APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OKLAHOMA (D.C. No. 4:CV-01-00721-CVE-TLW)
The opinion of the court was delivered by: Briscoe, Chief Judge.
United States Court of Appeals Tenth Circuit
Elisabeth A. Shumaker Clerk of Court
Before BRISCOE, Chief Judge, TYMKOVICH and GORSUCH, Circuit Judges.
Petitioner Michael Selsor, an Oklahoma state prisoner convicted of first degree murder and sentenced to death, appeals the district court's denial of his 28 U.S.C. § 2254 habeas petition. Selsor asserts seven issues on appeal: (1) whether a state appellate ruling allowing the prosecution at his retrial proceedings to seek the death penalty against him violated his due process rights; (2) whether the imposition of the death penalty at his retrial proceedings violated his rights under the Double Jeopardy Clause; (3) whether the state trial court violated his constitutional rights at the retrial proceedings by instructing the jury as to the elements of a post-crime first degree murder statute, rather than the elements of the pre-crime first degree murder statute under which he was originally charged; (4) whether the imposition of the death penalty at his retrial proceedings violated his rights under the Equal Protection Clause; (5) whether the prosecution acted vindictively, in violation of his due process rights, by seeking the death penalty at his retrial proceedings; (6) whether the penalty phase of his retrial proceedings was rendered fundamentally unfair by prosecutorial misconduct; and (7) whether the admission, during the penalty phase of the retrial proceedings, of testimony from the victim's family members regarding the appropriate sentence violated his rights under the Eighth Amendment. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we affirm.
The relevant underlying facts of this case were outlined in detail by the Oklahoma Court of Criminal Appeals (OCCA) in addressing Selsor's most recent direct appeal:
At approximately 11:00 p.m. on September 15, 1975, Selsor and Richard Eugene Dodson robbed the U-TOTE-M convenience store at 5950 33rd West Avenue in Tulsa. Selsor and Dodson entered the store, each armed with a .22 caliber handgun. Employee Clayton Chandler was working at the cash register. Selsor approached Chandler, pulled his gun, and demanded the contents of the register. Dodson located employee Ina Morris, who was restocking the walk-in cooler. Dodson pointed his gun at her and ordered her to get down. Morris replied, "You've got to be kidding me." Dodson then fired a shot striking Morris in the shoulder.
Chandler loaded a sack with money and handed it to Selsor, who then shot Chandler several times in the chest killing him. Upon hearing the shots, Dodson emptied his weapon through the cooler door at Morris. Morris was shot in the head, neck and shoulder, but survived. Selsor and Dodson then fled.
On September 22, 1975, Selsor and Dodson were arrested in Santa Barbara, California. Selsor confessed this and other crimes to Detective John Evans of the Santa Barbara Police Department. In his confession, Selsor admitted that before entering the store, he and Dodson had agreed to leave no witnesses.
Selsor v. State (Selsor II), 2 P.3d 344, 347-48 (Okla. Crim. App. 2000) (internal paragraph numbers omitted).
Selsor's original trial and direct appeal
Following his arrest, Selsor "was charged in the District Court,
Tulsa County, with the offenses of Armed Robbery, CRF-75-2183; Shooting With
Intent to Kill, CRF-75-2182; and, Murder in the First Degree,
CRF-75-2181, After Former Conviction of a Felony." Selsor v. State
(Selsor I), 562 P.2d 926, 927 (Okla. Crim. App. 1977). The case
proceeded to trial in January 1976, and Selsor "was tried conjointly
with co-defendant . . . Dodson."*fn1 Id. "A guilty
verdict was returned as to all three charges [against Selsor],
punishment being assessed at death for Murder in the First Degree;
twenty (20) years' imprisonment for Shooting With Intent to Kill; and,
twenty-five (25) years' imprisonment for Armed Robbery."*fn2
Selsor filed a direct appeal challenging his convictions and sentences. On April 6, 1977, the OCCA issued a published decision affirming all of Selsor's convictions, as well as the sentences imposed for the Shooting With Intent to Kill and Armed Robbery convictions. The OCCA, however, modified Selsor's death sentence to life imprisonment. In doing so, the OCCA concluded, consistent with its then-recent decision in Riggs v. Branch, 554 P.2d 823 (Okla. Crim. App. 1976), that the Oklahoma death penalty statute under which Selsor was sentenced, Okla. Stat. tit. 21, § 701.3 (1973), was unconstitutional. Selsor I, 562 P.2d at 927.
