Lewallen v. Crow

• Court: Court of Appeals for the Tenth Circuit
• Decided: December 21, 2022
• Docket: 21-5069
• Status: Unpublished

Opinion

Appellate Case: 21-5069 Document: 010110787296 Date Filed: 12/21/2022 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT December 21, 2022 _________________________________ Christopher M. Wolpert Clerk of Court WILLIAM TODD LEWALLEN,

Petitioner - Appellee,

v. No. 21-5069 (D.C. No. 4:18-CV-00414-CVE-CDL) SCOTT CROW, (N.D. Okla.)

Respondent - Appellant. _________________________________

ORDER AND JUDGMENT* _________________________________

Before BACHARACH, MURPHY, and CARSON, Circuit Judges. _________________________________

Under the Antiterrorism and Effective Death Penalty Act (“AEDPA”), trying

to persuade a federal habeas court to undo a state court’s resolution of a federal

constitutional issue is often a fool’s errand. The statute requires us to give

considerable deference to the state court’s reasoning, allowing us to grant habeas

relief only if we determine that the state court unreasonably applied clearly

established federal law. See 28 U.S.C. § 2254(d).

An Oklahoma jury convicted Petitioner William Lewallen of child neglect

after he combined pain medication with alcohol and could not care for his young

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. Appellate Case: 21-5069 Document: 010110787296 Date Filed: 12/21/2022 Page: 2

children, resulting in their being locked outside naked in the cold and in a dog cage

while covered in dog feces. Because Oklahoma permits sentencing by juries, the

same jury sentenced Petitioner. Later, the Oklahoma Court of Criminal Appeals

vacated Petitioner’s sentence and remanded for resentencing. At his resentencing

before a different jury, Petitioner wanted to testify. But the sentencing court

excluded Petitioner’s proffered testimony after determining it was irrelevant to

sentencing under Oklahoma law.

After the jury resentenced him, Petitioner appealed, arguing that the

sentencing court deprived him of a federal constitutional right to present his

proffered testimony. The Oklahoma Court of Criminal Appeals disagreed and

affirmed his sentence. So Petitioner petitioned the Northern District of Oklahoma for

a writ of habeas corpus under 28 U.S.C. § 2254. The district court agreed that

excluding Petitioner’s testimony from his resentencing proceeding violated the

Constitution and further concluded that Petitioner satisfied AEDPA’s demanding

standard. So the district court conditionally granted the habeas petition. Respondent

Scott Crow, Director of the Oklahoma Department of Corrections, appealed. We

stayed the district court’s order pending resolution of the appeal, and exercising

jurisdiction under 28 U.S.C. § 2253, we now reverse.

I.

In November 2012 in Tulsa, Oklahoma, a neighbor heard a child in

Petitioner’s yard yelling: “I’m sorry, Daddy. I won’t do it again. Please let me in.

It’s cold.” The neighbor climbed over the fence to find Petitioner’s three-year-old

2 Appellate Case: 21-5069 Document: 010110787296 Date Filed: 12/21/2022 Page: 3

son naked in the forty-two-degree weather, begging his father to let him inside.

Noticing that the child’s lips were purple, the neighbor wrapped the child in a jacket,

took him home, and called the police.

Officers arrived about twenty-five minutes later and knocked loudly on

Petitioner’s door. When nobody answered, they walked around the house, where

they spotted Petitioner’s one-year-old daughter through a window locked in a dog

cage. The officers kicked down Petitioner’s back door and entered the house. They

removed the child from the dog cage, noticing that she was covered in her own and a

dog’s feces. The officers also observed that the floor and walls of the house were

covered in rotting food, soiled diapers, and dog feces. Eventually, the officers found

Petitioner asleep in his bed with another three-year-old sleeping naked next to him.

After some effort, the officers awakened Petitioner, who woke up confused and

disoriented.

Petitioner told the officers that his family had just moved into the house and

that he had been in the hospital the previous evening with two cracked vertebrae.

Petitioner left the hospital against medical advice at 9:00 p.m. because he needed to

watch his children so his wife could go to work. Petitioner said that he had been up

since 4:30 a.m. watching the children. At around 3:30 p.m., Petitioner took a dose of

the painkiller oxycodone for his back pain and drank a beer. That day, Petitioner had

taken four doses of oxycodone, two muscle relaxers, and a seizure medication. He

then laid down with the children to take a nap. That was the last thing Petitioner

remembered before waking up to the police in his house. Petitioner said that he did

3 Appellate Case: 21-5069 Document: 010110787296 Date Filed: 12/21/2022 Page: 4

not know how his children became locked outside and in a dog cage. He also

admitted that he thought he could take care of his children while on medication but

that evidently, he could not. A pediatrician diagnosed all three children with child

neglect, though she noted that the children were healthy, adequately nourished, and

free of injury.

