Postelle v. Carpenter

• Decision Date: 27 August 2018
• Docket Number: No. 16-6290,16-6290
• Citation: 901 F.3d 1202
• Parties: Gilbert Ray POSTELLE, Petitioner - Appellant, v. Mike CARPENTER, Interim Warden, Oklahoma State Penitentiary, Respondent - Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

901 F.3d 1202

Gilbert Ray POSTELLE, Petitioner - Appellant,

v.Mike CARPENTER^*, Interim Warden, Oklahoma State Penitentiary, Respondent - Appellee.

No. 16-6290

United States Court of Appeals, Tenth Circuit.

FILED August 27, 2018

Robert A. Nance (John T. Carlson, Assistant Federal Public Defender, Denver, Colorado, with him on the briefs), Riggs, Abney, Neal, Turpen, Orbison & Lewis, Oklahoma City, Oklahoma, for the Appellant.

Caroline E.J. Hunt, Assistant Attorney General (Mike Hunter, Attorney General of Oklahoma, with her on the brief), Office of the Oklahoma Attorney General, Oklahoma City, Oklahoma, for the Appellee.

Before TYMKOVICH, Chief Judge, LUCERO, and MORITZ, Circuit Judges.

TYMKOVICH, Chief Judge.

An Oklahoma jury convicted and sentenced Gilbert Ray Postelle to death in connection with the brutal killings of four people. On Memorial Day 2005, Postelle and two other assailants attacked Donnie Swindle at his home, murdering him along with three acquaintances. The raid apparently sprang from the Postelle family's grudge against Mr. Swindle alone; the three other victims had no connection to the feud.

After an unsuccessful appeal and collateral action in state court, Postelle now pursues federal habeas corpus relief. He alleges the state prosecution violated several of his constitutional rights, including his Sixth Amendment right to counsel and his Eighth Amendment right against cruel and unusual punishment. Postelle raises three issues: (1) whether he received constitutionally adequate trial counsel; (2) whether he received constitutionally adequate appellate counsel; and (3) whether the unconstitutional presentation of victim-impact evidence at trial prejudiced his defense. He also asks to expand the scope of our review to include several new issues for which he has yet to receive a Certificate of Appealability.

For the reasons given below, we affirm denial of the writ and decline to extend the scope of our review.

I. Background

We base our description of Postelle's crimes on the Oklahoma Court of Criminal Appeals's (OCCA) account in Postelle v. State (Postelle I ), 267 P.3d 114 (Okla. Crim. App. 2011), as well as the jury's findings and other uncontested facts.

The background for these crimes begins with Earl Bradford "Brad" Postelle being thrown from his motorcycle in a single-vehicle accident. See id. at 124 & n.7 ; Tr. 1030–33. Brad suffered grave injuries, both physical and mental, as a result of the crash. See Postelle I , 267 P.3d at 124. Without apparent basis, he and his two sons—David and Gilbert Postelle—would eventually blame the accident on an acquaintance named Donnie Swindle. See id. at 124–25 ; Tr. 2239. And on Memorial Day 2005, that blame erupted into violence.

The day began with the Postelles hosting several friends at their home in Midwest City, Oklahoma. See Postelle I , 267 P.3d at 123–24 ; Tr. 1635, 2087. The house often served as a place to use methamphetamine, and this gathering was no different. Postelle I , 267 P.3d at 124. On this day, however, Gilbert and David Postelle resolved that "those responsible" for their father's injuries "were ‘going to pay.’ " Id.

That afternoon, the Postelles and three friends left the house, ostensibly to go target shooting. Id. at 124–25. After dropping off two of the passengers, however, their van did not follow its usual course to the riverbank. Id. at 125 ; see Tr. 2039, 2065. Instead, it rolled on toward the home of Donnie Swindle.

As they drove onto Swindle's property, he and a guest named Terry Smith approached the van. Postelle I , 267 P.3d at 125 ; see Tr. 2072. Gilbert Postelle promptly slid open the van door and shot Smith in the face with a military-style rifle. Postelle I , 267 P.3d at 124–25 & n.9. Gilbert and Brad then shot at Swindle, dropping him to the ground. Id. at 125. Next, David Postelle took Brad's gun and shot the bewildered Swindle in the head. Id. at 126. Gilbert then "turned and ran through [Swindle's] trailer, looking for others and firing his gun." Id. at 126. He came out through the back door and "chased down" a third victim, James Alderson. Id. Gilbert "shot [Alderson] as [he] tried to seek cover under a boat." Id. Gilbert then gunned down one final victim—Amy Wright—with three shots from behind. See id. at 123 & n.1, 126. The perpetrators then got back in the van and drove away. Id. at 126.

