BRISCOE, Chief Judge.
Petitioner Michael Selsor, an Oklahoma state prisoner convicted of first degree murder and sentenced to death, appeals the district court's denial of his 28 U.S.C. § 2254 habeas petition. Selsor asserts seven issues on appeal: (1) whether a state appellate ruling allowing the prosecution at his retrial proceedings to seek the death penalty against him violated his due process rights; (2) whether the imposition of the death penalty at his retrial proceedings violated his rights under the Double Jeopardy Clause; (3) whether the state trial court violated his constitutional rights at the retrial proceedings by instructing the jury as to the elements of a post-crime first degree murder statute, rather than the elements of the pre-crime first degree murder statute under which he was originally charged; (4) whether the imposition of the death penalty at his retrial proceedings violated his rights under the Equal Protection Clause; (5) whether the prosecution acted vindictively, in violation of his due process rights, by seeking the death penalty at his retrial proceedings; (6) whether the penalty phase of his retrial proceedings was rendered fundamentally unfair by prosecutorial misconduct; and (7) whether the admission, during the penalty phase of the retrial proceedings, of testimony from the victim's family members regarding the appropriate sentence violated his rights under the Eighth
The relevant underlying facts of this case were outlined in detail by the Oklahoma Court of Criminal Appeals (OCCA) in addressing Selsor's most recent direct appeal:
Selsor v. State (Selsor II), 2 P.3d 344, 347-48 (Okla.Crim.App.2000) (internal paragraph numbers omitted).
Following his arrest, Selsor "was charged in the District Court, Tulsa County, with the offenses of Armed Robbery, CRF-75-2183; Shooting With Intent to Kill, CRF-75-2182; and, Murder in the First Degree, CRF-75-2181, After Former Conviction of a Felony." Selsor v. State (Selsor I), 562 P.2d 926, 927 (Okla. Crim.App.1977). The case proceeded to trial in January 1976, and Selsor "was tried conjointly with co-defendant . . . Dodson."
Selsor filed a direct appeal challenging his convictions and sentences. On April 6, 1977, the OCCA issued a published decision affirming all of Selsor's convictions, as well as the sentences imposed for the Shooting With Intent to Kill and Armed Robbery convictions. The OCCA, however, modified Selsor's death sentence to life imprisonment. In doing so, the OCCA concluded, consistent with its then-recent decision in Riggs v. Branch, 554 P.2d 823 (Okla.Crim.App.1976), that the Oklahoma death penalty statute under which Selsor was sentenced, Okla. Stat. tit. 21, § 701.3
On November 8, 1978, Selsor filed a pro se application for post-conviction relief in state district court. The application asserted a single claim for relief from his convictions, i.e., that "THE TRIAL COURT ERRED BY REQUIRING [Dodson] AND [Selsor] TO, OVER [their] OBJECTION, BE TRIED JOINTLY WITH THE SAME COUNSEL FROM THE PUBLIC DEFENDERS OFFICE." S. R., Vol. I at 160. On February 28, 1980, the state district court denied Selsor's application, noting that Selsor's claim had previously been rejected by the OCCA on direct appeal. The state district court's denial of post-conviction relief was affirmed by the OCCA on June 12, 1980.
"On July 3, 1989, Selsor filed a second application for post-conviction relief in state court."
In October of 1991, Selsor filed a pro se petition for federal habeas relief pursuant to 28 U.S.C. § 2254 in the United States District Court for the Western District of Oklahoma. Selsor v. Kaiser (Kaiser I), 22 F.3d 1029, 1031 (10th Cir.1994). Selsor's petition asserted "two grounds for relief: (1) he was denied his Sixth Amendment right to the effective assistance of counsel because of his attorney's conflict of interest—i.e., the same attorney represented both [Selsor] and Dodson; and (2) the separate convictions and sentences for felony murder and the underlying felony—i.e., armed robbery, violated the Double Jeopardy Clause of the Fifth Amendment." Id. The district court denied Selsor's petition on December 4, 1992. Id. In doing so, the district court addressed and rejected the ineffective assistance claim on the merits, but concluded that Selsor's double jeopardy claim was procedurally barred.
Selsor appealed the district court's ruling to this court. This court appointed a federal public defender to represent Selsor. On May 2, 1994, this court issued a published opinion reversing the decision of the district court and remanding for further proceedings. More specifically, this court concluded "that the district court applied the incorrect legal standard" to Selsor's Sixth Amendment claim, id. at 1033, and thus remanded the case to the district court to "determine whether: (1) [Selsor]'s objection at trial to the joint representation was timely, and, if so, (2) whether the trial court took `adequate steps to ascertain whether the risk [of a conflict of interest] was too remote to warrant separate counsel,'" id. at 1033-34 (quoting Holloway v. Arkansas, 435 U.S. 475, 484, 98 S.Ct. 1173, 55 L.Ed.2d 426 (1978)).
"On remand the district [court] concluded that Selsor's objection to the joint representation was timely." Kaiser II, 81 F.3d at 1496. "However, [the district court] held that the state trial court made an adequate inquiry into the possibility of
Selsor appealed again to this court. On April 8, 1996, this court issued a published opinion (Kaiser II) reversing the district court's ruling. In doing so, this court held "there was an actual conflict of interest that adversely affected counsel's performance on behalf of Selsor," resulting in "violations of Selsor's Sixth and Fourteenth Amendment rights to effective assistance of counsel." Id. at 1506. Accordingly, this court remanded the case to the district court "with directions to enter judgment invalidating Selsor's convictions . . ., but providing that such judgment [wa]s without prejudice to further proceedings by the state for retrial of [Selsor] within a reasonable time." Id.
The Tulsa County District Attorney's Office initiated retrial proceedings in May of 1996. On August 6, 1996, the prosecution filed a Bill of Particulars alleging that Selsor "should be punished by Death" for "the offense of Murder in the First Degree, as charged in the [original] Information," as a result of the following aggravating circumstances: (1) "[t]he Defendant knowingly created a great risk of death to more than one person"; (2) "[t]he murder was especially heinous, atrocious, or cruel"; (3) "[t]he murder was committed for the purpose of avoiding or preventing a lawful arrest or prosecution"; and (4) "[t]he existence of a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society." S. R., Vol. I at 191.
Selsor moved to strike the Bill of Particulars, arguing that "[a]llowing the State to seek the death penalty against [him would] violate[] the prohibition against ex post facto laws and expose [him] to more severe punishment than was lawful at the time [he] committed the alleged crime" of Murder in the First Degree. Id., Vol. II at 203. On July 20, 1997, on the eve of trial, the state trial court denied Selsor's motion. Selsor immediately petitioned the OCCA for a writ of mandamus and obtained from that court a stay of the impending trial. Id. at 288. On October 14, 1997, the OCCA issued a published decision affirming the trial court's decision. Selsor v. Turnbull, 947 P.2d 579 (Okla.Crim.App. 1997). In doing so, the OCCA expressly overturned its decision in Riggs (which concluded, in pertinent part, that the death penalty statutes enacted by the Oklahoma Legislature in 1976 changed the burden of proof to the detriment of criminal defendants, as compared to the burden of proof under the 1973 first degree murder statute), and then concluded that the filing of a Bill of Particulars under the contemporaneous death penalty statutes (i.e., statutes enacted in 1976 that remained effective in 1997) did not violate the prohibition against ex post facto laws or implicate the Equal Protection Clause. Id. at 583.
Following the OCCA's decision, Selsor's retrial began on February 2, 1998. At the outset, Selsor's counsel moved to dismiss the charges against Selsor, arguing that the Information, which was filed in 1975 and which charged Selsor under the language of the 1973 first degree murder statute, alleged both "that . . . Selsor with premeditated design effect[ed] the death of Clayton Chandler and during the course of a robbery with firearms did kill Clayton Chandler." Tr., Vol. IV at 738. The state trial court overruled Selsor's motion. Id. at 739 ("I think that the Information, albeit old, properly informs Mr. Selsor of the charge that is against him."). At the conclusion of the government's first-stage evidence, the jury found Selsor guilty of the three charges against him, i.e., murder in the first degree, shooting with intent to kill, and robbery with firearms.
Selsor in turn presented testimony from a data entry clerk employed by the Tulsa County Sheriff's Department, who testified that during the nineteen months Selsor was confined in the Tulsa County Jail awaiting retrial, Selsor had no write-ups of any kind. Selsor also presented testimony from four current or former Oklahoma Department of Corrections employees, all of whom knew Selsor because of their contact with him during his post-trial incarceration. All four of these witnesses testified, in pertinent part, that, despite their being generally in favor of the death penalty, they disagreed with the District Attorney's recommended sentence of death for Selsor.
At the conclusion of the second-stage evidence, the jury found the existence of two of the four aggravating circumstances alleged by the prosecution: that Selsor knowingly created a great risk of death to more than one person, and that the murder was committed for the purpose of avoiding and preventing a lawful arrest. In turn, the jury fixed Selsor's punishment at death for the first degree murder conviction. As for the other two counts of conviction, the jury recommended life imprisonment for the shooting with intent to kill conviction, and twenty years' imprisonment for the robbery with firearms conviction.
The state trial court entered judgment consistent with the verdicts on May 6, 1998. The judgment stated, in pertinent part, that Selsor was found guilty of "MURDER, 1st DEGREE," in violation of "21-701.7," the 1976 murder statute enacted by the Oklahoma state legislature. S. R., Vol. III at 436.
