711 F.3d 1218 (10th Cir. 2013), 11-6040, Lockett v. Trammel

Docket Nº:11-6040.
Citation:711 F.3d 1218
Opinion Judge:MATHESON, Circuit Judge.
Party Name:Clayton LOCKETT, Petitioner-Appellant, v. Anita TRAMMEL, Interim Warden,[*] Oklahoma State Penitentiary, Respondent-Appellee.
Attorney:O. Dean Sanderford, Denver, CO (David B. Autry, Oklahoma City, OK, Raymond P. Moore, Federal Public Defender, and Jill M. Wichlens, Assistant Federal Public Defender, Office of the Federal Public Defender for the District of Colorado and Wyoming, Denver, CO, with him on the briefs), appearing for...
Judge Panel:Before KELLY, TYMKOVICH, and MATHESON, Circuit Judges.
Case Date:April 01, 2013
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

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711 F.3d 1218 (10th Cir. 2013)

Clayton LOCKETT, Petitioner-Appellant,

v.

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

No. 11-6040.

United States Court of Appeals, Tenth Circuit.

April 1, 2013

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O. Dean Sanderford, Denver, CO (David B. Autry, Oklahoma City, OK, Raymond P. Moore, Federal Public Defender, and Jill M. Wichlens, Assistant Federal Public Defender, Office of the Federal Public Defender for the District of Colorado and Wyoming, Denver, CO, with him on the briefs), appearing for Appellant.

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Jennifer J. Dickson, Assistant Attorney General of Oklahoma (E. Scott Pruitt, Attorney General of Oklahoma, with her on the brief), Office of the Attorney General of Oklahoma, Oklahoma City, OK, appearing for Appellee.

Before KELLY, TYMKOVICH, and MATHESON, Circuit Judges.

MATHESON, Circuit Judge.

In August 2000, an Oklahoma state court jury convicted Clayton Lockett of 19 counts, including burglary, assault, rape, and first degree murder. He was sentenced to 2,285 years and 90 days of imprisonment for his non-capital crimes and sentenced to death for his murder conviction. The Oklahoma Court of Criminal Appeals (" OCCA" ) affirmed Mr. Lockett's convictions and sentence and later denied post-conviction relief.

Mr. Lockett filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 in the United States District Court for the Western District of Oklahoma. He challenged his conviction and death sentence on 15 grounds. The federal district court denied relief but granted a certificate of appealability (" COA" ) on seven grounds. Mr. Lockett asks this court to grant a COA on three additional issues.

We affirm the district court's denial of habeas relief on all grounds. We also deny Mr. Lockett's request for a COA on additional grounds.

I. BACKGROUND

A. Factual History

The OCCA outlined the facts of Mr. Lockett's crimes, and " [w]e presume that the factual findings of the state court are correct" unless Mr. Lockett presents clear and convincing evidence otherwise. Fairchild v. Workman, 579 F.3d 1134, 1137 (10th Cir.2009); see also 28 U.S.C. § 2254(e)(1) (" [A] determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence." ).

As set forth by the OCCA, the relevant facts are as follows:

At around 10:30 p.m. on June 3, 1999, Bobby Bornt was asleep on the couch at his house in Perry, Oklahoma, when his front door was kicked in. Three men, [Petitioner], Shawn Mathis and Alfonzo Lockett, entered his house and immediately started beating and kicking him. Bornt recognized [Petitioner] because [Petitioner] had recently covered a tattoo for him. [Petitioner] was carrying a shotgun which he used to hit Bornt. After the beating, Bornt's attackers used duct tape to secure his hands behind his back and they gagged him and left him on the couch while they ransacked the house looking for drugs. As Bornt lay restrained on the couch his friend, Summer Hair, approached the open door. She was pulled inside, hit in the face and thrown against a wall. One of the men put a gun to her head and ordered her to call to her friend, Stephanie Neiman, who was outside sitting in her pickup. When Neiman came inside, they hit her several times to get the keys to her pickup and the code to disarm the alarm on her pickup.

The men put all three victims in the bedroom where Bornt's nine-month old son, Sam, had been sleeping. Alfonzo Lockett came into the bedroom and got Hair. He took her into the bathroom where he made her perform oral sodomy on him. He then took her into Bornt's bedroom where he told her to get undressed and he raped her. When he was finished, he left her there and [Petitioner] came into the bedroom. He raped her vaginally and anally and he

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made her perform oral sodomy on him. When he was finished, he told her to get dressed and she went back into Sam's bedroom with the others. Alfonzo Lockett came into the bedroom and used duct tape to secure Hair's and Neiman's hands behind their backs. He also put tape across their mouths.

