Hamilton v. Mullin, No. 04-5067.

• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)
• Writing for the Court: Tymkovich
• Citation: 436 F.3d 1181
• Parties: Corey Duane HAMILTON, Petitioner-Appellant, v. Mike MULLIN, Warden, Oklahoma State Penitentiary, Respondent-Appellee.
• Docket Number: No. 04-5067.
• Decision Date: 24 January 2006

436 F.3d 1181 Corey Duane HAMILTON, Petitioner-Appellant,
v.
Mike MULLIN, Warden, Oklahoma State Penitentiary, Respondent-Appellee. No. 04-5067. United States Court of Appeals, Tenth Circuit. January 24, 2006.

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

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Jennifer J. Dickson, Assistant Attorney General (W.A. Drew Edmondson, Attorney General of Oklahoma, with her on the brief), Office of the Attorney General, Oklahoma City, OK, for Appellee.

Before TACHA, Chief Judge, O'BRIEN, and TYMKOVICH, Circuit Judges.

TYMKOVICH, Circuit Judge.

This death penalty appeal arises out of the 1992 killings of four employees of Lee's Famous Recipe Chicken Restaurant in Tulsa, Oklahoma. In the course of a robbery in which Corey Hamilton participated, the employees were placed in a food locker and forced to kneel at gunpoint. Hamilton shot each in the head. A jury convicted Hamilton of four counts of first-degree murder and one count of robbery with a firearm.

At sentencing, the jury found four aggravating circumstances as to each murder. Accordingly, upon the jury's recommendation, the trial court imposed the death penalty. The Oklahoma Court of Criminal Appeals (OCCA) affirmed the murder convictions and death sentence on direct appeal but reversed the robbery conviction. See Hamilton v. State, 937 P.2d 1001 (Okla.Crim.App.1997). The United States Supreme Court denied certiorari, Hamilton v. Oklahoma, 522 U.S. 1059, 118 S.Ct. 716, 139 L.Ed.2d 657 (1998), and the OCCA denied state post-conviction relief in an unpublished opinion. Subsequently, Hamilton filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 in the United States District Court for the Northern District of Oklahoma. The district court denied the petition but granted a certificate of appealability, see 28 U.S.C. § 2253(c)(1)(A).

On appeal, Hamilton argues five issues merit habeas relief: (1) prosecutorial misconduct during closing argument violated his right to a fair trial; (2) the state trial court's exclusion of testimony and jury instructions defining the life without parole sentencing option violated due process; (3) the trial court's failure to instruct the jury on use of victim impact evidence violated due process; (4) the state presented insufficient evidence to support the heinous, atrocious or cruel aggravating circumstances; and (5) the individual errors at the guilt and sentencing phases together warrant reversal.

Our jurisdiction arises under 28 U.S.C. §§ 1291 and 2253. Having thoroughly reviewed the record and applicable law, we conclude Hamilton is not entitled to habeas relief. Accordingly, we affirm the district court's denial of the petition.

I. Background

The background facts are not in dispute and are set forth in the OCCA's opinion on direct appeal. See Hamilton, 937 P.2d 1001. We only briefly summarize them here. On August 17, 1992, the bodies of Lee's employees Joseph Gooch, Theodore Kindley, Senaida Lara and Steven Williams were found in the restaurant's walk-in cooler. All four died of a close-range gunshot wound to the back of the head. On the evening of the murders, Hamilton and his accomplices discussed robbing the restaurant. They arrived at the restaurant near its scheduled closing time. Upon entering, Hamilton pulled a gun and told one employee to lock the doors. The other three employees were ordered to enter the cooler and kneel. A few minutes later, after Hamilton retrieved money from the restaurant safe, he placed the fourth employee in the cooler. Hamilton later stated to his accomplices that he shot the employees.

An Oklahoma jury convicted Hamilton of four counts of first-degree murder and recommended that the trial court impose the death penalty. The jury made its sentencing recommendation after finding four

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aggravating circumstances as to each murder: (1) Hamilton had knowingly created a great risk of death to more than one person; (2) each murder was especially heinous, atrocious or cruel; (3) Hamilton committed each murder for the purpose of avoiding or preventing a lawful arrest or prosecution; and (4) Hamilton would constitute a continuing threat to society.

II. AEDPA Standard of Review

We begin our analysis by discussing the applicable standard of review under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 28 U.S.C. § 2254(d). We then proceed to the merits of Hamilton's claims.

