Along with accomplice Randall Cannon, broke into home, beat 84 year
old owner, kidnapped her, put her in trunk, doused her with gasoline
and set car on fire.
She died 5-6 hours later. Stole her wedding
ring and gave to a stripper the same day.
Victim was aunt of Colorado State Senator
Chlouber. Reversed and retried in 1993, again sentenced to death.
Oklahoma Attorney General
October 31, 2000
W.A. Drew Edmondson, Attorney
General - Execution Date Requested For Loyd Lafevers
Attorney General Drew Edmondson today asked the
Oklahoma Court of Criminal Appeals to set an execution date for
death row inmate Loyd Winford Lafevers. Lafevers was previously
scheduled to be executed March 9 for the murder of 84-year-old Addie
Hawley in Oklahoma City.
That execution was stayed March 8 pursuant to an
order from the Tenth Circuit Court of Appeals in Denver which
allowed Lafevers to file a second petition for writ of habeas
corpus. Lafevers claimed that DNA evidence could produce substantial
evidence of innocence.
On July 31 the Tenth Circuit Court of Appeals
extended the stay, "until November 1, 2000, or until a ruling on the
application is made in the district court, whichever first occurs."
Lafevers filed his application Sept. 15 and yesterday Federal
District Judge Tim Leonard dismissed the petition, thereby
dissolving the stay and prompting Edmondson to file today's request.
"There has been much legal wrangling in the case of Loyd Lafevers,"
said Edmondson. "The fact remains that the DNA evidence will not
produce evidence of actual innocence because, regardless of the
outcome of the tests, the results would not negate or even minimize
Both Lafevers and co-defendant Randall Cannon
confessed to participation in the crime, but each said the other was
the more active participant.
Hawley was abducted from her northwest
Oklahoma City home at about 10 p.m., June 24, 1985, and found later
that night lying nude and incoherent in a vacant lot some 21 blocks
north of her house.
She died at Baptist Hospital in the early
morning hours of June 25. She had been badly beaten and more than 65
percent of her body had been severely burned.
Lafevers and Cannon were tried jointly and each
was convicted and received the death penalty for Hawley's murder.
Those convictions were reversed on appeal, but Lafevers and Cannon
were retried separately in 1993, found guilty and again sentenced to
"Loyd Lafevers brutally beat and burned a
helpless 84-year-old woman and left her to die," said Edmondson. "He
was twice convicted and sentenced to the death penalty for his crime.
This new round of appeal has accomplished only delay and more pain
for Ms. Hawley's family."
Death Penalty Institute of
Loyd Winford Lafevers, 35, was pronounced dead at
9:19pm. He was executed by the state via lethal injection at
Oklahoma State Penitentiary in McAlester. Lafevers, an Oklahoma
County death row inmate, was sentenced to death for the June 24,
1985, murder of Addie Mae Hawley, 84. Randall Cannon was also
sentenced to death for her murder.
Lafevers was scheduled to be executed last March,
but received a stay in order for DNA testing to be performed.
Lafevers was the seventh Oklahoma inmate to be executed this year
and the 37th since executions resumed in the state in 1990.
Oklahoma had the highest per capita execution rate in the country last year
and is leading the nation again in 2001.
According to prosecutors, Lafevers and Cannon
went to Hawley's house to rob her at approximately 10:00pm on June
24. They then decided to kill her because she had seen their faces.
Hawley was taken from her house in the trunk of a car to a deserted
street and set on fire. She died at a hospital at about 5:25am on
June 25. She had burns on over 60% of her body.
Lafevers and Cannon were tried together in 1986
and sentenced to death. That conviction was overturned by the
Oklahoma Court of Criminal Appeals because the men were denied
separate trials. Both were subsequently retried in 1993 and again
received death sentences.
Clemency Denied on January 29
The Oklahoma Pardon and Parole Board held a
clemency hearing for Lafevers at on Monday, January 29, 2001 -- one
day before his scheduled execution. The board voted 4-0 to deny
clemency. Since reinstatement of the death penalty in Oklahoma, the
board has never voted to recommend clemency.
On March 7 the US 10th Circuit Court of Appeals
ordered US District Judge Timothy Leonard, Western District, to
grant a stay of execution to Loyd Winford LaFevers. On the morning
of March 8, Judge Leonard issued a 90-day stay of execution.
LaFevers had been scheduled to be executed at 12:01am on Thursday,
March 9. Oklahoma Attorney General Drew Edmondson immediately filed
an emergency request with the US Supreme Court asking them to vacate
the stay of execution.
On the evening of March 8 they denied
Edmondson's request. LaFevers' clemency hearing had been scheduled
for 10am on March 8. However, do to the stay of execution the
hearing was delayed. The state Pardon and Parole Board recessed
three times to await the high court ruling, and finally decided to
adjourn until March 21st.
The earliest that a new execution date for
LaFevers can be set is 60 days from the time his 90-day stay of
execution ends. Edmondson said, "When the appeals are exhausted, we
will ask for another execution date. It will be another 60 days. I
fully expect Loyd LaFevers will be executed in the fall of this year."
Addie Hawley isn't around to tell the Oklahoma
Pardon and Parole Board who kidnapped her from her Oklahoma City
home, beat her so badly her dentures were knocked from her mouth,
doused her with gasoline and set her on fire.
But defense attorneys for death row inmate Loyd
Lafevers hope that new DNA test results will convince the board
Wednesday that Lafevers wasn't the one who beat and killed the 84-year-old
His attorneys may concede Lafevers was involved in robbing
Hawley but not in her murder, which Oklahoma County Assistant
District Attorney Lou Keel called the worst he'd seen in the close
to 100 murder cases he's worked in nearly two decades.
The DNA results are also the basis for a stay of
execution request to the 10th Circuit Court of Appeals in Denver. A
federal judge on Friday denied such a request, saying he didn't have
Defense attorneys also want unidentified hairs found
at the crime scene tested, according to court documents. Oklahoma
Attorney General Drew Edmondson said recent DNA tests of blood from
a pair of jeans used as evidence in Lafevers' trial only show that
the prosecution's theory was flawed.
There is ample evidence to put
Lafevers at the scene as an active participant in the murder, he
said. Lafevers broke into Hawley's house, helped put her in the car,
filled receptacles with gasoline used to douse her and gave her well-worn
wedding ring to a stripper shortly after the murder, Edmondson said.
Lafevers was 19 with a 10th-grade education in
June of 1985. After Lafevers' car broke down, he and Randall Eugene
Cannon, 25, went to the Hawley's home and kicked in the front door.
She attempted to escape but was brought back to the house, which was
ransacked. Hawley was taken to another site in the trunk of her car,
beaten and set on fire.
Hawley was found still alive but died a few
hours later. She had burns on more than 60 percent of her body.
Prosecutors alleged she had been raped and sodomized. Lafevers was
acquitted of the rape and sodomy charges, according to court
Lafevers and Cannon each blamed the other for
Hawley's murder. Lafevers had said that he didn't know until the
next day that Hawley had been killed. "By then I thought I had
talked him into just letting her out, so I run up the street to
watch down another street to see if any cars was coming and I
thought he was just going to let her out there," Lafevers said in a
June 27, 1985, statement.
According to Lafevers, after he left, Cannon
burned the car and then the pair went drinking. When the pair were
tried together in 1986, it took a jury less than two hours to
A successful appeal brought the pair new separate trials in
1993 with the same results. Defense attorneys will say the evidence
against Lafevers comes down to state's exhibit 83, a bloodied pair
of jeans taken from Cannon's home. "The pants were the only direct
physical evidence relied on by the state to support the allegation
Mr. Lafevers was a direct participant in the murder of Addie Hawley,"
Catherine Burton, one of his trial attorneys, said in a Feb. 10
Recent DNA testing showed blood on the jeans belonged to
Cannon and another unidentified person. Prosecutors had originally
contended that Hawley's blood was on the jeans. Federal defender
Patrick Ehlers Jr. was assigned the case on Jan. 7 after the
attorney representing Lafevers failed to meet an appeal deadline,
resulting in a request for an execution date. Ehlers successfully
won a court order for the tests.
Edmondson also had his own tests
done. In closing arguments at Lafevers' 1993 trial, both prosecutors
mentioned the pants. One told the jury to conclude that they
belonged to Lafevers and were bloodied when he was beating Hawley
shortly before she was doused with gasoline and set on fire.
"The prosecutor left an inference with the jury
that turned out to be inaccurate," Edmondson said. "That doesn't
mean (Lafevers) is innocent." Jurors were given options.
first-degree murder with malice aforethought, meaning Lafevers
planned the murder or was a participant, Edmondson said. "If you are
in on planning and encouraging and supplied the materials and
someone else goes to Oklahoma City and blows up the building, it
doesn't matter who set the match," Edmondson said. "You are a
principal and you are just as guilty as the guy who did it." The
jury also could have convicted Lafevers of felony murder, in which a
person dies accidentally as a result of another felony. A conviction
on either charge can bring a death sentence. "A jury is less likely
to give the death penalty to someone sitting in a car passed out
drunk rather than doing the actual killing," said Oklahoma City
attorney Jack Fisher.