Selsor appealed his convictions and sentence to the OCCA. On May 10, 2000, the OCCA issued a published opinion affirming Selsor's first degree murder conviction and death sentence, as well as Selsor's shooting with intent to kill conviction and related sentence of life imprisonment, but reversing the conviction and sentence for robbery with firearms and remanding to the state trial court with instructions to dismiss that charge. Selsor II, 2 P.3d at 346. More specifically, the OCCA concluded that the robbery with firearms conviction "must be dismissed based upon double jeopardy because all the elements of Robbery with Firearms are included within the elements of the First Degree Murder pursuant to the 1973 statute." Id. at 351. Selsor filed a petition for writ of certiorari with the United States Supreme Court. That petition was denied on May 21, 2001. Selsor v. Oklahoma, 532 U.S. 1039, 121 S.Ct. 2002, 149 L.Ed.2d 1004 (2001).
Selsor initiated the instant federal habeas proceedings on October 3, 2001, by filing a motion for appointment of counsel. The district court granted Selsor's motion and, on May 20, 2002, Selsor's appointed counsel filed a petition for writ of habeas corpus on Selsor's behalf asserting eighteen grounds for relief. Respondent filed a response to the petition, as well as a certified copy of the relevant state court records.
On September 29, 2009, the district court issued an opinion and order denying Selsor's petition in its entirety. On that same date, the district court entered judgment in favor of respondent and against Selsor. Following the entry of an amended judgment on November 24, 2009, Selsor moved for a certificate of appealability with respect to nine issues. The district court granted Selsor's motion. Of the nine issues on which a COA was granted, Selsor has since filed appellate pleadings addressing seven of those issues.
Because Selsor filed his federal habeas petition after April 24, 1996, the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), AEDPA's provisions govern these proceedings. 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 "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," 28 U.S.C. § 2254(d)(1), or "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding," id. § 2254(d)(2). "When reviewing a state court's 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." McLuckie v. Abbott, 337 F.3d 1193, 1197 (10th Cir.2003). "Rather, we must be convinced that the application was also objectively unreasonable." Id. "This standard does not require our abject deference, . . . but nonetheless prohibits us from substituting our own judgment for that of the state court." Snow, 474 F.3d at 696 (internal 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)'s deferential standards of review do not apply in such circumstances, we review the district court's legal conclusions de novo and its factual findings, if any, for clear error. McLuckie, 337 F.3d at 1197.
Selsor contends, in Proposition One of his appellate brief, that the OCCA in Turnbull violated the Ex Post Facto Clause as applied to judicial decisions through the Due Process Clause by overruling its decision in Riggs and allowing the prosecution at the retrial proceedings to seek the death penalty against him.
On June 29, 1972, the United States Supreme Court held that a Georgia state statute that allowed for unbridled jury discretion in the imposition of death sentences violated the Eighth and Fourteenth Amendments. Furman v. Georgia, 408 U.S. 238,
Oklahoma fell into the latter camp. In 1973, the Oklahoma Legislature adopted a statutory scheme that mandated imposition of the death penalty for anyone convicted of first degree murder, and defined first degree murder as follows:
Okla. Stat. tit. 21, § 701.1 (1973).
These state legislative responses to Furman in turn led to new court challenges. On July 2, 1976, the United States Supreme Court issued a trio of decisions addressing the two general types of revised death penalty schemes. In Woodson,
Four days later, on July 6, 1976, the Supreme Court applied its decisions in Woodson and Roberts and reversed six Oklahoma capital cases that were pending before it. Williams v. Oklahoma, 428 U.S. 907, 96 S.Ct. 3218, 49 L.Ed.2d 1215 (1976); Justus v. Oklahoma, 428 U.S. 907, 96 S.Ct. 3216, 49 L.Ed.2d 1214 (1976); Rowbotham v. Oklahoma, 428 U.S. 907, 96 S.Ct. 3218, 49 L.Ed.2d 1215 (1976); Lusty v. Oklahoma, 428 U.S. 907, 96 S.Ct. 3217, 49 L.Ed.2d 1214 (1976); Green v. Oklahoma, 428 U.S. 907, 96 S.Ct. 3216, 49 L.Ed.2d 1214 (1976); Davis v. Oklahoma, 428 U.S. 907, 96 S.Ct. 3217, 49 L.Ed.2d 1215 (1976). In doing so, the Supreme Court held that "[t]he imposition and carrying out of the death penalty under the law of Oklahoma constitute[d] cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments." Williams, 428 U.S. at 907, 96 S.Ct. 3218.
The Oklahoma legislature responded to these Supreme Court decisions by calling a special session, repealing the 1973 statute, and enacting, effective July 24, 1976, new first and second degree murder statutes. Importantly, for purposes of the instant appeal, the new statutes effectively expanded the definition of first degree murder by defining it in the following manner:
Okla. Stat. tit. 21, § 701.7 (1976). In other words, in contrast to the 1973 murder statute, which defined first degree murder to require both malice aforethought and commission of the murder in one of several
The OCCA first addressed these judicial and legislative events in its Riggs decision issued on September 2, 1976. The petitioner in Riggs had been charged with first degree murder under Oklahoma's 1973 death penalty statute. However, that charge was filed on July 9, 1976, three days after the Supreme Court held Oklahoma's 1973 death penalty statute to be unconstitutional. Immediately after the charge was filed, Riggs responded by filing a petition for writ of habeas corpus with the state trial court "alleging that the Supreme Court . . . had declared Oklahoma's First Degree Murder Statute unconstitutional and thus he was being illegally restrained." Riggs, 554 P.2d at 824. After the state trial court denied the petition, Riggs appealed to the OCCA. The OCCA noted at the outset that its task was
Id. at 825. Continuing, the OCCA noted that
Id. (emphasis added).
The OCCA then addressed "the status of those defendants . . . convicted of First Degree Murder and sentenced to death prior to the enactment of the new [1976] statute." Id. "A threshold inquiry in resolving the status of th[is] class[] of defendants," id., the OCCA held, was "to examine the effect of the Supreme Court decisions upon the Oklahoma homicide murder statutes," id. at 825-26. Citing the Supreme Court's post-Woodson and Roberts reversal of the six pending Oklahoma capital cases, the OCCA "conclude[d] the death penalty as provided in 21 O.S.Supp.1973, § 701.3 [(the 1973 death penalty statute)], ha[d] been effectively stricken from [the] statute, which [itself had been] repealed." Id. at 827. However, the OCCA in turn concluded that "the remaining provisions of [Oklahoma's 1973] homicide murder statute remain[ed] in effect after the striking of the death penalty provision." Id. The OCCA then addressed "what constitute[d] the appropriate constitutionally permissible punishment which should befall [defendants]. . . convicted of murder in the first degree, or . . . committing the offense of murder in the first degree prior to 12:01 a.m. of July 24, 1976[, the date the 1976 murder statute became effective]." Id. at 828. Noting that a section of the 1973 murder statute authorized the OCCA to exercise its discretion and modify a sentence of death, the OCCA concluded "that the alternative sentence [that could] be imposed against those individuals convicted of murder in the first degree prior to
On June 17, 1977, approximately nine months after the issuance of Riggs, the Supreme Court issued its opinion in Dobbert v. Florida, 432 U.S. 282, 97 S.Ct. 2290, 53 L.Ed.2d 344 (1977). The petitioner in Dobbert was a Florida state prisoner convicted of two murders and sentenced to death. "The murders of which petitioner was convicted were alleged to have occurred" in late 1971 and early 1972. Id. at 288, 97 S.Ct. 2290. "During that period of time, Fla. Stat. Ann. §§ 775.082 (1971) and 921.141 (Supp.1971-1972), as then written, provided that a person convicted of a capital felony was to be punished by death unless the verdict included a recommendation of mercy by a majority of the jury." Id. "[O]n July 17, 1972, . . . the Florida Supreme Court found the 1971 Florida death penalty statutes inconsistent with Furman." Id. "Late in 1972 Florida enacted a new death penalty procedure," id., under which the trial judge, after considering the recommendation of a sentencing jury, was required to "weigh eight aggravating factors against seven statutory mitigating factors to determine whether the death penalty should be imposed," Proffitt v. Florida, 428 U.S. 242, 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976).
947 P.2d at 582-83.
Selsor contends that "the OCCA both unreasonably applied clearly established federal law and deprived [him] of due process" when, in Turnbull, it "constru[ed] its 1976 decision in Riggs[] to mean something no reasonable person would have understood that case to mean, overruling this purported holding, and applying the overruling retroactively to [him], thereby permitting the State to obtain a death sentence against him." Aplt. Br. at 21-22. In support, Selsor contends that "Riggs held that even if someone in [his] position were retried for murder, he faced a maximum sentence of life imprisonment." Id. at 22. According to Selsor, he "reasonably relied on [Riggs] when he pursued post-conviction relief," believing he could not again be subjected to a sentence of death. Id. Selsor argues that the OCCA's "Turnbull decision, overruling Riggs, was both unforeseeable and indefensible" because "Riggs had stood unchallenged for two decades, had produced the very result the State requested in that case, had provided the basis for [his] life sentence, and had been cited only with approval by the OCCA." Id. In turn, Selsor contends that "[t]he due process question . . . is whether [he] had fair warning when he collaterally attacked his unconstitutional conviction that he could be resentenced to death if he secured a new trial." Id. at 33.
Selsor contends, citing Bouie v. City of Columbia, 378 U.S. 347, 353-54, 84 S.Ct. 1697, 12 L.Ed.2d 894 (1964), that "[w]hen a state court unforeseeably changes the scope of a criminal law, and applies that change retroactively, to a defendant's detriment, it violates the Due Process Clause."
