Johnson v. Martin ( 2021 )

FILED
United States Court of Appeals
PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS July 2, 2021
Christopher M. Wolpert
FOR THE TENTH CIRCUIT Clerk of Court
_________________________________
ALONZO CORTEZ JOHNSON,
Petitioner - Appellant,
v. No. 19-5091
JIMMY MARTIN, Warden,
Respondent - Appellee.
_________________________________
Appeal from the United States District Court
for the Northern District of Oklahoma
(D.C. No. 4:16-CV-00433-JED-FHM)
_________________________________
James L. Hankins, Edmond, Oklahoma, for Petitioner – Appellant.
Tessa Henry, Assistant Attorney General (Mike Hunter, Attorney General, and Julia
Pittman, Assistant Attorney General, on the brief), Oklahoma City, Oklahoma, for
Respondent – Appellee.
_________________________________
Before MORITZ, SEYMOUR, and BRISCOE, Circuit Judges.
_________________________________
MORITZ, Circuit Judge.
_________________________________
An Oklahoma jury convicted Alonzo Johnson of murder and conspiracy to
commit murder. After unsuccessfully challenging his convictions in state court,
Johnson filed a 28 U.S.C § 2254 petition seeking federal habeas relief. As relevant
here, he asserted that the prosecution exercised its peremptory strikes in a racially
discriminatory manner to exclude minorities from the jury, in violation of his
Fourteenth Amendment rights as set forth in Batson v. Kentucky, 476 U.S. 79 (1986).
Johnson also asserted, in relevant part, that gruesome evidence, juror misconduct,
and cumulative error rendered his trial fundamentally unfair. The district court denied
relief.
For the reasons explained below, we affirm the denial of relief on Johnson’s
gruesome-evidence, juror-misconduct, and cumulative-error claims. But because we
conclude that the Oklahoma Court of Criminal Appeals (OCCA) relied on an
unreasonable factual determination and unreasonably applied Batson to reject
Johnson’s Batson claim and further determine that Johnson raised a prima facie case
of discrimination under the first step of Batson, we reverse the district court’s denial
of habeas relief on Johnson’s Batson claim and remand for further proceedings
consistent with this opinion.
Background
Although we will add more facts as needed to our analysis below, we begin by
briefly setting the scene. 1 This appeal arises from a murder-for-hire plot involving
five individuals: Mohammed Aziz, Allen Shields (Allen), Fred Shields (Fred),
Terrico Bethel, and Johnson. The victim was Neal Sweeney, a fuel supplier.
Sweeney’s fuel marketing company supplied fuel to convenience stores,
including stores owned by Aziz. As a result of a dispute involving Aziz’s
1
We take these undisputed facts from the district court’s decision below.
2
nonpayment of bills, Sweeney obtained a default judgment against Aziz. Aziz, who
had “developed an ‘intense hatred’ toward Sweeney,” approached Allen and asked if
Allen knew anyone who could kill someone for him. App. 30 (quoting R. vol. 1, 62).
Allen spoke to his brother, Fred, about finding someone to do the job. Fred set the
price for the murder at $10,000 and recruited Bethel to carry it out.
Fred also recruited Johnson, a cousin of the Shields brothers. Johnson
“purportedly obtained the getaway car and helped coordinate with Aziz.” Id. Bethel
drove the car to Sweeney’s office and shot Sweeney at close range, in the head.
Later, law enforcement apprehended Fred “on a different crime[,] and [he] exposed
the conspiracy” to kill Sweeney “in an effort to make a deal.” Id. at 30–31.
The State charged Johnson with first-degree murder and conspiracy to commit
first-degree murder. 2 His defense at trial centered on arguments that his involvement
in the murder plot was minimal and that his coconspirators’ testimony against him
was unreliable (Aziz testified at Johnson’s trial, and the State introduced Allen’s
preliminary-hearing testimony). The jury convicted Johnson on both counts. The trial
court sentenced him to life imprisonment on each count, to run consecutively.
Johnson filed a direct appeal, raising eighteen issues, and the OCCA affirmed.
Johnson v. State, No. F-2013-173 (Okla. Crim. App. July 17, 2014) (unpublished)
(Johnson I). Johnson then sought postconviction relief, which the state trial court
2
The other men faced similar charges. A jury convicted Fred and Bethel of
first-degree murder, among other things, and both received life sentences. Allen
faced a conspiracy charge but died before Johnson’s trial. Aziz pleaded guilty to
solicitation of murder and was sentenced to 35 years in prison.
3
denied. Johnson v. State, No. CF-2009-2738 (Tulsa Cnty. Dist. Ct. Oct. 6, 2015)
(unpublished) (Johnson II). The OCCA affirmed the denial of postconviction relief.
Johnson v. State, No. PC-2015-923 (Okla. Crim. App. Apr. 7, 2016) (unpublished)
(Johnson III).
Johnson then filed the § 2254 petition underlying this appeal, raising seven
claims. The district court denied the petition and declined to issue a certificate of
appealability (COA). See 28 U.S.C. § 2253(c)(1)(A). Johnson sought to appeal to this
court and filed a combined opening brief and request for a COA. We granted him a
partial COA to appeal the district court’s resolution of four of his seven claims: the
Batson claim, the gruesome-evidence claim, the juror-misconduct claim, and the
cumulative-error claim. 3 See § 2253(c)(3).
Analysis
We review the district court’s legal analysis de novo. Smith v. Duckworth, 824
F.3d 1233, 1241–42 (10th Cir. 2016). In so doing, we remain bound by the
constraints of the Antiterrorism and Effective Death Penalty Act (AEDPA) of 1996.
3
The COA order does not expressly deny a COA on Johnson’s three remaining
claims: (1) that the admission of Bethel’s recorded statements and Allen’s
preliminary-hearing testimony violated his rights under the Confrontation Clause,
(2) that the evidence was insufficient to support his conviction, and (3) that he was
denied the right to present a defense. Perhaps recognizing the partial COA grant as an
implicit denial of a COA on his remaining claims, Johnson does not reassert his
desire for a COA on these claims in his reply brief. In the interest of clarity, we now
expressly deny a COA on these three remaining claims, concluding that reasonable
jurists could not debate the district court’s resolution of them. See Slack v. McDaniel,
529 U.S. 473, 484 (2000) (holding that to obtain COA, “petitioner must demonstrate
that reasonable jurists would find the district court’s assessment of the constitutional
claims debatable or wrong”).
4
Id. at 1240–41. AEDPA requires a state prisoner seeking federal habeas relief to
show that the state court’s resolution of his or her claims (1) “was contrary to, or
involved an unreasonable application of, clearly established [f]ederal law” or
(2) “was based on an unreasonable determination of the facts in light of the evidence
presented in the [s]tate[-]court proceeding.” § 2254(d). The two prongs of § 2254(d)
thus impose “a formidable barrier to federal habeas relief for prisoners whose claims
have been adjudicated in state court.” Smith, 824 F.3d at 1241 (quoting Burt v.
Titlow, 571 U.S. 12, 19–20 (2013)).
Under § 2254(d)(1), “[w]hether the law is clearly established is the threshold
question.” House v. Hatch, 527 F.3d 1010, 1015 (10th Cir. 2008). “[W]ithout clearly
established federal law, a federal habeas court need not assess whether a state court’s
decision was ‘contrary to’ or involved an ‘unreasonable application’ of such law.” Id.
at 1017 (quoting § 2254(d)(1)). But if such clearly established law exists, a state-
court decision is contrary to it if the state court “applies a rule that contradicts the
governing law set forth in Supreme Court cases or confronts a set of facts that are
materially indistinguishable from a decision of the Supreme Court and nevertheless
arrives at a result different from that precedent.” Smith, 824 F.3d at 1241 (quoting
Ryder ex rel. Ryder v. Warrior, 810 F.3d 724, 739 (10th Cir. 2016)). And a state-
court decision is an unreasonable application of clearly established federal law if it
“correctly identifies the governing legal rule but applies it unreasonably to the facts
of a particular prisoner’s case.” Williams v. Taylor, 529 U.S. 362, 407–08 (2000).
5
Under § 2254(d)(2), “[w]e will not conclude a state court’s factual findings are
unreasonable ‘merely because we would have reached a different conclusion in the
first instance.’” Smith, 824 F.3d at 1241 (quoting Brumfield v. Cain, 576 U.S. 305,
313–14 (2015)). Instead, we “defer to the state court’s factual determinations so long
as ‘reasonable minds reviewing the record might disagree about the finding in
question.’” Id. (quoting Brumfield, 576 U.S. at 314). In line with this deference, we
presume that a state court’s factual findings are correct, “and the petitioner bears the
burden of rebutting that presumption by ‘clear and convincing evidence.’” Id.
