Brecheen v. Reynolds, 94-7084

Decision Date14 October 1994
Docket NumberNo. 94-7084,94-7084
Citation41 F.3d 1343
PartiesRobert A. BRECHEEN, Petitioner-Appellant, v. Dan REYNOLDS, Warden of the Oklahoma State Penitentiary, Respondent-Appellee.
CourtU.S. Court of Appeals — Tenth Circuit

Gloyd L. McCoy of J.W. Coyle III, Inc., Oklahoma City, OK, Jack Gordon, Jr. of Gordon & Gordon, Claremore, OK, for petitioner.

A. Diane Blalock, Asst. Atty. Gen. (Susan Brimer Loving, Atty. Gen., with her on the briefs), Oklahoma City, OK, for respondent.

Before BALDOCK, BRORBY and EBEL, Circuit Judges.

BRORBY, Circuit Judge.

Robert Allen Brecheen appeals the denial of his petition for a writ of habeas corpus under 28 U.S.C. Sec. 2254, along with the denial of his request for a stay of execution pursuant to 28 U.S.C. Secs. 1651, 2251. Mr. Brecheen contends the district court failed to recognize several asserted constitutional errors relating to his murder conviction and corresponding death sentence. In this appeal, we are called upon to reexamine those asserted errors, which include the denial of a fair trial because of the denial of motion for change of venue and because of prosecutorial misconduct, denial of a fair sentencing phase because of ineffective assistance of counsel, insufficient mitigating instructions, and overbroad application of aggravating factors. We exercise jurisdiction under 28 U.S.C. Sec. 1291 and we grant Mr. Brecheen's request for a certificate of probable cause pursuant to 28 U.S.C. Sec. 2253. Finding no basis to grant relief, however, we affirm the district court's denial of Mr. Brecheen's petition.


Mr. Brecheen was convicted by a jury of first degree murder and first degree burglary. 1 The jury imposed the death penalty after it found the existence of one aggravating circumstance, namely, that Mr. Brecheen knowingly created a great risk of death to more than one person. See Okla.Stat. tit. 21, Sec. 701.12(2).

Mr. Brecheen was found guilty of killing Marie Stubbs in her living room one evening in March of 1983. From the bedroom, her husband, Hilton Stubbs, saw her fall to the floor. He then reached for his gun and rolled from his bed onto the bedroom floor. After the intruder came to the bedroom and fired into the empty bed, Mr. Stubbs fired at the intruder. The two exchanged fire once again as the intruder left the house and headed north. Though Mr. Stubbs could not identify the intruder, Mr. Brecheen was found by police approximately two hundred yards north of the Stubbs' house, severely wounded. At trial, Mr. Brecheen admitted to being present in the house and holding the gun that killed Mrs. Stubbs. He explained he was forced to the Stubbses' house by an unidentified man who also forced him to carry a gun to the door. The defense argued the gun went off accidentally.

On direct appeal, the Oklahoma Court of Criminal Appeals 2 affirmed his conviction and sentence of death. 3 Brecheen I, 732 P.2d Mr. Brecheen thereafter filed a petition for a writ of habeas corpus in the United States District Court for the Eastern District of Oklahoma. In an order dated June 30, 1994 (No. CIV 94-318-S), the Chief Judge of the district denied Mr. Brecheen's petition and his motion for a stay of execution, which had been set for July 6, 1994. On July 1, 1994, we granted Mr. Brecheen's emergency application for a temporary stay of execution to allow for the appointment of counsel, along with expedited appeal and oral argument. See Coleman v. Brown, 753 F.2d 832, 833 (10th Cir.1985). On appeal to this court, Mr. Brecheen reasserts the six arguments offered in his petition for a writ of habeas corpus in the federal district court: (1) denial of fair trial based on the trial court's denial of his motion for a change of venue; (2) denial of a fair trial due to prosecutorial misconduct; (3) violation of due process during sentencing for failure to offer a "presumption of life" instruction; (4) violation of the Eighth Amendment during sentencing for overbroad use of a statutory aggravating circumstance; (5) ineffective assistance of counsel during the sentencing phase; and (6) cumulative error. We address these claims seriatim.

                at 899.   Mr. Brecheen then sought postconviction relief in the Oklahoma state courts. 4  The state district court denied relief after holding an evidentiary hearing on the question of ineffective assistance of counsel at the sentencing phase.  The Oklahoma Court of Criminal Appeals affirmed the denial of postconviction relief after finding that the bulk of Mr. Brecheen's alleged errors were, or could have been, raised on direct appeal and were therefore not subject to review under Okla.Stat. tit. 22 Sec. 1086. 5  Brecheen v. State, 835 P.2d 117, 121 (Okla.Crim.App.1992), cert. denied, --- U.S. ----, 113 S.Ct. 1063, 122 L.Ed.2d 368 (1993) (Brecheen II )
I. Change of Venue

Mr. Brecheen initially claims that the state trial court erred in denying his motion for a change of venue. He claims that under the facts of this case, the actions of the state trial court amounted to a denial of his right to a fair trial by impartial jurors under the Sixth and Fourteenth Amendments. He further alleges that the standard applied by the appellate court in reviewing the state trial courts' change of venue decisions is similarly unconstitutional as a violation of due process.