Selsor's first application for state post-conviction relief On November 8, 1978, Selsor filed a pro se application for post-conviction relief in state district court. The application asserted a single claim for relief from his convictions, i.e., that "THE TRIAL COURT ERRED BY REQUIRING [Dodson] AND [Selsor] TO, OVER [their] OBJECTION, BE TRIED JOINTLY WITH THE SAME COUNSEL FROM THE PUBLIC DEFENDERS OFFICE." S.
R., Vol. I at 160. On February 28, 1980, the state district court denied Selsor's application, noting that Selsor's claim had previously been rejected by the OCCA on direct appeal. The state district court's denial of post-conviction relief was affirmed by the OCCA on June 12, 1980.
Selsor's second application for state post-conviction relief "On July 3, 1989, Selsor filed a second application for post-conviction relief in state court."*fn3 Selsor v. Kaiser (Kaiser II), 81 F.3d 1492, 1496 (10th Cir. 1996). "That application was denied on July 24, 1989, and that ruling was affirmed by the [OCCA] in an unpublished order on August 18, 1989." Id.
Selsor's first federal habeas proceedings
In October of 1991, Selsor filed a pro se petition for federal habeas relief pursuant to 28 U.S.C. § 2254 in the United States District Court for the Western District of Oklahoma. Selsor v. Kaiser (Kaiser I), 22 F.3d 1029, 1031 (10th Cir. 1994). Selsor's petition asserted "two grounds for relief: (1) he was denied his Sixth Amendment right to the effective assistance of counsel because of his attorney's conflict of interest-i.e., the same attorney represented both [Selsor] and Dodson; and (2) the separate convictions and sentences for felony murder and the underlying felony-i.e., armed robbery, violated the Double Jeopardy Clause of the Fifth Amendment." Id. The district court denied Selsor's petition on December 4, 1992. Id. In doing so, the district court addressed and rejected the ineffective assistance claim on the merits, but concluded that Selsor's double jeopardy claim was procedurally barred.
Selsor appealed the district court's ruling to this court. This court appointed a federal public defender to represent Selsor. On May 2, 1994, this court issued a published opinion reversing the decision of the district court and remanding for further proceedings. More specifically, this court concluded "that the district court applied the incorrect legal standard" to Selsor's Sixth Amendment claim, id. at 1033, and thus remanded the case to the district court to "determine whether: (1) [Selsor]'s objection at trial to the joint representation was timely, and, if so, (2) whether the trial court took 'adequate steps to ascertain whether the risk [of a conflict of interest] was too remote to warrant separate counsel,'" id. at 1033-34 (quoting Holloway v. Arkansas, 435 U.S. 475, 484 (1978)).
"On remand the district [court] concluded that Selsor's objection to the joint representation was timely." Kaiser II, 81 F.3d at 1496. "However, [the district court] held that the state trial court made an adequate inquiry into the possibility of a conflict of interest . . . ." Id. Thus, the district court "denied Selsor's petition." Id.
Selsor appealed again to this court. On April 8, 1996, this court issued a published opinion (Kaiser II) reversing the district court's ruling. In doing so, this court held "there was an actual conflict of interest that adversely affected counsel's performance on behalf of Selsor," resulting in "violations of Selsor's Sixth and Fourteenth Amendment rights to effective assistance of counsel." Id. at 1506. Accordingly, this court remanded the case to the district court "with directions to enter judgment invalidating Selsor's convictions . . . , but providing that such judgment [wa]s without prejudice to further proceedings by the state for retrial of [Selsor] within a reasonable time." Id.
