Young v. Sirmons
Full Opinion (html_with_citations)
In 1995, Julius Recardo Young was convicted in Oklahoma state court of two counts of first degree murder for beating to death a six-year old child and the childâs mother. Young was sentenced to death for these murders. He appeals the district courtâs denial of his 28 U.S.C. § 2254 habe-as petition. We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.
I.
Factual background,
The relevant underlying facts of this case were outlined in detail by the Oklahoma Court of Criminal Appeals (OCCA) in addressing Youngâs direct appeal:
Julius Recardo Young was convicted of murdering his girlfriendâs daughter and six year old grandson. The murders occurred two days after his girlfriend, Joyslon Edwards, advised him she wanted to cool their relationship, and he would not get a key to her new apartment. She was not giving him a key, because she wanted her daughter and grandson to âfeel safeâ when they visited her. They did not like Young. Young had a key to the apartment Edwards had been sharing with her daughter, Joyland Morgan, and her grandson,*945 Kewan Morgan. The day before the murders Edwards demanded the key from Young, but he did not return it.
Joyland and Kewan Morgan were beaten to death in their Tulsa apartment on October 1, 1993. Their wounds indicated the murder weapon was a blunt instrument similar to a baseball bat, but the murder weapon was never found. Ms. Morgan sustained defensive wounds to her hands and arms, and at least thirteen blows to her face and head. These blows broke her jaw, tore open her scalp, and fractured her skull. She was found slumped against a living room wall. Kewan Morgan died in his bed. He sustained massive head fractures caused by two separate blows.
Every night before she went to bed Joyland Morgan secured her front door with two locks and a security chain. The intruder opened both locks with a key and pushed through the security chain, breaking it. A piece of the broken chain was missing from the apartment.
No eye-witnesses were found. However, a downstairs neighbor was awakened at 3:40 a.m. by a single loud bump from Morganâs apartment. Joyslon Edwards testified she saw a baseball bat in Youngâs trunk the night before the murders, but the next day it was gone.
Young always drove Edwards to work and the day of the murders he arrived at 4:15 a.m., earlier than usual. Edwards asked him for change so she could use the vending machines at work. When Young pulled out the contents of his pocket, Edwards saw a piece of security chain similar to the one she had installed on her daughterâs door. Later that day when Edwards learned of the murders, she reported this evidence to the police.
Young lived with his mother at the time, and the police obtained a warrant to search the motherâs home. Edwards told them what Young had worn the previous evening. The police recovered the shoes described by Edwards and these bore a visible spot of blood. Young accompanied the police during the search. He volunteered the drop was fish blood. DNA testing revealed the drop was human blood consistent with that of Joyland and Kewan Morgan. The police also recovered a freshly laundered shirt which tested positive for blood when it was exposed to luminal [sic].
Young v. State, 992 P.2d 332, 336-37 (Okla.Crim.App.1998) (Young I) (internal paragraph numbers omitted).
State court 'proceedings
On February 22, 1994, Young was charged by information in the District Court of Tulsa County, Oklahoma, with two counts of first degree murder (under alternative theories of malice aforethought and felony murder) and one count of first degree burglary. On May 5, 1994, the State filed a bill of particulars asserting that Young should be punished by death for the murder offenses âdue to and as a result ofâ four aggravating circumstances: (1) âThe defendant knowingly created a great risk of death to more than one personâ; (2) âThe murder was especially heinous, atrocious, or cruelâ; (3) âThe murder was committed for the purpose of avoiding or preventing a lawful arrest or prosecutionâ; and (4) âThe existence of a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society.â
On September 21, 1994, Young filed a âNotice of Mitigation in the Event of Convictionâ that listed nine witnesses who would testify in mitigation in the event Young was convicted of one or both murders. State Court ROA, Vol. I at 83. The notice further stated that, âin the event of a conviction,â â[ejvidence w[ould] be introduced as a matter of law to generalities and specifics of the good person that Julius Young ha[d] been.â Id. at 84. On September 30, 1994, Young filed a âSupplement to Notice of Mitigation in the Event of Convictionâ stating that, of the nine witnesses listed in the original notice, the first seven would âtestify substantially as to generally the good things that [Young] ha[d] done and their belief concerning that he [wa]s not a future danger to the community, along with past good deeds.â Id. at 85. The Supplement further indicated that the eighth and ninth witnesses listed in the original âNotice,â i.e. the two licensed professional counselors that were originally listed in Youngâs application for psychological evaluation, would testify regarding the results of psychological testing on Young. Id. According to the state court record, however, Youngâs counsel never renewed their application for psychological evaluation. Thus, the two licensed professional counselors listed as witnesses in the Supplement to Notice of Mitigation never interviewed or evaluated Young.
The case proceeded to trial on September 5, 1995. At the conclusion of the first-stage proceedings, the jury found Young guilty of two counts of first degree malice aforethought murder (Counts I and II of the information) and one count of first degree burglary (Count III)- At that time, the prosecution filed a notice of intent to offer evidence in rebuttal of any mitigating evidence that Young might present. State Court ROA, Vol. Ill at 435.
The state district court conducted sentencing proceedings on September 28 and October 4, 1995. During the September 28th proceeding, Youngâs counsel asked the state district court to sentence Young to life imprisonment without the possibility of parole. In support of this request, Youngâs lead counsel, Jim Fransein, asserted that he had planned to introduce witnesses and evidence in mitigation during the second-stage proceedings, but that the mitigation witnesses âhad been advised without [his] permission, [his] request or [his] recommendation not to appear,â and that Young likewise had determined not to take the stand in his own defense. ROA, Tr., Vol. Ill at 937. In response to this request, the prosecution noted that it had agreed, after Youngâs counsel learned that Young would not be testifying or presenting any mitigation witnesses, to stipulate regarding certain mitigating evidence. Young himself addressed the state district court and asserted his factual innocence of the crimes. Young did not, however, offer any explanation for his decision to forego mitigation testimony. During the October 4th proceeding, the state district court imposed the sentences fixed by the jury.
Youngâs direct appeal and state post-conviction proceedings
Young filed a direct appeal challenging his convictions and sentences. On November 6, 1998, the OCCA affirmed Youngâs convictions and sentences. Young I, 992 P.2d at 336, 348. Young filed a petition for rehearing asserting that the OCCA failed to consider his request for an evidentiary hearing on his claim of ineffective assistance of trial counsel. On February 19, 1999, the OCCA granted Youngâs petition for rehearing and, on the merits, denied his request for an evidentiary hearing. Young filed a petition for writ of certiorari with the United States Supreme Court. That petition was denied by the Supreme Court on October 4, 1999. Young v. Okla
While his direct appeal was still pending before the OCCA, Young, in accordance with Oklahoma procedural rules, filed an application for post-conviction relief with the OCCA. Youngâs application alleged, in pertinent part, that he was denied the effective assistance of trial counsel. In support of that claim, Young submitted âthe affidavits of a mitigation expert, Dr. Wanda Draper, ... and a mental health expert, Dr. Philip J. Murphy.â App. for Post-Conviction Relief at 14. The OCCA denied the application for post-conviction relief on April 28, 1999, in an unpublished opinion. Young v. State, No. PC-97-884 (Okla.Crim.App. Apr. 28, 1999) (Young II).
Youngâs federal habeas proceedings
On April 17, 2000, Young initiated this federal habeas action by filing a pro se motion to proceed in forma pauperis and a motion for appointment of counsel. Youngâs motion for appointment of counsel was granted and, on October 3, 2000, Young filed a preliminary petition for writ of habeas corpus asserting eighteen tentative grounds for relief. On December 4, 2000, Young filed an amended petition asserting only seven grounds for relief.
On September 23, 2005, the district court issued an opinion and order denying Youngâs petition. The district court subsequently granted a certificate of appealability (COA) with respect to four issues: (1) ineffective assistance of trial counsel for failing to adequately investigate and present mitigation evidence during the second-stage proceedings; (2) improper victim impact evidence; (3) improper admission of Youngâs âfish bloodâ statement; and (4) cumulative error. On appeal, Young has abandoned his challenge to the admission of his âfish bloodâ statement, but continues to pursue the remaining three issues.
II.
Our review of Youngâs appeal is governed by the provisions of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). 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 âwas contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States,â 28 U.S.C. § 2254(d)(1), or âwas based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding,â id. § 2254(d)(2). âWhen reviewing a state courtâs 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.â McLuckie v. Abbott, 337 F.3d 1193, 1197 (10th Cir.2003). âRather, we must be convinced that the application was also objectively unreasonable.â Id. âThis standard does not require our abject deference, ... but nonetheless prohibits us from substituting our own judgment for that of the state court.â Snow, 474 F.3d at 696 (internal citation and 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)âs deferential standards of
III.
Introduction of victim-impact evidence
Young contends that the introduction of victim impact evidence during the second-stage proceedings violated his rights under the Eighth and Fourteenth Amendments. This evidence came in the form of testimony from Catherine Morgan, the maternal aunt of Joyland. Morgan testified that she was selected by members of the victimsâ family to prepare a victim impact statement for the trial court. ROA, Tr., Yol. Ill at 913. At the request of the prosecution, Morgan read her statement into the record:
The tragic [sic] of Joyland and Ke-wanâs death affected more than 55 members. The effect on the family was devastating, shocking, hurt and anger as to why this happened.
