Lewallen v. Crow ( 2022 )

Appellate Case: 21-5069 Document: 010110787296 Date Filed: 12/21/2022 Page: 1
FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT December 21, 2022
_________________________________
Christopher M. Wolpert
Clerk of Court
WILLIAM TODD LEWALLEN,
Petitioner - Appellee,
v. No. 21-5069
(D.C. No. 4:18-CV-00414-CVE-CDL)
SCOTT CROW, (N.D. Okla.)
Respondent - Appellant.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before BACHARACH, MURPHY, and CARSON, Circuit Judges.
_________________________________
Under the Antiterrorism and Effective Death Penalty Act (“AEDPA”), trying
to persuade a federal habeas court to undo a state court’s resolution of a federal
constitutional issue is often a fool’s errand. The statute requires us to give
considerable deference to the state court’s reasoning, allowing us to grant habeas
relief only if we determine that the state court unreasonably applied clearly
established federal law. See 28 U.S.C. § 2254(d).
An Oklahoma jury convicted Petitioner William Lewallen of child neglect
after he combined pain medication with alcohol and could not care for his young
*
This order and judgment is not binding precedent, except under the doctrines
of law of the case, res judicata, and collateral estoppel. It may be cited, however, for
its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
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children, resulting in their being locked outside naked in the cold and in a dog cage
while covered in dog feces. Because Oklahoma permits sentencing by juries, the
same jury sentenced Petitioner. Later, the Oklahoma Court of Criminal Appeals
vacated Petitioner’s sentence and remanded for resentencing. At his resentencing
before a different jury, Petitioner wanted to testify. But the sentencing court
excluded Petitioner’s proffered testimony after determining it was irrelevant to
sentencing under Oklahoma law.
After the jury resentenced him, Petitioner appealed, arguing that the
sentencing court deprived him of a federal constitutional right to present his
proffered testimony. The Oklahoma Court of Criminal Appeals disagreed and
affirmed his sentence. So Petitioner petitioned the Northern District of Oklahoma for
a writ of habeas corpus under 28 U.S.C. § 2254. The district court agreed that
excluding Petitioner’s testimony from his resentencing proceeding violated the
Constitution and further concluded that Petitioner satisfied AEDPA’s demanding
standard. So the district court conditionally granted the habeas petition. Respondent
Scott Crow, Director of the Oklahoma Department of Corrections, appealed. We
stayed the district court’s order pending resolution of the appeal, and exercising
jurisdiction under 28 U.S.C. § 2253, we now reverse.
I.
In November 2012 in Tulsa, Oklahoma, a neighbor heard a child in
Petitioner’s yard yelling: “I’m sorry, Daddy. I won’t do it again. Please let me in.
It’s cold.” The neighbor climbed over the fence to find Petitioner’s three-year-old
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son naked in the forty-two-degree weather, begging his father to let him inside.
Noticing that the child’s lips were purple, the neighbor wrapped the child in a jacket,
took him home, and called the police.
Officers arrived about twenty-five minutes later and knocked loudly on
Petitioner’s door. When nobody answered, they walked around the house, where
they spotted Petitioner’s one-year-old daughter through a window locked in a dog
cage. The officers kicked down Petitioner’s back door and entered the house. They
removed the child from the dog cage, noticing that she was covered in her own and a
dog’s feces. The officers also observed that the floor and walls of the house were
covered in rotting food, soiled diapers, and dog feces. Eventually, the officers found
Petitioner asleep in his bed with another three-year-old sleeping naked next to him.
After some effort, the officers awakened Petitioner, who woke up confused and
disoriented.
Petitioner told the officers that his family had just moved into the house and
that he had been in the hospital the previous evening with two cracked vertebrae.
Petitioner left the hospital against medical advice at 9:00 p.m. because he needed to
watch his children so his wife could go to work. Petitioner said that he had been up
since 4:30 a.m. watching the children. At around 3:30 p.m., Petitioner took a dose of
the painkiller oxycodone for his back pain and drank a beer. That day, Petitioner had
taken four doses of oxycodone, two muscle relaxers, and a seizure medication. He
then laid down with the children to take a nap. That was the last thing Petitioner
remembered before waking up to the police in his house. Petitioner said that he did
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not know how his children became locked outside and in a dog cage. He also
admitted that he thought he could take care of his children while on medication but
that evidently, he could not. A pediatrician diagnosed all three children with child
neglect, though she noted that the children were healthy, adequately nourished, and
free of injury.
