Malicoat v. Mullin, No. 03-6301.

CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)
Writing for the CourtHenry
PartiesJames Patrick MALICOAT, Petitioner-Appellant, v. Mike MULLIN, Warden, Oklahoma State Penitentiary at McAlester, Respondent-Appellee.
Decision Date11 October 2005
Docket NumberNo. 03-6301.

Page 1241

426 F.3d 1241
James Patrick MALICOAT, Petitioner-Appellant,
v.
Mike MULLIN, Warden, Oklahoma State Penitentiary at McAlester, Respondent-Appellee.
No. 03-6301.
United States Court of Appeals, Tenth Circuit.
October 11, 2005.

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

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

Before HENRY, BRISCOE, and O'BRIEN, Circuit Judges.

HENRY, Circuit Judge.


Petitioner James Patrick Malicoat was convicted in Grady County, Oklahoma District Court of first-degree felony murder by child abuse. Following the jury's recommendation, the trial court imposed the death penalty.

The Oklahoma Court of Criminal Appeals (OCCA) affirmed Mr. Malicoat's conviction and sentence. See Malicoat v. State, 992 P.2d 383 (Okla.Crim.App.2000). Then, in an unpublished opinion, the OCCA denied Mr. Malicoat's application for post-conviction relief. Subsequently, the federal district court denied Mr. Malicoat's 28 U.S.C. § 2254 habeas petition.

In this appeal, Mr. Malicoat argues that: (1) his counsel on direct appeal was ineffective for failing to argue that a carving in the courtroom bearing the inscription "AN EYE FOR AN EYE AND A TOOTH FOR A TOOTH" deprived him of a fair trial. Mr. Malicoat also argues that the OCCA erred by (2) concluding that, under Beck v. Alabama, 447 U.S. 625, 627, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980), he was not entitled to an instruction on the lesser-included offense of second-degree depraved-mind murder; (3) concluding that no finding of Mr. Malicoat's intent to kill was required to support the death sentence, in violation of the Eighth Amendment principles set forth in Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982) and Tison v. Arizona, 481 U.S. 137, 107 S.Ct. 1676, 95 L.Ed.2d 127 (1987); (4) rejecting Mr. Malicoat's claim that the prosecution's closing arguments during the guilt and sentencing stages deprived him of a fair trial; (5) concluding that the admission of a photograph of the victim while alive, although error, was harmless; (6) rejecting Mr. Malicoat's claim that he received ineffective assistance of counsel at trial. Finally, Mr. Malicoat argues that (7) the cumulative effect of these errors also deprived him of a fair trial.

We are not convinced by these arguments. First, the display of the "EYE FOR AN EYE" inscription on the carving in the courtroom did not constitute structural error. Thus, Mr. Malicoat's Sixth Amendment right to effective assistance of counsel was not violated by his attorney's failure to challenge it on direct appeal. Second, as to Mr. Malicoat's Enmund/Tison argument, we conclude that the OCCA did not unreasonably apply federal law in holding that, in order to impose the death penalty, the prosecution was not required to prove that Mr. Malicoat intended the death of the victim or acted in reckless disregard of human life. As to Mr. Malicoat's Beck claim, we similarly conclude that the OCCA did not unreasonably apply federal law in holding that Mr. Malicoat was not entitled to an instruction on second-degree depraved-mind murder. Mr. Malicoat's claims of prosecutorial misconduct, admission of prejudicial evidence, ineffective assistance of trial counsel, and cumulative error also lack merit. Accordingly, we conclude that the district court properly denied Mr. Malicoat's 28 U.S.C. § 2254 petition.

I. BACKGROUND

The relevant facts are set forth in the OCCA's opinion on direct appeal. See 992

Page 1245

P.2d at 391-92. As a result, we only briefly summarize them here.

At about 8:25 p.m. on February 21, 1997, Mr. Malicoat and his girlfriend, Mary Ann Leadford, brought their thirteen-month-old daughter, Tessa Leadford, to the county hospital emergency room. The hospital staff determined that Tessa had been dead for several hours. Her face and body were covered with bruises. She had a large mushy closed wound on her forehead and three human bite marks on her body. A post-mortem examination revealed two subdural hematomas from the head injury, and severe internal injuries, including broken ribs, internal bruising and bleeding, and a torn mesentery. The medical examiner concluded the death was caused by a combination of the head injury and internal bleeding from the abdominal injuries.

