317 F.3d 1196 (10th Cir. 2003), 01-6027, Cargle v. Mullin

Docket Nº01-6027, 01-6041.
Citation317 F.3d 1196
Party NameMarcus L. CARGLE, Petitioner-Appellant-Cross-Appellee, v. Mike MULLIN, Warden, Oklahoma State Penitentiary, Respondent-Appellee-Cross-Appellant.
Case DateJanuary 27, 2003
CourtUnited States Courts of Appeals, Court of Appeals for the Tenth Circuit

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317 F.3d 1196 (10th Cir. 2003)

Marcus L. CARGLE, Petitioner-Appellant-Cross-Appellee,


Mike MULLIN, Warden, Oklahoma State Penitentiary, Respondent-Appellee-Cross-Appellant.

Nos. 01-6027, 01-6041.

United States Court of Appeals, Tenth Circuit

January 27, 2003

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[Copyrighted Material Omitted]

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Jack Fisher, Edmond, OK, for Petitioner-Appellant.

Robert L. Whittaker, Assistant Attorney General, Criminal Division, (W.A. Drew Edmondson, Attorney General of Oklahoma with him on the briefs), Oklahoma City, OK, for Respondent-Appellee.

Before SEYMOUR, EBEL, and HENRY, Circuit Judges.

EBEL, Circuit Judge.

Petitioner Marcus Cargle was convicted in Oklahoma of first degree murder and sentenced to death in connection with the shooting of Richard and Sharon Paisley during a drug transaction at their home. Present with petitioner during the fatal incident were Christopher Todd Jackson

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and Christopher Todd Williams. Apart from the critical question of who shot Sharon, most of the material facts surrounding the homicides were not in dispute at trial.

Petitioner was nineteen years of age when the events took place. He and several acquaintances, including Jackson, also nineteen, and Williams, twenty-four, were socializing at his uncle's house in the late afternoon. Earlier in the day, petitioner had purchased $100 worth of marijuana from the Paisleys. Dissatisfied with the marijuana, petitioner and his two friends left his uncle's house to recover the money he had paid to the Paisleys. Their arrival at the Paisley home did not initially spark any confrontation; Sharon served them beer and popcorn while Richard left to get the cash from a neighbor. Richard returned and gave petitioner the $100, and petitioner and Jackson prepared to leave.

Just then, however, Williams returned from the bathroom brandishing a firearm and, without warning or provocation, shot Richard in the chest. Petitioner and Jackson did not move. Williams shot Richard again, this time in the head, and Richard fell to the floor. According to Jackson, at this point petitioner exclaimed "damn," ran over to where Sharon had crawled from a couch to the floor, and shot her in the head. His gun jammed and, while he fumbled with it, Williams shot Richard for a third and last time. Then, according to Jackson, petitioner shot Sharon once more. The three men tried to wipe their fingerprints from the scene, Williams took a television and VCR, and they left. While they were driving away, Williams threatened petitioner and Jackson that whoever said anything would have to die too.

Petitioner was brought to trial first.1Largely on the basis of Jackson's immunized testimony, he was convicted of murdering Sharon and aiding and abetting in Richard's murder. The death penalty was imposed on both counts. The Oklahoma Court of Criminal Appeals (OCCA) affirmed the convictions and sentences on direct appeal, see Cargle v. State, 909 P.2d 806 (Okla.Crim.App.1995), and subsequently denied post-conviction relief almost entirely on waiver grounds, see Cargle v. State, 947 P.2d 584 (Okla.Crim.App.1997). Petitioner timely filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254.

Of the many claims asserted in the petition, only the following are before us for consideration on appeal: (1) ineffective assistance of counsel in the guilt and penalty phases of trial; (2) prosecutorial misconduct in the guilt and penalty phases; (3) admission of improper victim impact testimony in the penalty phase; (4) insufficient evidence as to the murder of Richard Paisley; (5) improper excusal of veniremen because of reservations expressed about the death penalty; (6) facial and as-applied challenges to the aggravating circumstances invoked by the prosecution to support the death penalty; (7) failure to disclose exculpatory evidence under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); and (8) cumulative error.