Before jury selection, Mr. Brecheen moved for a change of venue from Carter County, Oklahoma, specifically from the town of Ardmore where the crime had occurred. Counsel All potential jurors were asked by the trial court about their relationship with the victim and her husband, of their awareness of various media accounts, and whether such knowledge would impair their ability to reach an impartial decision. Both the prosecuting and defense attorneys also inquired along these lines. Eleven of the thirty-nine venirepersons were excluded for cause because of their exposure to pretrial publicity or friendship with the victim and her family. Of the jurors finally empaneled, all but one were prior customers of the victim's store. One juror knew the victim's daughter in a business context. All jurors were exposed to media accounts of the crime, but some expressed doubt at their ability to recall details from those accounts. One juror admitted to forming an opinion during his reading of the account but stated he could dismiss that opinion once the trial began. All jurors were asked, at least twice, whether such knowledge would influence their judgment, and all responded negatively. Defense counsel waived two peremptory challenges as the jurors were seated.

                for Mr. Brecheen claimed local and statewide newspaper and television accounts contained statements of facts that were still disputed and could be misconstrued by potential jurors as undisputed.  As counsel explained, though, "we don't take the position that this pretrial publicity has been outlandish or there has been any undue or prejudicial invasion of Mr. Brecheen's rights....  [T]he problem is a good bit more subtle."   The trial court reserved judgment on the motion until after making an attempt to seat a jury.  During voir dire, an additional concern for defense counsel arose as most venirepersons indicated they had been past customers of the victim's western wear shop in town

Following the empaneling, the trial court held another hearing to rule on the motion for change of venue and concluded the jurors' promises of impartiality could be trusted. This decision was affirmed on direct appeal.

An exhaustive voir dire was conducted at trial. Those who served on the jury stated they could fairly and impartially judge the case on the evidence presented. Those who formed opinions concerning appellant's guilt or doubted their ability to serve impartially were excused. We find there was adequate safeguard of the jury process ... and the need for a change of venue was not established.

Brecheen I, 732 P.2d at 893 (citation omitted). During state postconviction proceedings, the Oklahoma Court of Appeals again affirmed. "[W]hile the jury was not totally ignorant of the facts and the circumstances behind this case, the trial court's decision to retain venue in Carter County was correct and no relief is warranted on this ground." Brecheen II, 835 P.2d at 120. The federal district court rejected this argument as well, concluding that under applicable Supreme Court precedent, Mr. Brecheen's right to due process was not violated by the denial of his motion to change venue. We agree.

Our review of a state trial court's rulings on juror impartiality is "limited to enforcing the commands of the United States Constitution." Mu'Min v. Virginia, 500 U.S. 415, 422, 111 S.Ct. 1899, 1903, 114 L.Ed.2d 493 (1991). A federal habeas court may reverse a state trial court's findings only upon a showing of " 'manifest error.' " Id. at 428, 111 S.Ct. at 1907 (quoting Patton v. Yount, 467 U.S. 1025, 1031, 104 S.Ct. 2885, 2888-89, 81 L.Ed.2d 847 (1984)); Church v. Sullivan, 942 F.2d 1501, 1518 (10th Cir.1991). Part of the rationale behind the limited nature of federal review of a state trial court's findings is that "[t]he state trial judge had the benefit of observing the general demeanor of the jurors as the basis for his general finding." Church, 942 F.2d at 1519; see also Patton, 467 U.S. at 1038, 104 S.Ct. at 2892-93 (trial court's resolution of demeanor is entitled to "special deference"). Therefore, a habeas petitioner seeking to establish this type of due process violation must demonstrate either that the trial resulted in actual prejudice or that it gave rise to a presumption of prejudice because it involved "such a probability that prejudice will result that it is deemed inherently lacking in due process." Estes v. Texas, 381 U.S. 532, 542-43, 85 S.Ct. 1628, 1633, 14 L.Ed.2d 543 (1965). Mr. Brecheen points to no actual hostility or impartiality by the jurors; therefore, we limit our We do not read Mr. Brecheen's argument to depict the...

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