Date: 09-15-2015

Case Style: Scott Eizember v. Anita Trammell

Case Number: 14-6012

Judge: Gorsuch

Court: United States Court of Appeals for the Tenth Circuit on appeal from the Western District of Oklahoma (Oklahoma County)

Plaintiff's Attorney: Jennifer Dickson, Assistant Attorney General (E. Scott Pruitt, Attorney General of
Oklahoma, and Seth S. Branham, Assistant Attorney General, on the brief) of the
Oklahoma Office of the Attorney General, Oklahoma City, Oklahoma, for
Respondent-Appellee.

Defendant's Attorney: Randall T. Coyne, University of Oklahoma College of Law, Norman, Oklahoma
(Edna Asper Elkouri and Frank Elkouri, Professor of Law, and Mark Henricksen
of Henricksen & Henricksen Lawyers, Inc., Oklahoma City, Oklahoma, with him
on the briefs), for Petitioner-Appellant.

Description: Scott Eizember left a Tulsa jail intent on settling a score. He was upset
with his ex-girlfriend, Kathy Biggs, because she had tipped off authorities about
his violation of a protective order. So just as soon as he could he made for her
hometown of Depew. Once there, he noticed an elderly couple leaving a house
across the street from Ms. Biggs’s home. Mr. Eizember decided the place would
make an ideal lookout for Ms. Biggs and, after the couple left, he broke in. But
A.J. and Patsy Cantrell didn’t stay away as long as Mr. Eizember hoped, and
when they returned home they found him pointing their own shotgun at them. A
tense exchange followed but eventually things calmed down enough that Mr.
Eizember set the gun down. It was then Mr. Cantrell saw his opportunity. He
grabbed the gun and fired. The shot hit Mr. Eizember in the hand — but also
tragically struck and killed Mrs. Cantrell. In what followed, Mr. Eizember
wrestled the gun away from Mr. Cantrell and proceeded to beat him with it until
he fell unconscious. Then Mr. Eizember dragged the Cantrells’ bodies into the
bathroom, where Mr. Cantrell was left to — and did — die.
The Cantrells’ deaths proved only the beginning of things. Next, Mr.
Eizember headed across the street, shotgun in hand, toward Ms. Biggs’s house.
Her son, Tyler Montgomery, saw him coming and tried to run, but before he could
Mr. Eizember shot him in the back. Then Mr. Eizember turned on Mr.
Montgomery’s nearby grandmother, Carla Wright, and beat her with the shotgun
too. Somehow in the midst of this melee Mr. Montgomery recovered enough to
2
run out of the house and into his pickup truck. Mr. Eizember followed right
behind, jumping into the truck bed. Mr. Montgomery drove off erratically,
hoping to shake Mr. Eizember, but he wouldn’t be budged and even shot Mr.
Montgomery again. Eventually Mr. Montgomery crashed into a pole, jumped out,
and ran for help. Mr. Eizember headed in the other direction and managed to
hitch a ride. When the driver grew suspicious, though, Mr. Eizember fired a shot
at him too and leapt from the car.
For the next eleven days Mr. Eizember went to ground. Hiding in wooded
areas around Depew — resurfacing only to steal clothes and a pistol from a nearby
house — he succeeded in evading a police dragnet. But in time he realized he
needed to make a break for it. So he stole a car he found outside a church,
somehow eluded police lines, and made his way out of town. Soon, though, the
car ran out of gas, leaving Mr. Eizember to continue his odyssey hitchhiking.
Continue it he did. Seeing Mr. Eizember on the roadside, Dr. Sam Peebles
and his wife, Suzanne, stopped and offered him a lift. But as soon as he was
settled in the car, Mr. Eizember turned his pistol on the couple and ordered them
to drive him to Texas. The journey lasted hours. Finally, during a roadside break
in Texas, Dr. Peebles drew his own revolver and shot Mr. Eizember. Mr.
Eizember replied by wresting the revolver away and bludgeoning Dr. Peebles with
the pistol he’d stolen back in Oklahoma. Then Mr. Eizember tried to shoot Mrs.
Peebles. When the pistol wouldn’t fire, he struck her in the head instead and ran
3
off. But it seems the wounds Dr. Peebles inflicted eventually caught up with Mr.
Eizember. At a nearby convenience store the clerk heard he’d been shot and
called the police. It was only then that the authorities at last arrested Mr.
Eizember, taking him first to a hospital to recover, and, in time, to Oklahoma for
trial.
A jury there found Mr. Eizember guilty of more than a few crimes: firstdegree
murder for Mr. Cantrell’s death, second-degree felony murder for Mrs.
Cantrell’s death, assault and battery with a dangerous weapon for the attack on
Mrs. Wright, shooting with intent to kill for the attack on Mr. Montgomery, and
first-degree burglary for breaking into the Wrights’ home. For the first-degree
murder charge, the jury found two aggravating circumstances — that Mr.
Eizember knowingly created a great risk of death to more than one person and
that the murder was especially heinous, atrocious, or cruel — and sentenced him
to death. For all the rest, the jury or judge settled on lesser sentences.
Mr. Eizember’s various challenges to his convictions and sentences have so
far proven unfruitful. The Oklahoma Court of Criminal Appeals rejected his
direct appeal in Eizember v. State, 164 P.3d 208 (Okla. Crim. App. 2007), and the
United States Supreme Court denied certiorari, Eizember v. Oklahoma, 552 U.S.
1269 (2008). The OCCA separately denied postconviction relief. Eizember v.
State, No. PCD-2005-371 (Okla. Crim. App. Aug. 20, 2007). As did a federal
district court. Eizember v. Trammell, No. 08-CV-00377-C, 2013 WL 6670275
4
(W.D. Okla. Dec. 18, 2013). But in the district court Mr. Eizember did manage to
obtain a certificate of appealability permitting him to raise a number of issues in
this court and it is to them we now turn.
*
First and primarily, Mr. Eizember argues that the state trial court should
have excluded two jurors — known in these proceedings by their initials, D.B.
and J.S. — because they were impermissibly biased in favor of the death penalty.
The trial court’s failure to dismiss them, he says, renders his death sentence
invalid. But both the OCCA and the federal district court disagreed with this
conclusion. And because the OCCA addressed this claim of error on the merits
(as it did all the claims Mr. Eizember now raises), the Antiterrorism and Effective
Death Penalty Act of 1996 permits us to afford relief for putative legal errors only
if we can say the state court’s decision was either “contrary to” or “an
unreasonable application of” clearly established federal law as determined by the
Supreme Court. 28 U.S.C. § 2254(d)(1). Mr. Eizember’s habeas petition and his
appeal to this court focus solely on the latter question, accepting that the OCCA
“identifie[d] the correct governing legal rule” but disputing whether the court
“unreasonably applie[d] [that rule] to the facts” of his case. Williams v. Taylor,
529 U.S. 362, 407 (2000).
What is the Supreme Court’s clearly established rule in this area? In
Wainwright v. Witt, 469 U.S. 412 (1985), the Court held that “the proper standard
5
for determining when a prospective juror may be excluded for cause because of his
or her views on capital punishment . . . is whether the juror’s views would ‘prevent
or substantially impair the performance of his duties as a juror in accordance with
his instructions and his oath.’” Id. at 424 (quoting Adams v. Texas, 448 U.S. 38,
45 (1980)). So, by way of example, the Court has recognized that someone “who
will automatically vote for the death penalty in every case will fail in good faith to
consider the evidence of aggravating and mitigating circumstances” (as the law
requires) and thus necessarily fail the Witt standard. Morgan v. Illinois, 504 U.S.
719, 729 (1992). Still, the Court has cautioned, that’s only an example: Witt’s
substantial-impairment test isn’t limited only to those jurors who would
automatically vote one way or the other. See Witt, 469 U.S. at 424-26.
At the same time, the Court has stressed that the trial judge is best
positioned to determine whether a potential juror will be able to follow his or her
instructions — and that a court of appeals removed from the live proceedings
must afford significant deference to the trial judge’s assessments. In the Supreme
Court’s telling: “Deference to the trial court is appropriate because it is in a
position to assess the demeanor of the venire, and of the individuals who compose
it,” including not only what they say but also their “nonverbal communication” —
factors all of “critical importance in assessing the attitude and qualifications of
potential jurors.” Uttecht v. Brown, 551 U.S. 1, 9 (2007).
6
How do these established standards play out when we’re called on to review
not a federal trial court on direct appeal but the reasonableness of a state’s
application of federal law on collateral review? In Brown the Court explained that
a federal court owes what we might fairly describe as double deference: one layer
of deference because only the trial court is in a position to assess a prospective
juror’s demeanor, and an “additional” layer of deference because of AEDPA’s
“independent, high standard” for habeas review. See id. at 9-10. Indeed, the
Court stressed that where, as here, the record reveals a “lengthy questioning of a
prospective juror and the trial court has supervised a diligent and thoughtful voir
dire, the trial court has broad discretion” on the issue of exclusion. Id. at 20.
With these standards in mind, we turn first to Mr. Eizember’s challenge to
juror D.B. Mr. Eizember argues that D.B.’s answers to a written questionnaire
show she should have been excused. For this he relies primarily on the following
six responses:
42. Have you ever formed an opinion either in favor or against the
death penalty? If so, explain.
Yes X No
I firmly believe if you take a life you should lose yours.
61. What are your feelings about the death penalty? Please
explain:
I have no reservations about seeing someone put to death so
long as it has been proven the person is guilty, especially if
they have taken the lives of others.
7
62. What purpose do you think the death penalty serves in our
society?
Keeps taxpayers from having to support a criminal for the
remainder of their life
63. Do you think the death penalty in Oklahoma is used too often
or too seldom?
Definitely not too often.
64. Check the “one” statement which “best” summarizes your
general views about capital punishment (the death Penalty):
1. I am opposed to capital punishment under any
circumstances.
2. I am opposed to capital punishment except, in a
few cases where it may be appropriate.
3. I am neither generally opposed, nor generally in
favor of capital punishment.
4. I am in favor of capital punishment, except in a
few cases where it may not be appropriate.
X 5. I am strongly in favor of capital punishment as an
appropriate penalty.
73. If you were Mr. Eizember or the State of Oklahoma would you
want yourself as a juror in this case?
Yes ( ) No ( X )
Because if I feel guilt has been proven, I would not hesitate to
impose the death penalty.
8
These responses, Mr. Eizember argues, show that D.B. couldn’t fairly consider all
three sentencing options for first-degree murder (death, life without parole, and
life with the possibility of parole) and had to be excluded.
Besides, even if these answers don’t suffice to show that much, Mr.
Eizember claims that D.B.’s colloquy with his lawyer during voir dire certainly
does. During that exchange, counsel asked D.B. whether she would be able to
consider a sentence of life without parole. “If the death penalty was not an
option, yes,” she replied. Asked to elaborate, she reasoned: “If they’re in prison
for the remainder of their life without a possibility of parole why not the death
penalty?” The exchange continued:
[Q]: All right, so are you, are you telling me then that if you had a
situation where it was laid out on the table, life, life without
parole or death, then you would automatically consider one of
those?
[A]: Automatically consider one of —
[Q]: One of those punishments over the others?
[A]: Probably.
[Q]: And —
[A]: Yes.
[Q]: And that would be death?
[A]: Yes.
9
After counsel clarified the posture under which D.B. might have to make such a
decision — only if and after the jury found the defendant guilty of intentional
murder — he again asked whether she “would automatically say it should be the
death penalty.” D.B. responded that she “would have to look at all three but just
off the cuff, it would probably be death,” explaining too that she “would have to
try hard” to endorse life without parole.
While acknowledging that Mr. Eizember’s concerns about D.B. are hardly
trivial, the OCCA held that the trial court didn’t commit reversible error when it
decided to retain her as a juror. As a threshold matter, the OCCA explained, the
questionnaire must be understood in context: it asked potential jurors to share
their views on capital punishment before voir dire began and before the court
could explain the potentially available punishments, the factors that must be
considered when choosing one, and the need to find and weigh aggravating and
mitigating circumstances before imposing a death sentence. Eizember, 164 P.3d
at 220-21. So, the OCCA held, the questionnaire cannot be “considered in
isolation.” Id. at 221. Instead, the court reasoned, it must be viewed in
conjunction with the potential juror’s responses to live questions at voir dire after
the court instructed the prospective panel members about the law’s demands. And
broadening its view to take in “the totality of [D.B.’s] voir dire, written and oral
responses,” the OCCA saw adequate support for “the trial court’s finding that
Juror D.B. did not have such a strong bias towards the death penalty that the
10
performance of her duties as juror would be prevented or substantially impaired.”
