Underwood v. Royal

• Decision Date: 02 July 2018
• Docket Number: No. 16-6262,16-6262
• Citation: 894 F.3d 1154
• Parties: Kevin Ray UNDERWOOD, Petitioner–Appellant, v. Terry ROYAL, Warden, Oklahoma State Penitentiary, Respondent–Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

894 F.3d 1154

Kevin Ray UNDERWOOD, Petitioner–Appellant,

v.Terry ROYAL, Warden, Oklahoma State Penitentiary, Respondent–Appellee.

No. 16-6262

United States Court of Appeals, Tenth Circuit.

FILED July 2, 2018

Sarah M. Jernigan, Assistant Federal Public Defender (Patti Palmer Ghezzi, Assistant Federal Public Defender, Western District of Oklahoma, with her on the briefs), Oklahoma City, Oklahoma, for Petitioner-Appellant.

Jennifer J. Dickson, Assistant Attorney General (Mike Hunter, Attorney General of Oklahoma, with her on the brief), Oklahoma City, Oklahoma, for Respondent-Appellee.

Before MATHESON, KELLY, and BACHARACH, Circuit Judges.

MATHESON, Circuit Judge.

Kevin Ray Underwood appeals from the federal district court’s denial of his petition for writ of habeas corpus under 28 U.S.C. § 2254. In 2008, a jury convicted Mr. Underwood of first degree murder and sentenced him to death in Oklahoma state court. The Oklahoma Court of Criminal Appeals ("OCCA") affirmed Mr. Underwood’s conviction and sentence and later denied post-conviction relief.

Mr. Underwood sought federal habeas relief from his death sentence under § 2254. The federal district court denied Mr. Underwood’s requests for relief and for a certificate of appealability ("COA") on all eleven grounds raised in the § 2254 application. We granted COAs on six of the eleven grounds for relief.

Exercising jurisdiction under 28 U.S.C. §§ 1291 and 2253, we affirm the district court’s denial of habeas relief on all six grounds.

I. BACKGROUND

We begin with the relevant factual history as presented by the OCCA.¹ We then provide an overview of the procedural history leading to this appeal. We present additional background below as relevant to our discussion of Mr. Underwood’s claims.

A. Factual History

The OCCA, in addressing Mr. Underwood’s direct appeal, set forth the following relevant facts:

[Mr. Underwood] was charged with murdering ten-year-old [J.B.] on April 12, 2006, in Purcell, Oklahoma. [Mr. Underwood] lived alone in the same apartment complex where [J.B.] lived with her father, Curtis Bolin. Due to her father’s work schedule, [J.B.] was typically home alone for a period of time after school. On the day in question, [J.B.] played in the school library with 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 [J.B.]. The day after [J.B.]’s disappearance, the Federal Bureau of Investigation [the "FBI"] added over two dozen people to the effort. On April 14, 2006, two days after [J.B.] 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 [Mr. Underwood]’s father at one of the roadblocks; [Mr. Underwood] was a passenger in the truck. [Mr. Underwood]’s father told Overby that they had heard about the disappearance, and that in fact, [Mr. Underwood] 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 [J.B.]. Overby asked if [Mr. Underwood ] would come to the patrol car to talk for a moment, and [Mr. Underwood] agreed, while his father waited in the truck. In the patrol car, [Mr. Underwood] made statements that piqued Overby’s interest.^{[ ]} Overby asked [Mr. Underwood] if he would come to the police station for additional questioning. Again, [Mr. Underwood] agreed, and Overby assured [Mr. Underwood]’s father that he (Overby) would give [Mr. Underwood] a ride home.

At the police station, [Mr. Underwood] was interviewed by Agent Overby and Agent Martin Maag. [Mr. Underwood] told them about seeing [J.B.] 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 [Mr. Underwood] if they could search his apartment. [Mr. Underwood] agreed. The agents accompanied [Mr. Underwood] to his apartment around 5:00 p.m. While looking around the apartment, Overby saw a large plastic storage tub in [Mr. Underwood]’s closet; its lid was sealed with duct tape. [Mr. Underwood] 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 [Mr. Underwood] 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 [Mr. Underwood]’s description of the shirt [J.B.] was wearing on the day she disappeared.^{[ ]} When Overby commented that he saw no comic books in the tub, [Mr. Underwood] interjected, "Go ahead and arrest me." Overby immediately responded, "Where is she?" [Mr. Underwood] replied, "She’s in there. I hit her and chopped her up." [Mr. Underwood] 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.

Back at the police station, [Mr. Underwood] 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 [Mr. Underwood] and asked if he would reaffirm, in writing, his original verbal consent to a search of his apartment. [Mr. Underwood] 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, [Mr. Underwood] asked to speak with the two FBI agents he had initially talked to (Overby and Maag). Because [Mr. Underwood] had previously asked for counsel, [Oklahoma State Bureau of Investigation ("OSBI") ] Agent Lydia Williams visited with him to determine his intentions. Agent Williams reminded [Mr. Underwood] that he had earlier declined to be questioned, and explained that because of that decision, police could not question him any further. [Mr. Underwood] emphatically replied that he wanted to talk to the agents. Around 10:15 p.m., Agents Overby and Maag interviewed [Mr. Underwood] at the police station. Before questioning began, Overby reminded [Mr. Underwood] of his Miranda rights, and [Mr. Underwood] 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, [Mr. Underwood] replied that one of the officers had predicted things would go better for him if he cooperated. Besides acknowledging his waiver of Miranda rights, [Mr. Underwood] 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, [Mr. Underwood] 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 [J.B.], whom he had decided was a convenient victim. [Mr. Underwood] stated that he invited [J.B.] into his apartment to play with his pet rat. Once [J.B.] was inside, [Mr. Underwood] hit her on the back of the head several times with a wooden cutting board; she screamed in pain and begged him to stop. [Mr. Underwood] proceeded to suffocate the girl by sitting on her and placing his hand across her face. [Mr. Underwood] told the agents that this was not an easy task, and that fifteen to twenty minutes passed before she succumbed. [Mr. Underwood] 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, [Mr. Underwood] wrapped [J.B.]’s body in plastic sheeting and placed it in a large plastic container which he hid in his closet. [Mr. Underwood] also dismantled [J.B.]’s bicycle and hid it inside his apartment, to make it look as if she had left the apartment complex.

[J.B.]’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 [Mr. Underwood]’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 [Mr. Underwood]’s description of how he had suffocated her. The most pronounced wound on the body was a very deep incision to [J.B.]’s neck, which was also consistent with the injuries [Mr. Underwood] admitted to inflicting. The Medical Examiner also noted trauma to the girl’s genital area, including tearing of the hymen. However, the Medical Examiner could not say that [J.B.] was alive, or even conscious, when her neck was cut or when she was sexually assaulted. The official cause of death was declared to be asphyxiation.

Underwood v. State , 252 P.3d 221, 230-31 (Okla. Crim. App. 2011) (footnotes omitted).

B. Procedural History

The following proceedings preceded Mr. Underwood’s present appeal: (1) jury trial in Oklahoma state court, (2) direct appeal and application for state post-conviction relief in the OCCA, and (3) application for federal post-conviction relief in the United States District Court for the Western District of Oklahoma under § 2254. We provide a brief overview of each proceeding.

1. Trial

In 2008, an Oklahoma jury convicted Mr. Underwood of first degree murder, under Section 701.7(A) of Title 21 of the Oklahoma Statutes, and sentenced him to death.

In the guilt...