Ross v. Ward

• Decision Date: 12 January 1999
• Docket Number: No. 97-6432,97-6432
• Citation: 165 F.3d 793
• Parties: 1999 CJ C.A.R. 1291 Bobby Lynn ROSS, Petitioner-Appellant, v. Ron WARD, Warden, Oklahoma State Penitentiary, Respondent-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 793

165 F.3d 793

1999 CJ C.A.R. 1291

Bobby Lynn ROSS, Petitioner-Appellant, v. Ron WARD, Warden, Oklahoma State Penitentiary, Respondent-Appellee.

No. 97-6432.

United States Court of Appeals Tenth Circuit.

Jan. 12, 1999.

David Autry, Oklahoma City, Oklahoma, for Petitioner-Appellant.

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

Before ANDERSON, KELLY, and LUCERO, Circuit Judges.

PAUL KELLY, Jr., Circuit Judge.

Petitioner Bobby Lynn Ross, an Oklahoma state prisoner sentenced to death, appeals from the district court's denial of his petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. Our jurisdiction arises under 28 U.S.C. § 2253, and we affirm.

Background

In the early morning hours of January 5, 1983, Mr. Ross and another man robbed Debra Jean Sandefur, the night clerk at the Los Cuartos Inn Motel in Elk City, Oklahoma. See Trial Transcript ("Tr.") at 563-83. During the robbery, Mr. Ross grabbed and pushed Ms. Sandefur and repeatedly threatened to kill her. See Tr. at 577-82; 596.

Before Mr. Ross left the scene, Sergeant Steven Mahan of the Elk City Police Department arrived on a routine check. After disarming Sergeant Mahan and ordering him to lie down, Mr. Ross shot him in the head three times at close range. Ms. Sandefur came to his aid as he lay on the ground, face down, bleeding profusely and breathing irregularly. See Tr. at 592-93. Elk City police officers arrived and, due to the obvious severity of his injuries, drove Sergeant Mahan to the hospital before the ambulance arrived. See Tr. at 628-32. At approximately 5:30 a.m. that same day, Sergeant Mahan was pronounced dead. See Tr. at 643.

At approximately 2:26 a.m., two Clinton police officers stopped the vehicle in which Mr. Ross and two other men were riding for having a defective taillight and unsafe windshield. See Tr. at 698-702. All three men were frisked, arrested and read their Miranda rights. See Tr. at 704-10, 723-24. While frisking Mr. Ross, Officer Mark Lumpkin removed a Bauer .25 caliber automatic pistol from Mr. Ross' right front pants pocket. See Tr. at 706-08. Ballistics tests showed that the bullets removed from Sergeant Mahan's head were fired from the Bauer pistol taken from Mr. Ross. See Tr. at 937. The police also recovered the black jacket, black pants and black tennis shoes that Mr. Ross had been wearing during the robbery and murder. A search of the vehicle revealed the two bank bags and bank deposits taken from the Los Cuartos Inn Motel, a Model 66 Smith & Wesson .357 magnum revolver with the same serial number as Officer Mahan's duty weapon and a loaded .25 caliber pistol. See Tr. at 712-23.

A few hours later, Mr. Ross gave a taped statement to the police. Mr. Ross initially admitted that he committed the robbery but denied any involvement in the murder, claiming an unidentified individual appeared at the scene and killed Sergeant Mahan. See Tr. at 900-06. However, when faced with accusations of lying, Mr. Ross admitted to Sergeant Mahan's killing, stating: "Yes, sir, I did [commit the murder]. There wasn't no way of getting around it. I had to live with it on my mind. I couldn't live no longer with it on my mind. Taking another man's life just for some money." Tr. at 915-19; 921-22.

Procedural History

In October 1983, Mr. Ross was convicted of first degree murder and robbery with firearms in the Roger Mills County District Court. Mr. Ross was sentenced to death for the murder conviction and to ninety-nine years imprisonment for the robbery conviction.

In support of the death penalty, the jury found the following five aggravating circumstances: (1) Mr. Ross knowingly created a great risk of death to more than one person; (2) the murder was especially heinous, atrocious, or cruel; (3) the murder was committed to avoid or prevent a lawful arrest or prosecution; (4) there exists a probability that Mr. Ross would commit criminal acts of violence that would constitute a continuing threat to society; and (5) the victim of the murder was a peace officer. See Trial Ct. Rec. at 366.

On direct appeal, Mr. Ross' convictions and sentence were affirmed by the Oklahoma Court of Criminal Appeals. See Ross v. State, 717 P.2d 117 (Okla.Crim.App.1986). Thereafter, Mr. Ross filed a petition for a writ of certiorari with the United States Supreme Court. The Court granted the petition on June 15, 1987 to determine whether the failure to excuse a potential juror for cause constituted a denial of Mr. Ross' Sixth and Fourteenth Amendment rights. The Court affirmed Mr. Ross' convictions and sentences on June 22, 1988. See Ross v. Oklahoma, 487 U.S. 81, 108 S.Ct. 2273, 101 L.Ed.2d 80 (1988).