Id. at 226.
Beginning with the questionnaire, the OCCA noted that Mr. Eizember
focused on certain questions and answers but neglected others. For example, Mr.
Eizember overlooked responses that “indicate[d] Juror D.B. could be a fair and
impartial juror.” Id. at 225. Like this one:
65. Assume you are on a jury to determine the sentence of a
defendant who has already been convicted of a very serious
crime. If the law gives you a choice of death or life
imprisonment, or some other penalty: (check only one)
1. I could not vote for the death penalty regardless of
the facts and circumstances of the case.
2. There are some kinds of cases in which I know I
could not vote for the death penalty even if the
law allowed me to, but others in which I would be
willing to consider voting for it.
X 3. I would consider all of the penalties provided by
law and the facts and circumstances of the
particular case.
4. I would usually vote for the death penalty in a
case where the law allows me to.
5. I would always vote for the death penalty in a
case where the law allows me to.
The court noted that Mr. Eizember similarly overlooked responses from
voir dire — again, after D.B. had been instructed on the law — suggesting that
she could and would consider all three sentencing options and all mitigating and
11
aggravating circumstances. The transcript shows D.B. confirming —
repeatedly — that she could “consider all three punishments,” Voir Dire Tr. 207-
08, 233; that she would follow the court’s instructions and would not enter
deliberations with a preconceived outcome, id. at 236-37; that she “could put
aside any personal beliefs or predispositions,” Eizember, 164 P.3d at 224; and that
she “did not have any moral, ethical or religious obligations that would keep her
from” following the court’s directions, id.
Beyond this, the OCCA held, the voir dire responses on which Mr.
Eizember most relied weren’t as damning as he suggested. For example, the court
reasoned that D.B.’s “response that ‘off the cuff’ she would consider death as
punishment for intentional murder” merely “illustrate[d] a ‘gut reaction.’” Id. at
225. The court said it was “confident that any determination made during jury
deliberations would be an informed decision and not merely ‘off the cuff.’” Id.
And, recalling that the trial court had “the benefit of observing D.B.’s demeanor
throughout voir dire,” the OCCA concluded that “the trial court did not abuse its
discretion in refusing to remove her for cause.” Id. at 226.1
1 The OCCA noted that it reviewed Mr. Eizember’s objection to juror D.B.
only under the plain error standard because, to preserve a complaint about a trial
court’s failure to dismiss a juror for cause, a litigant in Oklahoma state court must
apparently exercise a peremptory challenge. See Eizember, 164 P.3d at 223. This
naturally raises the question whether the state court’s use of the plain error
standard affects the degree of deference we owe its decision — or whether it
might provide an adequate and independent state law ground that precludes our
review. See Coleman v. Thompson, 501 U.S. 722, 729 (1991). At least under this
court’s precedents, however, if a state court on plain error review denies relief on
12
We cannot say, as Mr. Eizember asks us to, that this decision represents an
unreasonable application of the Supreme Court’s clearly established federal law
precedents, especially in light of the double deference we owe. Some of D.B.’s
questionnaire responses do seem to suggest a bias in favor of the death penalty.
But the questionnaire contains other responses that undercut that conclusion and
suggest a willingness to consider all the aggravating and mitigating facts and all
the available penalties. As the OCCA emphasized, too, D.B.’s questionnaire
responses came before she received instructions about the law’s demands and
addressed her ability to follow them at voir dire. During the three days of voir
dire proceedings that followed — spanning 507 pages of transcript — the trial
court had the opportunity to view D.B. firsthand and assess her demeanor, the
tone of her oral responses, and her reactions to the law as instructed. And here
many more of D.B.’s statements suggest a willingness to follow the court’s
directions and keep an open mind. To be sure, even at this stage her statements
remain something of a mixed bag. It may even be that the trial court could have
lawfully chosen to dismiss D.B. Or that the OCCA could have lawfully chosen to
reverse the trial court’s decision to retain D.B. But none of that necessarily
means the OCCA unreasonably upheld the trial court’s firsthand finding that D.B.
was a qualified juror. Before us are an inconclusive factual record and a highly
a federal claim by deciding there was no federal law error at all — the course the
OCCA chose in this case — our standard AEDPA standards apply. See Douglas
v. Workman, 560 F.3d 1156, 1177-78 (10th Cir. 2009) (per curiam).
13
deferential legal standard: a combination that precludes us from forming the
conviction necessary to deem the OCCA’s decision an unreasonable application
of federal law. When it comes to juror exclusion, the unavoidable fact is that the
Supreme Court has left considerable room for trial court discretion, a discretion
AEDPA only magnifies in the context of federal court review of state court
decisions, and the resulting spectrum of permissible or reasonable judgment is
large indeed.
We find confirmation of our judgment on this score in the fact that other
federal courts have applied relevant Supreme Court precedent much as the OCCA
did in this case, upholding trial court decisions to retain jurors in the face of
mixed responses very much like D.B.’s — and even in the face of responses
arguably more doubtful. See, e.g., United States v. Fulks, 454 F.3d 410, 428 (4th
Cir. 2006) (holding that a juror’s statement that he would vote for the death
penalty “90 percent of the time” did not “require his exclusion”); Bowling v.
Parker, 344 F.3d 487, 519-21 (6th Cir. 2003) (finding no constitutional error
where the trial court seated a juror who “initially state[d] that he would
automatically give the death penalty to those who met the aggravating factor” but
“later . . . expressly said that he would consider mitigating evidence,” id. at 520).
To say the OCCA unreasonably applied federal law in this case we would likely
have to say these courts did the same in their cases. The alternative conclusion —
that the Court’s precedents leave considerable room for discretion and that all
14
these courts have at least reasonably applied its precedents — strikes us as far
more likely.
Turning to Mr. Eizember’s complaint about juror J.S., we confront a much
easier case. In attempting to show J.S. was impermissibly biased in favor of the
death penalty, Mr. Eizember again points to several questionnaire responses:
61. What are your feelings about the death penalty? Please
explain:
Pro-Death
Depending on the crime committed
62. What purpose do you think the death penalty serves in our
society?
Takes repeat offenders out of civilized society.
63. Do you think the death penalty in Oklahoma is used too often
or too seldom?
About right
64. Check the “one” statement which “best” summarizes your
general views about capital punishment (the death Penalty):
1. I am opposed to capital punishment under any
circumstances.
2. I am opposed to capital punishment except, in a
few cases where it may be appropriate.
3. I am neither generally opposed, nor generally in
favor of capital punishment.
T 4. I am in favor of capital punishment, except in a
few cases where it may not be appropriate.
15
5. I am strongly in favor of capital punishment as an
appropriate penalty.
73. If you were Mr. Eizember or the State of Oklahoma would you
want yourself as a juror in this case?
Yes ( ) No ( T )
If guilty, he will be on death row and eventually executed.
But like D.B., J.S. checked the option next to “I would consider all of the
penalties provided by law and the facts and circumstances of the particular case”
when asked about his ability to vote for the death penalty. And like D.B., once
advised at voir dire of the three possible punishments for a first-degree murder
conviction and the law concerning their application, J.S. replied that he could
consider all three and would follow the court’s instructions. Neither, unlike D.B.,
did J.S. offer any comments during voir dire that might seem to cut in the other
direction. The OCCA concluded that J.S.’s responses “showed he did not hold
views regarding punishment that would prevent or substantially impair the
performance of his duty as a juror in accordance with his instructions and oath as
a juror.” Eizember, 164 P.3d at 223. And having concluded that the OCCA’s
resolution of the Witt question wasn’t unreasonably wrong when it comes to D.B.,
we must necessarily do the same on this lesser record when it comes to J.S.2
2 Lingering around the edges of Mr. Eizember’s argument here is the
implication that J.S.’s willingness to reschedule his rotator cuff surgery to serve
on the jury should raise a red flag. But the OCCA held that J.S.’s response
“merely indicated a willingness to do his civic duty.” Eizember, 164 P.3d at 223.
And Mr. Eizember doesn’t develop any argument or point to any part of the
16
*
Our dissenting colleague suggests that we don’t need to reach the question
whether the OCCA reasonably applied Witt to the facts of this case because that
court didn’t apply Witt at all — at least when it came to juror D.B. Instead of
asking whether D.B.’s views “prevent[ed] or substantially impair[ed]” the
performance of her duties as Witt requires, the dissent suggests that the OCCA
asked an entirely different question: whether D.B. would automatically vote for
the death penalty because she was “irrevocably committed” to that outcome. In
this way, the dissent reasons, the OCCA relied on an incorrect legal standard and
so its decision was “contrary to” clearly established federal law. For our part, we
are unable to subscribe to this line of argument for various reasons.
First is the fact Mr. Eizember never made it. AEDPA says that we may undo
a state court decision either if it employed a rule of law “contrary to” what the
Supreme Court has prescribed or if it “unreasonably applie[d]” the correct legal
rule to the particular facts before it. Williams, 529 U.S. at 412-13 (quoting 28
U.S.C. § 2254(d)(1)). The Supreme Court has long recognized that a state court’s
identification of the correct governing legal standard and the reasonableness of its
application of that standard to the facts are two distinct statutory inquiries. See id.
Indeed, petitioners frequently will accept that the state court identified the correct
rule of law and challenge only the reasonableness of its application of that rule to
record that would allow us to declare that conclusion unreasonable.
17
the particulars of the case at hand, thus bypassing the first AEDPA inquiry and
inviting the reviewing court to proceed directly to the second. See, e.g., Parker v.
Scott, 394 F.3d 1302, 1308 (10th Cir. 2005) (proceeding to the question of
reasonable application where there was no argument that the court’s decision was
“contrary to” clearly established law); Etherly v. Davis, 619 F.3d 654, 661 (7th
Cir. 2010) (same); Collado v. Miller, 157 F. Supp. 2d 227, 231 (E.D.N.Y. 2001)
(same). That is exactly what happened in this case. In six and a half years of
proceedings in federal court Mr. Eizember never argued, as the dissent now does,
that the OCCA employed a legal standard “contrary to” Witt. Instead and
accepting that the OCCA correctly identified Witt as the governing standard, Mr.
Eizember has argued only that the OCCA’s application of that standard — the
answer it gave to the question Witt poses — was unreasonable given the facts in
this particular case. Because there’s nothing in Mr. Eizember’s district court
petition resembling the argument the dissent now seeks to advance on his behalf,
he forfeited such a contention there. See Richison v. Ernest Grp., Inc., 634 F.3d
1123, 1128 (10th Cir. 2011). And because there’s nothing in his opening brief in
this court raising the argument either, it is independently waived here. See Adler
v. Wal-Mart Stores, Inc., 144 F.3d 664, 679 (10th Cir. 1998).
To be sure, the dissent faults the district court for failing to address the
question whether the OCCA applied a rule of law contrary to Witt. The dissent
also faults the State for failing to address the question on appeal. The dissent
18
even faults the State’s appellate brief for failing to observe any potential
forfeiture and waiver problems attending the argument. But it seems to us that
the fact no one has ever addressed the argument the dissent wishes to press should
be a clue. A clue that this just isn’t a case where the district court missed an
issue presented to it or where the petitioner expressly sought to introduce a new
issue on appeal and the State might have been expected to offer a response in its
appellate briefing. A clue that this is a case instead where an appellate dissent
seeks to devise a new ground for reversal for the petitioner that the petitioner has
never pursued for himself in a great many filings over a great many years of
litigation.
