Cuesta-Rodriguez v. Carpenter

Decision Date22 February 2019
Docket NumberNo. 16-6315,16-6315
Citation916 F.3d 885
Parties Carlos CUESTA-RODRIGUEZ, Petitioner - Appellant, v. Mike CARPENTER, Warden, Oklahoma State Penitentiary, Respondent - Appellee.
CourtU.S. Court of Appeals — Tenth Circuit

Michael W. Lieberman, Assistant Federal Public Defender (Randy A. Bauman, Thomas D. Hird, Assistant Federal Public Defenders, with him on the briefs), Office of the Federal Public Defender, Oklahoma City, Oklahoma, for Petitioner-Appellant.

Caroline E. J. Hunt, Assistant Attorney General (Mike Hunter, Attorney General of Oklahoma, with her on the briefs), Office of the Attorney General, Oklahoma City, Oklahoma, for Respondent-Appellee.

Before TYMKOVICH, Chief Judge, HOLMES, and PHILLIPS, Circuit Judges.

PHILLIPS, Circuit Judge.

In this habeas corpus case, Carlos Cuesta-Rodriguez challenges his Oklahoma conviction for first-degree murder and his accompanying sentence of death. The district court denied relief and denied a certificate of appealability (COA). We granted a COA, agreeing to hear a number of Cuesta-Rodriguez’s claims. Exercising jurisdiction under 28 U.S.C. § 2253(a), we agree with the district court and conclude that Cuesta-Rodriguez isn’t entitled to relief.

I. The Crime of Conviction

The following facts come from the direct-appeal decision of the Oklahoma Court of Criminal Appeals (OCCA), Cuesta-Rodriguez v. State , 241 P.3d 214 (Okla. Crim. App. 2010). We presume that the OCCA’s factual findings are correct. See 28 U.S.C. § 2254(e)(1) (establishing that state-court determinations of fact "shall be presumed to be correct" unless rebutted by "clear and convincing evidence").

Olimpia Fisher—the victim—and her adult daughter, Katya Chacon, lived with Cuesta-Rodriguez in a home Fisher and Cuesta-Rodriguez had purchased together. In the year following the home purchase, Cuesta-Rodriguez and Fisher’s relationship was strained. Fisher was working long hours as a moving-company packer, and Cuesta-Rodriguez feared she was cheating on him. Whenever Fisher and Chacon would leave the house, Cuesta-Rodriguez would question them "about where they were going and what they would be doing." Cuesta-Rodriguez , 241 P.3d at 222. The relationship deteriorated to the point that both Cuesta-Rodriguez and Fisher wanted the other to move out.

On May 20, 2003, Fisher went to the local police station "to make a complaint of domestic abuse." Id. The interviewing officer "observed bruising on her right upper arm and stomach." Id. But when Fisher realized that the officer "was going to take photographs of the bruising and that Cuesta-Rodriguez would be arrested, she ran out of the station." Id.

On May 31, 2003, Cuesta-Rodriguez called Fisher on her cell phone. She answered and replied that she was at work. But Cuesta-Rodriguez had gone by her place of work earlier and knew she wasn’t there. "Believing she was cheating on him, he went home, drank some tequila, and went to bed." Id.

Around 10 p.m., Chacon came home to a dark house. She saw an empty bottle of tequila1 with a note beside it. The note, written on the back of an envelope, read, "fuck you bitches and puntas, goodbye." Trial Tr. vol. II at 381:2. After realizing Cuesta-Rodriguez was home, Chacon attempted to contact her mother. Unable to reach her by phone, Chacon left the house and joined Fisher as she was getting off work. The two ate a late dinner at McDonald’s and went home. Though they initially planned to pack and leave that night, they decided to stay overnight, Chacon sleeping in her own bedroom and Fisher sleeping in a third bedroom.

Around 4:30 a.m., Chacon awoke to the sounds of Fisher and Cuesta-Rodriguez arguing. She went to the bedroom where the two were fighting and persuaded Fisher to come back to her (Chacon’s) bedroom "in the hope that Cuesta-Rodriguez would leave them alone." Cuesta-Rodriguez , 241 P.3d at 222. But "Cuesta-Rodriguez followed the women into [Chacon’s] bedroom while continuing to argue loudly with Fisher." Id.

Fisher picked up a phone, but Cuesta-Rodriguez grabbed it and tossed it from her reach. At the same time, he pulled out a pistol "and blasted Fisher in the right eye."2 Id. Chacon "retrieved a baseball bat from under the bed and tried to hit Cuesta-Rodriguez in the hand." Id. He "grabbed the bat as [she] swung it and threw it to the floor." Id. Chacon ran from the building and called 911 from a neighbor’s house.