The Tulsa County District Attorney's Office initiated retrial proceedings in May of 1996. On August 6, 1996, the prosecution filed a Bill of Particulars alleging that Selsor "should be punished by Death" for "the offense of Murder in the First Degree, as charged in the [original] Information," as a result of the following aggravating circumstances: (1) "[t]he Defendant knowingly created a great risk of death to more than one person"; (2) "[t]he murder was especially heinous, atrocious, or cruel"; (3) "[t]he murder was committed for the purpose of avoiding or preventing a lawful arrest or prosecution"; and (4) "[t]he existence of a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society." S. R., Vol. I at 191.
Selsor moved to strike the Bill of Particulars, arguing that "[a]llowing the State to seek the death penalty against [him would] violate the prohibition against ex post facto laws and expose [him] to more severe punishment than was lawful at the time [he] committed the alleged crime" of Murder in the First Degree. Id., Vol. II at 203. On July 20, 1997, on the eve of trial, the state trial court denied Selsor's motion. Selsor immediately petitioned the OCCA for a writ of mandamus and obtained from that court a stay of the impending trial. Id. at 288. On October 14, 1997, the OCCA issued a published decision affirming the trial court's decision. Selsor v. Turnbull, 947 P.2d 579 (Okla. Crim. App. 1997). In doing so, the OCCA expressly overturned its decision in Riggs (which concluded, in pertinent part, that the death penalty statutes enacted by the Oklahoma Legislature in 1976 changed the burden of proof to the detriment of criminal defendants, as compared to the burden of proof under the 1973 first degree murder statute), and then concluded that the filing of a Bill of Particulars under the contemporaneous death penalty statutes (i.e., statutes enacted in 1976 that remained effective in 1997) did not violate the prohibition against ex post facto laws or implicate the Equal Protection Clause. Id. at 583.
Following the OCCA's decision, Selsor's retrial began on February 2, 1998. At the outset, Selsor's counsel moved to dismiss the charges against Selsor, arguing that the Information, which was filed in 1975 and which charged Selsor under the language of the 1973 first degree murder statute, alleged both "that . . . Selsor with premeditated design effect[ed] the death of Clayton Chandler and during the course of a robbery with firearms did kill Clayton Chandler." Tr., Vol. IV at 738. The state trial court overruled Selsor's motion. Id. at 739 ("I think that the Information, albeit old, properly informs Mr. Selsor of the charge that is against him."). At the conclusion of the government's first-stage evidence, the jury found Selsor guilty of the three charges against him, i.e., murder in the first degree, shooting with intent to kill, and robbery with firearms.
The second-stage proceedings began following a short recess. To prove the four alleged aggravating circumstances, the prosecution presented evidence that Selsor and Dodson committed four similar armed robberies shortly prior to the robbery of the Tulsa U-TOTE-M convenience store, two of which involved the actual use of violence against store clerks (specifically the shooting of one clerk by Selsor and the stabbing of another clerk by Dodson). The prosecution also presented evidence establishing that Selsor attempted to escape from prison in December 1984. Lastly, the prosecution presented testimony from the widow and daughter of Clayton Chandler, the murder victim in the case, and from Ina Morris, the store clerk wounded by Dodson during the robbery. All three of these witnesses read into the record victim impact statements they had prepared prior to trial. As part of their testimony, each of these three witnesses testified that they agreed with the District Attorney's recommended sentence of death.
Selsor in turn presented testimony from a data entry clerk employed by the Tulsa County Sheriff's Department, who testified that during the nineteen months Selsor was confined in the Tulsa County Jail awaiting retrial, Selsor had no write-ups of any kind. Selsor also presented testimony from four current or former Oklahoma Department of Corrections employees, all of whom knew Selsor because of their contact with him during his post-trial incarceration. All four of these witnesses testified, in pertinent part, that, despite their being generally in favor of the death penalty, they disagreed with the District Attorney's recommended sentence of death for Selsor.
At the conclusion of the second-stage evidence, the jury found the existence of two of the four aggravating circumstances alleged by the prosecution: that Selsor knowingly created a great risk of death to more than one person, and that the murder was committed for the purpose of avoiding and preventing a lawful arrest. In turn, the jury fixed Selsor's punishment at death for the first degree murder conviction. As for the other two counts of conviction, the jury recommended life imprisonment for the shooting with intent to kill conviction, and twenty years' imprisonment for the robbery with firearms conviction.
