579 F.3d 1134 (10th Cir. 2009), 06-6327, Fairchild v. Workman

Docket Nº:06-6327.
Citation:579 F.3d 1134
Opinion Judge:HOLMES, Circuit Judge.
Party Name:Richard FAIRCHILD, Petitioner-Appellant, v. Randall G. WORKMAN, Warden,[*] Oklahoma State Penitentiary, Respondent-Appellee.
Attorney:Randy A. Bauman, Assistant Federal Public Defender, 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), State of Oklahoma, Oklahoma City, OK, for Respondent-Appe...
Judge Panel:Before HARTZ, McCONNELL, and HOLMES, Circuit Judges. McCONNELL, Circuit Judge, concurring:
Case Date:August 31, 2009
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

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579 F.3d 1134 (10th Cir. 2009)

Richard FAIRCHILD, Petitioner-Appellant,


Randall G. WORKMAN, Warden, [*] Oklahoma State Penitentiary, Respondent-Appellee.

No. 06-6327.

United States Court of Appeals, Tenth Circuit.

August 31, 2009

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Randy A. Bauman, Assistant Federal Public Defender, 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), State of Oklahoma, Oklahoma City, OK, for Respondent-Appellee.

Before HARTZ, McCONNELL, and HOLMES, Circuit Judges.

HOLMES, Circuit Judge.

Petitioner-Appellant Richard S. Fairchild, currently on death row in the State of Oklahoma, appeals from the District Court for the Western District of Oklahoma's denial of his petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. Mr. Fairchild was convicted in an Oklahoma state court of child abuse murder and sentenced to death. For the reasons stated below, we hold that Mr. Fairchild's ineffective assistance of counsel claim is unexhausted and that the district court should determine in the first instance whether it is appropriate to stay and abate the action on the petition in order to give Mr. Fairchild an opportunity to exhaust this claim. Accordingly, we VACATE the district court's judgment and REMAND to the district court to make the stay-and-abeyance determination and to conduct further proceedings consistent with this opinion. We do not reach the merits of Mr. Fairchild's other appellate claims.


We presume that the factual findings of the state court are correct. 28 U.S.C. § 2254(e)(1). Thus, we recite the facts developed by the Oklahoma Court of Criminal Appeals (" OCCA" ) and present additional facts as they become pertinent. See generally Fairchild v. State (Fairchild I), 998 P.2d 611 (Okla.Crim.App.1999).

In November 1993, Mr. Fairchild was living with Stacy Broomhall and her three children in Midwest City, Oklahoma. Id. at 615. On November 13, 1993, Mr. Fairchild and Ms. Broomhall drank beer most of the afternoon and evening. Mr. Fairchild consumed approximately twelve beers between 2:00 p.m. and 9:00 p.m. Id. That evening, they drove to Ms. Broomhall's mother's house in north Oklahoma City and continued to drink. Id. By the

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time they were ready to leave, Mr. Fairchild and Ms. Broomhall were too intoxicated to drive, so Ms. Broomhall's seventeen-year-old sister, Charity Wade drove them home. Id. Ms. Wade had intended to spend the night at Ms. Broomhall's house. But she decided not to do so after Mr. Fairchild made a sexual advance toward her. Instead, Ms. Wade put Ms. Broomhall's three children to bed and called a taxi to take her home. Id. While Ms. Wade waited outside for the cab, Mr. Fairchild retrieved a baseball bat and told her that, " if someone other than a cab driver came to pick her up, he was going to beat him to death." Id. When Ms. Wade left in the cab, some time before 10:30 p.m., Ms. Broomhall's three-year-old son Adam was asleep in his own bed. Id. at 615-16.

Roughly three hours later, Adam woke up crying and got out of bed. Id. His mother was asleep, and Mr. Fairchild told Adam to " hush it up." Id. at 616. When Adam persisted, Mr. Fairchild hit him several times, rupturing the inside of his upper lip and his left eardrum, and he held Adam's chest and then buttocks against a hot wall heater causing severe second-degree grid-patterned burns. Id. Mr. Fairchild told a detective several days later, " I think I pushed him up against the heater and held him up there," and, " The more he screamed, the more I just kept on hitting him." Id. When Mr. Fairchild threw Adam against the drop-leaf dining table, he stopped breathing. Id.

Mr. Fairchild woke Ms. Broomhall and called 911. Id. Adam was rushed to the hospital, but the head injury had caused severe hemorrhaging and swelling, and he died later that morning, never having regained consciousness. Id. Examination indicated that Adam had sustained approximately twenty-six blows to his body, including several to his head. Id. In a written statement to the police, Mr. Fairchild claimed that Adam was running in the house and " ran right into the table." Id.

