58 F.3d 1447 (10th Cir. 1995), 94-6052, Hatch v. State of Okl.

Docket Nº94-6052.
Citation58 F.3d 1447
Party NameSteven Keith HATCH, Petitioner-Appellant, v. STATE of Oklahoma, Respondent-Appellee.
Case DateJune 14, 1995
CourtUnited States Courts of Appeals, Court of Appeals for the Tenth Circuit

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58 F.3d 1447 (10th Cir. 1995)

Steven Keith HATCH, Petitioner-Appellant,

v.

STATE of Oklahoma, Respondent-Appellee.

No. 94-6052.

United States Court of Appeals, Tenth Circuit

June 14, 1995

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Thomas M. Lahiff, Jr., New York City, for appellant.

A. Diane Blalock, Asst. Atty. Gen. for State of Okl., Oklahoma City, OK (Susan Brimer Loving, Atty. Gen. of Oklahoma, and Sandra D. Howard, Asst. Atty. Gen., Chief, Crim. Div., with her on the brief), for appellee.

Before TACHA, BALDOCK, and EBEL, Circuit Judges.

TACHA, Circuit Judge.

Petitioner Steven Keith Hatch was convicted of two counts of first degree murder in Oklahoma state court. Oklahoma courts twice sentenced him to death and then vacated those sentences. 1 After a third state court judge imposed the death penalty on petitioner, the Oklahoma Court of Criminal Appeals affirmed. Petitioner then sought a writ of habeas corpus in federal district court. After first referring the case to a magistrate judge, the district court denied the petition. Petitioner now appeals, alleging seventeen errors: Sixteen of his claims concern constitutional infirmities in his state court proceedings, and one contends that the federal district court erred in failing to conduct an evidentiary hearing on his habeas claims. We have jurisdiction pursuant to 28 U.S.C. Sec. 2253 and affirm.

I. BACKGROUND

On October 15, 1979, petitioner and his accomplice, Glen Burton Ake, approached a home in Canadian County, Oklahoma, intending to rob its residents. Ake entered the home under the pretense that he was lost and needed directions. After excusing himself to return briefly to the car, Ake reentered the house with a firearm. Petitioner entered the house as well, also holding a firearm.

Once inside, petitioner and Ake bound and gagged three of the occupants: Reverend Richard Douglass, his wife, Marilyn, and their son, Brooks. They ransacked the house, stealing numerous items. They also attempted to rape twelve-year-old Leslie Douglass, Richard and Marilyn's daughter.

Petitioner covered each of the Douglasses' heads with an article of clothing. Ake told petitioner to return to the car, turn it around, and "wait for the sound." After petitioner left the house, Ake shot Richard and Leslie twice and Marilyn and Brooks once. Marilyn died from the gunshot wound, while Richard died from the combination of gunshot wounds and strangulation. The two children survived.

After this episode, petitioner and Ake left Oklahoma but continued their crime spree. When they learned that the Douglass children had survived, petitioner suggested that they return to Oklahoma and kill them so that there would be no witnesses to the murders. Although petitioner and Ake abandoned this plan, they later journeyed toward Oklahoma City intending to kill the children. They again decided not to follow through. Authorities ultimately apprehended petitioner and Mr. Ake in Colorado.

Petitioner's tortuous trip through the justice system began soon after he and Ake were arrested. Petitioner waived his right to trial by jury. He was tried in the District Court of Canadian County, Oklahoma, by Judge Floyd Martin. Judge Martin found petitioner guilty of two counts of first degree murder and two counts of shooting with intent to kill. After petitioner's sentencing hearing, Judge Martin found three aggravating circumstances: (1) the murders were especially heinous, atrocious or cruel; (2) petitioner committed the murders to avoid lawful arrest or prosecution; and (3) a probability existed "that the defendant would commit criminal acts of violence that would constitute a continuing threat to society." The judge therefore imposed on petitioner two sentences of death for his murder convictions, as well as two terms of forty-five years in prison for his other convictions.

Subsequent to petitioner's convictions but prior to his direct appeal, the United States

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Supreme Court decided Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982). Enmund held that the Eighth Amendment prohibited the imposition of the death penalty on any person who did not "himself kill, attempt to kill, or intend that a killing take place or that lethal force ... be employed." Id. at 797, 102 S.Ct. at 3376; see also Andrews v. Shulsen, 802 F.2d 1256, 1272 (10th Cir.1986), cert. denied, 485 U.S. 919, 108 S.Ct. 1091, 99 L.Ed.2d 253 (1988).

On petitioner's direct appeal, the Oklahoma Court of Criminal Appeals reviewed petitioner's death sentence in light of Enmund. Hatch v. Oklahoma, 662 P.2d 1377 (Okla.Crim.App.1983) (Hatch I ). The court determined that "it [was] necessary for the sentencer to give greater attention to the evidence concerning [petitioner's] individual participation and intent in the events which culminated in the murder/shootings." Id. at 1383. It therefore vacated petitioner's death sentence and remanded the case to the district court "for resentencing not inconsistent with Enmund v. Florida and [its] opinion" in Hatch I. Id. (citation omitted).

