506 F.3d 1211 (10th Cir. 2007), 06-7091, Cummings v. Sirmons

Docket Nº06-7091.
Citation506 F.3d 1211
Party NameJesse CUMMINGS, Jr., Petitioner-Appellant, v. Marty SIRMONS, Warden, Oklahoma State Penitentiary, Respondent-Appellee.
Case DateOctober 30, 2007
CourtUnited States Courts of Appeals, Court of Appeals for the Tenth Circuit

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506 F.3d 1211 (10th Cir. 2007)

Jesse CUMMINGS, Jr., Petitioner-Appellant,


Marty SIRMONS, Warden, Oklahoma State Penitentiary, Respondent-Appellee.

No. 06-7091.

United States Court of Appeals, Tenth Circuit.

October 30, 2007

The Opinion filed October 30, 2007, has been modified. The name "Melissa Mayo" has been changed to "Melissa Moody." A corrected opinion is attached to this letter.


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Chris Eulberg, Eulberg Law Offices, Oklahoma City, Oklahoma, for Petitioner-Appellant.

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

Before BRISCOE, MURPHY, and O'BRIEN, Circuit Judges .

BRISCOE, Circuit Judge.

Petitioner Jesse James Cummings, an Oklahoma state prisoner convicted of first degree murder and sentenced to death, appeals the district court's denial of his 28 U.S.C. § 2254 habeas petition. We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.


Factual background

The relevant underlying facts of this case were outlined in detail by the Oklahoma Court of Criminal Appeals (OCCA) in addressing Cummings' direct appeal:

In September of 1991, [Cummings] lived in Phillips, Oklahoma, in a residence he shared with his first wife, Sherry Cummings, his second wife, Juanita Cummings, [Cummings'] and Sherry's daughter, Debra, Juanita's son Robbie, and [Cummings'] father, Jesse Samuel Cummings. [Cummings] had married Sherry in 1987, and, without divorcing

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her, had married Juanita in 1989. He, in effect, had two wives.

On September 8, 1991, [Cummings] went to the Atoka County Sheriff's Office and reported his sister, Judy Ann Moody Mayo, and her daughter, Melissa Moody, as missing. [Cummings] told the clerk that friends had told him that his sister's vehicle had been seen parked at Atoka Lake on Highway 43 and that it had broken down as its hood and doors were opened. [Cummings] reported what his sister and her daughter had been wearing at the time of their disappearance. He also said that someone had possibly picked them up. [Cummings] showed the clerk pictures of Judy and Melissa.

The next day, on September 8, Judy's body was found floating in a small pond adjacent to Atoka Lake. She had suffered gunshot wounds to her head and neck and her body was wrapped in a quilt and a mattress pad. The following month, in October, the skeletal remains of Melissa were located by the side of a bridge over the Clear Boggy River in Choctaw County. Due to the skeletonization of the body, an exact cause of death could not be determined but evidence of sharp force injuries to several ribs was noted.

The case remained unsolved for almost three years. During this time, [Cummings] and his two wives moved from Phillips, Oklahoma, to Lehigh, Oklahoma. In the summer of 1994, Juanita went to work for a minister named Edward Fields. Juanita told Fields that she had shot Judy and that [Cummings] had made her do it. She also stated that [Cummings] had wanted her to kill Melissa but she got sick and could not do it. She told Fields that after she killed Judy she went to work and when she got back Judy's body was gone and so was Melissa.

Subsequently, Juanita was charged with First Degree Murder for the death of Judy, and Sherry was charged with First Degree Murder for the death of Melissa. First Degree Murder charges were dropped against Sherry when she entered a plea agreement with the State and pled guilty to two counts of Accessory After the Fact and one count of Permitting a Child to be Abused. First Degree Murder charges were also dropped against Juanita and she pleaded guilty to Second Degree Murder. Both Sherry and Juanita implicated [Cummings] in the commission of the crimes and testified against him at trial.

