D.C. No. 92-CV-394-S)
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[Copyrighted Material Omitted] Gloyd L. McCoy, Coyle & McCoy, 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 brief), Oklahoma City, Oklahoma, for Respondents-Appellees.
Before SEYMOUR, Chief Judge, ANDERSON, and MURPHY, Circuit Judges.
Petitioner Terrance A. James was convicted of first degree murder in Oklahoma state court and sentenced to death. The Oklahoma Court of Criminal Appeals affirmed the conviction and sentence, see James v. State, 736 P.2d 541 (Okla. Crim. App.), cert. denied, 484 U.S. 970 (1987), and the denial of post-conviction relief, see James v. State, 818 P.2d 918 (Okla. Crim. App. 1991), cert. denied, 502 U.S. 1111 (1992).
Mr. James filed his initial habeas corpus petition on July 1, 1992. Pursuant to his motion, the federal district court held the habeas proceedings in abeyance pending a decision in a somewhat related 28 U.S.C. 2255 motion challenging a federal sentence he had received for theft of government property. The district court reopened the case on October 5, 1994, following this court's affirmance of the denial of 2255 relief. After appointment of new counsel, Mr. James filed an amended habeas petition. The district court denied habeas relief, but granted a certificate of probable cause on all issues. We affirm the district court's denial of federal habeas corpus relief.
Mr. James, Dennis Brown, and Mark Allen Berry, codefendants in a federal case involving theft of government property, were incarcerated in the Muskogee City/Federal Jail. All three had pled guilty. Mr. James and Mr. Brown believed that Mr. Berry had snitched on them and was responsible for their arrest. As they discussed what to do to Mr. Berry, an inmate named Sammy Van Woudenberg joined in the discussion and encouraged the two to strangle Mr. Berry with a wire from a broom and then hang him to make it look like a suicide. Mr. James and Mr. Brown planned to strangle Mr. Berry while Mr. Van Woudenberg acted as a lookout.
Early the next morning, Mr. Van Woudenberg placed a piece of paper over the lens of a surveillance camera and returned to his cell. Mr. Brown asked Mr. Berry to play cards. While the two were playing, Mr. James approached Mr. Berry from behind and wrapped the wire around his neck, strangling him while Mr. Brown held Mr. Berry's feet and placed his hand over Mr. Berry's mouth. Mr. Van Woudenberg warned Mr. James and Mr. Brown that someone was coming. Mr. James dragged Mr. Berry into a cell and continued strangling him. After his body went limp, the three hung Mr. Berry's body in a shower stall.
Mr. James and Mr. Van Woudenberg were charged with and tried together for the murder.1 Mr. James testified at both stages of trial. At the guilt stage, he admitted that he discussed killing Mr. Berry, strangled him with a wire, dragged his body into a cell and continued to strangle him, and then helped hang the body in the shower. The jury rejected Mr. James' defense of intoxication and found him guilty of first degree murder. At the second stage of trial, Mr. James presented mitigating evidence of his remorse, his troubled childhood, and his use of drugs. The state presented evidence of three aggravating circumstances: the murder was committed while Mr. James was imprisoned on conviction of a felony; he would be a continuing threat to society; and the murder was especially heinous, atrocious, or cruel. The jury found all three aggravators and fixed punishment at death.2
On appeal from the district court's denial of habeas, Mr. James asserts the following constitutional issues he believes entitle him to relief: (1) the trial court used an unconstitutional burden of proof at the competency hearing; (2) under Ake v. Oklahoma, 470 U.S. 68 (1985), he was improperly denied psychiatric assistance; (3) the trial court's failure to give an instruction on the lesser included offense of second degree murder denied him due process; (4) he was denied effective assistance of counsel at the sentencing stage; and (5) there was insufficient evidence to support two of the aggravators. We address each of these arguments in turn.
