APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA (D.C. Nos. CV-99-1803-A and 5:07-CV-01008-D)[*]
Steven M. Presson, Presson Law Office, Norman, Oklahoma (Robert W. Jackson, Jackson & Presson, P.C., Norman, Oklahoma, with him on the briefs in 02-6324), and Paul R. Bottei (Amy D. Harwell and Kelley J. Henry, Office of the Federal Public Defender, Middle District of Tennessee, Nashville, Tennessee, and Steven M. Presson, Presson Law Office, Norman, Oklahoma, with him on the motion in 12-6014), Office of the Federal Public Defender, Middle District of Tennessee, Nashville, Tennessee, for Appellant.
Jennifer J. Dickson, Assistant Attorney General (E. Scott Pruitt, Attorney General of Oklahoma, with her on the supplemental brief, and W. A. Drew Edmondson, Attorney General of Oklahoma, and Jennifer B. Miller, Assistant Attorney General, on the opening brief), Office of the Oklahoma Attorney General, Oklahoma City, Oklahoma, for Appellee.
Before LUCERO, TYMKOVICH, and GORSUCH, Circuit Judges.
TYMKOVICH, Circuit Judge.
This appeal considers two petitions for habeas relief arising from the murder conviction and death sentence of Michael Wayne Howell. Howell's first petition came before us in 2002. After the Supreme Court ruled that states could not impose capital punishment on persons with mental impairments, we abated that petition and allowed Howell to pursue a mental-disability challenge to his sentence in Oklahoma state court.
In 2005, a state court jury found that Howell was not mentally retarded.Howell then filed a second petition, alleging seventeen grounds for relief from his mental-disability trial, in addition to the five grounds remaining from his first petition that were never considered by this court.
We now conclude that Howell is not entitled to habeas relief on either petition. The state provided him a fundamentally fair mental retardation trial, and both his guilt phase and second penalty phase were free from prejudicial error. The one cognizable error from his first penalty phase—inappropriate contact between sheriff's deputies and a juror—was corrected when Oklahoma's appellate court reversed Howell's first death sentence and remanded for a new penalty trial, which also resulted in a sentence of death. In sum, there is no ground on which we can disturb Howell's conviction or sentence.
Therefore, exercising jurisdiction under 28 U.S.C. §§ 1291 and 2253(a), we affirm the district court's denial of Howell's first habeas petition, and we deny a certificate of appealability (COA) as to Howell's second petition in case number 12-6014 and dismiss that appeal.
Howell and his girlfriend, Mona Lisa Watson, commenced a crime spree on November 2, 1987, that led to the deaths of two people. It began in a Shelby County, Tennessee, 7-Eleven market. As Watson was on her way out of the store with a six-pack of beer, Howell pulled out a silver .38 revolver and shot the store clerk, Alvin Kennedy, in the head, killing him. Howell and Watson then left the store and drove off.
The two traveled west to Oklahoma. While driving, they drank beer and used cocaine. When they reached Del City, Oklahoma, Howell decided to exit the highway and stop at a convenience store, where he purchased lighter fluid. According to Watson's preliminary hearing testimony, their truck was low on gas, so the two were looking for another vehicle. Driving around town, they spotted a woman, later identified as United States Air Force Sergeant Charlene Calhoun, standing outside of an apartment complex next to her 1987 Toyota Tercel. Howell stopped his truck and approached her. He then shot Calhoun in the face.
Watson helped Howell load Calhoun's body into the Tercel. The two then poured the lighter fluid into the truck and set it on fire before driving off with the body in Calhoun's car. A few miles down the highway, in a deserted area, they exited. After driving down a dirt road, they found what looked to be an abandoned trailer, and there they dumped the body. Back in the Tercel, Howell and Watson returned to Tennessee before continuing south to Florida.
