Smith v. Sharp

• Decision Date: 26 August 2019
• Docket Number: No. 17-6184,17-6184
• Citation: 935 F.3d 1064
• Parties: Roderick L. SMITH, Petitioner - Appellant, v. Tommy SHARP, Interim Warden, Oklahoma State Penitentiary, Respondent - Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

935 F.3d 1064

Roderick L. SMITH, Petitioner - Appellant,
v.
Tommy SHARP, Interim Warden,^* Oklahoma State Penitentiary, Respondent - Appellee.

No. 17-6184

United States Court of Appeals, Tenth Circuit.

FILED August 26, 2019

Emma V. Rolls, Assistant Federal Public Defender (Thomas D. Hird, Assistant Federal Public Defender, with her on the briefs), Oklahoma City, Oklahoma, for Petitioner - Appellant.

Jennifer J. Dickson, Assistant Attorney General (Mike Hunter, Attorney General of Oklahoma, with her on the brief), Oklahoma City, Oklahoma, for Respondent - Appellee.

Before LUCERO, MATHESON, and PHILLIPS, Circuit Judges.

LUCERO, Circuit Judge.

Roderick Smith was sentenced to death by an Oklahoma state jury for the 1993 murders of his wife and four stepchildren. Before the resolution of Smith’s collateral attacks on his convictions and sentence, the Supreme Court issued its decision in Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002), prohibiting the execution of the intellectually disabled.¹ Smith filed a successor application

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in state court for post-conviction relief pursuant to Atkins, and the Oklahoma Court of Criminal Appeals ("OCCA") remanded the case to the Oklahoma County District Court for a jury trial to determine whether Smith was intellectually disabled. At the subsequent jury trial in 2004 (the "Atkins trial"), the jury found Smith was not intellectually disabled and allowed his execution to move forward. But our circuit then granted relief on Smith’s previously filed habeas corpus petition in Smith v. Mullin, 379 F.3d 919 (10th Cir. 2004), entitling him to resentencing. A jury found Smith competent to stand trial in 2009, and he was resentenced to death in 2010.

Smith again sought federal habeas relief. The district court denied relief in an unpublished opinion. Smith v. Royal, No. CIV-14-579-R, 2017 WL 2992217 (W.D. Okla. July 13, 2017) (unpublished). Before us, Smith alleges that the state prosecution in his Atkins, competency, and resentencing trials violated several of his constitutional rights, including his Eighth Amendment right against cruel and unusual punishment and his Sixth Amendment right to counsel. Specifically, Smith contends: (1) the Eighth and Fourteenth Amendments prohibit his execution because he is intellectually disabled; (2) the jury instruction requiring a finding that his intellectual disability was "present and known" before the age of eighteen violated Atkins; (3) counsel’s failure to call an expert witness to testify about the employment capabilities of the intellectually disabled and prepare an additional adaptive functioning measurement denied him effective assistance of counsel during his Atkins trial; (4) counsel’s failure to introduce video footage of Smith into the record denied him effective assistance of trial and appellate counsel in his competency and resentencing trials; and (5) cumulative error violated his rights under the Sixth, Eighth, and Fourteenth Amendments.

Exercising jurisdiction under 28 U.S.C. §§ 1291 and 2253, we reverse the district court’s denial of habeas relief on Smith’s Atkins challenge to the constitutionality of his execution. Because we grant relief on Smith’s Atkins challenge, we need not address Smith’s remaining claims concerning his Atkins proceeding. We otherwise affirm the district court’s denial of Smith’s § 2254 petition for a writ of habeas corpus. We remand with instructions to grant a conditional writ vacating Smith’s death sentence and remanding to the State for a new penalty-phase proceeding.

I

A

Smith was convicted of the murder of his wife, Jennifer Smith, and her four children from a prior relationship. The following facts concerning the underlying offense are undisputed and taken from the opinion of the OCCA affirming Smith’s convictions and sentences on direct appeal. Smith v. State, 932 P.2d 521, 526 (Okla. Crim. App. 1996).

On the morning of June 28, 1993, Jennifer Smith’s mother called the police and asked them to check on her daughter, who had not been seen or heard from for ten days. When the responding officer arrived

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at the residence where Smith and Jennifer lived with her four children, he smelled decaying flesh and observed many flies around the windows. The responding officer contacted his supervisor, and the officers entered the house together. They discovered the body of a woman in one closet, and the body of a child in another. The officers requested assistance from the homicide division of the police department, and the bodies of three more children were found. The bodies were identified as those of Jennifer and her four children, and were determined to have been dead for at least two days and up to two weeks.

