Underwood v. Duckworth

• Decision Date: 28 July 2016
• Docket Number: Case No. CIV-12-111-D
• Parties: KEVIN RAY UNDERWOOD, Petitioner, v. KEVIN DUCKWORTH, Interim Warden, Oklahoma State Penitentiary, Respondent.
• Court: U.S. District Court — Western District of Oklahoma

KEVIN RAY UNDERWOOD, Petitioner, v. KEVIN DUCKWORTH, Interim Warden, Oklahoma State Penitentiary, Respondent.¹

Case No. CIV-12-111-D

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA

July 28, 2016

MEMORANDUM OPINION

Petitioner, a state court prisoner, has filed a petition for writ of habeas corpus seeking relief pursuant to 28 U.S.C. § 2254. Doc. 19. Petitioner challenges the conviction entered against him in Cleveland County District Court Case No. CF-07-513.² Tried by a jury in 2008, Petitioner was found guilty of first degree murder and sentenced to death. In support of his death sentence, the jury found one aggravating circumstance, namely, (1) the murder was especially heinous, atrocious, or cruel. Criminal Appeal Original Record (hereinafter "O.R.") 8, at 1508.

Petitioner has presented eleven grounds for relief. Respondent has responded to the petition and Petitioner has replied. Docs. 19, 32, and 45. In addition to his petition, Petitioner has filed motions for discovery and an evidentiary hearing. Docs. 20 and 27.After a thorough review of the entire state court record (which Respondent has provided), the pleadings filed in this case, and the applicable law, the Court finds that, for the reasons set forth below, Petitioner is not entitled to his requested relief.

I. Procedural History.

Petitioner appealed his conviction and sentence to the Oklahoma Court of Criminal Appeals (hereinafter "OCCA"). The OCCA affirmed in a published opinion. Underwood v. Oklahoma, 252 P.3d 221, 258-59 (Okla. Crim. App. 2011). Petitioner sought review of the OCCA's decision by the United States Supreme Court, which denied his writ of certiorari on January 18, 2011. Underwood v. Oklahoma, 132 S. Ct. 1019 (2012). Petitioner also filed a post-conviction application, which the OCCA denied in an unpublished opinion. Underwood v. Oklahoma, No. PCD-2008-604 (Okla. Crim. App. Jan. 17, 2012).

II. Facts.

In adjudicating Petitioner's direct appeal, the OCCA set forth a summary of the facts. Pursuant to 28 U.S.C. § 2254(e)(1), "a determination of a factual issue made by a State court shall be presumed to be correct." Although this presumption may be rebutted by Petitioner, the Court finds that Petitioner has not done so, and that in any event, the OCCA's statement of the facts is an accurate recitation of the presented evidence. Thus, as determined by the OCCA, the facts are as follows:

[Petitioner] was charged with murdering ten-year-old Jamie Bolin on April 12, 2006, in Purcell, Oklahoma. [Petitioner] lived alone in the same apartment complex where Jamie lived with her father, Curtis Bolin. Due to her father's work schedule, Jamie was typically home alone for a period of time after school. On the day in question, Jamie played in the school librarywith a friend for a short time before going home. She was never seen alive again.

Police, firefighters, and a host of citizen volunteers began a search for Jamie. The day after Jamie's disappearance, the Federal Bureau of Investigation added over two dozen people to the effort. On April 14, 2006, two days after Jamie was last seen, police set up several roadblocks around the apartment complex where she lived, seeking leads from local motorists. Around 3:45 p.m. that day, FBI Agent Craig Overby encountered a truck driven by [Petitioner's] father at one of the roadblocks; [Petitioner] was a passenger in the truck. [Petitioner's] father told Overby that they had heard about the disappearance, and that in fact, [Petitioner] was the girl's neighbor. From speaking with other neighbors at the apartment complex, Overby knew that a young man living there may have been the last person to see Jamie. Overby asked if [Petitioner] would come to the patrol car to talk for a moment, and [Petitioner] agreed, while his father waited in the truck. In the patrol car, [Petitioner] made statements that piqued Overby's interest. [FN3] Overby asked [Petitioner] if he would come to the police station for additional questioning. Again, [Petitioner] agreed, and Overby assured [Petitioner's] father that he (Overby) would give [Petitioner] a ride home.

FN3. At trial, Overby testified: "He told me that he was afraid that he was considered a suspect because he'd been hanging around outside his apartment a lot during the last couple of weeks.... He said he was the last person to see Jamie before she disappeared, and that the media reports of the clothing that she was wearing when she became missing were incorrect."

