645 F.3d 1159 (10th Cir. 2011), 09-5146, Byrd v. Workman

Docket Nº:09-5146.
Citation:645 F.3d 1159
Opinion Judge:HOLMES, Circuit Judge.
Party Name:Kirk Douglas BYRD, Petitioner-Appellant, v. Randall WORKMAN, Warden, Respondent-Appellee.
Attorney:Barry A. Schwartz, Assistant Federal Public Defender (Raymond P. Moore, Federal Public Defender, with him on the briefs), Denver, CO, for Petitioner-Appellant. Keeley L. Harris, Assistant Attorney General (W.A. Drew Edmondson, Attorney General, with her on the brief), Oklahoma City, OK, for Respo...
Judge Panel:Before TACHA, O'BRIEN, and HOLMES, Circuit Judges.
Case Date:May 27, 2011
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

Page 1159

645 F.3d 1159 (10th Cir. 2011)

Kirk Douglas BYRD, Petitioner-Appellant,

v.

Randall WORKMAN, Warden, Respondent-Appellee.

No. 09-5146.

United States Court of Appeals, Tenth Circuit.

May 27, 2011

Page 1160

[Copyrighted Material Omitted]

Page 1161

Barry A. Schwartz, Assistant Federal Public Defender (Raymond P. Moore, Federal Public Defender, with him on the briefs), Denver, CO, for Petitioner-Appellant.

Keeley L. Harris, Assistant Attorney General (W.A. Drew Edmondson, Attorney General, with her on the brief), Oklahoma City, OK, for Respondent-Appellee.

Before TACHA, O'BRIEN, and HOLMES, Circuit Judges.

HOLMES, Circuit Judge.

Petitioner Kirk Douglas Byrd, an Oklahoma state prisoner currently serving a fifty-five-year sentence, appeals from the district court's denial of his 28 U.S.C. § 2254 habeas petition. Mr. Byrd alleges that he received ineffective assistance of counsel because his trial counsel (1) failed to investigate whether his prior felony convictions would be admissible for purposes of enhancing his sentence under Oklahoma's repeat-offender statute, and (2) introduced all of his prior convictions to the jury when three of them were otherwise inadmissible. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

I. BACKGROUND

In April 2004, Mr. Byrd was charged in a ten-count amended information with, inter alia, Unlawful Possession of a Controlled Drug, Driving Under the Influence (" DUI" ) of Intoxicating Liquor— Second Offense,1 Assault and Battery Upon a Police Officer, and Unlawful Possession of Marijuana— Second Offense.2 These charges arose from a late-night traffic stop on February 11, 2004, the related altercation between Mr. Byrd and the officer who instigated the stop, and the ensuing search of Mr. Byrd and his vehicle. Prior to this arrest, Mr. Byrd was no stranger to the law— he had previously been convicted of seven felonies with sentences totaling ninety years.3 Consequently, the Respondent

Page 1162

sought enhancement of Mr. Byrd's sentence under Oklahoma's repeat-offender statute at trial. See Okla. Stat. tit. 21, § 51.1(B) (" Every person who, having been twice convicted of felony offenses, commits a subsequent felony offense ... within ten (10) years of the date following the completion of the execution of the sentence, ... [may be] punish[ed] by imprisonment ... for a term in the range of twenty (20) years to life imprisonment." ).

Pursuant to Oklahoma law, a criminal defendant facing a sentence enhancement under § 51.1(B) is entitled to a bifurcated trial; in the first stage— which focuses on the determination of guilt— a defendant's prior convictions should not be referenced, except as permitted by the rules of evidence. See Okla. Stat. tit. 22, § 860.1. As a result, when the arresting officer referenced Mr. Byrd's prior convictions on direct examination during the first stage of his initial trial, the state trial court sua sponte declared a mistrial. At Mr. Byrd's second trial, the Respondent presented its case-in-chief without reference to the defendant's prior convictions.

In anticipation of the defense's affirmative case, an admittedly confusing colloquy took place between the trial court judge, the prosecutor, and Mr. Byrd's trial counsel, Ms. Paula Keck and Mr. Curt Allen, wherein it was discussed whether Mr. Byrd would testify at all, and, if so, how his previous convictions would be treated. The trial court determined that, should Mr. Byrd testify at this stage, he could do so without reference to his prior DUIs and drug-related offenses, which accounted for all but one of his previous felony convictions. Moreover, the court concluded that references to these convictions were inadmissible even for impeachment purposes as their probative value was outweighed by the potential prejudicial effect of their introduction.

