Howell v. Workman
| Decision Date | 28 October 2011 |
| Docket Number | Case No. CIV-07-1008-D |
| Parties | MICHAEL WAYNE HOWELL, Petitioner, v. RANDALL G. WORKMAN, Warden, Oklahoma State Penitentiary, Respondent. |
| Court | U.S. District Court — Western District of Oklahoma |
Petitioner, Michael Wayne Howell, is a state court prisoner currently incarcerated pending the execution of a judgment and sentence of death. In this action, his second habeas proceeding, Petitioner challenges a state court determination that he is not mentally retarded. Petitioner was pursuing his first habeas action1 when the Supreme Court decided Atkins v. Virginia, 536 U.S. 304 (2002). In Atkins, the Supreme Court held that the Eighth Amendment prohibits execution of a mentally retarded offender. Atkins, 536 U.S. at 321. In May 2005, a jury determined that Petitioner is not mentally retarded. In Howell v. State, 138 P.3d 549 (Okla. Crim. App. 2006), and in a subsequent post-conviction proceeding, Howell v. State, No. PCD-2006-712 (Okla. Crim. App. Sept. 10, 2007) (unpublished), the Oklahoma Court of Criminal Appeals (hereinafter "OCCA") affirmed this finding and thevalidity of the proceedings conducted. On September 12, 2007, in Case No. 07-6218, Petitioner received authorization from the Tenth Circuit to file the present action.
In his First Amended Second Petition, Petitioner has presented seventeen2 grounds for relief. Doc. 22 (hereinafter "Petition"). In addition to his Petition, Petitioner also filed a motion to amend his Petition and a motion for evidentiary hearing, both of which have been denied. Docs. 37 and 38. Respondent has responded to the Petition, Doc. 29 (hereinafter "Response"), and provided the state court record.3 After a thorough review of the entire state court record, the pleadings filed herein, and the applicable law, the Court finds that, for the reasons set forth below, Petitioner is not entitled to relief.
In his Response, Respondent argues that all but one of Petitioner's claims should be dismissed. Citing 28 U.S.C. § 2244(b)(2)(A) and (b)(4), Respondent asserts that the only claim which Petitioner should be allowed to maintain in this successive action is his Ground 11, a claim regarding the sufficiency of the evidence. Respondent contends that Petitioner's other claims, which include prosecutorial misconduct, jury instructions, evidentiary matters, and ineffective assistance of counsel, "reach[] far beyond the holding in Atkins" and are therefore "not based upon a new rule of constitutional law." Response, pp. 9, 10-11.
Petitioner was given authorization by the Tenth Circuit to file a second petition presenting an Atkins challenge. In accordance with Ochoa v. Sirmons, 485 F.3d 538 (10th Cir. 2007), the Tenth Circuit found that Petitioner satisfied the requirements of Section 2244(b)(2)(A). Ochoa makes clear, however, that the Tenth Circuit's authorization is but a preliminary determination and that it is up to the district court to make the final determination as to whether Petitioner's claims satisfy the requirements for a second petition. Ochoa, 485 F.3d at 543.
The Court concurs with the conclusion of the Tenth Circuit that this action is authorized by Section 2244(b)(2)(A). Pursuant to Atkins, which establishes a new rule of constitutional law with retroactive application, Petitioner sought out and received a state court determination on the issue of his mental retardation. He challenged that determination through appropriate state appeals and appears now before this Court with seventeen claims, all of which relate to his mental retardation trial. All of these claims were previously unavailable to Petitioner, but arose out of the Atkins inquiry conducted in state court. All were presented to the OCCA and addressed on the merits.4 Accordingly, the Court finds that all of Petitioner's claims are proper, and Respondent's motion to dismiss is denied. See Ochoa v. Workman, No. CIV-06-1348-R, 2010 WL 915826 (W.D. Okla. Mar. 10, 2010) (unpublished) ().
In accordance with the Antiterrorism and Effective Death Penalty Act of 1996 (hereinafter "AEDPA"), the Court's ability to grant habeas corpus relief to state prisoners is limited. When a state prisoner presents a claim to this Court, the merits of which have been addressed in state court proceedings, the Court cannot grant habeas corpus relief upon the claim unless it determines that the state court proceedings resulted in a decision (1) "that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States" or (2) "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).
