886 F.3d 874 (10th Cir. 2018), 14-6131, Grant v. Royal

Docket Nº:14-6131
Citation:886 F.3d 874
Opinion Judge:HOLMES, Circuit Judge.
Party Name:Donald Anthony GRANT, Petitioner-Appellant, v. Terry ROYAL, Warden, Oklahoma State Penitentiary,[*] Respondent-Appellee.
Attorney:Patti Palmer Ghezzi, Assistant Federal Public Defender (Michael Lieberman, Assistant Federal Public Defender, with her on the briefs), Oklahoma City, Oklahoma, for Petitioner-Appellant. Caroline E.J. Hunt, Assistant Attorney General (E. Scott Pruitt, Attorney General of Oklahoma, with her on the ...
Judge Panel:Before HOLMES, BACHARACH, and MORITZ, Circuit Judges. MORITZ, J., dissenting.
Case Date:March 30, 2018
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

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886 F.3d 874 (10th Cir. 2018)

Donald Anthony GRANT, Petitioner-Appellant,


Terry ROYAL, Warden, Oklahoma State Penitentiary,[*] Respondent-Appellee.

No. 14-6131

United States Court of Appeals, Tenth Circuit

March 30, 2018

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Appeal from the United States District Court for the Western District of Oklahoma, (D.C. No. 5:10-CV-00171-F)

Patti Palmer Ghezzi, Assistant Federal Public Defender (Michael Lieberman, Assistant Federal Public Defender, with her on the briefs), Oklahoma City, Oklahoma, for Petitioner-Appellant.

Caroline E.J. Hunt, Assistant Attorney General (E. Scott Pruitt, Attorney General of Oklahoma, with her on the brief), Oklahoma City, Oklahoma, for Respondent-Appellee.

Before HOLMES, BACHARACH, and MORITZ, Circuit Judges.[**]


HOLMES, Circuit Judge.

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Petitioner Donald Anthony Grant, an Oklahoma state prisoner on death row, appeals from the district court’s denial of his 28 U.S.C. § 2254 habeas petition. Additionally, Mr. Grant filed a motion to expand the certificate of appealability (" COA" ). Exercising jurisdiction under 28 U.S.C. § 1291, we affirm the district court’s denial of Mr. Grant’s § 2254 petition and deny Mr. Grant’s motion to expand the COA.


A. Facts

" The OCCA outlined the facts of Mr. [Grant’s] crimes, and ‘[w]e presume that the factual findings of the state court are correct’ unless Mr. [Grant] presents clear and convincing evidence otherwise." Clayton Lockett v. Trammel, 711 F.3d 1218, 1222 (10th Cir. 2013) (quoting 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." ).

The OCCA provided the following factual summary: The essential facts of the crimes are not disputed. On July 18, 2001, [Mr. Grant] entered a LaQuinta Inn in Del City, ostensibly to fill out an employment application. In reality, [Mr. Grant] had planned to rob the hotel in order to obtain money to post bond for a girlfriend, Shlonda Gatewood (who was in the Oklahoma County Jail at the time), and was prepared to kill any witnesses to the crime. [Mr. Grant] may have been motivated to strike this particular business because another girlfriend of his, Cheryl Tubbs, had been fired from employment there a few months before; in any event, [Mr. Grant] was familiar with the layout of the property and the location of video surveillance equipment.

When [Mr. Grant] saw the hotel manager, Brenda McElyea, he approached her with a pistol in his hand and ordered her to walk to a storage room, where he fatally shot her once in the head, and slashed her neck and back with a box knife to make sure the knife was sharp enough to use on his next victim. [Mr. Grant] then left the storage room and approached another employee, Suzette Smith, in the break room. [Mr. Grant] ordered Smith at gunpoint to give him the money from the hotel register, which she did. [Mr. Grant] then ordered Smith to walk back to the manager’s office, where he shot her three times in the face. Smith continued to struggle to escape, so [Mr. Grant] brutally beat her and cut her numerous times with his knife. He hit Smith in the head with his pistol, attempted to break her neck, and threw a computer monitor on her head

Page 887 in an effort to stop her struggling. Eventually, Smith succumbed to her wounds and died in the office. Before leaving the office, [Mr. Grant] took personal property from Smith’s purse.

[Mr. Grant] then left the hotel and walked to a nearby discount store, where he abandoned his pistol and some traveler’s checks he had taken in the robbery. He then called a cab to take him to the home of Cheryl Tubbs. Later that day, [Mr. Grant] used money from the robbery to pay Shlonda Gatewood’s bond, which was about $200. [Mr. Grant] and Gatewood then used a stolen car to drive from Oklahoma City to New York City, where [Mr. Grant] had family. About a month after the murders, [Mr. Grant] was arrested in New York and returned to Oklahoma.