Before the Supreme Court, petitioners argued, in pertinent part, "that they were denied due process of law . . . because the [trespass] statute failed to afford fair warning that the conduct for which they [were] convicted had been made a crime." Id. at 349, 84 S.Ct. 1697. In support, petitioners noted that although the statute of conviction prohibited "entry upon the lands of another . . . after notice from the owner or tenant prohibiting such entry," id., the South Carolina Supreme Court, in affirming their convictions, had "construed the statute to cover not only the act of entry on the premises of another after receiving notice not to enter, but also the act of remaining on the premises of another after receiving notice to leave," id. at 350, 84 S.Ct. 1697. Petitioners argued "that by applying such a construction of the statute to affirm their convictions . . ., the State . . . punished them for conduct that was not criminal at the time they committed it, and hence . . . violated the requirement of the Due Process Clause that a criminal statute give fair warning of the conduct which it prohibits." Id.
In addressing petitioners' argument, the Supreme Court began by acknowledging "[t]he basic principle that a criminal statute must give fair warning of the conduct that it makes a crime. . . ." Id. In turn, the Court held "[t]here can be no doubt that a deprivation of the right of fair warning can result not only from vague statutory language but also from an unforeseeable and retroactive judicial expansion of narrow and precise statutory language." Id. at 352, 84 S.Ct. 1697. Indeed, the Court noted, "an unforeseeable judicial enlargement of a criminal statute, applied retroactively, operates precisely like an ex post facto law, such as Art. I, § 10, of the Constitution forbids." Id. at 353, 84 S.Ct. 1697 (italics in original). And, the Court emphasized, "[i]f a state legislature is barred by the Ex Post Facto Clause from passing [an ex post facto] law, it must follow that a State Supreme Court is barred by the Due Process Clause from achieving precisely the same result by judicial construction." Id. at 353-54, 84 S.Ct. 1697 (italics in original). Thus, the Court held, "[w]hen a[n] . . . unforeseeable state-court construction of a criminal statute is applied retroactively to subject a person to criminal liability for past conduct, the effect is to deprive him of due process of law in the sense of fair warning that his contemplated conduct constitutes a crime." Id. at 354-55, 84 S.Ct. 1697. Finally, applying these principles to the facts before it, the Court "agree[d] with petitioners that" the statute of conviction "did not give them fair warning, at the time of their conduct . . ., that the act for which they . . . st[oo]d convicted was rendered criminal by the statute." Id. at 355, 84 S.Ct. 1697.
Selsor also suggests that Lankford v. Idaho, 500 U.S. 110, 111 S.Ct. 1723, 114 L.Ed.2d 173 (1991), is relevant to, and supportive of, his due process claim.
The Supreme Court granted certiorari "to decide whether the sentencing process followed in th[e] . . . case satisfied the requirements of the Due Process Clause of the Fourteenth Amendment." Id. at 111, 111 S.Ct. 1723. At the outset of its opinion, the Court emphasized two undisputed facts: first, "that the character of the sentencing proceeding did not provide petitioner with any indication that the trial judge contemplated death as a sentence," id. at 119, 111 S.Ct. 1723; and second, that "[t]he presentencing order entered by the trial court requiring the [prosecution] to advise whether it sought the death penalty, and if so, requiring the parties to specify the aggravating and mitigating circumstances on which they intended to rely, was comparable to a pretrial order limiting the issues to be tried," id. at 120, 111 S.Ct. 1723. The Court also presumed that "[i]f defense counsel had been notified that the trial judge was contemplating a death sentence based on five specific aggravating circumstances, . . . she would have advanced arguments that addressed these circumstances. . . ." Id. at 122, 111 S.Ct. 1723. Based upon these facts and this presumption, the Court concluded that the trial judge's "silence following the [prosecution]'s response to the presentencing order had the practical effect of concealing from the parties the principal issue to be decided at the hearing." Id. at 126, 111 S.Ct. 1723. "Notice of issues to be resolved by the adversary process," the Court emphasized, "is a fundamental characteristic of fair procedure." Id. In sum, the Court held, "[p]etitioner's lack of adequate notice that the judge was contemplating the imposition of the death sentence created an impermissible risk that the adversary process may have malfunctioned in th[e] case." Id. at 127, 111 S.Ct. 1723. Consequently, the Court reversed the judgment of the Idaho Supreme Court and remanded the case for further proceedings. Id. at 128, 111 S.Ct. 1723.
In Turnbull, in which Selsor sought mandamus relief on the eve of his retrial, the OCCA sua sponte addressed and rejected the question of whether its overruling of Riggs violated Selsor's due process rights. On direct appeal following his 1998 retrial, Selsor asked the OCCA to revisit
Selsor II, 2 P.3d at 349-50.
The OCCA's resolution of Selsor's due process issue was neither contrary to, nor an unreasonable application of, Bouie.
Likewise, the OCCA's resolution of Selsor's due process issue was neither contrary to, nor an unreasonable application of, Lankford Unlike the petitioner in Lankford, who was effectively deprived of notice that the trial judge was considering imposition of the death penalty, Selsor was afforded adequate notice of the prosecution's intent to seek the death penalty at the 1998 retrial proceedings. In turn, Selsor was able to utilize the adversary process to challenge (albeit unsuccessfully) the constitutionality of the prosecution's action. Thus, unlike the situation in Lankford, there was no "risk [in Selsor's case] that the adversary process may have malfunctioned.. . ." 500 U.S. at 127, 111 S.Ct. 1723.
In Proposition Two of his appellate brief, Selsor contends that the OCCA effectively acquitted him of the death penalty in Selsor I when it modified his sentence to life imprisonment, and that, consequently, his resentencing to death following his second trial violated his rights under the Double Jeopardy Clause.
Between 1919 and 1980, the Supreme Court repeatedly held "that the Double Jeopardy Clause imposes no absolute prohibition against the imposition of a harsher sentence at retrial after a defendant has succeeded in having his original conviction set aside." Bullington v. Missouri, 451 U.S. 430, 438, 101 S.Ct. 1852, 68 L.Ed.2d 270 (1981) (citing Stroud v. United States, 251 U.S. 15, 40 S.Ct. 50, 64 L.Ed. 103 (1919); North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969); Chaffin v. Stynchcombe, 412 U.S. 17, 93 S.Ct. 1977, 36 L.Ed.2d 714 (1973); and United States v. DiFrancesco, 449 U.S. 117, 101 S.Ct. 426, 66 L.Ed.2d 328 (1980)). These holdings rest on the principle that the reversal of a defendant's conviction results in "the slate [being] wiped clean," and that, consequently, "whatever punishment has actually been suffered under the first conviction . . . is . . . an unmitigated fiction. . . ." Pearce, 395 U.S. at 721, 89 S.Ct. 2072. Notably, "the sentencing procedures considered in [these] cases did not have the hallmarks of [a] trial on guilt or innocence," Bullington, 451 U.S. at 439, 101 S.Ct. 1852, and thus "[t]he imposition of a particular sentence . . . [wa]s not regarded as an `acquittal' of any more severe sentence that could have been imposed," id. at 438, 101 S.Ct. 1852.
In Bullington, the Court granted certiorari to consider "whether the reasoning of [these cases] . . . appl[ied] under a system," specifically Missouri's 1978 capital murder scheme, "where a jury's sentencing decision is made at a bifurcated proceeding's second stage at which the prosecution has the burden of proving certain elements beyond a reasonable doubt before the death penalty may be imposed." Id. at 432, 101 S.Ct. 1852. The petitioner in Bullington was convicted by a jury of capital murder. At the ensuing penalty phase of the trial, the prosecution attempted to prove the existence of two aggravating circumstances. The jury, however, "returned its additional verdict fixing petitioner's punishment not at death, but at imprisonment for life without eligibility for probation or parole for 50 years." Id. at 435-36, 101 S.Ct. 1852. Thereafter, the petitioner successfully moved for a new
On retrial, the prosecution served notice "that it intended again to seek the death penalty" on the basis of the "same aggravating circumstances" it attempted to prove at the first trial. Id. The petitioner "moved to strike the notice, arguing that the Double Jeopardy Clause . . . barred the imposition of the penalty of death when the first jury had declined to impose the death sentence." Id. After the trial court informally announced its intention to grant petitioner's motion to strike, the prosecution sought a writ of prohibition first from an intermediate state appellate court, and then from the Supreme Court of Missouri. The Supreme Court of Missouri "issued a preliminary writ of prohibition" and, "[a]fter argument, . . . sustained the [prosecution]'s position and made the writ absolute." Id. at 437, 101 S.Ct. 1852. "It held that neither the Double Jeopardy Clause, nor the Eighth Amendment, nor the Due Process Clause barred the imposition of the death penalty upon petitioner at his new trial. . . ." Id.
The United States Supreme Court, in granting certiorari and addressing the issues raised by petitioner, noted at the outset that "[t]he procedure that resulted in the imposition of the sentence of life imprisonment upon [the] petitioner . . . at his first trial . . . differ[ed] significantly from those employed in any of the Court's cases where the Double Jeopardy Clause ha[d] been held inapplicable to sentencing." Id. at 438, 101 S.Ct. 1852. Specifically, the Court noted, the sentencing phase of the trial "resembled and, indeed, in all relevant respects was like the immediately preceding trial on the issue of guilt or innocence." Id. This procedural difference, the Court went on to conclude, "meant that the jury ha[d] already acquitted the [petitioner] of whatever was necessary to impose the death sentence," id. at 445, 101 S.Ct. 1852 (internal quotation marks and citation omitted), and thus served to place the case within "an important exception . . . to the [clean slate] rule recognized in Pearce," id. at 442, 101 S.Ct. 1852 (citing Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978)), i.e., that "Pearce is inapplicable whenever a jury agrees or an appellate court decides that the prosecution has not proved its case" against the defendant, id. at 443, 101 S.Ct. 1852. In reaching this conclusion, the Court emphasized that "[t]he values that underlie th[e] principle" that "[a] verdict of acquittal on the issue of guilt or innocence is . . . absolutely final" "are equally applicable when a jury has rejected the State's claim that the defendant deserves to die. . . ." Id. at 445, 101 S.Ct. 1852. Finally, the Court emphasized that its decision did "not at all depend upon the [prosecution]'s announced intention to rely only upon the same aggravating circumstances it sought to prove at petitioner's first trial or upon its statement that it would introduce no new evidence in support of its contention that petitioner deserve[d] the death penalty." Id. at 446, 101 S.Ct. 1852. "Having received one fair opportunity to offer whatever proof it could assemble," the Court held, "the State [wa]s not entitled to another." Id. (internal quotation marks and citation omitted).
