Cole v. Workman

• Decision Date: 01 September 2011
• Docket Number: Case No. 08-CV-0328-CVE-PJC
• Parties: BENJAMIN COLE, Petitioner, v. RANDALL WORKMAN, Warden, Oklahoma State Penitentiary Respondent.
• Court: U.S. District Court — Northern District of Oklahoma

BENJAMIN COLE, Petitioner, v. RANDALL WORKMAN, Warden, Oklahoma State Penitentiary Respondent.

Case No. 08-CV-0328-CVE-PJC

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OKLAHOMA

Dated: September 1, 2011

OPINION AND ORDER

This matter comes before the Court on a Petition for Writ of Habeas Corpus (Dkt. # 16) filed by Oklahoma death row inmate, Benjamin Cole, pursuant to 28 U.S.C. § 2254. Cole, who appears through counsel, challenges his conviction and sentence in Rogers County District Court Case No. CF-02-597. Respondent filed a response (Dkt. # 23) to the petition, and Cole filed a reply (Dkt. # 28) to the response. The state court record has been produced.¹ See Dkt. # 30. The Court considered all of these materials in reaching its decision. For the reasons discussed below, the Court concludes the petition should be denied.

BACKGROUND

I. Factual Background

Pursuant to 28 U.S.C. § 2254(e)(1), the historical facts found by the state court are presumed correct unless rebutted by clear and convincing evidence. In considering the issues presented in thepetition, the Court relied upon the following synopsis from the Oklahoma Court of Criminal Appeals (OCCA) in that court's opinion on direct appeal. Following review of the record, trial transcripts, trial exhibits, and other materials submitted by the parties, the Court finds this summary by the OCCA is adequate and accurate. Therefore, the Court adopts the following summary as its own:²

Appellant's nine-month-old daughter, Brianna Cole, was murdered on December 20, 2002. According to the State Medical Examiner, Brianna's spine had been snapped in half, and her aorta had been completely torn through due to non-accidental stretching. The official cause of death was described as a fracture of the spine with aortic laceration.

Appellant eventually admitted causing the fatal injuries. In a statement he gave to police, Appellant said he'd been trying, unsuccessfully, to get the child, who was lying on her stomach, to stop crying. Appellant eventually grabbed his daughter by the ankles and pushed her legs toward her head until she flipped over. This action broke the child's back and resulted in fatal injuries.

Evidence was admitted that Appellant took no remedial action just after this incident happened. He went and played video games, denied anything was wrong with the child when confronted by his wife, and said nothing to rescue or medical personnel about what had happened. (He did, however, attempt CPR when the situation turned grave, before the ambulance arrived.) Only after rescue efforts had failed and an autopsy was performed did the medical personnel learn that Brianna's spine had been snapped. The autopsy physician testified that the injury required a great amount of force and would not be the result of normal back-bending by a nine month old. The death was eventually ruled a homicide. When told of this fact by the authorities, Appellant asked, "How many years am I looking at?" At this point, Appellant confessed his responsibility for the injuries.

Cole v. State, 164 P.3d 1089, 1092-93 (Okla. Crim. App. 2007).

II. Procedural History

Cole challenges his conviction and sentencing in Rogers County District Court Case, No. CF-02-597. He was tried by jury and convicted of first degree child abuse murder pursuant to Okla.Stat. tit. 21, § 701.7(C). The jury found the existence of two aggravating circumstances: (1) that Cole had been previously convicted of a felony involving the use or threat of violence to the person; and (2) that the murder was especially heinous, atrocious, or cruel. See Cole, 164 P.3d at 1092. The jury recommended a death sentence. In accordance with the jury's recommendation, the Honorable J. Dwayne Steidley sentenced Cole to death.

On direct appeal, Cole raised the following thirteen propositions of error:

Proposition I: The introduction into evidence of Cole's prior criminal conviction and prison sentence for aggravated child abuse in California during first stage proceedings, through multiple witnesses, resulted in overwhelmingly unfair prejudice in violation of Cole's rights under the Sixth, Eighth, and Fourteenth Amendments to the United States Constitution and Article II, Section 7 of the Oklahoma Constitution.

Proposition II: The trial court's denial of Cole's motion for a continuance of the trial in order to prepare and acquire critical mitigation evidence violated Cole's constitutional rights under the Sixth, Eighth, and Fourteenth Amendments to the United States Constitution and Article II, Section 7 of the Oklahoma Constitution.

Proposition III: The trial court's admission of gruesome autopsy photographs at trial deprived Cole of his constitutional right to a fundamentally fair jury trial pursuant to the Sixth, Eighth, and Fourteenth Amendments to the United States Constitution and Article II, Sections 7 and 9 of the Oklahoma Constitution.