In 2014, an Oklahoma jury convicted Petitioner of child neglect. Oklahoma is

one of a few states that permits juries to sentence noncapital defendants. Petitioner’s

jury recommended a twenty-three-year sentence. The Oklahoma Court of Criminal

Appeals affirmed Petitioner’s conviction but vacated his sentence due to an error in

the jury instructions and remanded for resentencing. See Lewallen v. Oklahoma, 370

P.3d 828, 830 (Okla. Crim. App. 2016). Petitioner opted to again have a jury

sentence him, so the court empaneled a new jury. Because this new jury heard none

of the evidence of Petitioner’s crime, Oklahoma law allowed the state to admit all

evidence admitted in Petitioner’s trial. See Okla. Stat. tit. 22, § 929(c)(1). The state

also admitted evidence of Petitioner’s seven prior felony convictions. Although he

did not testify at his guilt–innocence trial, Petitioner wanted to testify at his

resentencing. After receiving a proffer of Petitioner’s proposed testimony, the court

determined that the testimony was not relevant to sentencing under Oklahoma law

and excluded it. The jury recommended a fourteen-year sentence.

Petitioner appealed, arguing that he had a federal constitutional right to testify

at his resentencing and that the court deprived him of that right when it excluded his

testimony as irrelevant under Oklahoma law. But the Oklahoma Court of Criminal

4 Appellate Case: 21-5069 Document: 010110787296 Date Filed: 12/21/2022 Page: 5

Appeals affirmed. So Petitioner asked the Northern District of Oklahoma for a writ

of habeas corpus on the same grounds. The district court conditionally granted the

petition, ordering Respondent to release Petitioner unless the state resentenced him

and permitted him to testify at the resentencing hearing. Respondent appeals.

II.

When reviewing a district court’s grant of habeas relief, we review the court’s

factual findings for clear error and its legal conclusions de novo. Richie v. Mullin,

417 F.3d 1117, 1120 (10th Cir. 2005). Under AEDPA, federal courts may grant

habeas relief from a state-court judgment only if the state court’s decision “was

contrary to, or involved an unreasonable application of, clearly established Federal

law, as determined by the Supreme Court of the United States or . . . was based on an

unreasonable determination of the facts.” 28 U.S.C. § 2254(d). Only the Supreme

Court’s holdings constitute clearly established federal law under AEDPA. White v.

Woodall, 572 U.S. 415, 419 (2014) (citation omitted). We may not grant habeas

relief simply because, in our view, the state court’s decision was wrong or even

clearly erroneous; the state court’s application of the Supreme Court’s holdings must

be objectively unreasonable. Id. (citation omitted). That is, the state court’s decision

must have been “so lacking in justification” under existing Supreme Court precedent

that “no possibility for fairminded disagreement” exists. Id. at 420 (citation omitted).

Even a strong case on the merits does not render a state court’s contrary holding

unreasonable. Harrington v. Richter, 562 U.S. 86, 102 (2011). Federal habeas

corpus protects petitioners from “extreme malfunctions” in state-court adjudications

5 Appellate Case: 21-5069 Document: 010110787296 Date Filed: 12/21/2022 Page: 6

but does not offer another chance at ordinary error correction like a regular appellate

process. Id. at 102–03 (citation omitted).

III.

Under Oklahoma law, the parties in a resentencing proceeding after remand

may admit exhibits and transcripts of testimony properly admitted in the guilt–

innocence trial and prior sentencing. Okla. Stat. tit. 22, § 929(C)(1). The parties

may also admit “[a]dditional relevant evidence.” Id. Although Petitioner did not

testify in his guilt–innocence trial or previous sentencing, he sought to testify at his

resentencing about his version of events, arguing that his testimony constituted

additional relevant evidence.

Petitioner proffered that if permitted, he would testify about his medical

conditions that left him unable to work and needing medication, his unfamiliarity

with oxycodone and the effect it would have on him, his belief that his children

locked each other outside and in the dog cage, and his unawareness that they had

done so.1 The sentencing court determined that Petitioner’s proffered testimony

constituted either guilt–innocence evidence or mitigation evidence, both of which are

irrelevant to noncapital sentencing under Oklahoma law. See Malone v. Oklahoma,

58 P.3d 208, 209–10 (Okla. Crim. App. 2002) (holding that Oklahoma law does not

allow the presentation of mitigation evidence to a sentencing jury); Rojem v.

1 Although we do not quote the entirety of Petitioner’s proffered testimony, the district court did so. See Lewallen v. Crow, No. 18-CV-0414, 2021 U.S. Dist. LEXIS 150870, at *16–21 (N.D. Okla. Aug. 11, 2021). 6 Appellate Case: 21-5069 Document: 010110787296 Date Filed: 12/21/2022 Page: 7

Oklahoma, 130 P.3d 287, 299 (Okla. Crim. App. 2006) (“[R]esentencing proceedings

should not be viewed as a second chance at revisiting the issue of guilt.”). So the

sentencing court excluded the testimony as irrelevant.

On appeal, the Oklahoma Court of Criminal Appeals rejected Petitioner’s

argument that Rock v. Arkansas, 483 U.S. 44 (1987), guaranteed him a right to

present his excluded testimony to the resentencing jury. The court acknowledged

that under Rock, criminal defendants have a right to testify in their defense. But the

court also noted that Rock did not purport to create an absolute right, acknowledging

that in some cases, other interests may outweigh a defendant’s right to testify. Thus,

the Oklahoma Court of Criminal Appeals held that Petitioner had no right under

Rock to present irrelevant testimony.

