Hanson v. Sherrod

• Decision Date: 01 July 2013
• Docket Number: Case No. 10-CV-0113-CVE-TLW
• Parties: JOHN FITZGERALD HANSON, Petitioner, v. WILLIAM A. SHERROD, Warden, U.S. Penitentiary, USP Pollock, Louisiana; E. SCOTT PRUITT, Attorney General of Oklahoma, Respondents.
• Court: U.S. District Court — Northern District of Oklahoma

JOHN FITZGERALD HANSON, Petitioner, v. WILLIAM A. SHERROD,¹ Warden U.S. Penitentiary, USP Pollock, Louisiana E. SCOTT PRUITT, Attorney General of Oklahoma, Respondents.

Case No. 10-CV-0113-CVE-TLW

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OKLAHOMA

DATED: July 1, 2013

OPINION AND ORDER

This is a 28 U.S.C. § 2254 habeas corpus action. Petitioner, John Fitzgerald Hanson, is an Oklahoma death row prisoner, currently incarcerated at the United States Penitentiary in Pollock, Louisiana. In his petition (Dkt. # 13), Petitioner, who appears through counsel, challenges his conviction and sentence in Tulsa County District Court Case No. CF-1999-4583. Respondents filed a response (Dkt. # 27) to the petition, and Petitioner filed a reply (Dkt. # 31) to the response. The state court record has been produced.² See Dkt. ## 32, 34. The Court considered all of these materials in reaching its decision. For the reasons discussed below, the Court concludes the petition should be denied.

BACKGROUND

I. Factual Background

Pursuant to 28 U.S.C. § 2254(e)(1), the historical facts found by the state court are presumed correct. Following review of the record, including the trial transcripts and evidence, this Court finds that the factual summary provided by the Oklahoma Court of Criminal Appeals (OCCA) in its order resolving Petitioner's second direct appeal is adequate and accurate. Therefore, the Court adopts the following factual summary as its own:

Hanson and Miller kidnapped Mary Bowles from the Promenade Mall in Tulsa in the late afternoon of August 31, 1999. They drove her in her car to an isolated area around a dirt pit near Owasso. Jerald Thurman, the pit's owner, was there loading a dump truck for a delivery. Thurman was talking to his nephew on a cell phone when he saw the car circling through the pit. Moments later, with Hanson and Mary Bowles still in the car, Miller shot Thurman four times with a .38 revolver. Miller moved the car a short distance from the shooting, stopped, and told Hanson he knew what he had to do. Thereupon, Hanson took Bowles out of the car and, as she lay in a roadside ditch, shot her multiple times with his 9 mm semiautomatic pistol. The two men covered her body with branches and fled. Neighbors across the street from the dirt pit heard gunshots and saw an unfamiliar car leaving the pit area. Investigating, they found Thurman lying near his dump truck at the roadway entrance to the pit. He was taken to the hospital, but died two weeks later without regaining consciousness. Bowles's decomposed body was found in the roadside ditch on September 7.

Hanson and Miller abandoned Bowles's car at the Oasis Motel a few miles away. The car was not discovered there until September 9. Police lifted Hanson's and Miller's fingerprints from the seatbelt buckles and discovered that Hanson had rented a room there shortly after the murders. The motel clerk did not see Hanson or his companion after Hanson filled out the registration card on August 31st.

On September 3, 1999, Hanson and Miller robbed the Dreamland Video Store. Hanson tied up a customer in a backroom, put a gun to his head and took his wallet. On September 8, the pair robbed the Tulsa Federal Employees Credit Union.

The crime spree came to an end when, on September 9, Miller's wife made an anonymous phone call telling police that Hanson and Miller, the credit union robbers, were at the Muskogee Econolodge. Law enforcement officials from various jurisdictions coordinated this information and arrested Miller and Hanson there.

Miller came out immediately; Hanson stayed in the room until driven out by tear gas. While alone in the room Hanson hid the murder weapons in the toilet tank.

Hanson's former co-worker, Rashad Barnes, testified that Hanson had stopped by his home a few days before that arrest in Muskogee and confessed that he and Miller "carjacked" an old lady and that he (Hanson) had killed her.

Hanson v. State of Oklahoma, 206 P.3d 1020, 1025 (Okla. Crim. App. 2009) (footnotes omitted) (hereinafter Hanson II). Additional facts necessary for a determination of Petitioner's claims will be set forth in detail throughout this opinion.

