Fitzgerald v. Trammell

• Decision Date: 07 October 2013
• Docket Number: No. 03-CV-531-GKF-TLW,03-CV-531-GKF-TLW
• Parties: JAMES J. FITZGERALD, Petitioner, v. ANITA TRAMMELL, Warden, Oklahoma State Penitentiary, Respondent.
• Court: U.S. District Court — Northern District of Oklahoma

JAMES J. FITZGERALD, Petitioner, v. ANITA TRAMMELL, Warden, Oklahoma State Penitentiary, Respondent.

No. 03-CV-531-GKF-TLW

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OKLAHOMA

DATED: October 7, 2013

OPINION AND ORDER

This matter comes before the court on a Petition for Writ of Habeas Corpus (Dkt. # 24) filed by Oklahoma death row inmate James Fitzgerald ("Petitioner"), pursuant to 28 U.S.C. § 2254, and the Report and Recommendation (Report) (Dkt. # 159), filed July 22, 2013, by Magistrate Judge T. Lane Wilson, recommending that the Court conditionally grant a writ of habeas corpus based on Petitioner's Ground 7 claim of ineffective assistance of counsel. As more fully discussed below, this court conditionally grants the petition on Ground 7 because Petitioner received ineffective assistance of counsel at his resentencing trial and denies the petition on the remaining grounds.

Petitioner, who appears through counsel, challenges his conviction and sentencing in Tulsa County District Court, Case No. CF-94-3451. In support of his petition and request for an evidentiary hearing, Petitioner submitted a Habeas Appendix One to Petition for Writ of Habeas Corpus (Dkt. # 25). Respondent filed a response to the Petition (Dkt. # 41). Petitioner filed a Reply (Dkt. # 52). Petitioner also filed a Supplemental Authority Regarding Ground One of his Petition for Habeas Corpus Relief (Dkt. # 55) and an additional Supplemental Authority in support of his Petition (Dkt. # 63). By Order filed August 9, 2010 (Dkt. # 72), the court granted Petitioner'srequest for an evidentiary hearing as to Ground 7 as raised in the Petition for Writ of Habeas Corpus. By Opinion and Order filed August 25, 2011 (Dkt. # 104), the court denied Respondent's request to reconsider the Order granting an evidentiary hearing and denied Respondent's motion for summary judgment. In the Opinion and Order, the court determined that because the Oklahoma Court of Criminal Appeals (OCCA) applied the wrong constitutional standard to deny Petitioner's claim of ineffective assistance of counsel, the claim would be reviewed de novo. (Id.).

The Magistrate Judge held the evidentiary hearing on August 21 through 23, 2012, and on November 9, 2012. After hearing the parties' evidence and reviewing the parties' proposed findings of fact and conclusions of law, the Magistrate Judge entered his Report on July 22, 2013 (Dkt. # 159), recommending that the court find Petitioner's lead attorney performed deficiently by deciding to forego presentation of expert testimony regarding Petitioner's diabetes and brain injury and evidence of his alcohol consumption at the resentencing trial. Further, the Magistrate Judge found that Petitioner was prejudiced by counsel's deficient performance. On August 19, 2013, Respondent filed an objection (Dkt. # 163) and Petitioner filed a partial objection (Dkt. # 164) to the Report. In addition to the evidence presented at the evidentiary hearing, the state court record¹ has been produced and reviewed by the court. The court considered all of these materials in reaching its decision. For the reasons discussed below, the court concludes the Report shall be accepted and thePetition shall be conditionally granted as to Ground 7. Within 180 days of the entry of this Opinion and Order, the writ shall issue unless the State of Oklahoma commences resentencing proceedings for Petitioner. In addition, the Court concludes Petitioner is not entitled to habeas corpus relief on his remaining claims (Grounds 1-6, 8-14).

BACKGROUND

I. Factual Background

Pursuant to 28 U.S.C. § 2254(e)(1), the historical facts found by the state court are presumed correct. In considering the issues presented in the Petition, the court relied upon the following synopsis from the OCCA in that court's first direct appeal opinion. 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

Fitzgerald spent the evening of July 15, 1994, with Regina Stockfleth and other friends. In the early morning hours of July 16, Fitzgerald, armed with an SKS assault rifle, robbed the Git-N-Go store at 7494 East Admiral Street in Tulsa. After the robbery he returned to Stockfleth's house, wearing a bandanna around his neck and carrying $55 cash in a Git-N-Go bag. He was asked to leave.