On October 24, 1988, Mr. Ross filed an Application for Post-Conviction Relief in the District Court of Roger Mills County, Oklahoma. The state district court invalidated the "especially henious, atrocious, or cruel" aggravating circumstance, but still denied Mr. Ross relief, finding the death penalty the appropriate punishment. The Oklahoma Court of Criminal Appeals affirmed this denial of relief on April 6, 1994. See Ross v. State, 872 P.2d 940 (Okla.Crim.App.1994). On October 31, 1994, the United States Supreme Court denied Mr. Ross' petition for a writ of certiorari. See Ross v. Oklahoma, 513 U.S. 970, 115 S.Ct. 441, 130 L.Ed.2d 352 (1994).

Mr. Ross filed a second Application for Post-Conviction relief in the District Court of Roger Mills County on December 30, 1994. The district court denied relief on March 24, 1995, and the Oklahoma Court of Criminal Appeals affirmed that denial on March 20, 1997. See Ross v. State, No. PC-95-294 (Okla.Crim.App.1997).

Mr. Ross filed the present habeas petition in federal district court on December 31, 1996. The district court denied Mr. Ross' claim for relief on November 17, 1997. See Ross v. Ward, No. CIV-96-1074-M (W.D.Okla.1997). However, the district court granted Mr. Ross a certificate of appealability on two issues: (1) the alleged denial of Mr. Ross' right to expert psychiatric or psychological assistance at both the guilt/innocence and penalty stages of trial, and (2) the alleged denial of Mr. Ross' right to an individualized sentencing determination based upon constitutionally valid aggravating circumstances. See id.

Despite the limited certificate of appealability, Mr. Ross raises the following issues on appeal: (1) the trial court unconstitutionally denied Mr. Ross' motion for the appointment of expert psychiatric or psychological assistance with respect to both stages of trial; (2) he was deprived of effective assistance of counsel at both stages of the proceedings; (3) the aggravating circumstances used to support his death sentence were unconstitutionally interpreted and applied by the Oklahoma Court of Criminal Appeals and the evidence was insufficient to support them; (4) the death sentence is infirm under the Eighth Amendment because the "especially heinous, atrocious, or cruel" aggravating circumstance was vacated by the Oklahoma courts; (5) the prosecution failed to give notice of one of the aggravating circumstances; (6) the admission of evidence regarding an unadjudicated homicide during the penalty phase deprived Mr. Ross of a reliable sentencing determination; (7) prosecutorial misconduct occurred in both stages of Mr. Ross' trial; and (8) Mr. Ross was incompetent when tried and was denied a meaningful process to determine his competency.

Discussion

A. Certificate of Appealability

Section 102 of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub L. 104-132, 110 Stat. 1214, amends the statutory provision which had required state prisoners to obtain a certificate of probable cause before appealing the denial of a habeas petition. The amended provision provides: "Unless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of appeals from ... the final order in a habeas corpus proceeding in which the detention complained of arises out of process issued by a State court." 28 U.S.C. § 2253(c)(1)(A). A certificate of appealability ("COA") may issue "only if the applicant has made a substantial showing of the denial of a constitutional right," 28 U.S.C. 2253(c)(2), and it "shall indicate which specific issue or issues satisfy the showing required by paragraph (2)." 28 U.S.C. § 2253(c)(3).

Here, the district court granted Mr. Ross a COA that was limited to two issues: (1) the alleged denial of Mr. Ross' right to expert assistance at both the guilt/innocence and penalty stages of trial, and (2) the alleged denial of Mr. Ross' right to an individualized sentencing determination based upon constitutionally valid aggravating circumstances. On appeal, Mr. Ross raises five other issues in his brief, all of which were addressed by the district court and for which the district court declined to grant a COA. We have reviewed the record before us, the district court's order, and Mr. Ross' arguments, and we conclude that Mr. Ross has failed to make a substantial showing of the denial of a constitutional right as required under 28 U.S.C. § 2253(c)(2) for the issuance of an expanded COA. Thus, we will only consider the following issues: (1) whether the denial of Mr. Ross' motion for the appointment of expert psychiatric or psychological assistance with respect to both stages of trial deprived him of his constitutional rights; (2) whether the death sentence is unconstitutional because the aggravating circumstances used to support it were both unconstitutionally interpreted and applied by the Oklahoma Court of Criminal Appeals and insufficiently supported by the evidence; and (3) whether the death sentence is infirm under the Eight Amendment because the "especially heinous, atrocious, or cruel" aggravating circumstance was vacated by the Oklahoma courts.

Mr. Ross contends that...