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Wood v. Carpenter

United States Court of Appeals, Tenth Circuit

November 1, 2018

TREMANE WOOD, Petitioner-Appellant,
MIKE CARPENTER, [*] Interim Warden, Oklahoma State Penitentiary, Respondent-Appellee.


          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 Respondent.

          Before TYMKOVICH, Chief Judge, MATHESON, and BACHARACH, Circuit Judges.


         This 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.

         In 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).


         An 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.

         The 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 sentence.

         Wood 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.

         Wood 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 ineffectively.[1]

         During 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.

         For the reasons discussed below, we AFFIRM the district court's denial of the petition for habeas relief.

         I. Background

         We begin by explaining the underlying facts and the numerous previous proceedings.

         A. The Crime

         On December 31, 2001, Tremane Wood rang in the new year at a brewery in Oklahoma City.[2] Wood's brother Zjaiton, [3] 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.

         But 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.

         The 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.[4] The women ran out the door and a fight ensued.

         At 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.

         B. Wood's Murder Trial

         Oklahoma 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.

         John Albert represented Wood at the guilt and sentencing phases of trial.[5]Eventually, the court severed Wood's trial from the other defendants'. At the guilt phase, the jury convicted Wood of first-degree felony murder.[6]

         At the 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.

         Dr. 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.

         Lastly, 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.

         The jury sentenced Wood to death.

         C. Direct Appeal to the OCCA

         Wood 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.

         The OCCA granted the application and remanded the case to the trial court, instructing it to hold an evidentiary hearing and answer five factual questions.[7]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.

         But the 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.

         Trial 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.

         Wood's 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.

         After 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.

         The OCCA ultimately affirmed Wood's conviction and sentence.

         D. Post-Conviction Appeal in the OCCA

         Next, 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.[8]

         E. Wood's Habeas Petition

         Wood 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.

         Wood 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 the OCCA.

         After 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.

         II. Standard of Review

         When 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; or
(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.

§ 2254(d)(1)-(2).

         "Clearly 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).

         A state 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).

         Finally, 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." Id.[9]

         AEDPA 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)).

         With the limited nature of our review in mind, we turn to Wood's claims.

         III. Analysis

         Wood 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.

         A. Ineffective Assistance of Trial Counsel

         We first summarize the trial-counsel-ineffectiveness standard before turning to Wood's claim his trial counsel performed ineffectively.

         1. Legal Standards

         In 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.

         Counsel 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).

         Importantly, 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.

         "Surmounting 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 ยง ...

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