Hawkins v. Mullin, 00-6204.

• Decision Date: 22 May 2002
• Docket Number: No. 00-6204.,00-6204.
• Citation: 291 F.3d 658
• Court: U.S. Court of Appeals — Tenth Circuit
• Parties: Don Wilson HAWKINS, Petitioner-Appellant, v. Mike MULLIN,<SMALL><SUP>*</SUP></SMALL> Warden, Oklahoma State Penitentiary, Respondent-Appellee.

291 F.3d 658

Don Wilson HAWKINS, Petitioner-Appellant, v. Mike MULLIN,^* Warden, Oklahoma State Penitentiary, Respondent-Appellee.

No. 00-6204.

United States Court of Appeals, Tenth Circuit.

May 22, 2002.

COPYRIGHT MATERIAL OMITTED

Scott W. Braden, Assistant Federal Public Defender, Death Penalty Federal Habeas Corpus Division, Oklahoma City, OK, for Petitioner-Appellant.

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

Before TACHA, Chief Judge, EBEL, and LUCERO, Circuit Judges.

TACHA, Chief Judge.

Petitioner-appellant Don Wilson Hawkins appeals the denial of habeas relief, see 28 U.S.C. § 2254, from his Oklahoma first-degree felony murder conviction and death sentence. Among other claims, Hawkins argues that the State improperly based his first-degree felony murder conviction on kidnapping for extortion, which is not a specifically enumerated felony supporting a first-degree murder conviction under Oklahoma law. The Oklahoma Court of Criminal Appeals, nevertheless, interpreted Oklahoma's first-degree felony murder statute to include kidnapping for extortion as an underlying felony. We hold that the Oklahoma appellate court's interpretation was not unforeseeable and therefore did not deprive Hawkins of due process. We therefore affirm the district court's denial of habeas relief on this claim, as well as on Hawkins's other claims.

I. FACTS

On August 19, 1985, Hawkins, armed with a revolver, forced his way into Linda Thompson's car, as she purchased stamps at a self-service postal station at a shopping mall near her home. Thompson's two small daughters, Lori, age four, and Katie, eighteen months old, were also in the car at the time. According to Hawkins, his original plan was to kidnap Thompson and hold her for ransom. Hawkins drove the victims to the home of Shirley Pitts, with whom Hawkins had been living for several months. Pitts's fifteen-year-old nephew, Chris Lovell, and Hawkins's cousin, Dale Shelton, were staying with the couple at that time.

At the house, Pitts and Lovell watched the children. Hawkins and Shelton kept Thompson upstairs in the house for several hours. Later that night, they took Thompson to a barn several hundred yards away, where they kept her chained in the barn's loft. Her children remained locked in a bedroom in the house.

Shelton and Lovell each raped Thompson. During the night, they did allow Thompson to see her children at the house. In the morning, after permitting Thompson briefly to say goodbye to her daughters, Hawkins and Shelton drove Linda Thompson to a nearby lake, where Hawkins hog-tied and drowned her, while Shelton stood lookout. Hawkins and Shelton hid the body and fled the state. Pitts and Lovell left Thompson's daughters with their babysitter.

Police arrested Pitts and Lovell later that day. California police arrested Hawkins and Shelton two months later, in Sacramento. Following his arrest, Hawkins made a statement to Oklahoma detectives admitting these crimes, including drowning Thompson because she otherwise could be a witness against him.

The jury convicted Hawkins of the first-degree felony murder of Linda Thompson and two counts of kidnapping her children for extortion. The jury sentenced him to life imprisonment on the two kidnapping-for-extortion convictions, which Hawkins had committed after two or more prior felony convictions.

During the capital sentencing proceeding, the State incorporated its first-stage evidence and presented additional evidence concerning Hawkins's further violent criminal conduct. That evidence established that, after Thompson's murder, Hawkins had kidnapped, raped, and sodomized two teenage girls in San Diego, California. The following day, he had kidnapped and robbed two other women, one of whom his accomplice had raped and sodomized. In addition, immediately prior to Thompson's murder, Hawkins had killed a man in Denver, Colorado. Hawkins had also beaten his girlfriend Pitts and kept her locked in a trailer while the couple briefly lived in Colorado. Finally, Hawkins had lost his job in Colorado after he shot at his boss's car.

Hawkins instructed his defense attorney, during the trial's second stage, not to raise any objections or cross-examine any State witnesses. Hawkins also directed his attorney not to put on any evidence in mitigation or present any opening or closing argument.

