Capital Habeas Petitioner's Claims Rejected; Death Penalty Affirmed

Howell v. Trammell, 2013 WL 4750554 (9/5/13) (Okl.) (Published) - The 10th affirms another Oklahoma death penalty conviction. (1) Deputy sheriffs charged with juror security told a juror who'd initially been a holdout in the guilt phase that they didn't believe the petitioner's defense and she should feel better about her verdict now that she knew the petitioner had committed another murder. And they ridiculed a defense sentencing expert in front of the juror. All 3 proceeded to get drunk and "engage in some sort of sexual activity." This did not affect the guilt phase verdict because it took place after the guilty verdict. The only contact during the guilt phase was a discussion about whether the officers were armed. This did not affect the sentence because the OCCA reversed the original death sentence. (2) Whether or not the state proved the co-defendant was unavailable at trial due to her refusal to testify for the state, the admission of her preliminary hearing testimony did not violate the Confrontation Clause under the Roberts pre-Crawford reliability standard. The defense was able to adequately cross her during the hearing and during trial because she testified on her own behalf at trial recanting her hearing testimony. Her preliminary hearing motive to fabricate to curry favor didn't make her hearing testimony too unreliable. (3) A juror's failure to disclose 8 years of prior employment with the CIA didn't warrant relief. At a post-trial hearing the juror explained his failure to disclose as follows: "You didn't ask the right questions." It didn't matter if the correct answer would have affected the defense's use of a peremptory challenge. The defense had to show the juror should have been excused for cause and it couldn't show the CIA experience biased the juror, especially in light of his 20 years in the Marine Corp. And the petitioner did not prove the juror intentionally withheld the information. (4) It was not a violation of the Confrontation Clause for the co-defendant's former attorneys to testify the co-defendant's statements to them were consistent with what she testified to at the preliminary hearing. The attorneys never quoted the co-defendant and the co-defendant was subject to cross at trial. The possible violation of the co-defendant's attorney-client privilege is not a well-established constitutional violation. There was no interference with the co-defendant's relationship with her current counsel.

With respect to the punishment phase: (5) Counsel's frequent mentioning during the direct examination of a prison case manager that the petitioner was on death row, and thus telling the jury another jury had already imposed the death sentence on the petitioner, was not deficient enough performance. A mistake alone is not enough to overcome AEDPA and Strickland deference to counsel's performance. The jurors could have figured out the prior sentence must have been an error, since they were deciding the issue again. With respect to the petitioner's intellectual-disability claims: (6) There is no clearly established S. Ct. law requiring the state to have the burden to prove a defendant is not intellectually disabled. (7) The petitioner couldn't prove a Batson claim because the record did not establish the race of the particular jurors in question and his request for an evidentiary hearing on that matter came too late. (8) There was no prejudice from counsel 's failure to challenge the state mental health expert's conclusions. Both the state's and the defense's experts used a wide array of information and were exposed to vigorous cross-examinations. (9) There was no prejudice from a failure to call a high school teacher to testify the petitioner was in special ed classes. To have another voice, in addition to the petitioner's brother's, saying this could have helped to overcome the school records that said to the contrary, but not enough to constitute prejudice. (10) Atkins did not mandate any particular level of scientific certainty that a defendant was not sufficiently intellectually disabled. The evidence was not conclusive that the petitioner was too intellectually disabled to qualify for execution. (11) The 10th refused to consider arguments that simply incorporated arguments made in d. ct.