FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN
DISTRICT OF OKLAHOMA (D.C. NO. 5:12-CV-00473-C)
Stephen Jones, Jones, Otjen, Davis & Bloyd, Enid,
Oklahoma, for Petitioner-Appellant.
Theodore M. Peeper, Assistant Attorney General (Mike Hunter,
Attorney General of Oklahoma, with him on the brief), Office
of the Oklahoma Attorney General, Oklahoma City, Oklahoma,
TYMKOVICH, Chief Judge, BALDOCK, and HOLMES, Circuit Judges.
TYMKOVICH, CHIEF JUDGE.
charged Raye Dawn Smith with several child abuse charges
stemming from the death of her two-year-old daughter, Kelsey,
who died from blunt force trauma to the abdomen. Kelsey's
death, and Smith's subsequent trial, generated
substantial public interest and publicity. In the end, a jury
convicted Smith of enabling child abuse.
her conviction, Smith moved for a new trial based on claims
of juror misconduct and jurors' exposure to information
outside the courtroom. In support, Smith produced two
affidavits from individuals who had attended the trial. Both
alleged several jurors slept during the trial, and one juror
slept continuously. Smith also claimed jurors were exposed to
extraneous outside-the-court publicity about the trial that
tainted the verdict. The trial court denied the motion. In
ruling on the motion, the trial judge asserted he closely
watched the jury and did not see a juror continuously
then appealed to the Oklahoma Court of Criminal Appeals
(OCCA), raising numerous claims. She also requested an
evidentiary hearing on a variety of issues, including her
claims related to juror misconduct. The OCCA granted the
request in part. But the OCCA refused to hold a hearing on
the sleeping-juror allegations because it concluded the trial
judge's statement that no juror slept throughout the
trial adequately refuted the allegations to the contrary in
the affidavits Smith submitted. Ultimately, the OCCA denied
relief on all of Smith's claims.
now seeks a writ of habeas corpus in federal court under 28
U.S.C. § 2254, advancing three primary arguments. She
bases the first two on allegations that a juror slept
throughout the duration of her trial. First, Smith claims
this violated her constitutional rights to an impartial jury
and due process. Second, Smith argues her counsel performed
ineffectively by failing to bring the sleeping juror to the
court's attention. Finally, Smith asserts the jury's
improper exposure to outside information also violated her
constitutional rights to an impartial jury and due process.
district court denied Smith's petition. We
AFFIRM. The OCCA did not base its denial of
Smith's claims on an unreasonable determination of the
facts. And Smith does not argue the OCCA's opinion was
contrary to, or unreasonably applied, clearly established
federal law. Accordingly, the Antiterrorism and Effective
Death Penalty Act of 1996 (AEDPA) forbids us from granting
begin with the facts of the crime and the relevant procedural
The Crime and Smith's Conviction
Dawn Smith's two-year-old daughter, Kelsey, died in
October 2005 from blunt force trauma to the abdomen. The
medical examiner considered the death a homicide. Eventually,
Oklahoma charged Smith with child abuse or, alternatively,
enabling child abuse by injury.
death-and Smith's subsequent indictment, trial, and
conviction-garnered great public attention and immense media
coverage. This was due in part to the family of Kelsey's
father starting a website entitled "Kelsey's
Purpose." The site aimed to "seek justice" for
Kelsey's killer, and it all but accused Smith of causing
the child's death. App. at 529. Indeed, the site
prominently featured allegations of abuse against Smith.
of the widespread public interest in the case, Smith moved to
change the trial's venue. The court granted the request
and moved the trial to an adjacent county. This change of
venue did not, however, altogether eliminate the media's
laser-like focus on the case. Indeed, many members of the
media attended Smith's trial, personally watching the
proceedings and then providing on-camera updates outside the
an eight-day trial, the jury convicted Smith of one count of
enabling child abuse. In accordance with the jury's
recommendation, the court sentenced her to 27 years'
Post-Trial Motions and Appeal to the OCCA
sentencing, Smith moved for a new trial in the state district
court. She alleged numerous errors, including that
jurors' failure to stay awake throughout the trial
prejudiced her defense. In support, Smith attached two
affidavits from individuals who attended the trial. Both
claimed they saw multiple jurors sleeping during Smith's
trial, including one female juror who slept continuously.
trial court denied the motion. In doing so, it expressly
rejected the allegation jurors slept during trial:
In Randleman v. State, 552 P.2d 90 (Ok. Cr. 1976),
the Court stated, "The trial court should make his
observations of the trial (i.e. jurors who might have fallen
asleep) a part of the record in his ruling upon such an
The following is the Court's observation: During the
course of this trial, as with any trial, I constantly and
zealously view the jury in order to ascertain whether or not
they are alert and attentive, as required by the Court's
instructions and by the law. The allegation that as many as
nine jurors slept during the trial is absolutely false and
untrue. It did not happen. I observed one juror who on one
day appeared to be asleep. I immediately admonished the jury
on the record to remain alert and then recessed court. I
continued to monitor the jury in general and this juror in
particular and saw no repetition of this behavior. No other
juror ever gave any appearance whatsoever of falling asleep.
One juror did bring what appeared to be a throw and placed it
over her shoulders, inasmuch as the courtroom was too cold
for her personal preference.
The jurors were faithful and conscientious to their duty, and
any attempt to say otherwise maligns them.
App. at 170.
then appealed to the OCCA, raising a number of claims. She
also requested an evidentiary hearing on various issues, some
of which related to her claims of juror misconduct. To
support her contention a juror slept throughout the trial,
Smith submitted affidavits from five jurors. In four of the
affidavits, jurors alleged that one of their fellow jurors,
L.E., continuously slept during trial. The fifth and final
affidavit was from juror L.E. herself. She admitted that
"[d]uring the trial, [she] continually fell asleep and
the woman next to [her] was told to nudge [her] to keep [her]
awake." App. at 442. L.E. stated the reason she kept
falling asleep was her low potassium levels. Though she had a
prescription for potassium to prevent this very problem, L.E.
claimed she "never c[ould] remember to take it."
OCCA granted Smith's request for an evidentiary hearing
in part, but not for the purpose of determining if a juror
actually slept throughout the trial.After the evidentiary
hearing, the OCCA denied relief on all of Smith's claims.
Smith filed a petition for habeas relief pursuant to 28
U.S.C. § 2254, arguing she was entitled to relief for
many reasons. The district court denied the petition. But the
court granted Smith two certificates of appealability (COA).
The first addresses whether juror misconduct deprived Smith
of her constitutional rights to an impartial jury and due
process. More precisely, the district court granted a COA on
whether jurors engaged in misconduct in two ways: by sleeping
continuously during trial, and by being prejudicially exposed
to outside information. The second COA addresses whether
Smith's trial counsel performed ineffectively by failing
to object to the supposedly sleeping juror.
Standard of Review
appeals from the denial of a petition for habeas corpus, we
review the district court's legal analysis de novo and
its factual findings for clear error. Smith v.
Duckworth, 824 F.3d 1233, 1241-42 (10th Cir. 2016). But
Congress has sharply limited our review of state court
decisions. When a state court adjudicates a petitioner's
claim on the merits, AEDPA bars us from granting relief
except in two narrow circumstances.
we can grant relief if the state court's decision was
contrary to, or an unreasonable application of, clearly
established federal law the Supreme ...