Bush v. Carpenter

• Decision Date: 10 June 2019
• Docket Number: No. 16-6318,16-6318
• Citation: 926 F.3d 644
• Parties: Ronson Kyle BUSH, Petitioner-Appellant, v. Mike CARPENTER, Warden, Oklahoma State Penitentiary, Respondent-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

926 F.3d 644

Ronson Kyle BUSH, Petitioner-Appellant,

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

No. 16-6318

United States Court of Appeals, Tenth Circuit.

FILED June 10, 2019

Josh Lee, Assistant Federal Public Defender, Office of the Federal Public Defender for the District of Colorado, Denver, Colorado (Virginia L. Grady, Federal Public Defender, Office of the Federal Public Defender for the District of Colorado, Denver, Colorado, and Mark Henricksen, Henricksen & Henricksen, Oklahoma City, Oklahoma, with him on the briefs), appearing for Appellant.

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

Before BRISCOE, PHILLIPS, and MORITZ, Circuit Judges.

BRISCOE, Circuit Judge.

Petitioner Ronson Bush is an Oklahoma state prisoner who pleaded guilty to first-degree murder and was sentenced to death. After exhausting his state court remedies by way of a direct appeal and an application for state post-conviction relief, Bush filed a federal petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The district court denied Bush’s petition, and also denied him a certificate of appealability (COA). Bush appealed and we subsequently granted him a COA with respect to five issues.

In the first of those issues, Bush asserts that the state trial court violated his due process rights by allowing the prosecution to make an offer of proof from a jailhouse informant regarding incriminating statements allegedly made by Bush. We conclude, however, that Bush has failed to identify any clearly established federal law applicable to this claim, and thus he is not entitled to federal habeas relief under the standards of review outlined in § 2254(d).

In his second issue, Bush argues that the admission of improper victim impact testimony, including requests by the victim’s family members for the death penalty, violated his rights under the Eighth and Fourteenth Amendments. We agree with Bush that the admission of this testimony amounted to constitutional error, but we conclude, after considering all of the evidence that was presented at his sentencing hearing, that the error did not have a substantial and injurious effect or influence in determining the sentence that was imposed by the state trial court.

In his third issue, Bush argues that his trial counsel was ineffective for failing to object to the admission of the unconstitutional victim impact testimony. Having concluded that Bush was not prejudiced by the admission of this testimony, we in turn conclude that Bush was not prejudiced by his trial counsel’s failure to object to the testimony.

In his fourth issue, Bush argues that his direct appeal counsel was ineffective for failing to argue that trial counsel was ineffective for failing to challenge the constitutionality of an Oklahoma statute that bars capital defendants who plead guilty from being sentenced by a jury. The state appellate court rejected this issue on the merits, and we conclude that its decision was neither contrary to, nor an unreasonable application of, clearly established federal law.

In his final issue, Bush argues that he is entitled to federal habeas relief on the basis of cumulative error. We conclude, however, that Bush has failed to establish actual prejudice resulting from the constitutional errors he has identified.

Therefore, exercising jurisdiction pursuant to 28 U.S.C. § 1291, we affirm the district court’s denial of federal habeas relief.

I

The underlying facts of Bush’s crime

The Oklahoma Court of Criminal Appeals (OCCA) summarized the relevant underlying facts of Bush’s case in addressing his direct appeal:

On the evening of December 22, 2008, while at Billy Harrington’s home, Ronson Bush shot Harrington six times with Harrington’s .357 caliber revolver. Harrington made it to the front yard of the home, where he collapsed. Bush then tied Harrington to the back of his pickup and dragged him into a field near the house.

By all accounts, Harrington and Bush had been best friends for a number of years. Harrington did what he could to aid Bush who dealt with addictions, paranoia, and other related mental illnesses. Harrington’s final attempts to assist Bush came just days before the shooting. On December 18, Harrington attempted to take Bush to Griffin Memorial Hospital in Norman, Oklahoma but Bush was exceedingly drunk, and the two men fought during the trip. Harrington left Bush in a parking lot in Norman, and drove on to Tulsa for work. Bush hitched a ride back to Harrington’s trailer. When Harrington arrived home that evening, accompanied by Jimmy Barrington, they found Bush passed out on the couch with Harrington’s firearms purposefully placed around the house.

