Frederick v. Quick

79 F.4th 1090

Darrell Wayne FREDERICK, Petitioner-Appellant, v. Christe QUICK, Warden, Oklahoma State Penitentiary, Respondent-Appellee.¹

No. 20-6131

United States Court of Appeals, Tenth Circuit

FILED August 14, 2023

Appeal from the United States District Court for the Western District of Oklahoma (D.C. No. 5:19-CV-00037-SLP)

Emma V. Rolls (Meghan LeFrancois with her on the briefs) Assistant Federal Public Defenders, Oklahoma City, Oklahoma, for Petitioner-Appellant.

Joshua L. Lockett, Assistant Attorney General (John M. O'Connor, Attorney General of Oklahoma; Julie Pittman and Sheri M. Johnson, Assistant Attorneys General on the brief) Oklahoma City, Oklahoma, for Respondent-Appellee.

Before MATHESON, CARSON, and ROSSMAN, Circuit Judges.

MATHESON, Circuit Judge.

An Oklahoma state court jury convicted Darrell Wayne Frederick of first-degree murder, attempted assault with a dangerous weapon, and domestic abuse. Based on the jury's recommendation, the court sentenced Mr. Frederick to death for the murder. After his direct appeal and state post-conviction proceedings were unsuccessful, Mr. Frederick filed a habeas corpus application in federal court under 28 U.S.C. § 2254. The district court denied relief. We granted a certificate of appealability ("COA") on his claims that appellate counsel provided ineffective assistance and that there was cumulative error.

Exercising jurisdiction under 28 U.S.C. §§ 1291 and 2253(c)(1)(A), we affirm the denial of habeas relief.

I. BACKGROUND

A. Factual History

In reviewing a § 2254 application, "we presume that the factual findings of the state court are correct unless the petitioner presents clear and convincing evidence to the contrary." Frost v. Pryor, 749 F.3d 1212, 1215 (10th Cir. 2014) (quotations omitted); see also 28 U.S.C. § 2254(e)(1). Mr. Frederick does not challenge the state court's determination of the facts. The Oklahoma Court of Criminal Appeals ("OCCA") described the facts as follows:

On March 26, 2011, between 5:30 and 6:30 p.m., Da'Jon Diggs arrived at the home of her grandmother, Connie Frederick (hereinafter referred to as the deceased). The deceased was 85 years old and had been deaf and mute her entire life. She lived in the same house in northeast Oklahoma City in which she had raised six children. Ms. Diggs attended college in another city but frequently stopped by to check on the deceased. Ms. Diggs, like much of her family, communicated with the deceased through sign language. Also living at the deceased's home at the time was Appellant [Mr. Frederick], her fifty-five (55) year old son. He had been living with the deceased since his release from prison in 2009.

Ms. Diggs entered the home to find Appellant and the deceased "fussing" in the kitchen. Ms. Diggs later explained that despite being mute for speech purposes, the deceased could still make some sounds and was "yelling" at Appellant through guttural noises and sign language involving exaggerated movements with her hands. Ms. Diggs saw Appellant aggressively grab food out of the deceased's hands. Appellant called the deceased a "bitch" and told her to get out of the kitchen. He then shoved her against the kitchen counter. Ms. Diggs intervened and took the deceased to her bedroom, where she was able to calm her.

Meanwhile, Appellant had retreated to his own bedroom. When Ms. Diggs returned to the kitchen to get the deceased a drink of water, Appellant appeared and told her not to take anything to the deceased. Ms. Diggs ignored this warning and took something to eat and drink to the deceased. The deceased wanted juice instead of water and tried to go to the kitchen. However, Appellant prevented her from entering the kitchen. Ms. Diggs then volunteered to go to the store for some juice.

While out of the house, Ms. Diggs phoned both her mother, who lived out of state, and her uncle, Tobias Frederick, to discuss her frustrations with Appellant. Both were the deceased's children and Tobias Frederick was an Oklahoma City Police Officer. Ms. Diggs told both her mother and her uncle that she was afraid Appellant would seriously hurt her or the deceased. When Ms. Diggs returned to the house, she heard Appellant answer the phone. Ms. Diggs was able to determine that it was her uncle Tobias that had called. He told Appellant that he had to leave the deceased's home and find another place to live. Appellant replied angrily, "man, I ain't got time for this" and hung up the phone. Ms. Diggs could hear Appellant yelling into the phone. Ms. Diggs headed for the deceased's bedroom and told her to stay in the bedroom no matter what happened.

Ms. Diggs then shut the bedroom door.