Indeed, the dissent’s considerable efforts to prove that Mr. Eizember
presented and preserved its argument before the district court and this one do
more to confirm the opposite conclusion in our view. The dissent’s citations to
Mr. Eizember’s pleadings in district court show him reciting the § 2254(d)(1)
standard and then proceeding to make the same argument he does here, the same
argument we’ve addressed above, the argument that the OCCA unreasonably
applied Witt to the facts in this record surrounding jurors D.B. and J.S. See
Dissent at 23-24. Precisely none of the dissent’s citations shows him arguing that
the OCCA employed a legal standard contrary to Witt and we simply cannot fault
the district court for failing to see what wasn’t there. When it comes to Mr.
Eizember’s appeal, the dissent plucks (and repeats) two sentences from his 80
19
page opening brief in which Mr. Eizember first notes the OCCA’s observation
that D.B. wasn’t “irrevocably committed to any one punishment” and then
proceeds to comment flatly that this “is not the correct standard.” See Dissent at
24 (quoting Appellant’s Br. at 28). But these two sentences, the very best the
dissent can do to show preservation in all of Mr. Eizember’s pleadings before this
court or the district court, say no more on the question whether the OCCA
identified the correct Witt standard. In fact, they stand surrounded by argument
and in a section of the brief expressly challenging the reasonableness of the
OCCA’s application of Witt to the facts of this case, not its identification of that
case or its governing legal standard. And this court has repeatedly instructed that
stray sentences like these are insufficient to present an argument (let alone one
forfeited below) in a way that might fairly inform opposing counsel or a court of
its presence in the case. See Grant v. Trammell, 727 F.3d 1006, 1025 (10th Cir.
2013) (“Even a capital defendant can waive an argument by inadequately briefing
an issue . . . .”); Fairchild v. Trammell, 784 F.3d 702, 724 (10th Cir. 2015)
(same).3
3 Faced with this problem, the dissent adds a further reply at the tail end of
its opinion. Here it claims it isn’t inventing for Mr. Eizember an argument that
the OCCA applied a legal standard “contrary to” federal law but only arguing that
the OCCA “unreasonably applied” the correct federal legal standard to the facts
of the case. See Dissent at 25. This new reply, however, emerging at the end of
the dissent, is pretty hard to square with all the argument that comes before it.
See id. at 14 (contending that “the OCCA applied an incorrect legal standard”);
id. (alleging that the OCCA “applied a legal standard that is inconsistent with
20
Second, it turns out that there’s a very good reason why the capable
lawyers in this case never made the dissent’s argument: it lacks merit.4 The
Supreme Court has repeatedly reminded us that “AEDPA’s requirements reflect a
‘presumption that state courts know and follow the law.’” Woods v. Donald, 135
S. Ct. 1372, 1376 (2015) (per curiam) (quoting Woodford v. Visciotti, 537 U.S.
19, 24 (2002) (per curiam)). This presumption demands that federal judges
“afford state courts due respect by overturning their decisions only when there
could be no reasonable dispute that they were wrong.” Id. Reading the OCCA’s
opinion, it quickly becomes clear this is not such an extreme case. The OCCA
clearly established federal law”); id. at 17 (asserting “the OCCA’s ‘irrevocably
committed’ standard is not the same as, and indeed is less demanding than, the
controlling standard outlined in Witt”); id. at 22 (arguing that the state court “was
applying the OCCA’s own ‘irrevocably committed’ standard, rather than the
Witt/Adams standard”). By any reasonable reckoning the dissent contends that the
OCCA committed error by using a legal standard contrary to federal law when
assessing juror D.B. And by any reasonable reckoning nothing like that argument
appears anywhere in Mr. Eizember’s materials. Unable to shake this reality, the
dissent retreats further and at the very close seems finally to suggest that, even if
Mr. Eizember has never made its argument, we should. See id. at 26-27. But as
we’ve seen, the Supreme Court has recognized that the “contrary to” and
“unreasonable application” questions are distinct statutory questions and courts
routinely move to the second question when the first isn’t in dispute. See supra at
17-18. Neither does the dissent offer any argument or authority suggesting that
this court may or should sua sponte on appeal develop an argument for reversal
on the first question that a habeas petitioner has not ever himself pursued. Nor
could it for, as we’ve seen, governing law is to the contrary, holding that even a
capital defendant may forfeit or waive arguments by declining to pursue them
anywhere in a litigation as long lived as this one. See Grant, 727 F.3d at 1025;
Fairchild, 784 F.3d at 724.
4 The discussion of this second concern attending the dissent’s line of
argument represents the opinion of Judge Gorsuch only.
21
cited Witt no fewer than five times. It began its discussion of the juror bias
question by quoting Witt’s substantial impairment test and recognizing it as the
“proper standard.” Eizember, 164 P.3d at 221. And in concluding its analysis of
D.B.’s responses, the court expressly held that she “did not have such a strong
bias towards the death penalty that the performance of her duties as juror would
be prevented or substantially impaired” — language that tracks Witt almost
verbatim. Id. at 226; see Witt, 469 U.S. at 424.
The dissent acknowledges all this. Neither does the dissent dispute that the
OCCA both correctly identified and reasonably applied Witt’s standard when it
came to juror J.S. Still, the dissent suggests, the OCCA somehow missed the very
same governing legal standard when addressing juror D.B. By way of support
and again, the dissent points to a sentence in which the OCCA offered its view
that D.B. was not “irrevocably committed” to the death penalty. This sentence,
the dissent argues, proves the OCCA applied an erroneous legal standard. But the
Supreme Court itself has acknowledged that showing a juror’s irrevocable or
automatic commitment is one quite legitimate, if surely not exclusive, way to
satisfy the Witt standard for impermissible bias. See supra at 7. Neither did the
OCCA stop there, for it continued on and explained its additional view that D.B.
would not be “substantially impaired” in her ability to consider all the penalties
the law provides — thus squarely addressing the alternative method of satisfying
the Witt standard. See Eizember, 164 P.3d at 226. In light of all the evidence that
22
the OCCA applied Witt when it came to D.B., just as it did when it came to J.S.,
and in light of the respect AEDPA requires us to afford our state counterparts, it
would be quite wrong to give talismanic weight to the OCCA’s passing — and
entirely pertinent — observation on the way to its essential conclusion. Under
AEDPA we must assume a state court is applying the correct federal legal
standard even when it mentions no legal standard at all. See Witt, 469 U.S. at
431; Harrington v. Richter, 562 U.S. 86 (2011). Surely we must as well assume
the state court is applying the correct federal legal standard when it tells us it is
— and when viewed fairly it appears to be — doing just that. Any other course
would evince a serious disrespect for state courts, run afoul of the federalism and
comity concerns that undergird AEDPA, and risk inviting reversal for
misapplication of that statutory scheme. See, e.g., Parker v. Matthews, 132 S. Ct.
2148, 2152 (2012) (per curiam) (summarily reversing a grant of habeas relief
because the state court had relied on a ground that was “sufficient” under federal
law, even though it had also relied on an independent “ground of questionable
validity”).
Third, even if we were to adopt Mr. Eizember’s argument it would only
mean AEDPA deference no longer applies and we must engage in a Witt analysis
ourselves. See Trammell v. McKune, 485 F.3d 546, 550 (10th Cir. 2007). And
even without the additional layer of AEDPA deference, Brown would still require
us to afford significant deference to the trial court’s decisions on the question of
23
juror bias. 551 U.S. at 9. Given that — and given the ambiguous record
concerning D.B.’s views — we would still find ourselves without a lawful basis
to overturn the trial court’s first-hand assessment that she could fairly discharge
her duties as juror. Indeed and again (though not acknowledged by the dissent),
other circuits have upheld trial court decisions to retain potential jurors on
records that are, if anything, a good deal more favorable to the defendant than the
one before us. See supra at 14 (discussing Fulks, 454 F.3d at 428; Bowling, 344
F.3d at 519-21).5
*
Moving from arguments about jury selection to arguments about jury
instructions, we face a due process question. Everyone agrees that Oklahoma law
provides three possible sentences for first-degree murder: death, imprisonment
for life without parole, or imprisonment for life with the possibility of parole.
5 After denying deference to the state appellate court under AEDPA, the
dissent seems to suggest it owes no deference to the state trial court under Brown
because it too applied the wrong legal standard. But as proof the dissent cites
only questions the court asked potential jurors — not the legal standard the court
used when assessing their responses. And where, as here, “the record does not
indicate the standard applied by a state trial judge, he is presumed to have applied
the correct one.” Witt, 469 U.S. at 431. Besides, many of the trial judge’s
questions suggest a full understanding of Witt (for example, asking jurors whether
they could “consider” or “fairly consider” all three legally available
punishments). And in any event and again, the dissent here presses an argument
for Mr. Eizember that he’s never pressed for himself. Here we don’t even have
two stray sentences from Mr. Eizember: his briefing before the district court and
this court nowhere suggests that the trial court misidentified the governing law.
Any claim along these lines would therefore appear long forgone.
24
Okla. Stat. Ann. tit. 21, § 701.9(A). But Mr. Eizember argues that the jury was
confused about the meaning of the third option — what the State calls a “straight”
life sentence. He contends that, thanks to a prospective juror’s erroneous
comment during voir dire, the jury pool was left with the misimpression that a
“straight” life sentence could give way to parole in seven or twenty years. In
fact, he tells us, Oklahoma law requires someone sentenced to “straight” life to
serve at least thirty-eight years in prison before becoming parole eligible. Mr.
Eizember says the trial court never adequately cleared up this confusion among
members of the jury and the result was a violation of a federal due process
guarantee articulated in Simmons v. South Carolina, 512 U.S. 154 (1994). To
remedy this violation, he claims, we must at least vacate his capital sentence.6
Simmons held that “[w]here the State puts the defendant’s future
dangerousness in issue, and the only available alternative sentence to death is life
imprisonment without possibility of parole, due process entitles the defendant to
inform the capital sentencing jury — by either argument or instruction — that he
is parole ineligible.” 512 U.S. at 178 (O’Connor, J., concurring in the judgment);
id. at 168-69 (plurality opinion) (same). Simply put, Simmons prevents a state
6 At times Mr. Eizember’s brief suggests that the jury’s confusion violated
not only his due process rights but also his rights under the Sixth and Eighth
Amendments. But when it comes to citing a Supreme Court case that articulates
the “clearly established” law he would have us apply Mr. Eizember offers just
Simmons, a case that situates the right in question in the Due Process Clause of
the Fourteenth Amendment.
25
from giving the jury at the sentencing phase in a capital case “a false choice
between sentencing [the defendant] to death and sentencing him to a limited
period of incarceration.” Id. at 161 (plurality opinion).
We don’t see how the OCCA clearly misconstrued or unreasonably
misapplied Simmons. After all, no one questions that the jury was correctly
instructed that life without parole was an option in this case. And no one
questions that the jury was correctly instructed that life without parole means
precisely that. So even assuming the jury was confused about the consequences
of a “straight” life sentence, it just “was not faced” with the “false choice” the
Court faced and condemned in Simmons. Eizember, 2013 WL 6670275, at *15
(mem. op. at 28). Indeed, it seems to us that Mr. Eizember can’t and doesn’t
complain so much that the OCCA misapplied Simmons as that the OCCA should
have extended its reasoning to the situation presented here. In his view, the
Constitution should be read to ensure not only that a capital jury is properly
instructed about the availability and meaning of life without parole. Instead, he
says, the Constitution should also be read to guarantee that a capital jury is
properly instructed about the details of a “straight” life sentence where parole is a
possibility. The problem is that, under AEDPA, this court is authorized to
intervene only when state courts fail to apply the Supreme Court’s existing and
clearly established teachings reasonably, not when they fail to extend them in new
and novel ways. White v. Woodall, 134 S. Ct. 1697, 1706 (2014) (emphasizing
26
that AEDPA “does not require state courts to extend [Supreme Court] precedent
or license federal courts to treat the failure to do so as error”).
*
Mr. Eizember next attempts an even more ambitious version of his Simmons
argument. So far he’s suggested only that his capital sentence should be vacated
because the trial court didn’t instruct the jury that a “straight” life sentence
guaranteed him at least thirty-eight years in prison. Now he argues that this same
failure requires us to vacate his first-degree murder conviction and perhaps his
noncapital convictions and sentences too. But where is the clearly established
federal law compelling such a conclusion? We can’t find it in Simmons, a case
that (again) addressed only what a jury must be told when deciding a sentence for
a capital crime — and a decision that does not clearly apply to the guilt phase or
to non-capital sentencing proceedings. Neither can we find it in Shafer v. South
Carolina, 532 U.S. 36 (2001), another case Mr. Eizember cites, because Shafer
expressly confirms our understanding of Simmons’s reach. See id. at 51 (“It is
only when the jury endeavors the moral judgment whether to impose the death
penalty . . . that Simmons comes into play . . . .”).
