Smallwood v. Gibson, 98-6397

Decision Date10 September 1999
Docket NumberNo. 98-6397,98-6397
Citation191 F.3d 1257
Parties(10th Cir. 1999) DION A. SMALLWOOD, Petitioner - Appellant, v. GARY GIBSON, Warden, Oklahoma State Penitentiary; ATTORNEY GENERAL OF THE STATE OF OKLAHOMA, Respondents - Appellees
CourtU.S. Court of Appeals — Tenth Circuit

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[Copyrighted Material Omitted] K. Leslie Delk, Norman, Oklahoma, appearing for Petitioner-Appellant.

Seth S. Branham, Oklahoma Attorney General Office (W.A. Drew Edmondson, Attorney General of Oklahoma, and William L. Humes, Assistant Attorney General, on the brief), Oklahoma City, Oklahoma, appearing for Respondents-Appellees.

Before PORFILIO, ANDERSON, and TACHA, Circuit Judges.

TACHA, Circuit Judge.

Following a jury trial in the Oklahoma County District Court, petitioner Dion A. Smallwood was convicted of First Degree Murder and Third Degree Arson in May of 1993. Mr. Smallwood received a capital sentence for the murder conviction and fifteen years imprisonment and a $10,000 fine for the arson conviction. The Oklahoma Court of Criminal Appeals ("OCCA") upheld both convictions and sentences. See Smallwood v. State, 907 P.2d 217 (Okla. Crim. App. 1995). On November 12, 1996, the United States Supreme Court denied certiorari. See Smallwood v. Oklahoma, 519 U.S. 980 (1996). Mr. Smallwood filed an application for post-conviction relief with the OCCA on December 9, 1996. The OCCA denied Mr. Smallwood's application on April 15, 1997. See Smallwood v. State, 937 P.2d 111 (Okla. Crim. App. 1997). On February 17, 1998, Mr. Smallwood filed a petition for a writ of habeas corpus in the United States District Court for the Western District of Oklahoma pursuant to 28 U.S.C. § 2254, asserting twenty-six grounds for relief from his state convictions and sentences. The district court denied Mr. Smallwood's habeas petition on August 4, 1998, and it granted a certificate of appealability for all issues raised on appeal.

Petitioner asserts the following grounds for relief: (1) the state courts erroneously denied Mr. Smallwood's motion to suppress evidence acquired as the result of an illegal detention; (2) the federal district court erred in denying Mr. Smallwood an evidentiary hearing on his ineffective assistance of counsel claims; (3) petitioner's counsel was constitutionally ineffective at the trial, sentencing, appellate, and post-conviction stages; (4) the trial court violated petitioner's constitutional rights by failing to instruct the jury that mitigating factors need not be found unanimously; (5) the jury instructions given by the trial court were unconstitutional because they permitted the jury to ignore mitigating evidence; (6) the jury instructions were constitutionally impermissible because they failed to state that, to impose a capital sentence, the jury must find aggravating factors outweigh mitigating factors beyond a reasonable doubt; (7) the trial court violated petitioner's constitutional rights by failing to instruct the jury that there is a presumption of life in death penalty cases; (8) the jury instructions were unconstitutional because they did not properly limit the jury's consideration of sympathy to the defendant, rather than the decedent; (9) the trial court violated petitioner's constitutional rights by failing to instruct the jury that it had the option of imposing a life sentence even if it found aggravating factors outweighed mitigating factors; (10) Oklahoma's "heinous, atrocious, and cruel" aggravating factor is unconstitutional, and the evidence did not support such a factor; (11) prejudicial photographs of the decedent's burned corpse admitted into evidence rendered Mr. Smallwood's trial fundamentally unfair; (12) prosecutorial misconduct tainted petitioner's trial; (13) Mr. Smallwood was denied a fair trial because evidence of other crimes and bad acts was admitted at both the trial and sentencing stages; (14) Mr. Smallwood was found competent to stand trial under an unconstitutional standard; and (15) petitioner's constitutional rights were violated because defense counsel was unaware of ex parte communications from the jury to the trial court judge until after the fact. We affirm.

We do not attempt to present a full summary of the facts underlying this case, for they are adequately set forth in the OCCA's opinion on appeal. See Smallwood, 907 P.2d at 222-23. Instead, we mention only those facts pertinent to our analysis of the issues on appeal.