The focus of Section 2254(d) is on the reasonableness of the state court's decision. To obtain relief, a petitioner must show that the state court decision is "objectively unreasonable." Williams v. Taylor, 529 U.S. 362, 409 (2000) (). See Cullen v. Pinholster, 563 U.S. _____, 131 S.Ct. 1388, 1398 (2011) (). "The question under AEDPA is not whether a federal court believes the state court's determination was incorrect but whether that determination was unreasonable - a substantially higher threshold." Schriro v. Landrigan, 550 U.S. 465, 473 (2007).
"Under § 2254(d), a habeas court must determine what arguments or theories supported . . . the state court's decision; and then it must ask whether it is possible fairmindedjurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of Court." Harrington v. Richter, 562 U.S. _____, 131 S.Ct. 770, 786 (2011). Relief is warranted only "where there is no possibility fairminded jurists could disagree that the state court's decision conflicts with [the Supreme Court's] precedents." Id. The deference embodied in Section 2254(d) "reflects the view that habeas corpus is a 'guard against extreme malfunctions in the state criminal justice systems,' not a substitute for ordinary error correction through appeal." Id. (citation omitted).
On May 23-27, 2005, a jury trial was held on the issue of Petitioner's mental retardation. Petitioner, who elected not to be present during the proceedings, was represented by two court-appointed attorneys. Three witnesses, a psychologist and two siblings, testified on Petitioner's behalf. The State presented four witnesses, including a psychologist, a prosecutor, a police officer, and Petitioner's co-defendant. The jury was instructed that it had to find Petitioner mentally retarded if he proved by a preponderance of the evidence that he had significant sub-average intellectual functioning, which manifested itself before age eighteen, and significant limitations in adaptive functions. The jury unanimously determined that Petitioner is not mentally retarded.
Dr. Daniel H. Grant, a licensed psychologist, met with Petitioner in November 2002 (Tr. II, 297, 339). Dr. Grant administered numerous tests to Petitioner, including three intelligence tests (Tr. II, 339-40; Defendant's Exhibit 6). On the Wechsler Adult IntelligenceScale, Third Revision (WAIS-III), Petitioner scored a 73 (Tr. II, 341); on the Stanford-Binet Intelligence Scale, Fourth Edition, Petitioner scored a 62 (Tr. II, 343); and on the Comprehensive Test of Non-Verbal Intelligence, Petitioner scored a 67 (Tr. II, 345). Dr. Grant testified that all of these scores showed significantly sub-average intelligence (Tr. II, 369).5 Dr. Grant also tested Petitioner's adaptive behavior using the Independent Living Scale. Dr. Grant testified that Petitioner's scores on this test correspond to a 61 on the WAIS-III and therefore indicate that Petitioner has an adaptive functioning level within the range of mental retardation (Tr. II, 363, 365-68). Dr. Grant's ultimate conclusion was that Petitioner met the clinical definition of mental retardation (Tr. II, 393).
Petitioner's younger sister, Brenda Lee Hunter, testified regarding all the assistance she had to give Petitioner when they were kids. She had to help him get dressed, tie his shoes, and comb his hair (Tr. IV, 645-46). She testified that Petitioner had difficulty speaking so that others could understand and that he did not learn his alphabet until he was nine years old (Tr. IV, 646-47).
Petitioner's younger brother, David Allen Howell, also testified. He testified that he and Petitioner were in the same grade and that they were in special education classes together (Tr. IV, 655). Mr. Howell testified that other kids made fun of them. They were called "retarded" and "flag boys" because they were in special education and because of theFs they made (Tr. IV, 655-56). Mr. Howell testified about the jobs he and Petitioner had when they were teenagers (Tr. IV, 656-59). He also testified that Petitioner never lived alone (Tr. IV, 660).
Dr. John Robert Hutson, a licensed clinical psychologist, met with Petitioner in February 2005 (Tr. IV, 665-66, 683). Dr. Hutson interviewed Petitioner and administered two tests, the WAIS-III and the M-test (a malingering test) (Tr. IV, 684-85). Dr. Hutson gave the M-test after the WAIS-III because he "was very uncomfortable with the effort [Petitioner] had put forth" on the WAIS-III (Tr. IV, 686). Dr. Hutson noted that rather than give thought to an answer, Petitioner would say he did not know, and on timed items, Petitioner deliberately worked slower (Tr. IV, 687-88). Thus, although Petitioner scored a 66 on the WAIS-III he administered, Dr. Hutson concluded that this was not a valid assessment of his intellectual functioning ...
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