797 F.3d 810 (10th Cir. 2015), 13-5100, Hanson v. Sherrod

Docket Nº:13-5100
Citation:797 F.3d 810
Opinion Judge:PHILLIPS, Circuit Judge.
Party Name:JOHN FITZGERALD HANSON, Petitioner - Appellant, v. WILLIAM A. SHERROD, Warden, U.S. Penitentiary, USP Pollock, Louisiana; E. SCOTT PRUITT, Attorney General of Oklahoma, Respondents - Appellees
Attorney:Sarah M. Jernigan, Assistant Federal Public Defender (T. Kenneth Lee, Assistant Federal Public Defender, and Randy A. Bauman, Assistant Federal Public Defender, with her on the briefs), Office of the Federal Public Defender, Oklahoma City, Oklahoma for Petitioner-Appellant. Robert Whittaker, Assi...
Judge Panel:Before HARTZ, TYMKOVICH, and PHILLIPS, Circuit Judges.
Case Date:August 13, 2015
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

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797 F.3d 810 (10th Cir. 2015)

JOHN FITZGERALD HANSON, Petitioner - Appellant,


WILLIAM A. SHERROD, Warden, U.S. Penitentiary, USP Pollock, Louisiana; E. SCOTT PRUITT, Attorney General of Oklahoma, Respondents - Appellees

No. 13-5100

United States Court of Appeals, Tenth Circuit

August 13, 2015

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Sarah M. Jernigan, Assistant Federal Public Defender (T. Kenneth Lee, Assistant Federal Public Defender, and Randy A. Bauman, Assistant Federal Public Defender, with her on the briefs), Office of the Federal Public Defender, Oklahoma City, Oklahoma for Petitioner-Appellant.

Robert Whittaker, Assistant Attorney General (E. Scott Pruitt, Attorney General for the State of Oklahoma, with him on the brief) Office of the Attorney General for the State of Oklahoma, Oklahoma City, Oklahoma, for Respondents-Appellees.

Before HARTZ, TYMKOVICH, and PHILLIPS, Circuit Judges.


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PHILLIPS, Circuit Judge.

This appeal arises out of the murders of Jerald Thurman and Mary Bowles in Tulsa, Oklahoma. At trial, a jury convicted defendant John Hanson for the murder of Mary Bowles with malice aforethought and for the felony murder of Thurman. At the penalty phase, the jury found three aggravating circumstances related to Bowles's murder. Upon the jury's verdict, the trial court sentenced Hanson to death. See Okla. St. tit. 22, § 1007 (2015).

On direct appeal, the Oklahoma Court of Criminal Appeals (" OCCA" ) reversed Hanson's death sentence and remanded for a new sentencing hearing. Hanson v. State (Hanson I), 2003 OK CR 12, 72 P.3d 40, 55 (Okla.Crim. App. 2003). At the resentencing hearing, the jury again sentenced Hanson to death for Bowles's murder. Hanson appealed his sentence to the OCCA, which struck the jury's finding of the great-risk-of-death aggravator but still affirmed his sentence. Hanson v. State (Hanson II), 2009 OK CR 13, 206 P.3d 1020, 1033, 1036 (Okla.Crim. App. 2009).

After the OCCA denied Hanson's application for collateral relief, Hanson filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254. The district court denied the petition, but it granted him a certificate of appealability (" COA" ) to pursue several arguments before this court. We also granted a COA on all of his remaining issues.

Before us, Hanson argues five general issues. He asserts six instances of ineffective assistance of both trial and appellate counsel and two instances of prosecutorial misconduct. He also argues that we should invalidate his death sentence because the OCCA invalidated the great-risk-of-death aggravator. He also claims there was an error in the jury instruction on mitigating evidence that impermissibly limited the jurors' consideration of mitigation evidence. Finally, he raises cumulative error.

Exercising jurisdiction under 28 U.S.C. § § 1291 and 2253(a), we conclude that none of Hanson's arguments merit relief. Accordingly, we affirm the district court's denial of the habeas petition.


The following set of facts detail John Hanson's and Victor Miller's murderous exploits and later crime spree before their eventual arrests. It begins and ends with Mary Bowles, an older woman and volunteer at Saint Francis's hospital, who frequently walked around the Promenade Mall for exercise. On August 31, 1999, Hanson and Miller carjacked Bowles's car, with her in it, from outside the Mall in Tulsa, Oklahoma. Hanson II, 206 P.3d at 1025. Hanson, as usual, carried his 9 millimeter semiautomatic pistol, and Miller carried his .38 revolver. Id. Miller drove the car, with Hanson and Bowles in the backseat, to an isolated area near a dirt pit that Jerald Thurman owned. Id. Thurman was at the pit loading a dump truck with dirt for delivery. Id. He was talking to his nephew, James Moseby, on his cell phone when he saw Bowles's car circling in the pit. Id. After Thurman and Moseby ended their call, Miller shot Thurman four times with his .38 revolver, including one shot to the head. Id. Throughout this time, Bowles remained in the car. Id. Moseby arrived at the dirt pit about ten minutes after the phone conversation, where he found Thurman lying on the ground, unconscious, with multiple gunshot wounds. Thurman died from his wounds two weeks later. Id.