Fisher, who was not speaking in reference to a
particular case, represents Cannon, whose appeal is at the 10th
Circuit Court of Appeals. Fisher says the recent DNA results don't
implicate his client in Hawley's murder. "It's his blood, not the
victim's," Fisher said.
UPDATE: One of two men who tortured, bludgeoned,
then set fire to a Colorado senator's 84-year-old aunt in Oklahoma
15 years ago won't be executed this morning. Loyd Lafevers came
within hours of death before winning a stay Tuesday from the 10th
U.S. Circuit Court of Appeals on the basis of new DNA findings. The
state of Oklahoma tried to vacate the stay so the execution could
continue by filing an emergency application with the U.S. Supreme
Court. But the high court denied the request Wednesday.
The Oklahoma Pardon and Parole Board, decided
unanimously Wednesday to adjourn Lafevers' clemency hearing until
March 21. The delay was solidified when U.S. District Judge Tim
Leonard postponed today's scheduled execution for 90 days. "We're
just hoping for more time," said Lafevers' sister, Kim Lafevers. "I'm
trying to be optimistic, but I don't want to be let down. He's my
big brother, just thinking of him dying is treacherous."
Colorado State Sen. Ken Chlouber, whose aunt was
the murder victim, had a different view of Lafevers. "This guy will
go to hell, and that's the place for him," the Leadville Republican
said Tuesday after he was excused from legislative work to attend
Wednesday's clemency hearing and witness today's scheduled execution.
Lafevers, 34, was sentenced to death for the 1985
murder of 84-year-old Addie Hawley, who was kidnapped, beaten and
set on fire.
The appeals court ordered the stay Tuesday after
recent DNA findings contradicted evidence used by prosecutors in
Lafevers' trial. Recent DNA tests show that blood found on a pair of
pants was not Lafevers' but his co-defendant's, Randall Eugene
Cannon. Chlouber came to the hearing to speak on his aunt's behalf.
"This is a surprise. I would have thought the Oklahoma Attorney
General's Office would have been more prepared," he said. "Every day
this guy is living has been an injustice."
UPDATE: The Oklahoma Court of Criminal Appeals
set Jan. 30 as the execution date for death row inmate Loyd Winford
Lafevers. It is the 2nd execution date that has been scheduled for
Lafevers, whose March 2000 execution was stayed so he could pursue
appeals on the basis of DNA evidence. Attorney General Drew
Edmondson requested a new date a day after U.S. District Judge Tim
Leonard rejected Lafevers' appeals based on a claim that new DNA
tests on a pair of jeans used as evidence in his trial actually
contained the blood of his co-defendant.
Prosecutors alleged at the trial that the blood
belonged to murder victim Addie Hawley, 84, of Oklahoma City. The
woman was abducted, beaten and set on fire in 1985. "I am pleased
the court has marked what should be the end of Lafevers' attempts to
delay the punishment given him by a jury of his peers," Edmondson
said. "I have said repeatedly from the beginning, Loyd Lafevers is
guilty of the murder of Addie Hawley and warrants the punishment
assessed by the jury," he said.
Lafevers and Randall Cannon, the co-defendant,
were tried and convicted and given the death penalty, but their
convictions were reversed. They again both received the death
penalty in separate trials in 1993 and both are on death row.
The 10th Circuit gave Lafevers a stay in March,
32 hours before he was to be executed. In July 2000, the state Court
of Criminal Appeals said new DNA evidence showed nothing to overturn
The presence of no blood of Lafevers or the
victim showed at most that the jeans had no relevance in the case. "It
does not show Lafevers did not commit the crimes, and we do not find
that the jury might have returned a sentence of less than death
based on this evidence," the court said.
The 10th Circuit had
granted a stay until Nov. 1, or until a ruling on Lafevers' appeal
in federal court. Execution dates are scheduled in January for seven
other Oklahoma death row inmates, and an execution date has been
requested for another who has chosen to waive his appeals. Colorado
state Sen. Ken Chlouber, nephew of the murder victim, said Lafevers'
execution was long overdue. "This guy has fouled Oklahoma with every
breath since he murdered my aunt," said Chlouber.
January 30, 2001
OKLAHOMA - A 35-year-old man was
executed by injection Tuesday night for killing an 84-year-old woman
by beating her and setting her on fire.
Loyd Lafevers and co-defendant
Randall Cannon were accused of kidnapping Addie Hawley on June 24,
1985. They locked her in the trunk of a car and took her to a remote
area, where they beat her, doused her with gasoline and set her and
her car on fire. She was found near midnight lying nude and
incoherent. She died the following day.
Attorney General Drew Edmondson said the attack
on Hawley was part of a "reign of terror in south Oklahoma City" in
which the 2 men attacked 3 other women.
Lafevers did not deny taking
part in the kidnapping and a burglary of Hawley, but blamed the
killing on Cannon, who is also on death row. Cannon blamed Lafevers.
They were convicted in a joint trial and given the death penalty,
but the conviction was overturned when an appeals court ruled the 2
should have been tried separately. They were tried again separately,
convicted in 1993 and again sentenced to death.
Colorado state Sen. Ken Chlouber, nephew of the
murder victim, said Lafevers' execution was long overdue. "This guy
has fouled Oklahoma with every breath since he murdered my aunt,"
Lafevers becomes the 7th condemned inmate to be
put to death this year in Oklahoma and the 37th overall since the
state resumed capital punishment in 1990. Lafevers becomes the 11th
condemned inmate to be put to death this year in the USA and the
694th overall since America resumed executions on January 17, 1977.
Canadian Coalition to Abolish
the Death Penalty
The Oklahoma Court of Criminal Appeals on
Wednesday set Jan. 30 as the execution date for death row inmate
Loyd Winford Lafevers. It is the 2nd execution date that has been
scheduled for Lafevers, whose March execution was stayed so he could
pursue appeals on the basis of DNA evidence.
Attorney General Drew Edmondson requested a new
date on Tuesday, a day after U.S. District Judge Tim Leonard
rejected Lafevers' appeals based on a claim that new DNA tests on a
pair of jeans used as evidence in his trial actually contained the
blood of his co-defendant.
Prosecutors alleged at the trial that the
blood belonged to murder victim Addie Hawley, 84, of Oklahoma City.
The woman was abducted, beaten and set on fire in 1985. "I am
pleased the court has marked what should be the end of Lafevers'
attempts to delay the punishment given him by a jury of his peers,"
Edmondson said. "I have said repeatedly from the beginning, Loyd
Lafevers is guilty of the murder of Addie Hawley and warrants the
punishment assessed by the jury," he said.
Patrick J. Ehlers Jr., an assistant federal
public defender, said Lafevers intends to appeal Leonard's ruling to
the 10th U.S. Circuit Court of Appeals. Ehlers filed a petition with
the state Court of Criminal Appeals saying that Edmondson's request
for an execution date was premature because of the continuing
Lafevers and Randall Cannon, the co-defendant, were
tried and convicted and given the death penalty. But their
convictions were reversed. They again received the death penalty in
separate trials in 1993 and both are on death row.
The 10th Circuit gave Lafevers a stay in March,
32 hours before he was to be executed. In July, the state Court of
Criminal Appeals said new DNA evidence showed nothing to overturn
The presence of no blood of Lafevers or the victim
showed at most that the jeans had no relevance in the case. "It does
not show Lafevers did not commit the crimes, and we do not find that
the jury might have returned a sentence of less than death based on
this evidence," the court said.
The 10th Circuit had granted a stay until Nov. 1,
or until a ruling on Lafevers' appeal in federal court. Execution
dates are scheduled in January for seven other Oklahoma death row
inmates, and an execution date has been requested for another who
has chosen to waive his appeals.
(Source: The Oklahoman)
Convicted Killer Executed in Oklahoma
McALESTER, Okla. (AP) -- A 35-year-old man was
executed by injection Tuesday night for killing an 84-year-old woman
by beating her and setting her on fire. Loyd Winford Lafevers was
the seventh Oklahoma inmate executed this month. Another execution
is planned Thursday at Oklahoma State Penitentiary.
Lafevers and co-defendant Randall Cannon were
accused of kidnapping Addie Hawley on June 24, 1985. They locked her
in the trunk of a car and took her to a remote area, where they beat
her, doused her with gasoline and set her and her car on fire. She
was found near midnight lying nude and incoherent. She died the
Attorney General Drew Edmondson said the attack
on Hawley was part of a ''reign of terror in south Oklahoma City''
in which the two men attacked three other women. Lafevers did not
deny taking part in the kidnapping and a burglary of Hawley, but
blamed the killing on Cannon, who is also on death row.
blamed Lafevers. They were convicted in a joint trial and given the
death penalty, but the conviction was overturned when an appeals
court ruled the two should have been tried separately. They were
tried again separately, convicted in 1993 and again sentenced to
Colorado state Sen. Ken Chlouber, nephew of the
murder victim, said Lafevers' execution was long overdue. ''This guy
has fouled Oklahoma with every breath since he murdered my aunt,''
United States Court of Appeals
For the Tenth
LOYD W. LAFEVERS,
GARY E. GIBSON AND THE ATTORNEY GENERAL OF THE STATE OF OKLAHOMA,
June 16, 1999
Appeal from the United States District Court for the Western
District of Oklahoma
(D.C. No. CIV-97-281-L)
Before Porfilio, Brorby, and Murphy,
Porfilio, Circuit Judge.
