Sallahdin v. Mullin, No. 03-6108.

• Decision Date: 24 August 2004
• Docket Number: No. 03-6108.
• Citation: 380 F.3d 1242
• Parties: Sharieff Imani SALLAHDIN, also known as Michael Lannier Pennington, Petitioner-Appellee, v. Mike MULLIN, Warden, Oklahoma State Penitentiary, Respondent-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

380 F.3d 1242

Sharieff Imani SALLAHDIN, also known as Michael Lannier Pennington, Petitioner-Appellee, v. Mike MULLIN, Warden, Oklahoma State Penitentiary, Respondent-Appellant.

No. 03-6108.

United States Court of Appeals, Tenth Circuit.

August 24, 2004.

Appeal from the United States District Court for the Western District of Oklahoma.

David M. Brockman, Assistant Attorney General, Criminal Division, (W.A. Drew Edmondson, Attorney General, with him on the brief), Oklahoma City, OK, for the respondent-appellant.

Fred L. Staggs, Oklahoma City, OK, for the petitioner-appellee.

Before EBEL, Circuit Judge, BRORBY, Senior Circuit Judge, and BRISCOE, Circuit Judge.

BRISCOE, Circuit Judge.

Respondent Mike Mullin, warden of the Oklahoma State Penitentiary, appeals the district court's decision granting conditional habeas relief in the form of a new sentencing hearing to petitioner Sharieff Sallahdin, an Oklahoma state prisoner convicted of first degree murder and sentenced to death. We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and reverse.

I.

The relevant underlying facts of Sallahdin's crime and state court proceedings were set forth in Sallahdin v. Gibson, 275 F.3d 1211, 1221 (10th Cir.2002) (Sallahdin I ):

At approximately 5:00 a.m. on October 21, 1991, James Principe and Bradley Grooms were stocking shelves at the 7-Eleven convenience store where they worked [in Lawton, Oklahoma]. Principe heard a loud bang and saw a black man looking in Grooms' direction. Principe ducked, made his way to the back of the store and locked himself in the bathroom. After emerging from the bathroom, he contacted the police and then saw Grooms lying motionless on the floor with a gunshot wound to the chest. Grooms died from his injuries. Principe later identified Sallahdin as the man who shot Grooms.

That same morning, Lynn Smith stopped at the 7-Eleven to get some ice. Sallahdin was behind the counter and gave her a cup of ice. She did not see anyone else in the store. Upon leaving, she looked back and saw Sallahdin leave the store and drive away in a car. The following day, Sallahdin was taken into custody at his wife's home in Akron, Ohio.

At trial, Sallahdin testified another man committed the murder. The jury convicted Sallahdin of first degree malice murder, which is punishable by death in Oklahoma. When the trial proceeded to the sentencing phase, the State sought the death penalty based on three aggravators: (1) Sallahdin posed a continuing threat to society; (2) he committed the murder to avoid arrest or prosecution; and (3) he knowingly created a great risk of death to more than one person. In addition to the guilt phase evidence about the crime, the State presented evidence of threats Sallahdin made while incarcerated. The jury found all three aggravating circumstances. After Sallahdin presented his own testimony in mitigation and mitigating testimony from friends, family, commanders, peers and others who knew him; the jury determined the aggravating factors outweighed the mitigating evidence and fixed punishment at death.

On direct appeal, the Oklahoma Court of Criminal Appeals affirmed the conviction and death sentence, after striking the great risk of death to more than one person aggravator and reweighing the remaining aggravators against the mitigating evidence. That court later denied post-conviction relief. Sallahdin v. State, 947 P.2d 559 (Okla.Crim.App.1997).

In Sallahdin I, we affirmed the denial of all of Sallahdin's federal habeas issues except one. We found "troubling" Sallahdin's assertion that his trial counsel was ineffective for failing to present second-stage mitigating evidence of the effects of Sallahdin's steroid use on his behavior at the time of the crime. Id. at 1220. With respect to that issue, we concluded:

After carefully examining the record, we are persuaded that, had this evidence been presented, there is a reasonable probability the outcome of the sentencing phase would have been different, i.e., that the jury would have imposed a sentence other than death. Because, however, we are not privy to trial counsel's reasons for not presenting this evidence, and because we can envision circumstances where it would have been constitutionally reasonable for counsel not to introduce this evidence despite its potentially mitigative effect, we find it necessary to reverse and remand this case to the district court for an evidentiary hearing solely on this specific issue concerning trial counsel's performance.