In 2014, an Oklahoma jury convicted Petitioner of child neglect. Oklahoma is
one of a few states that permits juries to sentence noncapital defendants. Petitioner’s
jury recommended a twenty-three-year sentence. The Oklahoma Court of Criminal
Appeals affirmed Petitioner’s conviction but vacated his sentence due to an error in
the jury instructions and remanded for resentencing. See Lewallen v. Oklahoma, 370
P.3d 828, 830 (Okla. Crim. App. 2016). Petitioner opted to again have a jury
sentence him, so the court empaneled a new jury. Because this new jury heard none
of the evidence of Petitioner’s crime, Oklahoma law allowed the state to admit all
evidence admitted in Petitioner’s trial. See Okla. Stat. tit. 22, § 929(c)(1). The state
also admitted evidence of Petitioner’s seven prior felony convictions. Although he
did not testify at his guilt–innocence trial, Petitioner wanted to testify at his
resentencing. After receiving a proffer of Petitioner’s proposed testimony, the court
determined that the testimony was not relevant to sentencing under Oklahoma law
and excluded it. The jury recommended a fourteen-year sentence.
Petitioner appealed, arguing that he had a federal constitutional right to testify
at his resentencing and that the court deprived him of that right when it excluded his
testimony as irrelevant under Oklahoma law. But the Oklahoma Court of Criminal
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Appeals affirmed. So Petitioner asked the Northern District of Oklahoma for a writ
of habeas corpus on the same grounds. The district court conditionally granted the
petition, ordering Respondent to release Petitioner unless the state resentenced him
and permitted him to testify at the resentencing hearing. Respondent appeals.
II.
When reviewing a district court’s grant of habeas relief, we review the court’s
factual findings for clear error and its legal conclusions de novo. Richie v. Mullin,
417 F.3d 1117, 1120 (10th Cir. 2005). Under AEDPA, federal courts may grant
habeas relief from a state-court judgment only if the state court’s decision “was
contrary to, or involved an unreasonable application of, clearly established Federal
law, as determined by the Supreme Court of the United States or . . . was based on an
unreasonable determination of the facts.” 28 U.S.C. § 2254(d). Only the Supreme
Court’s holdings constitute clearly established federal law under AEDPA. White v.
Woodall, 572 U.S. 415, 419 (2014) (citation omitted). We may not grant habeas
relief simply because, in our view, the state court’s decision was wrong or even
clearly erroneous; the state court’s application of the Supreme Court’s holdings must
be objectively unreasonable. Id. (citation omitted). That is, the state court’s decision
must have been “so lacking in justification” under existing Supreme Court precedent
that “no possibility for fairminded disagreement” exists. Id. at 420 (citation omitted).
Even a strong case on the merits does not render a state court’s contrary holding
unreasonable. Harrington v. Richter, 562 U.S. 86, 102 (2011). Federal habeas
corpus protects petitioners from “extreme malfunctions” in state-court adjudications
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but does not offer another chance at ordinary error correction like a regular appellate
process. Id. at 102–03 (citation omitted).
III.
Under Oklahoma law, the parties in a resentencing proceeding after remand
may admit exhibits and transcripts of testimony properly admitted in the guilt–
innocence trial and prior sentencing. Okla. Stat. tit. 22, § 929(C)(1). The parties
may also admit “[a]dditional relevant evidence.” Id. Although Petitioner did not
testify in his guilt–innocence trial or previous sentencing, he sought to testify at his
resentencing about his version of events, arguing that his testimony constituted
additional relevant evidence.
Petitioner proffered that if permitted, he would testify about his medical
conditions that left him unable to work and needing medication, his unfamiliarity
with oxycodone and the effect it would have on him, his belief that his children
locked each other outside and in the dog cage, and his unawareness that they had
done so.1 The sentencing court determined that Petitioner’s proffered testimony
constituted either guilt–innocence evidence or mitigation evidence, both of which are
irrelevant to noncapital sentencing under Oklahoma law. See Malone v. Oklahoma,
58 P.3d 208, 209–10 (Okla. Crim. App. 2002) (holding that Oklahoma law does not
allow the presentation of mitigation evidence to a sentencing jury); Rojem v.
1
Although we do not quote the entirety of Petitioner’s proffered testimony, the
district court did so. See Lewallen v. Crow, No. 18-CV-0414, 2021 U.S. Dist.
LEXIS 150870, at *16–21 (N.D. Okla. Aug. 11, 2021).
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Oklahoma, 130 P.3d 287, 299 (Okla. Crim. App. 2006) (“[R]esentencing proceedings
should not be viewed as a second chance at revisiting the issue of guilt.”). So the
sentencing court excluded the testimony as irrelevant.
On appeal, the Oklahoma Court of Criminal Appeals rejected Petitioner’s
argument that Rock v. Arkansas, 483 U.S. 44 (1987), guaranteed him a right to
present his excluded testimony to the resentencing jury. The court acknowledged
that under Rock, criminal defendants have a right to testify in their defense. But the
court also noted that Rock did not purport to create an absolute right, acknowledging
that in some cases, other interests may outweigh a defendant’s right to testify. Thus,
the Oklahoma Court of Criminal Appeals held that Petitioner had no right under
Rock to present irrelevant testimony.
