679 F.3d 1196 (10th Cir. 2012), 10-7084, DeRosa v. Workman

Docket Nº:10-7084.
Citation:679 F.3d 1196
Opinion Judge:BRISCOE, Chief Judge.
Party Name:James L. DeROSA, Petitioner–Appellant, v. Randall G. WORKMAN, Warden, Oklahoma State Penitentiary, Respondent–Appellee.
Attorney:Thomas D. Hird (Patti Palmer Ghezzi, with him on the briefs), Assistant Federal Public Defenders, Oklahoma City, OK, for Petitioner–Appellant. Jennifer L. Crabb, Assistant Attorney General (E. Scott Pruitt, Attorney General of Oklahoma, with her on the briefs), Oklahoma City, OK, for Respondent–A...
Judge Panel:Before BRISCOE, Chief Judge, O'BRIEN and MATHESON, Circuit Judges.
Case Date:May 25, 2012
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

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679 F.3d 1196 (10th Cir. 2012)

James L. DeROSA, Petitioner–Appellant,


Randall G. WORKMAN, Warden, Oklahoma State Penitentiary, Respondent–Appellee.

No. 10-7084.

United States Court of Appeals, Tenth Circuit.

May 25, 2012

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Thomas D. Hird (Patti Palmer Ghezzi, with him on the briefs), Assistant Federal Public Defenders, Oklahoma City, OK, for Petitioner–Appellant.

Jennifer L. Crabb, Assistant Attorney General (E. Scott Pruitt, Attorney General of Oklahoma, with her on the briefs), Oklahoma City, OK, for Respondent–Appellee.

Before BRISCOE, Chief Judge, O'BRIEN and MATHESON, Circuit Judges.

BRISCOE, Chief Judge.

Petitioner James DeRosa, an Oklahoma state prisoner, was convicted of two counts of first-degree felony murder and sentenced to death on both counts. The two murders that were the subject of his convictions occurred on October 2, 2000. DeRosa unsuccessfully challenged his convictions and sentences on direct appeal, as well as in an application for state post-conviction relief. DeRosa then sought federal habeas relief by filing a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. The district court denied his petition but granted a certificate of appealability (COA) as to one issue. We, in turn, granted a COA on two additional issues. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we now affirm the decision of the district court.


Factual background

The Oklahoma Court of Criminal Appeals (OCCA), in addressing DeRosa's direct appeal, outlined the relevant background facts of DeRosa's crime:

Around 9:00 p.m. on Monday, October 2, 2000, James L. DeRosa and John Eric Castleberry talked their way into the rural Poteau home of Curtis and Gloria Plummer and then robbed them, stabbed them, and cut their throats, leaving them dead on the floor. DeRosa and Castleberry then stole approximately $73 and left in the Plummers' tan 1998 Chevrolet pickup truck. The Plummers knew DeRosa, because he had previously worked for them on their ranch. He and Castleberry were apparently allowed into the home, which had a security system, on the pretense of looking for a further work opportunity.4

DeRosa worked for the Plummers during the summer of 1999.5 He apparently began plotting to rob them sometime in the spring of 2000. Chris Ford testified that during March or April of 2000, while DeRosa was renting a room in his home, DeRosa approached him about an elderly couple in Monroe

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for whom he had worked. DeRosa said they would be an "easy target" and asked Ford to drop him off at their house, and then DeRosa would go in and rob them.6

On Saturday, September 30, 2000, DeRosa brought up the idea of robbing the Plummers to Eric Castleberry and Scotty White.7 The three men were hanging out in a bowling alley parking lot that night, when DeRosa asked White if he would go with him to a house in Howe, which belonged to people for whom he had previously worked, and help him rob the owners.8 When White declined, DeRosa asked Castleberry, and Castleberry agreed. DeRosa claimed that the people "always carried a bunch of money on ‘em." 9 Castleberry testified that he and DeRosa needed money in order to move to Corpus Christi, Texas, to find work. DeRosa spoke to Castleberry again the next day, and Castleberry again agreed to go into the house with DeRosa. They talked about using guns, but decided to use knives when they were unable to obtain guns.10

On Monday, October 2, 2000, while DeRosa, Castleberry, and White were driving back to Poteau from Fort Smith, Arkansas (where they had been visiting a friend in the hospital), DeRosa told the others, "we're going to do it tonight." They agreed that White would drop DeRosa and Castleberry off at the house, where they would rob the Plummers and steal their old truck, and then White would meet them at the top of Sugarloaf Mountain, where they would abandon the truck. After attempting to track down Mavis Smith, a sister of the friend in the hospital, and getting pulled over for speeding,11 the men went to their various homes to prepare for the robbery. DeRosa obtained a white batting glove or golf glove from his home, but when he couldn't find "the other one," he got a sock to wear on his other hand. He told the others that he was going to get his mother's gun, but then decided against it, since it was registered in her name. Castleberry already had two knives in his car, and they decided to use those instead.12 Castleberry also had thick black rubberized gloves for himself in his car.

