Grant v. Trammell

CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)
Citation727 F.3d 1006
Docket NumberNo. 11–5001.,11–5001.
PartiesJohn Marion GRANT, Petitioner–Appellant, v. Anita TRAMMELL, Warden, Oklahoma State Penitentiary, Respondent–Appellee.
Decision Date15 August 2013


Thomas Kenneth Lee, Assistant Federal Public Defender, Oklahoma City, OK, (Thomas Hird, Assistant Federal Public Defender, with him on the briefs) for PetitionerAppellant.

Jennifer J. Dickson, Assistant Attorney General for the State of Oklahoma, Oklahoma City, OK, (E. Scott Pruitt, Attorney General for the State of Oklahoma, with her on the brief) for RespondentAppellee.

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

GORSUCH, Circuit Judge.

While serving a long sentence in state prison for a series of armed robberies, John Grant won a job as a kitchen worker. The job brought him under the supervision of Gay Carter, a civilian prison employee, but it wasn't one that lasted very long. Mr. Grant was soon fired after he was caught fighting with another inmate—and Mr. Grant didn't take getting fired very well. He came to bear a grudge against Ms. Carter, a woman he used to get along with and even considered a friend.

Seeing Ms. Carter one day during a morning breakfast service, he told her, “I'll get you, bitch.” The next morning he followed up, “You're mine.” Mr. Grant then proceeded to make good on his threats. After breakfast, he lingered in the dining hall with no obvious purpose, but not altogether out of place either because he used to work there. After about ten or fifteen minutes, Ms. Carter passed near him and he grabbed her, put a hand over her mouth, and dragged her into a small closet. With a shank he had secreted into the dining hall, Mr. Grant stabbed Ms. Carter, sixteen times in all.

The State of Oklahoma charged Mr. Grant with first degree murder and sought the death penalty. At trial, the government had little trouble proving that it was Mr. Grant who stabbed Ms. Carter to death. In his defense, Mr. Grant testified that he had no recollection of killing or wanting to kill Ms. Carter. A defense expert also testified that Mr. Grant suffered from borderline personality disorder, though the expert added that Mr. Grant was of average intelligence and didn't show any signs of an organic brain disorder. The expert also refused to offer any view on whether Mr. Grant did or didn't understand the consequences of his acts at the time of the murder. In the end, the jury found Mr. Grant guilty as charged.

At the penalty phase, the government argued that Mr. Grant deserved the death penalty on the basis of three aggravating factors surrounding the murder: (1) he had been convicted previously of violent felony offenses, (2) he murdered Ms. Carter while serving a felony prison sentence, and (3) he posed a threat of future violent criminal acts. By this point in the proceedings, the first two factors weren't in much dispute. For its case on the third, the government pointed to other prison fights Mr. Grant had been involved in, including a fight with a prison guard; pointed to the fact that Mr. Grant killed a civilian kitchen worker while in prison; and argued that the evidence suggested he might well strike at prison workers or inmates again.

The defense responded that any threat Mr. Grant posed could be mitigated with adequate care. A psychiatrist explained that Mr. Grant had not received mental health counseling or anti-psychotic medications in prison, though he then refused to speculate whether and to what extent Mr. Grant would benefit from either. Mr. Grant also briefly recounted for the jury his troubled childhood.

In the end, the jury found in the government's favor on all the aggravating factors, found no mitigating factors outweighing those aggravating factors, and voted to impose the death penalty. The Oklahoma Court of Criminal Appeals (OCCA) denied relief on appeal. See Grant v. State (Grant I), 58 P.3d 783 (Okla.Crim.App.2002); Grant v. State (Grant II), 95 P.3d 178 (Okla.Crim.App.2004). Neither did the OCCA find relief warranted in two separate post-conviction proceedings Mr. Grant attempted. See Grant v. State, No. PCD–2002–347, slip op. (Okla.Crim.App. Apr. 14, 2003); Grant v. State, No. PCD–2006–690, slip op. (Okla.Crim.App. Nov. 6, 2006).

Mr. Grant then filed a habeas petition in federal court but the district court denied relief, too. See Grant v. Workman (Grant II), No. 05–cv–0167–TCK–TLW, 2010 WL 5069853 (N.D.Okla. Dec. 2, 2010). The district court did, however, issue Mr. Grant a certificate of appealability that allowed him to bring his case to this court. Mr. Grant's certificate allows us to review the district court's decision on the five grounds we discuss below. Ultimately, we agree with all the courts that have come before us and hold none warrants relief.


