705 F.3d 1167 (10th Cir. 2013), 11-6096, Lott v. Trammell

Docket Nº:11-6096.
Citation:705 F.3d 1167
Opinion Judge:BRISCOE, Chief Judge.
Party Name:Ronald Clinton LOTT, Petitioner-Appellant, v. Anita TRAMMELL, Interim Warden, Oklahoma State Penitentiary,[*] Respondent-Appellee.
Attorney:Randall Coyne, (Edna Asper Elkouri, Frank Elkouri, Professor of Law, University of Oklahoma College of Law, Norman, OK, and Lanita Henricksen of Henricksen & Henricksen Lawyers, Inc., Oklahoma City, OK, with him on the briefs), for Petitioner-Appellant. Robert Whittaker, Assistant Attorney Genera...
Judge Panel:Before BRISCOE, Chief Judge, GORSUCH and HOLMES, Circuit Judges.
Case Date:January 14, 2013
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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Page 1167

705 F.3d 1167 (10th Cir. 2013)

Ronald Clinton LOTT, Petitioner-Appellant,

v.

Anita TRAMMELL, Interim Warden, Oklahoma State Penitentiary,[*] Respondent-Appellee.

No. 11-6096.

United States Court of Appeals, Tenth Circuit.

January 14, 2013

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Randall Coyne, (Edna Asper Elkouri, Frank Elkouri, Professor of Law, University of Oklahoma College of Law, Norman, OK, and Lanita Henricksen of Henricksen & Henricksen Lawyers, Inc., Oklahoma City, OK, with him on the briefs), for Petitioner-Appellant.

Robert Whittaker, Assistant Attorney General (E. Scott Pruitt, Attorney General of Oklahoma, with him on the brief), Oklahoma City, OK, for Respondent-Appellee.

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

BRISCOE, Chief Judge.

This is a death penalty appeal involving two murders that were committed over twenty-five years ago. Petitioner Ronald Lott was convicted by an Oklahoma jury of two counts of first-degree murder in December 2001. The state trial court, in accordance with the jury's verdict, sentenced Lott to death on both counts in January 2002. After his direct appeal and application for state post-conviction relief were unsuccessful, Lott sought federal habeas relief by filing a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. The district court denied Lott's petition. Having been granted a certificate of appealability with respect to several issues, Lott now appeals. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we affirm the district court's denial of federal habeas relief.

I

The Fowler and Cutler murders

The basic facts of the murders committed by Lott were described by the Oklahoma Court of Criminal Appeals (OCCA) when ruling on Lott's direct appeal:

Sometime after 10:30 p.m., September 2, 1986, Anna Laura Fowler was attacked in her home, raped and murdered. Mrs. Fowler was 83 years old and lived alone. As a result of the attack, Mrs. Fowler suffered severe contusions on her face, arms and legs, and multiple rib fractures. She died from asphyxiation.

Zelma Cutler lived across the street from Mrs. Fowler. Mrs. Cutler was 93 years old and lived alone. During the early morning hours of January 11, 1987, Mrs. Cutler was attacked, raped and murdered in her home. Mrs. Cutler suffered severe contusions on her arms and legs as a result of the attack. She also suffered multiple rib fractures. Mrs. Cutler died from asphyxiation.

Lott v. State (Lott I), 98 P.3d 318, 327 (Okla.Crim.App.2004) (internal paragraph numbers omitted).

The OCCA's description, although accurate, fails to convey fully the brutal nature of the rapes and murders. In both instances, the victims were vaginally raped and orally sodomized. Further, the evidence presented at trial suggested that Fowler was anally raped and that the perpetrator attempted to anally rape Cutler as well. Lastly, the evidence presented at trial suggested that the rib fractures sustained by Fowler and Cutler occurred as a result of the perpetrator sitting directly on their chests and either orally sodomizing them and/or suffocating them with pillows after the attack.

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Post-crime events leading to Lott's identification

Notably, another individual, Robert Miller, was initially arrested, charged, and convicted of the Fowler and Cutler murders. Id. But, notwithstanding Miller's arrest, two additional elderly women living in the Oklahoma City area were attacked and raped in their homes, in a manner similar to the attacks on Fowler and Cutler. And Lott proved to be responsible for those crimes:

Subsequent to Miller's arrest, Grace Marshall was attacked and raped in her home on March 22, 1987. Eleanor Hoster was attacked and raped in her home on May 7, 1987. Both Mrs. Marshall and Mrs. Hoster were elderly ladies who lived alone. With the exception that Mrs. Marshall and Mrs. Hoster were not killed after being raped, there were striking similarities between the attacks on the four women. [Lott] was arrested, charged, and ultimately plead [sic] guilty to committing the rapes against Mrs. Marshall and Mrs. Hoster.

Id.