The state trial court entered judgment consistent with the verdicts on May 6, 1998. The judgment stated, in pertinent part, that Selsor was found guilty of "MURDER, 1st DEGREE," in violation of "21-701.7," the 1976 murder statute enacted by the Oklahoma state legislature. S. R., Vol. III at 436.
Selsor's direct appeal from the new trial Selsor appealed his convictions and sentence to the OCCA. On May 10, 2000, the OCCA issued a published opinion affirming Selsor's first degree murder conviction and death sentence, as well as Selsor's shooting with intent to kill conviction and related sentence of life imprisonment, but reversing the conviction and sentence for robbery with firearms and remanding to the state trial court with instructions to dismiss that charge. Selsor II, 2 P.3d at 346. More specifically, the OCCA concluded that the robbery with firearms conviction "must be dismissed based upon double jeopardy because all the elements of Robbery with Firearms are included within the elements of the First Degree Murder pursuant to the 1973 statute." Id. at 351. Selsor filed a petition for writ of certiorari with the United States Supreme Court. That petition was denied on May 21, 2001. Selsor v. Oklahoma, 532 U.S. 1039 (2001).
The instant federal habeas proceedings Selsor initiated the instant federal habeas proceedings on October 3, 2001, by filing a motion for appointment of counsel. The district court granted Selsor's motion and, on May 20, 2002, Selsor's appointed counsel filed a petition for writ of habeas corpus on Selsor's behalf asserting eighteen grounds for relief. Respondent filed a response to the petition, as well as a certified copy of the relevant state court records.
On September 29, 2009, the district court issued an opinion and order denying Selsor's petition in its entirety. On that same date, the district court entered judgment in favor of respondent and against Selsor. Following the entry of an amended judgment on November 24, 2009, Selsor moved for a certificate of appealability with respect to nine issues. The district court granted Selsor's motion. Of the nine issues on which a COA was granted, Selsor has since filed appellate pleadings addressing seven of those issues.
Because Selsor filed his federal habeas petition after April 24, 1996, the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), AEDPA's provisions govern these proceedings. Snow v. Sirmons, 474 F.3d 693, 696 (10th Cir. 2007). Under AEDPA, the standard of review applicable to a particular claim depends upon how that claim was resolved by the state courts. Id.
If a claim was addressed on the merits by the state courts, we may not grant federal habeas relief on the basis of that claim unless 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). "When reviewing a state court's application of federal law, we are precluded from issuing the writ simply because we conclude in our independent judgment that the state court applied the law erroneously or incorrectly." McLuckie v. Abbott, 337 F.3d 1193, 1197 (10th Cir. 2003). "Rather, we must be convinced that the application was also objectively unreasonable." Id. "This standard does not require our abject deference, . . . but nonetheless prohibits us from substituting our own judgment for that of the state court." Snow, 474 F.3d at 696 (internal quotation marks omitted).
If a claim was not resolved by the state courts on the merits and is not otherwise procedurally barred, our standard of review is more searching. That is, because § 2254(d)'s deferential standards of review do not apply in such circumstances, we review the district court's legal conclusions de novo and its factual findings, if any, for clear error. McLuckie, 337 F.3d at 1197.
1. Due process violation - OCCA's overruling of Riggs Selsor contends, in Proposition One of his appellate brief, that the OCCA in Turnbull violated the Ex Post Facto Clause as applied to judicial decisions through the Due Process Clause by overruling its decision in Riggs and allowing the prosecution at the retrial proceedings to seek the death penalty against him.
a) Background information
On June 29, 1972, the United States Supreme Court held that a Georgia state statute that allowed for unbridled jury discretion in the imposition of death sentences violated the Eighth and Fourteenth Amendments. Furman v. Georgia, 408 U.S. 238, 240 (1972); id. at 309-10 (Stewart, J., concurring); id. at 313 (White, J., concurring). In the wake of Furman, states generally responded in one of two ways. Some, like Georgia, "legislated standards to guide jury discretion" in the imposition of the death penalty. Woodson v. North Carolina, 428 U.S. 280, 299 (1976). Others "adopted mandatory measures" requiring the imposition of the death penalty for any person convicted of first degree murder (although the states doing so adopted differing definitions of the crime of first degree murder). Id.