Because the original habeas petition was filed before the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), AEDPA's standards do not apply to this appeal. See Lindh v. Murphy, 521 U.S. 320, 322-23 (1997). Under pre-AEDPA law, Mr. James is entitled to relief if state court error deprived him of fundamental rights guaranteed by the Constitution of the United States. See Fowler v. Ward, 200 F.3d 1302, 1307 (10th Cir. 2000) (quotations and citations omitted). Id. "When the district court's findings are based merely on a review of the state record, we do not give them the benefit of the clearly erroneous standard but instead conduct an independent review." Smallwood v. Gibson, 191 F.3d 1257, 1264 n.1 (10th Cir. 1999).
Mr. James first contends the trial court denied him procedural due process by applying at his competency hearing the "clear and convincing" evidence burden of proof found unconstitutional in Cooper v. Oklahoma, 517 U.S. 348 (1996). The state counters that Mr. James failed to exhaust this issue, that it is procedurally barred, and that, in any event, there was no constitutional violation.
Mr. James attempted to raise this claim in a pro se second post-conviction application. The Oklahoma Court of Criminal Appeals refused to accept the pro se filing because Mr. James was represented by an attorney and the attorney was required to submit the argument, see Okla. Stat. tit. 22, ch. 18, app., Rule 3.4(E). Although the court dismissed the application without prejudice, Mr. James did not attempt to refile with proper submission by an attorney. Thus, the state contends, the claim was not exhausted.
Exhaustion is not required if an attempt to exhaust would be futile. See Clayton v. Gibson, 199 F.3d 1162, 1170 (10th Cir. 1999). If Mr. James had presented a successive post-conviction application, the Oklahoma courts would have deemed the claim procedurally barred. Oklahoma bars Cooper claims presented for the first time in a successive post-conviction application even if, as is the case here, the direct appeal and first post-conviction application were final before Cooper was decided. In 1995 Oklahoma amended its post-conviction procedures to bar post-conviction relief where the claim was not raised on direct appeal unless the petitioner can show the issue "could not have been raised in a direct appeal." Okla. Stat. 22, 1089(c)(1). Applying this standard, the Oklahoma Court of Criminal Appeals reasoned that the challenge to the clear and convincing burden of proof could have been raised by a petitioner on direct appeal, even though Cooper had not been decided, because the legal basis for the challenge pre-dated the Supreme Court's decision. See, e.g., Scott v. State, 942 P.2d 755, 758 (Okla. Crim. App. 1997); Walker v. State, 940 P.2d 509, 510 (Okla. Crim. App. 1997); Walker v. State, 933 P.2d 327, 338-39 (Okla. Crim. App. 1997). Presentation of this claim to the Oklahoma courts would thus have been futile, and Mr. James' failure to exhaust should be excused. See Clayton, 199 F.3d at 1170.
Even if failure to exhaust is excused, however, procedural competency claims may otherwise be procedurally barred. See Rogers v. Gibson, 173 F.3d 1278, 1289 (10th Cir. 1999), cert. denied 120 S. Ct. 944 (2000). Thus, a claim that has been defaulted in state court on an adequate and independent state ground will be considered on federal habeas review only if the petitioner shows cause and prejudice to excuse the default or shows a fundamental miscarriage of justice will result if the claim is not considered. See Clayton, 199 F.3d at 1170-71. "To be adequate, a state's procedural rule must have been firmly established and regularly followed when the purported default occurred." Id. at 1171.
The 1995 Oklahoma statutory amendments "greatly circumscribed" the court's power to apply intervening changes in the law to post-conviction applicants. Valdez v. State, 933 P.2d 931, 933 n.7 (Okla. Crim. App. 1997). Prior to the amendments, Oklahoma law would not have barred Mr. James from challenging the clear and convincing standard for the first time in a post-conviction application. See Rogers, 173 F.3d at 1290. Mr. James filed his direct appeal and application for post-conviction relief in the state courts in the 1980s. Therefore, his purported default occurred well before the 1995 amendments. We have made clear that a defendant cannot be expected to comply with a procedural rule that did not exist at the time of the purported default. See Walker v. Attorney General, 167 F.3d 1339, 1343-44 (10th Cir.), cert. denied, 120 S. Ct. 449 (1999); see also Rogers, 173 F.3d at 1290. Consequently, the 1995 amendments are not an adequate state ground in this case for procedural default, and Mr. James' failure to challenge the clear and convincing evidence standard on direct appeal or in his first post-conviction...
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