Three years later, in Arizona v. Rumsey, 467 U.S. 203, 104 S.Ct. 2305, 81 L.Ed.2d 164 (1984), the Supreme Court applied Bullington to reverse a death sentence imposed on an Arizona state defendant. The defendant therein was convicted by a jury of first degree murder and armed robbery, and sentenced by the trial
The United States Supreme Court subsequently granted the state of Arizona's petition for writ of certiorari and affirmed the decision of the Arizona Supreme Court. Id. at 209, 104 S.Ct. 2305. In doing so, the Supreme Court noted that "[t]he capital sentencing proceeding in Arizona share[d] the same characteristics of the Missouri proceeding [at issue in Bullington] that ma[d]e it resemble a trial for purposes of the Double Jeopardy Clause." Id. The Court in turn concluded that "[a]pplication of the Bullington principle render[ed] [defendant]'s death sentence a violation of the Double Jeopardy Clause because [defendant]'s initial sentence of life imprisonment was undoubtedly an acquittal on the merits of the central issue in the proceeding—whether death was the appropriate punishment for [defendant]'s offense." Id. at 211, 104 S.Ct. 2305. More specifically, "[t]he trial court entered findings denying the existence of each of the seven statutory aggravating circumstances, and as required by state law, the court then entered judgment in [defendant]'s favor on the issue of death." Id. The Court held that the state trial court's "judgment, based on findings sufficient to establish legal entitlement to the life sentence, amount[ed] to an acquittal on the merits and, as such, bar[red] any retrial of the appropriateness of the death penalty." Id. Lastly, the Court held that the trial court's reliance in the original sentencing proceeding "on a misconstruction of the pecuniary gain aggravating circumstance" did "not change the double jeopardy effects of a judgment that amount[ed] to an acquittal on the merits." Id. In other words, the Court held, "an acquittal on the merits bars retrial even if based on legal error." Id.
In 1986, the Court granted certiorari in another Arizona death penalty case to decide "whether the Double Jeopardy Clause bars a further capital sentencing proceeding when, on appeal from a sentence of death, the reviewing court finds the evidence insufficient to support the only aggravating factor on which the sentencing judge relied, but does not find the evidence insufficient to support the death penalty." Poland v. Arizona, 476 U.S. 147, 148, 106 S.Ct. 1749, 90 L.Ed.2d 123 (1986). The two petitioners in Poland committed an armed robbery of "a Purolator van that was making cash deliveries to various banks in northern Arizona." Id. As part of the robbery, petitioners killed two armed guards by taking them "to a lake
On direct appeal, the Arizona Supreme Court concluded that the petitioners' convictions were "tainted by a jury-room discussion of evidence not admitted at trial," and accordingly reversed the convictions and ordered a retrial. Id. at 150, 106 S.Ct. 1749. The Arizona Supreme Court also reviewed the sentencing proceedings and concluded that (a) the evidence "was insufficient to support a finding of the `especially heinous, cruel, or depraved' aggravating circumstance," (b) the trial judge misinterpreted the law by concluding that the "pecuniary gain" aggravator was limited to situations involving contract killings, and (c) the trial judge could, if petitioners were again convicted of first degree murder, "find the existence of this aggravating circumstance." Id. (internal quotation marks and citation omitted).
On remand, the "petitioners were again convicted of first-degree murder." Id. At the sentencing hearing, the prosecution alleged the same two aggravators (the "especially heinous, cruel, or depraved" aggravator and the "pecuniary gain" aggravator) it had asserted at the original trial, as well as a third aggravator against one of the petitioners (that this petitioner was previously convicted of a felony involving the use or threat of violence on another person). Id. "The trial judge found all of the aggravating circumstances alleged by the prosecution, and again sentenced both petitioners to death." Id.
"Petitioners argued on [direct] appeal. . . that the Double Jeopardy Clause barred reimposition of the death penalty" because, in their view, "the Arizona Supreme Court's decision on their first appeal that the evidence failed to support the `especially heinous, cruel, or depraved' aggravating circumstance amounted to an `acquittal' of the death penalty." Id. at 151, 106 S.Ct. 1749. The Arizona Supreme Court rejected this argument, emphasizing that its earlier holding "`was simply that the death penalty could not be based solely upon [the "especially heinous, cruel, or depraved"] aggravating circumstance because there was insufficient evidence to support it.'" Id. (quoting State v. Poland, 144 Ariz. 388, 698 P.2d 183, 199 (1985)). Although the Arizona Supreme Court agreed with petitioners that the evidence was insufficient to support the "especially heinous, cruel, or depraved" aggravator, it concluded the evidence was sufficient to support the other two aggravators and, after independently weighing the mitigating and aggravating circumstances, "concluded that the death penalty was appropriate in each petitioner's case." Id.
The United States Supreme Court subsequently "granted certiorari to consider whether reimposing the death penalties on petitioners violated the Double Jeopardy Clause." Id. Applying the principles outlined in Bullington and Rumsey, the Court stated that "the relevant inquiry in the cases before [it] [wa]s whether the sentencing judge or the reviewing court ha[d] `decid[ed] that the prosecution ha[d] not proved its case' for the death penalty and hence ha[d] `acquitted' petitioners." Id. at
The most recent Supreme Court decision relevant to Selsor's double jeopardy claim is Sattazahn v. Pennsylvania, 537 U.S. 101, 123 S.Ct. 732, 154 L.Ed.2d 588 (2003). The petitioner in Sattazahn was convicted in a Pennsylvania state court of various crimes, including first degree murder. At the penalty phase of the trial, the prosecution "presented evidence of one statutory aggravating circumstance: commission of the murder while in the perpetration of a felony," and the petitioner presented evidence of two mitigating circumstances. Id. at 104, 123 S.Ct. 732. At the close of the evidence, "the jury deliberated for some 3½ hours" before sending a note to the trial court stating they were "hopelessly deadlocked at 9-3 for life imprisonment." Id. "The trial judge, in accordance with Pennsylvania law, discharged
The United States Supreme Court granted certiorari to "consider once again the applicability of the Fifth Amendment's Double Jeopardy Clause in the context of capital-sentencing proceedings." Id. at 103, 123 S.Ct. 732. Although the Court's precedent established that "`a retrial following a "hung jury" does not violate the Double Jeopardy Clause,'" id. at 109, 123 S.Ct. 732 (quoting Richardson v. United States, 468 U.S. 317, 324, 104 S.Ct. 3081, 82 L.Ed.2d 242 (1984)), the petitioner argued "that given the unique treatment afforded capital-sentencing proceedings under Bullington, double-jeopardy protections were triggered when the jury deadlocked at his first sentencing proceeding and the court prescribed a sentence of life imprisonment pursuant to Pennsylvania state law," id. The Supreme Court rejected petitioner's argument. "Under the Bullington line of cases," the Court explained, "the touchstone for double-jeopardy protection in capital-sentencing proceedings is whether there has been an `acquittal.'" Id. And, the Court further explained, neither the jury's deadlock nor the trial court's subsequent entry of a life sentence constituted an acquittal because there were no factual findings sufficient to establish petitioner's legal entitlement to a life sentence. Id.
In Turnbull, the OCCA sua sponte "anticipated and resolved" the double jeopardy argument that Selsor now asserts. Selsor II, 2 P.3d at 349. Specifically, the OCCA stated:
Turnbull, 947 P.2d at 583 (citing Salazar v. State, 919 P.2d 1120, 1127 (Okla.Crim. App.1996)).
Selsor asked the OCCA to revisit the issue on direct appeal following his retrial. Selsor argued that his "case present[ed] the unique question of whether an appellate court's modification of a death sentence on appeal to life imprisonment on the grounds that the statute under which the defendant was sentenced was subsequently declared unconstitutional constitutes an implied acquittal of the death penalty." State Aplt. Br. at 38. Selsor in turn argued "that under the Supreme Court's jurisprudence," specifically Bullington, Rumsey, and Poland, the OCCA's decision in Selsor I "to modify [his] death sentence to life imprisonment constituted an `implied acquittal' on the merits of the central issue in the proceeding: whether
The OCCA summarily rejected the claim, concluding that the argument was "adequately resolved in . . . Turnbull," and that "nothing in [Selsor's new appellate] brief [wa]s convincing or persuasive enough to change th[at] result[]." Selsor II, 2 P.3d at 350.
Underlying the OCCA's rejection of Selsor's double jeopardy claim was the implicit conclusion that the OCCA had not, in modifying Selsor's death sentence to life imprisonment in Selsor I, "acquitted" Selsor of the death penalty. As discussed in greater detail below, this conclusion was neither contrary to, nor an unreasonable application of, clearly established federal law.
