Romano v. Gibson

• Decision Date: 25 January 2002
• Docket Number: No. 00-6289.,00-6289.
• Citation: 278 F.3d 1145
• Parties: John Joseph ROMANO, Petitioner-Appellant, v. Gary GIBSON, Warden, Oklahoma State Penitentiary, Respondent-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

278 F.3d 1145

John Joseph ROMANO, Petitioner-Appellant, v. Gary GIBSON, Warden, Oklahoma State Penitentiary, Respondent-Appellee.

No. 00-6289.

United States Court of Appeals, Tenth Circuit.

January 25, 2002.

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Gloyd L. McCoy of Coyle, McCoy & Burton (Robert A. Nance of Riggs, Abney, Neal, Turpen, Orbison & Lewis, with him on the brief), Oklahoma City, OK, for Petitioner-Appellant.

Seth S. Branham, Assistant Attorney General (W.A. Drew Edmondson, Attorney General of Oklahoma, with him on the brief), Oklahoma City, OK, for Respondent-Appellee.

Before SEYMOUR, LUCERO, and MURPHY, Circuit Judges.

SEYMOUR, Circuit Judge.

Petitioner-appellant John Joseph Romano appeals the denial of habeas relief, see 28 U.S.C. § 2254, from his Oklahoma first degree murder conviction and death sentence. Romano argues, among other things, that his trial attorneys' second-stage strategy was constitutionally ineffective. We disagree, and affirm the denial of habeas relief on this and his other claims.

I. FACTS.

A jury convicted Romano of murdering a business acquaintance, Lloyd Thompson.¹ Thompson was a fifty-eight year old gambler with a heart condition. Romano worked for Thompson setting up card games. On July 19, 1986, Thompson's neighbors reported seeing either one or two men with Thompson. One man was changing a tire on Thompson's car. Romano admitted doing so. That tire had been flattened by two punctures made in the sidewall with a sharp object, such as a knife. After changing the tire, at least one man accompanied Thompson to his second-story apartment. Immediately thereafter, Thompson's stereo was turned up very loud and there followed a lot of loud thumping and banging, lasting between two and ten minutes. Later, another neighbor noticed a man coming from Thompson's apartment, carrying a brown paper bag. This man got into a brown Mercury Cougar, where another man waited, and the two left hurriedly. That car was registered to Romano's girlfriend. She had let him use the car that morning.

Thompson's neighbors summoned police, who found the victim's body in his apartmerit. Thompson had been beaten and stabbed twenty-two times. Underneath his body, police found a broken knife blade. There was evidence a struggle had occurred, including blood found throughout the apartment's living room. That afternoon, Romano's girlfriend noticed Romano had scratches on his neck that she had not previously noticed.

Thompson was known to keep large amounts of money in his front pants pockets. However, when police found his body, Thompson's front pockets had been turned inside out and were empty. And, although he had had no money that morning, Romano turned up later that day with one thousand dollars. In fact, Romano had told his girlfriend that morning that he was going to meet David so that he could collect some money to finance a trip to Clovis, New Mexico, planned for that afternoon. David Woodruff also was seen with three hundred dollars that same afternoon. Woodruff was wearing what was positively identified as Thompson's watch.

Two sets of bloody clothes and two bloody knives, one broken, were subsequently found in a trash dumpster behind a retail store. The broken knife matched exactly the blade found under Thompson's body. At trial, both Woodruff's and Romano's girlfriends identified the bloody clothing as belonging to the two co-defendants. The blood found on all the clothes and the knives was Type A, matching the victim's blood type.

A blood spatter expert testified that the blood stains on Romano's clothes were consistent with the wearer, while in close proximity, having inflicted multiple stab wounds on a bleeding victim. The stains on Woodruff's clothes, on the other hand, were more consistent with the wearer's holding a bleeding victim, rather than stabbing him. The State surmised that the two men had attacked Thompson, stabbing him both from Thompson's front and back. Woodruff's knife blade must have broken. Woodruff then grabbed and held Thompson as Romano continued stabbing him.

Police arrested Romano that same evening in Clovis, New Mexico, for first degree murder. At the time, Romano commented that he would go to the penitentiary for sure this time. He called Woodruff from jail the next morning. This call prompted Woodruff and his girlfriend to drive around looking in trash dumpsters in the area where the bloody clothes were found.