Id. With respect to the evidentiary hearing on remand, we stated:

[T]he purpose of the evidentiary hearing will be to determine trial counsel's reasons, or lack thereof, for foregoing the use of [defense expert] Dr. Pope's testimony during the sentencing phase. If trial counsel made a strategic decision not to use Dr. Pope's testimony, the district court will then need to assess whether that was a constitutionally reasonable decision under the circumstances. If, however, it is established that trial counsel was neglectful, or otherwise erred, in failing to call Dr. Pope as a second-stage witness, then trial counsel's performance cannot be deemed constitutionally reasonable. In turn, Sallahdin would be entitled to federal habeas relief in the form of a new sentencing proceeding.

Id. at 1240-41.

During the evidentiary hearing on remand, Sallahdin maintained that his trial counsel, Mark Barrett, was neglectful in failing to present evidence of his steroid use. Sallahdin relied exclusively on the testimony of Barrett to support the theory. Barrett, who appeared primarily through videotaped deposition testimony, testified that at some point during his two-year representation of Sallahdin he hired Dr. Harrison Pope, a psychiatrist and Harvard professor, as an expert on the psychological effects of steroids. According to Barrett, Pope examined Sallahdin and concluded that Sallahdin "had suffered extreme negative effects from the use of steroids, and, particularly important in this case, from withdrawal of the use of steroids." Barrett Dep. at 10. Barrett testified that, prior to trial, he and Sallahdin were in agreement that Pope's testimony would be helpful to the defense and should be presented during the second-stage proceedings (assuming Sallahdin was found guilty at the conclusion of the first-stage proceedings). Approximately four days prior to trial, Barrett submitted a written request to the director of the Oklahoma Indigent Defense System (OIDS) requesting funding for Pope's appearance at trial and the request was approved by the director of OIDS on the day it was submitted. According to Barrett, he had some recollection that, on the evening after the jury returned its first-stage verdict and prior to the beginning of the second-stage proceedings, he asked another attorney in his office "to look into getting Dr. Pope there." Id. at 26. Barrett conceded, however, that Pope ultimately did not appear as a second-stage witness, but he was unable to recall why he did not call Pope as a witness — he did not think he made a strategic decision to not call Pope, nor did he think not calling Pope was the result of his negligence. When asked if he made a strategic decision not to present Pope's testimony, Barrett testified: "I can't imagine that I did. I mean the difficulty in answering that with any certainty is because there's no explanation for all this that makes any sense to me. But it was important enough evidence to us that I can't imagine making any such [strategic] decision." Id. at 27. Barrett testified that he did not remember seeking Sallahdin's approval to forego the presentation of Pope as a second-stage witness. Barrett testified that he vaguely remembered approaching the bench during the second-stage proceedings and making an offer of proof as to Pope's testimony, but conceded that the transcript of the state court proceedings contained no such bench conference or offer of proof. When asked if he simply neglected to present Pope's testimony, Barrett testified he did not think that was a "strong ... possibility," but admitted that "everything [wa]s a possibility." Id. at 35. On cross-examination, Barrett again admitted that neglect was "a possibility," but questioned whether that was in fact what had occurred: "I mean, it's not something I could have just overlooked, hey, you know, the trial was going on, I just kind of forgot about Dr. Pope. I mean, he's a Harvard professor who was probably the world's leading expert on steroid use. The fact that he was out there wouldn't have just slipped my mind." Id. at 58. Thus, Barrett carefully walked the line between admitting that not calling Pope as a witness was a strategic decision and admitting it was the result of his negligence.

Although respondent did not have the burden of proof, he presented evidence from four witnesses to counter Sallahdin's theory that counsel was negligent. Dr. John Call, a forensic psychologist hired by the prosecution, testified that he examined Sallahdin approximately two months before trial and, during the examination, Sallahdin admitted he had not used steroids since April 1991 (approximately five to six months prior to the homicide). Call further testified that on August 23, 1993, approximately two weeks prior to trial, he prepared and sent to the prosecutors a memo stating, in pertinent part, that "by his own admission, Mr. [Sallahdin] had not been using steroids for many months prior to" the homicide. Evidentiary hearing tr. at 71.

Fred Smith, Jr., the assistant district attorney who helped prepare the Sallahdin case for trial, testified that he received and was aware of the contents of Call's memo. More importantly, Smith testified that he recalled pretrial discussions with Barrett in which Barrett stated he was not going to present steroid-related evidence "as a mitigator in the second phase of the trial." Id. at 49. According to Smith, Barrett stated his decision to forego the...