McCracken v. Gibson, 00-5127

• Decision Date: 10 October 2001
• Docket Number: No. 00-5127,00-5127
• Citation: 268 F.3d 970
• Parties: (10th Cir. 2001) JERRY LYNN McCRACKEN, Petitioner-Appellant, v. GARY GIBSON, Warden, Oklahoma State Penitentiary, Respondent-Appellee
• Court: U.S. Court of Appeals — Tenth Circuit

Page 970

268 F.3d 970 (10th Cir. 2001)

JERRY LYNN McCRACKEN, Petitioner-Appellant, v. GARY GIBSON, Warden, Oklahoma State Penitentiary, Respondent-Appellee.

No. 00-5127

UNITED STATES COURT OF APPEALS TENTH CIRCUIT

October 10, 2001

Appeal from United States District Court for the Northern District of Oklahoma (D.C. No. 97-CV-945-BU(M)) [Copyrighted Material Omitted]

[Copyrighted Material Omitted] David B. Autry, Norman, Oklahoma (Jon E. Brightmire, of Doerner, Saunders, Daniel & Anderson, Tulsa, Oklahoma, with him on the brief), for the appellant.

Jennifer B. Miller, Assistant Attorney General (W.A. Drew Edmondson, Attorney General, with her on the brief), Oklahoma City, Oklahoma, for the appellee.

Before KELLY, Circuit Judge, BRORBY, Senior Circuit Judge, and BRISCOE, Circuit Judge.

BRISCOE, Circuit Judge

Petitioner Jerry Lynn McCracken, an Oklahoma state prisoner convicted of four counts of first degree murder and sentenced to death, appeals the district court's denial of his 28 U.S.C. 2254 petition for writ of habeas corpus. We exercise jurisdiction pursuant to 28 U.S.C. 1291 and affirm.

I.

On the evening of October 13, 1990, after drinking and smoking marijuana with friends at an apartment in Tulsa, McCracken and co-defendant David Lawrence went to the Ferndale Lounge, where they drank heavily for several hours. Between approximately 12:40 and 12:55 a.m., they were overheard saying to each other that they weren't "afraid to fight nobody," weren't afraid "of getting an ass whuppin'," and weren't "afraid to shoot somebody." Tr. at 159. By approximately 12:55 a.m., only the bartender and five patrons, including McCracken and Lawrence, were in the bar.

A witness entered the bar at approximately 1:05 a.m. and found a man lying on the floor, covered in blood. The witness ran out of the bar and across the street to a convenience store, where he told three policemen what he had seen. The police found four victims inside the bar, all of whom appeared to have been shot in the head. Two of the victims were dead. The bartender (Carol McDaniels) and a third patron (Timothy Sheets) were transferred to a local hospital where they both died. An inventory of the bar revealed that $350 had been taken from the cash register, along with two beer pitchers and four beer mugs.

McCracken and Lawrence were arrested and charged with four counts of first degree murder. McCracken was also charged with one count of possession of a firearm after former conviction of a felony. Lawrence pled guilty to the four murder charges and was sentenced to four concurrent life sentences, plus twenty years. As part of his plea agreement, Lawrence agreed to testify at trial against McCracken.

At McCracken's trial, Lawrence testified it was McCracken's idea to rob the Ferndale Lounge. Although Lawrence agreed to participate in the robbery, he testified he was unaware that McCracken intended to kill anyone. According to Lawrence, McCracken stood up from the bar, pulled out a gun from his waistband, and announced, "This is a robbery." Tr. at 281. Lawrence testified that McCracken directed the bartender to give him the cash from the register, and directed Lawrence to pick up the mugs and pitcher from which they had been drinking. McCracken then shot the bartender and the three bar patrons.

McCracken testified in his own defense and disputed Lawrence's story. McCracken testified that, while at the bar, Lawrence asked if he could look at McCracken's pistol. McCracken testified he gave the gun to Lawrence. According to McCracken, approximately thirty minutes later, Lawrence started talking about how he would like to rob the bar. McCracken testified that Lawrence stood up, pointed the gun, and directed the bartender to give him the money from the register. McCracken testified that after the bartender gave Lawrence the money, Lawrence shot the three bar patrons and the bartender.

The jury found McCracken guilty on the four murder charges and the felon in possession of a firearm charge. At the conclusion of the second-stage proceedings, the jury found the existence of all six aggravating factors alleged by the prosecution: (1) previous conviction of a felony involving violence; (2) that McCracken knowingly created a great risk of death to more than one person; (3) the murders were committed while McCracken was serving a sentence on a felony conviction; (4) the probability that McCracken was a continuing threat to society; (5) two of the murders (McDaniels and Sheets) were especially heinous, atrocious and cruel; and (6) the murders were committed for the purpose of preventing lawful arrest and prosecution.