Oklahoma fell into the latter camp. In 1973, the Oklahoma Legislature adopted a statutory scheme that mandated imposition of the death penalty for anyone convicted of first degree murder, and defined first degree murder as follows:
Homicide, when perpetrated without authority of law and with a premeditated design to effect the death of the person killed, or of any other human being, is murder in the first degree in the following cases:
1. When perpetrated against any peace officer, prosecuting attorney, corrections employee or fireman engaged in the performance of his official duties;
2. When perpetrated by one committing or attempting to commit rape, kidnapping for the purpose of extortion, arson in the first degree, armed robbery or when death occurs following the sexual molestation of a child under the age of sixteen (16) years;
3. When perpetrated against any witness subpoenaed to testify at any preliminary hearing, trial or grand jury proceeding against the defendant who kills or procures the killing of the witness, or when perpetrated against any human being while intending to kill such witness;
4. When perpetrated against the President or Vice President of the United States of America, any official in the line of succession to the Presidency of the United States of America, the Governor or Lieutenant Governor of this state, a judge of any appellate court or court of record of this state, or any person actively engaged in a campaign for the office of the Presidency or Vice Presidency of the United States of America;
5. When perpetrated by any person engaged in the pirating of an aircraft, train, bus or other commercial vehicle for hire which regularly transports passengers;
6. When perpetrated by a person who effects the death of a human being in exchange for money or any other thing of value, or by the person procuring the killing;
7. Murder by a person under a sentence of life imprisonment in the penitentiary;
8. When perpetrated against two or more persons arising out of the same transaction or occurrence or series of events closely related in time and location;
9. When perpetrated against a child while in violation of Section 843, Title 21 of the Oklahoma Statutes; and
10. Intentional murder by the unlawful and malicious use of a bomb or of any similar explosive.
Okla. Stat. tit. 21, § 701.1 (1973).
These state legislative responses to Furman in turn led to new court challenges. On July 2, 1976, the United States Supreme Court issued a trio of decisions addressing the two general types of revised death penalty schemes. In Woodson, 428 U.S. at 305, and Roberts v. Louisiana, 428 U.S. 325, 336 (1976), the Court held that mandatory death penalty schemes adopted by North Carolina and Louisiana, i.e., schemes under which a person convicted of first degree murder was automatically sentenced to death without consideration of the defendant's character and record or of the circumstances of the particular offense, violated the Eighth and Fourteenth Amendments. In the third decision issued that day, Gregg v. Georgia, 428 U.S. 153 (1976), the Court held that Georgia's post-Furman death penalty scheme, which provided for bifurcated capital trial proceedings, set forth specific procedures guiding the sentencing judge or jury in its selection of an appropriate sentence (including the consideration of aggravating and mitigating circumstances), and mandated expedited direct review by the Georgia Supreme Court "of the appropriateness of imposing the sentence of death in the particular case," id. at 166, survived Eighth Amendment scrutiny. Id. at 187, 207. In doing so, the Court held that "the concerns expressed in Furman that the penalty of death not be imposed in an arbitrary or capricious manner can be met by a carefully drafted statute that ensures that the sentencing authority is given adequate information and guidance," and that "[a]s a general proposition these concerns are best met by a system that provides for a bifurcated proceeding at which the sentencing authority is apprised of the information relevant to the imposition of sentence and provided with standards to guide its use of the information." Id. at 195.
Four days later, on July 6, 1976, the Supreme Court applied its decisions in Woodson and Roberts and reversed six Oklahoma capital cases that were pending before it. Williams v. Oklahoma, 428 U.S. 907 (1976); Justus v. Oklahoma, 428 U.S. 907 (1976); Rowbotham v. Oklahoma, 428 U.S. 907 (1976); Lusty v. Oklahoma, 428 U.S. 907 (1976); Green v. Oklahoma, 428 U.S. 907 (1976); Davis v. Oklahoma, 428 U.S. 907 (1976). In doing so, the Supreme Court held that "[t]he imposition and carrying out of the death penalty under the law of Oklahoma constitute[d] cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments." Williams, 428 U.S. at 907.