(quoting § 2254(e)(1)). 4 But “‘deference does not imply abandonment or abdication
of judicial review,’ and ‘does not by definition preclude relief.’” Brumfield, 576 U.S.
at 314 (quoting Miller-El v. Cockrell, 537 U.S. 322, 340 (2003) (Miller-El I)).
Accordingly, “if the petitioner can show that ‘the state courts plainly
misapprehend[ed] or misstate[d] the record in making their findings, and the
misapprehension goes to a material factual issue that is central to petitioner’s claim,
that misapprehension can fatally undermine the fact-finding process, rendering the
resulting factual finding unreasonable.’” Smith, 824 F.3d at 1241 (alterations in
original) (quoting Ryder, 810 F.3d at 739).
4
The Supreme Court has “not yet ‘defined the precise relationship between
§ 2254(d)(2) and § 2254(e)(1).’” Brumfield, 576 U.S. at 322 (quoting Titlow, 571
U.S. at 18). Accordingly, it is “not entirely clear whether § 2254(e)(1)’s presumption
applies to our § 2254(d)(2) analysis.” Vreeland v. Zupan, 906 F.3d 866, 880 n.3 (10th
Cir. 2018). But because Johnson “appears to concede it does, we need not resolve this
‘open question’” here. Id. (quoting Sharp v. Rohling, 793 F.3d 1216, 1228 n.10 (10th
Cir. 2015)).
6
I. Batson Claim
Johnson—who is African American—argues that the district court erred in
denying his claim that the prosecution used its peremptory challenges to
systematically exclude racial minorities from the jury in violation of Batson. Batson
held that the “Equal Protection Clause prohibits the prosecution’s use of peremptory
challenges to exclude potential jurors on the basis of their race.” Saiz v. Ortiz, 392
F.3d 1166, 1171 (10th Cir. 2004). In other words, Batson recognized “the right to be
tried by a jury whose members are selected pursuant to nondiscriminatory criteria.”
476 U.S. at 85–86.
A trial court faced with a Batson challenge must apply a three-step burden-
shifting analysis. See id. at 96–98. “First, the trial court must determine whether the
defendant has made a prima facie showing that the prosecutor exercised a peremptory
challenge on the basis of race. Second, . . . the burden shifts to the prosecutor to
present a race-neutral explanation for striking the juror in question.” Rice v. Collins,
546 U.S. 333, 338 (2006) (citation omitted). “Third, the court must then determine
whether the defendant has carried his burden of proving purposeful discrimination.”
Id.A. Additional Facts and Procedural Background
At Johnson’s trial, the prosecutor exercised his first six peremptory challenges
in the following order: (1) Dr. Tawil, (2) Mr. Dickens, (3) Ms. Aramburo de
Wassom, (4) Ms. Wilson, (5) Ms. Carranza, and (6) Ms. Martinez. When the
prosecutor moved to dismiss Mr. Dickens, an African American, from the jury pool,
7
the trial court asked: “Your race neutral reason?” R. vol. 3, 449. The prosecutor
responded: “Judge, he has a Ph.D., [and] we’re concerned about him being a
professor of liberal arts. It’s been my practice to not keep those types of educated
people, Ph.D.s in liberal arts, on the jury. We think they’re too exacting at times, too
liberal.” Id. The trial court then stated: “Well, I’ll determine there’s a race[-]neutral
reason. There are other prospective African Americans on the jury.” Id.After the prosecutor moved to dismiss Ms. Martinez with his sixth strike,
defense counsel stated:
Your honor, I’d like to point out at this point that I think every
peremptory challenge . . . so far[,] except Ms. Wilson[,] has been of a
minority[:] Dr. Tawil, Ms. Carranza, Ms. Aramburo de Wassom, [Ms.
Martinez], 5 and Mr. Dickens. And there’s a pattern here, Your Honor, of
striking all minorities off this jury. 6
Id. at 450. The trial court responded:
Well, I don’t think that this establishes a pattern. Again, in terms of—
Ms. Martinez, I won’t state their reasons for them, but Ms. Martinez
was patently—she was hardly involved in the process. Ms. Carranza has
indicated she has difficulty with English, Ms. Aramburo de Wassom
told us the same. So I do not see a pattern here.
Id. at 450–51.
5
Defense counsel repeated “Ms. Carranza,” but it appears that he intended to
say “Ms. Martinez”: she was the other minority female excused, and the court
referred to “Ms. Martinez” in its response to defense counsel. R. vol. 3, 450.
6
The record does not reveal the specific race of any of these six jurors except
for Mr. Dickens, who the court identified as African American. But when defense
counsel identified five of these six jurors as minorities, neither the trial court nor the
prosecutor disputed that characterization.
8
The prosecutor next sought to excuse Ms. Williams, stating—without being
prompted by either a defense objection or a question from the trial court—that
although Ms. Williams was “African American, . . . [the] race[-]neutral reason for her
is she’s a pastor. I think pastors traditionally are very, very forgiving, [and] have
trouble with judgment. She’s worked with drug addicts and counseled them in the
past[,] showing . . . a propensity towards treatment rather than judgment.” Id. at 452.
The trial court interrupted this explanation and said, “Well, you would have
effectively eliminated all the African Americans[,] and I’m not going to do that.” Id.Later, at sentencing, the trial court stated that it “probably made an error
during the voir dire to the detriment . . . of the State when” the prosecutor sought to
excuse Ms. Williams. R. vol. 5, 758. Specifically, the trial court explained that it had
recently been reminded that the absence of any minorities on the jury “was not a
basis to prevent a strike”; instead, “there needed to be a finding that there was either
[a] systematic or [a] specific discriminatory practice.” Id. at 759. Thus, because the
absence of any minorities was the rationale for the trial court’s decision to reject the
prosecutor’s peremptory challenge to Ms. Williams, the trial court acknowledged that
it “made an error.” Id.
Johnson then raised his Batson challenge on direct appeal, arguing that the
“prosecutor systematically removed minorities from the jury.” R. vol. 1, 181.
Rejecting this argument in a single paragraph, the OCCA first stated “the trial court
did not abuse its discretion when it found that the State did not engage in systemic or
specific discrimination.” Johnson I, slip op. at 3. The OCCA then acknowledged the
9
trial court’s error in refusing to allow the prosecutor to excuse Ms. Williams and
further noted that “the trial court’s determination that the State’s explanations for
excusing each of the minority jurors were legitimate race-neutral reasons is not
clearly against the logic and effects of the facts presented.” Id. Last, the OCCA
concluded that Johnson was not entitled to relief because he had “failed to establish
purposeful discrimination on the part of the State.” Id.
Johnson again asserted his Batson claim in his state-court application for
postconviction relief. Both the state trial court and the OCCA held that because
Johnson brought his Batson claim on direct appeal, consideration of its merits in
postconviction proceedings was barred by res judicata. Johnson II, slip op. at 7;
Johnson III, slip op. at 3.
Reviewing the OCCA’s adjudication of this claim, the district court began with
the proposition that “[b]ecause the OCCA applied Batson, relief is only available if it
‘was unreasonable to credit the prosecutor’s race-neutral explanations for the Batson
challenge.’” App. 35 (quoting Collins, 546 U.S. at 338). Additionally, the district
court relied on Black v. Workman for the proposition that a habeas court must “defer
to the state trial judge’s finding of no racial motivation ‘in the absence of exceptional
circumstances.’” 682 F.3d 880, 897 (10th Cir. 2012) (quoting Snyder v. Louisiana,
552 U.S. 472, 477 (2008)). The district court then determined that no exceptional
circumstances existed here. In so doing, the district court specifically noted the
prosecutor’s explanation for striking Mr. Dickens (he had a Ph.D.). It also determined
that the record supported the explanations provided by the trial court for the dismissal
10
of the other minority jurors. Accordingly, it found no evidence of racial motivation
and declined to “disturb the OCCA’s application of Batson.” App. 36.
B. Discussion
On appeal, Johnson contends that the district court erred by mischaracterizing
his Batson claim as arising under step three of Batson. In so doing, Johnson renews
the second-step Batson argument he raised in his habeas petition. And he further
asserts—as required by the barrier imposed by § 2254(d)—that the OCCA
(1) unreasonably applied Batson in finding the second step satisfied where the trial
court, rather than the prosecutor, supplied race-neutral reasons for the strikes at issue
and (2) found and relied on an unreasonable fact when it determined that the
prosecutor supplied race-neutral reasons for the challenged strikes.
