Harris v. Sharp

• Decision Date: 28 October 2019
• Docket Number: No. 17-6109,17-6109
• Citation: 941 F.3d 962
• Parties: Jimmy Dean HARRIS, Petitioner - Appellant, v. Tommy SHARP, Interim Warden, Oklahoma State Penitentiary, Respondent - Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

941 F.3d 962

Jimmy Dean HARRIS, Petitioner - Appellant,

v.Tommy SHARP, Interim Warden, Oklahoma State Penitentiary,^* Respondent - Appellee.

No. 17-6109

United States Court of Appeals, Tenth Circuit.

October 28, 2019

Jack Fisher, Fisher Law Office, Edmond, Oklahoma, and Emma V. Rolls, Assistant Federal Public Defender, Oklahoma City, Oklahoma, on behalf of the Petitioner-Appellant.

Jennifer L. Crabb, Assistant Attorney General (Mike Hunter, Attorney General of Oklahoma, with her on the briefs), Oklahoma City, Oklahoma, on behalf of the Respondent-Appellee.

Before TYMKOVICH, Chief Judge, BACHARACH, and McHUGH, Circuit Judges.

BACHARACH, Circuit Judge.

TABLE OF CONTENTS

Background...971

The Standard of Review...972

Appellate Arguments Covered in an Existing Certificate of Appealability...973

I. Ineffective Assistance of Counsel...973

A. The Strickland Standard...973

B. Failure to Seek a Pretrial Hearing on Intellectual Disability as a Bar to Execution...974

1. The Standard of Review...974

2. Deficiency Prong...976

3. Prejudice Prong...978

(a) Unreasonable Determination of Fact...978

(b) The Need for an Evidentiary Hearing...982

(c) Conclusion...987

C. Failure to Adequately Present Mitigation Evidence...987

1. The Legal Standard and the Standard of Review...987

2. Intellectual Impairment as a Mitigating...988

(a) Evidence of an Intellectual Impairment...988

(b) Mitigation Evidence Involving an Intellectual Disability...989

(c) Mitigation Evidence Involving Borderline Intellectual Functioning...991

i. The OCCA's Reliance on Both Prongs (Deficient Performance and Prejudice)...991

ii. Deficient Performance...991

iii. Prejudice...993

(d) Mitigation Evidence Involving Mental Illness...994

i. Mental Health Evidence in the 2005 Retrial...994

ii. Other Existing Evidence of Mr. Harris's Mental Illness...995

iii. Claim of Ineffective Assistance of Counsel...995

a. Deficiency Prong...996

(i) Unreasonable Factual Determinations...996

(ii) Unreasonable Application of Supreme Court Precedents...997

b. Prejudice...997

II. Jury Instructions and Closing Arguments as to Mitigation Evidence...999

A. The Standard of Review...999

B. The Jury Instruction...1000

C. The Prosecutors' Closing Arguments...1001

1. Applicability of 28 U.S.C. § 2254(d)...1001

2. Unreasonable Determination of Fact...1001

3. Unreasonable Application of Supreme Court Precedent...1003

III. Victim-Impact Testimony...1006

A. The Constitutional Limit on Victim-Impact Testimony...1006

B. The Victim-Impact Testimony and the Issue of Harmlessness...1007

C. Structural or Harmless Error...1007

D. Harmlessness...1008

IV. Cumulative Error...1010

Motion to Expand the Certificate of Appealability...1011

Conclusion...1012

Mr. Jimmy Dean Harris was convicted of first-degree murder and sentenced to death. He appealed, and the Oklahoma Court of Criminal Appeals (OCCA) reversed his sentence and remanded for a retrial at the penalty phase. After the retrial, the state district court reimposed the death penalty. Mr. Harris appealed and sought post-conviction relief in state court. When these efforts failed, he brought a habeas petition in federal district court. The court denied relief, and Mr. Harris appeals.

On appeal, Mr. Harris argues in part that his trial counsel was ineffective in failing to seek a pretrial hearing on the existence of an intellectual disability, which would have prevented the death penalty.¹ The federal district court rejected this claim. In our view, the district court should have conducted an evidentiary hearing to decide this claim, so we reverse and remand for further consideration. Given the need to remand on this issue, we also remand for the district court to reconsider the claim of cumulative error. But we affirm the denial of habeas relief on Mr. Harris's other claims.

Background²

Jimmy Dean Harris and Pam Harris were married for about twenty years. Mr. Harris repaired transmissions, as did Pam, who worked for Mr. Merle Taylor. With the passage of time came marital strain between Mr. Harris and Pam.

In 1999, Pam obtained a divorce and restraining order, requiring Mr. Harris to move out of their house. He complied, moving his belongings into a storage shed, but he grew distraught—crying, drinking, and taking Valium.

The next day, Pam returned home and discovered that Mr. Harris had vandalized the house and moved some of her belongings into the storage shed. This incident led Pam to change the locks and to obtain a second restraining order, which required Mr. Harris to stay away from the house.