The Oklahoma legislature responded to these Supreme Court decisions by calling a special session, repealing the 1973 statute, and enacting, effective July 24, 1976, new first and second degree murder statutes. Importantly, for purposes of the instant appeal, the new statutes effectively expanded the definition of first degree murder by defining it in the following manner:
A. A person commits murder in the first degree when he unlawfully and with malice aforethought causes the death of another human being. Malice is that deliberate intention unlawfully to take away the life of a human being, which is manifested by external circumstances capable of proof.
B. A person also commits the crime of murder in the first degree when he takes the life of a human being, regardless of malice, in the commission of forcible rape, robbery with a dangerous weapon, kidnapping, escape from lawful custody, first degree burglary or first degree arson.
Okla. Stat. tit. 21, § 701.7 (1976). In other words, in contrast to the 1973 murder statute, which defined first degree murder to require both malice aforethought and commission of the murder in one of several specified circumstances, the 1976 statute defined first degree murder to require only malice aforethought or commission of the murder during one of several enumerated felonies.
The OCCA first addressed these judicial and legislative events in its Riggs decision issued on September 2, 1976. The petitioner in Riggs had been charged with first degree murder under Oklahoma's 1973 death penalty statute. However, that charge was filed on July 9, 1976, three days after the Supreme Court held Oklahoma's 1973 death penalty statute to be unconstitutional. Immediately after the charge was filed, Riggs responded by filing a petition for writ of habeas corpus with the state trial court "alleging that the Supreme Court . . . had declared Oklahoma's First Degree Murder Statute unconstitutional and thus he was being illegally restrained." Riggs, 554 P.2d at 824. After the state trial court denied the petition, Riggs appealed to the OCCA. The OCCA noted at the outset that its task was to determine the status of those defendants either charged or having committed the crime of Murder in the First Degree or Murder in the Second Degree, and those defendants convicted of said offenses prior to the effective date of our new  murder statutes. We find it appropriate to move with the necessary speed to clarify and attempt to fill what has been termed "the apparent void" in our Murder law prior to the effective date of our new homicide murder statute.
Id. at 825. Continuing, the OCCA noted that
[t]his determination [wa]s mandatory as to that class of defendants charged with or committing homicide murder prior to the effective date of our new statute; they cannot be tried under the new statute, as the evidentiary burden of proof under it ha[d] been changed to their detriment. * * * To [hold] otherwise in th[is] situation would be to violate the ex post facto provision of the Constitution of the United States, Article 1, Section 10. * * * For this reason the new homicide murder statute cannot be applied retroactively by judicial construction.
The OCCA then addressed "the status of those defendants . . . convicted of First Degree Murder and sentenced to death prior to the enactment of the new  statute." Id. "A threshold inquiry in resolving the status of th[is] class of defendants," id., the OCCA held, was "to examine the effect of the Supreme Court decisions upon the Oklahoma homicide murder statutes," id. at 825-26. Citing the Supreme Court's post-Woodson and Roberts reversal of the six pending Oklahoma capital cases, the OCCA "conclude[d] the death penalty as provided in
21 O.S.Supp.1973, § 701.3 [(the 1973 death penalty statute)], ha[d] been effectively stricken from [the] statute, which [itself had been] repealed." Id. at 827. However, the OCCA in turn concluded that "the remaining provisions of [Oklahoma's 1973] homicide murder statute remain[ed] in effect after the striking of the death penalty provision." Id. The OCCA then addressed "what constitute[d] the appropriate constitutionally permissible punishment which should befall [defendants] . . . convicted of murder in the first degree, or . . . committing the offense of murder in the first degree prior to 12:01 a.m. of July 24, 1976[, the date the 1976 murder statute became effective]." Id. at 828.