The Del City police found the abandoned, burnt truck by the apartment complex and learned that the truck, owned by the Lynn Whitsett Corporation of Memphis, Tennessee (Howell's former employer), had been reported stolen. The police also found blood by the truck and began searching for Calhoun. Finally, on November 17, they found her badly decomposed body where Howell had left it—by a deserted trailer over four miles from the apartment complex.
About two weeks later, on November 29, police officers in Panama City, Florida, spotted a 1987 Toyota Tercel with Tennessee plates that did not match the vehicle. When the officers tried to stop the car, Howell—sitting in the passenger seat—pulled out his revolver and fired at them. The police fired back, and Watson, in the driver's seat, sped off. The police gave chase until Watson and Howell, who was shot in the leg and out of bullets, finally surrendered. The police later confirmed that the revolver Howell used during the car chase was the same silver .38 that he had used to kill Kennedy and Calhoun. The police also confirmed that the Tercel belonged to Calhoun.
Howell and Watson stood trial in Oklahoma state court for the murder of Charlene Calhoun in 1988. They both were convicted. Howell received a sentence of death, and Watson received life in prison. Tennessee then tried Howell for the murder of Alvin Kennedy in 1989; Howell was convicted and again sentenced to death. This appeal concerns alleged errors in the Oklahoma trial and in that case's subsequent proceedings.
II. Procedural History
A. First Trial
Howell and Watson were tried together before a jury in Oklahoma state court for the first-degree murder of Sgt. Calhoun. The guilt phase began on November 28, 1988, and concluded on December 6, 1988, when the jury rendered a guilty verdict as to both Howell and Watson. At that point, because the prosecution was seeking a death sentence, the trial court sequestered the jury in a local motel for the penalty phase. After two more days of hearing evidence and argument, the jury recommended a sentence of death for Howell and life in prison for Watson. The court followed both recommendations.
A few months after the trial, Howell's defense attorneys learned that one of the jurors, Diana Smith, claimed to have engaged in inappropriate conduct with two sheriff's deputies during the jury sequestration at the penalty phase. Juror Smith alleged that she had visited the deputies' motel room at night and discussed the case with them. She also alleged intimate contact with one of the deputies.
Based on these allegations and other purported errors during both phases of the trial, Howell appealed his conviction and sentence to the Oklahoma Court of Criminal Appeals (OCCA).
B. First OCCA Decision
Howell alleged numerous errors in this appeal, including juror misconduct; the trial court's admission of Watson's preliminary hearing transcript; its admission without a limiting instruction of testimony from Watson's former attorneys, whom the prosecution called to rebut Watson's claim that the State had coerced her preliminary hearing testimony; and the failure of one juror to reveal his employment history with the CIA during his voir dire. We discuss these allegations in more detail below.
The OCCA affirmed the guilty verdict, finding no prejudicial error. See Howell v. State, 882 P.2d 1086 (Okla. Crim. App. 1994) (Howell I). First, the OCCA concluded that the admission of Watson's preliminary hearing transcript did not violate the Confrontation Clause, in part because the preliminary hearing testimony "was given in circumstances closely approximating those of a typical trial, " thereby satisfying the criteria articulated in California v. Green, 399 U.S. 149 (1970), "to adequately safeguard [Howell]'s right of confrontation." Howell I, 882 P.2d at 1091 (citing Green, 399 U.S. at 165). Further, the court observed that "cross examination at a preliminary hearing can . . . satisfy the confrontation requirement." Id. (citing Ohio v. Roberts, 448 U.S. 56, 72 (1980)).
Second, Howell claimed that the trial court had "an affirmative duty to instruct the jury sua sponte that [the testimony of Watson's former attorneys] could be used only for impeachment purposes and not for substantive purposes." Id. at 1094. The OCCA rejected that claim, saying the trial court's failure to give a limiting instruction sua sponte "does not automatically constitute reversible error, " and that the failure did not rise to the level of "plain error" in Howell's case. Id.