Winford LaFevers appeals from the district court's
denial of his federal habeas petition challenging
both his conviction and his death sentence. Despite
having decisively denied relief, the district court
granted a certificate of appealability on all issues
raised by the petitioner believing petitioner's
sentence of death required that action. On appeal,
Mr. LaFevers raises a number of discrete issues
which we have considered in full. Finding no error,
we affirm the judgment of the district court.
Petitioner and his
co-defendant were convicted in state court of
kidnapping and murdering eighty-four year old Addie
Hawley. The Oklahoma Court of Criminal Appeals
recounted the facts of the crime:
On June 24, 1985,
[LaFevers] and co-defendant [Randall] Cannon decided
to steal a car after [LaFevers'] car broke down in a
northwest Oklahoma City neighborhood. After
selecting a house in the neighborhood, the two men
forced their way into the home of eighty-four year
old Addie Hawley.
They ransacked her
home, taking eight dollars from her purse, along
with the keys to her car and the garage door opener.
The two took her out of the house and into the car.
Cannon, who was driving the car, drove for just over
a mile before pulling over so that they could put
Hawley in the trunk.
The two men drove
to a convenience store where they bought a two liter
bottle of orange soda. After drinking some of the
soda, they poured the rest out and filled the bottle
with gasoline. [LaFevers] directed Cannon to drive
to a secluded area where he removed Hawley from the
trunk of the car.
Although there was
evidence presented at trial that indicated that
Hawley was raped, neither defendant admitted having
committed rape or sodomy. Each man indicated in his
pretrial confession to police and during his
testimony at trial that the other man had committed
the sexual offenses while he remained as a lookout.
completion of the sex acts, one of the two men,
again each blamed the other, poured gasoline from
the orange soda bottle on Hawley and set her on fire.
They drove the car a short distance away and also
set it on fire.
were called to the scene soon after the fires were
set. Although Hawley had been burned over sixty
percent of her body, she was still alive. She had
suffered a blunt injury to the forehead and had two
black eyes along with multiple cuts and bruises. She
died a short time after being taken to the hospital.
LaFevers v. State,
819 P.2d 1362, 1364 (Okla. Crim. App. 1991) (footnote
Mr. LaFevers and
Mr. Cannon were tried jointly in March of 1986. A
jury convicted both defendants of first-degree
murder, burglary in the first degree, robbery in the
first degree, kidnapping, larceny of a motor vehicle,
arson in the third degree, rape in the first degree,
and anal sodomy. The state trial court sentenced Mr.
LaFevers to death for the first-degree murder charge
and to terms of years on the remaining counts.
On direct appeal,
however, the Oklahoma Court of Criminal Appeals
reversed Mr. LaFevers' convictions on the counts of
first-degree murder, arson in the third degree, rape
in the first degree, and anal sodomy. The court held
the defendants had mutually antagonistic defenses on
those counts and the failure to grant Mr. LaFevers a
severance constituted reversible error. See id.
Mr. LaFevers was
retried soon thereafter. The second jury convicted
him on counts of first-degree murder and arson in
the third degree but acquitted him on charges of
rape in the first degree and anal sodomy.
During the penalty
phase, the jury found the existence of three
aggravating circumstances: (1) the murder was
especially heinous, atrocious, or cruel; (2) there
was a probability that Mr. LaFevers would commit
criminal acts of violence that would constitute a
continuing threat to society; and (3) the murder was
committed for the purpose of avoiding or preventing
a lawful arrest or prosecution.
The trial court
sentenced Mr. LaFevers to death on the murder count
and forty years on the arson count. The Oklahoma
Court of Criminal Appeals affirmed on direct appeal,
see LaFevers v. State, 897 P.2d 292 (Okla. Crim. App.
1995), and denied Mr. LaFevers' application for
post-conviction relief, see LaFevers v. State, 934
P.2d 356 (Okla. Crim. App. 1997).
LaFevers filed a petition for a writ of habeas
corpus in the United States District Court for the
Western District of Oklahoma. The district court
denied the petition and then denied a subsequent
Rule 59(e) motion for reconsideration. The
petitioner timely filed a notice of appeal. On
August 6, 1998, the district court granted a
certificate of appealability on all claims raised in
As a preliminary
matter, we must note the district court granted the
certificate of appealability on an erroneous legal
Conclusion. The court reasoned:
This Court is in
receipt of the Tenth Circuit Court of Appeals Order
dated June 4, 1998, in the Roberts v. Ward case,
Appellate Case No. 98-6066. The Roberts Order
provides, in pertinent part:
[t]his is a death
penalty state habeas case with numerous claims of
perceived error rising to constitutional dimension.
In order to ensure that these issues receive a
thorough and thoughtful review on appeal, assisted
by complete briefing from both parties, we hereby
grant the application for certificate of
appealability as to all issues enumerated in
appellant's application for certificate of
It appears from
this ruling that the Tenth Circuit Court of Appeals
has held the statute, 28 U.S.C. § 2253(c), does not
apply to appeals arising from cases involving a
Based upon the
directive contained in the Roberts Order, this Court
hereby GRANTS Petitioner's Application for
Certificate of Appealability as to all claims
this interpretation of our ruling in one case and of
the requirements of section 2253(c) is mistaken.
We take this
opportunity to point out to the district courts
nothing in section 2253(c) suggests it is
inapplicable to capital habeas cases. Indeed, it is
in those very cases in which the deft scrutiny of
the district court is most essential to the
appellate process. Reading section 2253(c) to
suggest otherwise deprives it of all purpose and
meaning and surely obverts the legislative will of
Congress. It is equally important, however, that
district courts do not proceed to the other end of
the jurisdictional spectrum and make a blanket
denial of a certificate of appealability unless the
court is convinced there is nothing in the petition
that is of debatable constitutional magnitude. In
each instance, the district court must analyze a
capital case as it would any other section 2254
petition or section 2255 motion, rendering judgment
as Congress has prescribed. Nothing we stated in
Roberts was intended to imply otherwise.
Now that the
district court has made appealable all the issues in
this case by its blanket order, we must review the
merits of each claim. Cf. Nowakowski v. Maroney, 386
U.S. 542, 543, 87 S. Ct. 1197, 1199 (1967) ("[W]hen
a district Judge grants such a certificate [of
probable cause], the court of appeals must...
proceed to a Disposition of the appeal in accord
with its ordinary procedure."); Chaney v. Brown, 712
F.2d 441, 442 (10th Cir. 1983) ("The certificate of
probable cause for an appeal having been granted [by
the district court], the appellant must `be afforded
an opportunity to address the merits, and the court
of appeals is obligated to decide the merits of the
appeal.'" (quoting Barefoot v. Estelle, 463 U.S.
880, 893, 103 S. Ct. 3383, 3395 (1983)). We shall
proceed to that task.
III. STANDARDS OF
In reviewing a
denial of a petition for a writ of habeas corpus, we
are generally subject to two different modes of
analysis. If the claim was not heard on the merits
by the state courts, and the federal district court
made its own determination in the first instance, we
review the district court's Conclusions of law de
novo and its findings of fact, if any, for clear
error. See Hickman v. Spears, 160 F.3d 1269, 1271
(10th Cir. 1998).
But when reviewing
the merits of a claim already decided by the state
courts, we are bound to deny relief unless the state
court's decision "was contrary to, or involved an
unreasonable application of, clearly established
Federal law, as determined by the Supreme Court" or
"resulted in a decision that was based on an
unreasonable determination of the facts in light of
the evidence presented in the State court proceeding."
28 U.S.C. § 2254(d).
A state court
decision is "contrary to, or involves an
unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of
the United States" if: (1) the state court decision
is in square conflict with Supreme Court precedent
which is controlling on law and fact or (2) if its
decision rests upon an objectively unreasonable
application of Supreme Court precedent to new facts.
Quite simply, the "AEDPA increases the deference to
be paid by the federal courts to the state court's
factual findings and legal determinations." Houchin
v. Zavaras, 107 F.3d 1465, 1470 (10th Cir. 1997).
parameters for our review, we shall examine the
issues under four general categories: (1) claims
clearly foreclosed to federal habeas corpus review
under 28 U.S.C. § 2254(d); (2) claims governed by
prior decisions of this court; (3) claims barred by
and (4) claims heard in the first instance by the
district court which are not barred by procedural
FORECLOSED BY 28 U.S.C. § 2254(d)
referred to in this section have been already
decided by state courts. Given that petitioner does
not question the state court's determination of the
underlying facts, we are bound to deny relief on his
claims unless the state court's decision "was
contrary to, or involved an unreasonable application
of, clearly established Federal law, as determined
by the Supreme Court." 28 U.S.C. § 2254(d). Our
Discussion proceeds with this principle in mind.
