Snow v. Sirmons, 02-7027.

CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)
Writing for the CourtSeymour
Citation474 F.3d 693
PartiesRocky Dale SNOW, Petitioner-Appellant, v. Marty SIRMONS, Warden, Oklahoma State Penitentiary, Respondent-Appellee.
Docket NumberNo. 02-7027.,02-7027.
Decision Date08 January 2007
474 F.3d 693
Rocky Dale SNOW, Petitioner-Appellant,
Marty SIRMONS, Warden, Oklahoma State Penitentiary, Respondent-Appellee.
No. 02-7027.
United States Court of Appeals, Tenth Circuit.
January 8, 2007.

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Kristi Christopher, Assistant Federal Public Defender, Oklahoma City, OK, for Petitioner-Appellant.

Preston Draper, Assistant Attorney General, State of Oklahoma (W.A. Drew Edmondson, Attorney General, and Seth S. Branham, Assistant Attorney General, State of Oklahoma, on the briefs), Oklahoma City, OK, for Respondent-Appellee.

Before HENRY, SEYMOUR, and EBEL, Circuit Judges.

SEYMOUR, Circuit Judge.

Rocky Dale Snow seeks federal habeas relief pursuant to 28 U.S.C. § 2254 to challenge his Oklahoma state court conviction and sentence for unauthorized use of a motor vehicle, assault and battery with a deadly weapon, and murder in the first degree. He claims he received ineffective assistance of trial and appellate counsel

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under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and that the state suppressed exculpatory and material evidence in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). The district court denied relief and Rocky appeals.1 Exercising jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253, we affirm.


Rocky filed his habeas petition after the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). We are therefore bound by the provisions of that statute. McGregor v. Gibson, 248 F.3d 946, 951 (10th Cir. 2001). Pursuant to AEDPA, our review of Rocky's claims for relief is determined by how those issues were addressed by the state courts. LaFevers v. Gibson, 182 F.3d 705, 711 (10th Cir.1999).

Where the state court has addressed a petitioner's claims on the merits, habeas relief will only be granted where 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; 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." 28 U.S.C. § 2254(d)(1), (2). The Supreme Court noted that when Congress drafted this portion of the statute, it

specifically used the word "unreasonable," and not a term like "erroneous" or "incorrect." Under § 2254(d)(1)'s "unreasonable application" clause, then, a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable.

Williams v. Taylor, 529 U.S. 362, 411, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). We are thus precluded from granting habeas relief where we conclude the state court was merely erroneous or incorrect in its application of federal law. Rather, we may grant relief only when we are convinced the state court's application of federal law goes beyond being erroneous and instead becomes objectively unreasonable. McLuckie v. Abbott, 337 F.3d 1193, 1197 (10th Cir.2003). This standard does not require our "abject deference," id. at 1202 n. 5, but nonetheless prohibits us from substituting our "own judgment for that of the state court." Woodford v. Visciotti, 537 U.S. 19, 25, 123 S.Ct. 357, 154 L.Ed.2d 279 (2002). In addition, factual findings made by the state court are presumed to be correct unless rebutted by the petitioner with clear and convincing evidence. Smith v. Mullin, 379 F.3d 919, 925 (10th Cir.2004).

"To the extent that the state court has not addressed the merits of a claim and

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`the federal district court made its own determination in the first instance,' this court reviews `the district court's conclusions of law de novo and its findings of fact, if any, for clear error.'" Cannon v. Gibson, 259 F.3d 1253, 1260 (10th Cir. 2001) (quoting LaFevers, 182 F.3d at 711). "If the district court's factual findings depend entirely on the state court record, we independently review that record." Allen v. Mullin, 368 F.3d 1220, 1234 (10th Cir. 2004) (citations omitted).

AEDPA also governs Rocky's ability to obtain a remand to the district court for an evidentiary hearing on his claims. Section 2254(e)(2) of the statute provides that

[i]f the applicant has failed to develop the factual basis of a claim in State court proceedings, the court shall not hold an evidentiary hearing on the claim unless the applicant shows that — (A) the claim relies on — (i) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or (ii) a factual predicate that could not have been previously discovered through the exercise of due diligence; and (B) the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.