After calling the sheriff’s office to send someone to the house, Harrington again agreed to take Bush back to Griffin Memorial Hospital, where Bush voluntarily admitted himself for treatment. Bush, however, on December 22, checked himself out of the hospital, called Harrington for a ride, and returned to Harrington’s home. Bush drank vodka from a pint bottle purchased in Blanchard on the way home. Once home, both men shot guns off the porch and played with Harrington’s dog. Harrington also gave Bush a haircut.

Sometime around 7:15 p.m., Harrington was talking on the phone with his girlfriend who could hear Bush in the background. Bush took a photograph of Harrington and nothing seemed amiss; minutes later, however, Bush shot and killed Harrington.

Bush explained that things started downhill when he mentioned getting Christmas presents for Stephanie Morgan, an ex-girlfriend, and her son. Bush said that Harrington told him that he should forget about Morgan as she was sleeping with other people. According to Bush, Harrington went on to say that even he had "fucked" her. Bush said he then snapped, picked up the .357 revolver, and started shooting Harrington. Bush kept shooting as Harrington got up, went to the kitchen, collapsed, then got up and walked outside.

At around 7:44 p.m. Harrington’s mother, Kathy Harrington, tried to call Harrington’s cell phone, but Bush answered. Bush kept putting Mrs. Harrington off, probably because Harrington was already dead. Mrs. Harrington called friends who went to the home and discovered Harrington’s body in the field.

Bush, in the mean time [sic], left the trailer in Harrington’s truck, bought some beer, and drove to Ms. Morgan’s home. Bush kicked in the back door and entered Morgan’s unoccupied home. He waited on her to arrive and drank some alcohol from a commemorative bottle she had stored in her bedroom.

Morgan arrived home and was unable to turn on the bedroom lights. She heard Bush say that he heard her come in. Bush was in the bedroom lying on the bed. Morgan tried to get away by walking out and getting in her car. Bush, however, got in the passenger side. Morgan was finally able to let someone know that Bush was there, get him out of the car, and drive away.

Authorities arrived at Morgan’s home, and Bush was arrested for violating a protective order Morgan had against him. Bush, at the time of the arrest, confessed to shooting Harrington.

Bush v. State, 280 P.3d 337, 342–43 (Okla. Crim. App. 2012) ( Bush I ) (paragraph numbers and footnotes omitted).

Bush’s state trial proceedings

The OCCA in Bush I also summarized Bush’s ensuing state trial proceedings:

Bush[ ] was charged with first degree murder in violation of [ Okla. Stat. tit. 21, § 701.7(A) ], and possession of a firearm after former conviction of a felony in violation of [ Okla. Stat. tit. 21, § 1283 ], in Grady County District Court case number CF–2008–371. The State filed a Bill of Particulars regarding the punishment for first degree murder, which alleged three aggravating circumstances: (1) the murder was especially heinous, atrocious or cruel; (2) there exists a probability that the defendant would commit criminal acts of violence such that he would constitute a continuing threat to society; and (3) the murder was committed by the defendant while he was serving a sentence of imprisonment on a conviction for a felony. [ Okla. Stat. tit. 21, § 701.12(4), (6), (7) ].

Bush proceeded to trial on October 19, 2009, before the Honorable Richard G. Van Dyck, District Judge. After the State had presented its second witness, on October 22, Bush expressed his desire to enter a blind plea. The trial court conducted a plea hearing and allowed Bush to enter an Alford plea to first degree murder and a guilty plea to possession of a firearm after former conviction of a felony. The next day a non-jury sentencing proceeding commenced pursuant to [ Okla. Stat. tit. 21, § 701.10(B) ]. Sometime during the first day of sentencing, Bush told the trial court that he wanted to withdraw his pleas, but the trial court denied his motion and advised him to wait until after being sentenced to move to withdraw the plea. At the conclusion of sentencing trial Judge Van Dyck found the existence of all three aggravating circumstances and assessed punishment at death on the first degree murder; the trial court assessed a life sentence on the firearm charge.

After being sentenced, and within the requisite ten day period, Bush filed a motion to withdraw his plea on November 9, 2009 .... The trial court held a hearing on the motion and, at the conclusion of the hearing, denied the motion.

Id. at 341–42 (paragraph numbers and footnote omitted).

Bush’s direct appeal

Bush filed a direct appeal, asserting ten propositions of error. On June 19, 2012, the OCCA issued a published opinion affirming Bush’s convictions and sentences for first degree murder and possession of a firearm after former conviction of a felony.

Bush filed a petition for writ of certiorari with the United States Supreme Court. That was denied on March 4, 2013. Bush v....