In the early 1990s, DNA testing established that Lott, rather than Miller, had raped Fowler and Cutler. Id. At that time, Lott was still incarcerated and serving time in connection with the Marshall and Hoster rape convictions.

The state trial proceedings

On March 10, 1995, an amended information was filed in the District Court of Oklahoma County, Oklahoma, Case No. CF-87-963, jointly charging Lott and Miller with two counts of first-degree malice aforethought murder (Count 1 was for the murder of Fowler and Count 2 was for the murder of Cutler) and, in the alternative, with two counts of first-degree felony murder. On January 30, 1996, however, those charges were dismissed at the request of the State.

On or about March 19, 1997, the State reinstated the case by filing a third amended information against Lott and Miller. The trial court appointed the Oklahoma Indigent Defense System (OIDS) to represent Lott.

On March 20, 1998, the State filed a bill of particulars asserting that Lott " should be punished by death ... due to and as a result of" the existence of three " aggravating circumstance(s)" : (1) the murders were " especially heinous, atrocious, or cruel" ; (2) the murders were " committed for the purpose of avoiding or preventing a lawful arrest or prosecution" ; and (3) " [t]he existence of a probability that [Lott] would commit criminal acts of violence that would constitute a continuing threat to society." State R., Vol. II, at 249.

On November 13, 2000, the State filed a fourth amended information. Although the fourth amended information continued to charge Lott with two counts of first-degree malice aforethought murder and, in the alternative, two counts of first-degree felony murder, the charging language differed significantly from that of the third amended information. Whereas the third amended information alleged that the first-degree malice aforethought murder counts, as well as the felony murder counts, were " feloniously committed ... by Robert Lee Miller Jr. and Ronald Clinton Lott ... acting jointly [and] willfully," id., Vol. I, at 47, the fourth amended information (a) omitted from the first-degree malice aforethought murder charges the allegations that Lott acted jointly with Miller, thus leaving only Lott as the named defendant in those counts, and (b) altered the felony murder counts to allege that Lott was " aided and abetted by ... Miller." Id., Vol. IV, at 735.

The case proceeded to trial on October 29, 2001. But a mistrial occurred:

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In the middle of trial, the State requested a continuance when the medical examiner revealed he had evidence in his possession that had never been tested. The State requested the continuance so LabCorp could test the newly discovered evidence. The defense requested a mistrial. The State agreed to the mistrial if the defense would agree to stipulate to a continuance and stipulate to the chain of custody. The mistrial was granted and the trial rescheduled for December 3, 2001.

Lott I, 98 P.3d at 328 n. 3.

The December 2001 trial proceeded as scheduled. At the conclusion of the first-stage evidence, the jury found Lott guilty of both murders. At the conclusion of the second-stage proceedings, the jury found, with respect to each of the counts of conviction, the existence of two of the three alleged aggravating circumstances: that the murders were especially heinous, atrocious, or cruel, and that the murders were committed for the purpose of avoiding or preventing a lawful arrest or prosecution. The jury in turn fixed Lott's punishment at death for each of the two counts of conviction.

On January 18, 2002, the state trial court formally sentenced Lott to death for each of the two murder convictions. Judgment in the case was entered that same day.

Lott's direct appeal

Lott filed a direct appeal asserting seventeen propositions of error. On September 9, 2004, the OCCA issued a published opinion affirming Lott's convictions and death sentences.

Lott filed a petition for writ of certiorari with the United States Supreme Court, but his petition was denied on March 28, 2005. Lott v. Oklahoma, 544 U.S. 950, 125 S.Ct. 1699, 161 L.Ed.2d 528 (2005).

Lott's application for state post-conviction relief

On August 9, 2004, Lott filed with the OCCA an application for post-conviction relief, as well as a motion for an evidentiary hearing and discovery. On November 22, 2004, the OCCA issued an opinion denying Lott's application for post-conviction relief and his motion for an evidentiary hearing and discovery.

Lott's federal habeas proceedings

Lott initiated these federal habeas proceedings on August 4, 2005, by filing a petition for writ of habeas corpus, as well as motions for appointment of counsel and to proceed in forma pauperis. The district court granted Lott's motion for appointment of counsel. On February 17, 2006, Lott's appointed counsel filed a petition on Lott's behalf asserting twenty-two grounds for relief.

On March 31, 2011, the district court issued a memorandum opinion denying Lott's petition. The district court entered judgment in the case that same day, and also issued an order granting Lott a certificate of appealability (COA) with respect to seven of the twenty-two grounds raised in his petition.

On April 7, 2011, Lott filed a notice of appeal. We subsequently granted Lott a COA as to three additional issues. Lott has since filed an appellate brief asserting a total of eight propositions of error.

II

Standards of review

Our review of Lott's appeal is governed by the provisions of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). Snow v. Sirmons, 474 F.3d 693, 696 (10th Cir.2007). Under AEDPA, the standard of review applicable to a...

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