Hale v. Gibson, No. 99-6083

Citation227 F.3d 1298
Decision Date25 September 2000
Docket NumberNo. 99-6083
Parties(10th Cir. 2000) ALVIE JAMES HALE, also known as Alvin J. Hale, Petitioner-Appellant, v. GARY GIBSON, Warden, Oklahoma State Penitentiary, Respondent-Appellee
CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)

Appeal from the United States District Court for the Western District of Oklahoma (D.C. No. CIV-96-1073-L) [Copyrighted Material Omitted]

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[Copyrighted Material Omitted] Gloyd L. McCoy, Coyle & McCoy, Oklahoma City, Oklahoma, for Petitioner-Appellant.

Jennifer B. Miller, Assistant Attorney General (W.A. Drew Edmondson, Attorney General of Oklahoma, with him on the brief), State of Oklahoma, Oklahoma City, Oklahoma, for Respondent-Appellee.

Before SEYMOUR, Chief Judge,PORFILIO and EBEL, Circuit Judges.

EBEL, Circuit Judge.

Petitioner Alvie James Hale was tried and convicted by jury in the District Court of Pottawatomie County, Oklahoma on one count of Murder in the First Degree and one count of Kidnapping for Extortion. The jury recommended death for the crime of Murder in the First Degree and life imprisonment for the crime of Kidnapping for Extortion. After unsuccessful direct and post-conviction appeals in state court, Mr. Hale filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. The district court denied the writ. Mr. Hale appeals, and we AFFIRM.


Hale was charged with the murder and kidnapping of William Jeffrey Perry ("Perry") of Tecumseh, Oklahoma. Perry's parents owned and managed a local bank. When Perry failed to arrive for work Tuesday morning, October 11, 1983, his sister, Veronica, went to his home to locate him. She found his automobile in the driveway, the front door to his home open, his clothes laid out for work, and Perry missing. The only sign of a struggle was an upset alarm clock. At 10:30 a.m. that day, Perry's mother received the first of a series of telephone calls concerning her son from an unidentified man. The second call came at 1:30 p.m. and was received by Perry's sister who was asked "Where is the money, where is $350,000?" During each call, the family asked to speak with Perry and were told that Perry was at a lake cabin and could not be brought to a phone, but that he would be released after the caller received $350,000 from the family. The family could not arrange to have the money until the following day.

Meanwhile, at approximately 7:00 a.m. on the morning of October 11, 1983, a man identified as Hale came to the bathroom window of the house where Janet Miller lived. He asked her if he could use a telephone and she told him she did not have a phone. As the man went back to his white station wagon in her driveway, a second man dressed only in undershorts yelled for help from an adjacent field. Hale hurried to the spot where the second man was located, who was bent over with pain, and pulled him over the fence into the automobile.

The next day, Mrs. Perry received a phone call directing her to go to the pay phone at a 7-11 store where she would receive further instructions. When Mrs. Perry reached the 7-11 she received a phone call on the pay phone at the store that directed her to another 7-11. During this phone call, Mrs. Perry spotted Hale sitting in a red and white pickup across the street. Mrs. Perry then proceeded to the second location, where she again received a phone call which told her where to drop off the ransom money. Mrs. Perry followed the caller's instructions and deposited the money at the designated location. While Mrs. Perry was dropping off the money, she observed Hale's truck approaching her location and was able to identify Hale as the driver of the vehicle. After Hale retrieved the money, F.B.I. agents pursued Hale in a high speed chase through Oklahoma City. The pursuit ended when Hale's vehicle finally came to a stop after he hit a drainage ditch, went airborne, and collided head on with an F.B.I. agent's vehicle. All the money Mrs. Perry had delivered was found in the truck and Hale was taken into custody at that time.

Hale's father gave law enforcement officers consent to search his home and property. During the search, officers found the victim's body wrapped in a dark colored trampoline tarp within a metal storage shed, one which fit a trampoline frame found at Hale's own home. Perry had been shot a number of times. Also located at the house was a cream-colored station wagon Hale had used the morning of October 11th. A blood-stained towel containing a hair identified as Hale's was found in the vehicle. In addition, blood was found on the shoulder harness in the car which was consistent with Perry's blood. A .38 caliber revolver was also found in a kitchen cabinet. Two bullets found in Perry's head were determined by a ballistics expert to have come from that revolver to the exclusion of all other weapons.