1. The State’s Arguments
Before turning to Johnson’s arguments, we first address and reject two points
raised by the State.
i. Procedural Bar
The State suggests in passing 7 that this court should not consider Johnson’s
Batson claim because he failed to raise it in his direct appeal to the OCCA. In so
7
Specifically, the State devotes two sentences to this argument, asserting that
because Johnson “did not make this argument to the OCCA on direct appeal,” it
“would be improper” for us to consider it now. Aplee. Br. 19. In support, the State
cites only Sexton v. Beaudreaux, a case that did not concern procedural bar. 138 S.
Ct. 2555, 2560 (2018) (per curiam) (noting in passing that Ninth Circuit erred when it
“considered arguments against the state court’s decision that [petitioner] never even
made in his state habeas petition”).
11
doing, the State appears to be asserting a two-part procedural-bar argument:
(1) Johnson did not raise his specific step-two Batson argument in his direct appeal,
and (2) when he raised it in his application for postconviction relief, the OCCA
implicitly rejected it on waiver grounds as an argument that could have been but was
not raised on direct appeal. See Harmon v. Sharp, 936 F.3d 1044, 1060 (10th Cir.
2019) (noting that “[o]n habeas review, this court does not address issues that have
been defaulted in state court on an independent and adequate state procedural
ground” (quoting English v. Cody, 146 F.3d 1257, 1259 (10th Cir. 1998))); Logan v.
State, 293 P.3d 969, 973 (Okla. Crim. App. 2013) (providing that in Oklahoma
postconviction proceedings, “issues that were not raised previously on direct appeal,
but which could have been raised, are waived”).
We reject this argument because, according to both the state trial court and the
OCCA, Johnson did raise his Batson claim on direct appeal. See Johnson II, slip op.
at 7; Johnson III, slip op. at 3. Indeed, the State acknowledged as much below, noting
that (1) Johnson “raised this claim on direct appeal to the OCCA” and “[t]he OCCA
addressed the claim on the merits and denied . . . relief,” and (2) Johnson “also raised
this claim in his post[]conviction proceeding[,] but the OCCA, noting the claim had
been previously raised and addressed in [Johnson]’s direct appeal, declined to again
address the claim as it was ‘barred as res judicata.’” R. vol. 1, 127 & n.7 (emphases
added) (quoting Johnson III, slip op. at 3). Given that the state courts determined this
particular argument was raised on direct appeal, we reject the State’s procedural-bar
argument.
12
ii. Type of Batson Error
The State next contends that Johnson is not entitled to habeas relief because he
alleges trial-court error at the second step of Batson, but the trial court’s ruling
stopped at the first step of Batson. In other words, the State contends that the trial
court’s response to defense counsel’s objection about a pattern of striking minorities
amounted to a ruling that defense counsel failed to establish a prima facie case of
discrimination. Thus, continues the State, the Batson inquiry never proceeded to the
second step, and no second-step error could have occurred.
Although the State’s interpretation may be plausible, we ultimately reject it.
Recall that after the State’s sixth peremptory challenge, defense counsel objected that
“there’s a pattern here . . . of striking all minorities off this jury.” R. vol. 3, 450. The
trial court responded:
Well, I don’t think that this establishes a pattern. Again, in terms of—
Ms. Martinez, I won’t state their reasons for them, but Ms. Martinez
was patently—she was hardly involved in the process. Ms. Carranza has
indicated she has difficulty with English, Ms. Aramburo de Wassom
told us the same. So I do not see a pattern here.
Id. at 450–51. In these four sentences, the trial court stated at the beginning and at the
end that there was no pattern of discrimination. The State contends that this
conclusion, combined with the trial court’s decision not to ask the prosecutor for
race-neutral reasons, “was an implicit ruling that [Johnson] failed to make a prima
facie showing that the State’s use of peremptory challenges . . . showed a pattern of
discrimination.” Aplee. Br. 20; see also Saiz, 392 F.3d at 1177–78 (noting that
“initial obligation under Batson [is] to make a prima facie showing that the
13
prosecution’s peremptory strikes were discriminatory” and “infer[ring] from the trial
court’s decision not to go on to step two of the Batson analysis (asking the
prosecution to explain its peremptory strike) that it concluded that [the defendant]
had failed to establish a prima facie case of discrimination”).
But critically, the State’s proposed interpretation of the trial court’s ruling is
contrary to the OCCA’s interpretation. In rejecting Johnson’s Batson claim, the
OCCA specifically approved the trial court’s procedure at the second (and third) step
of Batson when it stated the “trial court’s determination that the State’s explanations
for excusing each of the minority jurors were legitimate race-neutral reasons is not
clearly against the logic and effects of the facts presented.” Johnson I, slip op. at 3.
Because the OCCA treated the trial court’s ruling as going beyond the first step of
Batson, we reject the State’s proposed interpretation of the trial court’s ruling as
limited to Batson’s first step.
2. Johnson’s Arguments
Having rejected the State’s overarching arguments in favor of affirming the
district court’s denial of habeas relief on Johnson’s Batson claim, we now turn to
Johnson’s arguments in favor of reversal.
i. The District Court’s Decision
As an initial matter, we agree with Johnson that the district court erred by
treating his Batson claim as aimed at the third step of Batson. Johnson plainly
asserted in his habeas petition that the trial court erred at the second step of Batson
by failing to ask the prosecutor for race-neutral reasons. But to reject his claim, the
14
district court relied on Black and Snyder, which addressed challenges to rulings at the
third step of the Batson analysis. See Black, 682 F.3d at 895–96 (noting that “the
prosecutor’s explanation satisfied step two of the Batson three-step process” and
moving on to “determine whether ‘it was unreasonable to credit the prosecutor’s
race-neutral explanations’” (quoting Collins, 546 U.S. at 338)); Snyder, 552 U.S. at
479, 484–85 (considering plausibility of “the prosecution’s two proffered grounds for
striking” juror and noting that “the question presented at the third stage of the Batson
inquiry is ‘whether the defendant has shown purposeful discrimination’” (quoting
Miller-El v. Dretke, 545 U.S. 231, 277 (2005) (Miller-El II) (Thomas, J.,
dissenting))). Accordingly, in our de novo review of the district court’s legal
analysis, we depart from the district court’s step-three analysis and focus specifically
on Johnson’s step-two argument. See Smith, 824 F.3d at 1241–42.
ii. § 2254(d)
To obtain habeas relief, Johnson must first pass through the barrier imposed by
§ 2254(d). On this point, Johnson advances arguments under both prongs, asserting
that the OCCA denied relief based on an unreasonable application of Batson under
subsection (d)(1) and an unreasonable determination of the facts under subsection
(d)(2). See § 2254(d). Recall, again, that the OCCA’s discussion of Johnson’s Batson
claim spanned only three substantive sentences:
We find that the trial court did not abuse its discretion when it found
that the State did not engage in systemic or specific discrimination.
Although the trial court erred to the detriment of the State when it
refused to permit the prosecutor to excuse an African-American juror
because it would have left the jury without any African-Americans, we
15
find that the trial court’s determination that the State’s explanations for
excusing each of the minority jurors were legitimate race-neutral
reasons is not clearly against the logic and effects of the facts presented.
As [Johnson] ultimately failed to establish purposeful discrimination on
the part of the State[,] no relief is required.
Johnson I, slip op. at 3 (emphasis added) (citations omitted). Clearly, in the second of
these three sentences, the OCCA expressly approved of the trial court’s
determination that the prosecutor’s “explanations for excusing each of the minority
jurors were legitimate race-neutral reasons.” Id. (emphases added).
But this conclusion is factually incorrect. The record plainly shows that the
trial court only determined that one explanation offered by the prosecutor for
excusing one minority juror was a legitimate race-neutral reason: it accepted that the
prosecutor struck Mr. Dickens because he had a Ph.D. The prosecutor did not offer
any reasons for his next set of strikes. Instead, the trial court provided its own reasons
for the strikes, speculating as to what the prosecutor’s reasons might have been. And
paradoxically, it did so after declaring that it would not “state [the prosecutor’s]
reasons.” R. vol. 3, 450. The trial court also later rejected the prosecutor’s proffered
reason for striking Ms. Williams. 8
Accordingly, Johnson has shown by clear and convincing evidence that the
OCCA “plainly misapprehend[ed] or misstate[d] the record” when it purported to
8
The trial court eventually concluded that it could have and perhaps should
have accepted the prosecutor’s reason for striking Ms. Williams. But such belated
recognition does not change what happened during jury selection, which was that the
trial court rejected the prosecutor’s proffered reason and did not allow the prosecutor
to strike Ms. Williams.