The State charged Romano alternately with first degree malice aforethought and felony murder. The jury returned a general guilty verdict. At sentencing, the State presented evidence that Romano and Woodruff had similarly killed another Romano gambling acquaintance, Roger Sarfaty, six months before Thompson's murder. The jury found two aggravating factors: Romano had committed the murder to avoid arrest and prosecution for robbing Thompson, and Thompson's murder was especially heinous, atrocious or cruel. The jury declined to find that Romano was a continuing threat to society. After weighing the two aggravating factors with Romano's mitigating evidence, the jury sentenced him to death.²

The Oklahoma Court of Criminal Appeals affirmed Romano's conviction and sentence on direct appeal, and denied post-conviction relief. Romano v. State, 909 P.2d 92 (Okla.Crim.App.1995), cert. denied, 519 U.S. 855, 117 S.Ct. 151, 136 L.Ed.2d 96 (1996); Romano v. State, 942 P.2d 222 (Okla.Crim.App.1997).

II. STANDARDS OF REVIEW.

Under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Romano is entitled to relief from his death sentence only if he can show that the state court's resolution of his claims was "contrary to, or involved an unreasonable application of clearly established" Supreme Court precedent, or represented "an unreasonable determination of the facts in light of the evidence presented." 28 U.S.C. § 2254(d). We presume state court factual findings are correct, absent clear and convincing proof to the contrary. Id., § 2254(e)(1). If the state court did not address a claim's merit, however, this court then reviews the district court's legal determinations de novo and its factual findings, if any, for clear error. See Thomas v. Gibson, 218 F.3d 1213, 1220 (10th Cir.2000).

III. ISSUES.

A. Ineffective representation at sentencing. Romano challenges his trial attorneys' second-stage representation. In particular, Romano complains that his own attorneys presented his sister's testimony that Romano had sexually abused her, and their siblings, for years. According to Romano, this testimony was "devastating" to his second-stage defense. Appellant's Opening Br. at 17.

1. Evidentiary hearing/discovery. Romano first asserts that the federal district court should have granted his motion for discovery and conducted an evidentiary hearing. However, Romano failed to request an evidentiary hearing in state court. He did raise several ineffective-assistance claims on direct appeal, including this one. During that direct appeal, he requested an evidentiary hearing, but only specifically to permit him to develop evidence of his exemplary incarceration record while on death row. See Appellant's Direct Appeal Br. at 31. Further, although he sought a state-court evidentiary hearing in his post-conviction relief application, as well, he did so again on unrelated ineffective-assistance claims. See Post-Conviction Application at 2, 31. Lastly, he did not raise until these habeas proceedings one of the factual issues he now seeks to develop, that defense counsel presented the sexual-abuse testimony during sentencing despite Romano's denying its occurrence. See Appellant's Direct Appeal Br. at 25-32.

When, as here, a petitioner has failed to develop diligently the factual basis of his federal habeas claim in state court, 28 U.S.C. § 2254(e)(2) permits a federal evidentiary hearing only in very limited circumstances where, among other requirements, the claim relies on "a new rule of constitutional law ..." or "a factual predicate that could not have been previously discovered through the exercise of due diligence," id., § 2254(e)(2)(A). See Williams v. Taylor, 529 U.S. 420, 429-30, 432-34, 437, 120 S.Ct. 1479, 146 L.Ed.2d 435 (2000); see also, e.g., Mayes v. Gibson, 210 F.3d 1284, 1287 n. 2 (10th Cir.), cert. denied, 531 U.S. 1020, 121 S.Ct. 586, 148 L.Ed.2d 501 (2000). Romano does not assert that this claim would fit within either § 2254(e)(2)(A) exception. Consequently, he is not entitled to an evidentiary hearing in federal court. See Valdez v. Ward, 219 F.3d 1222, 1230 (10th Cir.2000), cert. denied, 532 U.S. 979, 121 S.Ct. 1618, 149 L.Ed.2d 481 (2001); see also Smith v. Massey, 235 F.3d 1259, 1275 (10th Cir. 2000), cert. denied, ___ U.S. ___, 122 S.Ct. 235, 151 L.Ed.2d 169 (2001), abrogated on other grounds by Neill v. Gibson, 278 F.3d 1044, 1057 n. 5 (10th Cir.2001). Nor did the federal district court abuse its discretion in denying Romano discovery in these habeas proceedings. See Rule 6(a), Rules Governing Section 2254 Cases.

2. Merits. To obtain habeas relief, Romano must establish both that presenting evidence that he sexually assaulted his siblings amounted to deficient performance by his attorneys and that his defense was thereby prejudiced. See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Here, "[b]ecause we resolve this ineffective-assistance claim by addressing [defense counsel's] performance, we affirm the denial of habeas relief without addressing Strickland's prejudice inquiry." Bryan v. Gibson, 276 F.3d 1163, 1175 (10th Cir.2001) (citing Strickland, 466 U.S. at 697, 104 S.Ct. 2052).

To establish deficient performance, Romano must show that his attorneys' "representation fell below an objective standard of reasonableness." Strickland, 466 U.S. at 687-88, 104 S.Ct. 2052. "Judicial scrutiny of counsel's performance must be highly deferential.... A fair assessment of attorney performance...