Ochoa v. Workman

• Decision Date: 18 January 2012
• Docket Number: No. 10–6088.,10–6088.
• Citation: 669 F.3d 1130
• Parties: George OCHOA, Petitioner–Appellant, v. Randall G. WORKMAN, Warden, Oklahoma State Penitentiary, Respondent–Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

669 F.3d 1130

George OCHOA, Petitioner–Appellant,

v.Randall G. WORKMAN, Warden, Oklahoma State Penitentiary, Respondent–Appellee.

No. 10–6088.

United States Court of Appeals, Tenth Circuit.

Jan. 18, 2012.

James L. Hankins, Ogle Law Office, P.L.L.C., Oklahoma City, OK, for Petitioner–Appellant.

Jennifer B. Miller, Assistant Attorney General (W.A. Drew Edmondson, Attorney General of Oklahoma, with her on the brief), Oklahoma City, OK, for Respondent–Appellee.

Before MURPHY, HARTZ, and HOLMES, Circuit Judges.

MURPHY, Circuit Judge.

I. INTRODUCTION

In Atkins v. Virginia, 536 U.S. 304, 321, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002), the Supreme Court held that the Eighth Amendment precludes the execution of mentally retarded criminals. Relying on Atkins, the Oklahoma Court of Criminal Appeals (“OCCA”) granted George Ochoa, a convicted murderer under sentence of death, a post-conviction jury trial to determine whether he was mentally retarded. The jury found Ochoa failed to meet his burden of proving, by a preponderance of the evidence, he was mentally retarded. The OCCA affirmed. Ochoa v. State, 136 P.3d 661, 670 (Okla.Crim.App.2006). This court granted Ochoa permission to file a second 28 U.S.C. § 2254 petition raising his Atkins claims in federal district court. Ochoa v. Sirmons, 485 F.3d 538, 546 (10th Cir.2007). After the district court denied Ochoa's second § 2254 habeas petition on the merits, Ochoa filed the instant appeal.

Ochoa's appeal implicates the intersection of Atkins and the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104–132, 110 Stat. 1214 (1996) (“AEDPA”). Ochoa contends Oklahoma law, which focuses on whether a defendant is mentally retarded at the time of trial, instead of whether he was mentally retarded at the time of the commission of the crime, is “contrary to, or ... an unreasonable application of” Atkins. 28 U.S.C. § 2254(d)(1). We reject this contention. Oklahoma's determination that mental retardation is not a fluid concept is entirely consistent with Atkins. Ochoa further asserts his trial was fundamentally unfair because (1) the jury was informed he had been convicted of a crime, (2) he was forced to attend trial in an orange prison jumpsuit, and (3) he was forced to wear a shock sleeve during trial. Despite Oklahoma's arguments to the contrary, this court concludes these claims are Atkins claims. Thus, the district court properly resolved them on the merits. 28 U.S.C. § 2244(b). We further hold the district court correctly concluded none of the alleged errors identified by Ochoa entitle him to habeas relief. Thus, exercising jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253(c)(1)(A), this court affirms the order of the district court denying Ochoa's § 2254 habeas petition.¹

II. BACKGROUND

An Oklahoma state jury found Ochoa guilty of, inter alia, two counts of first degree murder and sentenced him to death. On direct appeal, the OCCA affirmed. Ochoa v. State, 963 P.2d 583, 606 (Okla.Crim.App.1998). After exhausting his state post-conviction remedies, Ochoa filed a 28 U.S.C. § 2254 petition in federal district court. The district court denied habeas relief in an extensive order. Ochoa appealed the district court's denial of habeas relief to this court (No. 02–6032).

After briefing was complete and No. 02–6032 was set for oral argument, this court stayed the appeal, upon Ochoa's motion, so he could exhaust an Atkins claim in state court. Oklahoma held a jury trial on Ochoa's Atkins claim; the jury concluded Ochoa did not prove he was mentally retarded. The OCCA affirmed. Ochoa v. State, 136 P.3d 661, 670 (Okla.Crim.App.2006). This court then granted Ochoa permission to file a second § 2254 petition raising his Atkins claim in federal district court. Ochoa v. Sirmons, 485 F.3d 538, 539 (10th Cir.2007). After the district court denied habeas relief, Ochoa brought the instant appeal to this court (No. 10–6088). ²

III. STANDARD OF REVIEW

Ochoa is entitled to federal habeas relief only if the OCCA's resolution of his claims “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or ... 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). This court presumes a state court's factual findings are correct unless the petitioner rebuts that presumption by “clear and convincing evidence.” Id. § 2254(e)(1).

