Simpson v. Carpenter

912 F.3d 542

Kendrick Antonio SIMPSON, Petitioner-Appellant,

v.Mike CARPENTER, Interim Warden,^* Oklahoma State Penitentiary, Respondent-Appellee.

No. 16-6191

United States Court of Appeals, Tenth Circuit.

FILED December 27, 2018

Sarah M. Jernigan, Assistant Federal Public Defender (Patti Palmer Ghezzi, Assistant Federal Public Defender, with her on the briefs), Oklahoma City, Oklahoma, for Petitioner-Appellant.

Jennifer J. Dickson, Assistant Attorney General (Mike Hunter, Attorney General of Oklahoma, with her on the brief), Oklahoma City, Oklahoma, for Respondent-Appellee.

Before LUCERO, HOLMES, and McHUGH, Circuit Judges.

McHUGH, Circuit Judge.

Kendrick Simpson is a state prisoner in Oklahoma. After a bifurcated proceeding, the jury convicted Mr. Simpson of two counts of first-degree murder and sentenced him to death. He now appeals the district court’s denial of his petition for federal habeas relief under 28 U.S.C. § 2254. Exercising jurisdiction under 28 U.S.C. §§ 1291 and 2253, we affirm.

I. BACKGROUND

A. Factual History

Pursuant to the Anti-Terrorism and Effective Death Penalty Act (AEDPA), we presume the factual findings of the Oklahoma Court of Criminal Appeals (OCCA) are correct, absent clear and convincing evidence to the contrary. See 28 U.S.C. § 2254(e)(1) ; Schriro v. Landrigan , 550 U.S. 465, 473–74, 127 S.Ct. 1933, 167 L.Ed.2d 836 (2007). We therefore state the facts surrounding the murders as found by the OCCA on direct appeal:

On the evening of January 15, 2006, Jonathan Dalton, Latango Robertson and [Mr. Simpson] decided to go to Fritzi’s hip hop club in Oklahoma City. Prior to going to the club, the three drove in [Mr.] Dalton’s white Monte Carlo to [Mr. Simpson’s] house so that [Mr. Simpson] could change clothes. While at his house, [Mr. Simpson] got an assault rifle[,] which he brought with him.¹ Before going to Fritzi’s, the men first went to a house party where they consumed alcohol and marijuana. When they left the party, [Mr. Simpson] put the assault rifle into the trunk of the Monte Carlo, which could be accessed through the back seat.

The three arrived at Fritzi’s between midnight and 1:00 a.m. on January 16. Once inside, they went to the bar to get a drink. [Mr. Simpson] and [Mr.] Dalton also took a drug called "Ecstasy." After getting their drinks, [Mr.] Dalton and [Mr.] Robertson sat down at a table while [Mr. Simpson] walked around. When [Mr. Simpson] walked by London Johnson, Anthony Jones and Glen Palmer, one of the three apparently said something to him about the Chicago Cubs baseball cap that he was wearing. [Mr. Simpson] went back to the table and told [Mr.] Dalton and [Mr.] Robertson that some guy had given him a hard time about his cap. At some point, [Mr. Simpson] approached [Mr.] Johnson, [Mr.] Jones and [Mr.] Palmer again. During this encounter, [Mr. Simpson] told them that he was going to "chop" them up.² After making this threat, [Mr. Simpson] walked away. He returned a short time later and walked up to Palmer.

[Mr. Simpson] extended his hand and said, "We cool." [Mr.] Palmer hit [Mr. Simpson] in the mouth knocking him to the floor. [Mr. Simpson] told [Mr.] Dalton and [Mr.] Robertson that he wanted to leave and the three of them left the club.

Out in the parking lot, [Mr. Simpson], [Mr.] Dalton and [Mr.] Robertson went to [Mr.] Dalton’s Monte Carlo. Before leaving, they talked with some girls who had come out of the club and were parked next to them. The girls told the men to follow them to a 7-[Eleven] located at NW 23rd Street and Portland. When they arrived at the store, [Mr. Simpson], [Mr.] Dalton and [Mr.] Robertson backed into a parking space toward the back door and the girls pulled in next to the pumps. While the men were sitting in the Monte Carlo, they saw [Mr.] Johnson, [Mr.] Jones and [Mr.] Palmer drive into the parking lot in [Mr.] Palmer’s Chevy Caprice. They recognized [Mr.] Palmer as the person who had hit [Mr. Simpson] at Fritzi’s. [Mr.] Dalton told [Mr. Simpson] to "chill out" but [Mr. Simpson] was mad and wanted to retaliate against [Mr.] Palmer. When [Mr.] Palmer drove out of the parking lot onto 23rd Street and merged onto I-44, [Mr. Simpson] told [Mr.] Dalton to follow them.

While they were following the Chevy, [Mr. Simpson], who was sitting in the front passenger seat, told [Mr.] Robertson, who was sitting in the back seat, to give him the gun. He told [Mr.] Robertson that if he had to get the gun himself, there was going to be trouble. [Mr.] Robertson reached through the back seat into the trunk and retrieved the gun for [Mr. Simpson]. [Mr.] Dalton followed the Chevy as it exited the interstate onto Pennsylvania Avenue. He pulled the Monte Carlo into the left lane beside the Chevy as they drove on Pennsylvania Avenue and [Mr. Simpson] pointed the gun out his open window and started firing at the Chevy.

