644 F.3d 984 (10th Cir. 2011), 09-5180, Selsor v. Workman

Docket Nº:09-5180.
Citation:644 F.3d 984
Opinion Judge:BRISCOE, Chief Judge.
Party Name:Michael Bascum SELSOR, Petitioner-Appellant, v. Randall G. WORKMAN, Warden, Oklahoma State Penitentiary; Drew Edmondson, Attorney General of the State of Oklahoma, Respondents-Appellees.
Attorney:Madeline S. Cohen, Assistant Federal Public Defender, Denver, CO, (Raymond P. Moore, Federal Public Defender, Denver, CO; Dean Sanderford, Research & Writing Attorney, Appellate Division, Denver, CO; Gary Peterson, Oklahoma City, OK, with her on the briefs), for Petitioner-Appellant. Robert L. Wh...
Judge Panel:Before BRISCOE, Chief Judge, TYMKOVICH and GORSUCH, Circuit Judges.
Case Date:May 02, 2011
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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644 F.3d 984 (10th Cir. 2011)

Michael Bascum SELSOR, Petitioner-Appellant,

v.

Randall G. WORKMAN, Warden, Oklahoma State Penitentiary; Drew Edmondson, Attorney General of the State of Oklahoma, Respondents-Appellees.

No. 09-5180.

United States Court of Appeals, Tenth Circuit.

May 2, 2011

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[Copyrighted Material Omitted]

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Madeline S. Cohen, Assistant Federal Public Defender, Denver, CO, (Raymond P. Moore, Federal Public Defender, Denver, CO; Dean Sanderford, Research & Writing Attorney, Appellate Division, Denver, CO; Gary Peterson, Oklahoma City, OK, with her on the briefs), 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 Respondents-Appellees.

Before BRISCOE, Chief Judge, TYMKOVICH and GORSUCH, Circuit Judges.

BRISCOE, Chief Judge.

Petitioner Michael Selsor, 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. Selsor asserts seven issues on appeal: (1) whether a state appellate ruling allowing the prosecution at his retrial proceedings to seek the death penalty against him violated his due process rights; (2) whether the imposition of the death penalty at his retrial proceedings violated his rights under the Double Jeopardy Clause; (3) whether the state trial court violated his constitutional rights at the retrial proceedings by instructing the jury as to the elements of a post-crime first degree murder statute, rather than the elements of the pre-crime first degree murder statute under which he was originally charged; (4) whether the imposition of the death penalty at his retrial proceedings violated his rights under the Equal Protection Clause; (5) whether the prosecution acted vindictively, in violation of his due process rights, by seeking the death penalty at his retrial proceedings; (6) whether the penalty phase of his retrial proceedings was rendered fundamentally unfair by prosecutorial misconduct; and (7) whether the admission, during the penalty phase of the retrial proceedings, of testimony from the victim's family members regarding the appropriate sentence violated his rights under the Eighth

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Amendment. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we affirm.

I

Factual background

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

At approximately 11:00 p.m. on September 15, 1975, Selsor and Richard Eugene Dodson robbed the U-TOTE-M convenience store at 5950 33rd West Avenue in Tulsa. Selsor and Dodson entered the store, each armed with a .22 caliber handgun. Employee Clayton Chandler was working at the cash register. Selsor approached Chandler, pulled his gun, and demanded the contents of the register. Dodson located employee Ina Morris, who was restocking the walk-in cooler. Dodson pointed his gun at her and ordered her to get down. Morris replied, " You've got to be kidding me." Dodson then fired a shot striking Morris in the shoulder.

Chandler loaded a sack with money and handed it to Selsor, who then shot Chandler several times in the chest killing him. Upon hearing the shots, Dodson emptied his weapon through the cooler door at Morris. Morris was shot in the head, neck and shoulder, but survived. Selsor and Dodson then fled.

On September 22, 1975, Selsor and Dodson were arrested in Santa Barbara, California. Selsor confessed this and other crimes to Detective John Evans of the Santa Barbara Police Department. In his confession, Selsor admitted that before entering the store, he and Dodson had agreed to leave no witnesses.

Selsor v. State (Selsor II), 2 P.3d 344, 347-48 (Okla.Crim.App.2000) (internal paragraph numbers omitted).

Selsor's original trial and direct appeal

Following his arrest, Selsor " was charged in the District Court, Tulsa County, with the offenses of Armed Robbery, CRF-75-2183; Shooting With Intent to Kill, CRF-75-2182; and, Murder in the First Degree, CRF-75-2181, After Former Conviction of a Felony." Selsor v. State (Selsor I), 562 P.2d 926, 927 (Okla.Crim.App.1977). The case proceeded to trial in January 1976, and Selsor " was tried conjointly with co-defendant ... Dodson." 1 Id. " A guilty verdict was returned as to all three charges [against Selsor], punishment being assessed at death for Murder in the First Degree; twenty (20) years' imprisonment for Shooting With Intent to Kill; and, twenty-five (25) years' imprisonment for Armed Robbery." 2 Id.