Third, citing a prior OCCA decision, Tibbetts v. State, 698 P.2d 942 (Okla. Crim. App. 1985), Howell argued that a juror's "deliberate" withholding of his full employment history was inconsistent with fundamental fairness. Howell I, 882 P.2d at 1089. The OCCA summarily rejected this argument, saying only, "[Howell]'s reliance on Tibbetts is misplaced, and the proposition is denied." Id.
But based on the alleged juror misconduct during the penalty phase, the OCCA reversed Howell's death sentence and remanded for resentencing. The court described the alleged misconduct in some detail, including that the juror met with the deputies in their motel room during the penalty phase, that they discussed her guilt-stage deliberations, that they drank alcoholic beverages together, and that, on at least one night, they engaged in "some form of sexual activity." Id. at 1094. Acknowledging the "impermissive, unauthorized and improper contacts by the deputies with" the juror, the court concluded that it "must remand this case for resentencing." Id. at 1095 (emphasis in original).
C. Second Penalty Phase
A second penalty phase trial was held in 1996. The jury found the existence of three aggravating circumstances: (1) Howell was previously convicted of a felony involving the use or threat of violence; (2) the murder was committed for the purpose of avoiding or preventing a lawful arrest or prosecution; and (3) Howell probably would commit future acts of violence and thus posed a continuing threat to society. As a result, the jury recommended a punishment of death, and the trial court sentenced accordingly.
D. Second OCCA Decision
Howell again appealed, raising sixteen alleged errors, including that the court erred in not granting a new guilt phase trial in light of the outrageous juror misconduct during the first penalty phase, and that Howell's counsel from the second penalty phase was constitutionally ineffective for telling the jury that Howell was already on death row at the Oklahoma State Penitentiary.
The OCCA affirmed in full. See Howell v. State, 967 P.2d 1221 (Okla. Crim. App. 1998), cert. denied, 528 U.S. 834 (1999) (Howell II). On Howell's request for a new guilt phase trial, the court noted that Howell was using the same evidence in his second appeal as he used in his first. Id. at 1224. Therefore, the OCCA concluded its prior decision to remand only for resentencing was "res judicata, " and it would not revisit the issue. Id.
On Howell's ineffective-assistance-of-counsel (IAC) claim, the court found "it was counsel's strategy to show that [Howell] had been a model prisoner while on death row, thereby rebutting the continuing[-]threat aggravating circumstance." Id. at 1226. The court refused to "second guess trial strategy, " and denied the claim. Id.
The OCCA also engaged in a full sentence review, as mandated by Oklahoma law. See Okla. Stat. tit. 21, § 701.13(C) (1991). The court found support for each of the three aggravating factors. For the first factor, the court identified nine prior convictions against Howell involving the use of threat, force, or violence, including two counts of attempted murder in the first degree and one count of murder in the first degree during the commission of a robbery. Howell II, 967 P.2d at 1229. For the second factor, the court observed that "[Howell] sought to avoid arrest or prosecution for the theft of Sgt. Calhoun's vehicle" by removing her body from the scene of the murder and hiding it over four miles away before absconding with her car. Id. at 1227. And for the third factor, the court found that "the callous nature of the crime, [Howell]'s blatant disregard for the importance of human life, and his demonstrated pattern of criminal conduct render him a continuing threat to society." Id. at 1229.
The court next reviewed Howell's mitigation evidence. It listed eleven different claims Howell offered in mitigation, including that "his childhood was poor and violent, " that "he suffers from a brain dysfunction, " and that "he never received any intervention to recognize and treat his deficiencies." Id. Acknowledging Howell's mitigation case, the court nevertheless concluded that the death sentence was "factually substantiated and appropriate." Id. The court also found that the penalty was imposed without the influence of juror "passion, prejudice[, ] or any other arbitrary factor." Id. Thus, the death sentence was affirmed.