We begin with the question whether the guilt phase jury instructions satisfy the demands of federal due process doctrine. In Beck v. Alabama, the Supreme Court held that the Due Process Clause of the Fourteenth Amendment sometimes requires a state charging a defendant with a capital offense to permit the jury to consider alternative, lesser included offenses that do not carry with them the prospect of a death sentence. 447 U.S. 625, 627, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980); see also Schad v. Arizona, 501 U.S. 624, 647, 111 S.Ct. 2491, 115 L.Ed.2d 555 (1991). In this case, Mr. Grant was charged with and convicted of first degree murder. He argues that the state court trying him violated Beck by failing to give the jury the option of finding him guilty instead of the lesser included—and noncapital—offenses of first degree manslaughter and second degree murder. But we soon encounter two difficulties with this submission.

The first is that Mr. Grant never asked for a lesser included jury instruction at trial. This is a problem because in Hooks v. Ward, 184 F.3d 1206 (10th Cir.1999), we h[e]ld that a state prisoner seeking federal habeas relief may not prevail on a Beck claim as to a lesser included instruction that he or she failed to request at trial.” Id. at 1234. The requirement of a contemporary request isn't one with roots, as one might imagine, in state procedural law. The Hooks rule is federal in nature, an explanation of what's required as a matter of federal due process doctrine to invoke Beck. As Hooks explained, “a proper request for a lesser included instruction [is] an essential requirement under the federal rules,” and [g]iven principles of comity, ... this rule applies with even greater force when [a federal court] sit[s] in review of a state conviction in a § 2254 action.” Id. at 1235, 1234 (internal quotation marks omitted). Simply put, this court won't impose a requirement on sovereign states that we don't impose on the federal courts under our direct supervision. So a state generally won't be said to offend a defendant's due process right to particular jury instructions when it has no occasion to refuse a request for them. See id. at 1234 (“In such cases, ... it is the defendant him or herself that precludes the jury from considering a non-capital option....”).

Mr. Grant replies that the portion of Hooks claiming to hold this much—section III.C of the opinion—doesn't really contain a holding at all. He points out that two judges concurred separately, indicating they joined all but section III.C of the main opinion in Hooks.Id. at 1241 (Anderson, J., concurring). For its part, Oklahoma rejoins that the separate concurrence took issue with other aspects of section III.C, not this one—and that, properly viewed, the panel was unanimous on the need for a defendant to request a lesser included offense instruction to trigger Beck.

At the end of the day, who's right about the optimal reading of Hooks doesn't much matter. It doesn't because since Hooks issued this court has expressly and repeatedly held that “a state prisoner seeking federal habeas relief may not prevail on a Beck claim as to a lesser included instruction that he or she failed to request at trial.” Thornburg v. Mullin, 422 F.3d 1113, 1126–27 (10th Cir.2005); see also Darks v. Mullin, 327 F.3d 1001, 1007 (10th Cir.2003) (the [f]ailure to request such an instruction precludes a petitioner seeking habeas relief from prevailing on a Beck claim”); Hogan v. Gibson, 197 F.3d 1297, 1303 n. 3 (10th Cir.1999) (same); Smith v. Gibson, 197 F.3d 454, 464 (10th Cir.1999) (same). The point is by now long settled in this circuit and by many more cases than just Hooks itself. At this late date we simply do not see how we might hold otherwise.

Mr. Grant replies by directing us to the OCCA's decision in Shrum v. State, 991 P.2d 1032 (Okla.Crim.App.1999). As Mr. Grant sees it, Shrum requires Oklahoma state courts, as a matter of state law, to provide lesser included offense instructions in capital cases always and automatically. Because of this, he suggests, Shrum relieved him of any duty to request a lesser included offense instruction at trial.

This suggestion, however, fails on its own terms. One premise on which Mr. Grant's argument depends raises some interesting questions. His argument surely rests on the (if entirely implicit and unexplored) premise that state law can relieve a party of its duty under federal law to invoke a federal right. Whether this premise is sound undoubtedly warrants investigation. But there's no need to tangle with that project in this case. No need because another premise on which Mr. Grant's argument rests has problems of its own. Shrum relieves defendants of their obligation to request lesser included offense instructions only as a matter and for purposes of state law. Oklahoma still requires defendants who wish to assert federal constitutional complaints about proposed jury instructions to raise them in a timely fashion with the trial court. See, e.g., Barnard v. State, 290 P.3d 759, 769 (Okla.Crim.App.2012); Warner v. State, 144 P.3d 838, 881 (Okla.Crim.App.2006); McGregor v. State, 885 P.2d...

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