FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN
DISTRICT OF OKLAHOMA (D.C. NO. 5:10-CV-00829-HE)
Jessica L. Felker, Assistant Federal Public Defender (Jon M.
Sands, Federal Public Defender, with her on all briefs, and
Amanda C. Bass, Assistant Federal Public Defender, with her
on reply and supplemental briefs), Office of the Federal
Public Defender, Phoenix, Arizona, for Petitioner.
Jennifer L. Crabb, Assistant Attorney General (Mike Hunter,
Attorney General of Oklahoma, with her on the briefs), Office
of the Attorney General, Oklahoma City, Oklahoma, for
TYMKOVICH, Chief Judge, MATHESON, and BACHARACH, Circuit
matter is before the court on the appellant's
Petition for Rehearing and Request for En Banc
Consideration. Upon consideration, the request for panel
rehearing is granted in part and to the extent of the changes
made to the attached revised opinion. The clerk is directed
to file the revised opinion effective the date of this order.
Panel rehearing is otherwise denied.
addition, the Petition was also circulated to all
the judges of the court in regular active service. As no
judge on the original panel or the en banc court requested
that a pollbe called, the suggestion for en banc rehearing is
denied. See Fed. R. App. P. 35(f).
TYMKOVICH, CHIEF JUDGE.
Oklahoma jury convicted Tremane Wood of first-degree felony
murder for the killing of Ronnie Wipf during a botched
robbery. The jury found Oklahoma had proved three aggravating
circumstances associated with the murder, and the mitigating
circumstances did not outweigh them. The jury accordingly
sentenced Wood to death.
conclusion of Wood's trial was only the start of his
case's long legal odyssey. Wood directly appealed his
conviction to the Oklahoma Court of Criminal Appeals,
advancing, as relevant here, two primary arguments. First, he
claimed his trial counsel performed ineffectively at the
sentencing stage. Second, he argued the "heinous,
atrocious, or cruel" aggravating circumstance could not
be constitutionally applied to this case given the dearth of
evidence that Mr. Wipf suffered before death. The OCCA
ordered an evidentiary hearing on the ineffectiveness issue,
but ultimately affirmed Wood's conviction and death
then filed an application for post-conviction relief in state
court. He claimed his appellate counsel performed
ineffectively on direct appeal, including at the evidentiary
hearing. The OCCA again denied relief.
next filed a habeas petition under 28 U.S.C. § 2254 in
the Western District of Oklahoma. The district court denied
the petition. We granted Wood certificates of appealability
on whether his trial and appellate counsel performed
the course of this appeal, we decided Pavatt v.
Royal, 859 F.3d 920 (10th Cir. 2017), opinion
amended and superseded on denial of rehearing on July 2, 2018
by Pavatt v. Royal, 2017 WL 9771976 (10th Cir. 2017), a
challenge to Oklahoma's application of the heinous,
atrocious, and cruel aggravator in that case. Based on
Pavatt, we granted an additional COA on whether the
HAC aggravating circumstance could be constitutionally
applied to the facts of this case.
reasons discussed below, we AFFIRM the
district court's denial of the petition for habeas
begin by explaining the underlying facts and the numerous
December 31, 2001, Tremane Wood rang in the new year at a
brewery in Oklahoma City. Wood's brother Zjaiton,
Zjaiton's girlfriend Lanita, and Wood's ex-girlfriend
Brandy joined him. At some point during the festivities,
Lanita and Brandy began talking with two fellow brewery
patrons-Ronnie Wipf and Arnold Kleinsasser. Wipf and
Kleinsasser invited the women back to their motel to continue
celebrating. After conferring with Wood and Zjaiton, the
women agreed to leave with their new acquaintances.
something nefarious was afoot. Before leaving, Wood, Zjaiton,
and the women concocted a plan. The women would pretend to be
prostitutes and, once Wipf and Kleinsasser secured the money
to pay them, the Wood brothers would show up at the motel and
rob the two men.
women put the plan into action. At the motel, Wipf and
Kleinsasser agreed to pay them $210 to have sex. The men had
no cash on hand, however, so they all drove to an ATM.