[Petitioner] instructed Mathis to look in the garage for a shovel. When he returned with a shovel, the victims were loaded into Bornt's and Neiman's pickups. Bornt and his son were placed in his pickup with [Petitioner]. Hair and Neiman were placed in Neiman's pickup with Mathis and Alfonzo Lockett. They took off driving with [Petitioner] in the lead. They left Perry and drove to a rural area in Kay County. [Petitioner] stopped on a country road where he got out of the pickup he was driving and went over to Neiman's pickup. He made Hair get out and go with him to a ditch where he raped her and forced her to perform oral sex on him. When he was finished, he took her back to Bornt's pickup. While Hair was sitting in the pickup, Mathis got her and took her back to Neiman's pickup where he made her perform oral sex on him. He grabbed her head and said, " In order for you to live, this is what you have got to do."

While stopped on the country road, [Petitioner] told Mathis to get the shovel and start digging. When Mathis was digging in the ditch, Bornt heard [Petitioner] say, " Someone has got to go." Neiman was taken to the hole dug by Mathis and [Petitioner] shot her. The gun jammed and [Petitioner] came back up to the pickup to fix it. While he was doing this, Bornt could hear Neiman's muffled screams. When the gun was fixed, [Petitioner] went back down to the ditch and shot Neiman again. While Mathis buried Neiman's body, [Petitioner] and Alfonzo Lockett warned Bornt and Hair that if they told anyone they would be killed too. They then drove both pickups to another location where they left Neiman's pickup. All of them rode back to Bornt's house in his pickup. [Petitioner], Mathis and Alfonzo Lockett dropped off Bornt, his son and Hair at Bornt's house and they left in Bornt's pickup.

The following day, Bornt and Hair told the Perry police what had happened. Neiman's pickup and her body were recovered and [Petitioner], Mathis and Alfonzo Lockett were subsequently arrested. [Petitioner] was interviewed by the police three times. The first time he terminated the interview and asked for an attorney. He later reinitiated the interview and although he denied shooting Neiman during the second interview, he confessed to having killed her in a third interview.

Lockett v. Oklahoma, 53 P.3d 418, 421-22 (Okla.Crim.App.2002).

Mr. Lockett presents additional facts in his brief to challenge the OCCA's inferences on several issues, which we address later as they become relevant to our discussion.

B. Procedural History

1. Mr. Lockett's Trial: Guilt Phase

The State charged Mr. Lockett with 19 counts: Conspiracy (Count 1), First Degree Burglary (Count 2), Assault with a Dangerous Weapon (Counts 3, 4 and 5), Forcible Oral Sodomy (counts 6, 15, and 16), First Degree Rape (Counts 7, 8, 9, and 14), Kidnapping (Counts 10, 11, 12, and 13), Robbery by Force and Fear (Counts 17 and 18), and Murder in the First Degree (Count 19).

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a. The State's Evidence

At trial, the State introduced a videotaped confession by Mr. Lockett, in which he provided a lengthy and detailed narrative of the evening's events. He confessed to going to Mr. Bornt's home to rob him; to personally hitting and beating Mr. Bornt, Ms. Hair, and Ms. Neiman with his fists or with the shotgun; to binding the victims with duct tape; to planning to kill all three adult victims; to forcing them (along with the baby) to leave Mr. Bornt's house and go to the country, where the adults were to be killed; to taking Ms. Neiman's and Mr. Bornt's trucks; to being the ultimate decision maker as to which victims would be killed; to instructing Mr. Mathis on how to dig the grave; to personally shooting Ms. Neiman while she cried; to threatening to kill them if they told anyone of his crimes; and to insisting that his accomplices bury Ms. Neiman when he knew she was still alive.

Mr. Lockett denied sexually assaulting Ms. Hair at the house or at the murder site. He also denied any knowledge of Alfonzo Lockett sexually assaulting Ms. Hair, but he admitted knowing that Mr. Mathis had sexually assaulted her at the murder site.

Mr. Lockett claimed to have done several things to help the victims. For example, he said that he held, comforted, and fed Mr. Bornt's young son at the house and made sure that the child's diaper was changed at the murder site. He said that he had massaged Mr. Bornt's legs after removing the tape because they had become numb while he was bound. He also said that he and his accomplices had cleaned Mr. Bornt's house when they returned from the country and that he had expressed concern about Mr. Bornt's head injury and urged him to seek medical attention.

Throughout the videotaped confession, Mr. Lockett's demeanor was relaxed and conversational. He made no statements of remorse. The federal district court described the confession as " a step-by-step account of the evening," which Mr. Lockett delivered " [w]ith clarity, detail and the absence of emotion." Lockett, CIV-03-734-F at 14. Mr. Lockett explained that he initially planned to kill all of his adult victims so that the police would not find out that he had violated his probation by leaving his home county. He said that he ultimately decided to kill Ms. Neiman because she said that she would tell the police about his crimes. He calmly spoke of watching his accomplices bury Ms. Neiman while she was still alive, describing her coughing while the dirt hit her face.

The surviving adult victims, Mr. Bornt and Ms. Hair, also testified. Their testimony was largely consistent with Mr. Lockett's confession with...

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