Delozier v. Sirmons

• Decision Date: 18 July 2008
• Docket Number: No. 06-7107.,06-7107.
• Citation: 531 F.3d 1306
• Parties: Michael DeLOZIER, Petitioner-Appellant, v. Marty SIRMONS, Warden, Oklahoma State Penitentiary, Respondent-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

531 F.3d 1306

Michael DeLOZIER, Petitioner-Appellant, v. Marty SIRMONS, Warden, Oklahoma State Penitentiary, Respondent-Appellee.

No. 06-7107.

United States Court of Appeals, Tenth Circuit.

July 18, 2008.

Jack S. Dawson (Sarah M. Jernigan with him on the brief), of Miller Dollarhide, Oklahoma City, OK, for Petitioner-Appellant.

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

Before LUCERO, MURPHY, and HARTZ, Circuit Judges.

HARTZ, Circuit Judge.

Michael DeLozier was convicted on two counts of first-degree murder in Oklahoma state court and sentenced to death. The Oklahoma Court of Criminal Appeals (OCCA) affirmed the conviction and sentence. See DeLozier v. State, 991 P.2d 22 (Okla.Crim.App.1998). After Mr. DeLozier filed an unsuccessful petition for a writ of certiorari in the United States Supreme Court, see DeLozier v. Oklahoma, 528 U.S. 1023, 120 S.Ct. 535, 145 L.Ed.2d 415 (1999), and an unsuccessful application for postconviction relief in Oklahoma state court, he filed in the United States District Court for the Eastern District of Oklahoma on August 31, 2000, an application for relief under 28 U.S.C. § 2254. The district court denied the application but granted a certificate of appealability (COA) on Mr. DeLozier's claim of ineffective assistance of counsel. See 28 U.S.C. § 2253(c)(1) (requiring a COA to appeal denial of habeas application). We denied Mr. DeLozier's motion for issuance of an expanded COA.

The OCCA summarized the incriminating evidence as follows:

Steven Morgan and Orville Lewis Bullard were camping in a converted stepvan on the bank of the Glover River in northern McCurtain County [the "Morgan camp"]. About 600 yards from their campsite was the "Tate bus," a bus also converted for camping. DeLozier, Glenney Dale ["Bo"] Madison, Nathaniel Brandon Madison, and others were staying at the bus. Sometime on Saturday, September 23, 1995, DeLozier, the Madison [cousins] and James ["Bubba"] Oliver happened upon the Morgan campsite. They engaged in conversation for a few minutes.

While there DeLozier spotted a generator he thought would bring about $700 if stolen. Once back at the Tate bus, DeLozier mentioned stealing the generator. Several of the group, including DeLozier, talked about killing Morgan and Bullard and stealing everything they had. That night, DeLozier, carrying a single shot shotgun, Glenney Madison, carrying a .22 caliber rifle, and Nathaniel Madison, set off for the Morgan site. Once there, according to Nathaniel Madison, DeLozier stepped into the camper and fired a single shot toward the rear with the shotgun. Then Glenney Madison stepped into the camper and fired a shot from the .22 rifle. The group then stood near Morgan's pickup where Glenney Madison fired several shots into the front of the camper. Nathaniel Madison shouted several times for the camper's occupants to come out, saying nothing would happen to them.

After several minutes, Morgan stepped from the camper. Upon doing so, DeLozier shot him once in the chest with the shotgun. DeLozier and Glenney Madison approached Morgan, and DeLozier took the rifle from Glenney and fired it once into Morgan's face.

The three loaded the generator and many other items from the campsite, some of which were taken from the camper, into Morgan's pickup and took the stolen items back to the Tate bus. On the final trip back to the Morgan camper, the trio encountered headlights coming from the Morgan camp site. All three bailed out from the pickup and left it sitting in the road.

George Vance was driving the vehicle which frightened the trio. He drove up on the Morgan camper and observed Morgan lying on the ground with his pants in his hands. Upon seeing this he turned around and got out as fast as he could. On his way out he found that he was blocked by Morgan's abandoned pickup. He got out of his vehicle and moved Morgan's pickup to the side of the road.

Morgan was found lying on his back outside the camper in front of the door. His body had been burned. Morgan's camper had been burned with the body of Bullard still lying in his bed. Morgan's pickup had also been burned.

DeLozier, 991 P.2d at 25-26.

Mr. DeLozier, Bo Madison, and Nathaniel Madison were charged with the first-degree murders of Bullard and Morgan. Bo Madison was convicted and sentenced to life without parole in a separate proceeding. Nathaniel Madison entered into a plea agreement with the State, agreeing to testify against Mr. DeLozier in exchange for a lesser charge and reduced sentence.

