415 F.3d 1215 (10th Cir. 2005), 04-6134, Boltz v. Mullin

Docket Nº:04-6134.
Citation:415 F.3d 1215
Party Name:John Albert BOLTZ, Petitioner-Appellant, v. Mike MULLIN, Warden, Oklahoma State Penitentiary, Respondent-Appellee.
Case Date:July 27, 2005
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

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415 F.3d 1215 (10th Cir. 2005)

John Albert BOLTZ, Petitioner-Appellant,


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

No. 04-6134.

United States Court of Appeals, Tenth Circuit.

July 27, 2005.


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James L. Hankins, The Coyle Law Firm, Oklahoma City, Oklahoma, appearing for Appellant.

Preston Saul Draper, Assistant Attorney General (W.A. Drew Edmondson, Attorney General, with him on the brief), Office of the Attorney General for the State of Oklahoma, Oklahoma City, Oklahoma, appearing for Appellee.

Before TACHA, Chief Circuit Judge, O'BRIEN, and TYMKOVICH, Circuit Judges.

TACHA, Chief Circuit Judge.

A jury convicted Petitioner-Appellant John Albert Boltz of first-degree murder in the stabbing and decapitation death of his stepson, Doug Kirby, and sentenced him to death in 1984. In 1991, the Oklahoma Court of Criminal Appeals ("OCCA") affirmed his conviction and sentence on direct appeal. Mr. Boltz then filed an application for post-conviction relief in the District Court of Pottawatomie County, Oklahoma on July 2, 1992, which was denied and subsequently affirmed by the OCCA. On September 9, 1999, Mr. Boltz filed a petition for a writ of habeas corpus in the United States District Court for the Western District of Oklahoma pursuant to 28 U.S.C. § 2254. Relief was denied on all grounds on March 25, 2004. Mr. Boltz then sought a certificate of appealability ("COA") with the District Court, which granted the certificate as to Mr. Boltz's claim of ineffective assistance of counsel. This Court also granted a COA with respect to two other claims raised by Mr. Boltz: that the evidence was insufficient to establish the "continuing threat" aggravating factor found by the jury, and that his right to due process was violated when the court failed to instruct the jury on heat of passion manslaughter. We take jurisdiction under 28 U.S.C. §§ 1291 and 2253 and AFFIRM.


On April 18, 1984, Pat Kirby, who was then married to Mr. Boltz, left work in Shawnee, Oklahoma and drove to Stroud to meet her friend and former boss, Duane Morrison. Mr. Boltz was suspicious that his wife was having an affair with Mr. Morrison and followed her there dressed in combat fatigues and dark glasses. When he saw that Ms. Kirby was meeting Mr. Morrison, he flew into a rage, swearing at Mr. Morrison and telling him that he was going to cut his head off. Mr. Boltz then exclaimed that he had killed men, women, and children during the Korean War and killing "didn't faze him," and

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that he had cut off people's heads in the war for less serious infractions.

After this altercation, Ms. Kirby returned alone to the trailer home she and Mr. Boltz shared in Shawnee. There, she wrote a note to her husband telling him that their marriage was over. She then packed some clothes, called her twenty-two-year-old son, Doug Kirby, to ask for help moving some of her things into his home, and went to her mother's house.

During this time, Mr. Boltz was drinking at the VFW hall. When he returned to the trailer, he found the note and drove to his mother-in-law's home to see if his wife was there. Once there, he forced his way in and yelled and swore at Ms. Kirby. Ms. Kirby then called the Shawnee Police Department and asked them to remove Mr. Boltz from the premises. Mr. Boltz left shortly thereafter, and Ms. Kirby went to her son's house.

Mr. Boltz, who had returned to his trailer, then made the first of three phone calls to Doug Kirby's residence. In the first, Mr. Kirby answered the phone and spoke with Mr. Boltz for a few minutes. A few minutes later, Mr. Boltz placed the second call. Again, Mr. Kirby answered and had a very short conversation with Mr. Boltz. After these two calls, Mr. Kirby did not appear upset, but he told his mother that he was going over to Mr. Boltz's trailer to speak with him. After he left, Mr. Boltz called Mr. Kirby's residence a third time. This time, Ms. Kirby answered. Mr. Boltz told her that he was "going to cut [her] loving little boy's head off." He also said that he was going to kill Ms. Kirby herself within the hour.

After hanging up with her husband, Ms. Kirby placed another call to the Shawnee Police Department. This phone call was recorded and played to the jury during the State's case-in-chief:

DISPATCHER: Shawnee Police Department, Cheryl.