Meanwhile, Wood and Zjaiton waited outside the motel. Once
the women, Wipf, and Kleinsasser arrived back at the room,
Wood and Zjaiton pounded on the door. Mr. Wipf opened the
door and the brothers barged in. Both were armed-Wood with a
knife and Zjaiton with a gun. The women ran out the door and a
first, Wood fought Mr. Wipf alone. But Zjaiton eventually
joined the fray and helped Wood fight Wipf. After Zjaiton had
joined the fight, Kleinsasser saw that Mr. Wipf was covered
in blood. At some point during this brawl, Mr. Wipf was
fatally stabbed in the chest. Autopsy diagrams and pictures
of Wipf's body reveal his face was bloody and bruised,
and he had a deep cut on his right hand.
Wood's Murder Trial
charged Wood, Zjaiton, Lanita, and Brandy with numerous
crimes, including first-degree felony murder. The state
sought the death penalty against both Wood and Zjaiton,
arguing that four aggravating circumstances warranted the
death sentence. One of those circumstances was that the
murder was especially heinous, atrocious, or cruel.
Albert represented Wood at the guilt and sentencing phases of
trial.Eventually, the court severed Wood's
trial from the other defendants'. At the guilt phase, the
jury convicted Wood of first-degree felony
sentencing phase, three witnesses testified on Wood's
behalf. Andre Taylor, a family friend, testified that Wood
was well liked, was not a bad person, and loved his children.
Hand, a licensed psychologist, also testified. He first
emphasized how chaos defined Wood's family life. To
demonstrate this, he cited numerous Department of Human
Services (DHS) records in which Wood's mother, Linda,
claimed her husband and Wood's father, Raymond Gross,
abused her. And Dr. Hand explained that when Wood did get in
trouble, he was usually following Zjaiton's lead. When
cross examined, however, Dr. Hand stumbled a bit. The
prosecution asked him about Wood's juvenile records,
specifically those detailing Wood's previous assault
charge. Though Dr. Hand recalled reviewing a large stack of
records, he could not recall those specific ones.
Wood's mother Linda testified. She painted a dark
portrait of her relationship with Gross. They had, she said,
"a very abusive relationship. I had been beaten many,
many times in front of my children. Tied up. Dragged down the
highway. My bones broke." Tr., 04/05/2004, at 91. But
Linda, too, floundered a bit on cross examination. The
prosecution attacked her allegations of abuse, emphasizing
how DHS had found most of them invalid.
jury sentenced Wood to death.
Direct Appeal to the OCCA
retained new lawyers for his direct appeal to the Oklahoma
Court of Criminal Appeals. Wood also applied for a Rule 3.11
evidentiary hearing to develop additional evidence about his
claim trial counsel performed ineffectively. In support of
the application, Wood put forward seventeen affidavits and
over 1, 200 pages of juvenile records.
OCCA granted the application and remanded the case to the
trial court, instructing it to hold an evidentiary hearing
and answer five factual questions.The court then held a
three-day hearing during which Wood presented twenty-three
witnesses. Ten witnesses testified about Wood's life
history, including his mother, his father, and his brothers
Andre and Zjaiton. Much of this testimony hit on the same
themes Linda and Dr. Hand had testified to at trial-albeit,
in far more detail.
evidentiary hearing did not merely recite the trial testimony
with a few extra details; new evidence did emerge. For
example, Andre Wood testified that Gross abused Wood as well
as Linda. And Gross testified for the first time. He admitted
to once handcuffing Linda to his car as punishment for
sleeping with his nephew. He also confessed to pushing Linda
in front of his sons. But Gross denied other instances of
abuse, such as knocking Linda's teeth out or dragging her
on the ground after he handcuffed her. Similarly, Gross
admitted he had whipped his sons before, but insisted he
never did so sadistically.
counsel, Mr. Albert, also signed an affidavit and testified
at the hearing. In his affidavit, he acknowledged time
constraints caused him to "not prepare enough of a
mitigation case to effectively represent and defend"
Wood. EH Vol. 1 Ex. M. In his testimony, Mr. Albert similarly
admitted he failed to hire an investigator. But he stressed
that he had interviewed Wood, Linda, and Zjaiton. And he
emphasized that he and Dr. Hand had successfully employed
this same strategy in other cases.
