Revilla v. Gibson

Decision Date13 March 2002
Docket NumberNo. 00-6244.,00-6244.
PartiesDaniel Juan REVILLA, Petitioner-Appellant, v. Gary GIBSON, Warden, Oklahoma State Penitentiary, Respondent-Appellee.
CourtU.S. Court of Appeals — Tenth Circuit

James L. Hankins of Hankins Law Office, Enid, OK, for Petitioner-Appellant.

Sandra D. Howard, Assistant Attorney General, Chief, Criminal Appeals (W.A. Drew Edmondson, Attorney General of Oklahoma, with her on the brief), Oklahoma City, OK, for Respondent-Appellee.

Before SEYMOUR, BALDOCK, and MURPHY, Circuit Judges.

MURPHY, Circuit Judge.


In 1987, an Oklahoma jury found Daniel Juan Revilla guilty of first degree child abuse murder, Okla. Stat. tit. 21, § 701.7(C) (Supp.1982). The jury also found two aggravating circumstances: "especially heinous, atrocious or cruel" conduct and "a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society." The jury imposed death as punishment. The state trial court formally imposed judgment on Revilla in absentia, due to his escape from county jail shortly after trial.

Following his return to custody, Revilla unsuccessfully challenged his conviction and sentence on direct appeal and through state collateral review. See Revilla v. State, 877 P.2d 1143 (Okla.Crim.App.1994); Revilla v. State, 946 P.2d 262 (Okla.Crim.App.1997). Thereafter, in January 1998, he commenced this habeas corpus proceeding pursuant to 28 U.S.C. § 2254. The district court ultimately denied his petition, and Revilla appealed. Upon a thorough review of the record in light of the arguments presented, we conclude Revilla is not entitled to habeas relief. Accordingly, as to all matters for which a certificate of appealability (COA) has been granted, we affirm the judgment of the district court; in all other respects, this appeal is dismissed pursuant to 28 U.S.C. § 2253(c).

A. Factual Background

In its opinion resolving Revilla's direct appeal, the Oklahoma Court of Criminal Appeals (OCCA) summarized the basic facts immediately surrounding the death of the young victim, as well as the defense theory of how that death innocently occurred, as follows:

Appellant was convicted of the child abuse murder of thirteen (13) month old Mark Gomez. On January 26, 1987, Appellant took his girlfriend, Michelle McElmurry, to the Jackson County Health Department for a checkup. The decedent, Michelle's son, was left alone at the house shared by Appellant and McElmurry. Approximately 40 minutes later, Appellant ran through the lobby of the county hospital carrying the decedent in his arms, yelling that he had swallowed his tongue and was not breathing. Subsequent attempts by hospital medical personnel were unsuccessful in reviving the unconscious infant. Hospital personnel noticed numerous wounds and injuries to the decedent's body, including bruises on his back, blisters on his chest, peeling skin on his chest and groin area, burns on his thighs and ear, and lacerations on his thighs and arms. The autopsy report showed a swelling and bleeding of the brain and the complete severance of the liver.

The Appellant denied causing the decedent's death and explained that when he returned home from dropping Michelle off at the clinic, he saw the decedent laying on the floor. The decedent was pale and appeared not to be breathing. Appellant attempted to revive the decedent by striking him in the abdomen. When decedent gasped for air, Appellant struck him again. Unable to start him breathing, Appellant stated that he began to panic, grabbed the decedent, pulled his clothes off, rushed him into the bathroom, placed him in the tub, leaned over to turn on the cold water but accidently turned on the hot water, scalding the infant. Turning the water off, he wrapped the decedent in a blanket, and in his rush out of the bathroom, struck the infant's head on the door frame. Exiting the house in a hurry, he tripped and fell on top of the decedent onto a concrete cellar. Appellant got up and rushed the decedent to the hospital.

Revilla, 877 P.2d at 1147. Contrary to Revilla's theory of defense, the OCCA specifically held the evidence "showed that [the victim's] injuries could not have occurred by accident, but were intentionally inflicted." Id. at 1155.