On direct appeal from his first trial, Selsor argued that he was sentenced under an unconstitutional death penalty statute (i.e., Oklahoma's 1973 death penalty statute). The OCCA agreed with Selsor, summarily stating:
Selsor I, 562 P.2d at 927. At the conclusion of its decision, the OCCA then stated, in pertinent part:
Id. at 931.
The conclusory nature of the OCCA's reasoning in Selsor I, combined with its citation to Riggs, makes it necessary to examine Riggs in some detail. As previously noted, Riggs was decided in the immediate wake of the Supreme Court's rejection of post-Furman, mandatory death penalty schemes adopted by a number of states, including Oklahoma. The OCCA acknowledged these Supreme Court decisions at the outset of Riggs and in turn concluded that its task was "to determine the status of . . . those defendants[, like Selsor,] convicted of [First Degree Murder] prior to the effective date of [Oklahoma's] new [1976] murder statute[]." Riggs, 554 P.2d at 825. In resolving this question, the OCCA concluded that "the death penalty as provided in [the 1973 first degree murder statute] ha[d] been effectively stricken from [the] statute," id. at 827, but that "a constitutionally permissible penalty remain[ed]" for those defendants convicted of first degree murder under the 1973 statute, id. at 828. Specifically, the OCCA noted that although the 1973 murder statute mandated a sentence of death for anyone convicted of first degree murder, it also authorized the OCCA to modify a sentence of death to life imprisonment based upon "errors of law occurring at trial" or because "the death penalty was discriminatorily or disproportionately imposed." Id. (internal quotations omitted; citing Okla. Stat. tit. 21, § 701.5 (1973)). Finally, exercising that modification power, the OCCA concluded "that the appropriate penalty for murder in the first degree . . . under the 1973 statute" was life imprisonment. Id. at 829. Thus, in sum, the OCCA effectively modified, on the basis of constitutional error, all death sentences imposed on defendants convicted of first degree murder under Oklahoma's 1973 murder statute.
Returning to Selsor I, it is apparent that the OCCA, by applying its decision in Riggs to modify Selsor's death sentence to a term of life imprisonment, did not, as Selsor now suggests, "acquit" him of the death sentence. See Aplt. Br. at 50 (suggesting
We thus conclude that Selsor is not entitled to federal habeas relief on the basis of his double jeopardy claim.
In Proposition Three of his appellate brief, Selsor contends that at his 1998 retrial he was effectively prosecuted and convicted under Oklahoma's 1976 murder statute, rather than the 1973 murder statute he was charged with violating, and that, as a result, his first degree murder conviction violates the Ex Post Facto Clause. In support, Selsor notes that in Turnbull the OCCA "proclaimed that [he] was now `similarly situated to defendants awaiting trial under current murder and death penalty statutes.'" Aplt. Br. at 55 (quoting Turnbull, 947 P.2d at 583). Selsor contends that "[t]he prosecutor, defense counsel, and the trial court apparently took that pronouncement at face value, and conducted [his] trial under the 1976 murder statute, including its changed definition of first-degree murder." Id. However, Selsor notes, when he argued on direct appeal from his second trial "that this violated his rights under the Ex Post Facto Clause, the OCCA once again changed its tune," id., and held that "Selsor was not tried under the 1976 law," id. at 56. "In so ruling," Selsor argues, "the OCCA unreasonably determined the factual question of whether [he] was tried under the 1976 murder statute. . . ." Id. Consequently, he argues, "this Court should review [his] ex post facto claim de novo and grant him the writ as to his unconstitutional conviction." Id.
Although Selsor frames the alleged error as an ex post facto violation, we believe the alleged error is more appropriately treated as a due process violation. "The Ex Post Facto Clause, by its own terms, does not apply to courts." Rogers, 532 U.S. at 460, 121 S.Ct. 1693. Instead, "[t]he Ex Post Facto Clause is a limitation upon the powers of the Legislature. . . ." Marks v. United States, 430 U.S. 188, 191, 97 S.Ct. 990, 51 L.Ed.2d 260 (1977). In this case, there is no assertion that the alleged error resulted from a legislative act
The Supreme Court has "observed . . . that limitations on ex post facto judicial decisionmaking are inherent in the notion of due process." Rogers, 532 U.S. at 456, 121 S.Ct. 1693. In other words, a judicial decision that has an ex post facto effect
Selsor was originally charged by information with first degree murder in violation of Oklahoma's 1973 murder statute. See Okla. Stat. tit. 21, § 701.1 (1973). That statute defined the crime of first degree murder to require proof of "a premeditated design to effect the death of the person killed, or of any other human being," and commission of the murder during the course of one of several enumerated felony offenses, including armed robbery. Id. Consistent with that statutory definition, the information filed against Selsor alleged that he, "with a premeditated design to effect the death of one CLAYTON CHANDLER," and "while being then and there engaged in committing the crime of Robbery With Firearms did kill the said CLAYTON CHANDLER by means of a firearm loaded with powder. . . ." S. R., Vol. I at 10.
At Selsor's retrial proceedings, the prosecution relied on the original information. However, the prosecution also filed a Bill of Particulars (something it was not required to do under the 1973 murder statute) alleging the existence of two aggravating circumstances enumerated in Oklahoma's 1976 murder statute. See Okla. Stat. tit. 21, § 701.12 (1976). Selsor moved to strike the Bill of Particulars. After the state trial court denied Selsor's motion, Selsor petitioned the OCCA for a writ of mandamus and asserted a number of constitutional objections to the Bill of Particulars.
The OCCA, in its Turnbull decision, rejected Selsor's petition. In rejecting Selsor's claim that the prosecution's pursuit of the death penalty against him violated his rights under the Equal Protection Clause, the OCCA stated that Selsor "[wa]s no longer similarly situated to those defendants subject to Oklahoma's unconstitutional death penalty statute, 21 O.S.Supp. 1973, § 701.3, or to those defendants whose sentences were modified in accordance with Riggs." Turnbull, 947 P.2d at 583. Selsor's "Judgment and Sentence has been vacated," the OCCA stated, "and he stands before this Court, similarly situated to defendants awaiting trial under current murder and death penalty statutes."
Following the issuance of Turnbull, Selsor's case returned to the state trial court, where his retrial proceedings began. At the close of the first-stage evidence, the state trial court read to the jury the language of the information that was filed against Selsor in 1975. S. R., Vol. III at 351-54. That language stated, in pertinent part:
Id. at 351-54.
The state trial court then proceeded to provide the jury with specific instructions regarding the crime of first degree murder. In doing so, the state trial court outlined for the jury the essential elements of first degree murder under Oklahoma's 1976 murder statute, rather than the 1973 murder statute under which Selsor was charged:
The defendant is charged with:
Id. at 361.
Id. at 363.
The state trial court also separately instructed the jury on the elements of the crime of Robbery With Firearms:
Id. at 371.
Id. at 372. After deliberating, the jury found Selsor guilty of both of these crimes, as well as the crime of Shooting With Intent to Kill.
On direct appeal to the OCCA from his retrial, Selsor argued, in pertinent part, that the state trial court's retroactive application of the 1976 first degree murder statute and its corresponding penalty provisions violated the prohibition against ex post facto laws. The OCCA rejected that argument, stating as follows:
Selsor II, 2 P.3d at 350 (internal paragraph numbers and footnotes omitted).
The OCCA correctly noted that the state trial court's first degree murder instruction (Instruction 9) failed to include all of the essential elements under the 1973 murder statute. But rather than considering whether this resulted in constitutional error, the OCCA instead looked
This reasoning is backwards. While the presence of Instruction 18 may be relevant to the question of harmlessness, it does nothing to alter the fact that Selsor was convicted of first degree murder under the elements of the 1976 murder statute. As we have noted, Oklahoma's 1976 murder statute, in contrast to Oklahoma's 1973 murder statute, allowed the State to convict a defendant of first degree murder on the basis of malice aforethought alone, without proving that the killing occurred during the commission of one of several statutorily designated felony offenses. And because the 1976 murder statute required fewer elements of proof than the 1973 murder statute, the state trial court's instructional error clearly had an ex post facto effect on Selsor. Specifically, Selsor was effectively subjected to a law "that aggravate[d] a crime, or ma[d]e[] it greater than it was, when committed." Calder, 3 U.S. (3 Dall.) at 390 (emphasis in original). Consequently, we conclude the OCCA unreasonably determined that no constitutional error resulted from the state trial court's first degree murder instructions.
Having concluded that the state trial court's instructions effectively violated Selsor's due process rights, and that the OCCA's resolution of this issue was contrary to, or an unreasonable application of, clearly established federal law, two related questions remain: whether the error is subject to harmless error review and, if so, "whether the error was harmless." Patton v. Mullin, 425 F.3d 788, 819 (10th Cir.2005). Although Selsor correctly notes that the Supreme Court has never addressed whether ex post facto violations are subject to harmless error review, the constitutional violation that occurred here is not, as we have already explained, an ex post facto violation. Rather, it is a due process violation with an ex post facto effect. And on that point, the Supreme Court has recently and clearly spoken.
In Marcus, a criminal defendant was indicted on charges that he engaged in unlawful conduct between January 1999 and October 2001. At trial, the government presented evidence of the defendant's conduct during that entire period, and the jury convicted him. On appeal, the defendant argued that because the statutes he was convicted of violating did not become law until October 28, 2000, there was an Ex Post Facto Clause violation, and that the violation was a structural error that warranted reversal without a showing of prejudice. The Supreme Court, however, rejected those arguments. The Court first held, citing its decision in Marks, that it was "incorrect to classify the error at issue as an Ex Post Facto Clause violation. . . ." Marcus, 130 S.Ct. at 2165. Instead, the Court held, "if the jury . . . convicted [the defendant] based exclusively on noncriminal, preenactment conduct, [the defendant] would have a valid due process claim." Id. (citing Bouie, 378 U.S. at 353-54, 84 S.Ct. 1697). The Court in turn rejected the notion that such a due process violation was a structural error. Id. ("We see no reason why, when a judge fails to give an instruction, a reviewing court would find it any more difficult to assess the likely consequences of that failure than with numerous other kinds of instructional errors that we have previously held to be non-'structural'. . . .").