16
approve the trial court’s acceptance of the prosecutor’s multiple race-neutral reasons
for his strikes—in reality, the trial court accepted only one such reason from the
prosecutor and merely speculated as to the other reasons, which it supplied itself.
Smith, 824 F.3d at 1241 (alterations in original) (quoting Ryder, 810 F.3d at 739); see
also § 2254(d)(2), (e)(1). The OCCA then relied on this unreasonable factual
determination to reject Johnson’s Batson challenge and find no purposeful
discrimination. See Byrd v. Workman, 645 F.3d 1159, 1172 (10th Cir. 2011)
(emphasizing that “to receive relief under [§ 2254(d)(2)], the petitioner must show
that the state court’s adjudication of the claim ‘resulted in a decision that was based
on an unreasonable determination of the facts in light of the evidence presented’”
(quoting § 2254(d)(2))).
Moreover, to the extent that the OCCA considered the trial court’s sua sponte
speculation about potential race-neutral reasons as part of the Batson analysis, doing
so was an unreasonable application of Batson. The second step of Batson specifically
requires “[t]he prosecutor . . . [to] articulate a neutral explanation related to the
particular case to be tried.” 476 U.S. at 97–98 (emphasis added); see also Flowers v.
Mississippi, 139 S. Ct. 2228, 2243 (2019) (“As the Batson Court explained and as the
Court later reiterated, once a prima facie case of racial discrimination has been
established, the prosecutor must provide race-neutral reasons for the strikes.”
(emphasis added)). And Batson means what it says: the court must ask the prosecutor
to provide reasons, rather than merely speculating about what such reasons might be.
See Johnson v. California, 545 U.S. 162, 172 (2005) (“The inherent uncertainty
17
present in inquiries of discriminatory purpose counsels against engaging in needless
and imperfect speculation when a direct answer can be obtained by asking a simple
question.”); Flowers, 139 S. Ct. at 2244 (“The Court has explained that ‘the best
evidence of discriminatory intent often will be the demeanor of the attorney who
exercises the challenge.’” (quoting Snyder, 552 U.S. at 477)); Holloway v. Horn, 355
F.3d 707, 725 (3d Cir. 2004) (noting that speculation “does not aid our inquiry into
the reasons the prosecutor actually harbored” for peremptory strike).
Thus, when a trial court offers its own speculation as to the prosecutor’s
reasons for striking minority jurors, it essentially disregards its own core function
under Batson—to evaluate the reasons offered by the prosecutor, including the
prosecutor’s demeanor and other contextual information, in order to determine the
prosecutor’s true intent. See Flowers, 139 S. Ct. at 2243–44. And in that regard, it
matters not a whit that the trial court may have offered perfectly good reasons for
striking the minority jurors. As the Ninth Circuit explained in a factually analogous
case, “it does not matter that the prosecutor might have had good reasons to strike the
prospective jurors. What matters is the real reason they were stricken.” Paulino v.
Castro, 371 F.3d 1083, 1090 (9th Cir. 2004) (Paulino I); see also id. at 1089–90
(finding that trial court “clearly contravened” Batson when it “offered, sua sponte, its
speculation as to why the prosecutor may have struck the five potential jurors in
question”). Similarly, the Third Circuit faulted a state appellate court for
“conflat[ing] steps one and two of the Batson analysis in the sense that it identified
and then analyzed potential justifications for the challenged strikes—something that
18
should not occur until step two—in its step[-]one analysis of whether [petitioner] had
successfully established a prima facie case.” Hardcastle v. Horn, 368 F.3d 246, 256
(3d Cir. 2004); see also id. at 261 (noting “the Batson Court’s emphasis on the
subjective intent of the prosecutor”).
In line with these authorities, we hold that the OCCA’s reliance on the trial
court’s sua sponte speculation about the prosecutor’s reasons was an unreasonable
application of Batson to Johnson’s claim of discriminatory peremptory strikes. See
Brinson v. Vaughn, 398 F.3d 225, 233 (3d Cir. 2005) (finding that state court
unreasonably applied Batson to reject claim of discriminatory strikes where “the trial
judge did not follow the three-step process outlined in Batson,” including by “not
call[ing] upon the prosecutor to state his reasons for the contested strikes”). Simply
put, because Batson mandates that the prosecutor supply the race-neutral reasons, it
was not reasonable for the OCCA to accept the trial court’s speculation about those
reasons in lieu of the prosecutor’s actual reasons.
iii. The Batson Test
Because the OCCA based its decision on an unreasonable factual finding and
also unreasonably applied Batson, we review Johnson’s Batson claim de novo,
without deferring to the OCCA. See Milton v. Miller, 744 F.3d 660, 670–71 (10th
Cir. 2014) (explaining that if petitioner satisfies § 2254(d)(1), federal habeas court
reviews petitioner’s claim de novo, “rather than deferring to the OCCA’s resolution
of that claim”); Byrd, 645 F.3d at 1172 (explaining that if petitioner satisfies
§ 2254(d)(2), we review claim de novo and without AEDPA deference).
19
Under the first step of Batson, Johnson “must make out a prima facie case ‘by
showing that the totality of the relevant facts gives rise to an inference of
discriminatory purpose.’” Johnson, 545 U.S. at 168 (quoting Batson, 476 U.S. at 93–
94). This step is not “so onerous that a defendant would have to persuade the judge—
on the basis of all the facts, some of which are impossible for the defendant to know
with certainty—that the challenge was more likely than not the product of purposeful
discrimination.” Id. at 170. On the contrary, “a defendant satisfies the requirements
of Batson’s first step by producing evidence sufficient to permit the trial judge to
draw an inference that discrimination has occurred.” Id. And “the methods by which
prima facie cases c[an] be proved” are “permissive.” Id. at 169 n.5.
Here, to establish an inference of discrimination, Johnson primarily alleges a
pattern of discrimination in which the prosecutor used five of his first six peremptory
strikes to excuse minority jurors. 9 And a prosecutor’s pattern of strikes against
minority jurors is enough, on its own, to establish a prima facie case of
discrimination. See Batson, 476 U.S. at 97; Paulino I, 371 F.3d at 1092 (finding that
“the excusal of five out of six black jurors by means of five out of six peremptories”
was sufficient “pattern of strikes t[o] raise[] a plausible inference of discrimination”);
9
Johnson further supports his position by noting the prosecutor’s later failed
attempt to remove Ms. Williams, the last remaining African American, from the jury.
Although this attempt might support an inference of discrimination, we do not
consider it here because we are concerned with the facts as they existed at the time of
Johnson’s objection and before the prosecutor’s attempt to strike Ms. Williams. See
Paulino I, 371 F.3d at 1091 (evaluating prima facie case of discrimination by
“looking at the pattern of strikes only at the time of [the] objection”).
20
Brinson, 398 F.3d at 234–35 (concluding that “[t]he pattern of strikes alleged by the
defense is alone sufficient to establish a prima facie case” when prosecutor “used 13
of 14 strikes against African Americans”); Holloway, 355 F.3d at 722 (finding prima
facie case established when prosecutor used 11 of 12 strikes against African
Americans).
Nevertheless, the State contends that there is no inference of discrimination
here because Johnson “did not even make a record as to the races” of each of the
jurors at issue. Aplee. Br. 21. But as Johnson replies, neither the trial court nor the
prosecutor objected to defense counsel’s representation that the prosecutor had used
five of six strikes against minorities. On the contrary, the trial court implicitly
accepted that representation by responding with its own race-neutral reasons for why
the prosecutor might have struck three of the jurors at issue. Moreover, as the State
acknowledges, “racial identity between the defendant and the excused prospective
juror is not necessary for a Batson claim.” Id. (emphasis omitted); see also Powers v.
Ohio, 499 U.S. 400, 416 (1991) (holding that Batson does not require racial identity
between defendant and prospective juror). Thus, the absence of a record as to the
specific racial makeup of the five minority jurors is not fatal to Johnson’s prima facie
case of discrimination.