1. Did the
State Trial Court Violate the U.S. Constitution by
Refusing to Suppress Statements that Followed Mr.
LaFevers' Alleged Invocation of Counsel?
contends the state trial court should have
suppressed statements he claims were obtained in
violation of Miranda v. Arizona, 384 U.S. 436, 86 S.
Ct. 1602 (1966). Mr. LaFevers was arrested at about
8:00 AM on June 26, 1985. A police officer began
interrogating him shortly thereafter and advised him
of his Miranda rights. Mr. LaFevers waived his
rights and answered questions for approximately
fifteen minutes. The police then asked the defendant
if he would give the police "body" samples. The
following exchange occurred:
Officer: Would you
be willing to uh, give us hair samples, blood sample
[sic]. Anything that we might need for our
just as soon as I talk to a lawyer.
Officer: Okay, you
have a right to do that.
LaFevers: I don't,
you'll have to get me one cause I ain't got one.
That's right, now are you wanting the lawyer just,
just for the decision on that... before you talk to
LaFevers: I just
need to talk to one.
Officer: Okay. Are
you wanting to terminate our interview now, is that
what you are telling me?
LaFevers: No, you
can leave this [tape recorder] on. [Inaudible]
what I'm saying, are you wanting to stop it now
since you know you told me you wanted a lawyer?
when can you get me a lawyer?
be up to the courts, they'll get you one, ya know,
that's no problem. I just need to know, you know if
you're through talking to us or if you want to
continue to talk?
LaFevers: No, I'll
talk to you.
Mr. LaFevers then
made incriminating statements. He argues those
statements must be suppressed because they were
obtained after he invoked his right to counsel.
The Oklahoma Court
of Criminal Appeals considered and rejected this
argument. The court stated:
After a knowing
and voluntary waiver of Miranda rights, law
enforcement officers may continue questioning
through equivocal statements until a suspect clearly
requests an attorney. Here, LaFevers' statements do
not clearly indicate whether LaFevers wanted an
attorney before he agreed to give body samples or
simply wanted to stop talking altogether. Any
ordinary person might find the exchange ambiguous,
especially given LaFevers' repeated mention of a
lawyer coupled with his refusal to say he wanted to
stop the interview.
followed the only reasonable course open to him. He
avoided any substantive interrogation until the
problem was clarified and questioned LaFevers only
regarding his willingness to talk and wish for an
attorney. The record does not support any suggestion
that Mitchell phrased his requests to urge LaFevers
to talk, or that he gave LaFevers any impermissible
advice. Contrary to the suggestion in LaFevers'
brief, Mitchell did not tell LaFevers he would not
receive counsel. LaFevers correctly contends that
his final statement, "No, I'll talk to you," did not
create any ambiguity in his previous statements.
That statement resolved the considerable ambiguity
to that point.
LaFevers, 897 P.2d
at 299-300 (footnote omitted).
Contrary to Mr.
LaFevers' assertions, the approach taken by the
Oklahoma Court of Criminal Appeals is entirely
consistent with federal law, as determined by the
United States Supreme Court. In Davis v. United
States, 512 U.S. 452, 114 S. Ct. 2350 (1994), the
Supreme Court stated:
But if a suspect
makes a reference to an attorney that is ambiguous
or equivocal in that a reasonable officer in light
of the circumstances would have understood only that
the suspect might be invoking the right to counsel,
our precedents do not require the cessation of
questioning. See [McNeil v. Wisconsin, 501 U.S. 171,
178, 111 S. Ct. 2204, 2209 (1991)] ("[T]he
likelihood that a suspect would wish counsel to be
present is not the test for applicability of
Edwards"); Edwards v. Arizona, [451 U.S. 477, 485,
101 S. Ct. 1880, 1885 (1981)] (impermissible for
authorities "to reinterrogate an accused in custody
if he has clearly asserted his right to counsel") (emphasis
suspect must unambiguously request counsel. As we
have observed, "a statement either is such an
assertion of the right to counsel or it is not."
Smith v. Illinois, [469 U.S. 91, 97-98, 105 S. Ct.
490, 494 (1984)] (brackets and internal quotation
marks omitted). Although a suspect need not "speak
with the discrimination of an Oxford don," post, at
2364 (SOUTER, J., Concurring in judgment), he must
articulate his desire to have counsel present
sufficiently clearly that a reasonable police
officer in the circumstances would understand the
statement to be a request for an attorney. If the
statement fails to meet the requisite level of
clarity, Edwards does not require that the officers
stop questioning the suspect. See Moran v. Burbine,
475 U.S. 412, 433, n. 4, 106 S.Ct. 1135, 1147, n. 4,
89 L.Ed.2d 410 (1986) ("[T]he interrogation must
cease until an attorney is present only [i]f the
individual states that he wants an attorney") (citations
and internal quotation marks omitted).
Davis, 512 U.S. at
459, 114 S. Ct. at 2355.
When Mr. LaFevers
invoked his right to counsel it was unclear whether
he just wanted an attorney to discuss the body
samples or whether he wanted an attorney before
answering any other questions. In light of this
confusion, the police officer did not ask any
substantive questions about the crime until after
clarifying whether and why Mr. LaFevers actually
wanted an attorney. We cannot conclude that the
Oklahoma court's decision rests upon an objectively
unreasonable application of Supreme Court precedent
to the facts of Mr. LaFevers' case.
2. Did the
State Trial Court Violate the Confrontation Clause
When it Read Into the Record of the Second Trial the
Testimony of David Hawkins?
contends the state trial court violated the
Confrontation Clause of the U.S. Constitution when
it allowed the prosecution to read the first-trial
testimony of David Hawkins into evidence during the
second trial. Hawkins, an inmate who had shared a
cell with Mr. LaFevers, was one of the principal
prosecution witnesses in the first trial. Hawkins
testified that Mr. LaFevers had confessed to
assaulting, raping, and burning Ms. Hawley. He
further stated Mr. LaFevers was boastful and had
decided to kill Ms. Hawley so she would be unable to
identify him. Mr. LaFevers' counsel subjected
Hawkins' testimony to extensive cross-examination,
including efforts to impeach the witness. At some
point after the first trial, however, Hawkins
recanted his testimony, charging that the district
attorney and his assistants had kidnapped him and
During the second
trial, the state again called Hawkins to testify for
the prosecution. Hawkins refused to testify unless
he could first consult with an attorney. He took the
position his statements might be inculpatory and
might be used against him in the future. The state
trial court refused to appoint an attorney;
therefore, Hawkins took the stand but refused to
answer the questions of the prosecutor. The court
then stopped the proceedings, declared Hawkins an
"unavailable" witness pursuant to 12 Okla. Stat.
Ann. § 2804(A)(2), and ordered Hawkins' testimony
from the first trial to be read into evidence. Mr.
LaFevers contends the state trial court violated his
constitutional right to confront Hawkins during the
second trial when it allowed the prosecution to read
Hawkins' first-trial testimony into evidence. The
Oklahoma Court of Criminal Appeals considered and
rejected this argument, stating:
At an in-camera
hearing during [the second] trial Hawkins stated he
wished to consult an attorney before speaking under
oath, as he felt his statements might be inculpatory
and might be used against him in the future.... The
trial court thoroughly questioned Hawkins and
established that he knew why he was there, and,
while he believed he would be willing to testify if
he were represented by counsel, he would not make
any statements under oath without such
representation. The trial court refused to appoint
counsel and ordered Hawkins to testify. Hawkins
agreed, but took the Fifth at the first question,
saying, "At this time, ma'am, I will have to
exercise my Fifth Amendment right to silence." The
trial court then stopped the proceedings and
directly ordered Hawkins to testify again; after a
brief Discussion the following exchange took place:
Trial Court: "I
want to be sure that you know what you're doing,
that you don't want to answer any questions here
because, in your opinion, if you do answer, it might
tend to incriminate you; is that right?"
sir, that is correct."
Trial Court: "The
Court finds that this witness is unavailable."
The history above
clearly shows that Hawkins was declared unavailable
under 12 O.S. 1991, § 2804(A)(2), refusal to obey a
court order to testify, rather than § 2804(A)(1),
refusal on claim of valid privilege, as LaFevers
contends. The trial court never found that Hawkins
was unavailable because he had claimed a valid Fifth
Amendment privilege; Hawkins was unavailable because
he directly, twice, disobeyed a court order to
testify. LaFevers argues that Hawkins was willing to
testify in the case but just wanted to check with a
lawyer first. This is not supported by the record,
in which Hawkins flatly refuses to testify. His
statement that he might if he could talk to an
attorney is speculative at best, not an expression
argues his Sixth Amendment right to confrontation
and cross-examination was violated. Although Hawkins
was subject to extensive cross-examination and
impeachment in the first trial, LaFevers was denied
the chance to question him about his recantation of
that testimony. LaFevers was able to enter into
evidence pleadings in which Hawkins recanted his
testimony, along with the subsequent several felony
convictions he received. LaFevers used the
recantation and convictions in argument, and the
jury had this evidence to consider, along with
testimony of several witnesses.
any error in admitting this testimony cannot be
harmless as without this testimony the evidence was
insufficient to convict LaFevers of murder or arson.