Besides these two cases most of Mr. Eizember’s argument in this direction
is predicated on state — not federal — jurisprudence. He contends that
Oklahoma law entitled him to a correct instruction about the parole consequences
of a “straight” life sentence. And he faults the OCCA for failing to apply
27
Oklahoma law correctly in this respect. But even assuming without granting that
Mr. Eizember is right about all this it does little to help him — for, again, this
court’s role on collateral review isn’t to second-guess state courts about the
application of their own laws but to vindicate federal rights. Estelle v. McGuire,
502 U.S. 62, 67-68 (1991).
True, in the course of his extended state law discussion Mr. Eizember does
cite in passing two more federal cases still. The first is Hicks v. Oklahoma, 447
U.S. 343 (1980), where the Supreme Court held that the federal due process
guarantee sometimes requires states to abide their own procedural rules, at least
when those rules create a “substantial and legitimate” liberty interest. Id. at 346.
The second is Lisenba v. California, 314 U.S. 219 (1941), which recognized that
every trial must observe principles of “fundamental fairness” to satisfy due
process. Id. at 236. But, as the State correctly notes, Mr. Eizember didn’t
advance any federal law argument under Hicks or Lisenba before the district court
and he has, accordingly, forfeited any argument based upon them in this court.
See Wilburn v. Mid-South Health Dev., Inc., 343 F.3d 1274, 1280-81 (10th Cir.
2003). Neither for that matter does Mr. Eizember even fairly develop a Hicks or
Lisenba argument in this court. Yes, he cites the decisions in passing during an
extended state law discussion, but he never attempts to explain either how a state
law instructional rule about parole consequences creates a substantial liberty
interest under federal law or how such a rule might be required to render any
28
criminal trial fundamentally fair. Or how Supreme Court precedent might clearly
compel such conclusions in a way that would satisfy AEDPA. And it’s settled
law that insufficient briefing of this sort will serve to waive an issue in this court
even if it was fairly presented and preserved in the district court. See Grant, 727
F.3d at 1025.
*
Mr. Eizember next challenges the trial court’s jury instructions on the
charges related to Mr. Cantrell’s death. The state trial court instructed the jury on
first-degree “malice aforethought” murder and two separate lesser-included
offenses: second-degree “depraved mind” murder and second-degree felony
murder. See Okla. Stat. Ann. tit. 21, §§ 701.7(A), 701.8. But by everyone’s
admission the court misstated Oklahoma law in reciting the elements of “depraved
mind” murder, erroneously informing the jury that it couldn’t convict Mr.
Eizember of that offense if he intended to kill or harm his victim. While intent to
kill does preclude a conviction for “depraved mind” murder under state law —
compelling instead a first-degree murder conviction — mere intent to harm does
not. See Eizember, 164 P.3d at 235. Here Mr. Eizember has, as well, sought to
link this state law error to the violation of federal right, contending that the error
amounted to a violation of his federal due process rights under Beck v. Alabama,
447 U.S. 625 (1980).
29
How so? In Beck, the Supreme Court held that “when the evidence
unquestionably establishes that the defendant is guilty of a serious, violent
offense — but leaves some doubt with respect to an element that would justify
conviction of a capital offense — the failure to give the jury the ‘third option’ of
convicting on a lesser included offense would seem inevitably to enhance the risk
of an unwarranted conviction.” 447 U.S. at 637. This risk, the Court held, is
intolerable in capital cases, so a state is “constitutionally prohibited from
withdrawing that option from the jury.” See id. at 637-38. And, according to Mr.
Eizember, this exact risk manifested itself in his trial: the trial court’s error in
instructing the jury on “depraved mind” murder pushed the jury toward an
unwarranted first-degree murder conviction for Mr. Cantrell’s death. Of course,
by his own admission the jury still had before it another lesser-included
offense — felony murder — on which the trial court issued unchallenged
instructions. But, Mr. Eizember argues, we should hold this insufficient to satisfy
Beck. In his view, that case should be read as requiring not only that the jury
receive some noncapital option but the best noncapital option, the one most fitting
to the defendant’s theory of the case — and here, he argues, that meant “depraved
mind” murder.
Mr. Eizember’s Beck argument, however, confronts a challenge in Schad v.
Arizona, 501 U.S. 624 (1991). There the jury was instructed on “robbery murder”
(a capital offense) and second-degree murder (a noncapital offense). The
30
defendant argued that he was also entitled to a plain-old robbery instruction as
well. But the Court disagreed, even though the trial court’s failure to instruct on
robbery meant the jury couldn’t return a verdict that was consistent with the
defendant’s preferred theory of the case. Id. at 647. The Court explained that
Beck doesn’t guarantee multiple lesser-included offense instructions or the
defendant’s favorite such instruction. Instead, it simply precludes an “all-or
nothing choice between the offense of conviction (capital murder) and
innocence.” Id.
It seems to us Mr. Eizember finds himself in much the same position as the
defendant in Schad. Here, as there, the jury did not face an all-or-nothing choice
but was instead presented with the required “third option.” After all, even
without a proper second-degree “depraved mind” murder instruction, the jury in
this case still had at hand a viable, noncapital, lesser-included alternative if it was
unconvinced that Mr. Cantrell’s killing rose to the level of first-degree murder: it
could have convicted him of felony murder. So because “the court instruct[ed]
the jury on one lesser included offense supported by the evidence,” Beck was not
clearly implicated for AEDPA purposes “even if instructions on other lesser
included offenses might have been warranted.” Bland v. Sirmons, 459 F.3d 999,
1016 (10th Cir. 2006).
Retreating now, Mr. Eizember argues that the evidence in this case was
legally insufficient to support a felony murder conviction for the death of Mr.
31
Cantrell. In this way, he says, felony murder just wasn’t a legally viable option
for the jury and a Beck problem persists even after Schad is taken into account.
But it’s hard to see how the OCCA’s determination otherwise was unreasonable.
Mr. Eizember himself requested the felony murder instruction — and usually, of
course, a party cannot later claim that a jury instruction given at his request was
given in error. See Parker v. Champion, 148 F.3d 1219, 1221-22 (10th Cir.
1998). Besides, there’s plenty of reason to think the evidence at trial could have
supported a felony murder conviction for Mr. Cantrell’s death. After all, Mr.
Eizember himself argued at trial that he didn’t intend to kill either of the
Cantrells. The jury apparently accepted this very argument when it came to Mrs.
Cantrell, for it convicted Mr. Eizember of felony murder for her death. It’s
undisputed, too, that the homicidal acts resulting in both victims’ deaths were
separated by a few seconds and a few feet. So there’s every reason to suppose
that if the jury believed Mr. Eizember’s claim he didn’t intend to kill Mr. Cantrell
when he hit him with the gun, it also “could have found Mr. Cantrell’s murder
occurred during the course of a burglary” — and thus constituted felony
murder — just as it “found with Mrs. Cantrell’s murder.” Eizember, 164 P.3d at
235; see also Wade v. State, 581 P.2d 914, 916 (Okla. Crim. App. 1978) (noting
that under the felony murder doctrine in Oklahoma “the accused can be found
guilty of murder even though the killing is unintentional”). To be sure, the
evidence didn’t compel a conclusion that Mr. Cantrell’s death was unintentional
32
and better described as felony murder than first-degree murder, but neither did it
foreclose that conclusion and to know that much is to know no clear Beck error
transpired here. See Eizember, 164 P.3d at 235-36; Eizember, 2013 WL 6670275,
at *19-20 (mem. op. at 37-40).7
*
Finally, even if failing to give a proper instruction on second-degree
“depraved mind” murder wasn’t itself a constitutional violation under Beck, Mr.
Eizember submits his attorney’s failure to object to the instruction on state law
grounds amounted to constitutionally ineffective assistance of counsel under
Strickland v. Washington, 466 U.S. 668 (1984). This argument, however, requires
no extended discussion to resolve. Everyone acknowledges that, to prevail under
Strickland, a defendant must show his lawyer’s putative error prejudiced him.
Yet, as the OCCA observed, even supposing Mr. Eizember’s attorney had secured
a proper instruction on (unintentional) “depraved mind” murder, the jury would
have been legally obliged to reject it anyway. That’s because a “depraved mind”
murder conviction in Oklahoma is unavailable as a matter of state law when the
jury finds a killing intentional beyond a reasonable doubt — precisely what the
jury did here when it convicted Mr. Eizember of first-degree murder. See
7 In his reply brief Mr. Eizember contends for the first time that the evidence
at trial was legally insufficient to permit the jury to find him guilty of seconddegree
burglary, the predicate felony for a felony murder conviction in this case.
This argument appears too late in these proceedings and is therefore waived. See
Bronson v. Swensen, 500 F.3d 1099, 1104-05 (10th Cir. 2007).
33
Eizember, 164 P.3d at 235; see also Okla. Stat. Ann. tit. 21, § 701.8(1). In this
way, the OCCA observed, trial counsel’s failure to object to the “depraved mind”
murder instruction ultimately had no impact on Mr. Eizember’s substantial rights.
Neither has Mr. Eizember identified any flaw in this reasoning or any Supreme
Court authority suggesting that this assessment is a clearly impermissible or
unreasonable application of Strickland’s prejudice test and we are aware of none.8
The judgment of the district court is affirmed.
8 Mr. Eizember argues we should reverse as well in light of “cumulative
error” — suggesting that we aggregate all errors in his case found to be harmless
and analyze their effect when considered together. But the circuits are split on
“whether the need to conduct a cumulative-error analysis is clearly established
federal law” for AEDPA purposes — and this court’s position on the question is
murky at best. Hooks v. Workman, 689 F.3d 1148, 1194 n.24 (10th Cir. 2012).
Fortunately we again find we don’t need to answer the question directly: even if
Mr. Eizember could overcome this problem, we have identified here no harmless
federal law errors to accumulate.
34
No. 14-6012, Eizember v. Trammell
BRISCOE, Chief Judge, concurring in part and dissenting in part.
I would affirm Eizember’s convictions, but reverse his death sentence and
remand for resentencing before a fair and impartial jury. I agree with the
majority that Eizember has failed to establish his entitlement to federal habeas
relief from his state court convictions. But, contrary to the majority, I find merit
to Eizember’s claim “that he was denied an impartial jury and due process of law
due to the [state] trial court’s denial of [a] for-cause challenge[] against . . .
juror[] . . . D.B.,” who “served and voted to condemn . . Eizember to death.”
Aplt. Br. at 10. Eizember raised this issue on direct appeal and the Oklahoma
Court of Criminal Appeals (OCCA) rejected it. As discussed below, I conclude
that the OCCA’s “adjudication of th[is] claim . . . resulted in a decision that was
contrary to, or involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the United States.” 28
U.S.C. § 2254(d)(1). I in turn conclude, applying a de novo standard of review,
that the state trial court likewise failed to apply the proper legal standard in
assessing whether juror D.B. could impartially consider the sentencing options
available in a death penalty case. Juror D.B. should have been stricken for cause.
As a result, I conclude that Eizember has established his right to federal habeas
relief on this claim in the form of a new sentencing proceeding.9
9 In light of this conclusion, I do not reach the other sentencing-related claims
asserted by Eizember, including his claim that juror J.S. should have been
(continued...)
I. Facts relevant to the claim
The OCCA, in resolving Eizember’s direct appeal, outlined the basic facts
relevant to this claim:
Jury selection in this case was begun by dividing the prospective
jurors into three groups and giving each individual a twelve page
juror questionnaire to fill out. The written questionnaires were
completed prior to the commencement of oral voir dire. Each of the
three groups was then selected for a morning or afternoon session
devoted to life and death qualification. After all potential jurors had
been so qualified, general voir dire was conducted until thirty
persons had been passed for cause. Then, recalling prospective
jurors in the original order, the first twelve were seated in the jury
box. Peremptory challenges were limited to those jurors in the box.