Each family member was affected by this differently. Some were very emotionally upset, some had to be strong for others and for Lavada Grant, the aunt of Joyland and Kewan, she had a heart attack and died the night of the murders.
James Ella, Joyland and Kewanâs grandmother, had some health problems with her nerves, sleepless nights, crying and worrying. She did the best to be strong for other family members, but of her closeness with Joyland and Kewan, this was very difficult at the time.
Joyland and James Ella were very close. Joyland would come into James Ellaâs room and lay across the foot of her bed and share her thoughts and feelings about things.
They would talk about Joylandâs goal for her life. James Ella would offer Joyland advice as grandmothers and granddaughters would do. James Ella now misses those sharing times.
Kewan was James Ellaâs little boy. He spent a great deal of time with her. Kewan would look forward to Friday evenings to go spend with grandma. He would pack his little blue overnight case and stand in the doorway for her to pick him up. He would say, T wait on maw-mawâ.
They would start the weekend singing, playing and laughing. Kewan was always ready to go to church with grandma so he could sing and clap his hands with the choir.
Joyslon Edwards, the mother of Joy-land and the grandmother of Kewan, was affected by hurt, guilt, anger and shock. The first year after Joyland and Kewanâs death, Joyslon was unable to work at the daycare center where Ke-wan once attended.
Caring for the kids was a constant reminder of things her and Kewan [did] in the day care. Additionally, Joyland helped to decorate her class room at the center. Joyslon would think of things and begin to cry and the children wanted to know whatâs wrong with Miss Joy and asked questions about Kewan so for the best interest of the children she took a leave of absence.
Joyslon wasnât able to sleep at night, she would always see their little faces as she closed her eyes. Stress and depression caused various illnesses such as headaches. Because of her illness and her emotional state, she had to stay with James Ella, her mother.
Joyslon and Joyland were building an even closer relationship. They had become more like sisters and best friends instead of a mother-daughter relation*950 ship. They shared feelings, laughter, smiles, thoughts, problems, did a lot of girl talk both bad and good.
Kewan was Joyslon[â]s little baby boy. He will be missed very much for his laughter, singing with him and teaching him new songs that he loved to do.
Kewan would walk around singing âJesus Love Meâ, âIâm climbing up on the Rough Side of the Mountainâ, and âThat Holy Spiritâ.
You would think, okay, he will be a singer some day, but because of his slow learning disability and understanding words, he never had the opportunity to express what he wanted to be when he grows up.
I believe what we miss most is how Joyland also kept you laughing. There was never a dull moment. She would say funny things or do something not trying to be funny which would be [sic] a smile to your face.
Joyland was a good mother to be as young as she was. She was always there to help you. She was willing to share what she felt or had with those that she loved and trusted.
If she didnât know you she would try and say something nice. Joyland was setting some goals in her life to go back to school to enhance her knowledge with Kewanâs learning disability.
She wanted to prepare Kewan for the public school system while making a better life for her and Kewan. Kewan will be missed for his singing that everyone which I feel he had â is how he expressed himself.
We miss his little feet running through the house and his laughter. We miss Kewan when he spent the weekend with James Ella. Kewan would always race her to bed and try to beat her by getting in bed first.
We miss hearing his laughter when he one [sic], Joyslon and Kewan had a song they would sing together. Joyslon would lead and Kewan would be the background singer. Kewan would be singing âThat Holy Spirit All In My Feetâ. He would touch different items in the apartment and say âthat holy spirit in this chairâ as an example.
Each family member will all have very special memories of Joyland and Kewan that will never be forgotten.
Id. at 913-17.
Young argues that this victim impact testimony âwas not properly restricted to financial, emotional, psychological, and physical effects on the surviving family members.â Aplt. Br. at 49. Instead, he notes, it included â[r]eferences to conversations, hyms [sic] sung by the victim [Ke-wan], and the victimâs future goals,â none of which âwere ... authorized by statute or constitutionally admissible.â Id. Young argues that these references were âdesigned to elicit, and likely did elicit, a strong emotional reaction in the jury and introduced the spectra [sic] of arbitrarinessâ in the juryâs second-stage verdict. Id. Young also complains about the references to Lavada Grant having a heart attack and dying shortly after learning of the murders. Young argues that this â[e]vidence [suggesting] that [he] caused a third death could be viewed as nothing but aggravation, particularly in the absence of any instructional guidance....â Id. at 50.
a) Clearly established federal law
Young identifies Payne v. Tennessee, 501 U.S. 808, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991), as providing the âclearly established federal lawâ applicable to this claim. See Aplt. Br. at 49. In Payne, the Supreme Court clarified the scope of admissible victim impact evidence during the sentencing phase of a capital
b) OCCAâs rejection of Youngâs Payne-based arguments
Young argued in his direct appeal, citing Payne, that the prosecutionâs use of Morganâs victim impact statement violated his rights under the Sixth, Eighth, and Fourteenth Amendments of the United States Constitution. Young Direct Appeal Br. at 77. The OCCA rejected Youngâs arguments, stating as follows:
Trial counsel objected to the introduction of the statement on the grounds it was unconstitutional, more prejudicial than probative and a denial of due process ....
Title 21 O.S. Supp.1995, § 701.10(C) provides the State may present evidence âabout the victim and about the impact of the murder on the family of the victim.â This evidence is subject to the limitations imposed by the Oklahoma Evidence Code as well as the state and federal constitutions, [citation omitted]. Young argues the statement in his case went beyond these parameters. We have examined the victim impact statement delivered at Youngâs trial and find it to be squarely within the confines articulated by this Court and the Oklahoma Legislature. The statement explained succinctly the relationships enjoyed by family members with the victims. The statement focused on the effect of the murders on the family of the victims. This is permissible under § 701.10(C).
Young objects to that part of the statement which included the fact an aunt of the deceased, upon hearing of the murders, suffered a heart attack and died. He argues a causal connection was not proven. This argument is appropriate for trial, not appeal. The presenter of a victim impact statement is subject to cross-examination, and this issue properly could have been plumbed at trial, [citation omitted].
Young I, 992 P.2d at 341-42 (internal paragraph numbers omitted).
c) Applying the AEDPA standards to the OCCAâs analysis
In this federal habeas appeal, Young does not challenge the OCCAâs analysis in
After carefully examining the record on appeal, we conclude that the OCCAâs rejection of Youngâs constitutional challenge to the victim impact statement was neither contrary to, nor an unreasonable application of, Payne. To be sure, the OCCA did not cite directly to Payne. It did, however, cite its own decision in Toles v. State, 947 P.2d 180, 189 (Okla.Crim.App.1997), which in turn acknowledged and applied Payne. As for the specific components of the victim impact statement challenged by Young, the references to conversations that Joyland had with her mother, her future goals, and Kewanâs love of singing hymns simply provided a âquick glimpseâ into the lives of the two people that Young murdered, and thus did not violate Youngâs due process rights. Payne, 501 U.S. at 830, 111 S.Ct. 2597 (OâConnor, J., concurring). The only other specific part of the statement challenged by Young, i.e., the portion that referred to Lavada Grant, an aunt of the two victims, having a heart attack and dying after she learned about the murders, fell within the scope of Payneâs holding allowing the admission of evidence âabout the impact of the murder[s] on the victim[sâ] family....â Id. at 827, 111 S.Ct. 2597. Although Young complains that this portion of the statement implied he was responsible for a third death, we note, as did the OCCA, that his trial counsel made no attempt to cross-examine Morgan on this point. More importantly, having reviewed the entirety of the trial transcript, we are not persuaded that, even in the absence of such cross-examination, this challenged evidence was âso unduly prejudicial that it render[ed] the trial fundamentally unfair....â Id. at 825, 111 S.Ct. 2597.
In sum, we conclude Young has failed to establish his entitlement to federal habeas relief on the basis of the admission of the victim impact statement.
Ineffective assistance of trial counsel
Young next contends that his trial counsel was constitutionally ineffective for failing to adequately investigate available mitigating evidence and present that evidence during the second-stage proceedings. In support of this contention, Young notes that â[n]o social history investigation was performed; no psychiatric or psychological testing was done; no medical examinations were conducted; [and] almost no argument was made to the jury to spare [his] life.â Aplt. Br. at 18. He further notes that â[flamily members and known friends were not interviewed and prepared to testify by explaining the need and importance of their testimony.â Id. at 18-19. He argues that defense counselâs failure prejudiced him âby ensuring that the jury had no evidence to weigh against the aggravating factors or to use to show mercy.â Id. at 19.
a) Clearly established federal law
The âclearly established federal lawâ applicable to this claim is the Supreme Courtâs decision in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In Strickland, the Supreme Court held that â[a] convicted defendantâs claim that counselâs assistance was so defective as to require reversal of a conviction or death sentence has two components.â 466 U.S. at 687, 104 S.Ct. 2052.
b) OCCAâs rejection of Youngâs claim,
Young first raised the issue of ineffective assistance of trial counsel on direct appeal. The OCCA summarily rejected Youngâs claim:
As his fourth allegation of ineffective assistance of counsel, Young argues trial counsel failed to investigate mitigating evidence. This issue is not supported by the record. The record indicates counsel was prepared to call seven witnesses in mitigation.
