Sellers v. Ward, 97-6062

• Decision Date: 04 February 1998
• Docket Number: No. 97-6062,97-6062
• Citation: 135 F.3d 1333
• Parties: 98 CJ C.A.R. 952 Sean Richard SELLERS, Petitioner-Appellant, v. Ronald WARD, Warden of the Oklahoma State Penitentiary, Respondent-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1333

135 F.3d 1333

98 CJ C.A.R. 952

Sean Richard SELLERS, Petitioner-Appellant, v. Ronald WARD, Warden of the Oklahoma State Penitentiary,

Respondent-Appellee.

No. 97-6062.

United States Court of Appeals, Tenth Circuit.

Feb. 4, 1998.

Steven M. Presson and Robert W. Jackson, Jackson & Presson, P.C., Norman, OK, for Petitioner-Appellant.

William L. Humes, Assistant Attorney General (W.A. Drew Edmondson, Attorney General, with him on the briefs), Oklahoma City, OK, for Respondent-Appellee.

Before PORFILIO, BRORBY, and MURPHY, Circuit Judges.

PORFILIO, Circuit Judge.

In 1986, at the age of sixteen, Appellant Sean Richard Sellers shot and killed three people. He was subsequently convicted and sentenced to death. He has exercised the full panoply of appeals and post-conviction remedies available to him in the state of Oklahoma. After a thorough and carefully considered sixty-nine page review of the issues presented it under 28 U.S.C. §§ 2241 and 2254, the United States District Court for the Western District of Oklahoma denied relief. Sellers has appealed that ruling presenting to us eight issues claiming denials of due process of law, effective assistance of counsel, and a fair trial, which individually and cumulatively resulted in a fundamentally unfair trial and unconstitutional sentence of death. Although troubled by the extent of uncontroverted clinical evidence proving Petitioner suffers from Multiple Personality Disorder, now and at the time of the offenses of conviction, and that the offenses were committed by an "alter" personality, we are constrained to hold Petitioner has failed to establish grounds for federal habeas corpus relief. Even though his illness is such that he may be able to prove his factual innocence of those crimes, we believe he must be left to the avenue of executive clemency to pursue that claim. We are not persuaded by any of the remaining arguments and, therefore, affirm the judgment of the district court.

I.

Sellers' crimes were committed in two transactions. His first victim was Robert Bower, a convenience store clerk, who died because Sellers told a friend he "want[ed] to see what it feels like to kill somebody." Escaping detection for the first murder, six months later, Sellers killed his mother and stepfather, each with a single shot to the back of the head, making it appear the couple had been attacked by an intruder in the middle of the night. Afterward, Sellers told a friend he thought he had done a good job feigning his innocent discovery of the bodies and described how he stood in his undershorts while firing the two shots so no blood would spatter and be discovered on his clothing.

At his state trial on three counts of first degree murder, defense counsel portrayed Sellers as the victim of Satanism and occult worship. He further argued Sellers' addiction to the game, Dungeons and Dragons, dictated his actions and disconnected him from any consciousness of wrongdoing or responsibility. A psychiatric expert testified Sean was "legally unconscious" at the time of all three killings and therefore incapable of forming the intent required of first degree murder.

For the murders of Vonda and Paul Bellofatto, the State alleged and the jury found the killings were especially heinous, atrocious, or cruel; that Sellers constituted a continuing threat to society; and Sellers knowingly created a great risk of death to more than one person when he committed the double homicide. To support the death penalty for the murder of Robert Bower, the State alleged and the jury found the heinous, atrocious, or cruel and continuing threat aggravators.

In the direct appeal of the convictions, Sellers v. State, 809 P.2d 676 (Okla.Crim.App.1991) (Sellers I ), the Oklahoma Court of Criminal Appeals struck the "heinous, atrocious, or cruel" aggravator because the trial court failed to instruct the jury to limit the application of this aggravator to murders involving torture or physical abuse of the victim prior to death. In its disposition of the issues, the appellate court held the "probability of continuing threat" aggravator to be specific, was not vague as alleged, and was supported by the evidence. ¹

In a subsequent appeal from the denial of relief in a state post-conviction proceeding, Sellers v. State, 889 P.2d 895 (Okla.Crim.App.1995) (Sellers II ), Sellers asserted he had recently discovered evidence that at the time of the crimes he suffered from a childhood brain injury and a mental condition known as Multiple Personality Disorder (MPD). He also contended he received ineffective assistance of counsel. The Oklahoma Court of Criminal Appeals rejected both contentions.