Oklahoma law enforcement eventually identified, arrested, and charged Gilbert Postelle with four counts of first-degree murder and one count of conspiracy to commit a violent felony. See id. at 123. In light of evidence depicting the events above, a jury convicted Postelle of all five crimes. See id. Then, despite mitigating evidence of "organic brain damage and mental illness," "drug abuse from an early age," and a "chaotic and abusive upbringing," Postelle v. State (Postelle II ), No. PCD-2009-94, slip op. at 14 (Okla. Crim. App. filed Feb. 14, 2012), the jury sentenced Postelle to death, see Postelle I , 267 P.3d at 123.

Postelle challenged his conviction and sentence in the Oklahoma courts. On direct appeal, he argued—among other claims—that the State's use of victim-impact statements during the trial's sentencing phase violated his Eighth Amendment rights. See Brief ex rel. Gilbert Ray Postelle, Appellant at 78–80, Postelle I , 267 P.3d 114 (D-2008-934). The OCCA rejected the challenge on plain error review. See Postelle I , 267 P.3d at 142–43. Postelle then applied for post-conviction collateral relief. This time—again, among other claims—he contended his trial and appellate counsel had rendered constitutionally inadequate assistance. See Original Appl. Post Conviction Relief Death Penalty Case at 5–10, 47–49, Postelle II , slip op., (PCD-2009-94) [hereinafter PCR Appl.]. The OCCA rejected these arguments as well, again affirming the trial court. See Postelle II , slip op. at 9–17, 18–20.

Finally, Postelle sought protection from the federal courts. In September 2013, he filed this action in the Western District of Oklahoma for the writ of habeas corpus. See R., Vol. I at 10. Postelle based his petition, in relevant part, on the alleged constitutional violations just mentioned. See id. at 24–51. The district court denied relief. See id. at 584–85. Postelle now appeals that denial.

II. Analysis

Postelle asks us to overturn the district court with respect to three issues. First , he claims his trial counsel rendered ineffective assistance by not using the "Flynn Effect" as part of the mitigation strategy to help argue against a death sentence. See Aplt. Br. at 2. Second , he claims his appellate counsel rendered ineffective assistance by not challenging trial counsel's failure to use Flynn Effect evidence for death penalty–eligibility and mitigation purposes. See id. Finally , Postelle claims certain victim-impact evidence erroneously introduced in the sentencing phase was not harmless, but in fact prejudiced his defense. See id.

In appeals from orders denying a writ of habeas corpus, we review the district court's legal analysis de novo and its factual findings for clear error. Smith v. Duckworth (Smith II ), 824 F.3d 1233, 1241–42 (10th Cir. 2016). To qualify for the writ, however, a state prisoner must carry a heavy burden. Indeed, Congress has directed federal courts to give their state counterparts deference in all but the narrowest circumstances. See 28 U.S.C. § 2254(d). As relevant here, under the Antiterrorism and Effective Death Penalty Act (AEDPA), a state court must contradict or unreasonably apply "clearly established Federal law, as determined by the Supreme Court of the United States" as a prerequisite to federal habeas relief. Id. Mindful of that threshold inquiry, we turn to Postelle's claims.¹

A. Ineffective Assistance of Counsel

The Sixth Amendment guarantees every accused "the right ... to have Assistance of Counsel for his defence."

U.S. Const. amend. VI. The Supreme Court has interpreted this right to guarantee every criminal defendant a minimum quality of advocacy from a professional attorney. In Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the Court held a criminal defendant could establish a violation of his right to counsel upon two related but distinct showings. First, he "must show that counsel's performance was deficient." Id. at 687, 104 S.Ct. 2052. In this context, only commission of "errors so serious that counsel was not functioning as the ‘counsel’ guaranteed ... by the Sixth Amendment" constitutes "deficient performance." Id. "Second, the defendant must show that the deficient performance prejudiced the defense." Id. This inquiry also looks to counsel's errors, this time to determine whether they were "so serious as to deprive the defendant of a fair trial" with a "reliable" result. Id.

Postelle challenges the adequacy of both his trial counsel and appellate counsel. See Aplt. Br. at 2; see generally Evitts v. Lucey , 469 U.S. 387, 105 S.Ct. 830, 83 L.Ed.2d 821 (1985) (establishing the right to effective appellate counsel). As far as this appeal is concerned, however, both claims derive from a single alleged error: trial counsel's failure to incorporate evidence of the Flynn Effect into Postelle's defense.

1. The Flynn Effect

We start with a short explanation of the Flynn Effect—an aspect of IQ testing upon which Postelle's petition heavily relies.

The Flynn Effect is an observed phenomenon believed to impact the accuracy of IQ testing. See generally John Matthew Fabian et al., Life, Death, and IQ: It's Much More Than Just a Score: Understanding and Utilizing Forensic Psychological and Neuropsychological Evaluations in Atkins Intellectual Disability/Mental Retardation Cases , 59 Clev. St. L. Rev. 399, 414–16 (2011). As the well-known scoring system makes clear, IQ testing does not aim to pinpoint the test subject's absolute intelligence. Instead, it attempts to measure his intelligence relative to the rest of the population. See Nancy Haydt et al., ...