682 F.3d 880 (10th Cir. 2012), 10-6062, Black v. Workman

Docket Nº:10-6062.
Citation:682 F.3d 880
Opinion Judge:HARTZ, Circuit Judge.
Party Name:Johnny Dale BLACK, Petitioner-Appellant, v. Randall G. WORKMAN, Oklahoma State Penitentiary, Respondent-Appellee.
Attorney:Randy A. Bauman, Assistant Federal Public Defender, (Sarah M. Jernigan, Assistant Federal Public Defender, with him on the briefs), Office of the Federal Public Defender, Western District of Oklahoma, Oklahoma City, OK, for Petitioner-Appellant. Seth S. Branham, Assistant Attorney General, Office...
Judge Panel:Before LUCERO, HARTZ, and O'BRIEN, Circuit Judges.
Case Date:June 14, 2012
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

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682 F.3d 880 (10th Cir. 2012)

Johnny Dale BLACK, Petitioner-Appellant,


Randall G. WORKMAN, Oklahoma State Penitentiary, Respondent-Appellee.

No. 10-6062.

United States Court of Appeals, Tenth Circuit.

June 14, 2012

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Randy A. Bauman, Assistant Federal Public Defender, (Sarah M. Jernigan, Assistant Federal Public Defender, with him on the briefs), Office of the Federal Public Defender, Western District of Oklahoma, Oklahoma City, OK, for Petitioner-Appellant.

Seth S. Branham, Assistant Attorney General, Office of the Attorney General for the State of Oklahoma, Oklahoma City, OK, for Respondent-Appellee.

Before LUCERO, HARTZ, and O'BRIEN, Circuit Judges.


HARTZ, Circuit Judge.

Defendant Johnny Black was convicted of first-degree murder and battery with a dangerous weapon because of his role in an assault that left Bill Pogue dead and Rick Lewis suffering from 13 stab wounds. On the recommendation of the jury, Defendant received a death sentence on the first-degree murder conviction.

After unsuccessfully appealing to the Oklahoma Court of Criminal Appeals (OCCA) and pursuing two postconviction proceedings in state court, Defendant unsuccessfully applied for relief under 28 U.S.C. § 2254 in the United States District Court for the Western District of Oklahoma. He appeals the district court's decision,

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raising 14 claims: (1) the trial court improperly dismissed at voir dire two jurors who had reservations about the death penalty; (2) the prosecutor struck an African-American man from the jury pool on account of race; (3) the trial court did not properly instruct the jury on the relationship between first-degree murder and manslaughter; (4) trial counsel was ineffective during closing argument for undercutting the defense that Defendant was guilty only of manslaughter; (5) trial counsel was ineffective for failing to investigate and present evidence on Mr. Pogue's health and ability to avoid a confrontation with Defendant and his companions; (6) a juror improperly told the other jurors about his personal knowledge of the crime scene; (7) the prosecutors made comments during guilt-and sentencing-stage closing arguments that improperly invoked sympathy for the victim, improperly stated the prosecutors' motives and religious faith, diminished the jury's sense of responsibility, and undermined Defendant's right to an individualized sentence; (8) the cumulative effect of all errors rendered his trial unfair; (9) trial counsel was ineffective for failing to investigate and present evidence of Defendant's brain damage; (10) trial counsel was ineffective for failing to pursue Defendant's " defense of brother" theory; (11) trial counsel was ineffective for failing to object to the introduction of victim-sympathy evidence; (12) the trial court improperly excluded the testimony of Defendant's brother during the penalty phase of trial; (13) the trial court failed to give a " defense of brother" instruction; and (14) appellate counsel was ineffective for failing to raise on direct appeal Defendant's claims 9, 10, 11, 12, and 13. On claims one through eight we affirm on the merits, generally because the OCCA did not unreasonably apply federal law in rejecting these claims. On the remaining claims the district court denied relief on the ground of procedural bar. Before we can determine whether we agree with the district court, we need to resolve a question of Oklahoma procedural law— whether Oklahoma's bar of Defendant's second postconviction application was independent of federal law or instead required the OCCA to examine the merits of Defendant's federal constitutional claims. We are therefore certifying a question of state law to the OCCA and abating this appeal pending consideration by the OCCA of our certification request.