Noting that a section of the 1973 murder statute authorized the OCCA to exercise its discretion and modify a sentence of death, the OCCA concluded "that the alternative sentence [that could] be imposed against those individuals convicted of murder in the first degree prior to the effective date of [the] new murder homicide statute [wa]s life imprisonment." Id. at 829. As for "individual[s] committing, but not convicted of, the crime of murder in the first degree prior to 12:01 a.m., July 24, 1976," the OCCA held, "the appropriate penalty for murder in the first degree [wa]s 'life in the penitentiary at hard labor,' under the 1973 statute." Id.
On June 17, 1977, approximately nine months after the issuance of
Riggs, the Supreme Court issued its opinion in Dobbert v. Florida, 432
U.S. 196 (1977). The petitioner in Dobbert was a Florida state
prisoner convicted of two murders and sentenced to death. "The murders
of which petitioner was convicted were alleged to have occurred" in
late 1971 and early 1972. Id. at 288. "During that period of time,
Fla. Stat. Ann. §§ 775.082 (1971) and 921.141 (Supp.1971-1972), as
then written, provided that a person convicted of a capital felony was
to be punished by death unless the verdict included a recommendation
of mercy by a majority of the jury." Id. "[O]n July 17, 1972, . . .
the Florida Supreme Court found the 1971 Florida death penalty
statutes inconsistent with Furman." Id. "Late in 1972 Florida enacted
a new death penalty procedure," id., under which the trial judge,
after considering the recommendation of a sentencing jury,
was required to "weigh eight aggravating factors against seven statutory
mitigating factors to determine whether the death penalty should be
imposed," Proffitt v. Florida, 428 U.S. 242, 242 (1976).*fn4
The petitioner in Dobbert "argue[d] that the change in the
role of the judge and jury in the imposition of the death sentence in
Florida between the time of the first-degree murder [he committed] and
the time of [his] trial constitute[d] an ex post facto violation." 432
U.S. at 292 (italics in original). The Supreme Court rejected this
argument, however, "conclud[ing] that the changes in the law [we]re
procedural, and on the whole ameliorative, and that there [wa]s no ex
post facto violation." Id. (italics in original). More specifically,
the Supreme Court noted that "[t]he new statute simply altered the
methods employed in determining whether the death penalty was to be
imposed; there was no change in the quantum of punishment attached to
the crime." Id. at 293-94. The petitioner also asserted a "second ex
post facto claim," i.e., "that at the time he" committed the murders
"there was no death penalty 'in effect' in Florida . . . because the
earlier statute enacted by the legislature was, after the time he
acted, found by the Supreme Court of Florida to be invalid under . . .
Furman . . . ." Id. at 297 (italics in original). In other words,
"there was no 'valid' death penalty in effect in Florida as of the
date of his actions." Id. The Supreme Court disagreed, stating that
petitioner's "sophistic argument mock[ed] the substance of the Ex Post
Facto Clause." Id. (italics in original). According to the Court, "the
existence of the [first degree murder] statute served as an 'operative
fact' to warn the petitioner of the penalty which Florida would seek
to impose on him if he were convicted of first-degree murder," and
[t]his was sufficient compliance with the ex post facto provision of
the United States Constitution." Id. at 298 (italics in original).
The final relevant piece of procedural history occurred in 1997. At that time, Selsor was being retried in state court pursuant to this court's decision in Kaiser II. Selsor moved to strike the Bill of Particulars filed by the prosecution, arguing that "[a]llowing the State to seek the death penalty against [him would] violate the prohibition against ex post facto laws and expose [him] to more severe punishment than was lawful at the time [he] committed the alleged crime" of Murder in the First Degree. S. R., Vol. II at 203. The state trial court denied Selsor's motion, and Selsor immediately petitioned the OCCA for a writ of mandamus. On October 14, 1997, the OCCA issued its decision in Turnbull and, at the urging of the prosecution, expressly overturned its decision in Riggs. In doing so, the OCCA stated:
Riggs was decided during the chaos caused when the United States Supreme Court overturned the death penalty statutes of several states, and during the scramble by those states to ensure there were constitutional penalty provisions in place for the offense of Murder in the First Degree. Riggs, 554 P.2d at 824-25 nn.1-3. This Court attempted to analyze United States Supreme Court precedent in effect at the time, and determined that Riggs, and other defendants who had committed homicide murder while the statutes with unconstitutional death penalty provisions were in effect, could not be tried under newly enacted statutes. Riggs, 554 P.2d at 825. This Court found the evidentiary burden of proof under the newly enacted statutes had been changed to the detriment of Riggs and the other defendants, and to apply the newly enacted statutes to them would be to violate the ex post facto provisions of the Constitution of the United States. Id.