Mr. Fairchild was convicted by an Oklahoma County jury of one count of first degree murder pursuant to Okla. Stat. tit. 21, § 701.7(C) (1991),1 and the trial court entered judgment on February 2, 1996. At the sentencing phase of the trial, the jury found that the murder was especially heinous, atrocious, or cruel and recommended imposition of the death penalty. Mr. Fairchild appealed his conviction and sentence to the OCCA, which, in 1998, affirmed, " [f]inding no error warranting reversal or modification." Fairchild v. State, 965 P.2d 391 (Okla.Crim.App. 1998). In 1999, the OCCA issued a superseding opinion reaching the same conclusion with somewhat different reasoning. Fairchild I, 998 P.2d at 615. In 2000, the OCCA denied Mr. Fairchild's application for postconviction relief. Fairchild v. State (Fairchild II), No. PC-98-31, slip op. at 17 (Okla.Crim.App. Oct. 25, 2000).

On May 16, 2002, Mr. Fairchild sought habeas relief pursuant to 28 U.S.C. § 2254. The district court denied the petition on all grounds on September 26, 2006. Mr. Fairchild timely filed a notice of appeal. The district court granted a certificate of appealability (" COA" ) with respect to five issues: (1) whether the jury instructions failed to adequately explain the possible sentence of life without possibility of parole; (2) whether application of Oklahoma

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court decisions regarding the applicable mens rea for child abuse murder violates the Fourteenth Amendment; (3) whether Oklahoma's mens rea requirement for child abuse murder violates the Eighth Amendment; (4) whether the exclusion of lesser included or lesser related offense instructions violated federal rights; and (5) whether trial or appellate counsel provided ineffective assistance of counsel. Mr. Fairchild also seeks a COA for his claim of cumulative error. For the reasons noted below, we address only Mr. Fairchild's last issue, which is predicated upon the alleged ineffectiveness of his trial counsel, and we deny his request for a COA concerning alleged cumulative error as moot.


A. Standard of Review

Our review of a petition for writ of habeas corpus is governed by the Antiterrorism and Effective Death Penalty Act of 1996 (" AEDPA" ). House v. Hatch, 527 F.3d 1010, 1015 (10th Cir.2008), cert. denied, __ U.S. __, 129 S.Ct. 1345, 173 L.Ed.2d 613 (2009). If the state court adjudicated the claim on the merits, a petitioner is entitled to habeas relief only if he can establish that the decision was " contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," 28 U.S.C. § 2254(d)(1), or was " based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." Id. § 2254(d)(2); see, e.g., Hale v. Gibson, 227 F.3d 1298, 1309 (10th Cir.2000).

In ascertaining whether the law is clearly established, we review Supreme Court holdings extant when the state court conviction became final. House, 527 F.3d at 1015 (quoting Williams v. Taylor (Terry Williams), 529 U.S. 362, 380, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000)). If a law " announces a rule that breaks new ground or imposes a new obligation on the States of [sic] the Federal Government," it is not clearly established. Id. (alterations and internal quotation marks omitted) (quoting Terry Williams, 529 U.S. at 381, 120 S.Ct. 1495). " [F]ederal courts may no longer extract clearly established law from the general legal principles developed in factually distinct contexts." Id. at 1017 n. 5. Finally, whether the law is clearly established is " dispositive" of the § 2254(d)(1) analysis. Id. at 1017. Specifically, only if we determine that the law is clearly established do we inquire whether the state court decision is either contrary to or an unreasonable application of that law. Id. at 1018.

" A state-court decision is contrary to clearly established federal law if: (a) ‘ the state court applies a rule that contradicts the governing law set forth in Supreme Court cases'; or (b) ‘ the state court confronts a set of facts that are materially indistinguishable from a decision of the Supreme Court and nevertheless arrives at a result different from [that] precedent.’ " Id. (alteration in original) (quoting Maynard v. Boone, 468 F.3d 665, 669 (10th Cir.2006)). " A decision is an ‘ unreasonable application’ of clearly established federal law only if the state court identifies the correct governing legal principle from the Supreme Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Young v. Sirmons, 486 F.3d 655, 663 (10th Cir.2007) (internal quotation marks omitted). We presume the factual findings of the state courts to be correct, and petitioner bears the burden of rebutting this presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1). We review the district court's legal analysis of the state court decision de novo. Young, 486 F.3d at 663.

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When the state court did not determine the issue on its merits, and the district court decided the issue in the first instance, we review de novo the district court's conclusions of law. We review its findings of facts for clear error. Cummings v. Sirmons, 506 F.3d 1211, 1221-22 (10th Cir.2007), cert. denied, __ U.S. __, 128 S.Ct. 2943, 171 L.Ed.2d 872 (2008); see also Cargle v. Mullin, 317 F.3d 1196, 1212 (10th Cir.2003) (noting that in such circumstances, we are " not constrained by the deference principles in § 2254(d)" ). We undertake this...

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