Gipson v. Jordan

• Decision Date: 02 August 2004
• Docket Number: No. 02-6261.,02-6261.
• Citation: 376 F.3d 1193
• Parties: Adrian Darryle GIPSON, Petitioner-Appellee, v. Lenora JORDAN, Warden, Respondent-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

376 F.3d 1193

Adrian Darryle GIPSON, Petitioner-Appellee, v. Lenora JORDAN, Warden, Respondent-Appellant.

No. 02-6261.

United States Court of Appeals, Tenth Circuit.

August 2, 2004.

Appeal from the United States District Court for the Western District of Oklahoma, Vicki Miles-La-Grange, J William R. Holmes, Assistant Attorney General of Oklahoma (W.A. Drew Edmondson, Attorney General of Oklahoma, with him on the briefs), Oklahoma City, OK, for the Respondent-Appellant.

Susan M. Otto, Federal Public Defender, Oklahoma City, OK, for the Petitioner-Appellee.

Before SEYMOUR, and LUCERO, Circuit Judges, and CASSELL,^* District Judge.

LUCERO, Circuit Judge.

In this appeal, Lenora Jordan, Warden of the James Crabtree State Correctional Center in Helena, Oklahoma ("Oklahoma") seeks review of a conditional grant of habeas relief to Oklahoma state prisoner, Adrian Gipson. The sole issue on appeal is whether prosecutorial remarks before the sentencing jury which referenced Gipson's prior convictions impermissibly infringed upon his right to be free from double jeopardy. We exercise jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253, and REVERSE the grant of habeas relief.

I

Gipson was tried by a jury for second-degree burglary. Because he had been previously convicted of two or more felony offenses, he was subject to punishment under Oklahoma's habitual offender provision for a minimum term of 20 years. (Jury Instructions at 12); see also Okla. Stat. tit. 21, § 51.1(B) (habitual offender provision). At trial, guilt and sentencing were consolidated — Gipson admitted to the charge, thus leaving the jury to decide only his sentence. The prosecutor informed the jury that Gipson had been previously convicted of six felony offenses: injury to a minor child, robbery by fear, second-degree burglary, burglary of an automobile, burglary of a vending machine, and uttering a forged instrument. In closing, the prosecutor argued that Gipson has a propensity for recidivism and stated:

I would submit to you, ladies and gentlemen, that at a minimum.... an appropriate sentence would be ten years for each of the [prior] convictions, including this one here today, which makes seven, so what I'm telling you is that I think an appropriate sentence, at least a minimum sentence, in this case, would be 70 years.

(R. at 185.) In instructing the jury, the district court clarified that:

[t]he defendant has admitted that he has 6 previous convictions. You may not consider these previous convictions as proof of guilt in the case before you. You may consider the previous convictions for the purpose of determining the punishment if you find the defendant is guilty of the crime of Burglary Second Degree in the present case.

(Jury Instructions at 12.) The jury recommended seventy years imprisonment, and Gipson was sentenced accordingly.

On direct appeal to the Oklahoma Court of Criminal Appeals ("OCCA"), Gipson argued that his sentence was excessive. In the course of making that argument, he urged: "[i]n determining the excessiveness of the sentence, the Court should review possible improper influences upon the jury in assessing punishment" — namely, the prosecutor's reference to early release from the sentences for Gipson's prior convictions and the prosecutor's exhortation to the jury to sentence him to seventy years. (R. at 143, 144-45.) Gipson further stated that "[prosecutorial] comments which asked the jurors to punish Appellant ten years for each felony caused the jurors to violate Appellant's right to be free from double jeopardy," and that "[t]he jury's imposition of a sentence ten times greater than the statutory maximum for the actual offense reflects the prejudice of the prosecutor's argument." (R. at 145.) In the face of Gipson's claim that, inter alia, the prosecutor's comments caused the jury to violate his double jeopardy rights, the OCCA affirmed Gipson's conviction and sentence, concluding that Gipson's sentence was "neither excessive nor the result of prosecutorial misconduct." Gipson v. Oklahoma, No. F-97-165, slip op. at 2 (Okla.Crim.App. Nov. 3, 1997).

