Hooper v. Mullin

• Decision Date: 19 December 2002
• Docket Number: No. 01-6238.,No. 01-6242.,01-6238.,01-6242.
• Citation: 314 F.3d 1162
• Parties: Michael Edward HOOPER, Petitioner-Appellant-Cross-Appellee, v. Mike MULLIN,<SMALL><SUP>*</SUP></SMALL> Warden, Oklahoma State Penitentiary, Respondent-Appellee-Cross-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

314 F.3d 1162

Michael Edward HOOPER, Petitioner-Appellant-Cross-Appellee, v. Mike MULLIN,^* Warden, Oklahoma State Penitentiary, Respondent-Appellee-Cross-Appellant.

No. 01-6238.

No. 01-6242.

United States Court of Appeals, Tenth Circuit.

December 19, 2002.

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Mark L. Henricksen (Lanita Henricksen with him on the brief), of Henricksen & Henricksen Lawyers, Inc., El Reno, OK, for Petitioner-Appellant-Cross-Appellee.

Robert L. Whittaker, Assistant Attorney General (W.A. Drew Edmondson, Attorney General of Oklahoma, with him on the brief), Oklahoma City, OK, for Respondent-Appellee-Cross-Appellant.

Before SEYMOUR, BALDOCK, and KELLY, Circuit Judges.

BALDOCK, Circuit Judge.

An Oklahoma jury convicted Petitioner Michael Edward Hooper on three counts of first degree murder in the shooting deaths of his twenty-three-year-old former girlfriend, Cynthia Jarman, and her two children, Tonya Kay Jarman and Timmy Glen Jarman. The jury imposed the death sentence for each count. The Oklahoma Court of Criminal Appeals affirmed Petitioner's convictions and sentences on direct appeal and denied post-conviction relief. See Hooper v. State, 947 P.2d 1090 (Okla. Crim.App.1997); Hooper v. State, 957 P.2d 120 (Okla. Crim.App.), cert. denied, 524 U.S. 943, 118 S.Ct. 2353, 141 L.Ed.2d 722 (1998). On habeas review, the federal district court granted Petitioner relief from his death sentences after concluding defense counsel's representation during the capital sentencing proceeding was constitutionally ineffective. See 28 U.S.C. § 2254. The court denied relief on numerous other claims in which Petitioner challenged both his convictions and his sentences. Petitioner appealed the district court's denial of habeas relief on his remaining claims. The State cross-appealed the district court's grant of habeas relief from the death sentences. The district court granted a certificate of appealability as to three of Petitioner's claims. This Court granted a COA as to two additional claims.² We have jurisdiction pursuant to 28 U.S.C. § 1291 and 28 U.S.C. § 2253. We affirm.

I.

Petitioner met Cynthia Jarman in early 1992, and they dated through the summer of 1993. Their relationship was physically violent, and Petitioner threatened to kill Jarman on several occasions. In July 1993, Jarman began dating Petitioner's friend, Bill Stremlow. In November, three weeks before the murders, Jarman began living with Stremlow. Before moving in with Stremlow, Jarman confided in a friend that Petitioner had previously threatened to kill her if she ever lived with another man.

On December 6, 1993, Jarman confided in a friend that she wanted to see Petitioner one last time. On the morning of December 7, 1993, Jarman dropped Stremlow off at work and borrowed his truck for the rest of the day. Jarman picked up her daughter, Tonya, at school that afternoon. At that time, Tonya's teacher saw Tonya get into Stremlow's truck next to a white man who was not Stremlow. Jarman failed to pick up Stremlow from work that evening as planned. Later that night, Stremlow's truck was found burning in a field. The truck's windows were broken out. An accelerant had been used to set the truck on fire.

On December 10, a farmer and police officers discovered the bodies of Jarman and her two children buried in a shallow grave in another field. At the grave site, police found broken glass, tire tracks, a footprint, shell casings, a child's bloody sock, and a pool of blood near a tree with a freshly broken branch. On top of the grave, police found a tree branch in which a nine millimeter bullet was embedded. The bullet pinned white fibers to the branch. The fibers were consistent with the white fibers in Tonya Jarman's jacket. The jacket had a charred hole in the hood. The branch appeared to have been broken off of a tree near the pool of blood. Each victim had suffered two gunshot wounds to the face or head. Although investigators never recovered the bullets, the wounds were consistent with nine millimeter ammunition.