In light of Marcus, we conclude that the due process violation that resulted
We have little trouble concluding that the state trial court's instructional error did not have a substantial and injurious effect on the jury's guilt phase verdict. To be sure, the instructional error, as we have already discussed, allowed the jury to convict Selsor of first degree murder on the basis of fewer essential elements than were required for conviction under the applicable 1973 murder statute. But the presence of Instruction 18, which correctly outlined for the jury the elements of Robbery with Firearms, combined with the jury's findings of guilt on the First Degree Murder and Robbery with Firearms charges, meant that the jury found the existence of all but one of the essential elements of the 1973 murder statute. And the only essential element that was not covered by the state trial court's instructions, i.e., that the murder occurred "while in the commission" of the robbery, was essentially undisputed. In other words, the prosecution's evidence clearly established, without dispute from Selsor, that Selsor murdered Chandler during the course of the convenience store robbery. In short, then, the instructional error resulted in no "actual prejudice" at the guilt phase of Selsor's trial.
We must still address, however, whether the state trial court's instructional error had a substantial and injurious effect on the jury's penalty phase verdict. Selsor argues that the error had precisely such an effect because it "led to the jury's consideration and finding of an invalid aggravating factor. . . ." Aplt. Br. at 69. In support, Selsor notes that the jury at the penalty phase "was instructed that it could find the `avoid arrest or prosecution' aggravator only if it determined that Selsor killed Chandler to avoid arrest for `another crime separate and distinct from the murder.'" Id. (quoting S. R., Vol. III at 403; emphasis in original). This instruction, Selsor argues, "was consistent with the OCCA's decisions holding that the `avoid arrest or prosecution' aggravator required proof of `a predicate offense, separate from the murder, for which the defendant seeks to avoid arrest or prosecution,'" id. at 69-70 (quoting Scott v. State, 891 P.2d 1283, 1294 (Okla.Crim.App.1995)), and "was also consistent with the guilt phase instructions [his] jury received . . . explaining that the murder and robbery were separate offenses, each of which `must stand on its own merits,'" id. at 70 (quoting S. R., Vol.
We disagree. To be sure, the OCCA's decisions provide that establishment of the "avoid arrest or prosecution" aggravator requires proof that "the defendant committed some `predicate crime,' separate from the murder." Mitchell v. State, 136 P.3d 671, 677 (Okla.Crim.App.2006) (citing cases from the mid-1990's). But what Selsor overlooks is that the OCCA's decisions also provide that "in cases in which the capital defendant is charged with first-degree felony murder, the crime that serves as the underlying felony for the murder conviction can also serve as the predicate crime for the avoid arrest aggravator in the second stage." Id. at 678 (citing prior cases from 1994, 2000, and 2004). Thus, even though the prosecution in Selsor's case had to prove commission of the robbery in order to convict Selsor of first degree murder under the 1973 murder statute, the robbery could still properly serve as the predicate crime for the avoid arrest aggravator. Accordingly, the state trial court's instructional error did not invalidate the avoid arrest aggravator, and in turn did not have a substantial and injurious effect on the jury's second-stage findings.
In Proposition Four of his appellate brief, Selsor contends that "[b]y resentencing [him] to death, both the State and the OCCA have deprived him of equal protection of the laws, in violation of the Fourteenth Amendment." Aplt. Br. at 72. More specifically, Selsor contends that "[t]he State treated [him] differently from all other defendants convicted of murders occurring between May 17, 1973 and July 24, 1976, by obtaining a death sentence against him alone." Id.
Selsor points to a number of Supreme Court decisions in support of his equal protection claim. To begin with, Selsor cites to City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985), for the general proposition that "[t]he Equal Protection Clause of the Fourteenth Amendment . . . is essentially a direction that all persons similarly situated should be treated alike." Selsor also notes that in Jones v. Helms, 452 U.S. 412, 423-24, 101 S.Ct. 2434, 69 L.Ed.2d 118 (1981), the Supreme Court held that "[t]he Equal Protection Clause provides a basis . . . for contending that general rules are being applied in an arbitrary or discriminatory way." In turn, Selsor notes that the State typically must establish "a rational basis for [a] difference in treatment," Village of Willowbrook v. Olech, 528 U.S. 562, 564, 120 S.Ct. 1073, 145 L.Ed.2d 1060 (2000), meaning that "the classification itself [must be] rationally related to a legitimate governmental interest," U.S. Dep't of Agric. v. Moreno, 413 U.S. 528, 533, 93 S.Ct. 2821, 37 L.Ed.2d 782 (1973). Lastly, Selsor asserts that where, as here, the challenged government action implicates a fundamental
Selsor presented his equal protection claim to the OCCA in the context of the mandamus action he filed in 1997 seeking to challenge the state trial court's denial of his motion to dismiss the prosecution's Bill of Particulars. The OCCA rejected the claim, concluding as follows:
Turnbull, 947 P.2d at 583.
According to Selsor, the relevant comparison group for purposes of his equal protection claim includes all Oklahoma state defendants convicted of murders occurring between May 17, 1973 and July 24, 1976. In so defining this comparison group, Selsor obviously "regards . . . as immaterial to the similarly-situated analysis," United States v. Moore, 543 F.3d 891, 897 (7th Cir.2008), the fact that he, unlike every other member of that group, obtained federal habeas relief, had his original convictions and sentences invalidated, and was afforded a new trial, Kaiser II, 81 F.3d at 1506.
In our view, however, the OCCA's more narrow construction of the "similarly situated" test, and its related conclusion that Selsor was not similarly situated to the identified group because of his successful federal habeas action and subsequent retrial, was an entirely reasonable construction of clearly established federal law. Although the Supreme Court, as far as we can determine, has never precisely defined the meaning of "similarly situated," it has emphasized that the comparative group identified by the plaintiff/petitioner must be "similarly situated in relevant respects." Bd. of Trs. of Univ. of Ala. v. Garrett, 531 U.S. 356, 366 n. 4, 121 S.Ct. 955, 148 L.Ed.2d 866 (2001). This court, in turn, has attempted to provide a somewhat more detailed definition, noting that "the degree to which others are viewed as similarly situated [for equal protection analysis purposes] depends substantially on the facts and context of the case," and that, consequently, many "legitimate" "variables" may serve to distinguish the plaintiff from those other persons. Jennings v. Stillwater, 383 F.3d 1199, 1213-14 (10th Cir.2004). Other circuits have held that the comparison group identified by the party asserting an equal protection claim must be "identical in all relevant respects." Srail v. Village of Lisle, 588 F.3d 940, 945 (7th Cir.2009) (internal quotation marks omitted). Together, these principles clearly support the OCCA's conclusion that Selsor was not, because of having obtained federal habeas relief and received a new trial, "similarly situated" to his identified comparison group. Thus, we conclude Selsor is not entitled to federal habeas relief on the basis of his equal protection claim.
In Proposition Five of his appellate brief, Selsor contends that the State violated his due process rights when, following his successful federal habeas action, it actively sought the death penalty against him. Selsor contends that the State's action in this regard raises an "unrebuttable presumption" of vindictive prosecution. Aplt. Br. at 77.
In support, Selsor points to Blackledge v. Perry, 417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974), and subsequent Supreme Court "decisions construing that case." Aplt. Br. at 80. According to Selsor, "[t]hat body of law holds that where, as here, an appellate court reverses a defendant's conviction, and the State, on retrial, seeks a more severe sentence than it sought before the reversal, a presumption of vindictive prosecution arises that mandates invalidation of the more severe sentence, unless the State produces objective proof rebutting the presumption." Id. (emphasis in original).
The general principle relied on by Selsor appears to have first originated in North Carolina v. Pearce, 395 U.S. 711, 726, 89 S.Ct. 2072, 395 U.S. 711 (1969). In Pearce, the Supreme Court addressed the following question: "When at the behest of the defendant a criminal conviction has been set aside and a new trial ordered, to what extent does the Constitution limit the imposition of a harsher sentence after conviction upon retrial?" Id. at 713, 89 S.Ct. 2072. The Court first held "that neither the double jeopardy provision nor the Equal Protection Clause imposes an absolute bar to a more severe sentence upon reconviction." Id. at 723, 89 S.Ct. 2072. In other words, the Court held, "[a] trial judge is not constitutionally prohibited . . . from imposing a new sentence, whether greater or less than the original sentence, in light of events subsequent to the first trial that may have thrown new light upon the defendant's `life, health, habits, conduct, and mental and moral propensities.'" Id. (quoting Williams v. New York, 337 U.S. 241, 245, 69 S.Ct. 1079, 93 L.Ed. 1337 (1949)). The Court in turn held, however, that the Due Process Clause of the Fourteenth Amendment places certain limitations on the sentence that can be imposed following retrial. In particular, the Court held that "[d]ue process of law . . . requires that vindictiveness against a defendant for having successfully attacked his first conviction must play no part in the sentence he receives after a new trial." Id. at 725, 89 S.Ct. 2072. "And," the Court further held, "since the fear of such vindictiveness may unconstitutionally deter a defendant's exercise of the right to appeal or collaterally attack his first conviction, due process also requires that a defendant be freed of apprehension of such a retaliatory motive on the part of the sentencing judge." Id. "In order to assure the absence of such a motivation," the Court held, "whenever a judge imposes a more severe sentence upon a defendant after a new trial, the reasons for his doing so must affirmatively appear," and "[t]hose reasons must be based upon objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding." Id. at 726, 89 S.Ct. 2072.