The trial court did, however, indicate that Mr. Byrd could be questioned as to his other conviction— namely, his Escape conviction— and as to the total number of previous felony convictions he had, although the State would be barred from soliciting further information. Further, it rebuffed Mr. Byrd's suggestion that he be allowed to admit to two of his prior convictions to fulfill the requirements of § 51.1(B) without exposing himself to additional questioning about his criminal past. The trial court acknowledged that Mr. Byrd may admit to his prior convictions at the guilt phase of the proceedings, but warned that such an admission would waive the protection of the two-stage trial, thereby allowing the prosecution to put on evidence of all his relevant prior convictions as such evidence would have been admissible during phase two of the proceedings.4

Faced with the apparent choice of either a single-stage trial wherein he would admit to all his prior convictions himself, or a bifurcated trial wherein the prosecution would be able to impeach him with his Escape conviction and the number of his previous felony convictions, before presenting the full array of his prior convictions and sentences at the second phase, Mr. Byrd chose to be up-front about his

Page 1163

criminal past. Mr. Byrd admitted to each of his previous seven felony convictions on direct examination during the guilt phase of his trial, and his counsel did not object when the prosecution, on cross-examination, introduced copies of judgment-and-sentence reports for those convictions. The jury eventually found Mr. Byrd guilty on all counts, and the court sentenced him to sixty-five years in jail, plus fines.5

Following his conviction, Mr. Byrd appealed to the OCCA. Represented by new counsel on appeal, Mr. Byrd raised nine propositions of error, two of which are relevant to the present proceedings. First, he claimed that several of his prior felony convictions arose from the same transaction or occurrence, and therefore were inadmissible for enhancement purposes. Section 51.1(B) requires that the predicate felony convictions " relied upon shall not have arisen out of the same transaction or occurrence or series of events closely related in time and location," Okla. Stat. tit. 21, § 51.1(B), and Mr. Byrd argued that his trial lawyers were ineffective in failing to investigate the " transactional" nature of some of his prior convictions. He maintained that, had his trial lawyers been effective, they would have known that several of his prior convictions would have been inadmissible even in a two-stage trial. Second, he claimed that his trial lawyers were ineffective for presenting these otherwise inadmissible prior convictions to the jury through his testimony.

Applying the standard set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984),6 the OCCA denied both of these claims. Regarding Mr. Byrd's failure-to-investigate claim, the OCCA acknowledged that several exhibits submitted by Mr. Byrd in a motion to supplement " seem[ed] to support [his] allegations" that some of his prior convictions arose from the same transaction or occurrence. R., Vol. 1, at 333. Therefore, the OCCA " directed a response from the State specifically addressing whether the prior convictions [under discussion] were transactional in nature and whether they could be properly used to enhance the sentence." Id. at 334. In reply, the Respondent stipulated that five of Mr. Byrd's seven prior felony convictions arose from two transactions. And based on this, the OCCA determined that " only [two] of [the five] should have been used for enhancement purposes." Id.

Addressing the second prong of Strickland, the OCCA concluded that " no prejudice resulted" from " trial counsel's failure

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to raise this issue at trial" because " [e]ven when three of the prior convictions used for enhancement are excluded, four valid prior convictions remain[ed]," and " the sentences imposed ... were relatively light considering Appellant was a habitual offender." Id. This lack of prejudice, the OCCA determined, was fatal to this claim.

The OCCA then turned to Mr. Byrd's claim that his trial counsel was ineffective for introducing his prior convictions. When addressing this issue, the OCCA concluded that his trial lawyers' decision to elicit this information constituted " sound trial strategy." Id. at 336. In making this determination, the OCCA relied on two conclusions: first, that " the trial court ruled the State would be permitted to introduce the prior convictions and the sentences received for impeachment purposes if Appellant took the witness stand," id. at 335; and, second, that " as this was a one stage trial, the State was able to question Appellant [in any event] about his prior convictions which could be used to enhance his sentence should the jury find him guilty," id. However, the trial court actually had specifically ruled that all of Mr. Byrd's prior convictions, except for his Escape conviction, were inadmissible for impeachment purposes, and it was only his trial lawyers' decision to question Mr. Byrd about his prior convictions and sentences in the first place that made Mr. Byrd's trial a one-stage proceeding.

