Castro v. Ward

• Decision Date: 02 March 1998
• Docket Number: No. 97-6179,97-6179
• Citation: 138 F.3d 810
• Parties: 98 CJ C.A.R. 981 John Walter CASTRO, Sr., Petitioner--Appellant, v. Ron WARD, Respondent--Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 810

138 F.3d 810

98 CJ C.A.R. 981

John Walter CASTRO, Sr., Petitioner--Appellant, v. Ron WARD, Respondent--Appellee.

No. 97-6179.

United States Court of Appeals Tenth Circuit.

Decided March 2, 1998.

Robert Wade Jackson (Steven M. Presson, with him on the briefs), Jackson & Presson, P.C., Norman, OK, for Petitioner-Appellant.

William L. Humes, Assistant Attorney General (W.A. Drew Edmondson, Attorney General of Oklahoma, with him on the brief), Oklahoma City, OK, for Respondent-Appellee.

Before PORFILIO, ANDERSON, and BALDOCK, Circuit Judges.

STEPHEN H. ANDERSON, Circuit Judge.

Petitioner John Walter Castro, Sr. appeals the denial of his petition for a writ of habeas corpus seeking to overturn his conviction and sentence of death for first degree murder. We affirm.

BACKGROUND

On June 6, 1983, Mr. Castro was arrested for the armed robbery and felony-murder of Rhonda Pappan in Ponca City, Oklahoma. He was placed in the Kay County jail. In August of 1983, Mr. Castro's cell mate in Kay County, Steven Gregory, told a district attorney investigator that Mr. Castro had drawn a map detailing the location of a body. Gregory later led authorities to the body of Beulah May Cox, the woman for whose murder Mr. Castro was convicted and sentenced to death in this case. As revealed by Mr. Castro's own testimony, the basic facts of the crime are the following: Mr. Castro accepted a ride from Ms. Cox and became angry at her as they drove around in her car and talked. After asking her to drive down a secluded dirt road, Mr. Castro pulled a gun, directed Ms. Cox away from her car, and, while she sat with her back to him, Mr. Castro shot her in the head three times at close range.

On September 26, 1983, an information charging Mr. Castro with the Cox murder was filed in Noble County, Oklahoma. On September 30, 1983, Mr. Castro confessed to After voir dire, trial to the jury on the Cox murder took place between March 4 and March 11, 1985. At the conclusion of the first stage of the trial, on the same day the trial ended, the jury found Mr. Castro guilty of first degree murder and larceny of an automobile. At the conclusion of the second stage, the jury sentenced him to death on the murder charge and 20 years' imprisonment on the larceny charge. The statutory aggravator supporting the death sentence was the "continuing threat" aggravator of Okla. Stat. Ann. tit. 21, § 701.12(7).

                the Cox murder to law enforcement officials.  On November 8, 1983, the State of Oklahoma filed its bill of particulars against Mr. Castro for the Cox murder and theft of her car, charging he committed the murder to avoid arrest or prosecution and that he posed a continuing threat to society.  He pled not guilty.  On April 17, 1984, Mr. Castro was found guilty in Kay County of the armed robbery and felony-murder of Ms. Pappan, and sentenced to death. 1  On June 1, 1984, Mr. Castro was arraigned on the murder and theft charges involving Ms. Cox
                

Mr. Castro's conviction and sentence were affirmed on direct appeal. Castro v. State, 844 P.2d 159 (Okla.Crim.App.1992), cert. denied, 510 U.S. 844, 114 S.Ct. 135, 126 L.Ed.2d 98 (1993). Mr. Castro sought post-conviction relief in state court, which was denied. The Oklahoma Court of Criminal Appeals affirmed. Castro v. State, 880 P.2d 387 (Okla.Crim.App.1994), cert. denied, 514 U.S. 1024, 115 S.Ct. 1375, 131 L.Ed.2d 229 (1995).

Mr. Castro then filed this habeas petition in federal district court on December 15, 1995. The court denied his request for discovery and for an evidentiary hearing, finding that "the facts underlying Petitioner's constitutional claims [were] fully developed in his state court proceedings." Memorandum Op. and Order at 1, R. Vol. I at Tab 24. The court denied his habeas petition on May 1, 1997, and granted a certificate of appealability. The Antiterrorism and Effective Death Penalty Act, Pub.L. No. 104-132, 110 Stat. 1214, does not apply. See Duvall v. Reynolds, 131 F.3d 907, 915-16 (10th Cir.1997).