E. First Habeas Petition
After exhausting Oklahoma's post-conviction review, Howell filed a 28 U.S.C. § 2254 petition in federal court in 2000, raising ten grounds for relief. In 2002, the district court denied relief on all grounds, and Howell appealed only as to five.
Also in 2002, the Supreme Court decided Atkins v. Virginia, 536 U.S. 304 (2002), holding that the Eighth Amendment barred the death penalty for persons with severe mental disabilities. At the time, Howell's appeal from the denial of his first habeas petition was before us. Howell requested that we hold his appeal in abeyance while he pursued relief from his death sentence in state court under an Atkins theory. We abated the appeal.
F. Atkins Trial
The Oklahoma courts determined that a trial was necessary to decide Howell's mental capacity. A jury trial commenced for that purpose on May 23, 2005. Howell elected not to be present. Three witnesses—a psychologist (Dr. Daniel Grant) and two of Howell's siblings—testified on Howell's behalf. Four witnesses—a psychologist (Dr. John Hutson), Howell's former prosecutor, a police officer, and Howell's former co-defendant and current wife (Watson)— testified for the State. The judge instructed the jury to find Howell "mentally retarded" under Oklahoma law if Howell proved by a preponderance of the evidence (1) that he had significant subaverage intellectual functioning (i.e., an IQ below 70), (2) which manifested itself before he was eighteen years of age, and (3) that he had significant limitations in adaptive functions. On May 27, 2005, the jury unanimously decided that Howell was not mentally retarded.
G. Third OCCA Decision
Howell appealed the jury's Atkins determination to the OCCA, raising eleven propositions of error, including that the facts proven at trial demonstrated his mental retardation as a matter of law, and that the trial court should have placed the burden of proof on the government.
The OCCA affirmed the jury's decision. See Howell v. State, 138 P.3d 549 (Okla. Crim. App. 2006) (Howell III). Reviewing the evidence "in a light most favorable to the State, " the OCCA found the record supported the verdict. Id. at 562. The court observed that Howell's IQ scores ranged from 62 through 91—more than enough for a jury to conclude that Howell's true IQ was not below 70. See id. at 562–63.
The court also noted, "Other evidence, besides the testing scores, suggested that Howell was not limited in his abilities to understand and process information, not limited in communications [sic] skills, was able to learn from experiences or mistakes, was able to engage in logical reasoning, and was able to understand the reactions of others." Id. at 563. The court then highlighted Howell's handwritten letters to Watson, whom Howell married while both were in prison, and Howell's testimony at trial in 1988 and before a judge in 1996.
On Howell's burden-of-proof argument, the OCCA re-affirmed its prior decisions giving the defendant the burden to prove mental retardation by a preponderance of the evidence. Id. at 562 (citing, inter alia, Myers v. State, 130 P.3d 262, 265 (Okla. Crim. App. 2005)). The court explained, "[That] a defendant is not mentally retarded is not an aggravating circumstance which the State must prove beyond a reasonable doubt. . . . Eligibility for the death penalty is a different issue than proof of an aggravating circumstance." Id. at 561 (citing Okla. Stat. tit. 21, § 701.12 (2001)).
The court also correctly noted that several other states—including Louisiana, New York, South Carolina, and Tennessee—likewise allocated the burden of proof to the defendant. See State v. Anderson, 996 So.2d 973, 984–85 (La. 2008); People v. Smith, 751 N.Y.S.2d 356, 357 (N.Y. Sup. Ct. 2002); State v. Laney, 627 S.E.2d 726, 730–32 (S.C. 2006); Howell v. State, 151 S.W.3d 450, 467 (Tenn. 2004); see also Howell, 151 S.W.3d at 467 (listing more states of accord, including Georgia, Mississippi, New Mexico, Ohio, Texas, and Virginia).Hence, the OCCA denied this ground for relief as well.