Mr. Harris repeatedly asked Pam to allow him to retrieve his tools. After a few days, Mr. Harris went to Pam's workplace and shot at her, Mr. Taylor, and his daughter (Jennifer Taylor). Mr. Taylor died, Pam was wounded

, and Jennifer Taylor escaped without injury.

At a 2001 trial, the jury found Mr. Harris guilty of first-degree murder in the death of Merle Taylor and recommended the death penalty, finding one aggravating circumstance (creation of a substantial risk of death to more than one person).³ As noted above, the death sentence was vacated by the OCCA in a prior appeal. At the 2005 retrial on the penalty, the prosecution alleged two aggravating factors:

1. Mr. Harris created a substantial risk of death to more than one person.

2. Mr. Harris posed a continuing threat to society. The jury found both aggravating factors and again recommended the death penalty. The trial court agreed with the recommendation and resentenced Mr. Harris to the death penalty.

The Standard of Review

We engage in de novo review of the federal district court's legal analysis. Littlejohn v. Trammell , 704 F.3d 817, 825 (10th Cir. 2013). In district court, review is deferential when the state appellate court rejects a claim on the merits. After rejection of the claim in state court, the federal district court can reach the merits only if the state appellate court's decision was

• contrary to, or involving an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or

• based on an unreasonable determination of the facts given the evidence presented in state court.

Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 28 U.S.C. § 2254(d).

To determine whether a state-court decision was contrary to, or involved an unreasonable application of, clearly established law, we engage in a two-step process. Budder v. Addison , 851 F.3d 1047, 1051 (10th Cir.), cert. denied , ––– U.S. ––––, 138 S. Ct. 475, 199 L.Ed.2d 374 (2017). We first determine the clearly established law by considering Supreme Court precedent. Williams v. Taylor , 529 U.S. 362, 379, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). We then ask whether the state court's decision was contrary to, or involved an unreasonable application of, that precedent. Id.

We must defer to the state court's factual findings unless "the state court[ ] plainly misapprehend[ed] or misstate[d] the record in making [its] findings, and the misapprehension goes to a material factual issue that is central to [the] petitioner's claim." Ryder ex rel. Ryder v. Warrior , 810 F.3d 724, 739 (10th Cir. 2016) (quoting Byrd v. Workman , 645 F.3d 1159, 1171–72 (10th Cir. 2011) ). To overcome the state appellate court's factual findings, the petitioner must show that they are objectively unreasonable. Smith v. Aldridge , 904 F.3d 874, 880 (10th Cir. 2018).

If the state's highest court acted unreasonably in applying Supreme Court precedent or finding facts, the district court must decide whether the conviction or sentence violated the Constitution. See Fry v. Pliler , 551 U.S. 112, 119, 127 S.Ct. 2321, 168 L.Ed.2d 16 (2007) (stating that 28 U.S.C. § 2254(d) provides "precondition[s] to the grant of habeas relief ..., not an entitlement to it"); Hancock v. Trammell , 798 F.3d 1002, 1010 (10th Cir. 2015) ("[E]ven when petitioners satisfy the threshold in § 2254(d), they must establish a violation of federal law or the federal constitution.").

Appellate Arguments Covered in an Existing Certificate of Appealability

Our court previously granted a certificate of appealability on Mr. Harris's appellate arguments involving ineffective assistance of counsel, an improper jury instruction on mitigation evidence, improper closing arguments about the mitigation evidence, improper victim testimony recommending a particular sentence, and cumulative error. We reverse and remand for further consideration of the claims involving (1) ineffective assistance in the failure to seek a pretrial hearing on an intellectual disability and (2) cumulative error.

I. Ineffective Assistance of Counsel

The Sixth Amendment entitles a defendant to effective assistance of counsel. Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Invoking this amendment, Mr. Harris argues that his attorney at the 2005 retrial was ineffective for failing to

• seek a pretrial hearing on the existence of an intellectual disability, which would have precluded the death penalty,

• present additional trial evidence for mitigation based on an intellectual disability, and

• present additional mitigation evidence at trial regarding a lesser intellectual impairment or mental illness.

A. The Strickland Standard

To address Mr. Harris's arguments, the district court needed to apply the two-part test set out in Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

Under the first part of the test, the court was to determine whether Mr. Harris's attorney was deficient. Attorneys are deficient when their mistakes are so serious that they stop functioning as "counsel" for purposes of the Sixth Amendment. Id. at 687, 104 S.Ct. 2052. In making this determination, the court ordinarily presumes that counsel's performance is reasonable and might entail a sound strategy. Newmiller v. Raemisch , 877 F.3d 1178, 1196 (10th Cir. 2017). In capital cases, however, courts scrutinize attorney performance particularly closely in the sentencing phase. Littlejohn v. Trammell , 704 F.3d 817,...