Woudenberg v. Gibson

• Decision Date: 02 May 2000
• Docket Number: No. 98-7167,98-7167
• Citation: 211 F.3d 560
• Parties: (10th Cir. 2000) SAMUEL RAYMOND VAN WOUDENBERG, #86881, by and through his Special Guardian CHARLES V. FOOR, Petitioner-Appellant, v. GARY GIBSON, Warden, Oklahoma State Penitentiary; ATTORNEY GENERAL OF THE STATE OF OKLAHOMA, Respondents-Appellees
• Court: U.S. Court of Appeals — Tenth Circuit

Page 560

211 F.3d 560 (10th Cir. 2000)

SAMUEL RAYMOND VAN WOUDENBERG, #86881, by and through his Special Guardian CHARLES V. FOOR, Petitioner-Appellant, v. GARY GIBSON, Warden, Oklahoma State Penitentiary; ATTORNEY GENERAL OF THE STATE OF OKLAHOMA, Respondents-Appellees.

No. 98-7167

UNITED STATES COURT OF APPEALS, TENTH CIRCUIT

May 2, 2000

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF OKLAHOMA (D.C. No. 97-CV-80-P)

[Copyrighted Material Omitted]

[Copyrighted Material Omitted]

[Copyrighted Material Omitted] Gary M. Chubbuck (John Dexter Marble with him on the briefs), of Chubbuck Smith & Rhodes, Oklahoma City, Oklahoma, for Petitioner-Appellant.

Robert L. Whittaker, Assistant Attorney General (W.A. Drew Edmondson, Attorney General of Oklahoma, with him on the brief), Oklahoma City, Oklahoma, for Respondents-Appellees.

Before SEYMOUR, Chief Judge, ANDERSON, and MURPHY, Circuit Judges.

SEYMOUR, Chief Judge.

Petitioner Samuel Raymond Van Woudenberg was convicted of first degree murder and sentenced to death in Oklahoma. The Oklahoma Court of Criminal Appeals affirmed the conviction and death sentence. See VanWoundenberg [sic] v. State,¹ 720 P.2d 328 (Okla. Crim. App.), cert denied, 479 U.S. 956 (1986). That court also affirmed the denial of three applications for post-conviction relief. See VanWoundenberg [sic] v. State, No. PC-87-633 (Okla. Crim. App. Sept. 24, 1987) (unpublished opinion), cert. denied, 484 U.S. 1036 (1988); VanWoundenberg [sic] v. State, 818 P.2d 913 (Okla. Crim. App. 1991), cert. denied, 503 U.S. 993 (1992); Van Woudenberg v. State, 942 P.2d 224 (Okla. Crim. App. 1997).

Mr. Van Woudenberg filed a petition for writ of habeas corpus in federal district court, and subsequently filed a third application for state post-conviction relief. The federal district court dismissed the habeas petition without prejudice to allow for exhaustion of state court remedies. The state trial court denied relief on the third application after holding an evidentiary hearing. Mr. Van Woudenberg then filed another petition for writ of habeas corpus. Thereafter, the Oklahoma Court of Criminal Appeals affirmed the trial court's denial of the third application for post-conviction relief. See Van Woudenberg v. State, 942 P.2d 224 (Okla. Crim. App. 1997). The federal district court later denied habeas relief, as well as a certificate of appealability (COA) on all issues.

This court granted a COA on the following issues: (1) the state competency proceedings were unconstitutional; (2) the prosecution engaged in misconduct by presenting coerced and false testimony, making improper closing arguments, and withholding exculpatory evidence; (3) the trial court failed to instruct on an accessory-after-the-fact defense; (4) Oklahoma appellate resentencing is unconstitutional; and (5) the district court improperly upheld the Oklahoma appellate court's reweighing and harmless error analysis.² We affirm the judgment of the district court.

I BACKGROUND

Mark Allen Berry, Terrance James, and Dennis Brown were co-defendants in a federal case involving theft of government property. All three had pled guilty to the federal charge and were incarcerated in the Muskogee City/Federal Jail, where inmates had free access to all cells and to the common areas.

Mr. James and Mr. Brown believed Mr. Berry had snitched on them and they decided to get revenge. Mr. Brown testified that while they were discussing what to do to Mr. Berry, Mr. Van Woudenberg entered their cell, joined in the discussion, and suggested they kill Mr. Berry. According to Mr. Brown, Mr. Van Woudenberg removed a wire from a broom and demonstrated how it could be used to strangle Mr. Berry. Mr. Van Woudenberg also suggested hanging Mr. Berry to make the death look like a suicide. However, Mr. James testified that Mr. Van Woudenberg did not help plan the murder, because there was no plan.

Mr. Brown testified that on the morning of the murder, Mr. Van Woudenberg approached Mr. James and Mr. Brown and asked them if they were ready. He also testified that Mr. Van Woudenberg placed a piece of paper over the lens of a surveillance camera and served as a lookout. Mr. James testified to the contrary, stating Mr. Van Woudenberg assumed no role.