H. OCCA's Post-Conviction Review of the Atkins Trial
After the appeal, Howell filed another petition for post-conviction relief in state court, raising several claims of ineffective assistance of counsel during the trial on mental retardation. As relevant here, Howell alleged that the prosecution struck jurors based on their race, in violation of Batson v. Kentucky, 476 U.S. 79 (1986), and that his counsel was constitutionally ineffective for failing to object. Howell also alleged that his trial counsel failed to exclude key parts of the state expert Dr. Hutson's testimony, and that counsel failed to include testimony from Howell's former high school teacher showing that Howell had been enrolled in special education classes.
The OCCA denied post-conviction relief. See Howell v. State, No. PCD-2006-712, slip op. (Okla. Crim. App. Sept. 10, 2007) (unpublished) (Howell IV). The court rejected the Batson claim because "[Howell] failed to demonstrate that the prosecutor lacked a race-neutral explanation for the strikes [Howell] complains about." Id. at 5. The court rejected the related IAC claim because it "presume[d], in the absence of any information to the contrary, that counsel had a sound strategic reason for not objecting to the removal of these panelists." Id. And the court rejected Howell's IAC claim regarding the failure to object to Dr. Hutson's testimony because the court did not believe that the testimony was inadmissible in the first place, and in the alternative, it concluded the error was not prejudicial given all the other testimony from both sides about Howell's IQ and the uncertainty of IQ testing. Id. at 8–11.
Lastly, the OCCA rejected Howell's IAC claim regarding the failure to include the teacher's testimony because, according to the court, the error was not prejudicial. The court noted that Howell already presented his siblings' testimony that he was in special education classes with them in high school, and the prosecution rebutted that testimony with Howell's high school transcripts, which do not show him in special education classes (while his siblings' transcripts do show that they were in such classes). Hence, reasoned the court, adding additional testimony that Howell actually was in special education classes still did not explain why his school records showed otherwise. The court concluded, "Given [his siblings' testimony], along with extensive testimony from the defense expert, we fail to see how the very cursory information [Howell] provides from [the teacher] would have added materially to the defense case, or how it could have altered the outcome of the trial." Id. at 21.
I. Second Habeas Petition
After exhausting all state court remedies, Howell filed his second federal habeas petition, alleging various errors in his Atkins trial. The district court denied all relief. It also declined to grant a COA, meaning the court concluded that no reasonable jurist could debate whether Howell's petition should have been resolved differently or deserved encouragement to proceed further. See, e.g., Slack v. McDaniel, 529 U.S. 473, 484 (2000).
Without a COA from the district court, Howell could not appeal the denial of his second habeas petition unless he received a COA from this court, see 28 U.S.C. § 2253(c)(1)(A); see also Fed. R. App. P. 22(b)(1), which is what Howell requested next. Specifically, he asked that we grant him a COA to appeal four of the seventeen grounds for relief before the district court (although, in what he labels a fifth ground, Howell also attempts to incorporate by reference every other ground for relief presented to the district court).
As part of our case management, we reviewed Howell's request for a COA. Like the district court, we too denied the request, but we gave Howell fourteen days to file a motion to reconsider. Howell timely moved for our reconsideration. We then consolidated Howell's pending motion with his appeal from the district court's denial of his first habeas petition, which had been held in abeyance until now.
We now address the merits of Howell's first appeal before turning to his motion to reconsider his COA request.
Howell raises five challenges to his original guilt phase trial in 1988 and subsequent retrial for sentencing in 1996. As to his guilt phase trial, Howell argues that (1) the juror misconduct responsible for reversing his first death sentence also required granting him a new trial on guilt; (2) the admission of Watson's preliminary hearing testimony at their joint trial violated his Confrontation Clause rights; and (3) one juror's failure to fully disclose his prior employment history deprived Howell of a fair and impartial jury. He also claims that (4) his Confrontation Clause rights were violated when Watson's former attorneys were allowed to testify about prior communications with Watson during his and Watson's joint trial, a claim which Howell ...