On the contrary, other evidence existed regarding
both those crimes. LaFevers was not convicted of
rape and sodomy, the only charges which were
completely unsupported by any other evidence. This
suggests that the jury did not rely on Hawkins'
testimony alone if at all. LaFevers could have been
convicted had the jury ignored Hawkins' testimony,
and this proposition must fail.
LaFevers, 897 P.2d
at 302-04 (footnote omitted).
In our view, the
proceedings were not as clear as the state court
opined, but nevertheless, we believe the approach
taken by the Oklahoma Court of Criminal Appeals was
not unreasonable. The Supreme Court has stated:
[W]hen a hearsay
declarant is not present for cross-examination at
trial, the Confrontation Clause normally requires a
showing that he is unavailable. Even then, his
statement is admissible only if it bears adequate
"indicia of reliability." Reliability can be
inferred without more in a case where the evidence
falls within a firmly rooted hearsay exception. In
other cases, the evidence must be excluded, at least
absent a showing of particularized guarantees of
Ohio v. Roberts,
448 U.S. 56, 66, 100 S. Ct. 2531, 2539 (1980).
It may be arguable
whether the hearsay exception applied in this case,
12 Okla. Stat. Ann. § 2804(A)(2), is a "firmly
rooted hearsay exception." Thus, this issue rises to
a constitutional level only if there was no showing
of particularized guarantees of trustworthiness. See
Earnest v. Dorsey, 87 F.3d 1123, 1131 (10th Cir.
Such a showing has
been made in this case, however. Hawkins' testimony
in the first trial was subject to extensive cross-examination
and impeachment efforts. The cross-examination of
the declarant in a prior proceeding is typically
sufficient to demonstrate reliability. See Ohio, 448
U.S. at 70, 100 S. Ct. at 2541; Mancusi v. Stubbs,
408 U.S. 204, 213-16, 92 S. Ct. 2308, 2313-15
(1972). Furthermore, although the recantation may be
regarded as an indicator of unreliability, Mr.
LaFevers' counsel had an opportunity at the second
trial to use the recantation as further means of
impeaching the credibility of Hawkins. After
Hawkins' testimony was read to the jury, defense
counsel introduced into evidence pleadings in which
Hawkins made his recantation. Counsel's efforts
during the second trial arguably averted
constitutional error or, at the very least, made any
3. Did Mr.
LaFevers' Prosecution Under the Felony-Murder Rule
in his Second Trial, with Kidnaping as the Predicate
Felony, Violate the Double Jeopardy Clause of the
his prosecution under the felony-murder rule in his
second trial, with kidnapping as the predicate
felony, violated the Double Jeopardy Clause. The
gist of this complaint is that the felony-murder
theory was constitutionally infirm because he had
already been convicted of kidnapping in the first
trial and that conviction had been affirmed on
appeal. The Oklahoma Court of Criminal Appeals
considered and rejected this argument. The court
correctly complains that he should not have been
charged with the alternative count of felony murder,
since the predicate felony relied on was the kidnap
charge of which he was convicted in 1986 and which
was affirmed by this Court in LaFevers 1. The State
essentially concedes this point, as they should.
However, the basis for this prohibition is the
principle that, where two alternatives exist and
only one is constitutional or proper, a verdict
cannot be upheld because the jury may have relied on
an invalid alternative to reach a guilty verdict.
That is not the case here. Fortunately the jury
received a verdict form for each alternative, and we
know absolutely that LaFevers was convicted of
malice murder, not felony murder.
argues that his prosecution alone caused prejudice
enough for reversal, apparently on the grounds that
he was subjected to multiple punishment and that the
State had the chance to rehearse its presentation
and make it more effective. It is true that, but for
the fortuitous separate verdict forms, he would have
been subjected to multiple punishments. However,
that does not end our inquiry. The issues are
subject to a harmless error analysis. Even if
LaFevers were charged only with malice murder on
retrial, the evidence regarding the kidnapping would
have come in under res gestae. Otherwise, the jury
would be told LaFevers burglarized and robbed Hawley
and she was found beaten and burned in a field with
her burning car nearby--leaving large and
unnecessary gaps in the jury's understanding of the
crime. The State did not unduly emphasize the felony
murder alternative in argument. This Court can find,
beyond a reasonable doubt, that the erroneous
alternative of felony murder did not contribute to
the guilty verdict....
LaFevers, 897 P.2d
at 301-02 (footnote omitted)
We believe the
Oklahoma court's decision on harmless error was
reasonable. Contrary to Mr. LaFevers' assertions,
every Supreme Court case to have vacated convictions
in these types of cases dealt with general verdict
forms, where it was impossible to tell what theory
the jury used to convict. See, e.g., Leary v. United
States, 395 U.S. 6, 89 S. Ct. 1532 (1969); Stromberg
v. People of State of Cal., 283 U.S. 359, 51 S. Ct.
532 (1931). Here, it was clear from the special
verdict form that the jury convicted Mr. LaFevers of
malice aforethought murder.
4. Did the
State Trial Court Violate the U.S. Constitution When
it Failed to Sua Sponte Instruct the Jury on the
Meaning of the Phrase "Reasonable Doubt"?
postulates the state trial court violated his
constitutional rights when it failed to sua sponte
instruct the jury on the meaning of the phrase "reasonable
doubt." The Oklahoma Court of Criminal Appeals
considered and rejected this argument. The court
in Proposition XI that the trial court committed
fundamental error when it did not provide the jury
with an instruction defining the term "reasonable
doubt." LaFevers did not request such an instruction
at trial. LaFevers admits that this Court has
consistently held that "reasonable doubt" is self-explanatory
and any instruction on it is error, but argues that,
by analogy, the term should be defined just as terms
of an offense are defined for a jury. LaFevers
incorrectly claims that if the term is defined the
definition must be correct, so failure to define the
term is fundamental error. This does not follow
logically from the premise that an instruction given
to the jury must be accurate. LaFevers offers no
persuasive authority to suggest that this Court
should reconsider its previous decisions. This
proposition is denied.
LaFevers, 897 P.2d
at 305-06 (footnotes omitted).
The approach taken
by the Oklahoma Court of Criminal Appeals is
entirely consistent with federal law, as determined
by the United States Supreme Court. "[T]he
Constitution neither prohibits trial courts from
defining reasonable doubt nor requires them to do so
as a matter of course." Victor v. Nebraska, 511 U.S.
1, 5, 114 S. Ct. 1239, 1243 (1994). Rather, "so long
as the court instructs the jury on the necessity
that the defendant's guilt be proved beyond a
reasonable doubt the Constitution does not require
that any particular form of words be used in
advising the jury of the government's burden of
proof." Id. at 5, 114 S. Ct. at 1243 (citations
5. Was Trial
Counsel Ineffective During the Penalty Phase Because
he Failed to Present Evidence of Mr. LaFevers' Drug
Use and Abuse?
Mr. LaFevers next
argues his trial counsel's performance during the
penalty phase of his trial was constitutionally
defective because he failed to present evidence of
Mr. LaFevers' drug use and abuse. The Oklahoma Court
of Criminal Appeals considered and rejected this
that trial counsel failed to advocate his cause by
failing to present relevant mitigating evidence that
probably would have altered the outcome of the case.
LaFevers contends counsel had (1) available evidence
that he was suffering from drug-induced psychosis at
the time of the crime, along with (2) drug-abuse and
psychological profiles taken about the time of the
second trial, which could have been presented in
either first or second stage as mitigating evidence.
Upon examination these allegations fail to meet the
standard set forth above.
LaFevers argues "ample"
evidence showed he suffered from drug-induced
psychosis. The only evidence introduced at trial
which supports this claim is Hawkins' testimony that
LaFevers said he'd been on crystal speed for three
or four days before the crime. LaFevers' contention
that he told trial counsel he'd been using
methamphetamines, quaaludes, and marijuana, and had
not slept for a week, is not reflected in the record
before this Court. LaFevers 1 notes that before the
first trial LaFevers requested a psychiatrist to
testify regarding the effects of PCP on his mental
state, but determines merely that he completely
failed to show sanity would be an issue at trial and
thus was not entitled to have a psychiatrist
appointed. LaFevers fails again to suggest any such
showing here, and certainly on this record counsel
was not ineffective for not requesting such an
appointment. Even if LaFevers could show any
evidence supporting such a claim his cited cases
mention but do not turn on drug-induced psychosis
and do not support his argument.
two documents to his brief to support this
proposition.... [¶] Despite LaFevers' arguments, it
is impossible to read these exhibits and believe
there is any reasonable probability they would have
affected the outcome of the case.... Although it
might have been prudent to present [the documents]
in mitigation, counsel called seven witnesses in the
first stage and thirteen witnesses in the second
stage, including LaFevers' mother and son. The
record shows counsel filed forty-five motions, two
formal objections, and a special "plea" of former
jeopardy after formal arraignment and before trial.
Counsel made numerous objections and motions
throughout trial. LaFevers was acquitted of the
charged sex offenses. This Court cannot say
counsel's performance was so deficient as to be
professionally unreasonable or affect the jury's
LaFevers, 897 P.2d
at 306-07 (footnote omitted).