As peremptory challenges were made, replacements were drawn from
the pool of pre-qualified jurors.
Eizember v. State, 164 P.3d 208, 220 (Okla. Crim. App. 2007) (paragraph number
and footnote omitted).
[D.B’s] juror questionnaire contain[ed] six (6) questions relating to
the death penalty. Question No. 42 asked if the prospective juror had
ever formed an opinion either in favor or against the death penalty
and if so to explain. D.B. wrote, “I firmly believe if you take a life
you should lose yours.” In Question No. 61, prospective jurors were
asked to explain their feelings about the death penalty. Juror D.B.
wrote, “I have no reservations about seeing someone put to death so
9(...continued)
stricken for cause. After concluding that D.B. was not properly adjudged a fair
and impartial juror and, therefore, should not have sat on the jury, whether other
jurors also should have been stricken becomes a moot point. See Morgan v.
Illinois, 504 U.S. 719, 729 (1992) (“If even one [biased] juror is empaneled and
the death sentence is imposed, the State is disentitled to execute the sentence.”).
Although the majority states that I do not “dispute that the OCCA both correctly
identified and reasonably applied Witt’s standard when it came to juror J.S.,”
Maj. Op. at 22, the fact of the matter is that I offer no opinion on the OCCA’s
resolution of Eizember’s challenge to juror J.S.
2
long as it has been proven the person is guilty, especially if they
have taken the lives of others.” To Question No. 62, which asked
“what purpose do you think the death penalty serves in our society?”
D.B. responded, “keeps taxpayers from having to support a criminal
for the remainder of their life.” Question No. 63 asked if the
prospective juror thought the death penalty in Oklahoma is used too
often. D.B. responded, “definitely not too often.” Question No. 64
listed 5 alternatives and the prospective juror was instructed to select
the one which best summarized their general views about capital
punishment. The choices were as follows:
1. I am opposed to capital punishment under any
circumstances.
2. I am opposed to capital punishment except, in a few cases
where it may be appropriate.
3. I am neither generally opposed, nor generally in favor of
capital punishment.
4. I am in favor of capital punishment, except in a few cases
where it may not be appropriate.
5. I am strongly in favor of capital punishment as an
appropriate penalty.
D.B. checked the last alternative. Question No. 65 asked the
following:
Assume you are on a jury to determine the sentence of a
defendant who has already been convicted of a very serious
crime. If the law gives you a choice of death or life
imprisonment, or some other penalty; (check one)
1. I could not vote for the death penalty regardless of the facts
and circumstances of the case.
2. There are some kinds of cases in which I know I could not
vote for the death penalty even if the law allowed me to, but
others in which I would be willing to consider voting for it.
3. I would consider all of the penalties provided by law and
the facts and circumstances of the particular case.
4. I would usually vote for the death penalty in a case where
the law allows me to.
5. I would always vote for the death penalty in cases where
the law allows me to.
3
D.B. checked the third alternative that she “would consider all of
the penalties provided by law and the facts and circumstances of the
particular case.” No other questions on the written questionnaire
pertained to capital punishment.
Under questioning by the prosecutor during voir dire, Juror D.B.
said she could consider all three punishment options—the death
penalty, life without parole, and life in prison. She said she would
do so based on the evidence brought forth in the courtroom and the
instructions given by the court. She said she could put aside any
personal beliefs or predispositions and decide the case on the
evidence, and she did not have any moral, ethical or religious
obligations that would keep her from doing so.
Under questioning by defense counsel, Juror D.B. reiterated that
she could consider all three possible punishments. When specifically
asked if she could consider a life sentence if the defendant was found
guilty of intentional murder, she replied, “I could consider a sentence
of life.” Defense counsel then asked if her consideration “would be
any more meaningful than my consideration of moving furniture?”
She replied, “yes.” Defense counsel’s voir dire of D.B. continued as
follows:
MR. CORGAN (defense counsel): . . . How about the sentence
of life without parole, could you consider that as well?
PROSPECTIVE JUROR D.B.: If the death penalty was not an
option.
MR. CORGAN: Okay, tell me what you mean by that.
PROSPECTIVE JUROR D.B.: If they’re in prison for the
remainder of their life without the possibility of parole why
not the death penalty?
MR. CORGAN: All right, so are you, are you telling me then
that if you had a situation where it was laid out on the table,
life, life without parole or death, then you would automatically
consider one of the those?
4
PROSPECTIVE JUROR D.B.: Automatically consider one
of—
MR. CORGAN: One of those punishments over the others?
PROSPECTIVE JUROR D.B.: Probably.
MR. CORGAN: And—
PROSPECTIVE JUROR D.B: Yes.
MR. CORGAN: And that would be death?
PROSPECTIVE JUROR D.B: Yes.
MR. CORGAN: So—
PROSPECTIVE JUROR D.B: Let me get you, you said that the
evidence had already been there and it’s over and it’s the
penalty phase, right?
MR. CORGAN: When we talk about punishment you’ve
already made the determination of intentional murder beyond a
reasonable doubt, okay?
PROSPECTIVE JUROR D.B: Uh-huh.
MR. CORGAN: That’s where we are. Within that context are
you telling me that you would automatically say it should be
the death penalty?
PROSPECTIVE JUROR D.B: I would have to look at all three
but just off the cuff, it would probably be death.
MR. CORGAN: And do you feel that you could give
meaningful consideration to life?
PROSPECTIVE JUROR D.B: Yes.
MR. CORGAN: Do you feel that you could give meaningful
consideration to life without parole?
5
PROSPECTIVE JUROR D.B: I would have to try hard.
MR. CORGAN: Okay and I appreciate that answer. In trying
hard if you and my client were to switch places today and you
were on trial would you want a juror with that type of mindset?
PROSPECTIVE JUROR D.B: Personally, yes.
MR. CORGAN: Okay.
PROSPECTIVE JUROR D.B: Okay.
MR. CORGAN: Do you feel like—
PROSPECTIVE JUROR D.B: I would not want to spend my
life in prison without the possibility of parole.
Later during voir dire, defense counsel asked the panel if they
understood that if the State does not prove an aggravating
circumstance to the jury’s satisfaction beyond a reasonable doubt
then the jury would not be allowed to consider the option of death.
When specifically asked if she understood, Juror D.B. replied, “if it’s
not an option I wouldn’t have a problem with it” and that she could
consider the other two punishments of life and life without parole.
This was the extent of Juror D.B.’s voir dire on her views of capital
punishment.
Id. at 223-225 (paragraph numbers omitted).
After [Eizember]’s portion of the life/death qualification, defense
counsel raised challenges for cause to several prospective jurors
including Jurors D.B. and J.S. [In particular, defense counsel argued
that D.B. “said in her questionnaire that she firmly believes that if
you take a life you should lose yours,” and that this answer
“contrasted to the answers that she gave during our Voir Dire
examination in the . . . courtroom.” Tr. Vol. 2 at 276.] The trial
court overruled the challenges. [In doing so, the trial court stated
that “the questionnaires are to gain information not to be used as
traps for when answers are given by prospective jurors who have not
been informed of the law. So I am not going to allow them to be
used for that purpose.” Tr. Vol. 2 at 279.] When it came time to
6
exercise peremptory challenges, Juror D.B. took a seat in the jury
box as a result of defense counsel’s exercise of his eighth challenge.
With his ninth peremptory challenge, [Eizember] removed
prospective juror J.L. who was replaced on the panel by J.S. This
left both Juror D.B. and Juror J.S. on the jury. After exercising his
final peremptory challenge, defense counsel again asked that Juror
J.S. be excused for cause based upon his inability to consider all
three possible punishments, and based upon the fact that in
rescheduling a surgery, counsel surmised “he’s just almost too
interested in being a juror.” The trial court overruled the challenge
for cause. Defense counsel then informed the court that if the
defense had been granted additional peremptory challenges, Jurors
D.B. and J.S. would be struck from the jury.
Id. at 220 (paragraph number omitted).
II. The OCCA’s ruling on the claim
Eizember argued on direct appeal that the trial court’s refusal to strike
jurors D.B. and J.S. from the jury deprived him of his constitutional rights to due
process and trial by an impartial jury. In addressing this claim on direct appeal,
the OCCA stated:
[Eizember] suggests the responses on the juror questionnaire are
sufficient by themselves to excuse a prospective juror for cause
based upon his or her views of the death penalty. Our research has
yielded no capital cases where responses to pre-trial juror
questionnaires, without voir dire, have been found sufficient to
excuse jurors for cause, based upon their views of capital
punishment. Indeed, the Supreme Court has warned against
oversimplifying the inquiry as to whether jurors can perform their
duty notwithstanding their views on the death penalty.
“[D]eterminations of juror bias cannot be reduced to
question-and-answer sessions which obtain results in the manner of a
catechism”. Wainwright v. Witt, 469 U.S. 412, 424, 105 S.Ct. 844,
852, 83 L.Ed.2d 841 (1985).
7
“Voir dire examination serves the dual purposes of enabling the
court to select an impartial jury and assisting counsel in exercising
peremptory challenges”. Mu’Min v. Virginia, 500 U.S. 415, 431,
111 S.Ct. 1899, 1908, 114 L.Ed.2d 493 (1991). See also Warner v.
State, 2006 OK CR 40, ¶ 15, 144 P.3d 838, 858. An important aspect
of voir dire is to educate prospective jurors on what will be asked of
them under the law. As the trial court in this case noted, the
questionnaires are a means to collect information and are not to be
used “as traps” for prospective jurors who have not yet been
informed of the law. In our review of the written questionnaires, we
have found they did not advise the jury of the law they would be
required to follow, nor did they discuss or explain the process the
jurors would be required to follow in the punishment phase of trial,
i.e., determining if the alleged aggravator or aggravators had been
proved beyond a reasonable doubt and then weighing the aggravators
and mitigators to determine the appropriate punishment. This very
important part of the jurors’ duties in a capital case was not even
broached until the oral voir dire, and then not fully explained until
written instructions were given at the close of the second stage
evidence. It is the voir dire process which allows counsel and court
alike to determine whether the prospective jurors can in fact follow
their instructions and oath and whether there are grounds to
challenge a potential juror. We find the pre-trial questionnaire
cannot trump the actual voir dire. The responses to the written
questionnaire regarding views on the death penalty are not to be
considered in isolation, but in context of the other responses to the
questionnaire and oral responses given during voir dire in open court.
See Witt, 469 U.S. at 429, 105 S.Ct. at 855 (the trial judge’s
“predominant function in determining juror bias involves credibility
findings whose bias cannot be easily discerned from an appellate
record.”) See also United States v. Chanthadara, 230 F.3d 1237,
1269 (10th Cir. 2000) (“because the jurors are vested with greater
discretion in capital cases, the examination of prospective jurors
must be more careful than in non-capital cases”).
The proper standard for determining when a prospective juror
may be excluded for cause because of his or her views on capital
punishment is “whether the juror’s views would ‘prevent or
substantially impair the performance of his duties as a juror in
accordance with his instructions and his oath.’” Witt, 469 U.S. at
424, 105 S.Ct. at 852. See also Gray v. Mississippi, 481 U.S. 648,
8
658, 107 S.Ct. 2045, 2051, 95 L.Ed.2d 622 (1987). Inherent in this
determination is that the potential juror has been fully informed of
the law and his or her responsibilities under the law and oath of a
juror. This standard does not require a juror’s bias be proved with
unmistakable clarity; neither must the juror express an intention to
vote against the death penalty automatically. Witt, 469 U.S. at 424,
105 S.Ct. at 852. “Deference must be paid to the trial judge who
sees and hears the jurors”. Id., 469 U.S. at 425, 105 S.Ct. at 853.
See also Uttecht v. Brown, 551 U.S. 1, 127 S.Ct. 2218, 2224, 167
L.Ed.2d 1014 (2007) (“deference to the trial court is appropriate
because it is in a position to assess the demeanor of the venire, and
of the individuals who compose it, a factor of critical importance in
assessing the attitude and qualifications of potential jurors”).