Police arrested Petitioner and searched his parents' home. The police recovered a nine millimeter weapon Petitioner had purchased several months prior to the murders. Police also recovered two shovels with soil consistent with soil from the grave site, two gas cans, and broken glass consistent with glass found in Tonya's coat and near the gate at the field. Police officers also seized Petitioner's tennis shoes. The shoes made prints similar to those found at the murder scene, and DNA tests revealed the presence of blood consistent with Cynthia Jarman's blood on the shoes. At trial, a ballistics expert testified that shell casings from the crime scene matched casings fired from Petitioner's weapon. Petitioner's former wife testified that Petitioner was familiar with the field where the bodies were found, and that he previously had visited the field with her on several occasions.

Based on this evidence, the jury convicted Petitioner of three counts of first degree murder. During the capital sentencing proceeding, the jury found two aggravating factors existed with respect to all three victims: (1) Petitioner had created a great risk of death to more than one person, and (2) Petitioner was a continuing threat to society. Additionally, the jury found a third aggravating factor existed with respect to Tonya Jarman: Petitioner had committed the murder to avoid arrest or prosecution for the murder of Cynthia Jarman. After considering Petitioner's mitigating evidence, the jury imposed the death sentence for each count.

Petitioner asserts (1) he was denied effective assistance of counsel during sentencing; (2) prosecutorial misconduct prejudiced the jury's deliberations at both the guilt and sentencing stages; (3) his constitutional rights were violated by the State Court's admission of victim impact statements; (4) he was denied effective assistance of counsel during the guilt stage of his trial; and (5) the accumulation of errors in this case so infected the proceedings with unfairness that he was deprived of a fair and reliable trial and sentencing.

II.

Under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), if a claim is adjudicated on its merits in state court, a petitioner is entitled to federal habeas relief only if he can establish the state court decision "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," 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)(1), (2). We presume state court factual findings are correct, and place the burden on the petitioner to rebut that presumption with clear and convincing evidence. Id. § 2254(e)(1). If the state courts did not decide a claim on its merits and the claim is not procedurally barred, we review the district court's legal conclusions de novo and its factual findings for clear error. Hooker v. Mullin, 293 F.3d 1232, 1237 (10th Cir.2002).

A.

Petitioner contends his two defense attorneys, Richard Krogh and Mitchell Lee, were constitutionally ineffective in their development and use of psychological evidence during the capital sentencing proceeding. The Oklahoma Court of Criminal Appeals (OCCA), applying Strickland, found counsels' actions prejudicial, but determined that Petitioner had not demonstrated deficient performance based on the facts contained in the record. OCCA denied Petitioner's request for an evidentiary hearing. On habeas review, the federal district court agreed Petitioner established prejudice and granted an evidentiary hearing limited to the issue of counsel's performance at sentencing. After the evidentiary hearing, the district court found counsel's performance constitutionally deficient, and granted Petitioner relief from his death sentences. The Government cross-appeals this portion of the district court's order.

1.

Prior to the Jarman murders, Petitioner received anger management counseling. In April 1993, after six months of counseling, Russell Adams, Ph.D., gave Petitioner several neuropsychological tests to diagnose possible learning disabilities and to assist Petitioner in making career and educational plans. According to Dr. Adams' report, Petitioner's cognitive functioning was "largely adequate" and his intelligence average, but his difficulty spelling might be evidence of a learning disability. The tests also indicated that Petitioner had some emotional and psychological problems, and that he had difficulty controlling his anger and coping with everyday problems. The report noted that Petitioner's ability to remain controlled in stressful situations was "greatly improved."

In August 1994, defense counsel retained a psychologist, Philip Murphy, Ph. D., to review Dr. Adams' report. Based solely on Dr. Adams' findings, Dr. Murphy prepared a one-page summary report. In his report, Dr. Murphy indicated there was evidence of "mild but probable brain damage" that could increase the likelihood of violence, especially if Petitioner was under the influence of alcohol or other substances. In addition, Dr. Murphy noted Petitioner might suffer from a "serious psychiatric thought disorder." Petitioner had a psychological "profile often ... associated with psychotic behavior ... [and] definite difficulties with interpersonal relationships." Dr. Murphy qualified his "impressions" by noting that both "possible disorders require further diagnostic investigation to confirm."

Dr. Murphy sent this report to defense counsel in December 1994. He did not hear from defense counsel again until June 1995, after the jury found Petitioner guilty of murdering Jarman and her two children. That afternoon, trial counsel Lee called Dr. Murphy to request his testimony at the capital sentencing proceeding scheduled for the following day. Dr. Murphy...