The district court rejected petitioner's challenges to the guilt phase of trial but concluded that he was entitled to sentencing relief on the bases of ineffective assistance of counsel, improper victim impact testimony, and the cumulative effect of these two errors during the penalty phase of trial. Accordingly, the district court granted petitioner's request for relief from his death sentences, allowing the State 180 days to conduct a new sentencing hearing. Both petitioner and the State have appealed

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from the district court's rulings and judgment. As explained below, we agree with the district court that petitioner's death sentences cannot stand. However, we hold that constitutional error undermines petitioner's convictions as well, and thus his present convictions cannot stand either.

In Part I of this opinion, we address five procedural and threshold legal issues of general application. We must resolve these issues in order properly to analyze the merits of the parties' arguments.

First, we address the district court's application of our decision in Walker v. Attorney General, 167 F.3d 1339 (10th Cir. 1999). In Walker, we considered the effect of the 1995 amendments to Oklahoma statutes governing capital post-conviction proceedings and refused to apply those amendments retroactively for purposes of federal application of procedural bar. Here, we conclude that the district court read the Walker procedural-bar exception too broadly. With regard to many of petitioner's claims, we conclude that the Walker exception is inapplicable and we must apply the traditional federal standards for determining whether a procedural default is excused. See infra Part I A.

Second, we address the standard applied by the OCCA for assessing claims of ineffective assistance of appellate counsel. That standard is relevant because petitioner has argued that the omission of certain issues from his direct appeal resulted from ineffective assistance of his appellate counsel (which should excuse his procedural default) and because the OCCA rejected this argument on the merits. We conclude that the OCCA applied an incorrect standard and, as a result, we do not defer to its disposition. See infra Part I B.

Third, we consider the effect of the OCCA's review of some of petitioner's constitutional claims under a state plain-error standard. We conclude that some of the state plain-error rulings constitute merits determinations under federal law while others reflect reliance on independent state grounds for disposition which warrant application of federal procedural-bar principles. We also clarify the circumstances in which we defer under AEDPA to state court determinations of federal issues on plain-error review. See infra Part I C.

Fourth, we address important issues regarding petitioner's claims of cumulative error. We conclude that prejudice may be cumulated among different kinds of constitutional error, such as ineffective assistance of counsel and prosecutorial misconduct. We further conclude that prejudice may be cumulated among such claims when those claims have been rejected individually for failure to satisfy a prejudice component incorporated in the substantive standard governing their constitutional assessment. Finally, we conclude that prejudice from guilt-phase error may be cumulated with prejudice from penalty-phase error. See infra Part I D and E.

Fifth, we address whether it was proper under 28 U.S.C. § 2254(e)(2) for the district court to consider evidence that was not first presented to the state courts. As to testimonial evidence, we note that the State did not challenge the district court's decision to hold an evidentiary hearing. As to new documentary evidence, we conclude that petitioner attempted to develop this material in the state court proceedings and, as a result, this evidence should not be barred on the ground that he failed to develop the factual basis of his claim in state court. See infra Part I F.

With these threshold matters resolved, we turn to the merits in Part IL We conclude that petitioner received ineffective assistance of counsel at the guilt and penalty phases of trial, that the prosecution engaged in prejudicial misconduct at both phases of trial, and that the State

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relied on improper victim impact evidence to support the death penalty. We hold that petitioner is entitled to relief from his capital convictions based, individually, on ineffective assistance of counsel and, cumulatively, on the combined impact of this error and prosecutorial misconduct. We also hold that petitioner is entitled to relief from his death sentences based, individually, on ineffective assistance of counsel and, cumulatively, on the combined impact of all three errors cited immediately above. However, we reject in Part III petitioner's claims that there was insufficient evidence to support his convictions and death sentences. Hence, we recognize that the State may retry and resentence petitioner within a reasonable time without constraint by double jeopardy concerns. These rulings render it unnecessary to address petitioner's other claims.


These appeals raise numerous issues, but our overall approach is framed by several procedural and threshold legal rulings of general application.


The district court reached the merits of many claims defaulted by petitioner in state court, based on an overly broad application of the exception to state procedural bar recognized in Walker v. Attorney General, 167 F.3d 1339. In Walker, we refused to bar a claim that was defaulted under Oklahoma's newly amended (in 1995) post-conviction scheme, when the procedural default occurred before the amended statute was enacted. We noted that the 1995 amendments made it harder in the state courts to raise new post-conviction claims based on intervening changes in law, and we...

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