II. Procedural history

Petitioner was charged jointly with co-defendant, Victor Cornell Miller, for the First Degree Murder of Mary Agnes Bowles (Count I), and First Degree Murder of Jerald Thurman (Count II). O.R. Vol. I at 95-96. The counts were charged alternatively as malice aforethought or felony murder. Id. Hanson's and Miller's cases were severed for trial. On February 28, 2000, the State filed a Bill of Particulars seeking the death penalty against Petitioner on the first degree murder charges, alleging the following four aggravating circumstances: (1) the defendant was previously convicted of a felony involving the use or threat of violence to the person; (2) the defendant knowingly created a great risk of death to more than one person; (3) the murder was committed for the purpose of avoiding or preventing a lawful arrest or prosecution; and (4) the existence of a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society. Id. at 108.

Following a jury trial held May 7-23, 2001, Petitioner was found guilty of both counts.³ O.R. Vol. III at 523-26. He was represented at trial by attorneys Jack Gordon and Eric Stall. As to Count I, the jury found the existence of three (3) aggravating circumstances, but did not find that the murder of Mary Bowles was committed for the purpose of avoiding or preventing a lawful arrest or conviction. Id. at 542. The jury recommended that he receive a sentence of death for the murder of Mary Bowles (Count I). Id. at 544. As to Count II, the jury found the existence of two (2) aggravating circumstances, id. at 543, but did not recommend a death sentence. Instead, the jury recommended that Petitioner be sentenced to life without the possibility of parole for the murder of Jerald Thurman. Id. at 548.

On appeal to the OCCA, Petitioner's first degree murder convictions were affirmed, but the death sentence on Count I was reversed and remanded for a new trial. Hanson v. State of Oklahoma, 72 P.3d 40, 45 (Okla. Crim. App. 2003) (hereinafter Hanson I). His sentence on Count II was affirmed. Id. At the time of the direct appeal decision, Petitioner had a pending application for post-conviction relief in OCCA Case No. PCD-02-628. It was dismissed as moot, and Petitioner was advised that he could re-file his application after conclusion of the resentencing trial. O.R. Vol. VII at 1270-71; Dkt. # 13, Ex. 12.

Shortly before the resentencing trial was to begin, Petitioner learned of new evidence that co-defendant Miller had confessed to shooting a woman, purportedly Mary Bowles. Trial counsel filed an application for post-conviction relief in the district court seeking reversal of his conviction on Count I, and a new trial on both guilt and punishment. O.R. Vol. VII at 1252-59. The trial judgegranted the application. Id. at 1352-53. The State appealed the trial court's ruling, id. at 1357, and moved for a writ of prohibition. O.R. Vol. VIII at 1393. The OCCA granted the State's petition for writ of prohibition, finding that the district court lacked jurisdiction because the OCCA has original jurisdiction over post-conviction matters in capital cases. Id. at 1418-20. The OCCA ordered the district court to commence the resentencing trial in accordance with its previous order in Hanson I. Petitioner's resentencing trial was held January 9-24, 2006. He was represented at this trial by attorneys Jack Gordon and Steven Hightower. Once again, a jury recommended a sentence of death for Petitioner. The jury found the existence of three (3) aggravating factors: (1) the defendant, prior to the murder, was convicted of a felony involving the use or threat of violence to the person; (2) during the commission of the murder, the defendant knowingly created a risk of death to more than one person; and (3) the murder was committed for the purpose of avoiding or preventing a lawful arrest or prosecution. O.R. Vol. IX at 1563. The jury did not find that there exists a probability that Petitioner will commit criminal acts of violence that would constitute a continuing threat to society. Id. The trial judge, in accordance with the jury's recommendation, sentenced Petitioner to death for the Count I First Degree Murder conviction. Id. at 1646.

Petitioner appealed his death sentence to the OCCA in Case No. D-2006-126. Represented by Oklahoma Indigent Defense System (OIDS) attorneys Jamie Pybas and Kathleen Smith, Petitioner raised the following nine (9) propositions of error:

Proposition I: Mr. Hanson's rights to due process of law and a reliable sentencing hearing under the Eighth and Fourteenth Amendments and his confrontation rights under the Sixth Amendment were violated when the trial court overruled defense objections to the use of hearsay testimony of Rashad Barnes.

Proposition II: This court abused its discretion in granting the State's application for a writ of prohibition and reversing the district court's grant of a newtrial on newly discovered evidence, violating Appellant's due process rights under the Fourteenth Amendment and Article II, §§ 7 and 20 of the Oklahoma Constitution.

Proposition III: The prosecution engaged in deliberate misconduct, depriving Mr. Hanson of his rights to a fair and reliable sentencing hearing.

Proposition IV: Mr. Hanson was deprived of the reasonably effective assistance of counsel guaranteed him by the Sixth Amendment to the United States Constitution and Article II, §§ 7 and 20 of the Oklahoma Constitution.

Proposition V: The jury's finding that during the commission of the murder, the defendant knowingly created a great risk of death to more than one person violates Appellant's constitutional rights because the evidence was insufficient to support the finding, the prosecutor materially misled the jury about

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