Young I, 992 P.2d at 347 (internal paragraph number omitted). The OCCA also summarily rejected Youngâs related factual assertion that he waived the presentation of mitigation evidence
Young did not waive mitigation, but opted to introduce it through stipulation. As the State cogently argues, the State had given notice of damaging rebuttal evidence, and Youngâs stipulation strategically avoided this risk as well as the risk of cross-examination.
Id. at 341 (internal paragraph number omitted).
After the OCCA denied his direct appeal, Young filed a petition for rehearing asserting that the OCCA failed to consider his request for an evidentiary hearing in connection with his ineffective assistance claim. The OCCA granted Youngâs petition for rehearing and, on the merits, denied his request for an evidentiary hearing:
In support of his application for a[n] [evidentiary] hearing, Young offers several affidavits and a transcription of an interview with trial counsel. Some of the affidavits are from family members and friends who stated that they were willing to testify at trial, but were never contacted to testify. Other affidavits are from purported experts in the field of human behavior, capital murder cases and mitigating evidence [Linda Palmer, the licensed professional counselor who Youngâs counsel originally sought permission from the state trial court to evaluate Young, and Dr. Ann Taylor, a psychologist who had functioned as an expert mitigation witness in other death penalty cases]. The mitigating evidence contained in the affidavits show that witnesses would have testified that Young was a loving father and a nice person; that Young was discharged from the Army because he was determined to be mentally unfit; that Young had lost a brother and son to sickle cell anemia; and that Young still lived with his domineering mother. The interview with trial counsel shows that both Young and his mother indicated that they did not want family and friends called to present mitigating evidence.
*954 The trial record revealed that trial counsel negotiated a stipulation regarding mitigation. Therefore, Young did not waive mitigation, (citation omitted). This stipulation contained a statement that Youngâs family and relatives love him; Young has been a minister for eleven years; and that Young is a[n] honorably discharged veteran of the Army. In our Opinion we concluded that this stipulation strategically avoided the risk of damaging rebuttal evidence and the risk of cross-examination, (citation omitted).
Upon review of the application and the supporting affidavits and evidence, we find [Young] has shown this Court that trial counsel could well have utilized this evidence and that it may have been prudent for him to do so. However, Young has not shown by clear and convincing evidence a strong possibility that defense counsel was ineffective for failing to utilize or identify this evidence. Accordingly, we decline to grant [Younglâs application for an evidentiary hearing, (citation omitted).
Young v. State, No. F 95-1142 at 2-4 (Okla.Crim.App. Feb. 19, 1999) (Order Granting Rehearing and Denying Relief).
Young reurged his ineffective assistance of trial counsel claim in his application for state post-conviction relief, but argued for the first time that his trial counsel should have investigated and presented testimony from âmitigation expertâ Dr. Wanda Draper and psychologist Dr. Philip Murphy. The OCCA rejected the claim as procedurally barred:
Young argues he was denied effective assistance of trial ... counsel regarding the issue of the presentation of mitigation evidence. After reviewing the record, we find Youngâs ineffective assistance of trial counsel claims do not turn on facts or information unavailable at
the time of his direct appeal. Consequently, Young has not met the prerequisites for review of this claim on the merits. This claim is barred.
Young II at 3 (internal citations omitted).
c) The district courtâs analysis
In reviewing Youngâs ineffective assistance claim in the federal habeas context, the district court rejected respondentâs argument that Young had procedurally defaulted the portions of his ineffective assistance claim that were raised for the first time in his application for post-conviction relief. Although the district court conceded âthat the OCCAâs procedural bar based on [Younglâs failure to raise the claim in a direct appeal [wa]s an âindependentâ state ground,â ROA, Doc. 58 at 18, it concluded âthat the procedural bar imposed by the OCCA ... was not adequate to preclude federal habeas review.â Id. at 19. More specifically, the district court noted âthat the resolution of [Young]âs allegations concerning trial counselâs failure to investigate psychological evidence and present expert mitigation witnesses [Draper and Murphy] [wa]s not apparent from the trial record,â and thus could not have been raised by Young on direct appeal. Id. at 20.
As for the OCCAâs rejection of Youngâs claim on direct appeal, the district court concluded that the OCCA failed to properly apply the second prong of the Strickland test. Id. at 17. In particular, the district court concluded that the OCCA erroneously ârequired [Young] to show by âclear and convincing evidenceâ that he was prejudiced by [trial] counselâs failure to utilize available mitigation evidence.â Id.
The district court then proceeded to conduct its own de novo review of Youngâs ineffective assistance claim. In analyzing the first prong of the Strickland test, the district court concluded âthere [wa]s little
Turning to the second prong of the Strickland test, the district court concluded, after considering the strength of the prosecutionâs case, the number of aggravating circumstances found by the jury to exist, the mitigating evidence actually presented by Youngâs trial counsel, and the available mitigating evidence cited by Young in support of his habeas petition, that Young was not prejudiced by trial counselâs failure. Id. at 28. In reaching this conclusion, the district court acknowledged that the mitigation evidence cited by Young âwould have shown favorable aspects of [his] character and provided insight into his upbringing and grief related to deaths in his family....â Id. at 27. However, the district court concluded there was not a âreasonable probability that its introduction would have caused the jury to decline to impose the death penalty.â Id. In particular, the district court concluded that the fact that Youngâs mitigation witnesses âconsidered [him] to be a good person would not have supported the notion that the murder of Joyland Morgan was not committed in a heinous, atrocious or cruel mannerâ or ânegated or affected in any way the fact that [he] knowingly created a great risk of death to more than one person.â Id. at 27-28. Lastly, the district court concluded that âthe opinions offered by Dr. Draperâ would not have caused the jury to âspare[] Young the death penalty had [Draper] been allowed to testify.â Id. at 28.
d) Standard of review on appeal
Before turning to the specific arguments raised by Young in his appeal, we note our agreement with the district court that we must apply de novo review in evaluating Youngâs ineffective assistance claim. To be sure, the OCCA purported to address Youngâs ineffective assistance claim on the merits when it affirmed his convictions and sentences on direct appeal. But it is clear from the record on appeal that it did so on the basis of a limited factual record; in particular, the OCCA did not consider the available mitigating evidence cited by Young in support of his request for an evidentiary hearing on his ineffective assistance claim. When Young subsequently petitioned the OCCA for a rehearing, the OCCA proceeded to examine the mitigating evidence cited by Young, but it viewed that evidence solely in terms of whether Young had satisfied the standard outlined in OCCA Rule 3.11(B)(3)(b)(i), i.e., whether Young had presented âclear and convincing evidenceâ establishing âthere [wa]s a strong possibility trial counsel was ineffective for failing to utilize or identify the complained-of evidence.â
We also note that the OCCA refused to consider the affidavits from Drs. Draper and Murphy that were obtained and submitted by Young in connection with his application for post-conviction relief. In doing so, the OCCA concluded that Youngâs ineffective assistance claim âd[id] not turn on facts or information unavailable at the time of his direct appeal,â and was therefore proeedurally barred. Young II at 3. We have, however, repeatedly questioned whether this Oklahoma procedural rule, requiring ineffective assistance of counsel claims to generally be brought on direct appeal, âcan be deemed adequate and independent to bar habeas review.â Cummings v. Sirmons, 506 F.3d 1211, 1224 (10th Cir.2007) (internal quotation marks omitted). We have thus, in turn, âheld that th[is] Oklahoma procedural bar will apply [only] in those limited cases meeting the following two conditions: trial and appellate counsel differ; and the ineffectiveness claim can be resolved upon the trial record alone.â Id. (internal quotation marks omitted). âAll other ineffective assistance claims, we have held, are proeedurally barred only if Oklahomaâs special appellate remand rule for ineffectiveness claims is adequately and evenhandedly applied.â Id. (internal quotation marks omitted).
Youngâs case does not fall within the limited subset of cases subject to procedural bar because, even though his trial and appellate counsel differed, his ineffectiveness claim was clearly incapable of being resolved on direct appeal based upon the trial record alone. Nor, we note, would the granting of an evidentiary hearing by the OCCA on direct appeal have produced the evidence now proffered from Drs. Draper and Murphy. Lastly, we are not persuaded that, as of the time Youngâs direct appeal was decided, Oklahomaâs special appellate remand rule for ineffectiveness assistance claims was adequately and evenhandedly applied. See id. (noting that âOklahoma rarely, if ever, remands cases for such a hearingâ) (internal quotation marks omitted).
e) Youngâs arguments on appeal
In his federal habeas appeal, Young argues that the district court was correct in concluding âthat trial counselâs performance was ... constitutionally deficient,â but erred in concluding that âYoung had not demonstrated prejudice.â Aplt. Br. at 22. For the reasons outlined below, however, we conclude the district court was correct in its analysis of both prongs of the Strickland test.