counsel at the evidentiary hearing also wanted to introduce
testimony from Dr. Kate Allen, a sociologist with a doctoral
degree in family sociology who had worked as a social worker
and professor for thirty-five years. The trial court granted
the state's objection to Dr. Allen testifying. She was
not qualified as an expert witness, the trial court
concluded, and her testimony would have been cumulative.
hearing three days of testimony, the trial court entered
findings of fact answering the OCCA's questions. The OCCA
then permitted the parties to submit ten-page supplemental
briefs to challenge these findings. Wood's counsel did
so, and the brief attacked the court's answers to the
five questions. The brief did not, however, mention the
exclusion of Dr. Allen's testimony.
OCCA ultimately affirmed Wood's conviction and sentence.
Post-Conviction Appeal in the OCCA
Wood moved for post-conviction relief in the OCCA on a number
of grounds. As relevant here, Wood alleged his appellate
counsel performed ineffectively on direct appeal, including
during the Rule 3.11 evidentiary hearing. The OCCA denied
relief on all of these claims.
Wood's Habeas Petition
filed a 28 U.S.C. § 2254 petition in the Western
District of Oklahoma, raising ten issues. The district court
denied relief on all of them. Wood then sought certificates
of appealability on numerous claims; we granted COAs on two
issues. First, whether Wood's trial counsel performed
ineffectively at the sentencing stage by (1) failing to
adequately, investigate, select, prepare, and present
mitigation lay witnesses, (2) failing to prepare and present
the mitigation expert witness Dr. Hand, and (3) failing to
investigate, obtain, and present Linda Wood's medical
records, and Wood's juvenile, school, medical, mental
health, and DHS records. And second, whether Wood's
appellate counsel on direct appeal performed ineffectively by
failing to challenge the exclusion of Dr. Allen's
testimony in the supplemental brief.
then requested leave to certify additional issues. We granted
his request for a COA on the claim appellate counsel
performed ineffectively at the evidentiary hearing for three
additional reasons: (1) failing to obtain and use documents
that would have undercut Gross's denials of abuse, (2)
not alerting the court about Mr. Albert's subsequent
disciplinary proceedings, and (3) failing to point out the
trial court's factual errors in supplemental briefing to
briefing concluded, Wood asked us to certify two additional
issues in light of our circuit's decision in Pavatt
v. Royal, 859 F.3d 920 (10th Cir. 2017), opinion
amended and superseded on denial of rehearing on July 2, 2018
by Pavatt v. Royal, 2017 WL 9771976 (10th Cir. 2017). We
granted a COA on one of the issues-whether constitutionally
sufficient evidence supported the application of the heinous,
atrocious, or cruel aggravating circumstance.
Standard of Review
reviewing whether the federal district court erred in denying
habeas relief, we review its legal analysis de novo and its
factual findings for clear error. Smith v.
Duckworth, 824 F.3d 1233, 1241-42 (10th Cir. 2016). But
in proceedings under 28 U.S.C. § 2254, the Antiterrorism
and Effective Death Penalty Act of 1996 (AEDPA) significantly
limits our review. Under AEDPA, when a state court
adjudicated a petitioner's claim on the merits, we cannot
grant relief unless that adjudication:
(1) resulted in a decision that was contrary to, or involved
an unreasonable application of, clearly established Federal
Law, as determined by the Supreme Court of the United States;
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented
in the State court proceedings.
established Federal Law" refers to the Supreme
Court's holdings, not its dicta. See, e.g.,
Williams v. Taylor, 529 U.S. 362, 412 (2000). A
state-court decision is only contrary to clearly established
federal law if it "arrives at a conclusion opposite to
that reached by" the Supreme Court, or "decides a
case differently" than the Court on a "set of
materially indistinguishable facts." Id. at
412-13. But a state court need not cite the Court's cases
or, for that matter, even be aware of them. So long as the
state-court's reasoning and result are not contrary to
the Court's specific holdings, § 2254(d)(1)
prohibits us from granting relief. See Early v.