The Oklahoma Court of Criminal Appeals (OCCA) affirmed McCracken's convictions and sentences on direct appeal, McCracken v. State, 887 P.2d 323 (Okla. Crim. App. 1994) (McCracken I), and the United States Supreme Court denied his petition for writ of certiorari. McCracken v. Oklahoma, 516 U.S. 859 (1995). McCracken filed an application for post-conviction relief which was denied by the OCCA. McCracken v. State, 946 P.2d 672 (Okla. Crim. App. 1997) (McCracken II).

On October 20, 1997, McCracken filed a pro se motion in federal district court requesting appointment of counsel to represent him in a federal habeas proceeding. The district court granted the motion and, on December 12, 1997, appointed counsel filed a "preliminary petition for writ of habeas corpus" asserting fourteen grounds for relief. On February 11, 1998, appointed counsel filed an amended petition for writ of habeas corpus which, like the preliminary petition, asserted fourteen grounds for relief. On May 16, 2000, the district court denied McCracken's request for habeas relief. The district court subsequently granted a certificate of appealability (COA) with respect to four issues: (1) whether the trial court violated McCracken's constitutional rights by instructing the jury that McCracken was presumed "not guilty"; (2) whether trial counsel's performance was constitutionally deficient because of his failure to obtain and present evidence concerning mental health issues; (3) whether the trial court erred by failing to direct the jury to determine whether McCracken satisfied the death eligibility standards of Enmund v. Florida and Tison v. Arizona; and (4) whether the trial court violated McCracken's constitutional rights by failing to explain, in response to a question from the jury, the meaning of life imprisonment without parole. This court has granted a COA with respect to one additional issue: whether the evidence presented at trial was sufficient to support the jury's finding of the "especially heinous, atrocious or cruel" aggravating factor.

II.

Because McCracken's federal habeas petition was filed after the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), it is governed by the provisions of the AEDPA. Wallace v. Ward, 191 F.3d 1235, 1240 (10th Cir. 1999), cert. denied, 530 U.S. 1216 (2000). Under the AEDPA, the appropriate standard of review for a particular claim hinges on the treatment of that claim by the state courts. If a claim was not decided on the merits by the state courts (and is not otherwise procedurally barred), we may exercise our independent judgment in deciding the claim. See LaFevers v. Gibson, 182 F.3d 705, 711 (10th Cir. 1999). In doing so, we review the federal district court's conclusions of law de novo and its findings of fact, if any, for clear error. Id. If a claim was adjudicated on its merits by the state courts, the petitioner will be entitled to federal habeas relief only if he can establish that 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," 28 U.S.C. 2254(d)(1), or "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." Id. 2254(d)(2). "Thus, we may grant the writ if we find the state court arrived at a conclusion opposite to that reached by the Supreme Court on a question of law; decided the case differently than the Supreme Court has on a set of materially indistinguishable facts; or unreasonably applied the governing legal principle to the facts of the prisoner's case." Van Woudenberg v. Gibson, 211 F.3d 560, 566 (10th Cir. 2000), cert. denied, 121 S. Ct. 1117 (2001).

III.

"Presumed not guilty" instruction

McCracken contends he was deprived of his right to a fair trial when the trial court instructed the jury that he was "presumed not guilty," rather than "presumed innocent," of the charged crimes. McCracken's counsel did not object to the "presumed not guilty" instruction at trial, nor did he raise the issue on direct appeal. The issue was first raised in McCracken's application for post-conviction relief, after the OCCA issued its decision in Flores v. State, 896 P.2d 558, 562 (Okla. Crim. App. 1995) (holding, in context of direct appeal, that use of the "presumed not guilty" instruction constituted reversible error). The OCCA concluded the issue was waived due to McCracken's failure to raise it on direct appeal. McCracken II, 946 P.2d at 674-75 (citing the 1995 amendments to Oklahoma's post-conviction procedure statute, Okla. Stat. tit. 22 1089 (1995)).

The threshold question we must address is whether, as asserted by the State, the issue is procedurally barred. "We will not consider issues on habeas review 'that have been defaulted in state court on an independent and adequate state procedural ground, unless the petitioner can demonstrate cause and prejudice or a fundamental miscarriage of justice.'" Smallwood v. Gibson, 191 F.3d 1257, 1267 (10th Cir. 1999) (quoting English v. Cody, 146 F.3d 1257, 1259 (10th Cir.1998)), cert. denied, 531 U.S. 833 (2000). "'A state procedural ground is independent if it relies on state law, rather than federal law, as the basis for the decision.'" Sherrill...