At the police station, [Petitioner] was interviewed by Agent Overby and Agent Martin Maag. [Petitioner] told them about seeing Jamie on April 12, and discussed his activities on that day and other matters. At the conclusion of this interview, which lasted less than an hour, the agents asked [Petitioner] if they could search his apartment. [Petitioner] agreed. The agents accompanied [Petitioner] to his apartment around 5:00 p.m. While looking around the apartment, Overby saw a large plastic storage tub in [Petitioner's] closet; its lid was sealed with duct tape. [Petitioner] saw Overby looking at the tub, and volunteered that he kept comic books in it; he said that he had taped the lid to keep moisture out. Overby asked if he could look inside the tub, and [Petitioner] agreed. When Overby pulled back a portion of the tape and lifted a corner of the lid, he saw a girl's shirt—and realized that it matched [Petitioner's] description of the shirt Jamie Bolin was wearing on the day she disappeared. [FN4] When Overbycommented that he saw no comic books in the tub, [Petitioner] interjected, "Go ahead and arrest me." Overby immediately responded, "Where is she?" [Petitioner] replied, "She's in there. I hit her and chopped her up." [Petitioner] then became visibly upset, began hyperventilating, and exclaimed, "I'm going to burn in Hell." He was placed under arrest and escorted out to the agents' vehicle. Agent Overby summoned local authorities to secure the scene.

FN4. Overby testified: "[D]uring the earlier interview, Mr. Underwood told me that the media reports about what Jamie was last seen wearing were wrong, that he had actually seen her wearing a blue shirt. And then I saw the blue shirt inside the box or the tub."

Back at the police station, [Petitioner] was advised of his right to remain silent, and his right to the assistance of counsel during any questioning, consistent with Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Because he asked for a lawyer, the interview was concluded. About fifteen minutes later (approximately 5:45 p.m.), police approached [Petitioner] and asked if he would reaffirm, in writing, his original verbal consent to a search of his apartment. [Petitioner] agreed, and spent the next few hours sitting in a police lieutenant's office. He conversed with various officers who were sent to guard him, and made some incriminating statements during that time.

Around 9:30 p.m. that evening, [Petitioner] asked to speak with the two FBI agents he had initially talked to (Overby and Maag). Because [Petitioner] had previously asked for counsel, OSBI Agent Lydia Williams visited with him to determine his intentions. Agent Williams reminded [Petitioner] that he had earlier declined to be questioned, and explained that because of that decision, police could not question him any further. [Petitioner] emphatically replied that he wanted to talk to the agents. Around 10:15 p.m., Agents Overby and Maag interviewed [Petitioner] at the police station. Before questioning began, Overby reminded [Petitioner] of his Miranda rights, and [Petitioner] signed a written form acknowledging that he understood them and waived them. When asked if anyone had offered him anything in exchange for agreeing to talk, [Petitioner] replied that one of the officers had predicted things would go better for him if he cooperated. Besides acknowledging his waiver of Miranda rights, [Petitioner] also signed another written consent to a search of his apartment. A video recording and transcript of the interview that followed, which lasted about an hour, was presented to the jury at trial and is included in the record on appeal.

In the interview, [Petitioner] describes how he had recently developed a desire to abduct a person, sexually molest them, eat their flesh, and dispose of their remains. He explains in considerable detail how he attempted to carry out this plan on Jamie Bolin, whom he had decided was a convenient victim. [Petitioner] stated that he invited Jamie into his apartment to play with his pet rat. Once Jamie was inside, [Petitioner] hit her on the back of the head several times with a wooden cutting board; she screamed in pain and begged him to stop. [Petitioner] proceeded to suffocate the girl by sitting on her and placing his hand across her face. [Petitioner] told the agents that this was not an easy task, and that fifteen to twenty minutes passed before she succumbed. [Petitioner] claimed he then attempted to have sexual relations with the girl's body, but was unable to perform. He then moved her body to the bathtub and attempted to decapitate it with a knife, but was unsuccessful at that task as well. Frustrated, [Petitioner] wrapped Jamie's body in plastic sheeting and placed it in a large plastic container which he hid in his closet. [Petitioner] also dismantled Jamie's bicycle and hid it inside his apartment, to make it look as if she had left the apartment complex.

Jamie Bolin's remains were taken to the Medical Examiner's office for an autopsy. The Medical Examiner noted bruises to the back of the girl's head, consistent with [Petitioner's] claim that he hit her forcefully with a cutting board. The examiner also noted petechia in the girl's eyes, and curved marks on her face, consistent with [Petitioner's] description of how he had suffocated her. The most pronounced wound on the body was a very deep incision to Jamie's neck, which was also consistent with the injuries [Petitioner]

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