1. Trial counselâs deficient performance
âIn assessing [defense] counselâs investigationâ of available mitigating evidence in a capital case, a federal habeas court âmust conduct an objective review of [defense counselâs] performance, measured
In this case, Young submitted, in connection with his direct appeal and request for evidentiary hearing, a transcript of a tape-recorded interview that his appellate counsel conducted with his lead trial counsel, Jim Fransein. In that interview, Fransein stated that he had âbrieflyâ âtalked with a coupleâ of the proposed second-stage mitigation witnesses prior to trial, but that his plan had been to interview each of the mitigation witnesses in somewhat greater depth immediately prior to the start of the second-stage proceedings. ROA, Vol. II, Doc. 23, Exh. 3 at 12. Fransein stated that his plan was derailed, however, when he was informed by Youngâs mother on the morning of the start of the second-stage proceedings that she had sent all of the mitigation witnesses home. When asked about the possibility of presenting expert psychological witnesses during the second-stage proceedings, Fransein counsel stated that he had considered obtaining such testimony, but that Youngâs family was either unable or unwilling to pay for such services, and he believed the trial judge âprobably would [have] deniedâ an application for funding for such services. Id. at 5. Fransein further stated that he had not ordered or obtained any relevant records regarding Young. Lastly, Fransein stated that he and Young had not talked about mitigation evidence or strategy because, âquite frankly,â Young was convinced âthere was no way that [the jury was] going to And [him] guiltyâ during the first-stage proceedings. Id. at 12.
We conclude, as did the OCCA and the district court, that the investigatory efforts of Youngâs trial counsel fell far short of the prevailing standards for capital defense work outlined by the Supreme Court in Wiggins. As the interview transcript makes clear, Youngâs trial counsel engaged in almost no efforts to investigate and develop mitigating evidence. At.-best, the transcript indicates that trial counsel spoke briefly with a few unnamed individuals who were presumably Youngâs friends or family members. As a result, Youngâs trial counsel completed the first-stage proceedings and began the second-stage proceedings generally unfamiliar with nearly all of the potential sources of mitigating evidence from Youngâs background. In turn, it is not surprising that trial counselâs second-stage âstrategyâ focused simplistically on highlighting âthe good things that [Young] ha[d] doneâ in the past and the âbeliefls]â of Youngâs friends and family members âthat he [wa]s not a future danger to the community....â State Court ROA, Vol. I at 85. In short, Youngâs trial counsel did not âfulfill [his] obligation to conduct a thorough investigation of [Young]âs background.â Williams v. Tay
2. Prejudice
That leads us to the second prong of the Strickland test, i.e., whether Young was prejudiced by his trial counselâs constitutionally deficient investigatory efforts. In conducting our second prong analysis, we must first address the effect, if any, of Youngâs decision at trial to forego presenting the mitigation witnesses his trial counsel had subpoenaed and instead rely on a written stipulation of mitigation. More specifically, we must determine whether Youngâs decision in this regard forecloses the possibility of him establishing prejudice.
As to this question, respondent argues that the Supreme Courtâs recent decision in Schriro v. Landrigan, 550 U.S. 465, 127 S.Ct. 1933, 167 L.Ed.2d 836 (2007), is controlling. In Schriro, the defendant ârefused to allow his counsel to present the testimony of his ex-wife and birth mother as mitigating evidence at his sentencing hearing for a felony-murder conviction.â Id. at 1934. The defendant âalso interrupted as [his] counsel tried to proffer other [mitigating] evidence, and he told the Arizona trial judge he did not wish to present any mitigating evidence and to âbring onâ the death penalty.â Id. The defendant was subsequently sentenced to death. In a state post-conviction proceeding, the defendant argued that his trial counsel âwas ineffective for failing to conduct further investigation into mitigating circumstances.â Id. The Arizona state courts denied that claim, âfinding that he had instructed counsel at sentencing not to present any mitigating evidence at all.â Id. The defendant then filed a federal ha-beas petition, reurging his ineffective assistance claim. Although the district court denied relief, the Ninth Circuit reversed, holding that the defendant was entitled to an evidentiary hearing âbecause he raised a âcolorable claimâ that his counselâs performanceâ was constitutionally deficient. Id. at 1939. In particular, the Ninth Circuit found that defense counsel âdid little to prepare for the sentencing aspect of the case,â âand that investigation would have revealed a wealth of mitigating evidence, including the familyâs history of drug and alcohol abuse and propensity for violence.â Id. (internal quotation marks omitted). The Ninth Circuit also concluded, citing Wiggins, that the defendantâs âapparently last-minute decisionâ to forego mitigating evidence could not âexcuse his counselâs failure to conduct an adequate investigation prior to the sentencing.â Id. at 1942 (internal quotation marks omitted).
The Supreme Court granted certiorari and reversed the Ninth Circuitâs decision. In doing so, the Court noted that â[neither Wiggins nor Strickland addresse[d] a situation in which a client interfere[d] with counselâs efforts to present mitigating evidence to a sentencing court,â and that, â[i]ndeed, [it] ha[d] never addressed a situation like th[at]â before. Id. Thus, the Court held, âat the time of the Arizona post-conviction courtâs decision, it was not objectively unreasonable for that court to conclude that a defendant who refused to allow the presentation of any mitigating evidence could not establish Strickland prejudice based on his counselâs failure to investigate further possible mitigating evidence.â Id. Continuing, the Court also emphasized that it âha[d] never imposed an âinformed and knowingâ requirement upon a defendantâs decision not to introduce evidence.â Id. Nor, the Court noted, had it ever ârequired a specific colloquy to ensure that a defendant knowingly and intelligently refused to present mitigating evidence.â Id. at 1943. Lastly, the Court held that, â[e]ven assuming the truth of all the facts [the defendant] sought to prove
Respondent argues that, like the defendant in Schriro, Young âcannot demonstrate prejudice from trial counselâs failure to investigate, develop and present all of the mitigation evidence he now embracesâ because â[i]t is clear [Young] would not have allowed that evidence to be presented under any circumstances.â Aplee. Br. at 30. Rather, respondent argues, Young âdemanded that the case in mitigation be limited to the stipulation actually presented to the jury.â Id.
We reject respondentâs arguments and conclude that Youngâs case is distinguishable from Schriro. Unlike the defendant in Schriro, who waived his right to present mitigating evidence, thereafter refused to allow his counsel to present any type of mitigating evidence on his behalf, and all but asked the trial court to sentence him to death, Young simply chose to forego the presentation of testimony from the handful of friends and family members that his trial counsel had lined up to testify. Further, as the OCCA expressly found, âYoung did not waive mitigation, but [rather] opted to introduce it through stipulation.â Young I, 992 P.2d at 341. In light of these circumstances, we find it impossible to predict with any degree of certainty what Young would have done had his trial counsel investigated and prepared to present all of the available mitigating evidence that Young now points to. In particular, we do not believe that Youngâs decision to forego the live testimony of his Mends and family members allows us to accurately predict what he would have done had his trial counsel planned to present mitigating testimony from Drs. Draper and Murphy. Thus, we conclude that Youngâs decision to forego live mitigation witnesses and rely on the written stipulation of mitigating evidence does not prevent him, in the context of these federal habeas proceedings, from establishing prejudice under the second prong of the Strickland test.
Turning directly to the issue of prejudice, Young argues initially âthat the inadequacies of his counsel [we]re so severe as to dispense with the need to show prejudice under Strickland.â Aplt. Br. at 33. In support of this argument, Young cites to a single case, Rickman v. Bell, 131 F.3d 1150 (6th Cir.1997). As outlined in greater detail below, however, a review of Rickman reveals that it is factually inap-posite.
The state habeas petitioner in Rickman, Ronald Rickman, was charged in Tennessee state court with first-degree murder for his participation in a murder-for-hire scheme that resulted in the rape, abduction, and death of a female victim. Attorney Robert Livingston was appointed by the state trial court to represent Rickman. Livingston conducted an initial interview with Rickman, during which he confirmed that a statement given by Rickman to authorities was true (it is unclear from the Rickman opinion what the nature of the statement was; presumably, it was an admission of guilt). From that point forward, âLivingston assumed that there was no defense to the charge of first-degree murder and failed to conduct any investigation.â 131 F.3d at 1157. In particular, âLivingston did not interview any witnesses, conduct any legal research, or obtain and review any records, including those regarding Rickmanâs employment, education, mental health, social services
At trial, âLivingston was not content with mere nonfeasance,â and instead âembarked on a course of attempting to persuade the jury that his client, although judged legally competent to stand trial, [was], in fact, abnormal and should not be judged as a normal person.â Id. (internal quotations marks omitted). In doing so, Livingston âconvey[ed] to the jurors an unmistakable personal antagonism toward Rickman, characterized both by attacks on Rickman and by repeatedly eliciting information detrimental to Rickmanâs interests.â Id. at 1158. According to the Sixth Circuit, âLivingstonâs attacks on Rickman took the form of portraying him as crazed and dangerous.â Id.