Tessa and Mary Ann Leadford had begun living with Mr. Malicoat on February 2, 1997. Mr. Malicoat worked a night shift on an oil rig and was responsible for Tessa's care during the day.

Mr. Malicoat admitted that he routinely poked Tessa hard in the chest area and occasionally bit her, both as a disciplinary measure and in play. When interviewed by police officers, Mr. Malicoat initially denied knowing how Tessa had received the severe head injury. Subsequently, he suggested that she had fallen and hit the edge of a waterbed frame. However, he eventually admitted that he had hit her head on the bed frame one or two days before she died. He also admitted that, at about 12:30 p.m. on February 21, while Ms. Leadford was at work, he twice punched Tessa hard in the stomach. He stated that Tessa stopped breathing and that he gave her CPR. According to Mr. Malicoat, when Tessa began breathing again, he gave her a bottle containing a soft drink and went to sleep next to her on the bed. When he awoke around 5:30 p.m., she was dead. He put Tessa in her crib and covered her with a blanket, spoke briefly with Ms. Leadford, and went back to sleep in the living room. Ms. Leadford eventually discovered that Tessa was not moving, and the couple took her to the emergency room.

Seeking to explain the events leading to Tessa's death, Mr. Malicoat reported that he had worked all night, had car trouble, took Ms. Leadford to work, and was exhausted. He added that he had hit Tessa when she would not lie down so he could sleep. He said he sometimes intended to hurt Tessa when he disciplined her, but never meant to kill her. He told the officers that he had suffered through extreme abuse as a child that he did not realize his actions would seriously hurt or kill Tessa.

The state charged Mr. Malicoat with first-degree felony murder by child abuse under OKLA. STAT. tit. 21, § 701.7(C). A first trial ended with a mistrial during jury selection. After the second trial, the jury convicted Mr. Malicoat of the murder charge. Then, upon hearing additional evidence at sentencing, the jury found two aggravating factors: (1) that the murder was especially heinous, atrocious, and cruel and (2) that there existed a probability that Mr. Malicoat would commit criminal acts of violence that constituted a continuing threat to society. See OKLA STAT. tit. 21, § 701.12(4) and (7). Following the jury's recommendation, the trial court imposed the death penalty.

The OCCA affirmed Mr. Malicoat's conviction and sentence on direct appeal and then rejected his petition for post-conviction relief. Subsequently, the federal district court denied Mr. Malicoat's federal habeas petition.

II. DISCUSSION

We begin by addressing the standard of review. Then, we proceed to the merits of Mr. Malicoat's claims.

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A. Standard of Review

Because Mr. Malicoat filed his § 2254 habeas corpus petition after the effective date of the Anti-Terrorism and Effective Death Penalty Act (AEDPA), its provisions apply to this appeal. See Smallwood v. Gibson, 191 F.3d 1257, 1264 (10th Cir.1999). Under AEDPA, a federal court may only grant habeas relief on a claim adjudicated on the merits by a state court if the state court proceedings "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court," 28 U.S.C. § 2254(d)(1), or "resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding," id. § 2254(d)(2). In addition, AEDPA directs federal courts to presume that the factual findings of the state court are correct unless the petitioner can rebut this presumption by clear and convincing evidence. See id. § 2254(e)(1); Smith v. Mullin, 379 F.3d 919, 924-25 (10th Cir.2004).

In Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000), the Supreme Court provided guidance as to when a state court decision may be deemed "contrary to" or "an unreasonable application of" established Supreme Court precedent pursuant to section 2254(d)(1). As to the former term, the Court explained that a state court decision is "contrary to" the Court's clearly established precedent in two circumstances: (1) when "the state court applies a rule that contradicts the governing law set forth in [the Court's] cases" and (2) when "the state court confronts a set of facts that are materially indistinguishable from a decision of [the] Court and nevertheless arrives at a result different from" the result reached by the Supreme Court. Id. at 405-06, 120 S.Ct. 1495. As to the latter term, the Court explained that a state court decision constitutes "an unreasonable application" of Supreme Court precedent if "the state court identifies the correct governing legal principle from [the] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. at 413, 120 S.Ct. 1495. Thus, "[u]nder § 2254(d)(1)'s `unreasonable application' clause, ... a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Id. at 411, 120 S.Ct. 1495; see also Thomas v. Gibson,...

