Hain v. Gibson, 01-5014.

• Citation: 287 F.3d 1224
• Decision Date: 20 February 2002
• Docket Number: No. 01-5014.,01-5014.
• Parties: Scott Allen HAIN, Petitioner-Appellant, v. Gary E. GIBSON, Warden, Respondent-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

Page 1224

287 F.3d 1224

Scott Allen HAIN, Petitioner-Appellant, v. Gary E. GIBSON, Warden, Respondent-Appellee.

No. 01-5014.

United States Court of Appeals, Tenth Circuit.

February 20, 2002.

COPYRIGHT MATERIAL OMITTED

Steven Michael Presson (Robert W. Jackson with him on the brief), Jackson & Presson, P.C., Norman, OK, for the appellant.

Robert L. Whittaker, Assistant Attorney General (W.A. Drew Edmondson, Attorney General of Oklahoma, with him on the brief), Oklahoma City, OK, for the appellee.

Before BRISCOE, LUCERO, and MURPHY, Circuit Judges.

BRISCOE, Circuit Judge.

Petitioner Scott Allen Hain, an Oklahoma state prisoner sentenced to death for two counts of first degree murder, appeals the district court's denial of his 28 U.S.C. § 2254 petition for writ of habeas corpus. We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.

I.

The following is a summary of the facts as set forth by the Oklahoma Court of Criminal Appeals (OCCA) in disposing of Hain's initial direct appeal:

During the early morning hours of October 6, 1987, Laura Lee Sanders and Michael Houghton were seated in Sanders' car outside a Tulsa bar when they were approached by two men, later determined to be Scott Allen Hain and Robert Wayne Lambert. Hain and Lambert were in the parking lot, waiting to rob a nearby house when they saw Sanders and Houghton talking in the car. Appellant and Lambert forced their way into the car by threatening Houghton with a knife.

Hain drove the car away from the bar, then stopped and robbed Houghton at gunpoint. When Houghton resisted the robbery, Appellant forced him into the trunk of the car. A short while later, Appellant and Lambert stopped and put Sanders in the trunk as well.

After robbing Houghton and getting the keys to his truck, the two men decided to go back to the bar where the incident began and take Houghton's truck as well as Sanders car. Lambert drove the truck away from Tulsa toward Sand Springs. He stopped after driving down a rural Creek County roadway. Appellant followed in Sanders' car with Sanders and Houghton in the trunk.

The two men took Sanders' things, including some clothes, out of her car and put them in the truck. One of them cut the gas line to the car and set it on fire by putting lighted newspaper and a blanket under the dripping fuel line. Houghton and Sanders were banging on the trunk and yelling. Appellant and Lambert left the area, however, returned a short time later to see if the fire was burning well.

The two men stopped at a friend's house in Jennings and left a bag of things belonging to the victims in the garage. They traveled to Wichita, Kansas in Houghton's truck. After spending the five hundred and sixty-five ($565.00) dollars which they got from Houghton and Sanders, the two returned to Tulsa, where they were apprehended on the evening of October 9, 1987.

Hain v. State, 852 P.2d 744, 746-47 (Okla. Crim.App.1993) (Hain I).

On October 13, 1987, Hain was charged by complaint and information in the District Court of Creek County, Oklahoma, with two counts of first degree murder, two counts of kidnapping, two counts of robbery with firearms, one count of arson in the third degree, and two counts of larceny of an automobile. The State subsequently filed a bill of particulars alleging the existence of three aggravating factors: (1) that Hain knowingly created a great risk of death to more than one person; (2) that the murders were especially heinous, atrocious or cruel; and (3) the existence of a probability that Hain would commit criminal acts of violence that would constitute a continuing threat to society.

The case proceeded to trial in May 1988. At the conclusion of the first-stage proceedings, the jury found Hain guilty as charged. At the conclusion of the second-stage proceedings, the jury, having found the existence of all three aggravating factors alleged by the prosecution, sentenced Hain to death on both of the first degree murder counts. The jury also sentenced Hain to ten years on each kidnapping count, one hundred years on each robbery with firearms count, twenty years on each larceny of an automobile count, and fifteen years on the third degree arson count.

On direct appeal, the OCCA affirmed Hain's convictions for murder, kidnapping, larceny of an automobile, and third degree arson. Hain I, 852 P.2d at 753. Because of the possibility that the jury convicted Hain under a theory of felony murder, the OCCA reversed on double jeopardy grounds Hain's convictions for robbery with firearms. Id. at 752. Lastly, because the trial court failed to instruct the jury with respect to the potential punishment alternative of life without parole, the OCCA vacated Hain's death sentences and remanded for new sentencing proceedings. Id. at 753.