The Sixth Circuit ultimately concluded, relying primarily on United States v. Cronic, 466 U.S. 648, 659, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984) (âif counsel entirely fails to subject the prosecutionâs ease to meaningful adversarial testing, then there has been a denial of Sixth Amendment rights that makes the adversary process itself presumptively unreliableâ), that not only was Livingstonâs performance constitutionally deficient, but that it was âso egregious as to amount to the virtual or constructive denial of the assistance of counsel, and thus implicate [a] presumption of prejudice-â Id. at 1156. More specifically, the Sixth Circuit concluded that because âLivingston succeeded in presenting a terrifying image of Rickman, and thereby aligned himself with the prosecution against his own client,â the prejudice to Rickman was âpatently inherentâ and thus it could âdispensef ] with the necessity of a separate showing of prejudice. ...â
Although Youngâs counsel was obviously neglectful in his investigation of potential second-stage mitigating evidence, his conduct at trial was substantially different than that of Rickmanâs counsel. Most notably, a review of the trial transcript confirms that Youngâs counsel vigorously challenged the prosecutionâs evidence, particularly during the first-stage proceedings, and in no way âacted with reckless disregard for [YoungJâs best interestsâ or âwith the intention to weaken [Young]âs case.â United States v. Collins, 430 F.3d 1260, 1265 (10th Cir.2005). Even during the second-stage proceedings, Youngâs counsel attempted to present some type of mitigating evidence (in the form of a stipulation) after learning that Youngâs mother had sent all of the planned mitigation witnesses home and, during closing arguments, pleaded for the jury to spare Youngâs life. In sum, a review of the trial transcript confirms that Young was not subjected to a constructive denial of counsel. Thus, we conclude Young is not entitled to a presumption of prejudice.
Alternatively, Young asserts that he âwas indeed prejudiced by his counselsâ deficiencies.â Aplt. Br. at 34. âIn assessing prejudiceâ in the context presented here, we must âreweigh the evidence in aggravation against the totality of available mitigating evidence.â Wiggins, 539 U.S. at 534, 123 S.Ct. 2527. To establish prejudice, Young must demonstrate there is âa reasonable probability that, absent [counselâs] errors, the sentencer â includ
In his effort to establish prejudice, Young points to proposed testimony from family members, friends, and expert witnesses that his trial counsel failed to discover and present. The proposed testimony from each of these witnesses was outlined in affidavits that were originally submitted in connection with Youngâs application for state post-conviction relief. The following is a summary of each of those affidavits:
Reverend William Hamilton: Hamilton âdid not know [Young] personally,â but rather âwas acquainted with him because he had preached at [Hamiltonâs] church on occasion.... â ROA, Vol. II, Doc. 23, Exh. 4 at 1. If he had been called as a witness, he âwould have been willing to testify that [Young] always seemed like a nice man.â Id.
T.B. Lockridge: Lockridge âwas acquainted with [Young] because he had served as a resident pastor at [Lock-ridgeâs] church, preaching on the first and third Sundays of the month.â Id., Exh. 5 at 1. If he had been called as a witness, he âwould have been willing to testify that ... there were no problems with [Young] during his time of ministry with [Lockridgeâs] church.â Id.
Cornelius Young II: Cornelius Young II was âthe father of Julius Young....â Id., Exh. 6 at 1. He âwould have been willing to testify and assist in the investigation of [his] sonâs life had [he] been asked to.â Id. Further, he âwould have cooperated fully in order to and persuade jurors to assess a sentence less than death for [his] son Julius.â Id. at 2.
AleĂąe Young: AleĂąe Young was âthe mother of Julius Young....â Id., Exh. 7 at 1. She âwould have testified in [her] sonâs behalf and would have assisted in any investigation into his life in order to present evidence so that [her] son would not be sentenced to death.â Id. She alleges she âhad no understanding of mitigation and the ability to present evidence which would move a jury to extend mercy to [her] son.â Id. at 2. Gertrude Deadmon: Deadmon knew Young âwhen he was a Youth Guidance Specialist ... for a year or two,â and âshe remembered him as a person who spoke very intelligently and very well.â Id., Exh. 8 at 1. She âwas willing to testify that [Young] was an impeccable dresser, was well-mannered, and articulated well.â Id.
Dr. Mozelle Lewis: Lewis is âa longtime friend of [Young]âs family and ha[s] known [Young] since he was a child.â Id., Exh. 9 at 1. If called as a witness, Lewis âwould have been willing to testify that [Young] had a very mild personality, was rather withdrawn, but was a very courteous child who was willing to do what was asked of him.â Id. Further, Lewis would have been willing to testify she âalways knew [Young] to be a nice gentleman.â Id.
Cornelius Young III: Cornelius Young III is âthe older brother of Julius ... Young.â Id., Ex. 10 at 1. If called as a witness, he would have testified that he and his brother âsuffered and grieved together when [their] younger brother Terry died of sickle cell anemia,â id., and that âTerryâs death ... had a devastating effect on [their] family.â Id. at 2. He would have further testified that Julius also âlost his young son ... to sickle*962 cell anemia,â which resulted in âanother devastating loss to [their] family and particularly for Julius.â Id. In addition, he would have testified that âJulius was a good father to his sons,â and âtook care of [his] mom and dad by doing the lawn work and acting as a handy-man around the[ir] house.â Id. Lastly, he would have testified about his childhood memories and how he and Julius âdepended on each other and ... always helped each other out when there was a difficulty.â Id.
Derrick Young: Derrick is one of Julius Youngâs sons. Id., Exh. 11 at 1. If called as a witness, he would have testified that his âmother and father got divorced when [he] was about four or five years old,â but that his father remained âan active participant in [his] life ... especially during the years between the second and eighth grade[s].â Id. at 2. In particular, Derrick would have testified that his âfather coached [his] T-Ball team and actively supported [his] interest in sports,â but ânever pressured [him] in any sport in which [he] participated.â Id. Further, Derrick would have testified that his father âwas very strictâ and âhad high expectations about school work and insisted that [they] do good in school.â Id. Derrick also would have testified â[t]hat it was [his] Dad who would take [him] out on country roads to teach [him] how to drive and but for that time [he] would not have had the confidence to take [his] driving test to get [his] driverâs license.â Id. In Derrickâs view, his paternal grandmother âmade a lot of the decisions in [her] family,â and his âDad usually went along with [those] decisions.â Id. at 3. It was also Derrickâs view âthat [his] Dadâs family did not always see the reality of their lives,â and attempted to portray themselves as âperfect people always successful which was simply not true.â Id. According to Derrick, â[t]wo of the most hurtful times in [their] family that particularly affected [his] Dad were when [his] younger brother Dom-inque died of sickle cell anemia and [when his] Uncle Terryâ also died of the same disease. Id. He remembers his âDad crying hysterically and screaming at Dominqueâs funeral,â and âgrabbing the casket.â Id. He âknow[s][his] Dad was [also] crushed over Terryâs death.â Id. Derrick âbelieve[s] the person [his] Dad most admired in his life was [his] great, great Grandfather the Reverend McDaniels,â and that his âDad became a minister hoping it would straighten out his life.â Id. Lastly, he âbelieve[s][his] Dadâs life has worth and would have liked to share [his] Dadâs humanity with the jury so that they could see the value his [Dadâs] life holds for [him].â Id. at 4.
Julius Young, Jr.: Julius Young, Jr. is the second-oldest son of Julius Young. Id., Exh. 12 at 1. If called as a witness, he would have testified that his father âwas an active and vital participant in [his] life as [he] was growing up,â id., serving as a âcub scout leader in the troop to which [his] brother and [he] belonged,â and as coach of the âT-ball team on which [his] brother and [he] played.â Id. at 2. According to Julius Jr., he âknew [he] could always go to [his] father to discuss problems and that [his father] would listen carefully and help [him] decide the best course of action.â Id. He would have testified that he âshare[d] holidays with [his] dad and grandparents in which [they] ate lots of good food and visited with each other,â that his âdad would help [him] whenever [he] was in trouble,â and â[t]hat [his] Dad would do nice things like get [him] gifts for [his] birthday.â Id. He also would have testified that*963 â[whenever [he] got out of line [his] Dad did not hesitate to discipline [him] and [he] understood it was because [his Dad] cared.â Id. According to Julius Jr., âthe best times [he] had with [his] Dad were when [they] were fishing,â something they did together âon the weekends.â Id. He would have testified that âone of [his] most poignant and painful memories ... is when [his] little brother Dominque died of sickle cell anemia when he was about two years old,â and that â[a]t the funeral [his] Dad tried to pick up Dominqueâs casket and run away with it.â Id. at 3. He would also have testified that his âUncle Terry Young, [his] fatherâs brother, ... died of sickle cell anemia about two years before [his] father was charged -withâ the murders in this case. Id. Julius Jr. âfeel[s] if [he] had been allowed to testify [he] could have helped the jury to see [his] Dad through [his] eyes as a caring father who tried to do his best for [him], as someone who had suffered terrible losses in his own life, and as a man who became a minister so that he could help other people through their hurts.â Id. Finally, Julius Jr. âwould have testified that [his] father had never been violent with [him],â â[t]hat his [Dadâs] life has worthâ and âif [his Dad] were allowed to live he would still be a supportive father,â and â[t]hat [his] Dadâs life has value.â Id.
