Littlejohn v. Royal, 14-6177

• Decision Date: 07 November 2017
• Docket Number: No. 14-6177,14-6177
• Citation: 875 F.3d 548
• Parties: Emmanuel LITTLEJOHN, Petitioner-Appellant, v. Terry ROYAL, Warden, Oklahoma State Penitentiary, Respondent-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

875 F.3d 548

Emmanuel LITTLEJOHN, Petitioner-Appellant,

v.Terry ROYAL, Warden, Oklahoma State Penitentiary,^* Respondent-Appellee.

No. 14-6177

United States Court of Appeals, Tenth Circuit.

Filed November 7, 2017

Sarah M. Jernigan, Assistant Federal Public Defender (Randy A. Bauman, Assistant Federal Public Defender, with her on the briefs), Oklahoma City, Oklahoma, for Petitioner-Appellant.

Robert L. Whittaker, Assistant Attorney General (E. Scott Pruitt, Attorney General, with him on the brief), Office of the Attorney General for the State of Oklahoma, Oklahoma City, Oklahoma, for Respondent-Appellee.

Before TYMKOVICH, Chief Judge, LUCERO and HOLMES, Circuit Judges.

HOLMES, Circuit Judge.

Following various Oklahoma state-court proceedings, an Oklahoma jury convicted Emmanuel Littlejohn of first-degree murder and sentenced him to death. This case—which comes before us for a second time—arises from the district court's denial of Mr. Littlejohn's petition for a writ of habeas corpus under 28 U.S.C. § 2254.

The first time around the district court found Mr. Littlejohn's ineffective-assistance and cumulative-error claims—among twelve other bases for relief—meritless or procedurally barred. Reviewing the district court's conclusions de novo, we addressed the declaration of Dr. Manual Saint Martin, a psychiatrist who diagnosed Mr. Littlejohn—for the first time—with undefined, synapse-level neurological deficits, or an organic brain disorder. Given that evidence, we reasoned that the disposition of Mr. Littlejohn's ineffective-assistance claim—and, derivatively, his cumulative-error claim—hinged on whether Dr. Saint Martin's averments would prove worthy of belief, because "[e]vidence that an organic brain disorder was a substantial factor in engendering Mr. Littlejohn's life of deviance probably would have been a significant favorable input for Mr. Littlejohn in the jury's decisionmaking calculus" during the penalty phase. Littlejohn v. Trammell (Littlejohn I) , 704 F.3d 817, 864 (10th Cir. 2013). As a result, we remanded the case to the district court for an evidentiary hearing on whether Mr. Littlejohn's trial counsel proved ineffective by failing to adequately investigate and present to the jury a mitigation theory of organic brain damage.

On remand, the district court held an evidentiary hearing; the parties presented the testimony of various individuals—including Dr. Saint Martin and Mr. Littlejohn's trial counsel, James Rowan. Following the hearing, the district court largely restated its earlier findings and again denied Mr. Littlejohn habeas relief on his ineffective-assistance and cumulative-error claims. Mr. Littlejohn now appeals from the district court's judgment on remand. With the benefit of a more robust factual record relative to Mr. Littlejohn's alleged organic brain damage, for the reasons that follow, we affirm .

I

In Littlejohn I , we detailed the factual and procedural backdrop of Mr. Littlejohn's state-court conviction and sentencing. See 704 F.3d at 822–24. In brief, in 1992, Mr. Littlejohn and his acquaintance Glenn Bethany robbed a convenience store in Oklahoma City. As the robbery neared its conclusion, one of the store's employees—Kenneth Meers—took a fatal shot to the face. Although Mr. Littlejohn maintained that he did not fire the fatal shot, a jury convicted him of first-degree murder and sentenced him to death in 1994. In 1998, however, the Oklahoma Court of Criminal Appeals ("OCCA") vacated and remanded his initial death sentence, because the trial court improperly admitted uncorroborated testimony suggesting that Mr. Littlejohn had confessed to the killing of Mr. Meers and also an unrelated murder. See Littlejohn v. State , 989 P.2d 901, 910–12 (Okla. Crim. App. 1998). At resentencing, a jury again sentenced Mr. Littlejohn to death, based on two aggravating circumstances: (1) his previous conviction for a violent felony, and (2) the fact that he posed a continuing threat to society.

Following Mr. Littlejohn's unsuccessful efforts for state post-conviction relief, he filed a habeas petition under 28 U.S.C. § 2254 in federal district court. See Littlejohn v. Workman , No. CIV-05-225-M, 2010 WL 2218230 (W.D. Okla. May 27, 2010) (unpublished). As relevant here, he argued that (1) the prosecution violated his due process rights by failing to give adequate notice of certain evidence it intended to present at resentencing in support of the continuing-threat aggravator; (2) the introduction of the testimony of two witnesses violated his rights under the Confrontation Clause, because the prosecution failed to make the necessary showing of unavailability; (3) his trial counsel had been constitutionally ineffective for failing to investigate and present evidence of his organic brain damage; and (4) the cumulative weight of these errors entitled him to relief.