Packer, 537 US. 3, 9 (2002) (per curiam).
court's decision unreasonably applies federal law if it
"identifies the correct governing legal principle"
from the relevant Supreme Court decisions but applies those
principles in an objectively unreasonable manner. Wiggins
v. Smith, 539 U.S. 510, 520 (2003).
Critically, an "unreasonable application of
federal law is different from an incorrect
application of federal law." Williams, 529 U.S.
at 410 (2000). "[E]ven a clearly erroneous application
of federal law is not objectively unreasonable."
Maynard v. Boone, 468 F.3d 665, 670 (10th Cir.
2006). Rather, a state court's application of federal law
is only unreasonable if "all fairminded jurists would
agree the state court decision was incorrect." Frost
v. Pryor, 749 F.3d 1212, 1225 (10th Cir. 2014).
a state-court decision unreasonably determines the facts if
the state court "plainly misapprehend[ed] or misstate[d]
the record in making [its] findings, and the misapprehension
goes to a material factual issue that is central to
petitioner's claim." Byrd v. Workman, 645
F.3d 1159, 1170-72 (10th Cir. 2011). But this "daunting
standard" will be "satisfied in relatively few
cases." Id. That is because the state
court's decision must be "based on an
unreasonable determination of the facts."
thus "erects a formidable barrier to federal habeas
relief." Burt v. Titlow, 571 U.S. 12, 16
(2013). Congress crafted such a deferential standard to
ensure review under § 2254 serves only as "'a
guard against extreme malfunctions in the state criminal
justice systems,' not a substitute for ordinary error
correction through appeal." Harrington v.
Richter, 562 U.S. 86, 102-03 (2011) (quoting Jackson
v. Virginia, 443 U.S. 307, 322 n.5 (1979)).
the limited nature of our review in mind, we turn to
raises three general claims. First, that his trial counsel
performed ineffectively. Second, that his appellate counsel
on direct appeal performed ineffectively. And finally, that
applying the HAC aggravator to the facts of this case
violated the Constitution.
Ineffective Assistance of Trial Counsel
first summarize the trial-counsel-ineffectiveness standard
before turning to Wood's claim his trial counsel
Strickland v. Washington, 466 U.S. 668 (1984), the
Supreme Court laid out the now-familiar framework for
ineffective assistance of counsel claims. Under it, Wood must
demonstrate both that his counsel performed deficiently and
that he suffered prejudice from this deficient performance.
Strickland, 466 U.S. at 687.
performs deficiently if his representation falls "below
an objective standard of reasonableness" under
prevailing professional norms. Id. at 688-89. At the
sentencing stage of a capital trial, counsel has a duty to
"thoroughly investigat[e] and present mitigating
evidence." Cargle v. Mullin, 317 F.3d 1196,
1221 (10th Cir. 2003). Failing to do so can constitute
deficient performance. Id. And counsel's
deficient performance at the sentencing stage prejudices the
defendant if, but for counsel's unprofessional errors,
"there is a reasonable probability that one juror would
have chosen a sentence other than death." Matthews
v. Workman, 577 F.3d 1175, 1190 (10th Cir. 2009).
when we evaluate counsel's performance we must do so
through a "most deferential" lens.
Richter, 562 U.S. at 105. Though there are
ordinarily "countless ways to provide effective
assistance," it is still "'all too
tempting' to 'second-guess counsel's assistance
after conviction or adverse sentence.'" Id.
at 106 (quoting Strickland, 466 U.S. at 689). We
must resist this temptation and instead make "every
effort . . . to eliminate the distorting effects of
hindsight." Strickland, 466 U.S. at 689. We
thus "indulge a strong presumption that counsel's
conduct falls within the wide range of reasonable
professional assistance." Id.
Strickland's high bar" is therefore
"never an easy task." Richter, 562 U.S. at
105. Yet raising Strickland claims in a habeas
petition makes success all the more difficult. That is
because, taken together, AEDPA and Strickland render
our review "doubly deferential." Knowles v.
Mirzayance, 556 U.S. 111, 123 (2009). We "take a
'highly deferential' look at counsel's
performance, through the deferential lens of §