Mr. Castro raises the following issues on appeal: (1) Oklahoma's continuing threat aggravator is unconstitutionally vague and overbroad on its face and as applied; (2) Oklahoma failed to determine whether Mr. Castro was competent prior to trial; (3) Steven Gregory, the cell mate to whom Mr. Castro made incriminating statements and who testified against Mr. Castro, was an agent of the state and his testimony was admitted in violation of Mr. Castro's constitutional rights; (4) Mr. Castro was denied his right to a speedy trial by the eight month delay between the date the information was filed against him and his arraignment, and by the sixteen month delay between the filing of the information and his trial; (5) statements Mr. Castro made to various state officials were inadmissible, for various reasons; (6) erroneous jury instructions were given in the penalty stage of the trial, which allowed the jury to believe that it had to unanimously find any mitigating factors; (7) a venire person, Patricia Lumbers, was improperly removed for cause; (8) the jury instruction on insanity was improper; (9) evidence of Mr. Castro's likelihood of rehabilitation was improperly admitted during the first (guilt/innocence) phase of the trial; (10) Mr. Castro was denied funds to hire an investigator and denied sufficient funds for a mental health expert; (11) Mr. Castro's trial and appellate counsel were ineffective; (12) the state court and the federal district court failed to conduct an evidentiary hearing; (13) cumulative errors rendered the entire trial unconstitutional; and (14) the district court erred in not permitting discovery.

DISCUSSION

As a federal court conducting a review in habeas of state court determinations, our role is " 'secondary and limited.' " Hatch v. Oklahoma, 58 F.3d 1447, 1453 (10th Cir.1995). "Although we review legal conclusions

de novo, a state court's factual findings are entitled to a presumption of correctness." Id. (citations omitted); see also Case v. Mondragon, 887 F.2d 1388, 1393 (10th Cir.1989). Mixed questions of law and fact are reviewed de novo, but "the presumption of correctness will continue to apply to any findings of fact underlying mixed questions." Case, 887 F.2d at 1393.

I. "Continuing Threat" Aggravator

As we acknowledged in Castro I, Oklahoma is a weighing state. "Accordingly, the jury must find the existence of at least one aggravating factor beyond a reasonable doubt and then must conclude the aggravating circumstance or circumstances outweigh any mitigating evidence presented by the defendant before it may recommend a death sentence." Castro I, 71 F.3d at 1506 n. 3 (citing Okla. Stat. Ann. tit. 21, § 701.11-.12). Among the statutory aggravating factors in Oklahoma is "[t]he existence of a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society." Okla. Stat. Ann. tit. 21, § 701.12(7). Mr. Castro challenges that factor, arguing it is vague and overbroad, both on its face and as applied.

This court recently upheld the constitutionality of that aggravating factor in Nguyen v. Reynolds, 131 F.3d 1340 (10th Cir.1997), stating "the continuing threat factor used in the Oklahoma sentencing scheme does not violate the Eighth Amendment." Id. at 1354. In so holding, we noted that the Supreme Court rejected a vagueness challenge to a "nearly identical" aggravating factor in Jurek v. Texas, 428 U.S. 262, 274-75, 96 S.Ct. 2950, 2957, 49 L.Ed.2d 929 (1976). Id. at 1353. The State, and Oklahoma courts, in their consistent rejection of the argument that the "continuing threat" aggravator is unconstitutional, rely on Jurek. Mr. Castro attempts to distinguish Jurek on a number of grounds, one of which we rejected in Nguyen--that Texas uses the continuing threat aggravator only in the selection process, not in both the eligibility and selection process, as Oklahoma does.

In Nguyen we also explained why we rejected the reasoning of Williamson v. Reynolds, 904 F.Supp. 1529 (E.D.Okla.1995), aff'd in part, reversed in part, 110 F.3d 1508 (10th Cir.1997), in which the district court held that the "continuing threat" aggravator was vague and violated due process. Id. at 1571. Mr. Castro understandably places great reliance upon Williamson, and urges us to adopt its reasoning. As Nguyen points out, Williamson failed to discuss or even cite Jurek. Nguyen, 131 F.3d at 1354. And Tuilaepa v. California, 512 U.S. 967, 114 S.Ct. 2630, 129 L.Ed.2d 750 (1994) makes clear that Jurek held that Texas' continuing threat aggravator was not unconstitutionally vague: the Court noted "the numerous factors we have upheld against vagueness challenges" including, in Jurek, holding that the continuing threat aggravator "is not unconstitutionally vague." Id. at 974, 114 S.Ct. at 2636.

Mr. Castro further attempts to distinguish Nguyen by arguing that it only addressed the issue of whether the "continuing threat" aggravator was unconstitutionally vague, but that it did not address the separate issue of whether the aggravator is unconstitutionally overbroad as applied by the Oklahoma courts. As the Supreme Court has stated, there are two phases in a death penalty proceeding: the eligibility decision and the selection decision. Tuilaepa, 512 U.S. at 971, 114 S.Ct. at 2634. For a defendant to be eligible for the death penalty in a homicide case, "the trier of fact must convict the defendant of murder and find one 'aggravating circumstance' (or its equivalent) at either the guilt or penalty phase." Id. at 972, 114 S.Ct. at 2634. The aggravating circumstance must satisfy two criteria to be constitutional. "First, the circumstance may not apply to every defendant convicted of a murder; it must apply only to a subclass of defendants convicted of murder." Id.; see also Brecheen v. Reynolds, 41 F.3d 1343, 1360 (10th Cir.1994). "Second, the aggravating circumstance may not be unconstitutionally vague." Tuilaepa, 512 U.S. at 972, 114...