Mr. LaFevers has
presented no argument to the district court or to us
demonstrating that the state court's decision was so
clearly incorrect. Given this failure to demonstrate,
or to even attempt to demonstrate, any error, we
find the claim foreclosed.
GOVERNED BY PRIOR DECISIONS OF THIS COURT
1. Did the
State Trial Court Violate the U.S. Constitution When
it Declined a Request to Instruct Jurors That They
Could Return a Verdict of Life, Instead of a Death
Sentence, Even if They Found the Aggravating
Circumstances to Have Outweighed the Mitigating
argues the state trial court erred when it declined
a request to instruct jurors that they could return
a verdict of life, with or without parole, instead
of a death sentence, even if they found the
aggravating circumstances outweighed the mitigating
circumstances. Our recent decision in Duvall v.
Reynolds, 139 F.3d 768 (10th Cir. 1998), governs
this issue. There, we stated:
contends that his Eighth and Fourteenth Amendment
rights were violated because the district court
failed to instruct the jury that it had the option
to return a life sentence regardless of its finding
that the aggravating circumstances outweighed the
mitigating circumstances. Under Oklahoma law, a jury
is free to decline to impose the death penalty even
if it finds that the aggravating circumstances
outweigh the mitigating circumstances. See Burrows
v. State, 640 P.2d 533, 544 (Okla. Crim. App.1982).
Nonetheless, the Constitution does not demand "that
the state must affirmatively structure in a
particular way the manner in which juries consider
mitigating evidence." Buchanan v. Angelone, [522
U.S. 269, ___,] 118 S. Ct. 757, 761, 139 L. Ed. 2d
702 (1998). Instead, "the state may shape and
structure the jury's consideration of mitigation so
long as it does not preclude the jury from giving
effect to any relevant mitigating evidence.... [T]he
standard for determining whether jury instructions
satisfy these principles [is] `whether there is a
reasonable likelihood that the jury has applied the
challenged instruction in a way that prevents the
consideration of relevant evidence.'" Id. (quoting
Boyde v. California, 494 U.S. 370, 380, 110 S. Ct.
1190, 1198, 108 L. Ed. 2d 316 (1990)).
In accordance with
these principles, Instruction No. 6 provided:
unanimously find that one or more aggravating
circumstances existed beyond a reasonable doubt, you
would be authorized to consider imposing a sentence
If you do not
unanimously find beyond a reasonable doubt that one
or more of the aggravating circumstances existed,
you are prohibited from considering the Death
Penalty. In that event, the sentence must be
Imprisonment for Life.
We hold that
Instruction No. 6 adequately afforded the jury an
opportunity to consider mitigating evidence. The
trial court did not instruct the jury that they must
assess death if they found the aggravating
circumstances outweighed the mitigating
circumstances. Instead, the trial court instructed
the jury that they were "authorized to consider
imposing a sentence of death" upon the finding of an
aggravating circumstance. Because the instruction
did not prevent consideration of mitigating
circumstances, and because no juror would have
understood it to do so, the instruction is
constitutionally permissible. See Buchanan, [522
U.S. 269 at ___,] 118 S. Ct. at 761 (approving
instruction stating that when an aggravating
circumstance is present beyond a reasonable doubt, "then
you may fix the punishment at death.") (emphasis
... We are
confident that "the instruction adequately apprised
the jury of its option not to recommend the death
sentence." Moore v. Butler, 819 F.2d 517, 521 (5th
Cir. 1987) (approving instruction that informed the
jury that it "may consider" imposing the death
penalty upon finding an aggravating circumstance
beyond a reasonable doubt). In sum, we hold that "the
instructions sufficiently preserved, under the
Constitution, the jury's responsibility and
authority to exercise its discretion in the
sentencing determination." Coleman v. Saffle, 869
F.2d 1377, 1394 (10th Cir. 1989).
Duvall, 139 F.3d
at 789-91 (footnote omitted).
Having found no
material difference between the instructions given
in Mr. LaFevers' case and those given in Duvall, we
must reject Mr. LaFevers' argument.
2. Did the
State Trial Court Violate the U.S. Constitution When
it Rejected a Request to Instruct Jurors that
Mitigating Circumstances Need Not be Found
In a related claim,
Mr. LaFevers argues the state trial court committed
constitutional error when it failed to instruct the
jury that mitigating circumstances need not be found
unanimously. Once again, Duvall governs this
argument. We stated:
Mr. Duvall asserts
that his Eighth and Fourteenth Amendment rights were
violated because the jury instructions did not
inform the jury that unanimous agreement upon the
existence of a mitigating circumstance is not
required before each juror can consider such
evidence. Relying primarily on McKoy v. North
Carolina, 494 U.S. 433, 110 S. Ct. 1227, 108 L. Ed.
2d 369 (1990), and Mills v. Maryland, 486 U.S. 367,
108 S. Ct. 1860, 100 L. Ed. 2d 384 (1988), Mr.
Duvall contends that the jury instructions
erroneously implied that the jury was required to
find a mitigating circumstance unanimously before
each juror could consider the mitigating
circumstance in determining whether to impose the
A trial court need
not, however, expressly instruct a capital
sentencing jury that unanimity is not required
before each juror can consider a particular
mitigating circumstance. See Buchanan v. Angelone,
[522 U.S. 269, ___,] 118 S. Ct. 757, 761, 139 L. Ed.
2d 702 (1998) ("[T]he State may shape and structure
the jury's consideration of mitigation so long as it
does not preclude the jury from giving effect to any
relevant mitigating evidence."). Instead, as noted
above, our standard for determining whether jury
instructions violate the constitution is "whether
there is a reasonable likelihood that the jury has
applied the challenged instruction in a way that
prevents the consideration of constitutionally
relevant evidence." Boyde v. California, 494 U.S.
370, 380, 110 S. Ct. 1190, 1198, 108 L. Ed. 2d 316
(1990), quoted in Buchanan, [522 U.S. at ___,] 118
S. Ct. at 761; accord Davis v. Executive Dir. of
Dept. of Corrections, 100 F.3d 750, 775 (1996) (10th
The instructions [given
in this case] consistently require unanimity only on
the jury's finding of aggravating circumstances.
Instruction Nos. 6 and 10 require the jury to "unanimously
find" aggravating circumstances. In contrast, none
of the instructions involving mitigating
circumstances impose an express or implied unanimity
requirement on the jury's consideration of
mitigating evidence. Instruction Nos. 7, 8, and 10
respectively required the jury to "determin[e],"
"decide[ ]," and "find" whether mitigating
circumstances existed without any reference to
unanimity. Although Instruction No. 9 requires the
jury to find unanimously that the aggravating
circumstances outweigh any mitigating circumstances
before imposing the death penalty, the unanimity
requirement there refers only to the jury's
balancing of aggravating versus mitigating
circumstances, and not to the initial determination
of whether mitigating circumstances exist in the
first place. Thus, Instruction No. 9 is consistent
with the instructions describing the proper
evaluation of mitigating evidence.
We hold that there
is no reasonable likelihood that the jury applied
these instructions in a way that required them to
agree unanimously upon the existence of a mitigating
circumstance before considering it.
Duvall, 139 F.3d
at 791-92 (footnote omitted).
There is no
material difference between the instructions given
in Mr. LaFevers' case and those given in Duvall.
Accordingly, the latter binds us.
3. Is the "Continuing
Threat" Aggravator Unconstitutionally Vague or
argues Oklahoma's "continuing threat to society"
aggravator is both unconstitutionally vague and
overbroad. Nonetheless, our decisions in Ross v.
Ward, 165 F.3d 793 (10th Cir. 1999), Castro v. Ward,
138 F.3d 810 (10th Cir. 1998), and Nguyen v.
Reynolds, 131 F.3d 1340 (10th Cir. 1997), mandate
rejection of this argument. As we summarized in
Mr. Ross contends
that the "continuing threat" aggravating
circumstance, as applied in Oklahoma, is
unconstitutionally vague and overbroad [and] is not
sufficiently limited in scope because it can exist
as to almost any murder.... In support of this claim,
he relies on the reasoning of Williamson v.
Reynolds, 904 F. Supp. 1529 (E.D. Okla.1995), where
a federal district court ruled that the continuing
threat aggravating circumstance was
unconstitutionally vague and overbroad as
interpreted and applied in Oklahoma.
court has rejected the reasoning of Williamson and
held that the continuing threat aggravator as
applied in the Oklahoma sentencing scheme does not
violate the Eighth Amendment. See Castro v. Ward,
138 F.3d 810, 816 (10th Cir.), cert. denied, ___
U.S. ___, 119 S. Ct. 422, 142 L. Ed. 2d 343 (1998);
Nguyen v. Reynolds, 131 F.3d 1340, 1352-54 (10th
Cir. 1997), cert. denied, ___ U.S. ___, 119 S. Ct.
