Turrentine v. Mullin
| Citation | 390 F.3d 1181 |
| Decision Date | 01 December 2004 |
| Docket Number | No. 03-5028.,03-5028. |
| Parties | Kenneth Eugene TURRENTINE, Petitioner-Appellant, v. Mike MULLIN, Warden, Respondent-Appellee. |
| Court | United States Courts of Appeals. United States Court of Appeals (10th Circuit) |
Stephen J. Greubel, Tulsa, OK, for Petitioner-Appellant.
Robert L. Whittaker, Assistant Attorney General, Criminal Division (W.A. Drew Edmondson, Attorney General of Oklahoma, with him on the brief), for Respondent-Appellee.
Before LUCERO, McCONNELL, and TYMKOVICH, Circuit Judges.
Currently on death row in the State of Oklahoma, Petitioner Kenneth E. Turrentine ("Mr. Turrentine" or "Petitioner") appeals the final order of the United States District Court for the Northern District of Oklahoma, which denied him a writ of habeas corpus on his petition filed pursuant to 28 U.S.C. § 2254. Mr. Turrentine was convicted in the Oklahoma courts on four counts of first degree murder. On three of those counts, he was sentenced to death; on the remaining count, he was sentenced to life in prison without the possibility of parole. He is currently an inmate of the Oklahoma State Penitentiary under the custody of Warden Mike Mullin. For the reasons set forth below, we reverse in part and affirm in part the decision of the district court.
The facts as found by the state court are, pursuant to 28 U.S.C. § 2254(e)(1), presumed correct. We recite them as adopted by the Oklahoma Court of Criminal Appeals, although we present additional facts throughout this opinion as they become pertinent to our analysis. See generally Turrentine v. State of Oklahoma, 965 P.2d 955 (Okla.Crim.App.1998) ("Turrentine I").
The facts of this case are both sad and horrific. On June 4, 1994, Mr. Turrentine killed his sister Avon Stevenson, his estranged girlfriend Anita Richardson, and Ms. Richardson's two children, thirteen year old Martise Richardson ("Martise") and twenty-two year old Tina Pennington, sometimes referred to in the briefs and record as Tina Richardson ("Tina"). See Turrentine I, 965 P.2d at 963. For three months leading up to the deadly events of that June, Mr. Turrentine and Ms. Richardson had been experiencing such problems in their relationship that Mr. Turrentine had moved out of the home they once shared. (T. Tr. 531.) Mr. Turrentine moved in with his sister Ms. Stevenson. Id.
While separated from Ms. Richardson and living with his sister, Mr. Turrentine began to believe that Ms. Richardson was having an affair with two other men, and that his sister, Ms. Stevenson, knew of these affairs because she was apparently a friend and confidant of Ms. Richardson's. (T. Tr. 532); see also Turrentine I, 965 P.2d at 963. Whether true or not, he also came to believe that Ms. Richardson and Ms. Stevenson were cheating him out of money, to support their drug habits. (T. Tr. 532-33); see also Turrentine I, 965 P.2d at 963.
On June 3, 1994, the day before the murders, Mr. Turrentine telephoned his ex-wife, Catherine Turrentine, and told her that he was at Ms. Richardson's house and that things were "about to come to a head." (T. Tr. 562). That same day, he asked his ex-wife to return to him a .22 caliber pistol, but she refused. (T. Tr. 561); see also Turrentine I, 965 P.2d at 963. He returned to make the same request the next morning, June 4, 1994, and this time his ex-wife gave Mr. Turrentine the loaded pistol. (T. Tr. 562-63); see also Turrentine I, 965 P.2d at 963.
Later in the day on June 4, 1994, Mr. Turrentine confronted his sister about Ms. Richardson's supposed affairs, and an argument ensued. (T. Tr. 532); see also Turrentine I, 965 P.2d at 963. Ms. Stevenson apparently laughed in Mr. Turrentine's face during this argument and called him a "punk." (T. Tr. 532); see also Turrentine I, 965 P.2d at 963. In response, Mr. Turrentine placed the .22 caliber pistol to Ms. Stevenson's head and fired; she died at the scene. (T. Tr. 532); see also Turrentine I, 965 P.2d at 964.
Mr. Turrentine then drove to Ms. Richardson's house, where the two began to argue. (T. Tr. 532); see also Turrentine I, 965 P.2d at 963. As they argued, they moved from the front to the back bedroom of the house and, after more argument and struggle, Mr. Turrentine shot Ms. Richardson in the head. She died at the scene. (Tr. 532); see also Turrentine I, 965 P.2d at 963. He subsequently shot both Martise and Tina in the head, and they died at the scene as well. Id.
