Smith v. Duckworth

• Decision Date: 06 June 2016
• Docket Number: No. 14–6201,14–6201
• Citation: 824 F.3d 1233
• Parties: Michael DeWayne Smith, Petitioner–Appellant, v. Kevin Duckworth,Interim Warden, Oklahoma State Penitentiary, Respondent–Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

824 F.3d 1233

Michael DeWayne Smith, Petitioner–Appellant

v.Kevin Duckworth^* Interim Warden, Oklahoma State Penitentiary, Respondent–Appellee.

No. 14–6201

United States Court of Appeals, Tenth Circuit.

June 6, 2016

Emma V. Rolls, Assistant Public Defender (Patti Palmer Ghezzi, Assistant Federal Public Defender, with her on the briefs), Office of the Public Defender, Oklahoma City, Oklahoma, for Petitioner–Appellant.

Thomas Lee Tucker (E. Scott Pruitt, Attorney General of Oklahoma, and Robert Whittaker, Assistant Attorney General on the brief), Office of the Attorney General for the State of Oklahoma, Oklahoma City, Oklahoma, for Respondent–Appellee.

Before BRISCOE, HOLMES, and McHUGH, Circuit Judges.

McHUGH, Circuit Judge.

I. INTRODUCTION

Michael DeWayne Smith was charged with two counts of murder for the killings of Sarath Pulluru and Janet Moore. He was convicted and sentenced to death. The Oklahoma Court of Criminal Appeals affirmed his convictions on direct appeal and denied his two applications for postconviction relief. Mr. Smith sought a writ of habeas corpus in federal district court, arguing, as relevant here, that he is ineligible for the death penalty because he is intellectually disabled, that the state trial court had erred in admitting Mr. Smith's videotaped confession to the murders at trial, that his trial counsel had rendered ineffective assistance in the presentation of his mitigation case, and that cumulative error rendered his trial unfair.¹ The district court denied habeas relief, and Mr. Smith appealed.

We granted Mr. Smith's request for a certificate of appealability on these four issues, and we now affirm the district court's judgment. Mr. Smith has failed to demonstrate that the Oklahoma Court of Criminal Appeals' rejection of his claims was contrary to or involved an unreasonable application of clearly established federal law. Thus, applying the deferential standard mandated by the Antiterrorism and Effective Death Penalty Act, we affirm the district court's denial of habeas relief.

II. BACKGROUND

A. Factual Background²

Petitioner Michael DeWayne Smith is a member of the Oak Grove Posse (OGP), a subset of the Crips gang that operates in Oklahoma City. In November 2000, Teron “T–Nok” Armstrong and two other members of the OGP attempted to rob Tran's Food Mart in south Oklahoma City. The store owner shot and killed Mr. Armstrong. Mr. Smith was not involved in the robbery but had “close personal ties” to Mr. Armstrong. Smith v. State (Smith I ), 157 P.3d 1155, 1161 (Okla. Crim. App. 2007).

The other two would-be robbers were later arrested and were set to be tried for the robbery in February 2002. Two days before the trial, Mr. Smith, armed with a .357 revolver, went to the apartment of Janet Moore. Believing Ms. Moore's son was a police informant, Mr. Smith kicked in her door and confronted her. When she began to scream, Mr. Smith shot her to death. Before leaving, Mr. Smith wiped down the apartment to eliminate any fingerprint evidence.

Mr. Smith next went to the A–Z Mart, a convenience store “immediately next door” to Tran's Food Mart—the site of the earlier failed robbery attempt. Id. at 1161. Mr. Smith “emptied two pistols into” the clerk on duty, Sarath Pulluru, took money from the register, and then used lighter fluid to set fires around the store. Id. He set fire to Mr. Pulluru's body and “whatever he had touched in the A–Z Mart to destroy evidence.” Id. at 1162. Afterward he disposed of the clothes he had worn during the murders.

Mr. Smith returned home early the next morning and reported to his roommate that he had killed Janet Moore, had “done something else to ‘take care of business,’ ” and had “avenged his family.” Id. at 1161. A couple of hours later, Mr. Smith went to the home of Sheena Johnson. He told her that he had killed Ms. Moore because her son had been “snitching” and that he had “killed a person at a ‘chink’ store” because someone connected to the A–Z Mart “had been on television ‘dissing’ his set” in response to the earlier attempted robbery. Id. Ms. Johnson later reported this conversation to police, who had already taken Mr. Smith into custody on a different matter.