128, 142 L. Ed. 2d 103 (1998). This court
specifically found that the continuing threat
aggravator is not "applicable to every defendant
convicted of murder in the first degree." See
Nguyen, 131 F.3d at 1354. Although Mr. Ross asks us
not to follow this reasoning, we are bound by these
decisions. See United States v. Foster, 104 F.3d
1228, 1229 (10th Cir.1997).
Ross, 165 F.3d at
800. We too adhere to our circuit's precedent.
4. Is the "Especially
Heinous, Atrocious or Cruel" Aggravator
heinous, atrocious or cruel" aggravator is
unconstitutionally vague as applied, petitioner
urges. This claim fails because of Duvall. There, in
analyzing jury instructions identical to those given
in Mr. LaFevers' case, we stated:
Mr. Duvall next
challenges the "especially heinous, atrocious, or
cruel" aggravating circumstance under the Eighth and
Fourteenth Amendments. He asserts that Instruction
No. 5, which defines the aggravating circumstance,
is unconstitutionally vague as applied. Instruction
No. 5 provides:
As used in these
Instructions, the term "heinous" means extremely
wicked or shockingly evil; "atrocious" means
outrageously wicked and vile; "cruel" means pitiless,
or designed to inflict a high degree of pain, utter
indifference to, or enjoyment of, the suffering of
The phrase "especially
heinous, atrocious or cruel" is directed to those
crimes where the death of the victim was preceded by
torture of the victim or serious physical abuse.
Cartwright v. Maynard, 822 F.2d 1477, 1478-79 (10th
Cir. 1987) (en banc), we held that an "especially
heinous, atrocious, or cruel" aggravator was
unconstitutional because it failed to channel the
jury's discretion as required by the Eighth
Amendment. Affirming our decision, the Supreme Court
reasoned that without precise explanatory language
to guide the sentencing decision, "an ordinary
person could honestly believe that every unjustified,
intentional taking of human life is `especially
heinous.'" Maynard v. Cartwright, 486 U.S. 356, 364,
108 S. Ct. 1853, 1859, 100 L. Ed. 2d 372 (1988).
In Cartwright, the
Supreme Court noted that Oklahoma could have cured
the unconstitutionally vague aggravator by adopting
a narrowing construction. Id. at 364-65. In
particular, the Court suggested that if the Oklahoma
courts had construed the aggravating circumstance to
require "torture or serious physical abuse," such a
construction "would be constitutionally acceptable."
Id.; see also Walton v. Arizona, 497 U.S. 639,
654-55, 110 S. Ct. 3047, 3057-58, 111 L. Ed. 2d 511
In response to the
Cartwright decision, the Oklahoma Court of Criminal
Appeals adopted a limiting construction of the 'especially
heinous, atrocious, or cruel' aggravator, mandating
that the murder involve 'torture of the victim or
serious physical abuse.' See Stouffer v. State, 742
P.2d 562, 563 (Okla. Crim. App. 1987). In Hatch v.
State, 58 F.3d 1447, 1468-69 (10th Cir. 1995), we
agreed that such a narrowing interpretation of the 'especially
heinous, atrocious, or cruel' aggravator was
holding in Hatch, Mr. Duvall argues that the 'especially
heinous, atrocious, or cruel' aggravator is
unconstitutionally vague. He asserts that the
Oklahoma Court of Criminal Appeals has applied this
factor with 'remarkable inconsistency.' Thus, he
contends that as applied, the aggravating
circumstance does not '`genuinely narrow the class
of persons eligible for the death penalty.''
Lowenfield v. Phelps, 484 U.S. 231, 244, 108 S. Ct.
546, 554, 98 L. Ed. 2d 568 (1988) (quoting Zant v.
Stephens, 462 U.S. 862, 877, 103 S. Ct. 2733, 2742,
77 L. Ed. 2d 235 (1983)).
We disagree with
Mr. Duvall's characterization of the case law from
the Oklahoma Court of Criminal Appeals. In our view,
the court has consistently interpreted the 'especially
heinous, atrocious, or cruel' aggravator to require
'torture' and'serious physical abuse' as evidenced
by proof of conscious physical suffering.... In
addition, that court has applied its standard
consistently in evaluating whether or not the
evidence justifies a finding of this aggravator.
Duvall, 139 F.3d
at 792-93 (citations and footnotes omitted); see
also Cooks v. Ward, 165 F.3d 1283, 1289-90 (10th
Cir. 1998), petition for cert. filed, May 14, 1999
C. CLAIMS SUBJECT
TO PROCEDURAL DEFAULT
Petitioner's Plea of Nolo Contendere Involuntarily
Given in Violation of the Constitution?
In June 1986,
after Mr. LaFevers' first conviction and sentence of
death, Mr. LaFevers entered a plea of nolo
contendere to charges of robbery, kidnapping, and
assault with intent to rape of a Ms. Paden and Ms.
Austin. These crimes took place after the murder of
Ms. Hawley. During the penalty phase of Mr. LaFevers'
second trial, the state introduced the nolo
contendere pleas to help prove the "continuing
threat to society" aggravator. Mr. LaFevers' claims
the pleas were involuntarily given because he was
not aware they could be used against him in a future
This claim must
fail because it has been procedurally defaulted. The
claim was not raised in Mr. LaFevers' second trial
or on direct appeal. Indeed, the argument was first
raised in Mr. LaFevers' state habeas petition, and,
there, the state court deemed it waived on an
independent and adequate state law ground. See
LaFevers, 934 P.2d at 358 n.9. Having failed to
properly present the claim to the state courts,
there is a procedural default in the state court and
a procedural default for purposes of federal habeas.
2. Was Mr.
LaFevers Entitled Under the Constitution to DNA
contends he was entitled under the United States
Constitution to DNA testing. The constitutional
premise upon which this contention is based is
uncertain. To be sure, petitioner mentions in
passing the Eighth and Fifth Amendments, but neither
contention is supported by any legal analysis or
citation to federal case law. Ultimately, however,
we can overlook this defect because this claim is
The claim was not
raised in either of the two trials or in either of
the two direct appeals in this case. Indeed, the
argument was first raised in Mr. LaFevers' state
habeas petition, and, there, the state court deemed
it waived on an independent and adequate state law
ground. See LaFevers, 934 P.2d at 358 n.9. Therefore,
as in the previous claim, this too is defaulted.
D. CLAIMS HEARD
IN THE FIRST INSTANCE BY THE FEDERAL DISTRICT COURT
WHICH ARE NOT BARRED BY PROCEDURAL DEFAULT
1. Other Claims
Regarding DNA Testing
presents two other claims pertinent to DNA testing:
his appellate counsel was ineffective for failing to
ask for such tests after trial; and the federal
district court improperly denied his discovery
request for DNA testing. Ultimately, he postulates
DNA evidence "would prove that he was not present
when Ms. Hawley was brutally murdered."
a. Was Mr.
LaFevers' Appellate Counsel Ineffective for Failing
to Request DNA Testing?
believes his state appellate counsel was ineffective
for failing to request DNA testing or at least raise
the issue on direct appeal. To establish his counsel
was constitutionally defective, petitioner must
demonstrate that counsel made errors so serious that
counsel was not functioning as the counsel
guaranteed the defendant by the Sixth Amendment, and
that the deficient performance prejudiced the
defense. See Strickland v. Washington, 466 U.S. 668,
104 S. Ct. 2052 (1984).
This claim fails
for the simple reason that the DNA testing argument
on direct appeal would have been frivolous because
even favorable DNA test results would not make a
difference in this case. As the district court found:
At most, the 'DNA
testing' requested by Petitioner will prove whether
Petitioner was bleeding at the time he was at the
crime scenes or whether Petitioner bled on the
clothing found in Cannon's home. The "DNA testing"
cannot, despite Petitioner's assertions to the
contrary, prove that he was not at the crime scenes
or that he was not involved in Ms. Hawley's murder.
assuming the claim was not frivolous, case law
provides appellate counsel has no constitutional
obligation to raise every non-frivolous issue,
whether requested by the defendant or not. See Jones
v. Barnes, 463 U.S. 745, 750-54, 103 S. Ct. 3308,
3312-14 (1983). As the Ninth Circuit has stated:
[The] weeding out
of weaker issues is widely recognized as one of the
hallmarks of effective appellate advocacy.... [E]very
weak issue in an appellate brief or argument
detracts from the attention a Judge can devote to
the stronger issues, and reduces appellate counsel's
credibility before the court. For these reasons, a
lawyer who throws in every arguable point--"just in
case"--is likely to serve her client less
effectively than one who concentrates solely on the
Miller v. Keeney,
882 F.2d 1428, 1434 (9th Cir. 1989); see also Jones,
463 U.S. at 751-53, 103 S. Ct. at 3313.
b. Did the
Federal District Court Abuse its Discretion When it
Denied Mr. LaFevers' Discovery Request for DNA
In a related claim,
Mr. LaFevers urges the federal district court
improperly denied his discovery request for DNA
testing. Rule 6(a) of the Rules Governing Section
2254 Cases requires a habeas petitioner to show good
cause before he is afforded an opportunity for
discovery. Good cause is shown if the petitioner
makes a specific allegation that shows reason to
believe the petitioner may be able to demonstrate he
is entitled to relief. See Harris v. Nelson, 394
U.S. 286, 300, 89 S. Ct. 1082, 1091 (1969); Bracy v.