Proposition IV: The trial court denied Cole the right to effective assistance of counsel when Cole developed a conflict with trial counsel and requested to have them replaced and the trial court refused and forced Cole to trial in violation of the Sixth, Eighth, and Fourteenth Amendments to the United States Constitution and Article II, Sections 7 and 20 of the Oklahoma Constitution.

Proposition V: Prosecutorial misconduct in seeking sympathy for the decedent violated Cole's right to a fundamentally fair trial and sentencing proceeding in violation of the Sixth, Eighth, and Fourteenth Amendments to the United States Constitution and Article II, Sections 7 and 20 of the Oklahoma Constitution.

Proposition VI: The jury in this case was given an erroneous instruction regarding the "heinous, atrocious, or cruel" aggravating circumstance which rendered Cole's sentencing proceeding constitutionally invalid; the evidence was insufficient to support this aggravating circumstance; and the aggravating circumstance is unconstitutionally vague and overbroad as it is being applied currently in Oklahoma in violation of Cole's rights pursuant to the Eighth and Fourteenth Amendments to the United States Constitution and Article II, Section 7 of the Oklahoma Constitution.

Proposition VII: The status of Oklahoma's crime of child abuse murder as one of general intent fails to provide a constitutionally adequate culpability requirement that must result in vacatur of the death sentence in this case as having been imposed in violation of the Eighth and Fourteenth Amendments to the United States Constitution and Article II, Sections 7 and 9 of the Oklahoma Constitution.

Proposition VIII: The introduction of the details of Cole's prior conviction from California during first stage proceedings prejudiced Cole during penalty phase proceedings and resulted in a death sentence obtained in violation of the Eighth and Fourteenth Amendments to the United States Constitution and Article II, Sections 7 and 9 of the Oklahoma Constitution.

Proposition IX: The introduction into evidence of a full-color photograph of the minor decedent depicting her in life (in a staged portrait setting) during penalty phase proceedings violated Cole's constitutional rights under the Eighth and Fourteenth Amendment to the United States Constitution, and his right to be free from the effect of ex post facto laws.

Proposition X: Second stage jury instructions deprived Cole of a fundamentally fair sentencing proceeding in violation of the Eighth and Fourteenth Amendments to the United States Constitution and Article II, Sections 7 and 9 of the Oklahoma Constitution.

Proposition XI: Cole was denied his constitutional right to jury trial by the failure of the trial court to instruct the jury that it must find that the aggravating circumstances outweighed the mitigating evidence beyond a reasonable doubt in violation of the Sixth, Eighth, and Fourteenth Amendments to the United States Constitution.

Proposition XII: The accumulation of errors during both stages of trial resulted in a fundamentally unfair adjudicatory proceeding in violation of Cole's rights pursuant to the Fourteenth Amendment to the United States Constitution and Article II, Section 7 of the Oklahoma Constitution.

Proposition XIII: Cole's conviction and death sentence was imposed under the influence of passion, prejudice and was otherwise arbitrary; and in addition, the state presented insufficient evidence to support the "heinous, atrocious, or cruel" aggravating circumstance in violation of Cole's rights under the Fourteenth Amendment to the United States Constitution and Article II, Section 7 of the Oklahoma Constitution.

The OCCA affirmed his conviction and sentence. Cole v. State, 164 P.3d 1089 (Okla. Crim. App. 2007). On May 19, 2008, in Cole v. Oklahoma, 553 U.S. 1055 (2008), the United States Supreme Court denied Cole's petition for writ of certiorari.

Cole filed an application for post-conviction relief on February 28, 2007 in which he raised the following five propositions of error:

Proposition I: Mr. Cole was incompetent to stand trial and may be presently incompetent as well.

Proposition II: Trial counsel's failure to present compelling mitigating evidence in the second stage rendered their performance deficient to the prejudice of Mr. Cole.

Proposition III: Appellate counsel's performance on direct appeal was deficient and deprived Mr. Cole of full and fair appellate proceedings in violation of the Sixth, Eighth, and Fourteenth Amendments to the United States Constitution.

Proposition IV: New rule of law renders Mr. Cole's sentence suspect and unreliable in violation of his due process right to a fundamentally fair trial.

Proposition V: The cumulative impact of errors identified on direct appeal and post conviction rendered the proceeding resulting in the death sentence arbitrary, capricious, and unreliable, the death sentence in this case constitutes cruel and unusual punishment and a denial of due process of law and must be reversed or modified to life imprisonment or life without parole.

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