Standard of Review

When reviewing the denial of a habeas corpus petition, we are generally subject to two different frameworks of review, depending upon whether the state courts addressed the merits of the claim for relief. If the state courts have not heard the claim on its merits, we review the district court's legal conclusions de novo and its factual findings, if any, for clear error.1 See, e.g., Newsted v. Gibson, 158 F.3d 1085, 1089 (10th Cir.), cert. denied, 119 S. Ct. 1509 (1999). If the state courts have addressed the claim on its merits, we review the state court ruling under the standard enunciated in 28 U.S.C. § 2254. Because Mr. Smallwood filed his habeas petition on February 18, 1998, after the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub. L. No. 104-132, 110 Stat. 1214 (1996), we apply the provisions of 28 U.S.C. § 2254, as amended by AEDPA. See, e.g., Hooks v. Ward, 184 F.3d 1206, (10th Cir. 1999). Under these provisions, a federal court is precluded from granting habeas relief on any claim adjudicated on the merits by the state court, unless the state proceeding "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court," 28 U.S.C. § 2254(d)(1), or "resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding," id. § 2254(d)(2).2 In addition, we presume the factual findings of the state court are correct unless petitioner can rebut this presumption by clear and convincing evidence. See id. § 2254(e)(1).

I. Fourth Amendment Violation

Petitioner first argues that his conviction stemmed from evidence obtained as the result of an unconstitutional detention. The district court found that the Supreme Court's decision in Stone v. Powell, 428 U.S. 465 (1976), barred petitioner's claim. Under Stone, habeas relief shall not be granted on the ground that the trial court admitted evidence obtained in violation of the Fourth Amendment despite the judicially-created exclusionary rule, provided that the defendant had an opportunity for full and fair litigation of the Fourth Amendment claim. See id. at 481-82. We review de novo whether a petitioner had an opportunity for full and fair litigation of his or her Fourth Amendment claim in state court. See Miranda v. Cooper, 967 F.2d 392, 401 (10th Cir. 1992). Nothing in the record indicates that Mr. Smallwood was deprived of such an opportunity. To the contrary, petitioner filed a motion to suppress the evidence resulting from his alleged unlawful seizure and repeatedly objected to the admission of this evidence before the Oklahoma County District Court.3 Petitioner's trial counsel adequately apprised the court of the factual basis for Mr. Smallwood's Fourth Amendment claim. Furthermore, petitioner's appellate counsel presented the issue to the OCCA on direct appeal. The state courts thoughtfully considered the facts underlying petitioner's Fourth Amendment claim and rejected the claim on its merits, applying the appropriate Supreme Court precedent and finding no unconstitutional detention. See Smallwood v. State, 907 P.2d 217, 224-26 (Okla. Crim. App. 1995). Under these circumstances, we agree with the district court that the rule announced in Stone bars habeas relief on this claim. See Miranda, 967 F.2d at 401; cf. Gamble v. Oklahoma, 583 F.2d 1161, 1165 (10th Cir. 1978) (finding Stone did not bar habeas review where state court refused to recognize or apply Supreme Court precedent directly on point).

II. Failure to Grant an Evidentiary Hearing

Before the federal district court, Mr. Smallwood requested an evidentiary hearing to develop an adequate factual record regarding his ineffective assistance of counsel claims. Particularly, he wished to ferret out whether his counsel's decisions were tactical, whether his counsel failed to fully investigate and prepare mental health issues that support his defense theory and provide mitigation evidence, and whether his appellate counsel had a conflict of interest. Generally, under the AEDPA, if a petitioner has failed to develop the factual basis of his habeas claim in state court, he is not entitled to a federal evidentiary hearing unless he initially shows: (1) the claim relies on a "new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable," 28 U.S.C. § 2254(e)(2)(A)(I), or (2) "a factual predicate that could not have been previously discovered through the exercise of due diligence," id. § 2254(e)(2)(A)(ii). The district court found that Mr. Smallwood had not met the requirements of § 2254(e)(2) and denied petitioner's request for an evidentiary hearing.

We agree with the district court that Mr. Smallwood has failed to satisfy § 2254(e)(2)'s requirements. Petitioner's ineffective assistance of counsel claims are not based on a new rule of constitutional law, and the factual basis for the claims could have been discovered with the exercise of due diligence in state court. However, in Miller v. Champion, 161 F.3d 1249, 1253 (10th Cir. 1998), we recently held that § 2254(e)(2)'s restrictions on an evidentiary hearing do...

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