28 U.S.C. § 2254(e)(2) (emphasis added). Section 2254(e)(2) does not apply, however, where a petitioner has diligently sought to develop the factual basis underlying his habeas petition. A petitioner is diligent when he requests an evidentiary hearing and presents evidence "that would be readily available if the claim were true," Cannon v. Mullin, 383 F.3d 1152, 1177 (10th Cir.2004), but his request is nonetheless denied, Miller v. Champion, 161 F.3d 1249, 1253 (10th Cir.1998). In such settings, an evidentiary hearing is warranted so long as the petitioner's "allegations, if true and not contravened by the existing factual record, would entitle him to habeas relief." Id. With these standards in mind, we turn to the facts presented at Rocky's trial.


Rocky's case was tried to a jury over a five-day period. The evidence presented at trial indicated that around 10:30 a.m. on December 8, 1988, a young man entered the office of the 12th Street Flea Market in Ada, Oklahoma. Betty Bush ran the flea market and was in the office that morning along with Richard Newland and Wayne Russell.

The young man had "a full head of ... blondish ... light brown hair," which "seemed to be a little fluffed up or disheveled ... by the wind that day." Tr. at 304, 422.2 According to Newland, the man was wearing jeans and a gray or dark blue t-shirt. He was a "comparatively young man ... [and] was probably near six feet tall." Id. at 304. Newland speculated the

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man weighed between 170 to 175 pounds. The man seemed to be in a hurry and "kind of held his neck like maybe he had a crick in [it]" over to the right side. Id. at 307.

Russell testified the man was wearing a "gray-hooded, zip-up-the-front sweatshirt, faded blue jeans, [and] a dark shirt. He was roughly 5'11", 6', [and] weighed about a hundred and seventy-five to eighty pounds." Id. at 422, 433. Russell also commented that the man's "eyes had a weird look to them," id. at 423, and that "when he came into the office, he had his head tilted way back." Id.3

The young man asked Bush if he could see some bedding. [Id. at 307.] She left the office and led the man in the direction of the flea market storage unit containing mattresses and bedding. A few minutes later, the man returned to the office in what appeared to be a slightly agitated state and asked Newland for further assistance. Newland left the office, and the young man followed him to the bedding unit. As Newland entered the unit, the man grabbed his shoulder, started to turn him around, and began to strike him with a knife. Newland suffered blows to his head, forehead, neck, and left hand. Newland testified that his orientation to the assailant was somewhere between "profile[] and face-to-face." Id. at 335. For a brief period of time during the assault, he was "nose-to-nose with the man." Id. at 337. Newland commented while hospitalized and recovering from his wounds that he would "never forget that face." Id.

After stabbing Newland several times, the assailant ran out of the storage unit. Newland did not immediately see Bush and feared she was also injured. He was bleeding profusely and was afraid he might lose consciousness, so he returned to the office and asked Russell to call the police for help. The police logged their receipt of the flea market call at 10:47 a.m., and they arrived at the scene almost immediately along with emergency medical personnel.

Bush was found wedged between a mattress and box springs in the storage unit. She had suffered stab wounds to her head, face, chest, back, and right arm. The top pocket of her coat was ripped, and loose change was found on the ground around her. Medical personnel were able to stabilize her temporarily, but soon thereafter she died from her wounds. Newland was hospitalized for about five days. The weapon was never found, but a medical examiner determined it was a single-edged knife, about one half-inch wide and at least three inches long.

Sometime after 10 a.m. that morning, Houston Owens, who worked at an establishment across the street from the flea market, observed a man drive up to the flea market and park a faded or dull red Chevrolet pickup. The man was wearing a gray hooded sweatshirt. Owens watched the man walk to the south end of the flea market building and disappear. About fifteen

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to twenty minutes later, the man returned, jumped into the truck and drove away in a hurry.

That same morning, Jerry Breeden, a mechanic who had a shop near the flea market, heard a truck speeding down the street. He went outside to observe the vehicle and saw a "reddish-brown Chevrolet pickup heading south, running stop signs as it was going." Id. at 548. Owens testified to observing the same. After being shown a photograph of a J.B. Stallings Construction Company (Stallings) truck, Breeden identified the...

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