Smith v. Mullin

• Citation: 379 F.3d 919
• Decision Date: 29 July 2004
• Docket Number: No. 02-6055.,02-6055.
• Parties: Roderick L. SMITH, Petitioner-Appellant, v. Mike MULLIN, Warden, Oklahoma State Penitentiary, Respondent-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

379 F.3d 919

Roderick L. SMITH, Petitioner-Appellant, v. Mike MULLIN, Warden, Oklahoma State Penitentiary, Respondent-Appellee.

No. 02-6055.

United States Court of Appeals, Tenth Circuit.

July 29, 2004.

Appeal from the United States District Court for the Western District of Oklahoma.

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

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

Before SEYMOUR, HENRY, and O'BRIEN, Circuit Judges.

SEYMOUR, Circuit Judge.

Roderick Lynn Smith, an Oklahoma state prisoner, was sentenced to death for the 1993 murders of his wife and stepchildren. Challenging his convictions and death sentence, Mr. Smith petitioned for a writ of habeas corpus in federal district court pursuant to 28 U.S.C. § 2254.¹ The district court denied relief in an unpublished opinion, but granted a Certificate of Appealability (COA), see 28 U.S.C. § 2253(c)(1), on eight of the eighteen claims before it.² We affirm in part, reverse in part, and grant a writ of habeas corpus vacating Mr. Smith's death sentence, with the condition that the state resentence Mr. Smith within a reasonable time.

I. BACKGROUND FACTS AND PROCEDURE

The Oklahoma Court of Criminal Appeals (OCCA) aptly described the facts surrounding Mr. Smith's crimes in its opinion affirming his convictions and sentences on direct appeal:

[Mr. Smith] was married to Jennifer Smith, who had four children from a prior relationship: ten year old Shemeka Carter, nine year old Glen Carter, Jr., seven year old Ladarian Carter, and six year old Kanesha Carter. The children lived with [Mr. and Mrs. Smith].

On the morning of June 28, 1993, [Mrs. Smith's] mother called the police and asked them to check her daughter's house. She had not seen or heard from [Mrs. Smith] since June 18, 1993. When Officer Peterson arrived at the [Smith] residence ..., the house appeared to be secured and no one answered the doors. Because he noticed an odor of decaying flesh and a large number of flies around the windows, he contacted his supervisor, Lieutenant Wayne Owen, who came to the address. Owen and Peterson entered the house through a window. Inside, they discovered a dead woman in one closet and a dead child in another. They called the homicide division of the Oklahoma City Police Department and secured the house. Once homicide detectives arrived, the rest of the house was searched. The bodies of three more children were found, two in closets and a third under a bed. The bodies were determined to be those of Jennifer Smith and her four children. They were determined to have been dead for at least two to three days and up to... two weeks or more.

The afternoon of that same day, ... [Mr. Smith] walked into the Oklahoma County Sheriff's Office. He was turned over to the Oklahoma City Police and placed under arrest. During a custodial interrogation, [Mr. Smith] told Detectives Bemo and Cook that he had been laid off his job as head janitor at Washington Irving Elementary School because the company that he worked for had lost its contract. According to [Mr. Smith], when he told his wife this news a fight ensued. At one point [Mrs. Smith] grabbed a knife and he took the knife from her and stuck her with it. When the boys came to their mother's defense, he stuck them with the knife as well. Although [Mr. Smith] admitted that he "got" the girls also, he could not remember any details. [Later, authorities determined the girls died of asphyxiation.] [Mr. Smith] told the police where he placed each of the bodies.

Smith v. State, 932 P.2d 521, 526 (Okla.Crim.App.1996).

An Oklahoma County jury convicted Mr. Smith of five counts of first-degree murder and recommended sentences of death on each count, which the court imposed. Mr. Smith unsuccessfully filed a direct appeal, see id. at 539, followed by an unsuccessful application for post-conviction relief in the Oklahoma courts, see Smith v. State, 955 P.2d 734 (Okla.Crim.App.1998). Mr. Smith then filed this habeas petition. The district court granted an evidentiary hearing on four grounds and heard five days of testimony, ultimately denying relief.

II. APPLICATION OF AEDPA AND PROCEDURAL BAR

Because Mr. Smith filed his habeas petition after the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub.L. No. 104-132, 110 Stat. 1214 (1996), the provisions of that act apply to this appeal. See Smallwood v. Gibson, 191 F.3d 1257, 1264 (10th Cir.1999).