This Court has adhered to the principles set forth in Witt. See
Glossip v. State, 2007 OK CR 12, ¶¶ 31–33, 157 P.3d 143, 150–151;
Williams v. State, 2001 OK CR 9, ¶ 10, 22 P.3d 702, 709 (and cases
cited therein). We have said the Witt standard only requires that
each juror be willing to consider each of the three statutory
punishments: the death penalty, life imprisonment without the
possibility of parole, and life imprisonment (with the possibility of
parole). Glossip, 2007 OK CR 12 at ¶ 31, 157 P.3d at 150. See also
Williams, 2001 OK CR 9 at ¶ 10, 22 P.3d at 709–710. Further, all
doubts regarding juror impartiality must be resolved in favor of the
accused. Williams, 2001 OK CR 9 at ¶ 10, 22 P.3d at 709–710. This
Court will look to the entirety of the juror’s voir dire examination to
determine if the trial court properly excused the juror for cause. Id.
As the trial court personally observes the jurors and their responses,
this Court will not disturb its decision absent an abuse of discretion.
Id.
Id. at 220-222 (alteration in original; internal paragraph numbers and footnotes
omitted).
Reviewing D.B.’s responses in total, her responses do not
demonstrate an impossible bias towards the death penalty. Individual
responses read in isolation may suggest such a bias as [Eizember]
claims. However, other responses indicate Juror D.B. could be a fair
and impartial juror. This situation points out the importance of the
oral voir dire. Although the juror questionnaire mentioned there
were three possible punishments for a conviction for intentional
9
murder, no options other than the death penalty were addressed. The
questionnaire did not explain the law regarding proof of aggravators
or weighing of the mitigating evidence against the aggravators.
Despite these omissions, D.B. indicated she could consider all
punishment options. It was not until voir dire, and specifically
questioning by defense counsel, that the juror’s views on the other
punishment options were explored. D.B. did not say she would
automatically consider the death sentence. Her response that “off the
cuff” she would consider death as punishment for intentional murder
does not indicate a predisposition toward the death penalty, but
rather illustrates a “gut reaction.” We are confident that any
determination made during jury deliberations would be an informed
decision and not merely “off the cuff.”
As further evidence of her partiality, [Eizember] cites to Juror
D.B.’s failure to state that she could “fairly” consider all three
punishment options. See Hanson v. State, 2003 OK CR 12, ¶ 10, 72
P.3d 40, 48 (“that single word [fairly] carries an inescapable
constitutional weight”.) Here, the court asked the entire panel
whether they could give “fair consideration” to each punishment
option. That neither the prosecutor nor defense counsel used the
term “fairly consider” in their examination of the juror is not grounds
for a finding of partiality. Juror D.B.’s responses suggest she might
have trouble considering all three options equally. However, that is
not the standard required by law. To withstand a challenge for cause
concerning punishment issues, a venireperson need only be willing to
consider all the penalties provided by law and not be irrevocably
committed to any one punishment option before the trial has begun.
Gilbert v. State, 1997 OK CR 71, ¶ 26, 951 P.2d 98, 108. Here,
Juror D.B. indicated she could consider all possible punishment
options. Any ambiguities in D.B.’s responses or questions as to her
ability to be a fair and impartial juror were for the trial court to
resolve. Having the benefit of observing D.B.’s demeanor
throughout voir dire, the court found her responses credible and
insufficient to excuse her for cause. Our review of the totality of her
voir dire, written and oral responses, supports the trial court’s
finding that Juror D.B. did not have such a strong bias towards the
death penalty that the performance of her duties as juror would be
prevented or substantially impaired. Accordingly, the trial court did
not abuse its discretion in refusing to remove her for cause.
10
Id. at 225-26 (last alteration in original; internal paragraph numbers and footnote
omitted).
III. Analysis
Standard of review
Because the claim at issue was adjudicated on the merits by the OCCA, our
standard of review is governed by 28 U.S.C. § 2254(d)(1), which provides:
An application for a writ of habeas corpus on behalf of a person in
custody pursuant to the judgment of a State court shall not be granted
with respect to any claim that was adjudicated on the merits in State
court proceedings unless the adjudication of the claim–
(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States . . . .
28 U.S.C. § 2254(d)(1).
In Williams v. Taylor, 529 U.S. 362 (2000), the Supreme Court discussed,
at length, the meaning of the two clauses of § 2254(d)(1). “A state court
decision,” the Supreme Court explained, is “contrary to . . . clearly established
[Supreme Court] precedent if the state court applies a rule that contradicts the
governing law set forth in [the Supreme Court’s] cases,” id. at 405, or “if the state
court confronts a set of facts that are materially indistinguishable from a decision
of th[e] [Supreme] Court and nevertheless arrives at a result different from
[Supreme Court] precedent,” id. at 406. The Court further explained that “a statecourt
decision can involve an ‘unreasonable application’ of th[e] Court’s clearly
11
established precedent in two ways.” Id. at 407. “First, a state court decision
involves an unreasonable application of th[e] Court’s precedent if the state court
identifies the correct governing legal rule from th[e] Court’s cases but
unreasonably applies it to the facts of the particular state prisoner’s case.” Id.
“Second, a state-court decision also involves an unreasonable application of th[e]
Court’s precedent if the state court either unreasonably extends a legal principle
from [the Court’s] precedent to a new context where it should not apply or
unreasonably refuses to extend that principle to a new context where it should
apply.” Id.
Clearly established federal law
Eizember points to several Supreme Court cases as supplying the clearly
established federal law applicable to this claim. To begin with, he points to
Uttecht v. Brown, 551 U.S. 1 (2007) and Morgan v. Illinois, 504 U.S. 719 (1992),
for the principle
that “[t]he Constitution,” in particular “the Sixth Amendment and the Due Process
Clause of the Fourteenth Amendment,” “requires an unbiased jury.” Aplt. Br. at
26. He in turn cites Wainwright v. Witt, 469 U.S. 412 (1985), for the principle
that “[a] juror’s bias need not be proved with ‘unmistakable clarity’ before he
should be excused for cause.” Id. at 27.
Addressing these cases in chronological order, the Supreme Court in Witt
“examine[d] . . . the procedures for selection of jurors in criminal trials involving
12
the possible imposition of capital punishment.” 469 U.S. at 414. In doing so, the
Court outlined several principles that are applicable to Eizember’s appeal. To
begin with, the Court emphasized that, “[a]s with any other trial situation where
an adversary wishes to exclude a juror because of bias, . . . it is the adversary
seeking exclusion who must demonstrate, through questioning, that the potential
juror lacks impartiality.” Id. at 423. In turn, the Court noted, “[i]t is then the
trial judge’s duty to determine whether the challenge is proper.” Id. The Court
explained that “the proper standard for determining when a prospective juror may
be excluded for cause because of his or her views on capital punishment . . . is
whether the juror’s views would prevent or substantially impair the performance
of his duties as a juror in accordance with his instructions and his oath.” Id. at
424 (internal quotation marks omitted). “[T]his standard,” the Court held, “does
not require that a juror’s bias be proved with ‘unmistakable clarity.’” Id. But,
the Court noted, “there will be situations where the trial judge is left with the
definite impression that a prospective juror would be unable to faithfully and
impartially apply the law.” Id. at 425-26. “[T]his is why,” the Court explained,
“deference must be paid to the trial judge who sees and hears the juror.” Id. at
426.
The Court in Witt also emphasized that “a trial judge’s finding that a
particular venireman was not biased and therefore was properly seated [i]s a
finding of fact subject to § 2254(d).” Id. at 428. “[S]uch a finding,” the Court
13
noted, “is based upon determinations of demeanor and credibility that are
peculiarly within a trial judge’s province.” Id. The same holds true, the Court
held, for “a trial court’s determination that a prospective capital sentencing juror
was properly excluded for cause.” Id. at 429. Finally, the Court held that in
making these determinations, a “trial judge is of course applying some kind of
legal standard to what he sees and hears, but his predominant function in
determining juror bias involves credibility findings whose basis cannot be easily
discerned from an appellate record.” Id.
In Morgan, the Supreme Court considered “whether, during voir dire for a
capital offense, a state trial court may, consistent with the Due Process Clause of
the Fourteenth Amendment, refuse inquiry into whether a potential juror would
automatically impose the death penalty upon conviction of the defendant.” 504
U.S. at 721. In addressing this question, the Court held that “[a] juror who will
automatically vote for the death penalty in every case will fail in good faith to
consider the evidence of aggravating and mitigating circumstances as the
instructions require him to do.” Id. at 729. The Court explained that “because
such a juror has already formed an opinion on the merits, the presence or absence
of either aggravating or mitigating circumstances is entirely irrelevant to such a
juror.” Id. “Therefore,” the Court held, “based on the requirement of impartiality
embodied in the Due Process Clause of the Fourteenth Amendment, a capital
defendant may challenge for cause any prospective juror who maintains such
14
views.” Id. And, the Court held, “[i]f even one such juror is empaneled and the
death sentence is imposed, the State is disentitled to execute the sentence.” Id.
The Court in turn held that these principles afford a defendant the “right to
make inquiry” during voir dire, id. at 734, in order to ferret out “those biased
persons on the venire who as jurors would unwaveringly impose death after a
finding of guilt,” id. at 733. Such inquiry, the Court emphasized, is not limited to
“general fairness and ‘follow the law’ questions.” Id. at 734. Instead, the Court
held, a defendant is “entitled, upon his request, to inquiry discerning those jurors
who, even prior to the State’s case in chief, ha[ve] predetermined the terminating
issue of [the] trial, that being whether to impose the death penalty.” Id. at 736.
Finally, in Uttecht, the Supreme Court reviewed its past precedents and
noted that they established “at least four principles” relevant to voir dire during a
capital trial:
First, a criminal defendant has the right to an impartial jury drawn
from a venire that has not been tilted in favor of capital punishment
by selective prosecutorial challenges for cause. Second, the State has
a strong interest in having jurors who are able to apply capital
punishment within the framework state law prescribes. Third, to
balance these interests, a juror who is substantially impaired in his or
her ability to impose the death penalty under the state-law framework
can be excused for cause; but if the juror is not substantially
impaired, removal for cause is impermissible. Fourth, in determining
whether the removal of a potential juror would vindicate the State’s
interest without violating the defendant’s right, the trial court makes
a judgment based in part on the demeanor of the juror, a judgment
owed deference by reviewing courts.
551 U.S. at 9 (internal citations omitted).
15
Eizember’s challenge to the OCCA’s decision
Eizember argues that the OCCA’s decision “was contrary to and an
unreasonable application of well-established Supreme Court precedent.” Aplt. Br.
at 31. In particular, Eizember asserts that the OCCA, in assessing the totality of
D.B.’s responses, “ wrongly conclude[d] that any consideration [of the three
sentencing options] w[ould] do so long as D.B. w[a]s not ‘irrevocably committed
to any one punishment.’” Id. at 28 (quoting Eizember, 164 P.3d at 226). “That,”
Eizember argues, “is not the correct standard.” Id. After carefully examining the
OCCA’s decision and relevant Supreme Court precedent, I and my concurring
colleague agree that the OCCA applied an incorrect legal standard when
addressing Eizember’s assertion that juror D.B. was biased. See Conc. Op. at 1
(McHugh, J., concurring).
The critical flaw in the OCCA’s analysis is that, in evaluating D.B.’s
responses, it applied a legal standard that is inconsistent with clearly established
federal law. To be sure, the OCCA began its analysis by correctly identifying and
quoting from Witt. 164 P.3d at 221. And it concluded its analysis with language
that can fairly be said to track Witt. Id. at 226. The problem, however, is what
lies in between.
After initially identifying and quoting from Witt, the OCCA stated that it
had long “adhered to the principles set forth in Witt.” Id. at 222. The OCCA
explained: “We have said the Witt standard only requires that each juror be
16
willing to consider each of the three statutory punishments: the death penalty, life
imprisonment without the possibility of parole, and life imprisonment (with the
possibility of parole).” Id. Subsequently, in “[r]eviewing D.B.’s responses in
total” and concluding that they “d[id] not demonstrate an impossible bias towards
the death penalty,” id. at 225, the OCCA relied on its own precedent and the
standard developed thereunder, which it believed was consistent with Witt:
Juror D.B.’s responses suggest she might have trouble considering all
three options equally. However, that is not the standard required by
law. To withstand a challenge for cause concerning punishment
issues, a venireperson need only be willing to consider all the
penalties provided by law and not be irrevocably committed to any
one punishment option before the trial has begun.