Sherry testified that on September 4, 1991, [Cummings] told her to take his sister, Judy, to look at houses and to shoot Judy from behind when they got to an empty house. The next morning, on September 5, [Cummings] left early to drive his father to the hospital in Oklahoma City. That morning, Sherry took Judy to look at houses. She did not shoot Judy while they were looking at houses. When they had finished looking at houses, Sherry and Judy returned to [Cummings'] residence. Sherry, Judy, and Juanita watched TV in the house and the kids, Debra, Robbie and Melissa were outside. When Judy indicated she was ready to leave, Sherry went to the bathroom. While she was gone she heard five gunshots. When she returned to the living room she saw Judy sitting on the couch slumped over. Juanita had shot her. Sherry and Juanita brought all three kids into the house, covering their eyes when they passed through the living room, and they put them in a back room. They then pulled Judy through the house and outside into the cellar. They cleaned blood off the couch, the floor and the living room wall. After they had

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cleaned, Robbie and Debra went back outside and Juanita left to go to work at the Dairy Queen in Atoka. Melissa stayed locked in the back room. Juanita returned from work around 11:00 that night.

[Cummings] returned from Oklahoma City later that same night. When he got home Sherry and Juanita met him and Juanita told him that she had killed Judy. The three of them retrieved Judy's body from the cellar and pulled her to her truck. [Cummings] went to the house and got something white that he wrapped around Judy. [Cummings] drove Judy's truck and Sherry followed in the car. Juanita stayed at the house. Sherry followed [Cummings] toward Atoka Lake. She parked her car and waited while [Cummings] drove on further. When he came back Judy was no longer in the truck. [Cummings] parked Judy's truck off the side of the road next to a bridge. He raised the hood and left the truck there. [Cummings] drove home in the car with Sherry.

Sherry testified that when they arrived back at the house, [Cummings] and Juanita went into the bedroom where Melissa was hand cuffed to the bed. They were there from fifteen to twenty minutes. Juanita came out first and then [Cummings] followed. [Cummings] handed Juanita the keys to the hand cuffs and told her to bring Melissa out of the room. [Cummings] then told Sherry and Melissa to go get in the car. Sherry testified that Melissa asked where they were going and [Cummings] said they were going to meet her momma. Sherry fell asleep while they drove and she woke up when the car stopped. [Cummings] got out of the car and told Melissa to get out. They walked behind the car and climbed over a railing. They were gone fifteen to twenty minutes and when he returned to the car, [Cummings] was alone. Sherry stated that he had blood on his hands and the front of his coveralls. [Cummings] drove back to Atoka Lake and stopped on the opposite side of the lake from where he had taken Judy. He cleaned up, threw away his shoes and they drove back toward the house. On the way there [Cummings] threw his coveralls out the window. When they arrived back at the house, [Cummings] and Juanita took the couch and left. They were gone for about an hour before they returned.

Sherry testified that when she was first questioned by authorities about Judy and Melissa's disappearance she told them that they had left in a dark blue or black pickup that had come by the house. She claimed to have given this statement because [Cummings] told her to.

Juanita also testified against [Cummings] at trial. She testified that on the morning of September 5, 1991, [Cummings] told her that he wanted her to kill his sister, Judy, and he wanted her to use the .38 to do it. [Cummings] then left to take his father to Oklahoma City. Juanita testified that on the morning of September 5, she took Melissa to the welfare department with her. When they arrived back at the house, Juanita was there with Sherry, Judy and the kids. The kids were outside playing. Sherry went to the porch and called her to come out there. Sherry told her to do what she knew she needed to do and she brought Juanita the gun. Juanita went back into the house and shot Judy. Juanita and Sherry brought the kids into the house and told them to play in the bedroom. They then drug Judy's body to the cellar. They cleaned the

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house and couch and then Juanita went to work at the Dairy Queen.

Juanita testified that she arrived back home at around 11:00. When she got home she went into the bedroom where Melissa was handcuffed and lying on the bed. She went back into the living room. [Cummings] came home a little after midnight. He asked her if it was done and she replied that it was. Then Sherry and [Cummings] left the house and with the car keys and the truck keys. Juanita was told to stay in the house. She testified that she did not help move Judy's body but she never saw it again.

When [Cummings] and Sherry came back, [Cummings] told Juanita and Sherry to go in the bedroom and unhandcuff and undress Melissa. He then made them stay in the room while he raped Melissa. Afterward, [Cummings], Sherry and Melissa left the house. Only [Cummings] and Sherry returned. When he returned, [Cummings] was wearing only a pair of shorts. He had been dressed in coveralls when he left the house. He told Juanita to help him load the couch on the truck and they took it to a bridge near Centrahoma and threw it over the side of the bridge.

When questioned by authorities Juanita told them that she had been sleeping in her room when she heard someone pull up to the house and Judy hollered that she...

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