Eizember v. Trammell

• Decision Date: 15 September 2015
• Docket Number: No. 14–6012.,14–6012.
• Citation: 803 F.3d 1129
• Parties: Scott EIZEMBER, Petitioner–Appellant, v. Anita TRAMMELL, Warden, Oklahoma State Penitentiary, Respondent–Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

803 F.3d 1129

Scott EIZEMBER, Petitioner–Appellant

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

No. 14–6012.

United States Court of Appeals, Tenth Circuit.

Sept. 15, 2015.

Randall T. Coyne, University of Oklahoma College of Law, Norman, OK (Edna Asper Elkouri and Frank Elkouri, Professor of Law, and Mark Henricksen of Henricksen & Henricksen Lawyers, Inc., Oklahoma City, OK, with him on the briefs), for Petitioner–Appellant.

Jennifer Dickson, Assistant Attorney General (E. Scott Pruitt, Attorney General of Oklahoma, and Seth S. Branham, Assistant Attorney General, on the brief) of the Oklahoma Office of the Attorney General, Oklahoma City, OK, for Respondent–Appellee.

Before BRISCOE, Chief Judge, GORSUCH and McHUGH, Circuit Judges.

Opinion

GORSUCH, Circuit Judge.

Scott Eizember left a Tulsa jail intent on settling a score. He was upset with his ex-girlfriend, Kathy Biggs, because she had tipped off authorities about his violation of a protective order. So just as soon as he could he made for her hometown of Depew. Once there, he noticed an elderly couple leaving a house across the street from Ms. Biggs's home. Mr. Eizember decided the place would make an ideal lookout for Ms. Biggs and, after the couple left, he broke in. But A.J. and Patsy Cantrell didn't stay away as long as Mr. Eizember hoped, and when they returned home they found him pointing their own shotgun at them. A tense exchange followed but eventually things calmed down enough that Mr. Eizember set the gun down. It was then Mr. Cantrell saw his opportunity. He grabbed the gun and fired. The shot hit Mr. Eizember in the hand—but also tragically struck and killed Mrs. Cantrell. In what followed, Mr. Eizember wrestled the gun away from Mr. Cantrell and proceeded to beat him with it until he fell unconscious. Then Mr. Eizember dragged the Cantrells' bodies into the bathroom, where Mr. Cantrell was left to—and did—die.

The Cantrells' deaths proved only the beginning of things. Next, Mr. Eizember headed across the street, shotgun in hand, toward Ms. Biggs's house. Her son, Tyler Montgomery, saw him coming and tried to run, but before he could Mr. Eizember shot him in the back. Then Mr. Eizember turned on Mr. Montgomery's nearby grandmother, Carla Wright, and beat her with the shotgun too. Somehow in the midst of this melee Mr. Montgomery recovered enough to run out of the house and into his pickup truck. Mr. Eizember followed right behind, jumping into the truck bed. Mr. Montgomery drove off erratically, hoping to shake Mr. Eizember, but he wouldn't be budged and even shot Mr. Montgomery again. Eventually Mr. Montgomery crashed into a pole, jumped out, and ran for help. Mr. Eizember headed in the other direction and managed to hitch a ride. When the driver grew suspicious, though, Mr. Eizember fired a shot at him too and leapt from the car.

For the next eleven days Mr. Eizember went to ground. Hiding in wooded areas around Depew—resurfacing only to steal clothes and a pistol from a nearby house—he succeeded in evading a police dragnet. But in time he realized he needed to make a break for it. So he stole a car he found outside a church, somehow eluded police lines, and made his way out of town. Soon, though, the car ran out of gas, leaving Mr. Eizember to continue his odyssey hitchhiking.

Continue it he did. Seeing Mr. Eizember on the roadside, Dr. Sam Peebles and his wife, Suzanne, stopped and offered him a lift. But as soon as he was settled in the car, Mr. Eizember turned his pistol on the couple and ordered them to drive him to Texas. The journey lasted hours. Finally, during a roadside break in Texas, Dr. Peebles drew his own revolver and shot Mr. Eizember. Mr. Eizember replied by wresting the revolver away and bludgeoning Dr. Peebles with the pistol he'd stolen back in Oklahoma. Then Mr. Eizember tried to shoot Mrs. Peebles. When the pistol wouldn't fire, he struck her in the head instead and ran off. But it seems the wounds Dr. Peebles inflicted eventually caught up with Mr. Eizember. At a nearby convenience store the clerk heard he'd been shot and called the police. It was only then that the authorities at last arrested Mr. Eizember, taking him first to a hospital to recover, and, in time, to Oklahoma for trial.