Gipson filed a federal habeas petition pursuant to 28 U.S.C. § 2254, again challenging his sentence on double jeopardy grounds. The magistrate judge issued a report, revised after considering objections raised by Oklahoma, which recommended a conditional writ of habeas corpus granting relief on Gipson's double jeopardy claim. In July 2002, the district court issued an order adopting the magistrate's report. Oklahoma now appeals, arguing that the district court failed to accord proper deference to the OCCA's decision denying relief.

II

As a threshold matter, we must determine the appropriate standard of review due to the OCCA's affirmance of Gipson's sentence. Because Gipson filed his petition for habeas relief after April 24, 1996, the effective date of the Antiterrorism and Effective Death Penalty Act ("AEDPA"), AEDPA's provisions apply. See Rogers v. Gibson, 173 F.3d 1278, 1282 n. 1 (10th Cir.1999) (citing Lindh v. Murphy, 521 U.S. 320, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997)). AEDPA provides that if a claim is adjudicated on the merits in state court we will grant habeas relief to a petitioner only if he can establish that the state court decision was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," or "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)(1), (2).

Under the "contrary to" clause, we grant relief only "if the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state court decides a case differently than [the Court] has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 413, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). Under the "unreasonable application" clause, relief is provided only "if the state court identifies the correct governing legal principle from [the Supreme Court's] decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. Thus we may not issue a habeas writ simply because we conclude in our "independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Id. at 411, 120 S.Ct. 1495.

Conversely, if the state court did not decide a claim on the merits, and the claim is not otherwise procedurally barred, we address the issue de novo and the § 2254(d)(1) deference requirement does not apply. See Aycox v. Lytle, 196 F.3d 1174, 1177 (10th Cir.1999). Our standard of review therefore depends on whether the OCCA denied Gipson's double jeopardy claim on the merits. Where, as here, there is no indication suggesting that the state court did not reach the merits of a claim, we have held that a state court reaches a decision "on the merits" even when it fails either to mention the federal basis for the claim or cite any state or federal law in support of its conclusion. Id. at 1177.

In the instant case, in consideration of Gipson's argument that improper prosecutorial comments violated his double jeopardy rights, the OCCA found that Gipson's sentence was not the result of prosecutorial misconduct. Thus because the OCCA upheld Gipson's sentence in the face of his argument that prosecutorial misconduct violated his double jeopardy rights we treat the OCCA's decision as an "adjudication on the merits," and defer to its result, even though its reasoning is not expressly stated.¹ Aycox, 196 F.3d at 1177. In so doing, however, we uphold the state court's summary decision unless our independent review of the record and pertinent federal law persuades us that its result contravenes or unreasonably applies clearly established federal law, or is based on an unreasonable determination of the facts in light of the evidence presented.

Id. at 1178. We stress that this "independent review" standard under Aycox does not constitute a de novo analysis of Gipson's claims. Instead, we defer to the OCCA's decision unless we conclude that its result — not its rationale — is "legally or factually unreasonable." Id.

Having determined the proper standard of review under AEDPA, we note that the federal circuits addressing similar claims have diverged in determining the standard for evaluating the prosecutorial misconduct at issue. Generally, improper prosecutorial remarks will not warrant federal habeas relief unless the remark "so infected the trial with unfairness as to make the resulting conviction a denial of due process." Donnelly v. DeChristoforo, 416 U.S. 637, 643, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974). If, however, the challenged statements "effectively deprived the defendant of a specific constitutional right, a habeas claim may be established without requiring proof that the entire trial was thereby rendered fundamentally unfair," but rather only that the violation may not be "deemed harmless beyond a reasonable doubt." Mahorney v. Wallman, 917 F.2d 469, 472, 474 (10th Cir.1990) (quotation omitted).

Thus, for example, the Fifth Circuit in Rogers v. Lynaugh, 848 F.2d 606, 610 (5th Cir.1988), reasoned that where prosecutorial comments are "of such character that a jury would naturally and necessarily take [them] to be an exhortation to assess multiple punishments for the same offense" such misconduct implicates a "specific constitutional right." Id. at 611. Conversely, the Ninth and Third circuits have analyzed similar claims of prosecutorial misconduct as generalized due process claims, and, as a result, have proceeded to examine whether such comments deprived a defendant of his right to a fair trial. See, e.g., Beardslee v. Woodford, 327 F.3d 799, 821-22 (9th Cir.2003) (applying a general standard of review to determine whether the...