The following facts are undisputed. Mr. Brown asked Mr. Berry to play cards. As they were doing so, Mr. James walked behind Mr. Berry and wrapped the wire around his neck, strangling him while Mr. Brown held him and covered his mouth. During the strangling someone, who two witnesses identified as Mr. Van Woudenberg, warned that someone else was coming. Mr. James then dragged Mr. Berry into a cell and continued strangling him. After Mr. Berry's body went limp, Mr. Brown, Mr. James, and Mr. Van Woudenberg hung Mr. Berry's body in a shower stall.

The jury found Mr. Van Woudenberg guilty of first degree murder.³ At the sentencing stage of trial, the State sought the death penalty on the basis of three aggravating factors: the murder was especially heinous, atrocious, or cruel; Mr. Van Woudenberg would constitute a continuing threat to society; and the murder was committed while Mr. Van Woudenberg was serving a sentence after conviction of a felony. In addition to the evidence introduced at the guilt stage, the State offered as aggravating evidence the fact that Mr. Van Woudenberg was serving a life sentence for a murder conviction; had escaped from prison, kidnaped two women, and subsequently been convicted of kidnaping; had pried vents from the jail ceiling and used them to make weapons; and was found with hacksaw blades in his shoe at the preliminary hearing. In mitigation, Mr. Van Woudenberg testified that he did not discuss or have the idea for the murder, did not act as a lookout, did not demonstrate anything with the wire or take the wire off the broom, and did not keep any weapons made from the vents. Mr. Van Woudenberg also presented evidence of his turbulent and abusive childhood and history of drug problems. The jury found all three aggravating factors, determined they outweighed the mitigating factors, and fixed Mr. Van Woudenberg's punishment at death.

Because Mr. Van Woudenberg filed his most recent habeas petition after the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), our appeal is governed by the provisions of AEDPA. See Hooks v. Ward, 184 F.3d 1206, 1213 (10th Cir. 1999). The appropriate standard of review depends on whether a claim was decided on the merits in state court. "If the claim was not heard on the merits by the state courts, and the federal district court made its own determination in the first instance, we review the district court's conclusions of law de novo and its findings of fact, if any, for clear error." LaFevers v. Gibson, 182 F.3d 705, 711 (10th Cir. 1999). If a claim was adjudicated on its merits by the state courts, a petitioner will be 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," 28 U.S.C. 2254(d)(1), or "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding," id. 2254(d)(2). Thus, we may grant the writ if we find the state court arrived at a conclusion opposite to that reached by the Supreme Court on a question of law; decided the case differently than the Supreme Court has on a set of materially indistinguishable facts; or unreasonably applied the governing legal principle to the facts of the prisoner's case.⁴ Williams v. Taylor, ___ U.S. ___ 120 S.Ct. 1495, 1523, ___ L.Ed.2d ___ (2000).

II COMPETENCY

A petitioner is competent to stand trial if he "has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding [and if] he has a rational as well as factual understanding of the proceedings against him." Dusky v. United States, 362 U.S. 402, 402 (1960) (quotation omitted). Mr. Van Woudenberg claims the state deprived him of procedural due process when it found him competent to stand trial using an improper burden of proof standard. He also claims he was denied substantive due process because he was incompetent at the time of his trial.

A. Procedural Competency Claim

A petitioner can assert a procedural competency claim by alleging that the trial court either failed to hold a competency hearing after the defendant's mental competence was put in issue, see Walker v. Attorney Gen., 167 F.3d 1339, 1343 (10th Cir.), cert. denied, 120 S. Ct. 449 (1999), or held a competency hearing but employed an unconstitutional burden of proof, see Rogers v. Gibson, 173 F.3d 1278, 1290 (10th Cir. 1999), cert. denied, 120 S. Ct. 944 (2000). In this case, the state trial court held a competency hearing for Mr. Van Woudenberg but it required him to prove incompetence by "clear and convincing evidence," a standard which has since been found unconstitutional by the Supreme Court. See Cooper v. Oklahoma, 517 U.S. 348, 369 (1996) (holding standard "incompatible with the dictates of due process," because it "allow[ed] the State to put to trial a defendant who is more likely than not incompetent.")⁵ Thus, Mr. Van Woudenberg has a valid procedural incompetency claim based on this deficiency in his competency hearing.

The government argues Mr. Van Woudenberg has not exhausted his procedural competency claim, and thus urges us to find it procedurally barred. The government's exhaustion argument is correct. Although Mr. Van Woudenberg raised this claim in his first post-conviction application, he did not appeal the state court's denial of relief on this issue to the Oklahoma Court of Criminal Appeals. Although a procedural competency claim may be procedurally barred, Rogers, 173 F.3d at 1289, AEDPA also permits a federal court to deny habeas relief...