MS. KIRBY: Cheryl, this is Pat again. I hate--I hate to keep calling, but John just now called and said he was going to cut my son's head off, and my son is over there in the trailer park, and John is over there at the trailer. That was Lot 119.

Ms. Kirby then drove to Mr. Boltz's trailer searching for her son. When she arrived, she found her son's body laying outside his car. He had suffered eight stab wounds to the neck, chest and abdomen, and his neck had been cut three times. His neck was injured so severely that both carotid arteries had been severed, the voice box and esophagus were cut, and the spinal column was damaged. One of the stab wounds pierced through his back. Blood stains were discovered leading from the front porch to the driver's side door of Mr. Kirby's car as well as inside the vehicle. A .22 caliber revolver was recovered from the passenger seat; the gun had no blood on it although the seat was splattered with blood.

After the killing, Mr. Boltz drove to the American Legion in Midwest City, where he told some friends that he had killed Mr. Kirby and that he had "probably cut his head off." The police were called and Mr. Boltz was arrested without incident. Thereafter, he confessed to the killing but did not elaborate on the circumstances leading up to it.

Mr. Boltz was charged with first-degree murder. After refusing to plead guilty to voluntary manslaughter, Mr. Boltz went to trial. At trial, Mr. Boltz did not dispute the State's contention that he stabbed Mr. Kirby to death. Rather, his strategy was to present a self-defense theory. He testified that Mr. Kirby had called him that evening and threatened to kill him. Mr. Boltz claimed that when Mr. Kirby arrived

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at his trailer, he kicked in the front door and as he went for a gun, Mr. Boltz stabbed him twice, but did not remember anything after that point. The jury convicted Mr. Boltz of first-degree murder.

During the penalty phase, the State contended that two aggravating circumstances--that the crime was especially heinous, atrocious or cruel, and that Mr. Boltz constituted a continuing criminal threat to society--warranted a sentence of death. In his defense, Mr. Boltz argued that he had no prior criminal record and referenced the testimony of three character witnesses who had testified on his behalf in the guilt phase. The jury imposed the death penalty.

Over the course of several years, Mr. Boltz filed a direct appeal, an application for state post-conviction relief, and a federal petition for habeas relief under 28 U.S.C. § 2254, all of which were denied. Most recently, the District Court rendered an exhaustive eighty-page opinion thoroughly reviewing each of Mr. Boltz's habeas claims. He now timely appeals the District Court's denial of his federal habeas petition on the three grounds for which a COA has been issued. See 28 U.S.C. § 2253(c). Mr. Boltz argues on appeal: (1) that he received ineffective assistance of counsel; (2) that the evidence was insufficient to support the continuing threat aggravating circumstance; and (3) that the jury should have been instructed on heat of passion voluntary manslaughter.


a. Standard of Review

Mr. Boltz first argued to the OCCA in his direct appeal that his trial counsel, Duane Miller, had been ineffective; the OCCA, however, refused Mr. Boltz's request for an evidentiary hearing on the matter and dismissed Mr. Boltz's claim. Mr. Boltz similarly requested permission to conduct discovery in his application for post-conviction relief filed in the District Court of Pottawatomie County, Oklahoma, which was also denied and then affirmed by the OCCA. The United States District Court for the Western District of Oklahoma subsequently held its own evidentiary hearing, see § 2254(e)(2), while reviewing Mr. Boltz's § 2254 petition and thereafter refused to grant relief.1

Because the OCCA made no substantive determination on Mr. Boltz's ineffective assistance claim, this Court does not apply the deferential standard of review mandated by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). See 28 U.S.C. § 2254(d); Bryan v. Mullin, 335 F.3d 1207, 1215-16 (10th Cir. 2003). Instead, we review the District Court's determination under the standard laid out in Miller v. Champion, 161 F.3d 1249, 1254 (10th Cir. 1998). In Miller, we stated that

[I]neffective assistance claim[s] present[] a mixed question of law and fact. Because our analysis of this claim primarily involves consideration of legal principles, we review this claim de novo. Further, we note that because the state court did not hold any evidentiary hearing, we are in the same position to evaluate the factual record as it was. Accordingly, to the extent the state court's

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dismissal of [petitioner's ineffective assistance claim] was based on its own factual findings, we need not afford those findings any deference.

Miller, 161 F.3d at 1254 (internal citations omitted). In other words, this Court accepts the District Court's factual findings so long as they are not clearly erroneous and reviews de novo whether Mr. Miller's assistance...

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