The State further argues that Johnson fails to establish a prima facie case of
discrimination because “there were obvious reasons for . . . dismissal that prevented a
prima facie showing,” including that two of the excused jurors had difficulty with
English and that one did not want to be a juror. Aplee. Br. 21. But even if we can
21
consider such allegedly obvious reasons in assessing Johnson’s prima facie case,
those reasons do not significantly undermine Johnson’s prima facie case as they did
in the cases the State relies on. For example, in Johnson v. Campbell, the Ninth
Circuit found no prima facie showing of discrimination based in part on “an obvious
neutral reason for the challenge.” 92 F.3d 951, 953 (9th Cir. 1996). But that “obvious
neutral reason” played a significant role in undoing any inference of discrimination
because of the weakness of the prima facie case to begin with: the Batson challenge
involved only a single juror allegedly struck because of his sexual orientation. Id.Here, by contrast, Johnson has pointed to a pattern of striking five of six minority
prospective jurors. 10 Accordingly, we reject the State’s arguments and conclude that
the clear pattern of strikes against five of six minority jurors establishes an inference
of discrimination.
Thus, Johnson has made a prima facie showing of racial discrimination under
Batson. See 476 U.S. at 97. Although such a showing “does not necessarily establish
racial discrimination,” it “is more than sufficient to require a trial court to proceed to
step two of the Batson procedure.” Brinson, 398 F.3d at 235. Yet the trial court did
not do so, “relying instead on its own speculation as to what might have been the
10
The State also cites Capers v. Singletary, 989 F.2d 442 (11th Cir. 1993), and
United States v. Dennis, 804 F.2d 1208 (11th Cir. 1986) (per curiam). We find
Capers unpersuasive here because it applied Swain v. Alabama, 380 U.S. 202 (1965),
which Batson overruled. See Capers, 989 F.2d at 444 & n.2. And the court in Dennis
did not, contrary to the State’s assertion, consider any obvious neutral reasons at the
prima facie stage. See 804 F.2d at 1211. It therefore does not support the State’s
argument on this point.
22
prosecutor’s reasons.” Paulino I, 371 F.3d at 1092. We therefore conclude that the
trial court erred.
iv. Remedy
But this error does not automatically entitle Johnson to habeas relief. Because
no court later held an evidentiary hearing, the State has never presented evidence of
the prosecutor’s actual, nondiscriminatory reasons for striking the five minority
jurors. See id. In this circumstance, it is not “appropriate to take the extraordinary
step of granting habeas corpus relief without first providing the [S]tate with a hearing
at which it could offer evidence in support of the challenged strikes.” Hardcastle,
368 F.3d at 261. Instead, the better path is to remand for an evidentiary hearing to
provide the State with “a chance to present evidence in support of its peremptory
strikes.” Id. at 250; see also Madison v. Comm’r, Ala. Dep’t of Corr., 677 F.3d 1333,
1339 (11th Cir. 2012) (Madison I) (finding unreasonable application of Batson and
prima facie case of discrimination; “remand[ing] the case for the district court to
complete the final two steps of the Batson proceedings”).
We therefore reverse the district court’s ruling on Johnson’s Batson claim and
remand to the district court for a Batson reconstruction hearing. See Paulino v.
Harrison, 542 F.3d 692, 700 (9th Cir. 2008) (Paulino II); cf. United States v. Chalan,
812 F.2d 1302, 1314 (10th Cir. 1987) (remanding for district court to conduct hearing
on prosecutor’s reasons for strike where defendant was convicted pre-Batson such
that “neither the trial court nor the parties were aware of the standards to be used in
evaluating the . . . proffered reasons for striking [the juror]”). A Batson
23
reconstruction hearing is “an evidentiary hearing that takes place some[]time after the
trial, where the prosecutor testifies to [his or] her actual reasons for striking the
venire[ ]members in question, or the State presents circumstantial evidence of those
reasons.” Paulino II, 542 F.2d at 1314; see also Madison v. Comm’r, Ala. Dep’t of
Corr., 761 F.3d 1240, 1249–50 (11th Cir. 2014) (Madison II) (explaining that Batson
reconstruction hearing is proper and not contrary to anything in Cullen v. Pinholster,
563 U.S. 170 (2011), “or any other principle of habeas corpus”).
Before conducting such a hearing, the district court should consider whether
the passage of over eight years since Johnson’s trial or any other circumstances have
made such an inquiry “impossible or unsatisfactory.” Jordan v. Lefevre, 206 F.3d
196, 202 (2d Cir. 2000). If the district court concludes that a Batson reconstruction
hearing is impossible or unsatisfactory, it must grant habeas relief in the form of an
order that Johnson be released from custody unless the State grants him a new trial
within 120 days from the entry of the district court’s order. See id. (noting that if
district court decides Batson reconstruction hearing is not possible, it should “order
that the state grant [petitioner] a new trial”); Miller-El II, 545 U.S. at 266 (granting
relief on Batson claim and “remand[ing] for entry of judgment for petitioner together
with orders of appropriate relief”), decision on remand, 142 F. App’x 802, 803 (5th
Cir. 2005) (unpublished) (remanding to district court to enter order directing
petitioner’s release “from custody unless the State grants [him] a new trial within 120
days from the date of the entry of the district court’s order”).
24
If the district court determines that a Batson reconstruction hearing will not be
impossible or unsatisfactory, it shall conduct one, thereby providing the State with an
opportunity to present evidence as to the prosecutor’s race-neutral reasons for the
challenged strikes. See Brinson, 398 F.3d at 235; Paulino I, 371 F.3d at 1092;
Hardcastle, 368 F.3d at 250; Jordan, 206 F.3d at 202; Madison I, 677 F.3d at 1339.
The district court should then make findings at the third step of Batson as to whether
the strikes were based on race. See Brinson, 398 F.3d at 235; Paulino II, 542 F.3d at
702 (holding that even if prosecutor fails to come forward with step-two reason, trial
court must complete step three). If the district court concludes that Johnson has not
met his ultimate burden of showing purposeful discrimination, it should deny
Johnson’s claim. But if Johnson can show purposeful discrimination, the district
court should grant habeas relief as described above, ordering Johnson released unless
retried within a limited period of time. 11
11
Although the parties do not discuss as much, there appears to be some
dispute about where a Batson reconstruction hearing can or should take place. The
Second Circuit, without explanation, has said that the district court may either
conduct the hearing itself or remand the case to state court via a conditional writ to
hold the hearing. See, e.g., Galarza v. Keane, 252 F.3d 630, 640–41 (2d Cir. 2001);
Tankleff v. Senkowski, 135 F.3d 235, 250 (2d Cir. 1998). But at this point, Johnson
has established only a prima facie case of discrimination. In this situation, we cannot
grant a writ of habeas corpus, even conditionally, “because we cannot hold as a
matter of law, on the undeveloped record in this case, that [Johnson] is entitled to
habeas relief.” Keller v. Petsock, 853 F.2d 1122, 1129–30 (3d Cir. 1988); see also
§ 2254(a) (providing that state prisoner may obtain writ in federal court “only on the
ground that he [or she] is in custody in violation of the Constitution or laws or
treaties of the United States”); Billiot v. Puckett, 135 F.3d 311, 316 n.5 (5th Cir.
1998) (explaining “that a federal habeas court cannot ‘remand’ a case to the state
courts”; it can only grant writ of habeas corpus, conditionally or otherwise). As such,
we agree with the Third Circuit that in these circumstances, § 2254 does not
25
II. Gruesome Evidence
Johnson next argues that the introduction of gruesome evidence about the
murder and crime scene prejudiced him and resulted in a fundamentally unfair trial.
At trial, Johnson unsuccessfully objected to the introduction of this evidence, which
included: (1) testimony from a witness who explained that she used a jacket to stem
the blood from Sweeney’s head while waiting for the paramedics to arrive, as well as
a photograph of the jacket; (2) testimony describing the crime scene, including the
statement that “there was blood everywhere, and . . . some of [Sweeney’s] brains
were on the floor,” R. vol. 3, 548; (3) testimony from a paramedic describing the
wound as involving “a lot of hair and blood, [and] also gray matter or brains” and
further stating that “there were pieces of both those things, blood clots, gray matter
authorize us “to remand a habeas corpus petition to a state court for an evidentiary
hearing.” Hardcastle, 368 F.3d at 261 (quoting Keller, 853 F.2d at 1129). We further
agree that “even if we were able to remand directly to the state court, neither this
[c]ourt nor the Supreme Court has held ‘that the state courts should, after having
foregone the opportunity to hold an evidentiary hearing and resolve the issue, be
given another opportunity to do so.’” Hardcastle, 368 F.3d at 261 (quoting Keller,
853 F.2d at 1129); see also Rose v. Lee, 252 F.3d 676, 688 & n.11, 689–91 (4th Cir.
2001) (finding state court’s adjudication contrary to clearly established federal law
but “disagree[ing] with the district court’s conclusion that a federal court lacks
authority to conduct an independent review of the claim” and rejecting district court’s
remand of claim to state court). Indeed, in at least one case, even the Second Circuit
remanded for a Batson reconstruction hearing in the district court without mentioning
the option of remanding the case to state court. See Jordan, 206 F.3d at 202.
