Tenth Denies Habeas Relief to Oklahoma Capital Defendant

Fairchild v. Trammell, 2015 WL 1843529 (4/23/15) (Okl.) (Published) - The 10th affirms an Oklahoma state capital conviction. The 10th holds Evans v. Ray, 390 F.3d 1247 (10th CIr. 2004), requires it to find no due process violation as a result of the Oklahoma Criminal Court of Appeals' shifting about what mens rea is required for child-abuse murder. No clearly established Supreme Court law indicates treating other child-abuse murder defendants differently with respect to mens rea would violate the Equal Protection Clause. Under Workman v. Mullin, 342 F.3d 1100 (10th Cir. 2003), no additional culpability finding by the jury is necessary to qualify a person who is convicted of felony murder for the death penalty where, as here, the defendant actually kills the victim. State law that second-degree murder is not a lesser-offense of child-abuse murder precludes a defendant from having the right to a lesser-included-offense instruction under Beck v. Alabama, 447 U.S. 625 (1986). Under 10th Circuit precedent, Littlejpohn v. Trammell, 704 F.3d 817 (10th Cir. 2013), it was okay for the judge not to answer the jury's question about whether life without parole really meant Mr. Fairchild would never be released.

The 10th refused to consider evidence presented for the first time in federal court that established the link of Mr. Fairchild's prior history of drug abuse, boxing and head injuries to organic brain damage. The state had not waived an exhaustion argument, although it had not raised an exhaustion defense, because it had not expressly waived exhaustion. So, Mr. Fairchild had to try to exhaust the new issue in state court. But the state court exercised a procedural bar to refuse to consider the issue in a successive petition. In its decision, the OCCA cited a state case that said the court could grant relief in a successive petition situation if there is a miscarriage of justice or a substantial violation of a constitutional or statutory right. Contrary to what common sense would tell you, this does not mean the OCCA had to actually consider the merits of the constitutional claim Mr. Fairchild presented. The OCCA has said it doesn't consider the constitutional merits in such a situation, and the 10th feels obligated to accept this declaration. Trevino v. Thaler, 133 S. Ct. 1911 (2013) does not apply to Oklahoma. In Trevino , the Court held it was so rare in Texas that a defendant could raise ineffective assistance of counsel on direct appeal that ineffective assistance of post-conviction counsel may provide cause for not properly raising the issue of ineffective assistance of trial counsel in post-conviction proceedings. But, unlike Texas, Oklahoma provides several months of time for the raising of ineffective assistance of trial counsel on direct appeal. That is a sufficient time so that defendants don't have to resort to post-conviction proceedings to raise ineffective assistance. And in this case it took 16 months from sentencing before the opening appellate brief was due. It didn't matter that Mr. Fairchild's appellate counsel said in the opening brief that counsel had not been able to conduct a full investigation of Mr. Fairchild's case. What matters is what Oklahoma law provides and that the public defender in other cases had regularly raised on appeal issues similar to Mr. Fairchild's. As compensation the 10th did indicate appellate counsel's plight was "sympathetic." And current 10th Circuit counsel had waived the ineffective-assistance-regarding- mitigation-evidence claim that didn't include the new organic-brain-damage evidence because counsel had not argued the issue before the 10th. And besides, there was no merit to the issue because the unamended claim contained no evidence of a causal connection of Mr. Fairchild's history of boxing and head injuries to his brain function at the time of the crime. Plus the additional boxing and drug abuse evidence trial counsel didn't present may have been considered aggravating, not mitigating, evidence by the jury.