Smith v. Massey

• Decision Date: 19 December 2000
• Docket Number: No. 99-7143,99-7143
• Citation: 235 F.3d 1259
• Parties: (10th Cir. 2000) LOIS NADEAN SMITH, Petitioner-Appellant, v. NEVILLE MASSEY, Warden, Oklahoma State Penitentiary, Respondent-Appellee
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1259

235 F.3d 1259 (10th Cir. 2000)

LOIS NADEAN SMITH, Petitioner-Appellant, v. NEVILLE MASSEY, Warden, Oklahoma State Penitentiary, Respondent-Appellee.

No. 99-7143

UNITED STATES COURT OF APPEALS TENTH CIRCUIT

December 19, 2000

Appeal from the United States District Court for the Eastern District of Oklahoma. (D.C. No. CIV-97-219-S) [Copyrighted Material Omitted]

[Copyrighted Material Omitted]

[Copyrighted Material Omitted] Gregory R. Piche, of Holland & Hart, Denver, Colorado, and Randy Bauman, Assistant Federal Public Defender, Oklahoma City, Oklahoma, for the appellant.

Jennifer B. Miller, Assistant Attorney General (W.A. Drew Edmondson, Attorney General, with her on the brief), Oklahoma City, Oklahoma, for the appellee.

Before BRORBY, EBEL, and BRISCOE, Circuit Judges.

BRISCOE, Circuit Judge.

Petitioner Lois Nadean Smith, an Oklahoma state prisoner convicted of first degree murder and sentenced to death, appeals the district court's denial of her 28 U.S.C. 2254 petition for writ of habeas corpus. We exercise jurisdiction pursuant to 28 U.S.C. 1291 and affirm.

I.

The following is a summary of the underlying facts, as recounted by the Oklahoma Court of Criminal Appeals (OCCA) in disposing of Smith's direct appeal:

The evidence shows that the appellant, her son Greg, and Teresa Baker [DeMoss] picked up Cindy Baillee at a Tahlequah motel early on the morning of July 4, 1982. Baillee had been Greg's girlfriend, but allegedly had made threats to have him killed.

As the group drove away from the motel, appellant confronted Ms. Baillee with rumors that she had arranged for Greg's murder. When Ms. Baillee denied making any threats or arrangements, appellant choked the victim and stabbed her in the throat with a knife found in the victim's purse. The car traveled to the home of Jim Smith, the appellant's ex-husband and Greg's father in Gans, Oklahoma. Present at the house were Smith and his wife Robyn. [Robyn] left shortly after the group arrived.

While at the Smith house, appellant forced Ms. Baillee to sit in a recliner chair. She then threatened to kill Ms. Baillee, and taunted her with a pistol. Finally, appellant fired a shot into the recliner, near Ms. Baillee's head. She then fired a series of shots at Ms. Baillee, and the wounded victim fell to the floor. As Greg Smith reloaded the pistol, appellant laughed while jumping on the victim's neck. Appellant took the pistol from Greg and fired four more bullets into the body. A subsequent autopsy showed Ms. Baillee had been shot five times in the chest, twice in the head, and once in the back. Five of these gunshot wounds were fatal. The knife wound was also potentially fatal.

Smith v. State, 727 P.2d 1366, 1368 (Okla. Crim. App. 1986) (Smith I), cert. denied, 483 U.S. 1033 (1987).

Smith and her son Greg were charged in the District Court of Sequoyah County, Oklahoma with murder in the first degree. Pursuant to defense counsel's motion, the cases against Smith and her son were severed for purposes of trial. Smith's case proceeded to trial on December 6, 1982. At the conclusion of the first-stage proceedings, the jury found Smith guilty of murder in the first degree. At the conclusion of the second-stage proceedings, the jury found the existence of two aggravating factors: (1) the murder was especially heinous, atrocious or cruel; and (2) Smith knowingly created a great risk of death to more than one person, and fixed Smith's sentence at death. Smith was formally sentenced by the state district court on December 29, 1982.

The OCCA affirmed Smith's conviction and sentence on direct appeal. Smith I, 727 P.2d at 1374. Smith filed an application for state post-conviction relief, which was denied after an evidentiary hearing. The denial of post-conviction relief was affirmed by the OCCA. Smith v. State, 915 P.2d 927, 931 (Okla. Crim. App.) (Smith II), cert. denied, 519 U.S. 970 (1996).