Moreover, other circuits have simply remanded for Batson reconstruction hearings at
the district court as a matter of course, without discussing whether to return the case
to state court. See, e.g., Paulino I, 371 F.3d at 1092; Madison I, 677 F.3d at 1339;
Harris v. Haeberlin, 752 F.3d 1054, 1055 (6th Cir. 2014); Holder v. Welborn, 60
F.3d 383, 385 (7th Cir. 1995). Accordingly, we remand to the district court, not the
state court.
26
on the floor, all consistent with a high-velocity type wound,” id. at 589; and
(4) various photographs of the crime scene, including “an area of blood” and “blood
clots and some gray matter seen in [an] area on the floor,” id. at 593; “the interior
side of the wall [showing] what appears to be human tissues and hair,” id. at 636–37;
and a telephone and a power strip with red stains that appeared to be blood.
On direct appeal, Johnson argued that the trial court erred in admitting this
evidence because it was more prejudicial than probative and violated his right to a
fair trial under the Sixth Amendment and to due process under the Fourteenth
Amendment. The OCCA did not explicitly address the constitutional aspect of this
argument and rejected the claim overall in a single sentence: “[T]he trial court did
not abuse its discretion when it admitted the testimony and photographs depicting the
crime scene and the nature, extent[,] and location of the victim’s injury.” Johnson I,
slip op. at 9. In support, the OCCA cited state cases finding no abuse of discretion in
admitting crime-scene evidence in similar circumstances. Id.
In his habeas petition, Johnson reasserted his constitutional claim that the
admission of this evidence “resulted in a fundamentally unfair” trial. R. vol. 1, 81.
Specifically, Johnson pointed out both that the State refused defense counsel’s offer
to stipulate to the manner of death and that it was undisputed Johnson did not shoot
Sweeney. Johnson therefore asserted that this “evidence was unfairly prejudicial,
designed by the State to appeal to the emotions of the jury, and resulted in a
fundamentally unfair adjudicatory process.” Id.
27
The district court rejected Johnson’s claim. It acknowledged that when
“habeas petitioners challenge the admission of [graphic] evidence as violative of the
Constitution,” courts must consider “whether the admission of evidence so infected
the trial with unfairness as to [violate] due process.” App. 44–45 (alterations in
original) (quoting Spears v. Mullin, 343 F.3d 1215, 1226 (10th Cir. 2003)); see also
Smallwood v. Gibson, 191 F.3d 1257, 1275 (10th Cir. 1999) (“The essence of our
inquiry . . . is whether the admission of the photographs rendered the proceedings
fundamentally unfair.”). And the district court found no unfairness rising to level of a
due-process violation here because the evidence described and corroborated the
nature of the murder and the State presented strong evidence of Johnson’s guilt.
On appeal, Johnson reiterates the argument he made below. In response, the
State first argues that this court should decline to consider whether the OCCA’s
decision was contrary to or an unreasonable application of clearly established federal
law because, as a threshold matter, there is no clearly established federal law
governing “the admission of allegedly gruesome testimony and photographs.” Aplee.
Br. 31; see also House, 527 F.3d at 1018. Specifically, the State contends that
Johnson’s citation to Darden v. Wainwright, 477 U.S. 168 (1986), “is unconvincing”
and fails to provide clearly established federal law. Aplee. Br. 32. In Darden, the
Supreme Court considered “whether the prosecutors’ [admittedly improper]
comments ‘so infected the trial with unfairness as to make the resulting conviction a
denial of due process.’” 477 U.S. at 181 (quoting Donnelly v. DeChristoforo, 416
U.S. 637, 643 (1974)). And the State insists that because Darden involved
28
prosecutorial misconduct, rather than evidentiary errors, it “is not an on-point case,
and it far from establishes clearly established federal law in regard to this issue.”
Aplee. Br. 32.
In support, the State cites Estelle v. McGuire, 502 U.S. 62 (1991). There,
having found the challenged evidence to be relevant, the Court stated that it “need
not explore further the apparent assumption of the Court of Appeals that it is a
violation of the due process guaranteed by the Fourteenth Amendment for evidence
that is not relevant to be received in a criminal trial.” Estelle, 502 U.S. at 70(emphases added). But importantly, at the outset of its discussion of this claim, the
Court described its overall inquiry as “whether the admission of the evidence violated
[petitioner’s] federal constitutional rights.” Id. at 68. And Johnson raised the same
inquiry in his habeas petition: Did the admission of gruesome crime-scene evidence
violate his constitutional right to due process?
Indeed, the Supreme Court has expressly considered whether “the introduction
of . . . evidence . . . violated the Due Process Clause of the Fourteenth Amendment”
by using the “analytical framework” provided by the prosecutorial-misconduct
inquiry in Donnelly (which Darden followed). Romano v. Oklahoma, 512 U.S. 1, 12
(1994). We have done the same, even after House’s holding clarifying the role of
clearly established federal law under AEDPA. Specifically, in Hooks v. Workman, we
reached the merits of the petitioner’s due-process claim alleging admission of
prejudicial and irrelevant evidence without questioning the existence of clearly
established federal law. 689 F.3d 1148, 1180 (10th Cir. 2012); see also id.
29(explaining that petitioner “is entitled to relief only if an alleged state-law error . . .
‘was so grossly prejudicial that it fatally infected the trial and denied the fundamental
fairness that is the essence of due process’” (quoting Revilla v. Gibson, 283 F.3d
1203, 1212 (10th Cir. 2002))). And we did so despite noting the absence of clearly
established federal law supporting several of the petitioner’s other claims. See id. at
1170 (finding no clearly established law requiring OCCA “to account for and apply”
particular statistical theory to evidence of petitioner’s IQ score), id. at 1175 (noting
no clearly established federal law for claim arising from removal of juror for cause).
Thus, we reject the State’s argument that Johnson’s claim fails for want of clearly
established federal law.
Turning to the merits, Johnson argues the OCCA unreasonably concluded that
the admission of the crime-scene evidence did not render the proceedings
fundamentally unfair. See Smallwood, 191 F.3d at 1275. “[B]ecause a fundamental-
fairness analysis is not subject to clearly definable legal elements, when engaged in
such an endeavor a federal court must tread gingerly and exercise considerable self-
restraint.” Spears, 343 F.3d at 1226 (alteration in original) (quoting Duckett v.
Mullin, 306 F.3d 982, 999 (10th Cir. 2002)). At the same time, “the fundamental-
fairness inquiry requires us to look at the effect of the admission of the [evidence]
within the context of the entire” trial. Id. Doing so requires weighing the relevance of
the challenged evidence against its prejudicial value, in light of the other evidence
against the petitioner. See id.30
The OCCA did not explain what the evidence at issue here tended to prove or
how its probative value outweighed its prejudicial impact. See Johnson I, slip op. at
9. The district court, for its part, concluded that “[t]he challenged evidence . . .
corroborated testimony that the victim sustained a high[-]velocity gunshot wound
when a shooter entered his office[] and was discovered with his head against the
window.” App. 45.
And indeed, to obtain the murder conviction, the State had to show (1) the
unlawful death of a human, (2) caused by the defendant, (3) with malice
aforethought. See Okla. Stat. tit. 21, § 701.7(A). That Johnson was indisputably not
the shooter does not change what the State had to prove because an individual who
aids and abets in the commission of a crime is “equally culpable with other
princip[als].” Conover v. State, 933 P.2d 904, 910 (Okla. Crim. App. 1997),
abrogated on other grounds by Bosse v. Oklahoma, 137 S. Ct. 1 (2016) (per curiam);
see also Glossip v. State, 157 P.3d 143, 151 (Okla. Crim. App. 2007) (explaining that
aiding and abetting includes “advis[ing] or encourag[ing] the commission of the
crime” (quoting Spears v. State, 900 P.2d 431, 438 (Okla. Crim. App. 1995))); Okla.