We first determine whether the principle of federal law upon which Ochoa relies was “clearly established by the Supreme Court at the time of the state court judgment.” Bland v. Sirmons, 459 F.3d 999, 1009 (10th Cir.2006). Clearly established law consists of Supreme Court holdings in cases “where the facts are at least closely related or similar” to the facts in Ochoa's case. House v. Hatch, 527 F.3d 1010, 1016 (10th Cir.2008). “The absence of clearly established federal law is dispositive under § 2254(d)(1).” Id. at 1018. If clearly established federal law exists, this court moves on to consider whether the OCCA decision was contrary to or an unreasonable application of that clearly established federal law.

A decision is “contrary to” clearly established federal law ... if the state court applies a rule that contradicts the governing law set forth in Supreme Court cases or if the state court confronts a set of facts ... materially indistinguishable from a decision of the Supreme Court and nevertheless arrives at a result different from the result reached by the Supreme Court.

Bland, 459 F.3d at 1009 (quotations omitted). “A state court decision involves an ‘unreasonable application’ of federal law if the state court identifies the correct governing legal principle from Supreme Court decisions but unreasonably applies that principle to the facts of the prisoner's case.” Id. (quotation omitted).

IV. ANALYSIS

A. Temporal Focus of Mental Retardation Determination1. Background

At his mental retardation trial, Ochoa asked for a jury instruction focused on whether he was retarded at the time he committed the crimes. The trial court denied the request and instructed the jury to determine whether Ochoa was mentally retarded at the time of the trial. On direct appeal,³ Ochoa asserted the trial court's instruction was at odds with Atkins. The OCCA rejected Ochoa's assertion of error, concluding:

Ochoa argues that the Supreme Court's holding in Atkins prohibits the State from executing a person who was mentally retarded at the time the crimes were committed, not at the time of the jury trial on the issue of mental retardation. Evidence presented at Ochoa's jury trial on mental retardation showed that Ochoa scored higher on intelligence tests given in 2003 than on those given to him in 1995 and 1996. Evidence also was presented which showed Ochoa had learned to read and write while incarcerated and suggested his ability to learn to read and write likely contributed to his more current test performance.

Counsel for Ochoa requested the trial court instruct the jury that it must find Ochoa was mentally retarded at the time of the offense and the trial court denied the requested instructions. Ochoa argues that the focus of the Court in Atkins was upon the moral culpability of the offender at the time of the crime and the relevant constitutional inquiry is not whether the offender is retarded at the moment, but rather whether the offender was retarded when the crime occurred. He asks this Court to vacate the jury's verdict because it was rendered upon instructions which required it to find Ochoa was presently mentally retarded.

Although the Court in Atkins did not specifically define “mental retardation” for the individual States and left ... to the States “the task of developing appropriate ways to enforce the constitutional restriction upon [their] execution of sentences,” there it referenced two generally accepted clinical definitions. Atkins, 536 U.S. at 317 n. 22 . Both definitions require mental retardation to be present before the age of eighteen (18). Id. at 308 n. 3 (AAMR definition requires mental retardation to “manifest” before age eighteen; American Psychiatric Association's definition states the “onset must occur before” eighteen (18)).

We disagree with Ochoa's description of mental retardation as a “fluid concept.” While we do not dispute that a mentally retarded person can learn and develop skills, that ability is limited and the ability to learn and to adaptively function suggests the individual was likely not mentally retarded in the first place but fell into that borderline range or classification due to environmental or other factors which affected present ability. The witness at Ochoa's trial acknowledged this when she testified that some people functioning at a low level due to environment, education or impoverishment could move “above the level” of mental retardation classification by increasing his or her abilities to function. That Ochoa may have had an IQ score within the range of 70 to 75 at the time of the crime is relevant but does not prove mental retardation. “I.Q. tests alone are not determinative of the issue of mental retardation.” Myers, 130 P.3d at 268.

The requisite cognitive and behavioral impairments attendant to mental retardation, as defined by this Court in evaluating Eighth Amendment claims, substantially limits one's ability to understand and process information, to communicate, to learn from experience or mistakes, to engage in logical reasoning, to control impulses, and to understand the reactions of others. We do not dispute that a mentally retarded person can learn. However, a person who can learn beyond the accepted clinical definitions of mental retardation does not fall within the definition of those persons who may avoid execution due to mental retardation. The evidence presented at Ochoa's mental retardation jury trial showed he does not...