In Blackledge, the Court addressed the related question of whether the Constitution places limitations on the ability of a prosecutor, following a defendant's successful appeal or habeas action, to file more serious charges against the defendant, i.e., charges that carry a more severe sentence than was originally imposed on the defendant after the first trial. In addressing this question, the Court examined
In 1984, the Court, prompted by a "conflict among the Circuits," revisited "the meaning of [its] holding in Pearce." Wasman v. United States, 468 U.S. 559, 563, 104 S.Ct. 3217, 82 L.Ed.2d 424 (1984). In doing so, the Court outlined the key portion of Pearce's holding:
Id. at 564-65, 104 S.Ct. 3217 (brackets in original). The Court in turn noted that Blackledge was the "only . . . other circumstance [in which it] ha[d] identified a need to indulge a presumption of vindictiveness of the kind imposed in Pearce." Id. at 565, 104 S.Ct. 3217. Describing Blackledge, the Court stated:
Id. at 566, 104 S.Ct. 3217. The Court proceeded to describe four cases in which it "expressly declined invitations to extend the presumption." Id. After doing so, the Court summarized the impact of Pearce, Blackledge, and the other four cases:
Selsor presented this claim to the OCCA in 1997 when, following the state trial court's denial of his motion to strike the Bill of Particulars filed by the prosecution, he petitioned the OCCA for a writ of mandamus. In his filing with the OCCA, Selsor argued, in pertinent part, that in light of Riggs, "there was no death penalty statute in effect in Oklahoma in 1975, when [he] [wa]s alleged to have committed the crime of murder in the first degree," but that he was nevertheless "facing the death penalty, a greater punishment than that in place at the time of the alleged commission of the crime, because his Sixth Amendment right to effective assistance of counsel was violated" and ultimately vindicated in a federal habeas proceeding. App. to Assume Original Jurisdiction and Pet. for Writ of Prohibition and/or Mandamus at 6, 8-9. Exposing him to such possible punishment, Selsor argued, "fl[ew] in the face of due process." Id. at 9. Notably, Selsor did not cite to Pearce or Blackledge, nor did he argue that the prosecution acted vindictively in filing the Bill of Particulars against him.
In addressing Selsor's arguments, the OCCA first held that, "[c]ontrary to [Selsor]'s arguments, there was a death penalty statute in effect in 1975, and on the date his crime was committed, in the form of 21 O.S. Supp.1973, § 701.3." Turnbull, 947 P.2d at 582. In support, the OCCA stated:
Id. at 582-83. Later in its opinion, the OCCA rejected Selsor's due process argument:
Id. at 583. Both the Salazar and Stafford decisions cited by the OCCA expressly cited to Pearce and its progeny. Salazar, 919 P.2d at 1127 n. 8; Stafford, 800 P.2d at 740.
Selsor contends the OCCA's decision "directly conflicts with" Blackledge and the Supreme Court's "later decisions construing that case." Aplt. Br. at 80. According to Selsor, "[t]he OCCA ruled contrary to this clearly established law, because in resting its decision on the perceived absence of evidence of retaliation, it failed to recognize that vindictiveness must be presumed, and that the State bore the burden of rebutting that presumption." Id.
It is apparent from its decision that the OCCA did not expressly address the question of whether Selsor was, under Pearce and its progeny, entitled to a presumption of vindictiveness, or whether Selsor was instead required to prove actual vindictiveness on the part of the prosecution. As the Supreme Court recently emphasized, however, it is unnecessary that a state court "explain[] [its] reasoning." Harrington v. Richter, ___ U.S. ___, 131 S.Ct. 770, 784, 178 L.Ed.2d 624 (2011). Thus, we must assume, in applying the standards outlined in § 2254(d), that the OCCA concluded Selsor was not entitled to a presumption of vindictiveness and that, in turn, Selsor failed to prove actual vindictiveness.
Neither of these implicit conclusions reached by the OCCA are contrary to, or an unreasonable application of, Pearce or its progeny. Turning first to the question of whether Selsor was entitled to a presumption of vindictiveness, the relevant comparison, according to the Supreme Court, is between the "original sentence" and the "new" or newly-sought sentence. Pearce, 395 U.S. at 723, 89 S.Ct. 2072; Blackledge, 417 U.S. at 27-28, 94 S.Ct. 2098. In Selsor's case, we conclude that the "original sentence" was the death sentence imposed by the state trial court pursuant to the jury's verdict, and not, as suggested by Selsor, the modified sentence of life imprisonment that was ordered by the OCCA on direct appeal in Selsor I. To be sure, neither Pearce nor its progeny dealt with a situation identical to the one at issue here. However, under the standard of review set forth in § 2254(d)(1), Selsor cannot obtain federal habeas relief unless we determine that the OCCA unreasonably construed Pearce and its progeny to require comparison of the "original" sentence to the sentence ultimately sought by the prosecution on retrial. And on that question, Selsor cannot prevail. In other words, because Selsor's situation differed in a key respect from the circumstances in Pearce and its progeny, the OCCA was left to determine whether to define Selsor's "original sentence" as the death sentence imposed at his original trial, or the modified
That leaves only the OCCA's implicit conclusion that Selsor failed to prove actual vindictiveness on the part of the prosecution in filing the Bill of Particulars and seeking the death penalty on retrial. In this federal habeas action, Selsor asserts a host of arguments in an attempt to prove actual vindictiveness: the fact that in his first direct appeal "the State asked the OCCA to modify [his] sentence to life," Aplt. Br. at 82; "[t]he extraordinary lengths to which the State went in seeking the death penalty following [his] habeas victory," including "its aggressive and surprising campaign to overrule Riggs," id. at 83; "[t]he State's pursuit of an excessive sentence on the shooting with intent to kill conviction," i.e., "ask[ing] the jury for a sentence 250 times greater than it had requested at the first trial," id. at 84; and the lack "of any explanation by the State for its decision to seek the death penalty," id. at 86. The problem, however, is that Selsor made no mention of any of these factors (or of Pearce or its progeny) when he presented his due process claim to the OCCA. Thus, the OCCA's implicit conclusion that Selsor failed to carry his burden of presenting sufficient evidence to justify a remand to the state trial court for determination of the actual vindictiveness issue, or, alternatively, its implicit finding of no actual vindictiveness, was entirely reasonable. See 28 U.S.C. § 2254(d)(1) and (2).
In Proposition Six of his appellate brief, Selsor contends that the penalty-phase of his trial was rendered "fundamentally unfair" by prosecutorial misconduct. Aplt. Br. at 87. Specifically, Selsor contends that the prosecution, "[b]oth by suggesting, absent a shred of evidentiary support, that [his] mitigation witnesses were testifying untruthfully out of fear of reprisals, and by comparing the value of [his] life in prison to the victim's death, . . . created a grave risk that the jury's death verdict was based on passion and prejudice, rather than a reasoned review of the evidence." Id.
Selsor's penalty-phase mitigation evidence was comprised of testimony from five non-familial witnesses. The first of those, LaDonna Penny, a data entry clerk for the Tulsa County Sheriff's Department, testified that Selsor received no write-ups during the nineteen months he was confined in the Tulsa County Jail. The remaining four witnesses, Kenneth Williamson, Bervin Knott, Fred Cook, and Linda Morgan, were either employed by, or retired from employment with, the Oklahoma Department of Corrections (ODC) and had interacted with Selsor during his imprisonment following his original conviction. All four of these witnesses testified that, despite supporting the death penalty generally, they disagreed with the prosecution's recommended sentence of death for Selsor.
In cross-examining these latter four witnesses, the prosecution focused on certain episodes of misconduct committed by Selsor during his period of confinement, in particular his attempted escape in the early 1980's. The prosecution also elicited a concession from one of the witnesses, Knott, that he would likely again be assigned to supervise Selsor if Selsor was sentenced to life in prison. Knott, however, expressly disagreed with the prosecution's suggestion on cross-examination that it could potentially place him in danger to say negative things about Selsor; indeed, Knott testified that he was not concerned
Tr., Vol. V at 1200-02.
The prosecution also, during its final second-stage closing argument, asked the jury to consider what Selsor's life would be like if sentenced to life imprisonment, and, in doing so, contrasted that with the plight of Selsor's victims:
Id. at 1202-04.
Selsor points to a trio of Supreme Court cases in support of his claim: Viereck v. United States, 318 U.S. 236, 63 S.Ct. 561, 87 L.Ed. 734 (1943), Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977), and Darden v. Wainwright, 477 U.S. 168, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986). In Viereck, the Supreme Court condemned as prejudicial to the defendant's right to a fair trial closing remarks made by the prosecutor that were "wholly irrelevant to any facts or issues in the case, the purpose and effect of which could only have been to arouse passion and prejudice." 318 U.S. at 247, 63 S.Ct. 561. In Gardner, a capital case, the Supreme Court did not address prosecutorial misconduct, but instead held generally that "[i]t is of vital importance to the defendant [in a capital case] and to the community that any decision to impose the death sentence be, and appear to be, based on reason rather than caprice or emotion." 430 U.S. at 358, 97 S.Ct. 1197. Finally, in Darden, another capital case, the Supreme Court characterized as "improper," but ultimately harmless, "several offensive comments" made by the prosecutor during second-stage closing arguments that "reflect[ed] an emotional reaction to the case."