After being shot, Fisher was still conscious. Cuesta-Rodriguez "took her to his bedroom where, despite having an eye blown out, Fisher continued to fight and struggle." Id. at 223. Around 4:41 a.m., the first police officers arrived on the scene (within two minutes of being dispatched by 911). Officers approached the house and heard Fisher "screaming and banging on a bedroom window as if she was trying to escape." Id. The house’s windows and doors "were covered with burglar bars that not only prevented her escape, but also prevented entry by police." Id. The officers attempted to enter by "kicking in the front door," but that failed. Id. While attempting to enter the building, the officers heard a gunshot—and then Fisher’s screams stopped. An autopsy later revealed a second, fatal gunshot wound to Fisher’s left eye.

Certain that Fisher was dead and "that Cuesta-Rodriguez was armed, police summoned their tactical team." Id. Meanwhile, a police hostage negotiator attempted to convince Cuesta-Rodriguez to come outside.

Using a specialized tool called a "jam-ram," the tactical team forced their way through the front-door burglar bars. Id. Officers arrested Cuesta-Rodriguez and took him to the police station. He gave statements to detectives that day and the following day—and in both interviews admitted to shooting Fisher (though he claimed the first shot was accidental). Photographs of Fisher’s face showed gunshot wounds to both eyes.3

II. The Trial4

The state of Oklahoma put Cuesta-Rodriguez on trial for first-degree murder, and prosecutors sought the death penalty.

A. The Guilt Phase

During the trial, the court admitted testimony from Dr. Jeffrey Gofton based on the report of an autopsy performed by another doctor (Dr. Fred Jordan) who wasn’t present and wouldn’t be subject to cross-examination.5 "Dr. Gofton testified regarding the examination of the body conducted by Dr. Jordan and gave his own opinions on Fisher’s injuries and cause of death based on Dr. Jordan’s observations as recorded in his autopsy report." Cuesta-Rodriguez , 241 P.3d at 226–27. "Dr. Gofton explained to the jury the nature of [Fisher’s] injuries ... and recited other observations mentioned in Dr. Jordan’s report." Id. at 229. "He concluded that a firearm injury to the head was the cause of death and opined that among several possibilities, the method of death was most likely choking on blood that had entered the airway from bone fracturing in the nasal area." Id. He explained that "Fisher would have lost consciousness in a matter of seconds to minutes and could have taken as long as eight minutes to aspirate on the blood." Id. He also pronounced that the second gunshot "was the likely cause of death." Id.

At the end of the trial, the jury found Cuesta-Rodriguez guilty of murder in the first degree.

B. The Penalty Phase

The defense presented evidence of several mitigating circumstances, detailing, among other things, Cuesta-Rodriguez’s troubled childhood, his history of alcohol and substance abuse, as well as his experiences emigrating from Cuba.6 His counsel introduced testimony about Cuesta-Rodriguez’s good behavior in jail. And his employer and co-workers testified regarding his work ethic and abilities. Family members (both in taped interviews and in person) discussed Cuesta-Rodriguez’s background and good qualities. And they expressed their love for him and asked the jury to impose a non-capital sentence.

The jury heard from a psychologist (Dr. James Choca) who testified "ostensibly" in mitigation.7 Appellant’s Opening Br. at 7. Dr. Choca told the jury about a childhood injury from when Cuesta-Rodriguez "hit his head against [a] windshield and fractured his skull." Trial Tr. vol. V at 982:19–20. After hospitalization "a metal plate had to be put in" his skull.8 Id. at 982:21. The doctor also told the jury about an injury that took place years later in the United States: while working at a lumber yard and driving a tractor, Cuesta-Rodriguez "fell off the tractor and was dragged by the tractor for a few yards until someone was able to stop it."9 Id. at 983:18–20. As a result of that incident, Dr. Choca testified, Cuesta-Rodriguez suffered from back pain and took pain medication. The doctor discussed Cuesta-Rodriguez’s history of depression and substance abuse. And he discussed Cuesta-Rodriguez’s "social history" "to get some sense for what he had been through." Id. at 985:3, 6–7, 985:9–991:24 (discussing Cuesta-Rodriguez’s "difficult life"). Dr. Choca determined that Cuesta-Rodriguez had borderline-personality disorder and discussed the effect of that condition.

Allegedly due to the failure of trial counsel, the jurors didn’t hear any additional mitigation evidence regarding Cuesta-Rodriguez’s organic brain damage from the childhood incident. Nor did they hear about his post-traumatic stress disorder.10

At the penalty phase of trial, the state argued that Cuesta-Rodriguez deserved the death penalty based on two aggravating circumstances: (1) the heinousness, atrociousness, or cruelty of the murder and (2) the continuing risk Cuesta-Rodriguez posed to society. We now outline the prosecution’s comments that are at issue on appeal. These fall into two categories: (1) comments regarding the jury instruction on mitigating circumstances and (2) comments regarding the mitigation evidence that the defense presented.

1. Comments Regarding Jury Instruction

During the penalty phase, the court gave the jury an instruction (instruction nine) that defined mitigating circumstances and explained the jury’s role in considering them. Instruction nine states:


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