Stat. tit. 21, § 172. Thus, to prove that Johnson was guilty of murder, the State had to
establish not only Johnson’s involvement in the murder plot, but also the fact of the
murder itself.
At least some of the evidence Johnson complains of was relevant to proving
the murder, such as the testimony from the paramedic describing the victim’s head
wound and the crime scene. Further, at least some of the photographs were relevant
31
to corroborate the paramedic’s testimony. Thus, this case is similar to Thornburg v.
Mullin, where the petitioner challenged the admission of “six photographs depicting
the charred remains of the victims’ bodies” on the basis “that he had no plans to
dispute the manner of death.” 422 F.3d 1113, 1128 (10th Cir. 2005). We declined to
grant habeas relief, noting that “[e]ven if [the defendant] did not dispute the manner
of death, the [S]tate still bore the burden to convince the jury that its witnesses . . .
provided an accurate account of events.” Id. at 1129.
Additionally, this case is not like Spears, where we found fundamental
unfairness and granted habeas relief based on the admission at sentencing in a capital
trial of photographs depicting the victim with 50 to 60 stab wounds. 343 F.3d at1227–28. There, the photographs were not probative to prove conscious physical
suffering because uncontradicted evidence showed that the victim died or lost
consciousness early in the beating, so “there was no logical connection between the
photographs and the proposition they were offered to prove.” Thornburg, 422 F.3d at
1129 (distinguishing Spears). Here, by contrast, there was a connection between the
crime-scene evidence and the murder charge against Johnson.
Moreover, even if some of the challenged evidence was cumulative, that
accumulation does not rise to the level of rendering Johnson’s trial fundamentally
unfair in violation of due process when considered in light of the strong evidence of
Johnson’s guilt. Where evidence against a defendant is strong, the likelihood that
erroneously admitted evidence will have an unduly prejudicial impact is lessened.
Compare Wilson v. Sirmons, 536 F.3d 1064, 1115 (10th Cir. 2008) (noting that “the
32
evidence at the guilt phase was particularly strong” before “conclud[ing] that the
admission [of relevant but gruesome photographs] did not make the proceeding
fundamentally unfair”), with Spears, 343 F.3d at 1228 (granting habeas relief based
on prejudicial photographs in part because, in addition to having little to no probative
value, they “were the primary aggravating evidence specifically presented at the
second stage” and “constitute[d] a major part of the State’s second-stage case”).
Here, the district court summarized the evidence against Johnson as follows:
Aziz—who ordered the murder—testified that [Fred] accepted the job
via his brother [Allen] and set a price of $10,000. According to [Allen],
he met [Fred] and [Johnson] at his (Allen’s) home in the days before the
murder. Allen testified Fred and [Johnson] left the house to travel to
Muskogee, and Aziz similarly recalled hearing that Fred was going to
steal a getaway van from Muskogee. Charles Billingsley, who was not a
defendant in the case, testified that he helped [Johnson] take a white
Ford van from the detail shop next to Billingsley’s business. On the
morning of the murder, [Allen] recalled that [Johnson] came to his
home. According to [Allen], [Johnson] wanted him to ask Aziz for the
money so the passenger riding with [Johnson] (Terrico Bethel) could
“get the murder done.” That same day, Aziz recalled [Johnson]
knocking on the window of his business and saying[,] “watch the news.”
[Johnson] never returned the white van, but Billingsley recalls seeing it
on television in connection with the murder. [Allen] testified that after
the murder, he collected the first $5,000 from Aziz and gave it to
[Johnson]. These facts are supported by phone records showing various
calls between the co[]conspirators in the time leading up to the murder.
App. 43 (citations omitted). This strong evidence of Johnson’s involvement in
Sweeney’s murder lessens the impact of possible prejudice flowing from the
admission of crime-scene evidence. Thornburg, 422 F.3d at 1129. Thus, “[r]eviewing
the record under AEDPA’s constraints,” in light of the probative value of the
challenged evidence and the strong evidence of Johnson’s guilt, we cannot “conclude
33
that the OCCA acted contrary to or unreasonably applied federal law in concluding
that [its] admission was proper.” Id.III. Juror Misconduct
Next, Johnson argues that the district court erred in denying his juror-
misconduct claim. Johnson first raised this claim in a motion for a new trial, which
he filed after one of the jurors, Staci Petersen, contacted defense counsel and
“advised that she felt forced, intimidated[,] and threatened by the acts of the other
jurors into voting guilty.” R. vol. 1, 407. Johnson submitted an affidavit from
Petersen along with his motion for a new trial. In that affidavit, Peterson asserted that
she voted guilty in part because “[j]uror Faith Williams said, ‘do you really want
[Johnson] to be walking on the streets? He’s got other charges and won’t be getting
out of jail.’” Id. at 414–15 (emphasis added). Petersen further declared that the other
jurors wrongly informed her a guilty vote on the conspiracy charge necessitated a
guilty vote on the murder charge. She also reported that she saw one juror sleeping
through the trial.
Johnson attempted to corroborate Petersen’s statements with an affidavit from
another juror, Tony Perez, who confirmed Petersen’s intimidation allegations and
said that he, too, believed that a guilty vote on the conspiracy charge necessitated a
guilty vote on the murder charge. Petersen and Perez also expressed confusion
regarding the need for a unanimous decision. But Perez did not mention the comment
about Johnson’s other charges.
34
In addition to her affidavit, Peterson wrote a letter to the trial court in which
she reported that she was ridiculed by the other jurors, pressured into voting with the
other jurors to convict, and confused about having to come to a unanimous decision.
She further said that she believed the jury convicted Johnson because he was African
American. This letter did not mention Williams’s statement about Johnson’s other
charges.
Moving for a new trial, Johnson asserted that there was nothing mentioned at
trial about other charges pending against him and therefore argued that “the jury
panel was tainted by outside information.” Id. at 411. The trial court denied the
motion without a hearing, stating that “[j]urors cannot impeach their verdicts after
they have been discharged.” Id. at 428.
On direct appeal, Johnson argued that this juror misconduct and the trial
court’s refusal to conduct an evidentiary hearing deprived him of a fair trial. The
OCCA rejected these claims. Johnson I, slip op. at 13. First, it noted that an
evidentiary hearing was not required because Johnson filed his motion outside the
ten-day window set forth in Oklahoma Rule of Criminal Procedure 2.1(A)(2). Id. And
it further found no abuse of discretion in the trial court’s decision not to conduct a
hearing. Id. Second, the OCCA determined that “[t]he trial court properly refused to
receive the juror’s post[]verdict letter and, later, the two jurors’ affidavits asserting
allegations concerning the motives, methods, and mental processes by which the jury
reached its verdicts because jurors are not permitted to impeach their verdicts.” Id. at
35
14. And Johnson “otherwise[] failed to establish juror misconduct by clear and
convincing evidence.” Id.
In his habeas petition, Johnson argued that the OCCA’s rulings were “an
unreasonable application of Remmer [v. United States, 347 U.S. 227 (1954)].” R. vol.
1, 84. The district court disagreed, explaining that “like Oklahoma law, federal law
‘prohibit[s] the admission of juror testimony to impeach a jury verdict.’” App. 46
(alteration in original) (quoting Tanner v. United States, 483 U.S. 107, 117 (1987));
see also Okla. Stat. tit. 12, § 2606(B); Fed. R. Evid. 606(b). And it noted that
although there was an exception to the no-impeachment rule “where external,
prejudicial information is improperly brought to the jury’s attention,” such exception
was not available here, where the reference to other charges was vague and where
Petersen did not mention the other charges in her letter to the trial court. App. 46.
On appeal, Johnson again argues that the OCCA’s decision is an unreasonable
application of Remmer. But Johnson misstates Remmer’s holding. Without a pinpoint
citation, Johnson suggests that Remmer stands for the proposition “that no extraneous
material is permitted in the jury room during deliberations.” Aplt. Br. 43. Yet the
Supreme Court made no such statement in Remmer, which did not involve the
introduction of extraneous material in the jury room. Instead, it involved private
communications with a juror: (1) someone outside of the jury suggested to a juror
during trial “that he could profit by bringing in a verdict favorable to petitioner”; and
(2) the trial court, the prosecutor, and the FBI investigated this potential bribe
situation without informing or including the defense. 347 U.S. at 228; see also
36
Tanner, 483 U.S. at 117 (citing cases where jurors were allowed to testify about
“influence by outsiders” and describing Remmer as case involving “bribe offered to
juror”). Accordingly, we reject the argument that the OCCA unreasonably applied
Remmer when denying Johnson’s juror-misconduct claim.
