Lay v. Trammell

• Decision Date: 07 October 2015
• Docket Number: Case No. 08-CV-617-TCK-PJC
• Court: U.S. District Court — Northern District of Oklahoma
• Parties: WADE GREELY LAY, Petitioner, v. ANITA TRAMMELL, Warden, Oklahoma State Penitentiary, Respondent.

WADE GREELY LAY, Petitioner, v. ANITA TRAMMELL, Warden,Oklahoma State Penitentiary, Respondent.

Case No. 08-CV-617-TCK-PJC

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OKLAHOMA

October 7, 2015

OPINION AND ORDER

This is a 28 U.S.C. § 2254 habeas corpus action. Petitioner, Wade Greely Lay (Lay), is an Oklahoma death row prisoner, currently incarcerated at the Oklahoma State Penitentiary in McAlester, Oklahoma. In his petition (Dkt. # 18), Lay, who appears through counsel, alleges that he "is confined by the State of Oklahoma under a first degree murder conviction and sentence of death in violation of the laws and Constitution of the United States." Id. at 1. Respondent filed a response (Dkt. # 39) to the petition, and Lay filed a reply (Dkt. # 47) to the response. Lay also filed a "renewed motion for evidentiary hearing" (Dkt. # 144). In response, Respondent filed a "motion to strike, and alternatively, response to Lay's renewed motion for evidentiary hearing" (Dkt. # 147). Lay filed a reply (Dkt. # 152). The state court record has been produced.¹ The Court considered all of these materials in reaching its decision. For the reasons discussed below, the Court concludes the petition shall be denied. In addition, Lay's renewed motion for evidentiary hearing shall be denied and Respondent's motion to strike shall 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 Lay's direct appeal is adequate and accurate. Therefore, the Court adopts the following factual summary as its own:

The facts in this case are largely undisputed. Lay does not challenge his convictions but only the sentences he received for them. On May 24, 2004, Wade Lay and his son, Chris, entered the MidFirst bank in Tulsa to rob the bank to fund the purchase of guns to avenge the United States Government's attacks on Ruby Ridge and the Branch Davidians. The Lays believed that the United States Government had become tyrannical and that they had to start a patriotic revolution as was done by America's founding fathers.

The Lays entered the bank armed, wearing ski masks and gloves. Christopher Lay confronted bank employee Brian Easlon and ordered him to the ground. When bank security guard Kenneth Anderson entered the lobby, a gun battle erupted wounding the Lays and killing Anderson. The Lays, without obtaining any money, fled across a field to their truck. Both were apprehended later that day and were taken to the hospital. At trial, both Lays admitted guilt but asserted that their actions were driven by a necessity for the greater good of the country.

Lay v. State, 179 P.3d 615, 619 (Okla. Crim. App. 2008) (hereinafter Lay). Additional facts necessary for a determination of Lay's claims will be set forth in detail throughout this opinion.

II. Procedural History

In Tulsa County District Court, Case No. CF-2004-2320, Lay was charged jointly with his son and co-defendant, Christopher Lay (Chris), with First Degree Murder, or in the alternative, Felony Murder, of Kenneth Anderson (Count I), and Attempted Robbery With a Firearm (Count II). (O.R. Vol. I at 93-94). On October 25, 2004, the State filed a Bill of Particulars against both Lay,id. at 89-90, and Chris, id. at 91-92, seeking the death penalty on the first degree murder charge, and alleging the following three (3) aggravating circumstances: (1) the defendant knowingly created a great risk of death to more than one person; (2) the murder was committed for the purpose of avoiding or preventing a lawful arrest or prosecution; and (3) the existence of a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society.

Lay and Chris were tried jointly by jury. Lay exercised his constitutional right to self-representation and proceeded pro se at trial. During trial, Lay presented his defense, summarized by OCCA as follows:

Through his testimony and that of his son, Lay was allowed to present his defense: he attempted to rob the bank to obtain money to buy guns to avenge perceived government atrocities. In a nutshell, the Lays claimed they were trying to defend the freedoms guaranteed by the founding fathers in the Constitution by overthrowing the tyranny of our current government. Moreover, the Lays argued that they never intended for anyone to be hurt in the attempted robbery but were prepared in the event of confrontation.

Lay, 179 P.3d at 622. Lay's trial was held September 19-28, 2005. At the conclusion of the guilt/innocence phase, the jury found Lay guilty of both counts.² (O.R. Vol. II at 362-63). At the conclusion of the sentencing phase, the jury found the existence of all three alleged aggravating circumstances, and recommended that Lay receive a sentence of death as to Count I. Id. at 359-60. As to Count II, the jury recommended a sentence of twenty-five (25) years imprisonment. Id. at 361.