Later that day, Smith walked into the Oklahoma County Sheriff’s Office. He was then arrested by the Oklahoma City Police. Smith was interrogated and admitted that he had stabbed Jennifer and the two male children. Smith also admitted that he "got" the female children, but could not remember any details. He told the police where he had placed each of the bodies.

B

As summarized in Smith’s first habeas case, Smith was tried and convicted before an Oklahoma County jury of five counts of first-degree murder. Smith v. Mullin, 379 F.3d at 924. The jury recommended sentences of death on each count, and the Oklahoma court agreed. Smith filed an unsuccessful direct appeal with the OCCA, Smith v. State, 932 P.2d at 539, and the Supreme Court denied his petition for writ of certiorari. Smith v. Oklahoma, 521 U.S. 1124, 117 S.Ct. 2522, 138 L.Ed.2d 1023 (1997). He subsequently filed an unsuccessful application for post-conviction relief in the Oklahoma courts. Smith v. State, 955 P.2d 734 (Okla. Crim. App. 1998). Smith did not seek Supreme Court review of the OCCA’s denial of post-conviction relief.

Smith then filed his first habeas corpus action, and the district court denied relief. Smith v. Gibson, No. CIV-98-601-R (W.D. Okla. Jan. 10, 2002) (unpublished). Smith appealed to this court. Pending the resolution of that appeal, the Supreme Court held the Eighth Amendment prohibits the execution of the intellectually disabled. Atkins, 504 U.S. at 321, 112 S.Ct. 1904. The state provided Smith a jury trial to prove that he is intellectually disabled, bifurcating the further adjudication of Smith’s challenges into an Atkins trial (and subsequent appeals) and the federal habeas claims that developed out of his initial conviction and sentencing.

Smith’s first Atkins trial ended in a mistrial, but a state jury eventually concluded that he was not intellectually disabled. Smith appealed to the OCCA, which affirmed the jury’s verdict. Smith v. State, No. O-2006-683 (Okla. Crim. App. Jan. 29, 2007) (unpublished) ("OCCA’s Atkins Op.").

Shortly after Smith’s Atkins trial, however, this court granted in part Smith’s habeas petition, entitling Smith to resentencing due to ineffective assistance of counsel. Smith v. Mullin, 379 F.3d 919. We specifically held counsel’s failure to introduce any mitigation evidence regarding Smith’s intellectual disability, brain damage, and troubled background denied Smith effective assistance of counsel during his sentencing proceedings. Id. at 940-44. Prior to the resentencing proceedings, Smith received a jury trial to determine his competence. The jury found Smith competent, and he was resentenced in 2010. At the resentencing, the jury imposed two death sentences and three sentences of life without the possibility of the parole. Following those jury trials, Smith appealed the resentencing and competency determinations, and the effectiveness of counsel in those proceedings. The OCCA affirmed. Smith v. State, 306 P.3d 557 (Okla. Crim. App. 2013), cert. denied,

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572 U.S. 1137, 134 S. Ct. 2662, 189 L.Ed.2d 213 (2014). Smith applied for but failed to obtain post-conviction relief in state court. Smith v. State, No. PCD-2010-660 (Okla. Crim. App. Feb. 13, 2014) (unpublished) ("OCCA’s Resentencing and Competency Op.").

Smith then filed a second habeas petition in federal court, bringing claims related to: (1) sufficiency of evidence supporting the jury’s determination that he was not intellectually disabled; (2) purported irregularities in his Atkins trial; and (3) ineffective assistance of counsel during his Atkins, competency, and resentencing trials. The district court denied relief on all counts. We granted certificates of appealability as to: (1) sufficiency of evidence as to the jury’s determination that Smith was not intellectually disabled at his Atkins trial; (2) his Atkins challenge to language in the jury instructions at that trial; and (3) various effectiveness of counsel claims during his Atkins, competency, and resentencing trials.

II

On appeal from orders denying a writ of habeas corpus, "we review the district court’s legal analysis of the state court decision de novo and its factual findings, if any, for clear error." Michael Smith v. Duckworth, 824 F.3d 1233, 1241-42 (10th Cir. 2016) (quotation omitted). But "[t]he Antiterrorism and Effective Death Penalty...