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DeRosa gave White, who was by then driving Castleberry's car, directions to the Plummer home, and they arrived at approximately 9:00 p.m. DeRosa told White to check back in about ten to fifteen minutes, in case someone else was in the home. White did so, and after seeing lights on throughout the home and no sign of his friends, drove on to Sugarloaf Mountain.13 Meanwhile, DeRosa and Castleberry, who were not wearing disguises or masks, rang the bell at the Plummer home and were allowed in by Mrs. Plummer, in order to talk to Mr. Plummer about possible work opportunities.14 Mr. Plummer was in the den watching Monday Night Football. After chatting in their den for a few minutes, DeRosa pulled out his knife, held it to the neck of Mr. Plummer, and told him to sit still. When Mrs. Plummer grabbed the cordless phone and started trying to dial, Castleberry yanked the base of the phone out of the wall, pulled out his knife, held it to Mrs. Plummer's neck, and told her to sit still.

DeRosa stayed in the den with the Plummers while Castleberry began going through bedrooms looking for things to steal. While he was in the second bedroom, he heard DeRosa yell for him to come back and help him. Castleberry ran back to the den and observed DeRosa, now standing near the door to the kitchen, struggling with the Plummers. Castleberry testified that he saw DeRosa stabbing at both of them and that he saw blood "all over" Mrs. Plummer. 15 Castleberry also observed blood on the front and the side of Mr. Plummer and saw DeRosa stab Mr. Plummer in the chest.16

Castleberry testified that he then went up behind Mrs. Plummer, stuck his knife to her throat, slit her throat, and pulled her backwards and threw her down on the loveseat.17 Castleberry then stabbed Mr. Plummer "a couple of times" in the back.18 DeRosa then pushed Mr. Plummer back toward the love seat and the television. Castleberry testified that Mr. Plummer picked up the cordless phone, which was on the floor, and begged the men to let him call an ambulance for his wife, saying he would give them anything they wanted if they would just let him get help for his wife. DeRosa responded by picking up a marble-topped end table and throwing

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it at him. The table hit Mr. Plummer on the head, and he fell to the ground.19 DeRosa then walked over and slit his throat, from ear to ear, and left him laying on the floor.20 Castleberry then pulled Mrs. Plummer down off the loveseat and left her facedown on the floor, near Mr. Plummer.21

The men then began ransacking the house looking for cash and other valuables, but they found only Mr. Plummer's wallet and Mrs. Plummer's purse. DeRosa took the cash out of the wallet, and Castleberry dumped the purse onto the laundry room floor and took the cash.22 When they couldn't find the keys for the older white pickup parked outside, they decided to take the much newer, tan Chevrolet pickup that was parked in the garage. DeRosa drove the truck to the top of Sugarloaf Mountain, but decided not to leave it there, thinking it would be "too obvious." They met White on their way back down. DeRosa told White to wait for a few minutes and then meet them at the Poteau City Lake.

Castleberry testified that when they got to the City Lake, they "[p]ut the truck in the water and got in the water and rinsed the blood off us and changed clothes." White testified that as he pulled up, he could see the back of the truck and its taillights, as the truck sank into the lake. DeRosa and Castleberry put their wet, bloody clothing into a black plastic garbage bag and put on fresh clothing, from out of Castleberry's car. Castleberry testified that he put all of his wet clothing into the bag except his underwear, which he couldn't find, and that he threw his gloves and his knife into the lake.23 DeRosa put his knife into the bloody sock that he had worn on his hand and threw it into the water too.24

The three men then got back in Castleberry's car, drove to Taco Bell, and bought themselves tacos using the money

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they had stolen. Before dropping White off later that night, Castleberry told White that they "ended up having to kill ‘em." 25 White was also told that Castleberry and DeRosa were leaving for Corpus Christi the next morning.

Castleberry and DeRosa later went to a campground area and burned the clothing in the garbage bag, after spraying lighter fluid on it. They were afraid that DeRosa's combat boots would not burn fully, so they dropped them over a bridge near Keota Landing. Later that night Castleberry told their friend Justin Wingo, in DeRosa's presence, that they had just killed two people and how they had done it.26 The next day Castleberry and DeRosa drove to Corpus Christi, Texas, to the home of Castleberry's father.

The Plummer bodies were discovered the morning of October 3, 2000.27 On the morning of October 4, 2000, Scotty White, who was eighteen years old and a high school senior at the time, informed a teacher at his high school that he knew who killed the Plummers. Later that morning he met with Sheriff Kendall Ballew and investigator Shawn Ward, in the principal's office, and told them that...

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