Under these provisions, a federal court is precluded from granting habeas relief on any claim adjudicated on the merits by the state court, unless the state proceeding "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court," 28 U.S.C. § 2254(d)(1), 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," id. § 2254(d)(2). In addition, we presume the factual findings of the state court are correct unless petitioner can rebut this presumption by clear and convincing evidence. See id. § 2254(e)(1).

Id. at 1264-65.

The level of deference owed the OCCA in this case is somewhat complicated. As to factual findings underlying claims which the OCCA decided on the merits and for which the federal district court refused to grant an evidentiary hearing, the dictates of 28 U.S.C. § 2254(e)(1) apply and we must presume them true unless rebutted by Mr. Smith by clear and convincing evidence. As to factual findings underlying claims for which the federal district court properly granted an evidentiary hearing and for which the OCCA made no factual findings, we review the district's court findings for clear error. See Miller v. Champion, 161 F.3d 1249, 1253 (10th Cir.1998); see also Romano v. Gibson, 278 F.3d 1145, 1150 (10th Cir.2002).

[W]here ... 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, ... [he] is entitled to receive an evidentiary hearing so long as his allegations, if true and not contravened by the existing factual record, would entitle him to relief.

Miller, 161 F.3d at 1253. The Oklahoma courts refused to grant Mr. Smith's request for an evidentiary hearing on any of the claims in his application for post-conviction relief. The federal district court found that Mr. Smith met the standard for an evidentiary hearing as to his claims of ineffective assistance of counsel. Smith v. Gibson, No. CIV-98-601-R, at 3 (W.D.Okla.2002). We therefore review the federal district court's findings based upon facts adduced at the evidentiary hearing for clear error. Rogers, 173 F.3d at 1282.

We will not, however, review Mr. Smith's claims if they were defaulted in state court on independent and adequate state procedural grounds unless Mr. Smith has demonstrated cause and prejudice or a fundamental miscarriage of justice. See English v. Cody, 146 F.3d 1257, 1259 (10th Cir.1998) (citing Coleman v. Thompson, 501 U.S. 722, 749-50, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991)). Independent state procedural grounds are those that rely exclusively on state law as a basis of decision. Id. Whether a state procedural default rule is adequate to preclude federal review depends upon how consistently and evenhandedly the state applies the rule. Id.

Mr. Smith first raised an ineffective assistance of counsel claim (and a multitude of related sub-claims) in his application for post-conviction relief. In denying relief, the OCCA held that Mr. Smith had procedurally defaulted the claim by failing to raise it on direct appeal. Smith, 955 P.2d at 737-40. The federal district court reached the merits of this claim, but did so "based on an overly broad application of the exception to state procedural bar recognized in Walker v. Attorney General, 167 F.3d 1339 [, 1344-45 (10th Cir.1999)]."³ Cargle v. Mullin, 317 F.3d 1196, 1201 (10th Cir.2003). In Cargle, we addressed Walker's proper scope and application, particularly with respect to claims of ineffective assistance of counsel:

if claims omitted on direct state appeal would have been barred on state post-conviction anyway, even under Oklahoma's pre-1995 law (for example, if they rested on authority established at the time of direct appeal), it would not make sense to isolate the new 1995 standard as the operative cause of the default. Thus, we have not applied Walker to excuse petitioner's default in failing to raise claims in his direct appeal that were at the time of the default clearly established. Here, the Walker exception to procedural default is inapplicable to ... petitioner's claim[ ] ... [of] ineffective assistance of counsel.... We will consider whether [that claim] should be resolved on the merits notwithstanding state procedural default, under the traditional federal standards for evaluating when state procedural default should be excused.

Id. at 1201-02 (footnote omitted).

Although the district court wrongly applied Walker to excuse Mr. Smith's procedural default, Mr. Smith's ineffective assistance of counsel claims are properly before this court under the traditional federal standards for evaluating when a state procedural bar should be excused. "Because the effective assistance of counsel lies at the very foundation of the adversary system of criminal justice, this court has been particularly vigilant in scrutinizing the adequacy of state rules of procedural default which have the effect of barring federal habeas review." English, 146 F.3d at 1259. We have repeatedly noted the "healthy degree of skepticism" with which we view such procedural bars. See Anderson v. Att'y Gen., 342 F.3d...