Because Hamilton filed his § 2254 petition after AEDPA's 1996 effective date, its provisions apply to this appeal. See Smallwood v. Gibson, 191 F.3d 1257, 1264 (10th Cir.1999). Under AEDPA, a federal court may grant habeas relief on a claim adjudicated on the merits by a state court only if the state court proceedings "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal Law, as determined by the Supreme Court," 28 U.S.C. § 2254(d)(1), or "resulted in a decision that 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)(2).

A state court decision is "contrary to" Supreme Court precedent in two circumstances: (1) when "the state court applies a rule that contradicts the governing law set forth in [the Court's] cases"; or (2) when "the state court confronts a set of facts that are materially indistinguishable from a decision of [the] Court and nevertheless arrives at a result different from" that reached by the Court. Williams v. Taylor, 529 U.S. 362, 406, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). A state court decision constitutes an "unreasonable application" of Supreme Court precedent if "the state court identifies the correct governing legal principle from [the] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. at 413, 120 S.Ct. 1495. Thus, "[u]nder § 2254(d)(1)'s `unreasonable application' clause, ... a federal habeas court may not issue the writ simply because that court concludes in its 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; see also Thomas v. Gibson, 218 F.3d 1213, 1219-20 (10th Cir.2000) (discussing Williams).

Finally, a state prisoner seeking habeas relief based on alleged erroneous factual determinations must overcome by clear and convincing evidence the presumption of correctness afforded state court factual findings. See 28 U.S.C. § 2254(e)(1); Smith v. Mullin, 379 F.3d 919, 924-25 (10th Cir.2004). With these standards in mind, we address each of Hamilton's claims of error.

III. Discussion

Hamilton's death penalty trial was divided into two stages. The first stage required the jury to determine his guilt or innocence. The second stage required the jury to recommend a penalty. Hamilton argues the trial court committed error at both stages of his trial.

A. Prosecutorial Misconduct

Hamilton makes one claim of error arising from the guilt phase of his trial. He argues that the government engaged in prosecutorial misconduct, citing a number of comments by the lead prosecutor during closing argument. Hamilton argues one statement disparaged his Fifth Amendment right to remain silent, and two additional

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statements wrongfully stripped him of the presumption of innocence. While two of the prosecutor's comments crossed the line of permissible closing argument, we agree with the OCCA that the statements as a whole did not undercut the fundamental fairness of Hamilton's trial.

When a defendant asserts claims of prosecutorial misconduct in a habeas petition, those claims are reviewed for a violation of due process. See Patton v. Mullin, 425 F.3d 788, 811 (10th Cir.2005) (citing Darden v. Wainwright, 477 U.S. 168, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986)). "[N]ot every trial error or infirmity which might call for application of supervisory powers correspondingly constitutes a failure to observe that fundamental fairness essential to the very concept of justice." Patton, 425 F.3d at 811 (citing Donnelly v. DeChristoforo, 416 U.S. 637, 642, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974)). To be entitled to relief, a defendant must establish that the prosecution's conduct or remarks "so infected the trial with unfairness as to make the resulting conviction a denial of due process." Patton, 425 F.3d at 811 (citing Donnelly, 416 U.S. at 643, 94 S.Ct. 1868). Such a determination may be made only after "tak[ing] notice of all the surrounding circumstances, including the strength of the state's case." Coleman v. Brown, 802 F.2d 1227, 1237 (10th Cir.1986).

In some circumstances, however, when "prosecutorial misconduct directly affects a specific constitutional right," as is alleged here, "a habeas petitioner need not establish that the entire trial was rendered unfair, but rather that the [specific] constitutional guarantee was so prejudiced that it effectively amounted to a denial of that right." Torres v. Mullin, 317 F.3d 1145, 1158 (10th Cir.2003) (emphasis added). With this guidance, we turn to the individual instances of misconduct alleged by Mr. Hamilton.

1. The Right to Remain Silent

The evidence at trial disclosed that a short time after the murders, Hamilton received a ride in a friend's car from his girlfriend's house to a motel. The motel was next door. Discussing this evidence during his closing argument, the prosecutor rhetorically raised the following questions:

[W]e ask you to use your common sense about people's behavior. What are they doing? What's he doing? What is the explanation for calling someone to take you across the street?

Tr. at 1202. Hamilton argues this statement was a comment on his Fifth Amendment right to remain silent,...