A. Factual Background

On the evening of January 4, 1998, Defendant was at the home of his brother Jesse Black watching a professional football game with Jesse, brother Jimmy Black, Robert Seale, and several others. A nervous Cal Shankles came by to ask for assistance in finding his brother. He added that he needed protection because Justin Hightower was after him for having an affair with Mr. Hightower's soon-to-be ex-wife. Mr. Shankles, the Black brothers, and Mr. Seale left the home in a green Neon. Defendant drove while the others watched for Mr. Hightower's vehicle, allegedly a black Blazer. The OCCA's opinion continues the account of the tragic attack on two men who happened to be driving a black Blazer in the wrong place at the wrong time:

[While Defendant and his companions were looking for Hightower,] Bill Pogue and his son-in-law, Rick Lewis, drove to Ringling in Pogue's black Blazer to buy some chewing tobacco at a local convenience store. On their way back to Pogue's home, they passed the Neon at an intersection and one of [the Neon's] passengers yelled something at Pogue's Blazer. The Neon turned around and pulled in behind Pogue traveling at a

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high rate of speed and flashing its lights. Shortly thereafter, the Neon passed Pogue's Blazer and stopped in front of it. It was disputed at trial whether the Neon blocked the roadway.

According to Rick Lewis, ... he and Pogue exited the Blazer. Lewis went around the back of the Blazer and came up behind Pogue. The four doors of the Neon opened and Jimmy Black, who was seated in the rear on the driver's side, got out and ran barreling towards [Lewis and Pogue]. In response, Pogue hit Jimmy Black in the face and the two began to wrestle towards and into the east bar ditch. Jesse Black and [Defendant] then ran towards Lewis, who hit Jesse Black, momentarily knocking Jesse down. Lewis was able to sidestep [Defendant] and throw him into the front of the Blazer. [Defendant] and Jesse Black then began fighting with Lewis in the west bar ditch. During the fight, Lewis looked up to see Cal Shankles with some type of club and felt a couple of blows to the head. Lewis did not remember seeing Shankles during the entirety of the fight and the evidence showed Shankles went from bar ditch to bar ditch alternately hitting Lewis and Pogue with some type of club. Lewis remembered seeing Robert Seale standing at the back of the Neon holding what looked like a tree branch, but never saw him fighting with anyone.

After several minutes of fighting, Lewis was able to break free and make his way to the east bar ditch where he saw Pogue on top of Jimmy Black and [Defendant] over Pogue's back. Lewis pushed [Defendant] off of Pogue and helped Pogue stand up and head toward the Blazer. Jesse Black then hit Lewis in the side of the head and said " that's for bustin' my lip." The Black brothers, Seale and Shankles then lined up behind the Neon yelling obscenities and taunting Lewis and Pogue. While Lewis assisted Pogue, who had been stabbed eleven times, into the Blazer, the Neon sped away. Although Lewis did not realize it during the fight, [Defendant] had stabbed him thirteen times with wounds to the back of Lewis' head, spine, chest, side, buttock, leg and arm. After loading Pogue into the Blazer, Lewis raced him back to the Pogue barn, where family members took over and rushed both men to the Healdton hospital. Lewis was treated for his injuries and was later transferred to Ardmore for care. Pogue died at the Healdton hospital.

The morning after the fight [Defendant] fled to Texas, where he was later apprehended and voluntarily confessed. Jesse and Jimmy Black, Robert Seale and Cal Shankles were also arrested and made voluntary statements. In [Defendant's] voluntary statement to police, he claimed he did not go with Shankles to fight, but to see " what the deal was." He claimed he never intended to kill Pogue and he did not understand why Lewis and Pogue attacked his brothers. He maintained he did not remember stabbing Lewis and that he simply reacted because he was afraid for his brothers, Jesse and Jimmy. He claimed when he went to Jimmy's aid, he told Pogue to get off his brother or he would " stab" or " cut" him. When Pogue did not move, he stabbed him. According to [Defendant], he and Pogue began to wrestle and roll around and Pogue kept rolling onto the knife. He maintained there was no intent to kill anyone and that his brothers did not know he used his knife.

Black v. State, 21 P.3d 1047, 1055-56 (Okla.Crim.App.2001) (footnote omitted).

B. Judicial Proceedings

On January 26, 1999, after three days of testimony, the jury convicted Defendant of

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first-degree murder and assault and battery with a dangerous weapon. The penalty-stage proceeding began the next day, and the jury returned a recommendation of the death sentence after an additional day of testimony. We will defer any description of events during the trial until discussion of the specific issues raised on appeal.

Defendant appealed to the OCCA, which affirmed his convictions and sentence. See Black, 21 P.3d 1047. The United States Supreme Court denied his petition for a writ of certiorari. See Black v. Oklahoma, 534 U.S. 1004, 122 S.Ct. 483, 151 L.Ed.2d 396 (2001). On October 18, 2000, while his direct appeal was pending, Defendant filed an application for postconviction relief in the OCCA. On May 23, 2001, the OCCA denied relief.

On October 22, 2002, Defendant filed his application under 28 U.S.C. § 2254. He raised the issues being pursued on this appeal and several others. 1 He also moved for discovery and for an evidentiary hearing.

In its response brief the State asserted that several of Defendant's claims should be rejected because they had not been exhausted in state...

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