Grant v. State, 205 P.3d 1, 7 (Okla.Crim. App. 2009) (numeric paragraph notations and footnote omitted).

B. Procedural History

In August 2001, Mr. Grant was charged with two counts of first degree murder and two counts of robbery with a firearm for the murders of Brenda McElyea and Suzette Smith during the robbery of the La Quinta Inn in Del City, Oklahoma. With respect to the murder counts, the State sought the death penalty. It charged several aggravating circumstances to support such a sanction: (1) that the defendant knowingly created a great risk of death to more than one person; (2) that the murders were committed for the purpose of avoiding arrest or prosecution; (3) that the murders were committed by a person serving a sentence of imprisonment on conviction of a felony; and (4) that a probability existed that the defendant would pose a continuing threat to society. As to one of the murder counts (Count 2) [relating to Ms. Smith], the State also alleged that the murder was heinous, atrocious, or cruel.

Grant, 205 P.3d at 6 n.1.

In November 2001, Mr. Grant’s counsel moved for a determination of his competency to stand trial. The parties litigated Mr. Grant’s competency for the next four years, culminating in a February 2005 trial, at which a jury found Mr. Grant competent to stand trial.

Mr. Grant’s eight-day jury trial began on November 14, 2005. The jury found Mr. Grant guilty on all counts. " As to each of the murder counts, the jury found the existence of all aggravating circumstances alleged, and recommended punishment of death on each count." Id. at 6-7. Mr. Grant filed a direct appeal and an application for an evidentiary hearing with the Oklahoma Court of Criminal Appeals (" OCCA" ). The OCCA affirmed Mr. Grant’s conviction and death sentence and denied his request for an evidentiary hearing. In 2008 Mr. Grant filed an application for post-conviction relief with the OCCA. The OCCA again denied relief.

In October 2012, Mr. Grant filed the instant 28 U.S.C. § 2254 petition with the United States District Court for the Western District of Oklahoma. Mr. Grant raised numerous propositions of error, five of which are relevant to the present appeal. First, he argued that he was denied procedural due process because the trial court failed to hold a second competency hearing in response to Mr. Grant’s alleged manifestations of incompetence leading up to and during trial. Second, he raised several ineffective-assistance-of-counsel claims relating to trial counsel’s failures to investigate and present evidence regarding his competence and other mitigating circumstances. Third, Mr. Grant challenged the constitutionality of a jury instruction and related prosecutorial statements concerning

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mitigation evidence. Fourth, Mr. Grant raised a constitutional challenge to the peremptory strike of a potential juror on the basis of race. Finally, Mr. Grant argued that he was prejudiced by cumulative error. The district court denied Mr. Grant’s petition and granted a COA on the single issue of procedural competency.

Mr. Grant filed a timely appeal. In our December 12, 2014 Case Management Order, we granted a COA on Mr. Grant’s additional claims concerning (1) ineffective assistance of trial counsel, (2) the challenged jury instruction and related prosecutorial statements, (3) the peremptory strike of a minority (i.e., African-American) juror, and (4) cumulative error. On December 29, 2014, Mr. Grant filed a motion to expand the COA to include one additional issue. This motion is still pending before us.


The Antiterrorism and Effective Death Penalty Act of 1996 (" AEDPA" ) " circumscribes our review of federal habeas claims that were adjudicated on the merits in state-court proceedings." Hooks v. Workman (" Victor Hooks II" ), 689 F.3d 1148, 1163 (10th Cir. 2012). " Under AEDPA, a petitioner is entitled to federal habeas relief on a claim only if he can establish that the state court’s adjudication of the claim on the merits (1) ‘resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law’; or (2) ‘resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.’ " Littlejohn v. Trammell (" Littlejohn I" ), 704 F.3d 817, 824 (10th Cir. 2013) (quoting 28 U.S.C. § 2254(d)(1), (2)); see

Kernan v. Cuero, __ U.S. __, 138 S.Ct. 4, 5, 199 L.Ed.2d 236 (2017) (per curiam); Byrd v. Workman, 645 F.3d 1159, 1166 (10th Cir. 2011).

The AEDPA standard is " highly deferential [to] state-court rulings [and] demands that state-court decisions be given the benefit of the doubt." Woodford v. Visciotti, 537 U.S. 19, 24, 123 S.Ct. 357, 154 L.Ed.2d 279 (2002) (per curiam) (citation omitted) (quoting Lindh v. Murphy, 521 U.S. 320, 333 n.7, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997)); accord Littlejohn I, 704 F.3d at 824; Victor Hooks II, 689 F.3d at 1163. " A habeas petitioner meets this demanding standard only when he shows that the state courts decision wasso lacking in justification that there was an error well...

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