Lotean Laws: Laws is Youngâs maternal aunt. Id., Exh. 13 at 1. If called as a witness, Laws would have testified that she âha[d] known [Young] all of his life and that he ha[d] always been a very gentle person with a good upbringing from a supportive family.â Id. She would have further testified that she âhad frequent contact with [Young] in the past and kn[e]w him very well,â and that she âwas shocked with evidence presented at trial of any anger or violence on [his] part because that is not the person [she] kn[e]w.â Id. Additionally, she would have testified that Young âha[d] always had a loving relationship with both of his parents,â was âparticularly close to his mother,â and had âsuffered significant losses in his life, including the death of his young son and his brother, Terry, both of whom died of Sickle Cell Anemia.â Id. at 2. Lastly, she would have testified that Young âhad a strong desire to be successful in life,â and âhad a zest for life which was best expressed through music.â Id.
Richard McDaniel: McDaniel is Youngâs uncle and has âknown [Young] since he was a child.â Id., Ex. 14 at 1. Had he been called as a witness, McDaniel âwould have been willing to testify that [Young] was a very mild young man, was never a violent person, and ... helped out his mother by doing chores like driving and handiwork around the house.â Id. He âwould have also testified that [he] did not believe [Young] committed the crime in question.â Id.
Linda Palmer: Palmer is âa licensed professional counselor with a Masterâs Degree in Psychology and [was] pending certification as both a Criminal Justice Specialist and Master Addiction Counselor.â Id., Ex. 15 at 1. According to Palmer, âduring the pendency of ... Youngâs capital trial,â she âwas contacted by defense counsel ... about doing a psychological on ... Young.â Id. She allegedly âtook initial steps and met with ... Youngâs family,â but was later advised by defense counsel âthat the family did not have the funds to pay for [her] services.â Id. Had she âbeen retained [she] was prepared to conduct psychological testing, do a clinical interview with ... Young, as well as gather a relevant social history in order to pres*964 ent evidence in mitigation of the death penalty and to rebut the aggravating circumstances alleged by the State based upon [her] findings.â Id. at 2. Wanda Draper, PhD.: Draper is âa developmental epistemologistâ who âhold[s] the position of Clinical Professor, Emeritus, in the Department of Psychiatry and Behavioral Sciences in the College of Medicine at the University of Oklahoma Health Sciences Center.â Id., Exh. 17 at 1. Her âwork in the field of child development is interdisciplinary, covering psychology, sociology, anthropology, medical psychiatry, and related cultural and behavioral disciplines.â Id. Draper âperformed a study of the family and personal background of ... Young at the request ofâ his post-conviction counsel. Id. at 2. Of note in her study was that âYoung was recognized by his family and community as a well-behaved, responsible, and caring individual who made many contributions to the well-being of others.â Id. at 5. In particular, â[h]e served as a minister for eleven years prior to his arrest,â and âwas active in providing help such as replacing roofs and making renovations on church buildings.â Id. at 6. In 1990, while he was âemployed as a houseman at the Holiday Dome in Tulsa,â Young ârescued a mother and her child from the swimming pool where he was cleaning at the time,â and then refused to accept a âmonetary rewardâ offered to him by the mother. Id. The study further indicates that âYoung suffered cumulative emotional trauma as a result of the loss of four close family members [maternal grandmother and grandfather, brother, and son] during a seven year period in his adulthoodâ which, in Draperâs opinion, caused him âto experience a breakdown of his compulsively ordered life.â Id. at 10. More specifically, Draper opined that â[t]he emotional impact of these losses produced a severe stress and trauma psychologically,â and âhis thought processes obscured reality and he suppressed his deepest feelings of loss.â Id. According to Draper, â[w]hen ... Young was threatened with another loss, that of rejection by his girlfriend, one could expect that he would experience severe emotional trauma as he began to, again, lose control.â Id. That is, â[w]hen he faced losing his most recent emotional connection to his love, Joyslon, it was beyond the scope of his ability to adapt.â Id. at 12-13. Thus, Draper opined, âit is conceivable that he acted in concert with a deep subconscious need to protect his ego and thereby move outside the realm of his conscious awareness of moral justice.â Id. at 13. âFrom a neurological perspective, it is [Draperâs] opinion that on a conscious level, he would not be aware of what he had done.â Id. In Draperâs opinion, the murders âcould have been the result of distortion in his rational thinkingâ âset into action by the combination of severe emotional trauma and use of alcohol which dulled the inhibitions.â Id. In other words, she âbe-lievefs] it was an act committed by a person under severe emotional stress, most likely unable to fully comprehend the nature of his actions or the consequences of what was taking place.â Id. at 13-14.
Philip Murphy, PhD.9 : Murphy is a licensed clinical psychologist in the*965 State of Oklahoma. App. for Post-Conviction Relief, Exh. 6 at 1. Murphy âperformed a comprehensive psychological evaluation upon ... Young ... on the premises of the Oklahoma State Penitentiary on 5/6/97 during a 4 hour full-contact visit.â Id. at 2. Murphyâs â[intellectual estimates show that [Young] operates at the low end of normal range of intellectual functioning.â Id. According to Murphy, â[t]he most remarkable finding from [Youngâs] cognitive testing was the difference between his memory of previous events of an emotionally neutral nature and memories of an emotional nature.â Id. at 3. âWithin the same testing modality, after a two hour delay, [Young] could remember 90% of a 23 item emotionally neutral passage, but zero % of the same length emotionally laden passage.â Id. In Murphyâs opinion, â[t]he effect is most probably due to the use of extreme repressive defense mechanisms.... â Id. With respect to Youngâs personality, Murphy opined that Young âlikely had his emotional needs well-met and well-challenged during his childhood formative years, but a more recent event or condition has produced the need for his personality to engage in defensive operations via withdrawal within himself and histrionic devices of a repressive nature.â Id. at 4. âPsychological diagnostic trait testing suggests that [Young] suffers from no Axis I psychiatric condition of either a severe or milder type.â Id. Young likely does have a âCompulsive Personality Disorder....â Id. at 6. Notably, however, â[t]his type of psychiatric disorder is not typically associated with the commission of homicide.â Id. âOther factors found some mild impulsiveness and possible low frustration tolerance but none connected with aggressive intentions.â Id. Young âhas no significant substance abuse history or sign of it from th[e] evaluation.â Id. at 7. In Murphyâs opinion, Young âlikely would not aggress against any man in any situation,â and â[therefore a case could have been made that [Young] does not serve a continuing thereat [sic] to society and much more strongly in an all male prison society.â Id.
In addition to the mitigation evidence that Youngâs trial counsel failed to discover and present, the record on appeal establishes that Youngâs trial counsel actually presented the following stipulation of mitigating evidence to the jury during the second-stage proceedings:
That [Young] is 42 years of age and he has been a life-long resident of Tulsa;
[Young] has family, relatives that love him;
[Young] has been a minister in a church for 11 years;
[Young] is a veteran, having served in the U.S. Army and was honorably discharged.
ROA, Tr., Vol. Ill at 919.
Having recounted all of the available mitigating evidence, we next consider the evidence in aggravation presented by the prosecution. During the second-stage proceedings, the prosecution was permitted to incorporate by reference all of the first-stage evidence. This included testimony from various police witnesses describing the crime scene, as well as testimony from the Oklahoma State Medical Examiner describing the injuries suffered by Joyland and Kewan and the manner of their deaths. In addition to the incorporated
Joyslon Edwards: The prosecutionâs notice stated that Edwards would testify âthat during March or April of 1993 ... Young ... attempted to force his way into Apartment # 5, 115 East 16th St., Tulsa, OK after previously being denied entry and after being informed that she did not wish to speak with him.â State Court ROA, Yol. Ill at 435.
Dedra Morgan, Joyslon Edwards, or Jerry Griggs: According to the prosecutionâs notice, these witnesses10 would âtestify to statements made by Joyland Morgan prior to her death regarding the nature of her relationship with [Young].â Id. at 435-36. In particular, the prosecutionâs notice stated that these witnesses would âtestify to allegations made by Joyland Morgan regarding sexual contact between [Young] and Joy-land Morgan.â Id. at 436.
Pam Floyd: The prosecutionâs notice stated that Floyd âw[ould] testify to an attack by [Young] in 1981 on her automobile after she refused to have sex with him. The existence, location, and specific information to be provided by this witness was not discovered until after the [first stage proceedings had] commenced.â Id.