Selsor first presented his claim to the OCCA on direct appeal from his 1998 retrial, arguing, in pertinent part, that the prosecutor's second-stage arguments deprived him of his right to a fair sentencing hearing. In doing so, however, Selsor failed to cite to any of the three Supreme Court cases he now relies on.
In addressing Selsor's arguments, the OCCA noted at the outset that Selsor's counsel failed to object to the purported misconduct at trial, thereby "waiving all but plain error." Selsor II, 2 P.3d at 354. The OCCA then rejected Selsor's arguments, stating:
Id. (internal paragraph numbers omitted).
"[W]hen a state court applies plain error review in disposing of a federal claim, the decision is on the merits to the extent that the state court finds the claim lacks merit under federal law." Douglas v. Workman, 560 F.3d 1156, 1171 (10th Cir.2009). That is precisely the situation here: although the OCCA applied plain error review to Selsor's claims, it ultimately concluded the claims lacked merit under controlling federal law. Consequently, the question we must address is whether the OCCA's decision was contrary to, or an unreasonable application of, the three Supreme Court decisions cited by Selsor. See id.; 28 U.S.C. § 2254(d)(1).
We conclude, contrary to Selsor's arguments on appeal, that the OCCA's decision was consistent with Viereck, Gardner, and Darden. To begin with, the challenged remarks by the prosecutor concerning the testimony of the ODC employees were not "wholly irrelevant to any facts or issues in the case," Viereck, 318 U.S. at 247, 63 S.Ct. 561, but rather, as noted by the OCCA, were intended to directly rebut Selsor's arguments as to why he should be sentenced to life imprisonment. Specifically, the prosecutor was attempting to argue to the jury that the testimony of the ODC employees should be discounted both because they were not privy to all of the relevant facts, and because they might be fearful of future retaliation from Selsor or others if they agreed with the prosecutor's recommended sentence. Although none of
As for the prosecutor's comparison of the plight of the victims and their families with the life Selsor would lead if sentenced to a term of imprisonment, the OCCA reasonably concluded that was a valid comment on the evidence presented during the second-stage proceedings. In cross-examining each of Selsor's ODC witnesses, the prosecutor elicited testimony indicating that Selsor, like other inmates serving terms of imprisonment, could choose whether or not to work, and could participate (and had participated) in various activities, including prison rodeos and gardening. The prosecutor in turn emphasized this testimony during closing arguments to highlight for the jury the consequences of a decision to sentence Selsor to life imprisonment rather than death. To be sure, the prosecutor's related discussion of the plight of the victims and their families may have "arouse[d] [the jury's] passion," Viereck, 318 U.S. at 247, 63 S.Ct. 561, or "emotion[s]," Gardner, 430 U.S. at 358, 97 S.Ct. 1197. That said, however, the prosecutor did not manipulate or misstate the evidence in that regard. Thus, as was the case in Darden, the prosecutor's remarks did not ultimately impact Selsor's right to a fair sentencing hearing.
In sum, Selsor is not entitled to federal habeas relief on the basis of his prosecutorial misconduct claim.
In his seventh, and final, proposition of error, Selsor contends that the trial court's admission, during the penalty-phase, of testimony from Clayton Chandler's widow and daughter "that they agreed with the prosecution's recommendation of death for Selsor," Aplt. Br. at 103-04, "served only to inflame the jury's passion and prejudice, and therefore violated the Eighth Amendment," id. at 104.
The prosecution, as part of its secondstage evidence, presented testimony from Debbie Huggins, Chandler's daughter, and Anne Chandler, Chandler's widow. Both of these witnesses were allowed to read into the record written victim impact statements they had prepared prior to trial. As part of her victim impact statement, Huggins stated, "I am in agreement with the District Attorney's Office regarding the recommendation of this case." Tr., Vol. V at 1042. Similarly, Anne Chandler stated, in reading her victim impact statement, "I agree with the District Attorney's recommendations on this case." Id. at 1045. Selsor's counsel timely objected to both statements, but was overruled by the state trial court.
Selsor, citing Payne v. Tennessee, 501 U.S. 808, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991), and Booth v. Maryland, 482 U.S. 496, 107 S.Ct. 2529, 96 L.Ed.2d 440 (1987), contends "[t]he Supreme Court has long held that a victim-impact witness's testimony supporting a death sentence for the defendant violates the Eighth Amendment."
"This circuit and several other circuits have [since] expressly recognized that the portion of Booth prohibiting family members of a victim from stating `characterizations and opinions about the crime, the defendant, and the appropriate sentence' during the penalty phase of a capital trial survived the holding in Payne and remains valid." Welch v. Sirmons, 451 F.3d 675, 703 (10th Cir.2006), overruled on other grounds by Wilson v. Workman, 577 F.3d 1284 (10th Cir.2009) (en banc).
It is uncontroverted that Selsor never presented this claim to the OCCA. Selsor argues, however, that exhaustion of the claim was futile because the OCCA has consistently upheld admission of similar evidence. Indeed, Selsor asserts, "[t]he OCCA upheld admission of a victim's death recommendation the same day it decided [his] appeal." Aplt. Br. at 104 (citing Welch v. State, 2 P.3d 356, 373 (Okla.Crim.App. 2000) ("Victim impact testimony may include information about the victim, circumstances surrounding the crime, the manner in which the crime was perpetrated, and the victim's opinion of a recommended sentence.")).
A state prisoner generally may not raise a claim for federal habeas corpus relief unless he "has exhausted the remedies available in the courts of the State." 28 U.S.C. § 2254(b)(1)(A). To exhaust a claim, a state prisoner must pursue it through "one complete round of the State's established appellate review process," giving the state courts a "full and fair opportunity" to correct alleged constitutional errors. O'Sullivan v. Boerckel, 526 U.S. 838, 845, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999). If a state prisoner has not properly exhausted state remedies, the federal courts ordinarily will not entertain an application for a writ of habeas corpus unless exhaustion would have been futile because either "there is an absence of available State corrective process" or "circumstances exist that render such process ineffective to protect the rights of the applicant." 28 U.S.C. §§ 2254(b)(1)(B)(i), (ii). The state prisoner bears the burden of proving that he exhausted state court remedies, see McCormick v. Kline, 572 F.3d 841, 851 (10th Cir.2009), or that exhaustion would have been futile, see Clonce v. Presley, 640 F.2d 271, 273 (10th Cir.1981).
In the instant case, we conclude, out of an abundance of caution, that Selsor has sufficiently established that exhaustion of his claim with the OCCA would have been futile. In particular, Selsor correctly notes that the OCCA, both at the time it decided his direct appeal and for several years thereafter, consistently approved of the admission during second-stage capital proceedings of a "victim's opinion of [the] recommended sentence." Welch, 2 P.3d at 373; see Murphy v. State, 47 P.3d 876, 885 (Okla.Crim.App.2002) (same).
The Supreme Court's decision in Payne and our own post-Payne cases clearly establish that it is a violation of the Eighth
The question then becomes whether "the prejudicial impact of [this] constitutional error" rises to the "substantial and injurious effect standard set forth in" Brecht. Fry v. Pliler, 551 U.S. 112, 120, 121 n. 3, 127 S.Ct. 2321, 168 L.Ed.2d 16 (2007). As we have noted, this standard affords a state habeas petitioner plenary review to determine whether a trial error "resulted in actual prejudice." Id. at 637, 113 S.Ct. 1710 (internal quotation marks omitted). A "substantial and injurious effect" exists when the court finds itself in "grave doubt" about the effect of the error on the jury's verdict. O'Neal v. McAninch, 513 U.S. 432, 435, 115 S.Ct. 992, 130 L.Ed.2d 947 (1995). Notably, "an error that may justify reversal on direct appeal will not necessarily support a collateral attack on a final judgment." Brecht, 507 U.S. at 634, 113 S.Ct. 1710. However, "when a court is `in virtual equipoise as to the harmlessness of the error' under the Brecht standard, the court should `treat the error . . . as if it affected the verdict. . . .'" Fry, 551 U.S. at 121 n. 3, 127 S.Ct. 2321 (quoting O'Neal, 513 U.S. at 435, 115 S.Ct. 992).
We conclude, after "[a]ssessing the improper parts of the victim impact evidence in the context of other evidence presented," that the improper evidence "did not have an actual impact on [Selsor's] sentence." Welch, 607 F.3d at 695 (internal quotation marks omitted). To begin with, the challenged statements by Huggins and Anne Chandler did not expressly refer to Selsor being put to death; instead, they both simply stated without embellishment they agreed with the prosecution's "recommended sentence." Further, the evidence presented by the prosecution overwhelmingly supported the two aggravating circumstances found by the jury. Indeed, those circumstances were all but uncontroverted. Moreover, although the jury did not find that Selsor represented a continuing threat to society, the prosecution's evidence of Selsor's role in a string of violent robberies nevertheless painted a picture of Selsor that was certainly less than flattering, and that weighed heavily in favor of imposition of the death penalty. As for Selsor's own mitigating evidence, it was, quite frankly, less than compelling. Although all four of the ODC witnesses testified they disagreed with the imposition of the death penalty for Selsor, two of those witnesses conceded that Selsor's prison record was simply "a little bit better than average," Tr., Vol. V at 1124 (testimony of Knott); id. at 1135 (testimony of Cook), and one of those witnesses effectively conceded that Selsor remained a threat, id. at 1098 (testimony of Williamson). Lastly, "the jury was [properly] instructed on the use of mitigating evidence and its role in the sentencing deliberations." Welch, 607 F.3d at 695. Considered together, the challenged victim impact statements did not "so clearly sway[] the jury as to cause [Selsor] actual prejudice as required by Brecht." Id.
AFFIRMED.