After this carnage, Mr. Turrentine talked to a 911 operator and declared that he had shot his "ol lady," his kids, and his sister. (State's Ex. No. 17); see also Turrentine I, 965 P.2d at 964. When officers arrived at the scene, they immediately took Mr. Turrentine into custody and advised him of his rights under Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Mr. Turrentine waived his rights and told the officers that he had shot his sister, his estranged girlfriend, and his girlfriend's two children. (T. Tr. 531-33); see also Turrentine I, 965 P.2d at 964. A medical examiner later confirmed that Ms. Stevenson, Ms. Richardson, Martise, and Tina had all died from gunshot wounds to the head.
Mr. Turrentine was tried before a jury in Tulsa County District Court and was convicted of four counts of first degree murder for the killings of Ms. Richardson (count one), Martise (count two), Tina (count three), and Ms. Stevenson (count four). At the penalty phase of the trial the jury found that three aggravating circumstances existed beyond a reasonable doubt as to counts one, two, and three: 1) that the murders were especially heinous, atrocious, or cruel; 2) that Mr. Turrentine knowingly created a great risk of death to more than one person; and 3) that there existed a probability that Mr. Turrentine would constitute a continuing threat to society. As a result, the jury returned sentences of death for each of the first three counts. As to count four, the jury found two aggravating circumstances beyond a reasonable doubt and returned a verdict of life without the possibility of parole.
The Oklahoma Court of Criminal Appeals ("OCCA") affirmed all four of Mr. Turrentine's convictions and sentences. Turrentine I, 965 P.2d 955. The United States Supreme Court denied Mr. Turrentine's petition for writ of certiorari on December 14, 1998, Turrentine v. Oklahoma, 525 U.S. 1057, 119 S.Ct. 624, 142 L.Ed.2d 562 (1998), and the OCCA denied post-conviction relief on July 17, 1998. Turrentine v. State, 965 P.2d 985 (Okla.Crim.App.1998) ("Turrentine II"). Mr. Turrentine then filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 in the District Court for the Northern District of Oklahoma on August 23, 1999. App. Doc 20.
The district court ruled on Mr. Turrentine's petition on January 21, 2003. The court granted the petition in part, but only as to the application of an aggravating circumstance to the charge of murder in count two. Because the district court found that striking this aggravator would not alter the punishment of death, it denied habeas relief on both the convictions and the sentences. Dist. Ct. Op. at 88. Mr. Turrentine filed a notice of appeal on January 31, 2003. The district court granted a certificate of appealability on eight grounds: 1) an improper jury instruction regarding the doctrine of transferred intent; 2) an improper instruction on second degree murder; 3) an improper instruction regarding a heinous, atrocious, or cruel aggravating circumstance; 4) the sufficiency of the evidence to support a finding of the "heinous, atrocious, or cruel" aggravating circumstance; 5) the sufficiency of the evidence to support a finding of the "great risk of death to more than one person" aggravating circumstance; 6) the trial court's improper admission of victim impact evidence; 7) the trial court's refusal to allow expert opinion for purposes of mitigation; and 8) a claim that the mitigating evidence outweighed the aggravating evidence. We granted a certificate of appealability on two additional grounds: 9) alleged ineffective assistance of trial counsel; and 10) alleged ineffective assistance of appellate counsel. We consider each of these issues in turn.
If a claim was adjudicated on the merits in state court, we review the state court ruling under the deferential standard of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). Under AEDPA, a petitioner is 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," or 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); see also Hale v. Gibson, 227 F.3d 1298, 1309 (10th Cir.2000). In conducting this inquiry, we presume the factual findings of the state trial and appellate courts are correct, and we place on the petitioner the burden of rebutting this presumption by clear and convincing evidence. 28 U.S.C § 2254(e)(1); Darks v. Mullin, 327 F.3d 1001, 1007 (10th Cir.2003). We review de novo the district court's legal analysis of the state court decision. Valdez v. Ward, 219 F.3d 1222, 1230 (10th Cir.2000).
In applying 28 U.S.C. § 2254(d), we first ask whether the principle of federal law invoked by the petitioner was clearly established by the Supreme Court at the time of the state court judgment. Id. at 1229. If so, we ask whether the state court decision was contrary to or involved an unreasonable application of that clearly established federal law. Id. A decision is "contrary to" federal law "if the state court applied a rule different from the governing law set forth in [Supreme Court] cases, or if it decides a case differently than [the Supreme Court ...
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