Before proceeding to âreweigh the evidence in aggravation against the totality of available mitigating evidence,â Wiggins, 539 U.S. at 534, 123 S.Ct. 2527, we pause briefly to highlight the juryâs second-stage findings and the OCCAâs subsequent treatment of those findings. The jury, at the conclusion of the second-stage proceedings, found the existence of three aggravating circumstances: (1) that Young knowingly created a great risk of death to more than one person; (2) the murder was especially heinous, atrocious or cruel; and (3) the existence of a probability that Young would commit criminal acts of violence that would constitute a continuing threat to society. On direct appeal, the OCCA concluded that the juryâs verdict form â[wa]s subject to only one reasonable interpretation: the jury found these three aggravating circumstances for each murder Count.â Young I, 992 P.2d at 343. The OCCA further concluded that this constituted plain error because the prosecution âwas permitted to charge and present evidence to support the âheinous, atrocious or cruelâ aggravating circumstance as to Count II [the murder of Kewan], even though no notice had been given to the defense.â Id. at 344. âTo remedy this error,â the OCCA struck âthe âheinous, atrocious or cruelâ aggravating circumstance from Count IIâ and âreweigh[ed] the aggravating and mitigating evidence as to this Count.... â Id. The OCCA also concluded that the evidence presented at trial was insufficient to support the continuing threat aggravating circumstance. Id. Citing one of its prior decisions holding âthat in order to prove continuing threat the State must present evidence concerning prior convictions or unadjudicated crimes to show a pattern of criminal conduct that will likely continue in the future,â
We now turn directly to the process of reweighing the evidence. In doing so, we readily conclude that none of the available mitigating evidence would have prevented the jury from finding that Young knowingly created a great risk of death to more than one person, or from finding that Joy-landâs murder was especially heinous, atrocious or cruel. Those aggravating circumstances were clearly established by the prosecutionâs first-stage evidence, which was incorporated by reference into the second-stage proceedings, and nothing in the available mitigating evidence remotely touches on these two circumstances.
We further conclude that, had all of the available evidence been presented to the jury, not only would the jury have found the existence of the continuing threat ag-gravator, the OCCA would not have stricken it on direct appeal. To be sure, Dr. Philip Murphy opined in his affidavit that Young was unlikely to commit future violent acts, particularly in an all male prison setting. Thus, Murphyâs testimony could arguably have operated to rebut the evidence cited by the prosecution in support of the continuing threat aggravator. That said, however, the state court record indicates that, had Young presented mitigating evidence, including the testimony of Dr. Murphy, the prosecution would have presented rebuttal testimony from three additional witnesses that would have provided additional support for the continuing threat aggravator. That evidence would have indicated that Young attempted to forcibly enter Joyslon Edwardsâ apartment in the spring of 1993, made sexual advances towards Joyland Morgan prior to her death, and attacked a woman in 1981 after she refused to have sex with him. Based upon this evidence, the jury could reasonably have found the existence of the continuing threat aggravator and, given the prosecutionâs proposed rebuttal evidence establishing Youngâs commission of two prior violent acts, the OCCA would not have stricken the continuing threat aggra-vator on direct appeal. Moreover, had the jury heard this additional rebuttal evidence, we are persuaded it would have viewed Young in a more negative light than it already did having heard only the evidence of Youngâs involvement in the two murders. That is, we are persuaded the stateâs rebuttal evidence would have reduced, if not eliminated, the possibility of the jury concluding that Youngâs killing of Joyland and Kewan was a one-time event resulting from extreme stress, and would, in turn, have increased the likelihood of the jury concluding that the murders were part of a pattern of violent conduct by Young towards women who rejected his sexual advances.
That leads to the question of whether the presentation of the available mitigating evidence would have caused the jury to find the existence of one or more mitigating circumstances.
Importantly, however, we conclude that none of these potential mitigating circumstances substantially reduce Youngâs âmoral culpabilityâ for the two murders. Williams, 529 U.S. at 398, 120 S.Ct. 1495. Indeed, none of these mitigating circumstances are so unusual as to place Young outside the realm of the average person. Relatedly, unlike many capital defendants, Youngâs childhood appears to have been generally normal and happy (aside from, according to Dr. Draper, the controlling nature of Youngâs mother), and thus could not reasonably serve to reduce Youngâs moral culpability. As for Dr. Draperâs opinions regarding Youngâs psychological and emotional attributes, none of those were particularly insightful or persuasive. For example, Dr. Draper opined that the murders were âan act committed by a person under severe emotional distress [presumably from the losses in his life, combined with the possible rejection from Joyslon Edwards],â and Young was âmost likely unable to fully comprehend the nature of his actions or the consequences of what was taking place.â ROA, Vol. II, Doc. 23, Exh. 17 at 13-14. While this may well be true, the causes of Youngâs emotional distress were not substantially out of the ordinary. Moreover, Youngâs reaction to his emotional distress could have been viewed by the jury as a negative factor, i.e., it could have been considered by the jury as making Young a particularly dangerous person, capable of extreme violence in reaction to relatively common life events.
Similarly, nothing in Dr. Murphyâs affidavit provides a compelling or sympathetic
In sum, we are not persuaded, weighing all of these factors together, that there is a reasonable likelihood that the jury would have reached a different second-stage outcome had it heard all of the available mitigating evidence now cited by Young. Thus, we conclude Young has failed to establish he was prejudiced by his trial counselâs deficient performance, and in turn we conclude he is not entitled to federal habeas relief in the form of a new second-stage proceeding.
f) The dissenting opinion
The dissenting opinion in this case suggests that, because âneither the jury, a state court, nor the federal district court ever heard the mitigating evidence that Mr. Young seeks to present,â Dissent at 973, we should âremand the case to the district court for an evidentiary hearing on the prejudice component of Mr. Youngâs ineffective assistance of counsel claim,â id. at 977. As we outline below, this suggestion has neither procedural nor substantive support.
Young asserted, in Ground Seven of his amended federal habeas petition, that he was entitled to a federal court evidentiary hearing in connection with his ineffective assistance claim. He did not otherwise indicate, however, whether his purpose in seeking such a hearing was to focus on the first Strickland prong, the second Strickland prong, or both. The district court, in its Opinion and Order denying relief, rejected Ground Seven on the merits, stating:
In his request for relief (Dkt. #22 at 78-80), Petitioner asks for an evidentia-ry hearing on his ineffective assistance of counsel proposition. As the disposition of Petitionerâs habeas corpus petition does not require reference to any materials beyond those that are available and currently before the Court, this Court finds that there is no need for an evidentiary hearing in this case. There are no disputed factual questions remaining that could possibly entitle Petitioner to habeas corpus relief. Petitioner has failed to demonstrate the need for an evidentiary hearing under either 28 U.S.C. 2254(e)(2) or any other governing principle of law. Williams v. Taylor, 529 U.S. 420, 120 S.Ct. 1479, 146 L.Ed.2d 435 (2000). Accordingly, Petitionerâs request for an evidentiary hearing is denied.
ROA, Vol. I, Doc. 58 at 48.
After filing his notice of appeal, Young filed an application for COA with the district court. The application asked the district court to issue a COA âon Grounds One [ineffective assistance], a portion of Ground Two [victim impact statement], Ground Five [admission of Youngâs âfish bloodâ statement] and Ground Six [cumulative error].â Id., Doc. 63 at 8. Notably, the application did not seek a COA with respect to Ground Seven of the amended habeas petition.
In his appellate brief, Young makes two fleeting references to his request for an evidentiary hearing. First, in outlining the procedural history of his case, Young notes that the district court denied his request for an evidentiary hearing. Aplt.
Thus, from a procedural standpoint, the issue of whether the district court abused its discretion in denying Youngâs request for an evidentiary hearing in connection with his ineffective assistance claim is not properly before us. No COA has been requested or granted on this issue.
Even if we were, as the dissent essentially proposes, to ignore Youngâs failure to be granted, or to even request, a COA, there are a host of reasons why the dissentâs proposal for an evidentiary hearing should not be adopted. To begin with, the dissent mistakenly asserts âthat the proper standard for assessing Mr. Youngâs claims of prejudice is whether âhis allegations, if true and not contravened by the existing factual record, would entitle him to habeas relief.â â Dissent at 974 (quoting Bland v. Sirmons, 459 F.3d 999, 1033 (10th Cir.2006)). The problem with this assertion is that it conflates the pre-AED-PA standard that we apply âwhen âa habe-as petitioner has diligently sought to develop the factual basis underlying his habeas petition, but a state court has prevented him from doing so,â â Bland, 459 F.3d at 1033 (quoting Miller v. Champion, 161 F.3d 1249, 1253 (10th Cir.1998)), with the clearly established Strickland prejudice inquiry. Young is entitled to an evidentiary hearing if âhis allegations, if true and not contravened by the existing factual record, would entitle him to habeas relief.â Id. at 1033. But he is only entitled to habeas relief if his allegations establish âa reasonable probability that, absent [counselâs] errors, the sentencer ... would have concluded that the balance of aggravating and mitigating circumstances did not warrant death.â Strickland, 466 U.S. at 695, 104 S.Ct. 2052. Thus, the Bland and Strickland standards work in conjunction with each other. Here, as we have shown, Youngâs allegations, even assuming them to be true, are insufficient to demonstrate prejudice under Strickland. Therefore the district court was not required to hold a hearing. See Schriro, 127 S.Ct. at 1940.
