34 F.3d 1557 (10th Cir. 1994), 93-6214, Stafford v. Saffle

Docket Nº:93-6214.
Citation:34 F.3d 1557
Party Name:Roger Dale STAFFORD, Petitioner-Appellant, v. James SAFFLE, Warden, Oklahoma State, Penitentiary at McAlester, Oklahoma; Susan B. Loving, Attorney General of Oklahoma, Respondents-Appellees.
Case Date:September 12, 1994
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

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34 F.3d 1557 (10th Cir. 1994)

Roger Dale STAFFORD, Petitioner-Appellant,


James SAFFLE, Warden, Oklahoma State, Penitentiary at

McAlester, Oklahoma; Susan B. Loving, Attorney

General of Oklahoma, Respondents-Appellees.

No. 93-6214.

United States Court of Appeals, Tenth Circuit

September 12, 1994

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[Copyrighted Material Omitted]

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Stephen Jones, Jones & Wyatt, Enid, OK, (James L. Hankins, of Jones & Wyatt, with him on the brief), for petitioner/appellant.

Sandra D. Howard, Asst. Atty. Gen., Oklahoma City, OK (Susan Brimer Loving, Atty. Gen., and William L. Humes, Asst. Atty. Gen., with her on the brief), for respondents/appellees.

Before MOORE, LOGAN, and EBEL, Circuit Judges.

EBEL, Circuit Judge.

A jury convicted Appellant-Roger Dale Stafford, Sr., ("Stafford") of three counts of first degree murder and sentenced him to death. Stafford filed a petition for writ of habeas corpus pursuant to 28 U.S.C. Sec. 2254. The district court denied the writ, but issued a certificate of probable cause.

Stafford filed a timely appeal of the court's decision: (1) denying his request to amend his habeas petition to include claims as to the sufficiency of the evidence and actual innocence; (2) holding that he was not denied effective assistance of counsel at the penalty phase; (3) holding that the trial court's denial of his motion for a change of venue did not violate his right to a fair trial at both the guilt and penalty phases; and (4) holding that the Oklahoma Court of Criminal Appeals properly reweighed the aggravating and mitigating factors for sentencing purposes. We affirm.


A jury convicted Stafford of three counts of first degree murder on March 7, 1980, for killing Melvin, Linda, and Richard Lorenz, husband, wife and son, respectively. On March 17, 1980, on the jury's recommendation, the trial court sentenced Stafford to death on all three counts.

Stafford's wife, Verna, provided the prosecution with most of the testimonial evidence used in the trial. She said that Stafford, his brother Harold, and she were traveling along Highway 35, in McClain County, Oklahoma, when the three of them agreed that they would raise the hood of the car so that passersby would think it was disabled. If anyone stopped, they planned to rob them. Verna stood in view of passing cars while Stafford and his brother hid behind the car. The Lorenzes stopped to assist Verna. Melvin got out of his truck to examine Verna's car. At that time, Harold and Stafford, who had been lying in wait, demanded money from Melvin. He told them that he could give them some, but not all, of his money because they were enroute to a funeral. Stafford then shot Melvin twice. When Linda ran from the truck to Verna's side, Verna knocked her to the ground while Stafford shot her twice as she fell.

Stafford then went to the camper on the Lorenz's truck where he had heard a child's voice. Stafford cut a hole in the window screen and shot twice into the camper killing Richard. Melvin and Linda's bodies were found in a field adjacent to the highway. Richard's body was found in a field three-fourths of one mile away.

Stafford denied any involvement in the murders and has stuck to his alibi that he

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was working approximately 100 miles away in Tulsa when the murders occurred.

Approximately five months prior to his trial, Stafford had been convicted in another trial of killing six people during an armed robbery in what is now known as the "Sirloin Stockade" murders. 1 The Sirloin Stockade murders are not before us. However, Stafford argues that they had an impact on his trial in Purcell County for the Lorenz murders because of their extensive publicity and because the Lorenz trial jurors knew he had already been sentenced to death for them.

Stafford's post-conviction relief record for the Lorenz murders is extensive and need not be outlined here. This habeas appeal is the culmination of Stafford's first and only habeas action, although his petition has had a tortuous path as it has travelled between this court and the United States District Court for the Western District of Oklahoma, with a number of stays in the Oklahoma state courts to consider various issues. Stafford began this federal habeas action in August 1985.