When the Chevy was hit with bullets, [Mr.] Palmer was driving, [Mr.] Jones was sitting in the front passenger seat and [Mr.] Johnson was in the back seat. [Mr.] Johnson heard about twenty rapid gun shots and got down on the floor of the car. He did not see the shooter but noticed a white vehicle drive up beside them. The Chevy jumped the curb and hit an electric pole and fence before coming to a stop. [Mr.] Palmer and [Mr.] Jones had been shot. [Mr.] Jones had been shot in the side of his head and torso and was unconscious. [Mr.] Palmer had been shot in the chest. He was initially conscious and able to talk but soon lost consciousness when he could no longer breathe. [Mr.] Johnson tried to give both [Mr.] Jones and [Mr.] Palmer CPR but was unsuccessful. He flagged down a car that was driving by and asked the driver to get help. Both [Mr.] Palmer and [Mr.] Jones died at the scene from their gunshot wounds.

After he fired at the Chevy, [Mr. Simpson] said, "I'm a monster. I just shot the car up." He added, "They shouldn't play with me like that." [Mr.] Dalton kept driving until they reached a residence in Midwest City where he was staying. They dropped the gun off and switched cars, and then [Mr.] Dalton, [Mr.] Robertson and [Mr. Simpson] went to meet some girls they had talked to at Fritzi’s.

Simpson v. State (Simpson I ), 230 P.3d 888, 893–94 (Okla. Crim. App. 2010) (footnotes in original).

B. Procedural History

1. State Court Proceedings

a. Criminal trial and sentencing

The State of Oklahoma charged Mr. Simpson with the first-degree murders of Glen Palmer and Anthony Jones and with discharging a firearm with intent to kill London Johnson. Id. at 893.³ The prosecution sought a penalty of death for each murder.

Prior to trial, Dr. Phillip Massad, a clinical psychologist, evaluated Mr. Simpson’s mental condition. Mr. Simpson disclosed to Dr. Massad that, when Mr. Simpson was sixteen years old, a friend ambushed and shot him for refusing to kill a government witness scheduled to testify in the friend’s criminal trial. Mr. Simpson suffered five gunshot wounds and spent two months hospitalized and comatose. Even after his release from the hospital, Mr. Simpson was readmitted frequently for treatment of complications arising from infections. He endured sixteen surgeries over a seven-month period, and feared his attackers would return to kill him. Dr. Massad concluded Mr. Simpson suffered from Post-Traumatic Stress Disorder (PTSD) as a result of the shooting.

Mr. Simpson’s counsel notified the court he intended to present evidence of Mr. Simpson’s PTSD and to call Dr. Massad as an expert witness on that topic. The defense planned to elicit testimony from Dr. Massad that Mr. Simpson suffered from PTSD and that this condition affected his ability to form the intent of malice aforethought required for a first-degree murder conviction. The State moved to exclude Dr. Massad from testifying at the guilt stage of trial. At a hearing on the matter, defense counsel represented that Dr. Massad would testify it was "possible that the PTSD affected [Mr. Simpson] to the extent that he was not able to form the specific intent" to kill, and that, because of his PTSD, Mr. Simpson would have "magnified in his own mind the threat" the victims presented. Trial Mot. Hr'g Tr. at 18 (Sept. 19, 2007). As the State notes, however, Dr. Massad’s psychological report "never indicate[d] that [Mr. Simpson’s PTSD] prevent[ed] him from forming an intent to kill" or from "know[ing] what he was doing was wrong." Id. at 11–12. The trial court granted the State’s motion, holding that Oklahoma law precludes testimony that a defendant could not have formed the specific intent to commit a crime, except in the context of an intoxication or insanity defense, neither of which had been advanced by Mr. Simpson at that time.

The jury rendered its decision finding Mr. Simpson guilty of the first-degree murders of Mr. Palmer and Mr. Jones.⁴ In the ensuing penalty stage, the State alleged four aggravating factors it claimed warranted a sentence of death:

1. [Mr. Simpson], prior to the time of sentencing, was convicted of a felony involving the use or threat of violence to [another] person [ ("Prior Violent Felony Aggravator") ];

2. [Mr. Simpson] knowingly created a great risk of death to more than one person [ ("Risk of Multiple Deaths Aggravator") ];

3. The murder was especially heinous, atrocious, or cruel [ ("HAC Aggravator") ];

4. At the present time there exists a probability that [Mr. Simpson] would commit criminal acts of violence that would constitute a continuing threat to society [ ("Continuing Threat Aggravator") ].

Trial R. vol. 1 at 44. Mr. Simpson asserted three factors in mitigation: (1) his age,⁵ (2) his mental state (PTSD diagnosis), and (3) his family support.

i. Aggravating evidence presented at sentencing

The State moved to incorporate all the evidence presented during the guilt stage and—after determining the evidence would be relevant to the HAC Aggravator, the Continuing Threat Aggravator, and the Risk of Multiple Deaths Aggravator—the court granted the motion.

In addition, Mr. Simpson stipulated...