Cole v. Trammell

• Decision Date: 18 November 2013
• Docket Number: No. 11–5133.,11–5133.
• Citation: 735 F.3d 1194
• Parties: Benjamin COLE, Petitioner–Appellant, v. Anita TRAMMELL, Warden, Oklahoma State Penitentiary, Respondent–Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

735 F.3d 1194

Benjamin COLE, Petitioner–Appellant,

v.Anita TRAMMELL, Warden, Oklahoma State Penitentiary,^* Respondent–Appellee.

No. 11–5133.

United States Court of Appeals, Tenth Circuit.

Nov. 18, 2013.

Thomas Kenneth Lee, Assistant Federal Public Defender, (Robert S. Jackson, AssistantFederal Public Defender, with him on the briefs), Oklahoma City, OK, for Petitioner–Appellant.

Jennifer J. Dickson, Assistant Attorney General, (E. Scott Pruitt, Attorney General of Oklahoma, with her on the brief), Oklahoma City, OK, for Respondent–Appellant.

Before BRISCOE, Chief Judge, LUCERO and HOLMES, Circuit Judges.

BRISCOE, Chief Judge.

Petitioner Benjamin Cole, an Oklahoma state prisoner convicted of one count of first degree murder of a child and sentenced to death, appeals from the district court's denial of his petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we affirm the district court's denial of federal habeas relief.

I

Factual background

On the evening of December 20, 2002, Cole's nine-month-old daughter, Brianna Cole, began having trouble breathing. Cole “performed CPR and instructed his wife to call 911.” Cole v. State, 164 P.3d 1089, 1095 (Okla.Crim.App.2007) (Cole I ). Rescue efforts failed, however, and Brianna died. A subsequent autopsy revealed that “Brianna's spine had been snapped in half, and her aorta had been completely torn through due to non-accidental stretching.” Id. at 1092. “The official cause of death was described as a fracture of the spine with aortic laceration.” id. Cole “initially told authorities that on the night in question he went to calm his crying infant without any particular untoward incident occurring.” Id. at 1095. But when he “was later confronted with the autopsy results and placed under arrest,” id., Cole “admitted causing the fatal injuries,” id. at 1092. “In a statement he gave to police, [Cole] said he'd been trying, unsuccessfully, to get the child, who was lying on her stomach, to stop crying.” Id. Cole “eventually grabbed [Brianna] by the ankles and pushed her legs toward her head until she flipped over.” Id. “This action broke [her] back and resulted in [the] fatal injuries.” Id. Cole “took no remedial action just after this incident happened.” Id. Instead, “[h]e went and played video games, denied anything was wrong with [Brianna] when confronted by his wife, and said nothing to rescue or medical personnel about what had happened.” Id.

Cole's trial proceedings

On December 26, 2002, Cole was charged by felony information in the District Court of Rogers County, Oklahoma, with one count of first degree murder of a child, in violation of Okla. Stat. tit. 21, § 701.7(c). On November 20, 2003, the State filed a bill of particulars alleging the existence of three aggravating circumstances: (1) Cole was previously convicted of a felony involving the use or threat of violence to the person; ¹ (2) the murder was especially heinous, atrocious or cruel; and (3) the existence of a probability that Cole would commit criminal acts of violence that would constitute a continuing threat to society.

The case proceeded to trial in October 2004. At the conclusion of the first-stage evidence, the jury found Cole guilty of murder in the first degree. At the conclusion of the second-stage evidence, the jury found the existence of two of the three aggravating factors alleged in the bill of particulars—the murder was especially heinous, atrocious or cruel, and that Cole had been previously convicted of a felony involving the use or threat of violence to the person—and fixed Cole's punishment at death.

On December 8, 2004, the state trial court, in accordance with the jury's second-stage verdict, sentenced Cole to death. Judgment in the case was entered that same day.

Cole's direct appeal

Cole filed a direct appeal with the OCCA asserting thirteen propositions of error. On July 11, 2007, the OCCA issued a published opinion affirming Cole's conviction and death sentence. Cole I, 164 P.3d at 1102.

Cole's application for state post-conviction relief

On February 28, 2007, prior to the resolution of his direct appeal, Cole filed an application for state post-conviction relief with the OCCA asserting five propositions of error. On January 24, 2008, the OCCA issued an unpublished opinion denying Cole's application. Cole v. State of Okla., No. PCD–2005–23 (Okla.Crim.App. Jan. 24, 2008) ( Cole II ).

Cole's federal habeas proceedings

Cole initiated these federal habeas proceedings on June 2, 2008, by filing motions for appointment of counsel and for leave to proceed in forma pauperis. Those motions were granted and, on May 15, 2009, Cole's appointed counsel filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. The petition asserted fourteen grounds for relief.

On September 1, 2011, the district court issued an opinion and order denying Cole's petition, but granting him a certificate of appealability (COA) with respect to five issues: an alleged breakdown in communications between Cole and his defense counsel; defense counsel's failure to investigate and present additional mitigating evidence; improper admission of photographs of the victim; sufficiency of the evidence to support the heinous, atrocious or cruel aggravator; and prosecutorial misconduct. Judgment in the case was entered that same day.

Cole filed a timely notice of appeal. This court subsequently expanded the COA to include the issue of cumulative error. Cole has since filed a motion to further expand the COA to include the issue of his competency to stand trial.

II

Standard of review

Because Cole's habeas petition was filed after the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), both the district court and we are bound by AEDPA's standards of review. See Snow v. Sirmons, 474 F.3d 693, 696 (10th Cir.2007) (holding that AEPDA applies to § 2254 habeas petitions filed after its effective date).

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, our standard of review is governed by 28 U.S.C. § 2254(d), which provides:

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim—

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the

Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d).

“When reviewing a state court's application of federal law” under 28 U.S.C. § 2254(d), “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. 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.

Complete breakdown in communication between Cole and his attorneys

In Proposition One of his appellate brief, Cole argues that he “was denied his right to the effective assistance of counsel as guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution because there was a complete breakdown in communication between [himself] and his attorneys.” Aplt. Br. at 15 (emphasis omitted).

a) Facts pertaining to the claim

On July 11, 2003, Cole's defense team, comprised of two attorneys from the Oklahoma Indigent Defense System (OIDS), filed an application for a competency evaluation of Cole. State ROA, Vol. I at 55. In that application, the defense team expressed “doubts as to [Cole]'s ability to understand the nature of the charges against him and meaningfully assist his attorneys in his defense.” Id. At a subsequent hearing on July 16, 2003, one of Cole's defense attorneys stated, in pertinent part, “it's one of those situations where I don't know necessarily if Mr. Cole doesn't like, or, for some reason, is resisting our conversations or advice, or if it's a situation where he doesn't understand.” Tr. of 7/16/03 Hr'g at 3. The state trial court, at the conclusion of the hearing, ordered a competency evaluation of Cole. Id. at 5.

On August 22, 2003, the state trial court conducted a post-competency evaluation hearing. At the hearing, the defense team stipulated that the psychologist who examined Cole had found him to be competent. Tr. of 8/22/03 Hr'g at 3. In turn, the defense team “stipulated as [Cole's] counsel” that he was “competen[t] at this time.” Id. The state trial court then asked Cole, on the record, if he understood the charges against him and if he believed that he was able to consult with his counsel and rationally assist in the trial preparations. Cole answered “yes” to these questions. Id. at 4. Ultimately, Cole waived his right to a jury trial on the issue of competency and stipulated that he was competent.

Approximately eleven months later, on July 9, 2004, the defense team filed a second application for determination of competency....