I. Motion to Amend

Stafford asserts that the district court should have allowed him to amend his habeas complaint to allege that the evidence was insufficient to convict him under Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), and to add a claim of actual innocence under Herrera v. Collins, --- U.S. ----, 113 S.Ct. 853, 122 L.Ed.2d 203 (1993). We review the trial court's decision denying Stafford's motion to amend his petition for abuse of discretion. We have said that "[a] court should freely grant leave to amend when justice so requires. When a court refuses leave to amend, it must state its reasons." Gillette v. Tansy, 17 F.3d 308 (10th Cir.1994) (citing Fed.R.Civ.P. 15(a)) (citations omitted); Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 230, 9 L.Ed.2d 222 (1962).

A district court should apply Fed.R.Civ.P. 15(a) to decide whether to allow an amendment. Rule 15(a) allows the judge to deny a motion to amend because of "undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of the amendment, etc." Foman, 371 U.S. at 182, 83 S.Ct. at 230.

Insufficiency of the Evidence: The district court denied as untimely Stafford's motion to amend to include an insufficiency of the evidence claim because the issue could have been raised in the initial petition. The court stated that Stafford "conceded [that the claim] could have been raised in the petition as originally filed."

We cannot say that the district court abused its discretion in denying this motion because it was not made until approximately seven years after the federal habeas action was commenced and no credible reasons were advanced as to why this claim was not asserted at that time. Further, it is apparent that such a claim would be futile given the evidence that was adduced against Stafford at trial. Any review of the record on the sufficiency claim would be limited to determining whether the evidence, in the light most favorable to the prosecution, is sufficient so that any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson, 443 U.S. at 319, 99 S.Ct. at 2789; Herrera, --- U.S. at ----, 113 S.Ct. at 861.

Here, Verna's eyewitness and participatory testimony, although sometimes inconsistent, was enough to sustain the government's verdict. Verna testified that Stafford, his brother Harold, and she committed the crimes, with Stafford pulling the trigger for all three murders. Additionally, one witness testified that she overheard an argument between Stafford and Verna in which Verna stated that Stafford did the killing. Another witness, Mr. Tackett, provided the police with a description of the man driving the victims' truck that led to a composite drawing that

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was admitted into evidence. Tackett testified that he observed the person shortly after the murders in Stillwater, Oklahoma with the victims' truck. Tackett ultimately picked Stafford out of a photo line-up. 2 Stafford points to alibi evidence, but the proper inquiry would be whether the government's evidence, if believed by a reasonable jury, was sufficient for a guilty verdict. Here, that question would have to be answered affirmatively. Thus, we affirm the district court's decision denying the motion to amend to include an insufficiency of the evidence claim.

Actual Innocence: Stafford's motion to amend his petition to include a claim of actual innocence was also denied. Stafford filed this motion after the Supreme Court granted certiorari on the "actual innocence" issue in Herrera. After Herrera was decided, the district court denied the motion to amend without further comment. Given the Supreme Court's ruling in Herrera, we find this ruling was not an abuse of discretion.

Herrera strongly suggests that "actual innocence" based on newly-discovered evidence is not, by itself, an adequate basis for habeas relief under Sec. 2254. The Court said, "[c]laims of actual innocence based on newly-discovered evidence has never been held to state a ground for federal habeas relief absent an independent constitutional violation occurring in the underlying state criminal proceeding." Herrera, --- U.S. at ----, 113 S.Ct. at 860. Although a strong claim of actual innocence may excuse a habeas petitioner's procedural default, so that a court may address an underlying constitutional claim that would otherwise be barred for procedural reasons, it does not itself provide a basis for habeas relief. Ordinarily, if there is no underlying constitutional error in the trial, an innocent, but convicted person must resort to executive powers of pardon. Herrera, --- U.S. at ----, 113 S.Ct. at 862.

However, the Court left the door open a tiny crack by thereafter assuming "for the sake of argument" that in a capital case a truly persuasive demonstration of "actual innocence" made after trial would render the execution of a defendant unconstitutional, and would warrant federal habeas relief if there were no state avenue open to process such a claim. However, the Court cautioned that "the threshold showing for such an assumed right would necessarily be extraordinarily high." Herrera, --- U.S. at ----, 113 S.Ct. at 869. This high threshold is because of

the very disruptive effect that entertaining claims of actual...

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