On appeal Mr. DeLozier challenges his conviction and sentence on the grounds that his trial counsel was ineffective in (1) not properly challenging four jurors who were biased in favor of the death penalty; (2) not moving before trial to exclude evidence of his prior convictions; (3) not calling as witnesses his sister and a friend who were with him shortly after the murders but who did not participate in the murders; (4) not effectively impeaching Nathaniel Madison's testimony; (5) not objecting to the State's improper comment on his pretrial silence; (6) not objecting to the State's improper questions when he was cross-examined and to its improper arguments to the jury; and (7) not conducting a proper investigation to obtain mitigating evidence for the penalty phase of trial and not presenting available mitigating evidence. He also contends (8) that his counsel on direct appeal to the OCCA was ineffective for not raising a claim of ineffective trial counsel and (9) that the cumulative effect of trial counsel's deficient acts rendered counsel's assistance ineffective. We affirm.

I. THE TRIAL

A. Jury Selection

During voir dire the trial court informed each potential juror that under Oklahoma law there were three alternative punishments for a person convicted of first-degree murder: death, imprisonment for life with no parole, or imprisonment for life. It asked the jurors whether they could fairly consider each alternative if the defendant was found guilty.

Four prospective jurors initially indicated that they would have difficulty considering sentences other than death. The trial court inquired further into whether they could fairly consider all three forms of punishment, and then permitted the parties to ask questions. Ultimately, each of the four said that they could give fair consideration to each form of punishment. Mr. DeLozier's attorney challenged only one of the prospective jurors for cause, but the court overruled his challenge. He then removed that prospective juror and another of the four with peremptory strikes; the other two jurors sat on the jury.

B. The Guilt Phase

1. The Prosecution's Case in Chief

a. Nathaniel Madison

Nathaniel Madison was the first witness. He testified as follows: In late September 1995 Damon Tate drove Mr. DeLozier, Bo Madison, Bubba Oliver, Paradise Wooten, and him to a campsite on the Glover river that they called "the Tate bus" because of a bus on the site that had been converted for camping. The next day they all smoked marijuana but were not high because the marijuana was not good. In the afternoon Mr. DeLozier, Bo, Bubba, and he left the camp on four wheelers to look for a generator that they had heard the previous night; they had agreed to steal it. They found the generator at the Morgan camp, where they saw Morgan and Bullard and stopped to talk. Nathaniel noticed the generator, ice chests, and various other camping equipment.

When they returned to the Tate bus, Mr. DeLozier again brought up the idea of stealing the generator. Nathaniel, Bo, and Bubba thought that it was a good idea. As they were sitting around a campfire that evening, Mr. DeLozier suggested that they just shoot the men and take everything that they had. Bo and Nathaniel, but not Bubba, agreed. After a discussion of 15 or 20 minutes, Bo, Nathaniel, and Mr. DeLozier decided to lie down, intending to wait a while so that the victims would be asleep when they arrived at the Morgan camp. Later they noticed that the generator had stopped running, so the three men walked to the Morgan camp through the woods. Mr. DeLozier carried a shotgun and Bo carried a .22 caliber rifle.

Upon arriving at the campsite, Mr. DeLozier and Bo each stepped into the camper, fired a shot toward the back of the camper, and then hid behind a pickup at the site (Morgan's pickup). From there, Bo fired additional shots into the camper. As instructed by Mr. DeLozier, Nathaniel began yelling for the occupants to come out. About 20 minutes later Morgan came to the door of the trailer. Mr. DeLozier told him to come out, assuring him that nothing would happen to him. But when Morgan finally emerged, Mr. DeLozier stepped out from behind the truck and shot him with the shotgun. Mr. DeLozier then took the .22 from Bo and shot Morgan in the face.

After the shooting the three men loaded goods from the camper into Morgan's pickup and drove it back to the Tate bus. They later returned, again filled the pickup with goods, and drove back to the Tate bus. Among the items that they took were two automatic shotguns and a .22 rifle. Some time after the first trip, Michelle Tate (Mr. DeLozier's sister), Damon Tate (her husband), and Shawn Smith arrived at the campsite. Michelle asked where they had gotten the truck and the goods. Mr. DeLozier answered that they had "borrowed the truck and ... got the stuff at the getting place." R. Vol. 8 at 572.

Mr. DeLozier and the Madisons later set out in the pickup on a third trip to the Morgan camp. But they met an oncoming vehicle on their way. Mr. DeLozier pulled the truck to the side of the road and they fled. The Madisons went in a different direction than Mr. DeLozier did, and they never saw him again. As the Madisons walked back to the Tate bus, about five minutes after fleeing the truck, Nathaniel saw the...