Id. at 225-26 (citing Gilbert v. State, 951 P.2d 98, 108 (Okla. Crim. App. 1997)).
From what I can determine, this “irrevocably committed” standard was
developed by the OCCA shortly after, and was based upon the OCCA’s
interpretation of, the Supreme Court’s decision in Witherspoon v. Illinois, 391
U.S. 510 (1968). See, e.g., Davis v. State, 665 P.2d 1186, 1191 (Okla. Crim.
App. 1983); Gibson v. State, 501 P.2d 891, 896 (Okla. Crim. App. 1972); Koonce
v. State, 456 P.2d 549, 554 (Okla. Crim. App. 1969). More specifically, the
standard was based upon the following language found in footnote 21 of
Witherspoon:
Just as veniremen cannot be excluded for cause on the ground that
they hold such views [i.e., “general objections to the death penalty or
. . . conscientious or religious scruples against its infliction”], so too
they cannot be excluded for cause simply because they indicate that
17
there are some kinds of cases in which they would refuse to
recommend capital punishment. And a prospective juror cannot be
expected to say in advance of trial whether he would in fact vote for
the extreme penalty in the case before him. The most that can be
demanded of a venireman in this regard is that he be willing to
consider all of the penalties provided by state law, and that he not be
irrevocably committed, before the trial has begun, to vote against the
penalty of death regardless of the facts and circumstances that might
emerge in the course of the proceedings.
301 U.S. at 522 n.21.10
Importantly, the Supreme Court has since held that the language of footnote
21 in Witherspoon does not set forth the controlling standard for assessing
potential jurors in a capital case. In Witt, the Supreme Court recognized that its
post-Witherspoon decisions had deviated from the language of footnote 21 and
“demonstrate[d] no ritualistic adherence to a requirement that a prospective juror
make it ‘unmistakably clear . . . that [she] would automatically vote [for or]
against the imposition of capital punishment . . . .’” 469 U.S. at 419 (first
alteration in original; italics in original). In particular, the Supreme Court noted
that the standard it had announced and applied in Adams v. Texas, 448 U.S. 38
(1980), “differ[ed] markedly from the language of footnote 21” in Witherspoon.
469 U.S. at 421. Because of the confusion caused by these conflicting decisions,
the Supreme Court took “th[e] opportunity to clarify [its] decision in
10 The OCCA was not alone in doing so. As the Supreme Court discussed in
Witt, “[d]espite Witherspoon’s limited holding, later opinions in this Court and
the lower courts have referred to the language in footnote 21 . . . as setting the
standard for judging the proper exclusion of a juror opposed to capital
punishment.” 469 U.S. at 418.
18
Witherspoon, and to reaffirm the . . . standard from Adams as the proper standard
for determining when a prospective juror may be excluded for cause because of
his or her views on capital punishment.” Id. at 424. “That standard [i.e., the
Adams standard],” the Court stated, “is whether the juror’s views would ‘prevent
or substantially impair the performance of his duties as a juror in accordance with
his instructions and his oath.’” Id. (quoting Adams, 448 U.S. at 45). The Court
“note[d] that, in addition to dispensing with Witherspoon’s reference to
‘automatic’ decisionmaking, this standard likewise does not require that a juror’s
bias be proved with ‘unmistakable clarity.’” Id. “This is because,” the Court
stated, “determinations of juror bias cannot be reduced to question-and-answer
sessions which obtain results in the manner of a catechism.” Id.
The problem is that, since Witt, the OCCA has failed to revise or abandon
its “irrevocably committed” standard. Instead, the OCCA has concluded that its
“irrevocably committed” standard is “[e]ssentially . . . the same” as the Witt
standard, Carter v. State, 879 P.2d 1234, 1244 (Okla. Crim. App. 1994), and it
has continued to routinely apply the standard in capital cases, including
Eizember’s. Indeed, in analyzing Juror D.B.’s written and oral responses and
concluding that the state “trial court did not abuse its discretion in refusing to
remove her for cause,” the OCCA emphasized that she “indicated she could
consider all possible punishment options.” Eizember, 164 P.3d at 226.
19
Quite clearly, however, the OCCA’s “irrevocably committed” standard is
not the same as, and indeed is less demanding than, the controlling standard
outlined in Witt (i.e., the Adams standard). The result is that a potential juror
could satisfy the “irrevocably committed” standard and be permitted to sit as a
juror, yet fail to meet the Witt/Adams standard.
And that appears to be precisely the situation in Eizember’s case with
respect to juror D.B. To begin with, D.B.’s responses to questioning by defense
counsel during voir dire clearly suggested that she would have difficulty giving
adequate consideration to the option of life without parole. When asked by
defense counsel if she would “automatically” choose one of the three possible
sentencing options for capital murder, she stated that she “[p]robably” would
choose a sentence of death. Defense counsel followed up on D.B.’s response by
asking her directly if she would automatically choose the death penalty. D.B.
responded, “I would have to look at all three but just off the cuff, it would
probably be death.” Relatedly, D.B. stated that she “would have to try hard” to
give meaningful consideration to the sentence of life without parole. She
explained that death would be her own choice if she were a defendant choosing
between those two options. Notably, these answers, which clearly displayed a
strong, if not automatic, preference for the death penalty, were largely consistent
with her answers on the written questionnaire. For example, on the written
questionnaire, D.B. was asked “What purpose do you think the death penalty
20
serves in our society.” D.B.’s Jury Information Questionnaire at 9. D.B. stated in
response: “Keeps taxpayers from having to support a criminal for the remainder
of their life.” Id. When asked on the questionnaire to “[c]heck the ‘one’
statement which ‘best’ summarizes your general views about capital punishment
(the death Penalty),” D.B. checked option #5, which stated, “I am strongly in
favor of capital punishment as an appropriate penalty.” Id. Lastly, in response to
the question “What are your feelings about the death penalty?,” D.B. stated, “I
have no reservations about seeing someone put to death so long as it has been
proven the person is guilty, especially if they have taken the lives of others.” Id.
It appears to be a close question whether these responses were sufficient to
satisfy the OCCA’s own “irrevocably committed” standard. Although D.B. came
quite close to indicating that she would automatically vote to impose the death
penalty, her responses could perhaps reasonably be construed as indicating a
willingness to at least consider all three available penalties. Under the
Witt/Adams standard, however, it is clear that D.B.’s views would have prevented
or substantially impaired the performance of her duties as a juror in accordance
with her instructions and oath.11 More specifically, D.B.’s responses “made it
11 “[T]he right to jury trial guarantees to the criminally accused a fair trial by a
panel of impartial, ‘indifferent’ jurors.” Morgan, 504 U.S. at 727. Such “jurors
can conscientiously and properly carry out their sworn duty to apply the law to
the facts of the particular case.” Lockhart v. McCree, 476 U.S. 162, 184 (1986).
In the context of a capital murder case, each juror’s “verdict must be based upon
the evidence developed at trial.” Morgan, 504 U.S. at 727. “‘[A] juror who has
(continued...)
21
unmistakably clear that [she] could not be trusted to abide by existing law and to
follow conscientiously the instructions of the trial judge.” Witt, 469 U.S. at 419
(internal quotation marks omitted). Consequently, she should have been stricken
for cause under that standard.
For these reasons, the OCCA’s analysis of Eizember’s challenge to the state
trial court’s refusal to excuse juror D.B. was “contrary to, or involved an
unreasonable application of, clearly established Federal law.” 28 U.S.C. §
2254(d)(1). “[A]lthough” this “does not [automatically] entitle [Eizember] to the
issuance of a writ of habeas corpus, it effectively removes AEDPA’s prohibition
on the issuance of a writ.” Milton v. Miller, 744 F.3d 660, 670-71 (10th Cir.
2014) (internal citation omitted). That in turn “requires us to review de novo his”
claim regarding the trial court’s failure to excuse juror D.B. for cause, “rather
than deferring to the OCCA’s resolution of that claim.” Id. at 671.
The state trial court’s determination
In determining whether “a prospective capital sentencing juror” should be
“excluded for cause,” a trial court “appl[ies] some kind of legal standard to what
[it] sees and hears” from the juror and it ultimately makes a finding of fact
regarding that juror’s state of mind. Witt, 469 U.S. at 429. Generally speaking,
11(...continued)
formed an opinion [prior to trial] cannot be impartial.’” Id. (quoting Reynolds v.
United States, 98 U.S. 145, 155 (1879)).
22
such a finding is “owed deference by reviewing courts” because the trial court
was in a unique “position to assess the demeanor of the” juror. Uttecht, 551 U.S.
at 9.
As I shall proceed to describe, the state trial court in this case made such a
finding regarding juror D.B. But in doing so, the state trial court, presumably and
understandably attempting to follow OCCA precedent, applied an improper legal
standard. As a result, its finding regarding juror D.B.’s impartiality is essentially
meaningless and entitled to no deference because it failed to apply the correct
Witt/Adams standard.
At the beginning of Eizember’s trial, the state trial court split the pool of
potential jurors into three groups. Juror D.B. was in the second group. At the
outset of the questioning of the second group, the state trial court gave the
potential jurors a brief description of the case and informed them that the purpose
of the questioning was to “see[] if there are any of you who have preconceived
notions or ideas or beliefs that you cannot set aside that are not fit to hear this
case.” Tr., Vol. 1 at 164. The state trial court then conducted its own questioning
of the second group. In doing so, it asked the potential jurors:
If you find the defendant guilty of Murder in the First Degree can
you consider all three of these legal punishments, death,
imprisonment for life without parole or imprisonment for life and
impose the one warranted by law and evidence? Okay, now that was
a long question, wasn’t it, but what we are finding out here is that
and remember we are assuming just for the purpose of this question
that you do find the defendant guilty of Murder in the First Degree,
23
can you just give a fair consideration to all three possible
punishments and base your decision solely upon the facts in the case,
not upon any preconceived bias for or against any one of the three
punishments?
Id. at 174-75.
As potential jurors responded, the state trial court repeatedly summarized
the legal standard it was applying:
The question is can you consider all three of the punishments,
possible ranges of punishment?
Id. at 178.
[C]an you give consideration to all three ranges of punishment and
impose the one that the facts and the law requires . . . ?
Id.
Is there anyone on the third row that if the jury found beyond a
reasonable doubt the defendant is guilty of the Murder in the First
Degree could not consider all three of the legal punishments which
are death, imprisonment for life without parole or imprisonment for
life, is there any person on the third row that cannot consider any
one, any one of those three or that would automatically impose one
of those three?
Id. at 180.
What I want to know is just the basic rule, will you consider all three
of them or are [you] telling me that your mindset is against life so
strongly that it cannot be considered or that you have a prejudice
against --
Tr. Vol. 2 at 255.12
12 At no point did the state trial court make any comments that reflected the
controlling Witt/Adams standard, i.e., whether a venireperson’s views would
(continued...)
24
These statements from the state trial court make clear that it was applying
the OCCA’s own “irrevocably committed” standard, rather than the Witt/Adams
standard, in assessing the responses from each of the potential jurors.13 As a
result, its finding that juror D.B. was qualified under the “irrevocably committed”
standard to serve on Eizember’s jury, even if afforded deference by this court,
tells us nothing about whether juror D.B. was qualified to serve under the proper
Witt/Adams standard.
The majority opinion
The majority makes several assertions that are erroneous and thus require a
response. To begin with, the majority is wrong in asserting that Eizember
forfeited any challenge to the OCCA’s use of its own “irrevocably committed”
standard. According to the majority, “[i]n six and a half years of proceedings in
12(...continued)
prevent or substantially impair the performance of his duties as a juror in
accordance with his instructions and his oath.
13 The majority seems to suggest that the questions posed by the state trial
court do not reflect the legal standard that it actually applied in assessing the
answers given by the potential jurors. Maj. Op. at 24 n.5. If that is true, then
what was the point of the state trial court asking these questions? Further, there
is nothing in the trial transcript or elsewhere in the record that suggests the state
trial court applied a standard different than the one reflected by its questions.