Relatedly, the dissent is mistaken in suggesting that âthe flaw inâ the majorityâs prejudice analysis is our reliance âon information that was never presented from the witness stand,â including not only the prosecutionâs proposed rebuttal testimony, but also the testimony of Drs. Draper and Murphy. Dissent at 974. By necessity, a claim that counsel was ineffective for failing to investigate and present available mitigating evidence focuses on information that was never presented to or heard by the jury. Nothing in controlling Supreme Court precedent, however, requires presentation of that evidence to a factfinder before the Strickland prejudice inquiry is resolved. To the contrary, the Court in Strickland emphasized that âineffectiveness is not a question of âbasic, primary, or
The dissent is also mistaken in implying that our prejudice analysis is dependent in large degree on the âpotential testimony of the prosecutionâs three rebuttal witnesses.â Dissent at 973-74. The fact is that the outcome of our prejudice analysis would be the same even if, in reweighing the evidence, we were to consider only the aggravating evidence that was actually relied on by the prosecution at trial, i.e., all of the first-stage evidence that detailed the brutal and callous nature of the two murders that Young committed. That first-stage evidence, standing alone, was clearly sufficient to establish the aggravating factors found by the jury and affirmed by the OCCA (i.e., the knowing creation of great risk of death to more than one person, and that Joyland Morganâs murder was committed in a heinous, atrocious or cruel manner), and we are not persuaded that there is a reasonable probability that the presentation of testimony from Drs. Draper and Murphy would have caused the jury to conclude âthat the balance of aggravating and mitigating circumstances did not warrant death.â Strickland, 466 U.S. at 695, 104 S.Ct. 2052. As for the three rebuttal witnesses proposed by the prosecution, our point in discussing it was simply to highlight the fact that, had Youngâs trial counsel presented testimony from Drs. Draper and Murphy, the prosecution in turn would have presented additional, highly prejudicial evidence that would likely have supported a finding that Young was a continuing threat.
The limited scope of the dissentâs proposed evidentiary hearing is also problematic. According to the dissent, âboth Mr. Young and the governmentâ should be allowed âto present evidence regarding the prejudicial effect, if any, of the deficient performance of Mr. Youngâs trial counsel.â Dissent at 973. As we see it, however, that would necessitate allowing the government to put on all of the evidence that was originally presented during the first-stage of Youngâs trial. More specifically, because such evidence was incorporated by reference during the second-stage proceedings of Youngâs trial, it was, and remains, relevant to the aggravating factors alleged by the prosecution, and in turn is relevant to the determination of whether Young was prejudiced by his trial counselâs failure to present the mitigating evidence to which he now points. Thus, the proposed evidentiary hearing would, in the end, effectively amount to a new second-stage proceeding, albeit with a judge acting as factfinder, rather than a jury. In other words, in the name of resolving the prejudice component of Youngâs ineffective assistance claim, we would, in effect, be
It is also apparent that the dissent has failed to carefully consider what its proposed evidentiary hearing would mean for the ultimate resolution of Youngâs ineffective assistance claim on appeal. Presumably, the dissent would allow the district court to make credibility findings regarding Drs. Draper and Murphy, as well as to the other witnesses presented by Young and the prosecution. In turn, those findings, which would be factual in nature, would presumably be reviewable on appeal only for clear error. In short, the dissentâs proposed evidentiary hearing would transform what the Supreme Court has clearly stated is a mixed question of law and fact into a purely factual issue and, in doing so, would improvidently shift to the district court the great weight of the burden of resolving Strickland-based claims such as the one asserted by Young.
Finally, it bears mentioning that if an evidentiary hearing is warranted in this case, then it would presumably be warranted in any habeas proceeding in which a capital defendant asserts his counsel was ineffective for failing to present available mitigating evidence. Nothing in Supreme Court precedent mandates such a result.
Cumulative Error
Lastly, Young argues that â[b]oth of the errors complained ofâ in this appeal, âand alternatively each of the errors complained of in the district court petition!,] warrant ... habeas corpus relief in the form of a new sentencing proceeding.â Aplt. Br. at 50-51. Young also offers a third cumulative error theory in support of his request for a new sentencing proceeding, asserting that we should âcumulatively assess the impact of the [trial] errorsâ found by the OCCA on direct appeal âand grant habeas relief accordingly.â Id. at 52. In this regard, Young notes that on direct appeal, the OCCA âdetermined that the trial court failed to remove two venire members for cause, that misleading statements were contained in the affidavit for probable cause supporting the request for a search warrant, the trial court did not provide the jury with a proper form for finding aggravating circumstances as to each murder count, and the trial court failed to give an instruction limiting the juryâs use of victim impact evidence.â Id. at 51-52.
â âA cumulative-error analysis aggregates all errors found to be harmless and analyzes whether their cumulative effect on the outcome of the trial is such that collectively they can no longer be determined to be harmless.â â Brown v. Sirmons, 515 F.3d 1072, 1097 (10th Cir.2008) (quoting United States v. Toles, 297 F.3d 959, 972 (10th Cir.2002)). Notably, in the federal habeas context, cumulative error analysis applies only to cumulative constitutional errors. See Jackson v. Johnson, 194 F.3d 641, 655 n. 59 (5th Cir.1999) (âThe cumulative error doctrine provides relief only when the constitutional errors committed in the state court trial so fatally infected the trial that they violated the trialâs fundamental fairness.â) (emphasis added).
Addressing Youngâs theories in order, it is clear that cumulative error analysis does not apply to the two substantive issues raised in his federal habeas appeal because only one of those issues, i.e., the ineffective assistance claim, has any merit. Thus, there is ânothing to cumulate.â Turner v. Quarterman, 481 F.3d 292, 301 (5th Cir.2007) (internal quotation marks omitted).
Youngâs second cumulative error theory is unusual in that it relies not only on the two substantive issues upon which a COA were granted, but also upon all of the
That leaves Youngâs final theory, which posits that we must consider the cumulative impact of all the errors recognized by the OCCA on direct appeal. That theory is even more problematic than the second in that it relies in part on state law issues that were not, and could not provide, a legitimate basis for federal habeas relief, and were thus never raised in Youngâs federal habeas petition. We therefore reject this theory without further analysis.
AFFIRMED.
. The bill of particulars did not identify to which of the two murders the second and third alleged aggravating circumstances were referring. The prosecution subsequently filed
. According to the state court record, Youngâs trial counsel did not formally file the application with the clerk of the court until August 5, 1994.
. The two counselors named in the pleading were "Linda Palmer, MS, LPC, LMFT and Sandra Caster, MS, LPC,â both of Tulsa, Oklahoma. State Court ROA, Vol. I at 70.
. Consistent with the bill of particulars, the jury's verdict form did not specify which of the two murders this aggravating circumstance pertained to. Although the prosecution had filed a "notice of evidence in aggravation of punishmentâ indicating that this aggravating circumstance related only to the murder of Joyland, "[a]t trial the prosecutor ignored this self-imposed limitation and argued each aggravating circumstance as to each murder count.â Young I, 992 P.2d at 343.
. Young made this factual assertion in connection with an argument on direct appeal that the state trial court failed to ensure that he intelligently and knowingly waived his constitutional right to present mitigation evidence.
. Although the district court concluded that the OCCA erroneously ârequired [Young] to show by 'clear and convincing evidenceâ that he was prejudiced by counsel's failure to utilize available mitigation evidence,â ROA, Doc. 58 at 17, we agree with respondent that the OCCA was instead determining merely whether Young was entitled to an evidentiary hearing pursuant to OCCA Rule 3.11(B)(3)(b) on his ineffective assistance claim. At no point,
. Even if we were to assume otherwise, we would still apply a de novo standard of review to Young's Strickland claim due to the OCCAâs failure to consider the mitigating evidence presented by Young in his application for post-conviction relief (i.e., the affidavits of Drs. Draper and Murphy).
. Rickman filed his application for federal habeas relief on March 5, 1985, more than a decade prior to the implementation of the AEDPA. Thus, the Sixth Circuit, in affirming the grant of Rickmanâs request for federal habeas relief, was not bound by AEDPA's deferential standards of review. See Rickman, 131 F.3d at 1153-54 (outlining standards of review).
. As we have noted, Murphyâs affidavit was obtained by Youngâs state post-conviction counsel and submitted in connection with the application for state post-conviction relief. Curiously, however, Young makes no mention of Murphyâs affidavit in his appellate brief, and thus it is unclear if he intended to abandon reliance on it. Out of an abundance of
. The prosecutionâs notice erroneously listed Joyslon Edwards as "Joyslon Morgan.â State Court ROA, Vol. Ill at 435.
. As we have already noted, the OCCA's independent reweighing of the aggravating and mitigating evidence is not entitled to deference on federal habeas review because the OCCA did not take into account all of the mitigating evidence that Young's counsel failed to discover and present at trial.
. In contrast to the situation in Williams, where the evidence indicated that the defendantâs "violent behavior was a compulsive reaction rather than the product of coldblooded premeditation,â 529 U.S. at 398, 120 S.Ct. 1495, we note the opposite was true in Young's case. Although the evidence indi
. We note that the jury in Youngâs case was not asked to specify whether it found the existence of any mitigating factors.