Torres v. Mullin, No. 00-6334.

• Decision Date: 23 January 2003
• Docket Number: No. 00-6334.
• Citation: 317 F.3d 1145
• Parties: Osbaldo TORRES, Petitioner-Appellant, v. Mike MULLIN, Warden, Oklahoma State Penitentiary, Respondent-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1145

317 F.3d 1145

Osbaldo TORRES, Petitioner-Appellant, v. Mike MULLIN, Warden, Oklahoma State Penitentiary, Respondent-Appellee.

No. 00-6334.

United States Court of Appeals, Tenth Circuit.

January 23, 2003.

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Mark Henricksen (and Lanita Henricksen, with him on the briefs), Henricksen & Henricksen Lawyers, Inc., El Reno, OK, for Petitioner-Appellant.

Jennifer B. Miller, Assistant Attorney General (and W.A. Drew Edmondson, Attorney General, with her on the brief), Oklahoma City, OK, for Respondent-Appellee.

Before KELLY, HENRY, and MURPHY, Circuit Judges.

PAUL KELLY, JR., Circuit Judge.

An Oklahoma jury convicted Osbaldo Torres of two counts of first-degree murder with malice aforethought and one count of first-degree burglary. Mr. Torres received a sentence of twenty years' imprisonment on the burglary conviction and sentences of death on the two murder convictions. The Oklahoma Court of Criminal Appeals ("OCCA") affirmed his convictions and sentences. See Torres v. State, 962 P.2d 3 (Okla. Crim.App. 1998).

After exhausting his state post-conviction remedies, Mr. Torres filed a petition for habeas corpus pursuant to 28 U.S.C. § 2254. Mr. Torres's petition asserted twenty-six grounds for relief. The district court denied the petition, and Mr. Torres then sought to appeal to this court. He obtained a certificate of appealability on the following claims: (1) that the evidence is insufficient to support his convictions; (2) that the trial court erred in instructing the jury on the elements of aiding and abetting; (3) that the prosecution engaged in misconduct that warrants a new trial or, in the alternative, a new sentencing proceeding; (4) that the prosecution destroyed potentially exculpatory fingerprint samples; (5) that Mr. Torres's death sentence violates the Eighth Amendment because the trial court's instructions failed to direct the jury to give individualized consideration to Mr. Torres's involvement in the homicides; and (6) that he was entitled to an evidentiary hearing. Although Mr. Torres attempts to raise other claims on which a COA was not granted, we do not consider them. We affirm.¹

Background

In July 1993, the District Attorney for Oklahoma County, Oklahoma filed an information charging Mr. Torres and Jorge Ochoa with the murder of Maria Yanez and Francisco Morales and the burglary of Ms. Yanez's and Mr. Morales' home in Oklahoma City. The prosecution's initial information set forth alternative murder charges. First, the information charged each defendant with murdering Ms. Yanez and Mr. Morales with malice aforethought, in violation of Okla. Stat. tit. 21, § 701.7(A). In the alternative, the information alleged that the defendants had committed felony murder, in violation of Okla. Stat. tit. 21, § 701.7(B). The initial information also alleged that the defendants had committed burglary in the first degree, in violation of Okla. Stat. tit. 21, § 1431.

In October 1995, the prosecution filed an amended information that omitted the felony murder charges. See State Ct. Rec. vol. II, at 338-42 (Second Amended Information, filed Oct. 5, 1995). The case proceeded to trial in the District Court for Oklahoma County, but the judge declared a mistrial after the jury was unable to reach a verdict. In February and March 1996, the Oklahoma district court conducted a second trial. The jury convicted Mr. Torres and Mr. Ochoa of (1) two counts of first-degree murder with malice aforethought and (2) one count of first-degree burglary.

In its opinion in the direct appeal of Mr. Torres's convictions, the OCCA set forth the following explanation of the evidence presented to the jury during the second trial:

During the early morning hours [2:40 a.m.] of July 12, 1993, Francisco Morales and his wife, Maria Yanez, were shot and killed in the bedroom of their Oklahoma City home. The sound of gunfire woke Yanez's daughter Christina, who was 14 years old in the summer of 1993. Christina called 911 and told the operator that she believed her step-father, Morales, may have been firing the gun. After hanging up the telephone, she looked out her bedroom door. A light was on in the living room; Christina saw two men. One man was wearing a white t-shirt and the other man was wearing a black t-shirt. Christina stated the man in the black t-shirt had something in his hand, but she did not know what it was. Christina initially denied knowing the two men, but eventually identified Ochoa as the man in the black t-shirt and Torres as the man in the white t-shirt.