Fitzgerald arrived at the Git-N-Go store at 6938 East Pine about 2:45 a.m. The clerk, William Russell, took the SKS rifle away from Fitzgerald. Russell pointed the rifle at Fitzgerald but apparently could not release the safety on the weapon. Fitzgerald came over the counter, and the two scuffled. Russell escorted Fitzgerald (who had the rifle) out of the store and locked the doors. As Russell retreated behind the store counter, Fitzgerald turned and fired, shattering the glass doors. His bandanna mask had fallen, and his face was visible. Fitzgerald pointed the gun in Russell's direction and fired several shots, then ran. Police recoveredeight spent casings and six bullets from various locations in the store, and one bullet was found in Russell's body. That bullet had passed through six cigarette packages, two counter partitions, and a roll of calculator tape before entering Russell near his left armpit. The bullet pierced his lung and spine and broke two ribs. Russell had massive internal bleeding and died of a gunshot wound to the chest.

After leaving the Pine Street store, Fitzgerald robbed the Git-N-Go store at 903 North Yale at approximately 3:00 a.m. He wore a bandanna mask and threatened the clerk with the SKS assault rifle. After this robbery Fitzgerald briefly returned to his parents' home, then left the state. In Illinois he traded the SKS rifle for $100 and a .357 magnum handgun. He was arrested in Missouri. Fitzgerald confessed to robbing the two stores and attempting to rob the store on Pine Street, but insisted he did not intend to injure or kill Russell.

Fitzgerald v. State, 972 P.2d 1157, 1161 (Okla. Crim. App. 1998).

II. Procedural History

In Tulsa County District Court, Case No. CF-94-3451, Petitioner was tried by jury and convicted of two counts of robbery with a firearm, one count of attempted robbery with a firearm, and one count of first degree murder. The jury found three aggravating circumstances and recommended a death sentence on the first degree murder count. In accordance with the jury's recommendation, the Honorable E. R. (Ned) Turnbull sentenced Petitioner to death on the first degree murder count and life imprisonment and a $10,000.00 fine on the other counts.

On direct appeal, Petitioner raised sixteen propositions of error, with numerous sub-propositions. The OCCA affirmed his convictions and the sentences for the counts of robbery with a firearm and attempted robbery with a firearm. Fitzgerald v. State, 972 P.2d 1157, 1161 (Okla. Crim. App. 1998) ("Fitzgerald I"). The OCCA affirmed Petitioner's conviction for the first degree murder count, but vacated his death sentence because of "pervasive error in the second stage of trial." (Id.). The OCCA identified five errors in the sentencing stage which, in combination, "denied Fitzgerald a fair and reliable sentencing proceeding," as follows:

[A] pro se defendant was unable to life-qualify his jury, was denied experts to assist in presentation of mitigating evidence, chose not to present such evidence without guidance or inquiry from the trial court, was denied the opportunity to rebut evidence of an aggravating circumstance, and was denied the chance to list a circumstance of the crime in mitigation.

Id. at 1175. The OCCA denied Petitioner's request for an evidentiary hearing. Id. at 1175 n.73.

During the pendency of the direct appeal, Petitioner sought post-conviction relief from the OCCA, in Case No. PCD-98-643. The OCCA denied relief as moot upon reversing and remanding the death sentence on direct appeal.

Upon remand from the OCCA, a new jury was impaneled and a new sentencing trial was conducted before the Honorable J. Michael Gassett on October 17-26, 2000. The jury found two of the three alleged aggravating factors: (1) that Petitioner had been previously convicted of a felony involving the threat or use of violence to the person, and (2) the existence of a probability that he would commit criminal acts of violence that would constitute a continuing threat to society. The jury did not find that Petitioner committed the murder to avoid lawful arrest or prosecution. The jury recommended a sentence of death and the trial court so ordered. Petitioner appealed that sentence and the OCCA affirmed in a published opinion, Fitzgerald v. State, 61 P.3d 901 (Okla. Crim. App. 2002) ("Fitzgerald II").

Thereafter, Petitioner sought post-conviction relief from the OCCA, in Case No. PCD-2002-626. Petitioner's application for post-conviction relief alleged that (1) his trial and appellate counsel were ineffective for failing to adequately develop and present available mitigating evidence of Petitioner's brain damage, diabetes, and consumption of alcohol on the night of the offense, and (2) his constitutional right to a jury trial was violated by the trial court's failure to instruct the jury that it must find the aggravating circumstances outweighed the mitigating circumstances beyond areasonable doubt and counsel was ineffective for failing to previously raise this issue. Petitioner requested an evidentiary hearing on the ineffective assistance of counsel issues. The OCCA denied all requested relief, including the request for an evidentiary hearing, in an unpublished opinion on March 13, 2003. (Dkt. # 25, Ex. 18 (Order Denying Application for Post-Conviction Relief and Motion for Evidentiary Hearing, OCCA No. PCD-2002-626)). On March 31, 2003, the United States Supreme Court rejected Fitzgerald's petition for writ of certiorari. Fitzgerald v. Oklahoma, 538 U.S....