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  • Case v. Hatch, No. 08–CV–0542 MV/WDS.
    • United States
    • United States District Courts. 10th Circuit. District of New Mexico
    • March 28, 2011
    ...state-court decision applied clearly established federal law erroneously or incorrectly.” [773 F.Supp.2d 1133] Malicoat v. Mullin, 426 F.3d 1241, 1246 (10th Cir.2005). Rather, this Court may only issue relief if it finds that the New Mexico Supreme Court's opinion amounted to a decision tha......
  • Williams v. Workman, Case No. 02-CV-0377-JHP-FHM
    • United States
    • United States District Courts. 10th Circuit. Northern District of Oklahoma
    • March 7, 2011
    ...malice aforethought murder and second-degree depraved mind murder in light of the evidence presented at trial. See Malicoat v. Mullin, 426 F.3d 1241, 1253 (10th Cir. 2005). The trial court instructed Petitioner's jury that the elements of first-degree malice aforethought murder are: (1) dea......
  • Williams v. Workman, Case No. 09-CV-0164-JHP-TLW
    • United States
    • United States District Courts. 10th Circuit. Northern District of Oklahoma
    • October 19, 2012
    ...to the jury, this Court finds that the prosecutor's comments did not deprive Williams of a fair trial. See e.g., Malicoat v. Mullin, 426 F.3d 1241, 1257-58 (10th Cir. 2005).Improper testimony solicited from witness As a final issue of prosecutorial misconduct, Williams contends that the pro......
  • Johnson v. Keith, Case No. 08-CV-691-JHP-PJC
    • United States
    • United States District Courts. 10th Circuit. Northern District of Oklahoma
    • April 25, 2012
    ...claim on the basis of the legal premise invoked here is wrong as a matter of federal constitutional law). See also Malicoat v. Mullin, 426 F.3d 1241, 1248 (10th Cir. 2005) (following Cargle). Because the OCCA's analysis of Petitioner'sPage 20allegations of ineffective assistance of appellat......
  • Request a trial to view additional results
135 cases
  • Case v. Hatch, No. 08–CV–0542 MV/WDS.
    • United States
    • United States District Courts. 10th Circuit. District of New Mexico
    • March 28, 2011
    ...state-court decision applied clearly established federal law erroneously or incorrectly.” [773 F.Supp.2d 1133] Malicoat v. Mullin, 426 F.3d 1241, 1246 (10th Cir.2005). Rather, this Court may only issue relief if it finds that the New Mexico Supreme Court's opinion amounted to a decision tha......
  • Williams v. Workman, Case No. 02-CV-0377-JHP-FHM
    • United States
    • United States District Courts. 10th Circuit. Northern District of Oklahoma
    • March 7, 2011
    ...malice aforethought murder and second-degree depraved mind murder in light of the evidence presented at trial. See Malicoat v. Mullin, 426 F.3d 1241, 1253 (10th Cir. 2005). The trial court instructed Petitioner's jury that the elements of first-degree malice aforethought murder are: (1) dea......
  • Williams v. Workman, Case No. 09-CV-0164-JHP-TLW
    • United States
    • United States District Courts. 10th Circuit. Northern District of Oklahoma
    • October 19, 2012
    ...to the jury, this Court finds that the prosecutor's comments did not deprive Williams of a fair trial. See e.g., Malicoat v. Mullin, 426 F.3d 1241, 1257-58 (10th Cir. 2005).Improper testimony solicited from witness As a final issue of prosecutorial misconduct, Williams contends that the pro......
  • Johnson v. Keith, Case No. 08-CV-691-JHP-PJC
    • United States
    • United States District Courts. 10th Circuit. Northern District of Oklahoma
    • April 25, 2012
    ...claim on the basis of the legal premise invoked here is wrong as a matter of federal constitutional law). See also Malicoat v. Mullin, 426 F.3d 1241, 1248 (10th Cir. 2005) (following Cargle). Because the OCCA's analysis of Petitioner'sPage 20allegations of ineffective assistance of appellat......
  • Request a trial to view additional results

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