Gramley, 520 U.S. 138, 908, 117 S. Ct. 1793, 1799
(1997) (approving the Harris standard). We review a
district court's decision on good cause for an abuse
of discretion. See Bracy, 520 U.S. at 908, 117 S. Ct.
at 1799. Given our previous Discussion, we have no
doubt Mr. LaFevers has failed to show good cause for
this discovery request.
2. Was There
Sufficient Evidence to Support the Jury's
Aggravating Circumstance That the Murder was
Committed to Avoid Arrest or Prosecution?
questions whether there was sufficient evidence
presented in the penalty phase of the trial to
support a finding on the aggravating circumstance
that the murder was committed to avoid arrest or
prosecution. In determining whether a state court's
application of its constitutionally adequate
aggravating circumstance was so erroneous as to
raise an independent due process or Eighth Amendment
violation, the appropriate standard of review is the
"rational factfinder" standard established in
Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781
(1979). See Lewis v. Jeffers, 497 U.S. 764, 781, 110
S. Ct. 3092, 3102 (1990). Jackson holds that where a
federal habeas corpus claimant alleges his state
conviction is unsupported by the evidence, federal
courts must determine whether, "after viewing the
evidence in the light most favorable to the
prosecution, any rational trier of fact could have
found the essential elements of the crime beyond a
reasonable doubt." 443 U.S. at 319, 99 S. Ct. at
2789. "These considerations apply with equal force
to federal habeas review of a state court's finding
of aggravating circumstances." Lewis, 497 U.S. at
782, 110 S. Ct. at 3103. "Like findings of fact,
state court findings of aggravating circumstances
often require a sentencer to `resolve conflicts in
the testimony, to weigh the evidence, and to draw
reasonable inferences from basic facts to ultimate
facts.'" Id. (quoting Jackson, 443 U.S. at 319, 99
S. Ct. at 2789).
district court reviewed the trial transcripts and
exhibits and concluded that a rational trier of fact
could have found the aggravating circumstance beyond
a reasonable doubt. The court stated:
After beating Ms.
Hawley, Petitioner "decided that he needed to get
rid of her"... "to try to dispose of any future
testimony or evidence." (TR 1091-92) Further,
Petitioner told the investigating police officers
that he and Cannon discussed Cannon's desire to kill
Ms. Hawley because she had seen their faces and they
could be identified from police lineups.... [¶] It
is quite logical to assume that the jury concluded
from the evidence that Ms. Hawley was kidnapped from
her home and driven, in her stolen car, to a remote
location so that she could be murdered before she
identified Petitioner and Cannon as the men who
burglarized her home and stole her car.
We agree with the
district court's assessment of the evidence.
3. Was Trial
Counsel Ineffective for Failing to Explain That Mr.
LaFevers' Nolo Contendere Plea Could be Used Against
Him in the Penalty Phase of the Second Trial?
posits that at the time he made his nolo contendere
pleas to the Paden/Austin crimes, he was told by his
attorney the plea could never be used against him as
an admission of guilt. Specifically, he argues his
trial counsel was ineffective for failing to explain
that his nolo contendere plea could be used against
him in the penalty phase of the second trial. To
succeed on this issue, however, petitioner must
demonstrate that his lawyer's deficient performance
prejudiced his defense. To make out prejudice, he
must demonstrate there is a reasonable probability
that, but for counsel's errors, the result of the
proceeding would have been different. The proper
focus is on whether counsel's ineffectiveness
rendered the proceedings fundamentally unfair or
unreliable. See Lockhart v. Fretwell, 506 U.S. 364,
369-73, 113 S. Ct. 838, 842-44 (1993).
district court concluded there was no prejudice here
because the state had presented other evidence of
Mr. LaFevers' crimes against Ms. Paden and Ms.
Austin. Specifically, the court stated:
Further, even if
this Court were to agree that Petitioner's nolo
contendere pleas were inadmissible (which it does
not), evidence of Petitioner's crimes against Ms.
Paden and Ms. Austin would have been admissible
under state law. The Court of Criminal Appeals has
been consistent in its approval of the use of
unadjudicated bad acts as evidence to support the "continuing
threat" aggravating circumstance. Ms. Paden and Ms.
Austin testified as to the acts of Petitioner and [his
co-defendant] Cannon during the second stage of
We agree with the
district court's Conclusion that Mr. LaFevers'
suffered no prejudice. Even if he had not pleaded
nolo contendere, the prosecution would have in any
event established the Paden/Austin crime through use
of unadjudicated offense evidence. Although the
district court looked exclusively to Oklahoma law on
this point, we also have held due process is not
violated by admission of unadjudicated offenses. See
Johnson v. Gibson, 169 F.3d 1239, 1252 (10th Cir.
1999); Williamson v. Ward, 110 F.3d 1508, 1523 (10th
Cir. 1997); Hatch v. State of Okla., 58 F.3d 1447,
1465-66 (10th Cir. 1995).
prosecution presented additional evidence from which
a rational trier of fact could find beyond a
reasonable doubt that Mr. LaFevers was a continuing
threat to society. The state relied on the specific
circumstances of Ms. Hawley's brutal murder and two
unadjudicated prison stabbings. With respect to the
latter evidence, the jury heard that in 1987, after
the first trial, LaFevers and another inmate went
after Cannon and stabbed him twenty-two times in
prison; and, in 1990, LaFevers and yet another
inmate stabbed inmate, Charles Coleman, in a prison
library altercation, during which LaFevers also
struggled with a prison guard. See LaFevers, 897
P.2d at 307. Even if counsel's performance was
deficient, the presence of other evidence of violent
acts makes that deficiency inconsequential.
Counsel's lack of explanation did not render the
proceedings fundamentally unfair or unreliable.
4. Was Trial
Counsel Ineffective During the Penalty Phase Because
he Failed to Present Other Mitigating Evidence?
contends that his trial counsel was aware of, but
did not use, testimony of two men who claimed that
the co-defendant in the case, Cannon, had "confessed"
to them while they were incarcerated together in
prison. Mr. LaFevers claims both men would have
testified that Cannon took the responsibility for
the murder and the burning of Ms. Hawley. "While
this does not excuse Mr. LaFevers from being guilty
of the crime charged," petitioner argues, "it could
certainly prove critical when the jury deliberated
the sentence during the second stage of the trial."
The district court
reviewed this claim carefully and rejected it
because it found no prejudice. The court noted:
sentence summary of the two interviews ignores the
true nature of the prisoners' rendition of
Petitioner's involvement in the murder of Ms. Hawley.
In each inmate's interview, it is clear that
Petitioner was a principal in the burglary, robbery
and kidnapping; that he purchased the gasoline which
was poured on Ms. Hawley and her car; and he knew
that Cannon intended on murdering Ms. Hawley, but
did nothing to stop the murder. Further, both
inmates stated that Petitioner served as the "lookout"
while Cannon raped and killed Ms. Hawley. Finally,
both inmates stated that Petitioner, Cannon and a
third man worked together to burn Ms. Hawley's car.
demonstrate that Petitioner was a major participant
in the criminal activities.... Further, since
Petitioner took no action to prevent the murder of
Ms. Hawley it is clear that he acted with a reckless
indifference to human life. Therefore, under Tison
v. Arizona, Petitioner's death sentence would have
been appropriate even if the inmates had testified
and the jury believed their version of the rendition
of the events.
Finally, it should
be noted that Petitioner's trial counsel apparently
made a tactical decision to not call these two
inmates. Petitioner's trial counsel filed numerous
pre-trial motions, including a Motion in Limine -
Jail House Informants, in which he sought to exclude
the testimony of jail house informants. In arguing
for the exclusion of the testimony of jail house
informants, Petitioner's trial counsel argued that
the 'testimony form [sic] jail house informants is
Mr. LaFevers has
provided no reason, nor could we find any, to
quarrel with the district court's assessment on this
Appellate Counsel Ineffective Because he Allegedly
Failed to Communicate With Mr. LaFevers Before
Filing the Brief on Direct Appeal and Failed to
Appeal the Nolo Contendere Plea Issue?
In his last claim
of constitutional error, Mr. LaFevers argues that
his appellate counsel was ineffective because
counsel failed to communicate with him before filing
the brief on direct appeal and failed to appeal the
nolo contendere plea issue. We must deem both of
these arguments abandoned. Mr. LaFevers' counsel
simply arrogates: "he overlooked or ignored the
prior `no contest' plea of Mr. LaFevers; and most
importantly he ignored his client by refusing to
communicate with him prior to filing the brief on
direct appeal." We have repeatedly warned litigants
that issues adverted to in a perfunctory manner and
without developed argumentation are deemed waived on
appeal. See, e.g., United States v. Kunzman, 54 F.3d
1522, 1534 (10th Cir. 1995); Abercrombie v. City of
Catoosa, 896 F.2d 1228, 1231 (10th Cir. 1990). This
passing and unsupported reference is no different.
Moreover, both contentions are wholly without merit.
reversible error, we AFFIRM the judgment of the
concurs in the result.