Jurors found all four of the charged aggravating factors: 1) Hawkins had killed Thompson to avoid arrest; 2) Thompson's murder was especially heinous, atrocious, or cruel; 3) Hawkins is a continuing threat to society; and 4) Hawkins had previously been convicted of a violent felony. The jury then sentenced Hawkins to death. The Oklahoma Court of Criminal Appeals affirmed Hawkins's convictions and sentences on direct appeal, see Hawkins v. State, 891 P.2d 586 (Okla.Crim.App.1994), cert. denied, 516 U.S. 977, 116 S.Ct. 480, 133 L.Ed.2d 408 (1995), and denied post-conviction relief in an unpublished opinion.

The State also tried Shelton jointly with Hawkins. The jury convicted Shelton of first-degree felony murder, first-degree rape and forcible oral sodomy, all involving Linda Thompson, and of kidnapping Thompson's two children for extortion. Jurors sentenced Shelton to five consecutive life sentences. See Shelton v. State, 793 P.2d 866, 869 (Okla.Crim.App.1990).

II. STANDARD OF REVIEW

Under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Hawkins will be entitled to habeas relief only if he can establish that the state courts' resolution of his claims was "contrary to, or involved an unreasonable application of, clearly established" Supreme Court precedent, or 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). We will presume correct any state-court factual finding, absent clear and convincing evidence to the contrary. See id. § 2254(e)(1). If the state courts did not address Hawkins's habeas claims' merit, however, we will review the district court's decision de novo, and any factual findings only for clear error. See, e.g., Romano v. Gibson, 278 F.3d 1145, 1150 (10th Cir.2002).

III. ISSUES

A. Basing first-degree felony murder conviction on kidnapping for extortion. At the time this crime occurred, in October 1985, Oklahoma defined first-degree felony murder as "tak[ing] the life of a human being, regardless of malice, in the commission of forcible rape, robbery with a dangerous weapon, kidnapping, escape from lawful custody, first degree burglary or first degree arson." Okla. Stat. tit. 21, § 701.7(B) (1983) (subsequently amended). Hawkins challenges his first-degree felony murder conviction because the State charged him with, and the jury convicted him of, first-degree felony murder based upon kidnapping for extortion, see id. § 745, a separate offense from simple kidnapping, see id. § 741, under Oklahoma law. Nonetheless, in rejecting this claim, the Oklahoma Court of Criminal Appeals held that the Oklahoma legislature, by referring to "kidnapping" in the first-degree felony murder statute, intended to include all forms of kidnapping made criminal under Oklahoma law. See Opinion, No. PC 96-1271, at 6-7 (Okla.Crim.App. Mar. 18, 1998).

Although Hawkins challenges the state court's interpretation of Oklahoma's first-degree felony murder statute, this court is bound by the state court's interpretation of its own law. See, e.g., Mullaney v. Wilbur, 421 U.S. 684, 691, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975); see also, e.g., Bouie v. City of Columbia, 378 U.S. 347, 350, 84 S.Ct. 1697, 12 L.Ed.2d 894 (1964) (finding appellants' argument that a state statute's language did not criminalize their conduct was "persuasive but beside the point," because state courts had construed the statute to apply in those circumstances); McDonald v. Champion, 962 F.2d 1455, 1462 (10th Cir.1992) (noting it was not habeas court's task to determine whether state court's decision interpreting state statute was "correct"). Nonetheless, a state court's retroactive application of an unforeseeable interpretation of state law may deprive a criminal defendant of due process. See Devine v. N.M. Dep't of Corr., 866 F.2d 339, 345-47 (10th Cir.1989) (noting that a state "court is of course free to apply its rules of statutory interpretation without federal review. The court may not, however, make its interpretations retroactive when they are unforeseeable."). The focus of our habeas inquiry, therefore, is whether it was foreseeable that the state court would interpret Okla. Stat. tit. 21, § 701.7(B) to include kidnapping for extortion as a felony that will support a first-degree felony murder conviction

1. Exhaustion/procedural default. The State first argues to this court that Hawkins failed to exhaust this claim in state court and that, were he to raise it now, the state courts would deem it procedurally barred. Hawkins did fail to object when the trial court instructed on, and the jury then convicted Hawkins of, first-degree felony murder based upon kidnapping for extortion. Nor did he raise this issue on direct appeal. After his direct appeal, however, the Oklahoma Court of Criminal Appeals stated in dicta in Richie v. State, 908 P.2d 268, 275 (Okla.Crim.App.1995), that "[k]idnapping and kidnapping for extortion are separate and distinct crimes" under Oklahoma law and "[k]idnapping for extortion is not one of the enumerated felonies for a [first-degree] felony murder conviction." In Richie, the state appellate court held that the trial court had erred in instructing the jury on kidnapping for extortion as the felony underlying the first-degree felony murder charge, when the State had instead charged him with felony murder during a kidnapping. See id. at 274-75.

Following Richie, Hawkins applied for state...