The resentencing proceedings commenced on September 22, 1994. The prosecution alleged the existence of the same three aggravating factors alleged in the original second stage proceedings, i.e., that Hain knowingly created a great risk of death to more than one person, that the murders were especially heinous, atrocious or cruel, and the existence of a probability that Hain would commit criminal acts of violence that would constitute a continuing threat to society. To establish the first two factors, the prosecution presented evidence outlining the nature of the murders. To support the third factor, the prosecution presented evidence indicating that Hain and his co-defendant Lambert had engaged in three violent crimes in the months leading up to the murders (the assault and rape of a woman in her rural Kansas home, the kidnapping and rape of a Wichita woman, and the robbery and attempted murder of a Tulsa couple, which included the kidnapping and rape of the woman). In addition, the prosecution presented expert psychiatric testimony indicating that Hain's personality and psychological make-up made him prone to violence. Lastly, the prosecution presented evidence indicating that Hain had escaped from his jail cell while awaiting resentencing.

Hain attempted to counter the prosecution's evidence by presenting expert testimony from two psychologists and a social worker, all of whom opined that Hain was not prone to violence. In addition, Hain alleged and attempted to prove the following mitigating circumstances: (1) his youth at the time of the crime; (2) his emotional, psychological and mental age; (3) his blameworthiness; (4) the fact that he was dominated by Lambert, his co-defendant; (5) his history of drug usage; (6) the State of Oklahoma's failure to provide appropriate treatment at earlier stages of his development; (7) a "[f]ear reaction to finding himself in a fugitive/captive situation"; (8) the lack of personal participation in the actual criminal acts (in comparison to the alleged participation of his co-defendant); (9) his attempts to physically absent himself from the scene of the crime as much as possible; (10) the lack of violence involved in his alleged escape attempt from jail; (11) his attained educational level; and (12) his family history. State Record, Vol. 2 at 182 (resentencing proposed instr. No. 16). At the conclusion of the resentencing proceedings, the jury found, with respect to both murder counts, the existence of all three aggravating factors alleged by the prosecution and Hain was sentenced to death on both counts.

Following his resentencing, Hain again filed a direct appeal with the OCCA. The OCCA affirmed Hain's death sentences. Hain v. State, 919 P.2d 1130 (Okla.Crim. App.1996) (Hain II). Hain filed a petition for writ of certiorari which was denied by the Supreme Court. Hain v. Oklahoma, 519 U.S. 1031, 117 S.Ct. 588, 136 L.Ed.2d 517 (1996). Hain filed an application for post-conviction relief and the OCCA denied relief on May 1, 1998. Hain v. State, 962 P.2d 649 (Okla.Crim.App.1998) (Hain III).

On July 30, 1998, Hain filed a petition for writ of habeas corpus asserting fourteen grounds for relief, and the district court subsequently authorized Hain's counsel to add an additional claim to the petition. The district court denied Hain's petition on December 18, 2000. The district court granted Hain a certificate of appealability (COA) with respect to three of the issues raised in his habeas petition: (1) the propriety of the trial court's decision to instruct on alternative theories of malice aforethought and felony murder; (2) ineffective assistance of counsel; and (3) whether the International Covenant on Civil and Political Rights prohibited the execution of juveniles. This court granted a COA on two additional issues: whether the trial court erred in admitting victim impact testimony and whether the trial court violated Hain's right against self-incrimination by ordering him to answer the prosecutor's questions about unadjudicated crimes that occurred in the State of Kansas.

II.

Because Hain's federal habeas petition was filed after the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), it is governed by the provisions of the AEDPA. Wallace v. Ward, 191 F.3d 1235, 1240 (10th Cir.1999), cert. denied, 530 U.S. 1216, 120 S.Ct. 2222, 147 L.Ed.2d 253 (2000). Under the AEDPA, the appropriate standard of review for a particular claim is dictated by the treatment of that claim by the state courts. If a claim was not decided on the merits by the state courts (and is not otherwise procedurally barred), we may exercise our independent judgment in deciding the claim. See LaFevers v. Gibson, 182 F.3d 705, 711 (10th Cir.1999). In doing so, we review the federal district court's conclusions of law de novo and its findings of fact, if any, for clear error. Id. If a claim was adjudicated on its merits by the state courts, the petitioner will be entitled to federal habeas relief 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...