The shooting also awakened Christina's step-brother, Francisco, who was eleven years old in the summer of 1993. Francisco saw the man in the black t-shirt shoot his father. He could not identify the gunman.

The police quickly responded to Christina's 911 call. While en route to the Yanez/Morales home, Officer Coats arrested Torres and Ochoa, who were walking together a short distance from the homicide. The men were sweating and nervous, and Coats claimed he observed blood on the clothing of the men. Subsequent tests revealed the presence of blood on Torres' clothes.

Shortly before the shootings, Torres and Ochoa parked a car at a friend's house. A witness observed one of the men take a gun from the trunk of the car and put it in his pants. The gun was different from the gun used in the murders. The witness stated one of the men was Ochoa. She could not identify the other man, but asserted the other man — and not Ochoa — put the gun in his pants. Another witness also testified that Ochoa and another man parked the car at the friend's house. This witness testified that Ochoa was the driver of the car. The witness also identified Torres as the man with Ochoa, although she was somewhat inconsistent in her identification, and she stated the passenger was wearing a white t-shirt.

Torres, 962 P.2d at 8. The prosecution "proceeded under the theory that Torres aided and abetted in the commission of the crimes and that Ochoa was most likely the triggerman." Torres, 962 P.2d at 15.

After the jury convicted Mr. Torres and Mr. Ochoa, the prosecution presented evidence in support of the death penalty. As to Mr. Torres, the prosecution argued that there were two aggravating circumstances: (1) that it was probable that Mr. Torres would commit criminal acts of violence that would constitute a continuing threat to society and (2) that Mr. Torres knowingly created a great risk of death to more than one person. As to the former, the prosecution invoked the circumstances of the murders, Mr. Torres's membership in a local gang, and an unadjudicated burglary committed when Mr. Torres was a juvenile. In mitigation, the defense presented Mr. Torres's personal history and pleas of mercy from his family.

As to Mr. Torres, the jury found the existence of both aggravating circumstances and imposed the death penalty for the murder convictions. Mr. Ochoa also received the death penalty. See Ochoa v. State, 963 P.2d 583 (Okla.Ct.Crim.App. 1998). As to the burglary conviction, both Mr. Torres and Mr. Ochoa received sentences of twenty years' imprisonment.

Discussion

Because Mr. Torres filed his § 2254 habeas petition in the federal district court on June 30, 1999, well after the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), we consider Mr. Torres's petition under the standards set forth in the provisions of 28 U.S.C. § 2254(d) and (e), as amended by AEDPA.² See Moore v. Gibson, 195 F.3d 1152, 1160-61 (10th Cir.1999). Section 2254(d) provides that an application for a writ of habeas corpus filed by a state prisoner:

shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim —

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or

(2) 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). Section 2254(e)(1) adds that, in federal habeas proceedings filed by state prisoners, determinations of factual issues by state courts are presumed correct. The petitioner has the burden of rebutting this presumption of correctness by clear and convincing evidence. See 28 U.S.C. § 2254(e)(1).

In Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000), the Supreme Court provided guidance as to when a state court decision may be deemed "contrary to" or "an unreasonable application of" established Supreme Court precedent pursuant to section 2254(d)(1). As to the former term, the Court explained that a state court decision is "contrary to" the Court's clearly established precedent in two circumstances: (1) when "the state court applies a rule that contradicts the governing law set forth in [the Court's] cases"; and (2) when "the state court confronts a set of facts that are materially indistinguishable from a decision of [the] Court and nevertheless arrives at a result different from" the result reached by the Supreme Court. Williams, 529 U.S. at 405-06, 120 S.Ct. 1495. As to the latter term, the Court explained that a state court decision constitutes an unreasonable application of Supreme Court precedent if "the state court identifies the correct governing legal principle from [the] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. at 413, 120 S.Ct. 1495. Thus, "[u]nder § 2254(d)(1)'s" "unreasonable application' clause, ... 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." Id. at 411, 120...