By the time of the remand, Judge Martin, who presided over petitioner's first trial, had died. He was replaced by Judge Stan Chatman. Judge Chatman initially ruled that he lacked authority to resentence plaintiff to death because of Okla.Stat.Ann. tit. 21, Sec. 701.13(E) (West 1983) (amended 1985). In response to Judge Chatman's ruling, the state sought a writ of mandamus to compel Judge Chatman to conduct a new sentencing hearing. The Oklahoma Court of Criminal Appeals granted the writ and directed Judge Chatman to "conduct a new sentencing proceeding in accordance with 21 O.S.1981, Sec. 701.10 and the directive of [Hatch I ], and make findings of fact and conclusions of law." Oklahoma v. Chatman, 671 P.2d 56, 57 (Okla.Crim.App.1983) (citation omitted).

On resentencing, Judge Chatman found the same three aggravating circumstances that Judge Martin had found. He also noted that the aggravating circumstances outweighed the mitigating circumstances. In addressing petitioner's individual culpability under Enmund, Judge Chatman stated that "[t]he evidence is supportive ... of a finding that [petitioner] contemplated that a killing was not only possible, but probable, and further that lethal force would probably be employed." Based on these findings, Judge Chatman sentenced petitioner to death for both of the murders.

Petitioner appealed his sentences, asserting two claims. First, he contended that Judge Chatman lacked authority to resentence him under Okla.Stat.Ann. tit. 21, Sec. 701.13 (West 1983) (amended 1985). Second, he argued that the evidence did not justify a sentence of death. The Oklahoma Court of Criminal Appeals rejected petitioner's arguments and affirmed his death sentences. Hatch v. Oklahoma, 701 P.2d 1039, 1040 (Okla.Crim.App.1985) (Hatch II ). The United States Supreme Court denied certiorari. Hatch v. Oklahoma, 474 U.S. 1073, 106 S.Ct. 834, 88 L.Ed.2d 805 (1986).

Petitioner then filed a petition for a writ of habeas corpus in federal district court. The district court dismissed the petition. Petitioner appealed, and this court ordered that his appeal be held in abeyance pending petitioner's exhaustion of his claims in state court.

Petitioner then applied for state post-conviction relief in the District Court of Canadian County. Judge Joe Cannon ruled that Judge Chatman should have recused himself from petitioner's second sentencing proceeding because Judge Chatman had worked for the prosecuting attorney during petitioner's trial and his first sentencing proceeding. Judge Cannon therefore vacated petitioner's death sentences and planned a third sentencing hearing. After petitioner unsuccessfully attempted to stay his resentencing, Judge Cannon sentenced petitioner to death once more. The Oklahoma Court of Criminal Appeals affirmed. Hatch v. Oklahoma, 835 P.2d 880, 884 (Okla.Crim.App.1992) (Hatch III ).

Petitioner again turned to federal court seeking a writ of habeas corpus. In his petition he asserted seventeen grounds for relief and requested an evidentiary hearing. The district court referred the petition to a magistrate judge, who found no meritorious grounds for granting the writ. The district

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court, without holding an evidentiary hearing, reviewed the petition and the magistrate's findings de novo and likewise determined that petitioner's claims were meritless. Petitioner now appeals to this court.

II. PRELIMINARY ISSUES

Before turning to the merits, we must demarcate the scope of our review. "The role of federal habeas proceedings, while important in assuring that constitutional rights are observed, is secondary and limited." Barefoot v. Estelle, 463 U.S. 880, 887, 103 S.Ct. 3383, 3392, 77 L.Ed.2d 1090 (1983); see also Autry v. Estelle, 464 U.S. 1, 3, 104 S.Ct. 20, 22, 78 L.Ed.2d 1 (1983) (per curiam). Although we review legal conclusions de novo, Brewer v. Reynolds, 51 F.3d 1519, 1522-23 (10th Cir.1995), a state court's factual findings are entitled to a presumption of correctness, 28 U.S.C. Sec. 2254(d); Lujan v. Tansy, 2 F.3d 1031, 1034 (10th Cir.1993), cert. denied, --- U.S. ----, 114 S.Ct. 1074, 127 L.Ed.2d 392 (1994). In other words, "[a] federal court may not overturn such [factual] determinations unless it concludes that they are 'not fairly supported by the record.' " Demosthenes v. Baal, 495 U.S. 731, 735, 110 S.Ct. 2223, 2225, 109 L.Ed.2d 762 (1990) (per curiam) (quoting 28 U.S.C. Sec. 2254(d)(8)). We review mixed questions of law and fact de novo. Maes v. Thomas, 46 F.3d 979, 988 (10th Cir.1995), cert. denied, --- U.S. ----, 115 S.Ct. 1972, 131 L.Ed.2d 861 (U.S.1995); Brecheen v. Reynolds, 41 F.3d 1343, 1365-66 (10th Cir.1994), cert. denied, --- U.S. ----, 115 S.Ct. 2564, 132 L.Ed.2d 817 (1995).

We must also note what...

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