Alverson v. Workman

• Decision Date: 16 February 2010
• Docket Number: No. 09-5000.,09-5000.
• Parties: Billy D. ALVERSON, Petitioner-Appellant, v. Randall G. WORKMAN, Warden, Oklahoma State Penitentiary, Respondent-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

595 F.3d 1142 Billy D. ALVERSON, Petitioner-Appellant,
v.
Randall G. WORKMAN, Warden, Oklahoma State Penitentiary, Respondent-Appellee. No. 09-5000. United States Court of Appeals, Tenth Circuit. February 16, 2010.

[595 F.3d 1144]

Robert W. Jackson, (Steven M. Presson with him on the briefs), Presson Law Office, Norman, OK, for Petitioner-Appellant.

Jennifer B. Miller, Assistant Attorney General (W.A. Drew Edmondson, Attorney General of Oklahoma, with her on the brief), Oklahoma City, OK, for Respondent-Appellee.

Before KELLY, BRISCOE, and TYMKOVICH, Circuit Judges.

BRISCOE, Circuit Judge.

Petitioner Billy Alverson, an Oklahoma state prisoner convicted of first degree murder and robbery with a dangerous weapon and sentenced to death in connection with the murder conviction, appeals the district court's denial of his 28 U.S.C. § 2254 petition for writ of habeas corpus. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we affirm the judgment of the district court.

I. A. Factual background

The relevant underlying facts of this case were outlined in detail by the Oklahoma Court of Criminal Appeals (OCCA) in addressing Alverson's direct appeal:

Alverson's co-defendant, Michael Wilson, worked at the QuikTrip convenience store located at 215 N. Garnett Road in Tulsa, Oklahoma. Wilson, Alverson, and two of their friends, Richard Harjo and Darwin Brown, went to the QuikTrip during the early morning hours of February 26, 1995. They chatted with Richard Yost, the night clerk, until the most opportune time arose for them to accost him and force him into the back cooler. They handcuffed him and tied his legs with duct tape. Alverson and Harjo went outside and returned with Harjo carrying a baseball bat.

Yost was found beaten to death in a pool of blood, beer and milk. Part of a broken set of handcuffs was found near his right hip. The medical examiner found a pin from these handcuffs embedded in Yost's skull during the autopsy. Two safes containing over $30,000.00 were stolen, as well as all the money from the cash register and the store's surveillance videotape. All four defendants were arrested later that same day wearing new tennis shoes and carrying wads of cash. The stolen drop safe and the store surveillance videotape, as well as other damaging evidence, was found in a search of Alverson's home. The baseball bat, the victim's bloody Quick-Trip [sic] jacket, the other cuff from the set of broken handcuffs, and Wilson's Nike jacket which matched the one he wore on the surveillance tape were taken from Wilson's home.

Alverson v. State, 983 P.2d 498, 506 (Okla. Crim.App.1999) (Alverson I) (internal paragraph numbers omitted).

B. Alverson's trial and direct appeal

Alverson, Wilson, Harjo and Brown were "charged conjointly ... with the crimes of first degree malice murder and, in the alternative, first degree felony murder (Count I) in violation of 21 O.S.1991, § 701.7(A) & (B) and robbery with a dangerous weapon (Count II) in violation of 21 O.S.1991, § 801 in the District Court of Tulsa County, Case No. CF-95-1024." Id. at 505. The State filed a bill of particulars alleging three aggravating circumstances:

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(1) that the murder was especially heinous, atrocious or cruel; (2) that the murder was committed for the purpose of avoiding or preventing a lawful arrest or prosecution; and (3) the existence of a probability that Alverson would commit criminal acts of violence that would constitute a continuing threat to society. "Alverson and co-defendant Harjo were tried conjointly, but with separate juries deciding their fate." Id. at 506. Alverson's jury found him guilty of first degree murder and robbery with a dangerous weapon. At the conclusion of "the punishment stage, [Alverson's] jury found the existence of two aggravating circumstances: (1) that the murder was especially heinous, atrocious or cruel; and (2) that the murder was committed for the purpose of avoiding or preventing a lawful arrest or prosecution." Id. The jury rejected the continuing threat aggravator. Ultimately, Alverson's jury fixed his punishment at death for the first degree murder conviction and life imprisonment for the robbery conviction. The state trial court sentenced Alverson in accordance with the jury's verdict.

