Parks v. Reynolds

• Decision Date: 09 March 1992
• Docket Number: No. 92-6082,92-6082
• Citation: 958 F.2d 989
• Parties: Robyn Leroy PARKS, Petitioner, v. Dan REYNOLDS, Warden, Oklahoma State Penitentiary, Susan B. Loving, Attorney General, State of Oklahoma, Respondents.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 989

958 F.2d 989

Robyn Leroy PARKS, Petitioner, v. Dan REYNOLDS, Warden, Oklahoma State Penitentiary, Susan B Loving, Attorney General, State of Oklahoma, Respondents.

No. 92-6082.

United States Court of Appeals Tenth Circuit.

March 9, 1992.

Certiorari Denied March 10, 1992.

Richard H. Burr (Mandy Welch, Oklahoma Bar Ass'n, Houston, Tex., Terry J. Hull, Oklahoma Bar Ass'n, Norman, Okl., and Julius L. Chambers and Steven W. Hawkins, NAACP Legal Defense and Educational Fund, New York City, with him on the brief), NAACP Legal Defense and Educational Fund, New York City, for petitioner.

Sandra D. Howard (Susan Brimer Loving, Atty. Gen. of Oklahoma, with her on the brief), Asst. Atty. Gen., Chief, Criminal Div., Oklahoma City, Okl., for respondents.

Before HOLLOWAY, TACHA, and BRORBY, Circuit Judges.

TACHA, Circuit Judge.

Appellant Robyn Parks appeals the district court's dismissal of his habeas corpus petition and denial of his request for a stay of execution. Parks contends that the district court erred in dismissing his habeas petition challenging his murder conviction and resulting death sentence. On appeal, Parks raises several arguments, including ineffective representation by his attorney at both the guilt and punishment phase of his trial, the creation of a false impression by the prosecution, and suppression of favorable evidence by the prosecution. Parks also asserts that it would be "a fundamental miscarriage of justice" to execute him. We exercise jurisdiction under 28 U.S.C. § 1291, dismiss Parks' petition, and deny his request for a stay of execution.

BACKGROUND

A. Facts Surrounding the Murder Conviction

At the trial, the government's case-in-chief established the following. Abdullah Ibrahim, a native of Bangladesh, was attending Parks at this point in the investigation became either a prime suspect or a material witness, and it was ascertained that Parks was then in California. In the meantime, the police had contacted a friend of Parks', one James Clegg, and enlisted the latter's aid. Clegg, in Oklahoma, called Parks, in California, on several occasions, and, with Clegg's consent, two phone conversations were tape recorded. In the first of these two recorded conversations, Parks told Clegg that he went to the Gulf station intending to get gas with a stolen credit card and that the attendant came out of the booth and appeared to write down his license number. Fearing that the attendant would "call the law" and also fearing that if the police caught him they would find guns and dynamite ¹ that he had placed in the trunk of his car, Parks decided to kill the attendant so that if "he don't be around there ain't nothing he can tell them noway." In this setting, according to Parks, he went to the station booth and shot and killed the attendant while he was standing up.

                school in Oklahoma and working part-time at a Gulf gas station in Oklahoma City, Oklahoma.   On the morning of August 17, 1977, a motorist who had stopped at the Gulf station at around 4:30 a.m. to buy some cigarettes found the attendant, Ibrahim, dead inside the station booth.   Ibrahim's death was caused by a gunshot wound in the chest.   No money or other property had been taken from the booth.   However, the investigating officers found an unused Gulf gas credit card charge slip in the booth with the letters and figures "XZ-5710" written on it and circled.   The police checked out this alpha-numeric combination and ascertained that it corresponded with the license number of an automobile in which Parks at least had a possessory interest, if not strict legal title thereto
                

In Parks' second taped telephone conversation with Clegg, Parks, still in California, described where he had disposed of the murder weapon. Thereafter the police, accompanied by Clegg, went to the described location, which was miles away from the gas station, and recovered a .45 caliber revolver, together with a holster and ammunition, hidden under a bush. Apparently, one shot had been fired from the revolver; the other five cylinders contained live ammunition. Parks was later arrested in California and extradited to Oklahoma. Both of the taped telephone conversations were played for the jury.