Hale was found guilty of Murder in the First Degree and Kidnapping for Extortion.1 During the second stage of Hale's trial, the prosecutor sought the death penalty on the kidnapping as well as the first degree murder charge. The prosecutor argued three aggravating circumstances for the kidnapping charge2 and four aggravating circumstances for the murder charge.3 The jury found two aggravating circumstances for kidnapping that it was done for remuneration and was heinous, atrocious, or cruel and sentenced Hale to life imprisonment. The jury found the existence of two aggravators on the murder charge the murder was heinous, atrocious, or cruel and the murder was committed to avoid lawful arrest and sentenced Hale to death. On March 22, 1984, the trial judge sentenced Hale in accordance with the jury's recommendation.

Hale appealed, raising twenty-two propositions of error. The Oklahoma Court of Criminal Appeals ("OCCA") affirmed Petitioner's convictions and sentences. Hale v. State, 750 P.2d 130 (Okla. Crim. App. 1988) ("Hale I"). Certiorari review was subsequently denied. Hale v. Oklahoma, 488 U.S. 878, 109 S. Ct. 195, 102 L. Ed. 2d 164 (1988). Hale then pursued post-conviction relief which was denied by the District Court of Pottawatomie County following an evidentiary hearing. Hale appealed to the OCCA raising thirteen grounds for relief. The OCCA affirmed the trial court's denial of post-conviction relief, finding twelve of the allegations waived because they were either raised on direct appeal or could have been. Hale v. State, 807 P.2d 264 (Okla. Crim. App. 1991) ("Hale II"). The OCCA denied relief on the final claim. Certiorari review was again denied. Hale v. Oklahoma, 502 U.S. 902, 112 S. Ct. 280, 116 L. Ed. 2d 231 (1991). On April 28, 1992, Hale filed a second application for post-conviction relief in the District Court of Pottawatomie County. All relief was denied. On appeal, the Court of Criminal Appeals again affirmed the denial of post-conviction relief. Hale v. State, 934 P.2d 1100 (Okla. Crim. App. 1997) ("Hale III"). Hale then filed a petition for writ of habeas corpus on February 28, 1997 in the United States District Court for the Western District of Oklahoma, raising twenty issues. That petition was denied on January 28, 1999 and Hale was granted a certificate of appealability on all issues.

On appeal, Hale makes the following thirteen claims of constitutional error: (1) he was (a) denied effective assistance of counsel through a conflict of interest and (b) denied due process when his counsel's motion to withdraw from representation was denied outside of Hale's presence, (2) he was denied effective assistance of counsel during the punishment stage of his trial, (3) he was denied effective assistance of counsel during voir dire, (4) he was denied effective assistance of counsel when counsel failed to object to the admission of other crimes evidence, (5) he was denied effective assistance of counsel during counsel's second stage closing remarks, (6) he was denied effective assistance of counsel during counsel's first stage closing remarks, (7) he was denied a fair trial due to an improper instruction to the jury that kidnapping was a death-eligible offense and denied effective assistance of counsel for his counsel's failure to object to the improper jury instruction, (8) he was denied due process because of the late filing of the Bill of Particulars and denied effective assistance of counsel when his attorney failed to object to the late filing, (9) his convictions for murder and kidnapping violated double jeopardy principles, (10) the government committed a violation of Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), (11) he was denied a fair trial due to the trial court's failure to grant a change of venue, (12) there was insufficient evidence to support the aggravator that Hale committed murder to avoid lawful arrest, and (13) there was insufficient evidence to support the "heinous, atrocious, or cruel" aggravator.


A. Standard of Review

When reviewing the denial of a habeas corpus petition, we are generally subject to two different frameworks of review, depending upon whether the state courts addressed the merits of the claim for relief. If the state courts have not heard the claim on its merits, we review the district court's legal conclusions de novo and its factual findings, if any, for clear error. If the state courts have addressed the claim on its merits, we review the state court ruling under the standard enunciated under 28 U.S.C. § 2254.

Smallwood v. Gibson, 191 F.3d 1257, 1264 (10th Cir. 1999) (footnote and citation omitted). Because Mr. Hale filed his petition for habeas relief nearly one year after the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), AEDPA applies to his petition. See Lindh v. Murphy, 521 U.S. 320, 336, 117 S. Ct. 2059, 138 L. Ed. 2d 481 (1997).

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