A jury there found Mr. Eizember guilty of more than a few crimes: first-degree murder for Mr. Cantrell's death, second-degree felony murder for Mrs. Cantrell's death, assault and battery with a dangerous weapon for the attack on Mrs. Wright, shooting with intent to kill for the attack on Mr. Montgomery, and first-degree burglary for breaking into the Wrights' home. For the first-degree murder charge, the jury found two aggravating circumstances—that Mr. Eizember knowingly created a great risk of death to more than one person and that the murder was especially heinous, atrocious, or cruel—and sentenced him to death. For all the rest, the jury or judge settled on lesser sentences.

Mr. Eizember's various challenges to his convictions and sentences have so far proven unfruitful. The Oklahoma Court of Criminal Appeals rejected his direct appeal in Eizember v. State, 164 P.3d 208 (Okla.Crim.App.2007), and the United States Supreme Court denied certiorari, Eizember v. Oklahoma, 552 U.S. 1269, 128 S.Ct. 1676, 170 L.Ed.2d 374 (2008). The OCCA separately denied postconviction relief. Eizember v. State, No. PCD–2005–371 (Okla.Crim.App. Aug. 20, 2007). As did a federal district court. Eizember v. Trammell,

No. 08–CV–00377–C, 2013 WL 6670275 (W.D.Okla. Dec. 18, 2013). But in the district court Mr. Eizember did manage to obtain a certificate of appealability permitting him to raise a number of issues in this court and it is to them we now turn.

*

First and primarily, Mr. Eizember argues that the state trial court should have excluded two jurors—known in these proceedings by their initials, D.B. and J.S.—because they were impermissibly biased in favor of the death penalty. The trial court's failure to dismiss them, he says, renders his death sentence invalid. But both the OCCA and the federal district court disagreed with this conclusion. And because the OCCA addressed this claim of error on the merits (as it did all the claims Mr. Eizember now raises), the Antiterrorism and Effective Death Penalty Act of 1996 permits us to afford relief for putative legal errors only if we can say the state court's decision was either “contrary to” or “an unreasonable application of” clearly established federal law as determined by the Supreme Court. 28 U.S.C. § 2254(d)(1). Mr. Eizember's habeas petition and his appeal to this court focus solely on the latter question, accepting that the OCCA “identifie[d] the correct governing legal rule” but disputing whether the court “unreasonably applie[d] [that rule] to the facts” of his case. Williams v. Taylor, 529 U.S. 362, 407, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000).

What is the Supreme Court's clearly established rule in this area? In Wainwright v. Witt, 469 U.S. 412, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985), the Court held that “the proper standard for determining when a prospective juror may be excluded for cause because of his or her views on capital punishment ... is whether the juror's views would ‘prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.’ ” Id. at 424, 105 S.Ct. 844 (quoting Adams v. Texas, 448 U.S. 38, 45, 100 S.Ct. 2521, 65 L.Ed.2d 581 (1980) ). So, by way of example, the Court has recognized that someone “who will automatically vote for the death penalty in every case will fail in good faith to consider the evidence of aggravating and mitigating circumstances” (as the law requires) and thus necessarily fail the Witt standard. Morgan v. Illinois, 504 U.S. 719, 729, 112 S.Ct. 2222, 119 L.Ed.2d 492 (1992). Still, the Court has cautioned, that's only an example: Witt 's substantial-impairment test isn't limited only to those jurors who would automatically vote one way or the other. See Witt, 469 U.S. at 424–26, 105 S.Ct. 844.

At the same time, the Court has stressed that the trial judge is best positioned to determine whether a potential juror will be able to follow his or her instructions—and that a court of appeals removed from the live proceedings must afford significant deference to the trial judge's assessments. In the Supreme Court's telling: “Deference to the trial court is appropriate because it is in a position to assess the demeanor of the venire, and of the individuals who compose it,” including not only what they say but also their “nonverbal communication”—factors all of “critical importance in assessing the attitude and qualifications of potential jurors.” Uttecht v. Brown, 551 U.S. 1, 9, 127 S.Ct. 2218, 167 L.Ed.2d 1014 (2007).

How do these established standards play out when we're called on to review not a federal trial court on direct appeal but the reasonableness of a state's application of federal law on collateral review? In Brown the Court explained that a federal court owes what we might fairly describe as double deference: one layer of deference because only the trial court is in a position to assess a prospective juror's demeanor, and an “additional” layer of deference because of AEDPA's “independent, high standard” for habeas review. See id. at 9–10, 127 S.Ct. 2218. Indeed, the Court stressed that where, as here, the record reveals a “lengthy questioning of a prospective juror and the trial court has supervised a diligent and thoughtful voir dire, the trial court has broad discretion” on the issue of exclusion. Id. at 20, 127 S.Ct. 2218.

With these standards in mind, we turn first to Mr. Eizember's challenge to juror D.B. Mr. Eizember argues that D.B.'s answers to a written questionnaire show she should have been excused. For this he relies primarily on the following six responses:

42. Have you ever formed an opinion either in favor or against the death penalty? If so, explain.

Yes X No ____

I firmly

...