At trial, Parks testified in his own behalf and denied killing Ibrahim. He testified that at the time of the killing he was in another place, and a witness, his girlfriend, corroborated his alibi. Parks explained the fact that the license number of his car was found on the unused credit card slip by stating that several days before the homicide he had been in this particular gas station and had purchased gas when he had no money. He said the attendant at that time took down his license number, but that he had returned later on the same date and paid for the gas. Parks also explained his presence in California at the time of his arrest by testifying that subsequent to the date of the killing he had gone to Kansas City, and then to California, in an effort to buy marijuana. Parks also testified that he confessed because his girlfriend and another friend were being held by the police as material witnesses. He decided that if he confessed to Clegg, who he believed was a police informant, his girlfriend and friend would be released, his family would not be harassed, and he would later be able to clear his name. On this general state of the record, a jury convicted Parks of first-degree murder.

During the trial's penalty phase, the defense presented only Parks' father, Ilanders Parks. Ilanders Parks testified that his son was "a happy-go-lucky guy" and did not have any problems. He also stated that his son was involved in a scuffle in high school, but otherwise was not involved in "any kind of violence."

On cross-examination, Ilanders Parks acknowledged that his son had been convicted of robbery by force while in high school. The prosecution also asked Ilanders Parks about his son's burglary conviction, which Ilanders Parks admitted to not knowing about. The prosecution also introduced the testimony of David Bourn, the victim of the robbery by force. Bourn indicated that Parks was the main instigator in the incident and had struck him in the face. In his closing argument, the prosecutor then used all of the evidence introduced in the penalty phase to emphasize Parks' negative character to the jury.

The jury subsequently sentenced Parks to death.

B. Procedural History of the Murder Conviction

Parks' conviction and sentence were affirmed on direct appeal by the Oklahoma Court of Criminal Appeals, Parks v. State, 651 P.2d 686 (Okla.Crim.App.1982), and the United States Supreme Court denied certiorari. Parks v. Oklahoma, 459 U.S. 1155, 103 S.Ct. 800, 74 L.Ed.2d 1003 (1983).

Parks then sought post-conviction relief in the state courts of Oklahoma. The state district court denied relief, and the Oklahoma Court of Criminal Appeals affirmed in an unreported order and opinion. Thereafter, the United States Supreme Court denied certiorari. Parks v. Oklahoma, 467 U.S. 1210, 104 S.Ct. 2400, 81 L.Ed.2d 356 (1984).

Parks subsequently was denied habeas corpus relief in the United States District Court for the Western District of Oklahoma by orders dated November 5, 1985 and February 28, 1986. On appeal to this court, Parks raised seven arguments: (1) failure of the state trial court to instruct the jury on a lesser included offense; (2) admission of a prior conviction of Parks for robbery by force and fear; (3) improper comment to the jury by the state prosecutor in the hearing at the penalty phase of the case; (4) error by the trial court in instructing the jury to disregard "sympathy"; (5) incomplete and misleading instruction on aggravating circumstances vis-a-vis mitigating circumstances; (6) ineffective assistance of counsel at the penalty phase hearing; and (7) failure of the trial court to hold an evidentiary hearing on his claim that Oklahoma's death sentence statutes are applied in a racially discriminatory manner. Parks v. Brown, 840 F.2d 1496, 1499 (10th Cir.1987). Initially, we affirmed the district court's decision. Id. at 1524. However, on rehearing and sitting en banc, we reversed and vacated Parks' death sentence. Parks v. Brown, 860 F.2d 1545 (10th Cir.1988). The United States Supreme Court granted certiorari and reversed. Saffle v. Parks, 494 U.S. 484, 110 S.Ct. 1257, 108 L.Ed.2d 415 (1990). On remand, we denied any additional relief, Parks v. Saffle, 925 F.2d 366 (10th Cir.1991), and the United States Supreme Court denied further review. Parks v. Saffle, --- U.S. ----, 112 S.Ct. 213, 116 L.Ed.2d 171 (1991).

Parks then filed a second application for post-conviction relief in Oklahoma County District Court, which was denied. The Oklahoma Court of Criminal Appeals affirmed the denial and denied Parks' application to stay the execution. On February 28, 1992, Parks filed a third application for post-conviction relief in the Oklahoma County District Court, asserting that it would violate the Eighth Amendment to execute someone who is probably innocent. This application is still pending in the state courts. Parks also filed a petition for habeas corpus in the federal district court on February 28, 1992, which the district court dismissed on March 2, 1992 without prejudice because the petition contained both exhausted and unexhausted claims. ² The district court then permitted Parks to file a third petition for habeas corpus without the unexhausted claim. The district court denied this petition on March 5, 1992 as abusive and successive. Parks now appeals the district court's decision. Parks also

has filed a motion for stay of execution pending the exhaustion and presentation in the district court of his claim of probable innocence.

DISCUSSION

In this petition, Parks raises a number of constitutional claims. First, he asserts that he was denied effective assistance of counsel at trial. Second, he argues that the prosecutor created a false impression and...