After this Court attempted to construe federal ex post facto law in Riggs, the United States Supreme Court directly addressed the issue of whether the ex post facto clause prohibited the application, of newly enacted statutes for imposing the death penalty, to defendants whose crimes were committed prior to the enactment of the new statutes. Dobbert v. Florida, 432 U.S. 282, 97 S.Ct. 2290, 53 L.Ed.2d 344 (1977). In its ex post facto analysis, the Supreme Court compared the newly enacted statutes to the statutes in effect on the date the crime was committed, even though the old statutes, like Section 701.3, had been declared unconstitutional. The United States Supreme Court held the changes in death penalty statutes were procedural and on the whole ameliorative, and could be applied retroactively without an ex post facto violation. Id.
In different contexts, this Court has adopted and applied the reasoning and analysis of Dobbert. Cartwright v. State, 778 P.2d 479 (Okl.Cr.1989). This Court has acknowledged an ex post facto argument is not won by proving disadvantage alone. Cartwright, 778 P.2d at 482. In addition, the true focus of ex post facto analysis is on (1) the elements of the offense, (2) the conditions and quantum of punishment, and (3) the quantity and degree of proof necessary to establish guilt. Id.
Contrary to Petitioner's arguments, there was a death penalty statute in effect in 1975, and on the date his crime was committed, in the form of 21 O.S.Supp.1973, § 701.3. Contrary to this Court's analysis in Riggs, the newly enacted death penalty statutes did not change the burden of proof to the detriment of Riggs and other defendants, as compared to the burden of proof under Section 701.3.
Under Section 701.3, the only available sentence was death. Under newly enacted death penalty statutes, the sentencing options increased in favor of a defendant to include not only death but also the possibility of life imprisonment, and now life without parole. 21 O.S.Supp.1976, §§ 701.9 and 701.10; 21 O.S.1991, § 701.9, and Supp.1996, § 701.10. Under Section 701.3, the State was only required to prove the elements of the crime of First Degree Murder. Once those elements were proven, the State had no further burden of proof because the death penalty was required. Under newly enacted death penalty statutes, the State not only must prove the same elements of the crime of First Degree Murder, but also must prove aggravating circumstances before the death penalty can be imposed. Id. Therefore, newly enacted death penalty statutes (1) did not increase the elements of the offense of First Degree Murder, (2) did not increase but in fact decreased the conditions and quantum of punishment, and (3) did not decrease but in fact increased the quantity and degree of proof necessary to establish guilt, and are not ex post facto. Dobbert, supra; Cartwright, supra. The ex post facto analysis and the holdings thereunder in Riggs v. Branch, 554 P.2d 823 (Okl.Cr.1976) are hereby overturned.
Ex post facto analysis only applies to legislative enactments, however, changes in the law by judicial construction, such as overturning Riggs, implicates the Due Process Clause and requires consideration of ex post facto principles. Cartwright, 778 P.2d at 482. This Court has previously addressed the retroactive application of a judicial interpretation of a statute, which changed the law thus allowing independent reweighing of aggravating and mitigating circumstances and denying defendants automatic modification of a death sentence to life imprisonment, and found the Due Process Clause was not violated under an ex post facto analysis. Castro v. State, 749 P.2d 1146 (Okl.Cr.1987), cert. denied 485 U.S. 971, 108 S.Ct. 1248, 99 L.Ed.2d 446 (1988). Similarly, the change in law by judicial decision that Riggs should be overturned does not violate the Due Process Clause or ex post facto ...