Smith filed her petition for writ of habeas corpus in federal district court on April 14, 1997, asserting six grounds for relief. She subsequently filed an amended petition asserting ten grounds for relief. The magistrate court conducted an evidentiary hearing on the issue of whether Smith was advised by trial counsel of a potential conflict of interest arising out of counsel's representation of both Smith and her son and, if so, whether Smith knowingly and voluntarily waived any such conflict. In its order issued after the hearing, the magistrate court found that Smith was adequately advised of the potential for a conflict of interest and knowingly and voluntarily waived any such conflict of interest. The district court adopted the findings and recommendations of the magistrate regarding the conflict of interest issue and denied Smith's petition for writ of habeas corpus in its entirety. The district court granted Smith a certificate of appealability (COA) with respect to four issues. This court subsequently expanded the COA to include two additional issues.

II.

Because Smith's federal habeas petition was filed after the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), it is governed by the provisions of the AEDPA. Wallace v. Ward, 191 F.3d 1235, 1240 (10th Cir. 1999), cert. denied, 120 S. Ct. 2222 (2000). Under the AEDPA, the appropriate standard of review for a particular claim hinges on the treatment of that claim by the state courts. If a claim was not decided on the merits by the state courts, and is not otherwise procedurally barred, this court may exercise its independent judgment in deciding the claim. See LaFevers v. Gibson, 182 F.3d 705 711 (10th Cir. 1999). In doing so, this court reviews the federal district court's conclusions of law de novo and its findings of fact, if any, for clear error. Id. If a claim was adjudicated on its merits by the state courts, the petitioner will be entitled to federal habeas relief only if he can establish that the state court decision "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," 28 U.S.C. 2254(d)(1), or "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." Id. 2254(d)(2). "Thus, [this court] may grant the writ if [it] find[s] the state court arrived at a conclusion opposite to that reached by the Supreme Court on a question of law; decided the case differently than the Supreme Court has on a set of materially indistinguishable facts; or unreasonably applied the governing legal principle to the facts of the prisoner's case." Van Woudenberg v. Gibson, 211 F.3d 560, 566 (10th Cir. 2000) (citing Williams v. Taylor, 120 S. Ct. 1495, 1523 (2000)).

Ineffective assistance of trial counsel - conflict of interest

Smith contends she was denied her Sixth Amendment right to effective assistance of counsel because her attorney, Monte Strout, simultaneously represented her and her son Greg against the murder charges even though they had conflicting interests. According to Smith, "there was ample evidence Greg wanted Baillee killed and manipulated [Smith's] maternal protective instincts to accomplish that end." Smith's Opening Br. at 15. Due to the conflict of interest, however, Smith alleges that Strout failed to develop this theme at Smith's trial, "consistently attempted to exclude evidence pointing to Greg's culpability," and "consistently underemployed such evidence that came in naturally as witnesses related events." Id. The result, Smith argues, was that "the State had free rein to assert [she] was the embodiment of maniacal evil," which in turn resulted in the jury sentencing her to death. Id.

A criminal defendant's Sixth Amendment right to effective assistance of counsel, which is rooted in "the fundamental right to a fair trial," Strickland v. Washington, 466 U.S. 668, 684 (1984), includes the right to conflict-free representation. Cuyler v. Sullivan, 446 U.S. 335, 350 (1980). This right is unaffected by a defendant's decision to retain his or her own counsel. See Stouffer v. Reynolds, 168 F.3d 1155, 1161 (10th Cir. 1999). As the Supreme Court has noted, "[t]he vital guarantee of the Sixth Amendment would stand for little if the often uninformed decision to retain a particular lawyer could reduce or forfeit the defendant's entitlement to constitutional protection." Cuyler, 446 U.S. at 344.

Where, as here, a defendant raises no objection at trial, her later assertion that her counsel was representing potentially conflicting interests is insufficient to establish a Sixth Amendment violation. Id. at 348. Instead, "[i]n order to establish a violation of the Sixth Amendment [right to effective counsel], a defendant who raised no objection at trial must demonstrate that an actual conflict of interest adversely affected h[er] lawyer's performance." Id. (emphasis added). "During joint representation, an actual conflict of interest arises if the codefendants' interests 'diverge with respect to a material factual or legal issue or to a course of action.'" Edens v. Hannigan, 87 F.3d 1109, 1114 (10th Cir. 1996) (quoting Cuyler, 446 U.S. at 356 n. 3). "The adverse performance requirement is satisfied if the attorney took action on behalf of one client that was necessarily adverse to the defense of the other or failed to take action on behalf of one because it would adversely affect the other." Wilson v. Moore, 178 F.3d 266, 280 (4th Cir.) (internal quotations omitted), cert. denied, 120 S. Ct. 191 (1999). If a defendant asserting an ineffective assistance of counsel claim based on conflict of interest is able to make these showings, "[p]rejudice is presumed and the applicant is entitled to relief." Id.

Smith first raised the conflict of interest issue in her direct appeal. In particular, Smith argued that "the possibility of a conflict of interest was apparent to the trial judge and he should have taken action to...