Selsor filed a direct appeal challenging his convictions and sentences. On April 6, 1977, the OCCA issued a published decision affirming all of Selsor's convictions, as well as the sentences imposed for the Shooting With Intent to Kill and Armed Robbery convictions. The OCCA, however, modified Selsor's death sentence to life imprisonment. In doing so, the OCCA concluded, consistent with its then-recent decision in Riggs v. Branch, 554 P.2d 823 (Okla.Crim.App.1976), that the Oklahoma death penalty statute under which Selsor was sentenced,

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Okla. Stat. tit. 21, § 701.3 (1973), was unconstitutional. Selsor I, 562 P.2d at 927.

Selsor's first application for state post-conviction relief

On November 8, 1978, Selsor filed a pro se application for post-conviction relief in state district court. The application asserted a single claim for relief from his convictions, i.e., that " THE TRIAL COURT ERRED BY REQUIRING [Dodson] AND [Selsor] TO, OVER [their] OBJECTION, BE TRIED JOINTLY WITH THE SAME COUNSEL FROM THE PUBLIC DEFENDERS OFFICE." S. R., Vol. I at 160. On February 28, 1980, the state district court denied Selsor's application, noting that Selsor's claim had previously been rejected by the OCCA on direct appeal. The state district court's denial of post-conviction relief was affirmed by the OCCA on June 12, 1980.

Selsor's second application for state post-conviction relief

" On July 3, 1989, Selsor filed a second application for post-conviction relief in state court." 3 Selsor v. Kaiser (Kaiser II), 81 F.3d 1492, 1496 (10th Cir.1996). " That application was denied on July 24, 1989, and that ruling was affirmed by the [OCCA] in an unpublished order on August 18, 1989." Id.

Selsor's first federal habeas proceedings

In October of 1991, Selsor filed a pro se petition for federal habeas relief pursuant to 28 U.S.C. § 2254 in the United States District Court for the Western District of Oklahoma. Selsor v. Kaiser (Kaiser I), 22 F.3d 1029, 1031 (10th Cir.1994). Selsor's petition asserted " two grounds for relief: (1) he was denied his Sixth Amendment right to the effective assistance of counsel because of his attorney's conflict of interest— i.e., the same attorney represented both [Selsor] and Dodson; and (2) the separate convictions and sentences for felony murder and the underlying felony— i.e., armed robbery, violated the Double Jeopardy Clause of the Fifth Amendment." Id. The district court denied Selsor's petition on December 4, 1992. Id. In doing so, the district court addressed and rejected the ineffective assistance claim on the merits, but concluded that Selsor's double jeopardy claim was procedurally barred.

Selsor appealed the district court's ruling to this court. This court appointed a federal public defender to represent Selsor. On May 2, 1994, this court issued a published opinion reversing the decision of the district court and remanding for further proceedings. More specifically, this court concluded " that the district court applied the incorrect legal standard" to Selsor's Sixth Amendment claim, id. at 1033, and thus remanded the case to the district court to " determine whether: (1) [Selsor]'s objection at trial to the joint representation was timely, and, if so, (2) whether the trial court took ‘ adequate steps to ascertain whether the risk [of a conflict of interest] was too remote to warrant separate counsel,’ " id. at 1033-34 (quoting Holloway v. Arkansas, 435 U.S. 475, 484, 98 S.Ct. 1173, 55 L.Ed.2d 426 (1978)).

" On remand the district [court] concluded that Selsor's objection to the joint representation was timely." Kaiser II, 81 F.3d at 1496. " However, [the district court] held that the state trial court made an adequate inquiry into the possibility of

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a conflict of interest...." Id. Thus, the district court " denied Selsor's petition." Id.

Selsor appealed again to this court. On April 8, 1996, this court issued a published opinion (Kaiser II) reversing the district court's ruling. In doing so, this court held " there was an actual conflict of interest that adversely affected counsel's performance on behalf of Selsor," resulting in " violations of Selsor's Sixth and Fourteenth Amendment rights to effective assistance of counsel." Id. at 1506. Accordingly, this court remanded the case to the district court " with directions to enter judgment invalidating Selsor's convictions ..., but providing that such judgment [wa]s without prejudice to further proceedings by the state for retrial of [Selsor] within a reasonable time." Id.

Selsor's new trial

The Tulsa County District Attorney's Office initiated retrial proceedings in May of 1996. On August 6, 1996, the prosecution filed a Bill of Particulars alleging that Selsor " should be punished by Death" for " the offense of Murder in the First Degree, as charged in the [original] Information," as a result of the following aggravating circumstances: (1) " [t]he Defendant knowingly created a great risk of death to more than one person" ; (2) " [t]he murder was especially...

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