Relying on its faulty understanding that Mr. Byrd's convictions were otherwise admissible, the OCCA concluded that " defense counsel's decision to elicit the information concerning the priors on direct examination appears to have been calculated trial strategy to lessen the impact of the priors than if the State had been allowed to bring them to the jury's attention first." Id. It explained:

[A]fter testifying to his prior criminal history, [trial counsel had] Appellant state[ ] that he had quit using drugs and alcohol, substances which he claimed were responsible for his prior criminal acts, and [that] he had graduated from college. Counsel's decision to have Appellant testify showed not only Appellant's willingness to admit his prior bad acts, but also showed he had changed his ways and was not...

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296 practice notes
  • United States v. Young, 021121 NMDC, CR 17-0694 JB
    • United States
    • Federal Cases United States District Courts 10th Circuit District of New Mexico
    • 11 February 2021
    ...Tenth Circuit defines deficient performance as “falling below an objective standard of reasonableness.” Byrd v. Workman, 645 F.3d 1159, 1167 (10th Cir. 2011). Specifically, Young must demonstrate “that his counsel's performance was so prejudicial that there is a ......
  • Krutsinger v. Williams, 102820 CODC, C. A. 11-cv-02963-JLK
    • United States
    • Federal Cases United States District Courts 10th Circuit District of Colorado
    • 28 October 2020
    ...and the misapprehension goes to a material factual issue that is central to petitioner's claim . . . .” Byrd v. Workman, 645 F.3d 1159, 1171-72 (10th Cir. 2011) (internal quotation marks and citation omitted). Paragraph 2254(e)(1) further instructs: “[A] determinati......
  • Ellis v. Smith, 022321 NMDC, 2:18-CV-00012-JCH-KRS
    • United States
    • Federal Cases United States District Courts 10th Circuit District of New Mexico
    • 23 February 2021
    ...the benefit of the doubt.” Cullen v. Pinholster, 563 U.S. 170, 181 (2011) (quotations omitted); see also Byrd v. Workman, 645 F.3d 1159, 1172 (10th Cir. 2011) (describing AEDPA standard as imposing “daunting” hurdles in deference to state courts). Because there is a......
  • Whitt v. Farris, 012821 OKNDC, 17-CV-0632-CVE-CDL
    • United States
    • Federal Cases United States District Courts 10th Circuit Northern District of Oklahoma
    • 28 January 2021
    ...federal law “was clearly established by the Supreme Court at the time of the state court judgment.” Byrd v. Workman, 645 F.3d 1159, 1165 (10th Cir. 2011). A state court's judgment is “contrary to” federal law where “the state court arrives at a conclusion opposite&#......
  • Free signup to view additional results
296 cases
  • United States v. Young, 021121 NMDC, CR 17-0694 JB
    • United States
    • Federal Cases United States District Courts 10th Circuit District of New Mexico
    • 11 February 2021
    ...Tenth Circuit defines deficient performance as “falling below an objective standard of reasonableness.” Byrd v. Workman, 645 F.3d 1159, 1167 (10th Cir. 2011). Specifically, Young must demonstrate “that his counsel's performance was so prejudicial that there is a ......
  • Krutsinger v. Williams, 102820 CODC, C. A. 11-cv-02963-JLK
    • United States
    • Federal Cases United States District Courts 10th Circuit District of Colorado
    • 28 October 2020
    ...and the misapprehension goes to a material factual issue that is central to petitioner's claim . . . .” Byrd v. Workman, 645 F.3d 1159, 1171-72 (10th Cir. 2011) (internal quotation marks and citation omitted). Paragraph 2254(e)(1) further instructs: “[A] determinati......
  • Ellis v. Smith, 022321 NMDC, 2:18-CV-00012-JCH-KRS
    • United States
    • Federal Cases United States District Courts 10th Circuit District of New Mexico
    • 23 February 2021
    ...the benefit of the doubt.” Cullen v. Pinholster, 563 U.S. 170, 181 (2011) (quotations omitted); see also Byrd v. Workman, 645 F.3d 1159, 1172 (10th Cir. 2011) (describing AEDPA standard as imposing “daunting” hurdles in deference to state courts). Because there is a......
  • Whitt v. Farris, 012821 OKNDC, 17-CV-0632-CVE-CDL
    • United States
    • Federal Cases United States District Courts 10th Circuit Northern District of Oklahoma
    • 28 January 2021
    ...federal law “was clearly established by the Supreme Court at the time of the state court judgment.” Byrd v. Workman, 645 F.3d 1159, 1165 (10th Cir. 2011). A state court's judgment is “contrary to” federal law where “the state court arrives at a conclusion opposite&#......
  • Free signup to view additional results