Meanwhile, Miller drove the car a short distance away from the pit, heading south on what is commonly known as Peanut

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Road and told Hanson, " You know what you have to do." Hanson v. Sherrod ( Hanson III ), No. 10-CV-0113-CVE-TLW, 2013 WL 3307111, at *8 (N.D. Okla. July 1, 2013) (unpublished). On Peanut Road, Hanson removed Bowles from the car and shot her multiple times with his 9 millimeter semiautomatic pistol. Hanson II, 206 P.3d at 1025. Her significantly decomposed body was discovered on September 7, with a bullet in the right side of her chest. The state's forensic pathologist testified that Bowles suffered " without a doubt four and, likely, six" gunshot wounds. The police found two spent cartridges at the scene of Bowles's murder, one .38 special and one 9 millimeter.

After Hanson killed Bowles, Miller and Hanson drove the car a few miles down the road and registered at the Oasis Motel. Hanson II, 206 P.3d at 1025. Miller called his wife and asked her to bring him a rag. She complied, and he used the rag to wipe down the inside of the car. Miller and Hanson then abandoned the car at the motel. Id. This was not the end of Hanson's and Miller's criminal pursuits.1

On September 3, Hanson and Miller robbed Dreamland Video Store at gunpoint. Hanson III, 2013 WL 3307111, at *1 (citing Hanson II, 206 P.3d at 1025). They entered the store and looked around for a few minutes. Hanson pulled his gun, a 9 millimeter semiautomatic, on one of the store's patrons. He forced the patron to enter a side room and lay face down on the ground. Hanson placed his gun against the patron's back, moved it up to his head, and finally tied the patron's wrists and ankles with duct tape. Next, Hanson removed the patron's wallet from his pants and placed the barrel of the gun against his neck. Hanson then left the room, shutting the patron inside. Soon afterward, Hanson and Miller fled from the store.

On September 8, a few days later, Hanson and Miller robbed the Tulsa Federal Employees Credit Union at gunpoint. Hanson again carried his 9 millimeter pistol, and Miller carried his .38 revolver. The two men entered the bank and got in line for the bank teller. Stepping up to the counter, Hanson passed the bank teller a note, which read: " Do not panic. Don't hit any buttons. If you do, you will be the first killed. And then the rest will follow in bloodshed. Put all the money in a brown envelope--[manila] envelope." Tr. Trans. II, Vol. VIII at 1618. He also pointed to his weapon so she would know that he was armed. Hanson passed her the envelope, and she filled it with money, including a dollar bill that alerts the FBI and a dye pack. After she handed the envelope back, Hanson and Miller fled the bank.

Finally the next day, law enforcement put an end to Hanson and Miller's armed-felony binge. Miller's wife, Phyllis, had been the driver for their robbery of the credit union. After the robbery, Miller and Phyllis got into an argument, and Miller " tore up" the car. Tr. Trans. I, Vol. IX at 1569. Miller and Hanson then retreated to the Muskogee Econo Lodge, and Phyllis called a " wrecker" to take her back to where she was staying at a Motel 6. Id. at 1570. When she arrived, she went to a pay phone and called Crime Stoppers to tell them that she knew who had committed

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the bank robbery. At trial, she testified that she did so because she " didn't want to get in trouble." Id. at 1571. The next morning, fearing for her safety, she called Crime Stoppers again to see if they had arrested the men. She explained at trial that, the day before their argument, Miller had pulled a gun on her. She also called because she had more information--she had seen Bowles's car at the Oasis Motel. All told, she told the police where they could locate Hanson and Miller.

Soon after receiving Miller's information, one team of officers went to Bowles's car and lifted Hanson's fingerprint from the driver's side seatbelt, and Miller's fingerprint from the front passenger seatbelt. Another team of officers arrived at the motel to arrest Hanson and Miller. At 6:00 a.m., the " entry team" of police officers went up to the Lodge and " staged up." Tr. Trans. I, Vol. VIII at 1335, 1345. After evacuating all motel rooms except for two, a hostage negotiator called to tell the officers that they had " made contact" with Room 135 and 141 and had demanded that the occupants come out. Id. at 1336. In response, an older black male walked out of Room 141. The police took him into custody.2 About 15 minutes later, Miller came out of Room 135, and the police took him into custody. In contrast, an uncooperative Hanson barricaded himself in Room 135, refusing to communicate or come out.

Throughout the day, an FBI negotiator made four or five approaches to the room, trying to make contact. The police officers would approach the door and " stage outside" Room 135, and the FBI negotiator would yell into the room trying to make contact. Id. at 1338. Hanson did not respond to any of these entreaties or the officers' numerous telephone calls...

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