Three days after Mr. Smith was arrested, detectives interviewed him about the killings. He signed a written waiver of his Miranda rights³ and agreed to talk to the detectives. After initially denying his involvement, Mr. Smith admitted to both murders, explaining that he “killed both victims in retaliation for wrongs done him or his family.” Id. He explained that he went to Ms. Moore's apartment looking for her son but ended up killing her when she “panicked and started screaming.” Id. And he stated that he killed Mr. Pulluru “in retaliation against the store owner who shot Armstrong and in retaliation for disrespectful comments about Armstrong in the press attributed to someone from the A–Z Mart.” Id. He further admitted that he had disposed of the clothes he wore during the murders, wiped down Ms. Moore's apartment to eliminate fingerprints, and set fires in the A-Z Mart to destroy evidence. Mr. Smith's confession was videotaped.

B. Procedural Background

1. Trial and Direct Appeal

The State of Oklahoma charged Mr. Smith with two counts of murder, burglary, robbery with a firearm, and arson. The state trial court held a pretrial hearing to determine the validity of Mr. Smith's Miranda waiver and the admissibility of Mr. Smith's videotaped confession. At the hearing, Mr. Smith put on evidence that he was “a long term PCP user” and admitted to being under the influence of PCP at the time of his arrest. Id. at 1171. An expert witness testified for the defense and opined that Mr. Smith could have still been under the influence of PCP at the time of his interrogation conducted three days after his arrest. Mr. Smith also sought to elicit testimony regarding his low intelligence and information processing deficits from Dr. Faust Bianco, a neuropsychologist. Mr. Smith proffered Dr. Bianco's opinion that Mr. Smith's “functioning at a borderline or low average [IQ] range with deficiencies in the information processing speed and the influence of the chronic and current PCP use would affect his ability to understand the Miranda warnings and more importantly to understand the consequences of waiving those warnings.”

The trial court rejected the offer of proof, stating that “there are many indicia[ ] demonstrat[ing] that this Defendant possessed intelligence” and “demonstrated in many different ways his understanding of what was going on.” The trial court reasoned that “testimony regarding [Mr. Smith's] specific IQ range would [not] be relevant” and excluded Dr. Bianco's testimony. Relying on its own observations of Mr. Smith's demeanor over the course of the two-hour recorded interview, the trial court concluded that Mr. Smith had knowingly and voluntarily waived his Miranda rights and that his videotaped confession was therefore admissible.

The case proceeded to trial, and the jury returned a guilty verdict on all five counts. In the penalty phase for Mr. Smith's murder convictions, the State sought to prove two aggravating circumstances: (1) that “each murder was especially heinous, atrocious or cruel,” and (2) that “there existed a probability that Smith would commit future acts of violence constituting a continuing threat to society.” Id. at 1160 & n. 1. Defense counsel presented a mitigation defense centered on Mr. Smith's inability to cope with his father's death, leading to his increased involvement with gangs. The jury found both aggravating circumstances for each killing and fixed Mr. Smith's punishment as death for each count. The trial court accordingly sentenced Mr. Smith to death.

Mr. Smith appealed, arguing his waiver of Miranda rights was invalid because the trial court refused to receive evidence of his low intelligence in evaluating the validity of that waiver. The Oklahoma Court of Criminal Appeals (the OCCA) rejected that claim and affirmed Mr. Smith's conviction and sentence on direct appeal. Id. at 1171–72, 1180. Mr. Smith petitioned the United States Supreme Court for a writ of certiorari, which the Court denied. Smith v. Oklahoma , 552 U.S. 1191, 128 S.Ct. 1232, 170 L.Ed.2d 79 (2008).

2. Postconviction Proceedings

Mr. Smith next filed his first Application for Post–Conviction Relief with the OCCA. He argued that his trial counsel rendered ineffective assistance in the penalty phase by failing to fully investigate and present evidence of his family and social history, including evidence of harsh discipline or physical abuse, early and consistent exposure to drugs, and childhood head injuries. The OCCA denied relief in an unpublished order.

Mr. Smith then petitioned the federal district court for a writ of habeas corpus under 28 U.S.C. § 2254. In that petition, Mr. Smith argued he was intellectually disabled and therefore ineligible for the death penalty under Atkins v. Virginia,⁴ the OCCA had unreasonably determined that his Miranda waiver was valid, and his trial counsel had rendered ineffective assistance in the mitigation phase by failing to present evidence of his troubled upbringing, intellectual disability, and substance abuse. With his habeas petition pending in federal court, Mr. Smith filed a second Application for Post–Conviction Relief with the OCCA, seeking to exhaust his Atkins claim and his ineffective-assistance claim based on failure to present intellectual-disability and substance-abuse evidence. The OCCA denied this second application in a published decision, Smith v. State (Smith II ), 245 P.3d 1233 (Okla. Crim. App. 2010).

Mr. Smith then returned to federal court and sought adjudication of his habeas petition. The district court denied relief, ruling that Mr. Smith was not intellectually disabled and had not shown the OCCA's decisions with respect to his Miranda waiver or ineffective-assistance claim were contrary to or an unreasonable application of clearly established federal law. The...