Ms. Diggs headed into another room to retrieve her phone and call police when Appellant charged at her yelling, "oh, you have a problem with me too? I'll take you bitch." Appellant attacked Ms. Diggs, shoving her against the wall. The struggle moved from room to room with Diggs attempting to defend herself. Eventually, she was able to push Appellant off of her, causing him to stumble and she ran out of the house. Appellant chased after her.

Outside, neighborhood kids were playing. Seeing Appellant chase after Ms. Diggs, they shouted at her that Appellant had a brick or rock in his hand. Appellant chased Ms. Diggs around the yard, waving the brick or rock at her. Ms. Diggs ran to the neighbor's home and borrowed a phone to call the police. Appellant, who was dressed only in pajama pants, shouted at the neighborhood children and ran inside the house. He returned a few minutes later, fully dressed. By the time police arrived, Appellant had run around the back of the house. Bystanders heard the rattle of a chain link fence and Appellant was not seen or heard from the rest of the day. Ms. Diggs followed police into the deceased's home. They found the deceased lying face down on the floor in her bedroom. The deceased had severe bruising and swelling on both sides of her head to the extent that one eye was nearly swollen shut. When asked who injured her, the deceased signed the letter "D" which she used to identify Appellant. The deceased was taken to the hospital. Once there, she was immediately operated on to reduce the pressure in her brain. She had developed a significant subdural hematoma on the left side of her skull. The deceased survived the surgery but never regained consciousness. She passed away two to three weeks later. The cause of death was listed as blunt force trauma to the head.

Appellant was located a day after the deceased's beating. He was found walking along the street approximately three blocks from the deceased's home. When approached by police, he initially gave a false name but soon admitted his identity. His right hand was significantly swollen and his right finger was cut and bleeding. There was blood on his clothes. Bloodstains were also found in his bedroom at the decedent's home.

Frederick v. State, 400 P.3d 786, 798-99, as amended (June 23, 2017), overruled on other grounds by Williamson v. State, 422 P.3d 752 (2018).

B. Procedural History

1. State Proceedings

Three attorneys represented Mr. Frederick at trial and on appeal:

1) Catherine Hammarsten represented Mr. Frederick until 11 months before trial;

2) James Rowan replaced Ms. Hammarsten and represented Mr. Frederick at trial; and

3) Gina Walker represented Mr. Frederick in his direct appeal to the OCCA.

a. Trial

On May 2, 2011, Mr. Frederick was charged in Oklahoma County District Court with (1) first degree malice murder (Count I), (2) attempted assault and battery with a dangerous weapon after former convictions of two or more felonies (Count II), and (3) domestic abuse assault and battery (Count III).

Because the State sought the death penalty, Mr. Frederick's trial had guilt and penalty phases. At the guilt phase, the jury convicted Mr. Frederick on all three counts. See Frederick, 400 P.3d at 798.

During the penalty phase, the State introduced substantial testimony in support of the three aggravators the jury relied on to support its death penalty recommendation:

1) Mr. Frederick "was previously convicted of a felony involving the use of threat of violence to the person;"

2) "the murder was especially heinous, atrocious and cruel;" and

3) "there exists a probability that the defendant will commit or continue to commit acts of violence and constitute a continuing threat to society."

Trial Tr., Vol. VII at 1290:21-1291:12.

In his opening statement during the penalty phase, defense counsel said the jury would hear from Dr. Art Williams, a sociologist, but he did not call Dr. Williams to testify. Id. at 1292:8-10. The only evidence defense counsel presented was reading into the record testimony from Nathan Frederick, Mr. Frederick's father, from a 1982 case. Trial Tr., Vol. VIII at 1495:24-1496:4. In that testimony, Nathan, who died in 2007, said that Mr. Frederick was "slow" and "just [didn't] get it together." Id. at 1498:10-15. He said Mr. Frederick had a car accident where he "ran into a post and hit his head on the windshield, busted the windshield out of the truck and ... changed from that very moment." Id. at 1498:15-24. Nathan also said that growing up, Mr. Frederick was "quiet" and "easygoing" but that changed after the accident. Id. at 1499:5-17. He further testified that Mr. Frederick had lived a sheltered life and left home when he was 14. Id. at 1501:18-22, 1506:7-8, 1507:8-12.

Defense counsel presented five mitigating circumstances:

1) "[Mr.] Frederick had an accident in [a] truck, ran into a post and hit his head on the windshield, busted the windshield out of the truck and changed from that very moment;"

2) "[Mr.] Frederick's break with his father which led to him leaving home at the age of fourteen had a negative impact on his development;"

3) "[Mr.] Frederick has become institutionalized which has caused him to become suspicious of other people and overly aggressive;"

4) "[Mr.] Frederick has never learned to live as a free man and is

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