On May 6, 1999, the OCCA affirmed Alverson's convictions and sentences on direct appeal. Id. at 522. Alverson filed a petition for rehearing, which was denied by the OCCA. Alverson then filed a petition for writ of certiorari with the United States Supreme Court, which was denied on January 10, 2000. Alverson v. Oklahoma, 528 U.S. 1089, 1089, 120 S.Ct. 820, 145 L.Ed.2d 690 (2000).

C. Alverson's application for state post-conviction relief

On April 26, 1999, while his direct appeal was still pending before the OCCA, Alverson filed an application for post-conviction relief directly with the OCCA. In connection with that application, Alverson also filed an application for an evidentiary hearing. On July 19, 1999, the OCCA issued an unpublished order denying Alverson's applications. Alverson v. State, No. PC-98-182 (July 19, 1999) (Alverson II).

D. Alverson's federal habeas proceedings

Alverson initiated this federal habeas action on June 27, 2000, by filing a pro se motion to proceed in forma pauperis and a motion for appointment of counsel. Alverson's motions were granted and, on January 9, 2001, Alverson's appointed counsel filed a preliminary petition for writ of habeas corpus asserting eighteen grounds for relief. ROA, Doc. 11. On January 31, 2001, Alverson's appointed counsel filed an amended petition asserting only eight grounds for relief, including a claim of entitlement to a federal evidentiary hearing. Id., Doc. 12. The amended petition expressly stated that it was intended to "supersede [] the preliminary petition" and to "delete [] claims and more specifically assert facts and authorities in support of the retained claims." Id. at 1 n. 1. On December 5, 2008, the district court denied Alverson's amended petition. On that same date, the district court entered judgment in favor of respondent and against Alverson.

On December 25, 2008, Alverson filed with the district court an application seeking a certificate of appealability (COA) with respect to four issues: (1) whether the state trial court violated Alverson's rights under Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985), by denying his requests for funding for a neuropsychological examination; (2) whether Alverson's constitutional rights were violated due to the state's introduction of insufficient evidence to establish that he substantially participated in the murder; (3) whether Alverson's trial

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counsel was constitutionally ineffective for failing to conduct an adequate investigation concerning head traumas suffered by Alverson during his youth; and (4) cumulative error. The district court granted Alverson's application in its entirety. Alverson filed his notice of appeal on January 2, 2009.

II.

Our review of Alverson's appeal is governed by the provisions of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). Snow v. Sirmons, 474 F.3d 693, 696 (10th Cir.2007). Under AEDPA, the standard of review applicable to a particular claim depends upon how that claim was resolved by the state courts. Id.

If a claim was addressed on the merits by the state courts, we may not grant federal habeas relief on the basis of that claim unless the state court decision "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," 28 U.S.C. § 2254(d)(1), or "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding," id. § 2254(d)(2). "When reviewing a state court's application of federal law, we are precluded from issuing the writ simply because we conclude in our independent judgment that the state court applied the law erroneously or incorrectly." McLuckie v. Abbott, 337 F.3d 1193, 1197 (10th Cir.2003). "Rather, we must be convinced that the application was also objectively unreasonable." Id. "This standard does not require our abject deference, but nonetheless prohibits us from substituting our own judgment for that of the state court." Snow, 474 F.3d at 696 (internal quotation marks and citation omitted).

If a claim was not resolved by the state courts on the merits and is not otherwise procedurally barred, our standard of review is more searching. That is, because § 2254(d)'s deferential standards of review do not apply in such circumstances, we review the district court's legal conclusions de novo and its factual findings, if any, for clear error. McLuckie, 337 F.3d at 1197.

III. A. Denial of funding for neuropsychological examination

Alverson contends that his due process rights, as outlined in the Supreme Court's decision in Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985), were violated as a result of the state trial court denying his requests for funding to conduct a neuropsychological examination to investigate the possible effects of head injuries that he suffered as a child. Alverson also asserts two related arguments: (1) that he received incompetent mental health assistance from social worker Jean Carlton in the presentation of his second-stage defense; and (2) that he was prejudiced by the lack of qualified expert assistance.

As we shall discuss in greater detail below, the Ake claim was addressed by the OCCA sua sponte in resolving Alverson's direct appeal, and, as a result, the OCCA's resolution of that claim is subject to review under the deferential standards outlined in 2254(d). Further, we conclude the OCCA's resolution of the Ake claim was neither contrary to, nor an unreasonable application of, clearly established federal law. Finally, because the OCCA reasonably rejected Alverson's Ake claim, it is...