Nevertheless, Johnson is generally correct that an exception to the no-
impeachment rule exists, such that an evidentiary hearing—including juror
testimony—is required “where extrinsic influence or relationships have tainted the
deliberations.” Tanner, 483 U.S. at 120; see also Fed. R. Evid. 606(b)(2)(A)
(allowing juror testimony when “extraneous prejudicial information was improperly
brought to the jury’s attention”). But as the State persuasively argues, the OCCA did
not unreasonably apply any such rule in affirming both the refusal to conduct an
evidentiary hearing and the denial of Johnson’s motion for a new trial.
As an initial matter, everything included in Petersen’s letter to the trial court
and almost everything included in the jurors’ affidavits is inadmissible juror-
impeachment evidence: Petersen and Perez primarily describe Petersen’s mental state
as a result of being intimidated by the other jurors and their misunderstandings about
the relationship of the two counts and the requirement of unanimity. See Warger v.
Shauers, 574 U.S. 40, 51 (2014) (explaining that evidence does not fall into
exception for extraneous material if it is part of “the general body of experiences that
jurors are understood to bring with them to the jury room”); Tanner, 483 U.S. at 118(describing jurors’ failure to understand instructions or mental incompetence as
internal matters about which jurors may not testify); Matthews v. Workman, 577 F.3d
371175, 1181 (10th Cir. 2009) (noting Oklahoma evidentiary rule that “prohibits jurors
from testifying ‘as to the effect of anything upon his or another juror’s mind or
emotions as influencing him to assent to or dissent from the verdict’” (quoting
Matthews v. State, 45 P.3d 907, 914 (Okla. Crim. App. 2002))). And “[t]here is
nothing in clearly established Supreme Court law requiring states to take cognizance
of evidence excludable under such common evidentiary rules.” Matthews v.
Workman, 577 F.3d at 1182. Further, “in light of numerous other protections
designed to secure an impartial and competent jury . . . the Constitution does not
require a post[]verdict hearing in which such evidence is admissible.” Id. at 1183.
Critically, the inclusion of the reference to Johnson’s “other charges” does not
affect the inadmissibility of this juror-misconduct evidence. R. vol. 1, 414. Such a
statement—where the trial included no evidence of Johnson having other charges—
arguably falls outside the no-impeachment rule and into its exception for extrinsic
influence. See Warger, 574 U.S. at 51 (explaining that “information is deemed
‘extraneous’ if it derives from a source ‘external’ to the jury,” including “publicity
and information related specifically to the case the jurors are meant to decide”
(quoting Tanner, 483 U.S. at 117)). But we agree with the district court that this
single reference to other charges “is too vague to conclude extra-record facts
prejudiced the outcome at trial” or to trigger the need for an evidentiary hearing.
App. 47.
We reach this conclusion because when considering whether the jury
considered extraneous material, “the inquiry is not whether the jurors . . . discussed
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any matters not of record, but whether they discussed specific extra-record facts
relating to the defendant, and if they did, whether there was a significant possibility
that the defendant was prejudiced thereby.” Marquez v. City of Albuquerque, 399
F.3d 1216, 1223 (10th Cir. 2005) (emphasis added) (quoting United States ex rel.
Owen v. McMann, 435 F.2d 813, 818 n.5 (2d Cir. 1970)). And as to conducting a
hearing, a court confronted with a juror-misconduct claim “‘has wide discretion in
deciding how to proceed’ and appropriately denies a hearing when a party presents
‘only thin allegations of jury misconduct.’” United States v. Brooks, 569 F.3d 1284,
1288 (10th Cir. 2009) (quoting United States v. Easter, 981 F.2d 1549, 1553 (10th
Cir. 1992)). Thus, we conclude that the OCCA did not unreasonably apply any
clearly established federal law when it affirmed the trial court’s decisions to not
conduct an evidentiary hearing and to deny Johnson’s motion for a new trial. 12
12
Petersen’s letter to the trial court also alleged that the jury voted to convict
Johnson because he is African American. For the first time in his reply brief, Johnson
argues that this allegation should have triggered an evidentiary hearing and
substantive relief. See Peña-Rodriguez v. Colorado, 137 S. Ct. 855, 869 (2017)
(holding that “where a juror makes a clear statement that indicates he or she relied on
racial stereotypes or animus to convict a criminal defendant, the Sixth Amendment
requires that the no-impeachment rule give way” so that trial court can “consider the
evidence of the juror’s statement and any resulting denial of the jury[-]trial
guarantee”). We decline to consider Johnson’s argument because he raises it for the
first time in his reply brief. See United States v. Leffler, 942 F.3d 1192, 1197 (10th
Cir. 2019). Moreover, Peña-Rodriguez was not decided until well after Johnson’s
conviction became final; it therefore does not provide clearly established federal law
applicable in Johnson’s habeas proceeding. See House, 527 F.3d at 1015 (stating that
“AEDPA ‘requires federal habeas courts to deny relief that is contingent upon a rule
of law not clearly established at the time the state[-]court conviction became final’”
(emphasis added) (quoting Williams, 529 U.S. at 380)).
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IV. Cumulative Error
Last, Johnson argues that the district court erred in denying relief on his
cumulative-error claim. He first raised a cumulative-error claim on direct appeal,
contending that various errors accumulated to deprive him of a fair trial in violation
of his due-process rights. The OCCA rejected this claim. Johnson I, slip op. at 18.
In his habeas petition, Johnson argued again that cumulative error rendered his
trial fundamentally unfair. The district court rejected this claim because cumulative
error only applies “where there are two or more actual errors,” and the district court
found none. App. 47 (quoting Moore v. Reynolds, 153 F.3d 1086, 1113 (10th Cir.
1998)).
On appeal, Johnson first argues that AEDPA deference does not apply because
the OCCA did not adjudicate his cumulative-error claim on the merits. See Harris v.
Poppell, 411 F.3d 1189, 1195 (10th Cir. 2005). In support, Johnson points out that
although he asserted a cumulative-error claim related to his trial, the OCCA ruled
only that Johnson “was not denied a fair sentencing trial by cumulative error.”
Johnson I, slip op. at 18 (emphasis added). The State disputes this reading, arguing
that “the reference to a ‘sentencing trial’ was merely a typographical error” and
pointing out that the OCCA cited in support cases involving claims of cumulative
trial error. Aplee. Br. 51 (quoting Johnson I, slip op. at 18). We need not resolve this
dispute because Johnson’s cumulative-error claim fails even under de novo review.
In arguing that cumulative constitutional errors in his trial deprived him of his
due-process right to a fair trial, Johnson seeks to accumulate all six of the substantive
40
errors alleged in his habeas petition. But as he acknowledges and as the State argues,
Johnson cannot accumulate errors for which he does not have a COA. See Young v.
Sirmons, 551 F.3d 942, 972–73 (10th Cir. 2008). Accordingly, our analysis of
Johnson’s cumulative-error claim is limited to the three substantive claims for which
he has a COA. And because Johnson has not shown more than one error, he is not
entitled to habeas relief on his cumulative-error claim. See Ellis v. Raemisch, 872
F.3d 1064, 1090 (10th Cir. 2017) (“[T]here must be more than one error to conduct
cumulative-error analysis.”).
Conclusion
For the reasons explained above, we affirm the district court’s denial of habeas
relief on Johnson’s gruesome-evidence, juror-misconduct, and cumulative-error
claims. But we reverse and remand on Johnson’s Batson claim. The OCCA relied on
an unreasonable factual determination when it reviewed and approved of the
prosecutor’s race-neutral reasons for the challenged peremptory strikes of racial
minorities when in fact, the prosecutor offered only one such reason and the trial
court offered the others. It further unreasonably applied Batson by substituting the
trial court’s speculation for the prosecutor’s race-neutral reasons. Reviewing
Johnson’s Batson claim de novo, we conclude that Johnson established a prima facie
case of discrimination at Batson step one. But the trial court erred at Batson step two
by failing to request the prosecutor’s race neutral reasons and substituting its own
speculation for those reasons. We therefore reverse the district court’s order denying
relief on that claim and remand as previously instructed for the district court to either
41
conduct a Batson reconstruction hearing or to determine that such a hearing would be
impossible or unsatisfactory.
42