In Rock, the Supreme Court addressed an Arkansas evidentiary rule that
barred defendants from testifying about any facts recalled through hypnosis because
of the questionable reliability of hypnotically refreshed testimony. See Rock, 483
U.S. at 56. In that case, the rule excluded most of the defendant’s testimony. See id.
at 57. Although acknowledging the state’s interest in excluding unreliable testimony,
the Supreme Court was unconvinced that a court could never ensure the reliability of
hypnotically refreshed testimony. See id. at 61. Thus, the Supreme Court held that
by not allowing reliability determinations case by case, Arkansas’s categorical rule
excluding all hypnotically refreshed testimony arbitrarily restricted a defendant’s
right to testify at trial. See id.7
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We disagree with the district court that the Oklahoma Court of Criminal
Appeals unreasonably applied Rock. As the Oklahoma Court of Criminal Appeals
acknowledged, Rock did not create an unlimited right to testify. See id. at 55 (“Of
course, the right to present relevant testimony is not without limitation.”). Nor does
Rock prohibit states from applying their evidentiary rules to a defendant’s testimony
when doing so reasonably accommodates legitimate state interests. See id. Here, the
Oklahoma Court of Criminal Appeals determined that excluding Petitioner’s
proffered testimony accommodated Oklahoma’s “most basic rule of admissibility”—
admitting only relevant evidence. App. Vol. II at 163. Thus, the court determined
that excluding Petitioner’s irrelevant testimony did not violate Rock.
In Rock, a state did not exclude testimony deemed irrelevant under state law.
Rather, in Rock a state excluded concededly relevant testimony based on the state’s
categorical determination that such evidence could never be reliable. Given the
different issue here, Rock does not clearly establish that a state must permit
defendants to present sentencing testimony that state law says is irrelevant to the
sentencing determination.
Indeed, Rock suggested the opposite. Rock characterized a defendant’s right
to testify as “the right to present relevant testimony.” 483 U.S. at 55 (emphasis
added). If a defendant’s right to testify extends only to relevant testimony, then
excluding irrelevant testimony does not implicate the right. See United States v.
Palms, 21 F.4th 689, 703 (10th Cir. 2021) (“[T]he Constitution does not mandate the
admission of irrelevant . . . evidence.”). The Oklahoma Court of Criminal Appeals
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has held that mitigation evidence is irrelevant under Oklahoma law in noncapital
sentencings. See App. Vol. II at 163; Malone, 58 P.3d at 209–10. Thus, Rock does
not clearly establish Petitioner’s right to present mitigation testimony in a sentencing
proceeding.
Nor does Petitioner identify any Supreme Court cases establishing that state
courts must admit mitigation evidence in noncapital sentencing proceedings
regardless of its relevance under state law. The district court stated that whether the
Constitution requires state courts to permit mitigation evidence in noncapital
sentencings is not “the question in this case.” Lewallen, 2021 U.S. Dist. LEXIS
150870, at *60 n.22. But it is the question because mitigation evidence is irrelevant
under Oklahoma law, and Petitioner has no right to present irrelevant testimony. So
unless the Constitution makes Petitioner’s mitigation testimony relevant to his
noncapital sentencing, he had no right to present it.
In a footnote, the district court quoted Justice O’Connor’s concurring opinion
from Gilmore v. Taylor, 508 U.S. 333, 349 (1993) (O’Connor, J., concurring), which
acknowledged that the Supreme Court has not extended to noncapital sentencings the
right recognized in capital cases to present mitigation evidence. Lewallen, 2021 U.S.
Dist. LEXIS 150870, at *59 n.22. Even so, Justice O’Connor concluded that the idea
of “constitutionally relevant evidence” was not limited to capital cases. Id. (quoting
Gilmore, 508 U.S. at 349 (O’Connor, J., concurring)). So the district court
determined that Justice O’Connor’s concurrence “suggests” that Petitioner’s
proffered testimony “may have been ‘constitutionally relevant,’ and thus admissible,
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even if not relevant under state law.” Id. at *60 n.22. But concurring opinions do not
clearly establish law under AEDPA. Only the Supreme Court’s holdings do that.
White, 572 U.S. at 419. Thus, the Oklahoma Court of Criminal Appeals did not
unreasonably apply clearly established federal law when it held that the sentencing
court did not violate Petitioner’s rights by excluding his mitigation testimony as
irrelevant under state law.
In sum, Rock held that a state may not bar a defendant from offering relevant,
hypnotically refreshed testimony at a guilt–innocence trial based only on the
categorical determination that such testimony is always unreliable. The Oklahoma
Court of Criminal Appeals’ holding that Rock does not require allowing a noncapital
defendant to present irrelevant-under-state-law mitigation testimony at a sentencing
proceeding was not unreasonable. Even if the right to testify at issue in Rock applies
in a sentencing proceeding, the Oklahoma Court of Criminal Appeals’ decision was
not “so lacking in justification” as to eliminate any “possibility for fairminded
disagreement.” White, 572 U.S. at 420. The district court therefore erred in granting
Petitioner a writ of habeas corpus.
REVERSED.
Entered for the Court
Joel M. Carson III
Circuit Judge
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