In reviewing Revilla's sentence, the OCCA again cited the victim's many injuries, and then recounted Revilla's repeated abusiveness toward the victim during the month leading up to the fatal incident, which it aptly characterized as "a time of terror, torture and abuse for the young decedent":

In addition to testimony that Appellant tried to fold decedent up in a hide-a-bed couch; that he put him in a kitchen drawer and closed the drawer; and that he taunted the 13 month old decedent by not letting him go to his mother, go to sleep or play with his toys, evidence also showed that the decedent was afraid of the Appellant and would cry and refuse to leave with him; that Appellant had said that he hated the decedent because he was not his child; that Appellant had slapped the decedent and thrown him on the floor; that on one occasion Appellant wrapped duct tape around the decedent's shoulders, threw him in a bathtub of cold water then hung him up by his heels; and on another occasion that Appellant wrapped his belt around the decedent and squeezed him.

Id. The OCCA accordingly "f[ou]nd the aggravator of `especially heinous, atrocious or cruel' supported by sufficient evidence." Id. Further, the OCCA noted that Revilla had at one time been in "possession of a sawed-off shotgun and two machetes," and, more importantly, "had written [letters] from jail threatening Michelle McElmurry; the District Attorney; Juan Gomez, the decedent's father; and Richard Taylor, McElmurry's then roommate, with physical harm and even death," and concluded that "[t]his evidence of [his] violent nature, together with the callous nature in which [he] killed Mark Gomez, support the jury's finding of the continuing threat aggravating circumstance." Id. at 1156. The OCCA therefore deemed "the sentence of death factually substantiated and appropriate." Id. "[F]inding no error warranting reversal or modification," the OCCA upheld Revilla's conviction and death sentence for first degree murder. Id.

B. Procedural Background and Motion to Expand COA

After the denial of state post-conviction relief, Revilla filed the instant petition raising many claims, not all of which have been pursued in this appeal. The district court denied the petition but granted a COA on four claims: (1) Revilla lacked the necessary culpability for capital punishment recognized 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); (2) trial counsel provided ineffective assistance by failing to request a psychiatric expert to rebut the State's case on the continuing threat aggravator; (3) the heinous, atrocious, or cruel aggravator was not supported by the evidence and thus was unconstitutionally applied; and (4) the heinous, atrocious, or cruel aggravator merely duplicated elements of the offense and consequently failed to narrow the class of offenders eligible for the death penalty, as required by the Eighth Amendment.

This court conducted a case management conference at the outset of the appeal. After the conference, the COA was expanded to include two additional issues: (5) the pertinent evidence was insufficient to support the continuing threat aggravator; and (6) the trial court admitted improper expert testimony of personal opinion and statistical probabilities regarding the ultimate issue of guilt.1

A. Standard of Review

Revilla filed this habeas proceeding after the April 24, 1996 effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). Consequently, as the district court recognized, federal review of the petition is governed by the standards set out in 28 U.S.C. § 2254(d) and (e),2 as amended by AEDPA. Williams v. Taylor, 529 U.S. 362, 402, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). The Supreme Court construed the language of § 2254(d)(1) in Williams, which this court has summarized as follows:

AEDPA allows a federal court to grant habeas relief under § 2254(d)(1) only if the relevant state-court decision was either "contrary to" or "an unreasonable application of" established Supreme Court precedent. As for § 2254(d)(1)'s "contrary to" clause, [the Court] noted that a state-court decision would be contrary to the Court's clearly established precedent in two circumstances: (1) the state court applies a rule that contradicts the governing law set forth in the Court's cases; or (2) 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. Under the "unreasonable application" clause, on the other hand, a federal habeas court may grant the writ only if the state court identifies the correct governing legal principle from the Court's decisions but unreasonably applies the principle to the facts of the prisoner's case. To be clear, under § 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.

Thomas v. Gibson, 218 F.3d 1213, 1219-20 (10th Cir.2000) (citations, quotations, and associated alterations omitted).

These AEDPA principles require a state decision on the merits to which the federal courts can defer. See 28 U.S.C. § 2254(d) (limits on review in subsections (1) and (2) apply "with respect to any claim that was...

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