The district court denied Mr. Littlejohn's petition, and he brought his first appeal. In Littlejohn I , we affirmed the district court's disposition of Mr. Littlejohn's due-process and Confrontation Clause claims, but reversed the district court's judgment as to the ineffective-assistance claim and vacated its judgment as to the cumulative-error claim, with instructions to the district court to conduct an evidentiary hearing on remand. See 704 F.3d at 822. Following an evidentiary hearing, the district court again denied Mr. Littlejohn's petition, see Littlejohn v. Trammell , No. CIV-05-225-M, 2014 WL 3743931 (W.D. Okla. July 30, 2014) (unpublished), and he filed this appeal.

II

We begin with Mr. Littlejohn's ineffective-assistance claim. To make out an ineffective-assistance claim, a petitioner "must show both that his counsel's performance ‘fell below an objective standard of reasonableness’ and that ‘the deficient performance prejudiced the defense.’ " Byrd v. Workman , 645 F.3d 1159, 1167 (10th Cir. 2011) (quoting Strickland v. Washington , 466 U.S. 668, 687–88, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ). These two prongs may be addressed in any order; indeed, in Strickland , the Supreme Court emphasized that "if it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, ... that course should be followed." 466 U.S. at 697, 104 S.Ct. 2052 ; accord Byrd , 645 F.3d at 1167 ; Knighton v. Mullin , 293 F.3d 1165, 1178 (10th Cir. 2002). Here, we take this approach and conclude that, even assuming arguendo that Mr. Rowan's performance was constitutionally deficient, Mr. Littlejohn's ineffective-assistance claim fails on the basis of lack of prejudice.

Under the prejudice prong, a petitioner must demonstrate "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland , 466 U.S. at 694, 104 S.Ct. 2052. "When a petitioner alleges ineffective assistance of counsel stemming from a failure to investigate mitigating evidence at a capital-sentencing proceeding, ‘we evaluate the totality of the evidence—both that adduced at trial, and the evidence adduced in habeas proceedings.’ " Williams v. Trammell , 782 F.3d 1184, 1215 (10th Cir. 2015) (quoting Smith v. Mullin , 379 F.3d 919, 942 (10th Cir. 2004) ), cert. denied , ––– U.S. ––––, 136 S. Ct. 806, 193 L.Ed.2d 726 (2016).

In doing so, we "reweigh the evidence in aggravation against the totality of available mitigating evidence," Hooks v. Workman , 689 F.3d 1148, 1202 (10th Cir. 2012) (quoting Young v. Sirmons , 551 F.3d 942, 960 (10th Cir. 2008) ), considering "the strength of the State's case and the number of aggravating factors the jury found to exist, as well as the mitigating evidence the defense did offer and any additional mitigating evidence it could have offered," Knighton , 293 F.3d at 1178. "[W]e must consider not just the mitigation evidence that Defendant claims was wrongfully omitted, but also what the prosecution's response to that evidence would have been." [Michael] Wilson v. Trammell , 706 F.3d 1286, 1306 (10th Cir. 2013) ; accord Grant v. Trammell , 727 F.3d 1006, 1022 (10th Cir. 2013). At the end of the day, "[i]f ‘there is a reasonable probability that at least one juror would have struck a different balance’—viz. , that ‘at least one juror would have refused to impose the death penalty’—prejudice is shown." Hooks , 689 F.3d at 1202 (citations omitted) (first quoting Wiggins v. Smith , 539 U.S. 510, 537, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003) ; then quoting Wilson v. Sirmons , 536 F.3d 1064, 1124 (10th Cir. 2008) (Hartz, J., concurring)).

Under the foregoing rubric, we begin by discussing the salient aspects of the procedural history and factual background of Mr. Littlejohn's ineffective-assistance claim. We then turn to whether the more comprehensive factual record now before us lends force to Mr. Littlejohn's claim of prejudice under Strickland .

A

In his habeas petition, Mr. Littlejohn asserted that his trial counsel, Mr. Rowan, rendered ineffective assistance in the resentencing proceeding by failing to adequately investigate and present a mitigation theory of organic brain damage. Rather, Mr. Rowan focused his mitigation case on the testimony of Dr. Wanda Draper, a developmental epistemologist who presented a socio-psychological account of the impact that Mr. Littlejohn's troubled upbringing had on his development. More specifically, Dr. Draper testified extensively about the substance abuse of Mr. Littlejohn's mother during her pregnancy and regarding the lack of nurturing and attention that Mr. Littlejohn received as a child, and then explained the stunted development that Mr. Littlejohn suffered as a result of these factors. In particular, she testified that Mr. Littlejohn had long exhibited emotional problems and disruptive behavior, and determined that, although he understood the difference between right and wrong, he often did not act on that knowledge. More specifically, on cross-examination, Dr. Draper stated that she did not think that Mr. Littlejohn had "a...