Indeed, rarely, if ever, will a trial court issue a written order outlining the legal
standard it is applying in assessing the responses of potential jurors. As a result,
we are left to examine the oral statements that the trial court makes in the course
of examining jurors and ruling on challenges for cause. Doing so in this case
reveals that the trial court was, not surprisingly, relying on Oklahoma’s flawed
interpretation of Witt (an interpretation that erroneously equated the Witt standard
and the OCCA’s own “irrevocably committed” standard).
25
federal court . . . Eizember never argued . . . that the OCCA employed a legal
standard ‘contrary to’ Witt.” Maj. Op. at 18. “Instead,” the majority asserts,
“accepting that the OCCA correctly identified Witt as the governing standard, . . .
Eizember has argued only that the OCCA’s application of that standard — the
answer it gave to the question Witt poses — was unreasonable given the facts in
this particular case.” Id. Indeed, the majority asserts, “there’s nothing in . . .
Eizember’s district court petition” or “in his opening brief in this court” that
“resembl[es] the” legal flaws I have outlined above. Id. As I shall outline below,
however, the majority ignores key passages in Eizember’s federal court pleadings
and ultimately paints a distorted picture of Eizember’s legal challenge to the trial
court’s refusal to strike juror D.B. The majority also wrongly assumes that, in
considering the totality of juror D.B.’s responses, the OCCA actually answered
the question that Witt poses.
Ground I of Eizember’s federal habeas petition alleged that “the trial
court’s erroneous denial of challenges for cause left biased jurors on [his] jury,
depriving him of trial by an impartial jury and due process in violation of the
Sixth and Fourteenth Amendments.” Dist. Ct. Docket No. 24 at 23 (capitalization
omitted). In support of this issue, Eizember outlined the facts relevant to the
claim, as well as the OCCA’s resolution of the claim. Id. at 23-29. In a section
entitled “Argument and Authority,” Eizember then cited Supreme Court and
Tenth Circuit law regarding the right to an impartial jury, and proceeded to
26
discuss the application of that law to jurors D.B. and J.S. Id. at 30-38. In the
subsection discussing juror D.B., Eizember, quoting from the dissenting opinion
of OCCA Judge Chapel, characterized as “‘absurd,’” id. at 32 (quoting Eizember,
164 P.3d at 249 (Chapel, J., dissenting)), the OCCA majority’s “suggest[ion] that
any consideration [of the three available sentencing options] will do as long as the
juror is not ‘irrevocably committed to any one punishment,’” id. (quoting
Eizember, 164 P.3d at 226). Notably, as I have already indicated, Eizember
repeated this argument in his opening appellate brief:
Discounting the fact that D.B.’s “responses suggest she might
have trouble considering all three options equally,” the OCCA
majority wrongly concludes that any consideration will do as long as
D.B. is not “irrevocably committed to any one punishment.”
Eizember, 164 P.3d at 226. That is not the correct standard.
Aplt. Br. at 28. These arguments, though brief, correctly identified the key flaw
in the OCCA’s analysis of juror D.B. and its purported application of the Witt
standard.
The majority, in its effort to avoid the issue, characterizes these as nothing
more than “stray sentences” that “are insufficient to present an argument . . . in a
way that might fairly inform opposing counsel or a court of its presence in the
case.” Maj. Op. at 20. That characterization, however, is simply inaccurate. At
worst, Eizember’s counsel could, and perhaps should, have argued the issue in
greater detail. But nothing about the above-quoted statements was random,
incidental, unintentional, or otherwise lacking in purpose. See Webster’s Third
27
New Int’l Dictionary at 2258 (1993) (defining the adjective “stray”). Quite
clearly, Eizember’s counsel understood and attempted to convey that the OCCA
had applied an improper legal standard in assessing the totality of D.B.’s
responses. Moreover, Eizember’s counsel in no way conceded or accepted that
the OCCA correctly identified and employed the Witt standard. Maj. Op. at 17-
18.
The majority also inaccurately frames my position in this case by
suggesting that I think “we don’t need to reach the question whether the OCCA
reasonably applied Witt because that court didn’t apply Witt at all.” Maj. Op. at
17. The fact of the matter is that I agree we must examine the OCCA’s purported
application of Witt because that is precisely where the OCCA’s error occurred.
As I have previously noted, the OCCA began addressing Eizember’s challenge to
juror D.B. and J.S. by properly identifying Witt as providing the controlling legal
standard. In the course of purportedly applying that standard to juror D.B.,
however, the OCCA actually relied on its own “irrevocably committed” standard;
a standard the OCCA erroneously thought was the equivalent of the Witt standard.
Thus, there was no error on the part of the OCCA in the initial “identification”
stage. Rather, the OCCA erroneously deviated from the Witt standard in the
course of attempting to “apply” it to juror D.B. In light of all this, it is perfectly
understandable why Eizember has focused his arguments on the OCCA’s
purported “application” of Witt.
28
Further, the majority is wrong in suggesting that we can we neatly divide
our analysis in this case between § 2254(d)(1)’s “contrary to” and “unreasonable
application” clauses, or that the error I have outlined necessarily falls within the
“contrary to” clause. Indeed, a reasonable argument can be made that the
OCCA’s error in this case implicates both clauses of § 2254(d)(1). In terms of
the “contrary to” clause, the OCCA actually applied (but did not realize it was
doing so) “a rule that contradicts the governing law set forth in” Witt. Williams,
529 U.S. at 405. In terms of the “unreasonable application” clause, the OCCA
“identifie[d] the correct governing legal rule . . . but unreasonably applie[d] it to
the facts of [Eizember’s] case” by unwittingly substituting a standard (the
“irrevocably committed” standard) that it thought was the equivalent of Witt.
Williams, 529 U.S. at 407.
In any event, it matters not which clause of § 2254(d)(1) we rely upon
because, contrary to the majority’s assertion, both the parties and the district
court consistently treated Eizember’s claim as invoking both clauses of §
2254(d)(1). Further, the respondent in this case has never asserted any type of
forfeiture argument, either in the district court or before us.
In the end, I submit that Eizember, who is challenging the constitutionality
of a death sentence “unique in its severity and irrevocability,” Barclay v. Florida,
463 U.S. 939, 958 (1983) (Stevens, J., concurring), has sufficiently argued the
claim to have placed it at issue both in the district court (which essentially
29
overlooked the key component of the claim) and in this court. At an absolute
minimum, I submit that Eizember’s attempt to raise this issue in the district court
and on appeal, combined with the gravity of his sentence, warrants the exercise of
our discretion in proceeding to address whether the OCCA and the state trial
court, in assessing D.B.’s responses, applied a legal standard that was inconsistent
with Witt. See Abernathy v. Wandes, 713 F.3d 538, 552 (10th Cir. 2013) (stating
that “the decision regarding what issues are appropriate to entertain on appeal in
instances of lack of preservation is discretionary.”).
IV. Conclusion
I ultimately conclude, after considering juror D.B.’s written and oral
responses as a whole, that she should have been stricken for cause under the
Witt/Adams standard and that the state trial court erred in failing to do so. And,
because the constitutional requirement of an impartial jury is violated if even a
single juror is unable to carry out his or her sworn duties, see Ross v. Oklahoma,
487 U.S. 81, 85 (1988), this error was not harmless. As a result, I conclude that
Eizember is entitled to federal habeas relief on this claim, in the form of a new
sentencing proceeding.
30
No. 14-6012, Eizember v. Trammell
McHUGH, Circuit Judge, concurring:
I join the majority’s well-reasoned analysis in most respects, and concur in
its holding that Mr. Eizember is not entitled to habeas relief. I write separately to
note my disagreement with the majority’s conclusion that the OCCA applied the
correct legal standard in evaluating Mr. Eizember’s claim that Juror D.B. was
biased.
In my view, the dissent is correct that the OCCA’s opinion reflects its
continuing erroneous belief that a juror may withstand a challenge for cause
unless she is "irrevocably committed" to any one punishment option. See
Eizember v. State, 164 P.3d 208, 225-26 (Okla. Crim. App. 2007) (“To withstand
a challenge for cause concerning punishment issues, a venireperson need only be
willing to consider all the penalties provided by law and not be irrevocably
committed to any one punishment option before the trial has begun.” (emphasis
added)). This is no longer a correct statement of the law under Wainwright v.
Witt, 469 U.S. 412, 421-26 (1985). And contrary to OCCA authority suggesting
otherwise, the “irrevocably committed” standard is not “[e]ssentially . . . the
same” as the “substantially impaired” standard articulated in Witt. See Carter v.
State, 879 P.2d 1234, 1243-44 (Okla. Crim. App. 1994).
Despite the OCCA’s apparent confusion about the continuing utility of the
“irrevocably committed” standard, I join in the majority’s conclusion that
Mr. Eizember is not entitled to habeas relief for two reasons. First, as the
majority opinion explains, Mr. Eizember forfeited any argument that the OCCA
applied the incorrect legal standard. He did not fairly raise this issue in the trial
court, on direct appeal, during his postconviction proceedings, or in the briefing
to this court. Unlike the dissent, I do not read Mr. Eizember’s federal habeas
petition as fairly asserting a challenge to the OCCA’s use of the “irrevocably
committed” standard. See Dist. Ct. Dkt. 24 at 30-38. Although Mr. Eizember set
forth the general legal standard by explaining that 28 U.S.C. § 2254(d)(1),
permits federal habeas relief if a state court’s decision is “contrary to” law or “an
unreasonable application” of that law, he based his claim for relief solely on the
“unreasonable application” prong. It is apparent the district court did not
understand Mr. Eizember to be challenging the legal standard applied by the
OCCA, because it never addressed the “contrary to law” prong of § 2254(d)(1) in
its decision. Indeed, the district court applied AEDPA deference to the OCCA’s
conclusions, upon the assumption—unchallenged by Mr. Eizember—that the
OCCA applied the correct legal standard. See Dist. Ct. Dkt. 44 at 19-21. Finally,
the dissent identifies two sentences from Mr. Eizember’s appellate brief that can
be read to assert the OCCA did not apply the correct standard. Aplt. Br. at 28.
But Mr. Eizember wholly fails to support that passing assertion with any
argument or citation to supporting authority. This single unsupported statement in
an eighty-page brief is insufficient to place the question fairly before us or the
2
respondent.14 In short, although the dissent has done a masterful job of
constructing this argument on behalf of Mr. Eizember at this advanced stage of
his legal saga, it is forfeited.
Second, even if we were to exercise our discretion to consider the issue
despite Mr. Eizember’s forfeiture, as urged by the dissent, I would reach the same
conclusion with respect to Mr. Eizember’s petition for relief. Where the OCCA
has applied an incorrect legal standard, we are required to review its decision de
novo, without affording deference to the OCCA’s decision. Here, we must
determine whether Juror D.B. was “substantially impaired,” but we do so
constrained by the significant deference afforded trial court decisions regarding
juror bias. See Witt, 469 U.S. at 426 (explaining that “deference must be paid to
the trial judge who sees and hears the juror”). As the majority opinion highlights,
the Supreme Court has instructed that “where the record does not indicate the
standard applied by a state trial judge, he is presumed to have applied the correct
one,” id. at 431, and if the record is ambiguous, we defer to the credibility
determination made by the trial judge after extensive voir dire. Maj. Op. at 24 &
n.5. The dissent infers from the trial court record that the trial judge applied the
wrong standard in striking jurors for cause; I read that record as being silent on
14The dissent notes the respondent has never raised a forfeiture argument
before this court. Dissent at 27. This is true. In fact, the respondent, like the
district court, never addressed the issue of whether the OCCA applied the correct
standard at all. In my view, this merely reflects that fact that Mr. Eizember never
fairly raised this issue.
3
the standard applied by the trial court. Accordingly, I am bound by controlling
authority to defer to the trial court’s assessment of Juror D.B.’s fitness to serve
and, therefore, to deny Mr. Eizember the relief he requests.
4

Outcome: The judgment of the district court is affirmed.

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Comments: Editor's comment: The death penalty was, is and will always be bad public policy.