The court held, "although evidence of then existing but not yet presented or heard physical brain damage and MPD presents a valid ground for post-conviction relief under 22 O.S.1991, § 1080(d), it has been waived under 22 O.S.1991, § 1086." Sellers II, 889 P.2d at 897. It similarly concluded by failing to raise it on appeal Sellers waived his argument that statutorily imposed monetary limits on funding defense expert witnesses precluded his properly exploring his insanity defense. The court held under § 1086 Sellers also waived his ineffective assistance of trial counsel claim and rejected "on the merits" his claim appellate counsel was ineffective.

In light of these holdings, the federal district court concluded each claim presented here satisfies exhaustion principles. Nonetheless, guided by then recently enacted provisions of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), the district court issued a certificate of appealability only on the issue pertaining to the continuing threat aggravator and denied a certificate on the remaining issues.

Subsequent to that ruling, the Supreme Court held in Lindh v. Murphy, --- U.S. ----, ----, 117 S.Ct. 2059, 2068, 138 L.Ed.2d 481 (1997), that § 2253(c) of the AEDPA (pertaining to the certificate of appealability) applies only to cases filed after April 24, 1996. Because the petition in this case was filed before that date, the certificate of appealability is not a jurisdictional requirement here. See United States v. Kunzman, 125 F.3d 1363, 1364 n. 2 (10th Cir.1997). We have heretofore granted a certificate of probable cause and consider all the issues raised by Petitioner.

II.

A.

Petitioner asserts at the time of the murders he was suffering from Multiple Personality Disorder. He contends the State's misapplication of its own procedure has denied him post-conviction due process because he has been barred from the opportunity to fully litigate this issue. Sellers urges the evidence of his brain injury and MPD is material; could not have been discovered before trial; is not cumulative; and creates a reasonable probability of changing the outcome of the trial. Yet, the Oklahoma Court of Criminal Appeals erroneously ruled the claim had been waived under Okla. Stat. tit. 22, § 1086 (1991). ² He argues the federal district court's review was clouded by that misapprehension.

Sellers asserts both state and federal courts overlooked that he had raised the issue in his original application for post-conviction relief, not a subsequent application. Thus, while Hopkinson v. Shillinger, 866 F.2d 1185 (10th Cir.1989), holds that errors in postconviction procedures are not cognizable federal habeas corpus claims, he asserts the proposition does not exactly address his case. He argues he is the victim of a judicially created "Catch-22" where state law restricts newly discovered evidence claims to a post-conviction proceeding, but he has been denied access to that remedy because he failed to assert the issue of his mental affliction on direct appeal. Consequently, he complains, the State has no mechanism to address his claim.

The federal district court relied on Herrera v. Collins, 506 U.S. 390, 113 S.Ct. 853, 122 L.Ed.2d 203 (1993), and Hopkinson to reject this contention, reciting the claim does not rise to a constitutional level because it is collateral to the basis for his incarceration. Nevertheless, in an abundance of caution, the court proceeded to address whether Sellers had persuasively demonstrated such a powerful case of actual innocence that it would render his execution unconstitutional. Ultimately it concluded Sellers had failed to meet this extraordinarily high threshold.

The court examined affidavits previously submitted with Sellers' state post-conviction petition attesting to his physical and mental state as well as the subject of MPD. Based on that review, the court stated:

There is significant neurological and psychological evidence that Petitioner suffers from MPD and some brain damage and a psychologist and psychiatrist who evaluated Petitioner in October of 1992 have opined that since or because Petitioner suffers from MPD, an alter personality likely or must have been in control at the time the murders were committed, if Petitioner committed them, and that the alter personality did not understand nor care about the nature of his acts nor whether they were right or wrong, or that it was likely that the alter did not know the difference between good and bad or right and wrong. But this evidence does not amount to a truly persuasive demonstration of actual innocence nor meet the extraordinarily high threshold of showing that a constitutional violation will occur if Petitioner is executed for a number of reasons.

(emphasis in original) (footnote omitted).

The court explained it rejected the newly discovered evidence because the expert opinions were based on examinations conducted more than six years after the crimes, and thus the reliability of the conclusions of which personality was in control was "diminished." Moreover, the court pointed out the experts "offered no basis for their opinions that an alter personality must have been in control at the time of the murders." Additionally, the court stated there was no evidence Sellers'...