On October 24, 2005, the trial judge sentenced Lay in accordance with the jury's recommendations. (O.R. Vol. III at 475-76, 480-83).

On October 21, 2005, Lay's appellate counsel, Stephen James Greubel, filed a motion for new trial and request for evidentiary hearing. (O.R. Vol. III at 444-53). In his motion, Lay asserted that his substantial rights to a fair trial had been violated as a result of juror misconduct. Id. at 446-50. On December 1 and 15, 2005, the trial court held a hearing on the motion for new trial. At the conclusion of the hearing, the trial judge denied the motion. (M. Tr. 12/15/05 at 65).

Lay appealed his convictions and sentences to the OCCA in Case No. D-2005-1081. Represented by attorney Greubel of the Tulsa County Public Defender's Office, Lay raised the following fourteen (14) propositions of error:

Part A: Assistance of counsel claims

Proposition I: A defendant in a capital criminal trial has no constitutional right to proceed without counsel during the penalty phase of that trial.

Proposition II: The Sixth, Eighth, and Fourteenth Amendments require that a defendant who represents himself in a capital criminal trial be provided with a qualified second chair/standby counsel to assist him with the penalty phase of that trial; alternatively, the district court abused its discretion in failing to afford second chair/standby counsel when Wade Lay requested such assistance.

Proposition III: In this particular capital criminal trial the district court's inquiry into Wade Lay's waiver of his Sixth and Fourteenth Amendment right to counsel was inadequate to support the conclusion that Wade Lay voluntarily and intelligently elected to forego representation by counsel during the penalty phase of his trial.

Part B: Claims arising from penalty phase errors

Proposition IV: The Eighth and Fourteenth Amendments require the jury to afford each defendant separate and independent consideration during the penalty phase.

Proposition V: The victim impact testimony violated Wade Lay's Eighth and Fourteenth Amendment rights.

Proposition VI: Failure to instruct the jury that it must find aggravating circumstances outweigh mitigating factors beyond a reasonable doubt violates the Supreme Court's holding in Ring v. Arizona.

Proposition VII: The trial court failed to instruct the jury in accordance with OUJI CR2d 4-77 that in regard to those aggravating circumstances proved by circumstantial evidence "all of the facts and circumstances, taken together, must be inconsistent with any reasonable theory or conclusion other than the existence of the aggravating circumstance[s]."

Proposition VIII: Oklahoma's "continuing threat" aggravating circumstance is unconstitutional.

Part C: Juror misconduct claims

Proposition IX: Internal juror misconduct deprived Wade Lay of his Sixth and Fourteenth Amendment rights.

Proposition X: External juror misconduct deprived Wade Lay of his Sixth and Fourteenth Amendment rights.

Proposition XI: The district court's limited inquiry of prospective jurors during voir dire was inadequate to allow Wade Lay to intelligently exercise his peremptory challenges, and therefore violated Wade Lay's Sixth and Fourteenth Amendment rights.

Part D: Mandatory sentence review

Proposition XII: The sentence of death was imposed under the influence of passion, prejudice and/or other arbitrary factors.

Proposition XIII: The evidence does not support the jury's finding of a statutory aggravating circumstance.

A. The evidence does not support the jury's finding that Wade Lay created a great risk of death to more than one person.

B. The evidence does not support the jury's finding that Wade Lay committed murder for the purpose of avoiding arrest or prosecution.

C. The evidence supports the jury's factual finding that Wade Lay is a continuing threat to society, but the aggravating circumstance itself is unconstitutional.

D. In the event this court invalidates one or more of the aggravating circumstances, it must remand the case for a new trial of the penalty phase rather than re-weigh the remaining aggravating circumstances against the mitigating factors.

Part E: Cumulative error

Proposition XIV: Wade Lay was deprived of his Fifth, Eighth and Fourteenth Amendment rights as a result of the accumulated errors presented herein.

See Brief of Appellant in OCCA, Case No. D-2005-1081. On January 8, 2007, appellate counsel filed a motion to supplement opening brief with Appellant's pro se supplement brief. See Dkt. # 39-3. In his pro se supplemental brief, Lay argued, inter alia, that he was deprived of his constitutional right to present his necessity defense. See Pro Se Supplemental Brief of Appellant on Direct Appeal, filed in Case No. D-2005-1081. On February 12, 2008, the OCCA rejected all of Lay's claims, including the claims raised in his pro se supplemental brief, and affirmed...