In Rock, the Supreme Court addressed an Arkansas evidentiary rule that

barred defendants from testifying about any facts recalled through hypnosis because

of the questionable reliability of hypnotically refreshed testimony. See Rock, 483

U.S. at 56. In that case, the rule excluded most of the defendant’s testimony. See id.

at 57. Although acknowledging the state’s interest in excluding unreliable testimony,

the Supreme Court was unconvinced that a court could never ensure the reliability of

hypnotically refreshed testimony. See id. at 61. Thus, the Supreme Court held that

by not allowing reliability determinations case by case, Arkansas’s categorical rule

excluding all hypnotically refreshed testimony arbitrarily restricted a defendant’s

right to testify at trial. See id.

7 Appellate Case: 21-5069 Document: 010110787296 Date Filed: 12/21/2022 Page: 8

We disagree with the district court that the Oklahoma Court of Criminal

Appeals unreasonably applied Rock. As the Oklahoma Court of Criminal Appeals

acknowledged, Rock did not create an unlimited right to testify. See id. at 55 (“Of

course, the right to present relevant testimony is not without limitation.”). Nor does

Rock prohibit states from applying their evidentiary rules to a defendant’s testimony

when doing so reasonably accommodates legitimate state interests. See id. Here, the

Oklahoma Court of Criminal Appeals determined that excluding Petitioner’s

proffered testimony accommodated Oklahoma’s “most basic rule of admissibility”—

admitting only relevant evidence. App. Vol. II at 163. Thus, the court determined

that excluding Petitioner’s irrelevant testimony did not violate Rock.

In Rock, a state did not exclude testimony deemed irrelevant under state law.

Rather, in Rock a state excluded concededly relevant testimony based on the state’s

categorical determination that such evidence could never be reliable. Given the

different issue here, Rock does not clearly establish that a state must permit

defendants to present sentencing testimony that state law says is irrelevant to the

sentencing determination.

Indeed, Rock suggested the opposite. Rock characterized a defendant’s right

to testify as “the right to present relevant testimony.” 483 U.S. at 55 (emphasis

added). If a defendant’s right to testify extends only to relevant testimony, then

excluding irrelevant testimony does not implicate the right. See United States v.

Palms, 21 F.4th 689, 703 (10th Cir. 2021) (“[T]he Constitution does not mandate the

admission of irrelevant . . . evidence.”). The Oklahoma Court of Criminal Appeals

8 Appellate Case: 21-5069 Document: 010110787296 Date Filed: 12/21/2022 Page: 9

has held that mitigation evidence is irrelevant under Oklahoma law in noncapital

sentencings. See App. Vol. II at 163; Malone, 58 P.3d at 209–10. Thus, Rock does

not clearly establish Petitioner’s right to present mitigation testimony in a sentencing

proceeding.

Nor does Petitioner identify any Supreme Court cases establishing that state

courts must admit mitigation evidence in noncapital sentencing proceedings

regardless of its relevance under state law. The district court stated that whether the

Constitution requires state courts to permit mitigation evidence in noncapital

sentencings is not “the question in this case.” Lewallen, 2021 U.S. Dist. LEXIS

150870, at *60 n.22. But it is the question because mitigation evidence is irrelevant

under Oklahoma law, and Petitioner has no right to present irrelevant testimony. So

unless the Constitution makes Petitioner’s mitigation testimony relevant to his

noncapital sentencing, he had no right to present it.

In a footnote, the district court quoted Justice O’Connor’s concurring opinion

from Gilmore v. Taylor, 508 U.S. 333, 349 (1993) (O’Connor, J., concurring), which

acknowledged that the Supreme Court has not extended to noncapital sentencings the

right recognized in capital cases to present mitigation evidence. Lewallen, 2021 U.S.

Dist. LEXIS 150870, at *59 n.22. Even so, Justice O’Connor concluded that the idea

of “constitutionally relevant evidence” was not limited to capital cases. Id. (quoting

Gilmore, 508 U.S. at 349 (O’Connor, J., concurring)). So the district court

determined that Justice O’Connor’s concurrence “suggests” that Petitioner’s

proffered testimony “may have been ‘constitutionally relevant,’ and thus admissible,

9 Appellate Case: 21-5069 Document: 010110787296 Date Filed: 12/21/2022 Page: 10

even if not relevant under state law.” Id. at *60 n.22. But concurring opinions do not

clearly establish law under AEDPA. Only the Supreme Court’s holdings do that.

White, 572 U.S. at 419. Thus, the Oklahoma Court of Criminal Appeals did not

unreasonably apply clearly established federal law when it held that the sentencing

court did not violate Petitioner’s rights by excluding his mitigation testimony as

irrelevant under state law.

In sum, Rock held that a state may not bar a defendant from offering relevant,

hypnotically refreshed testimony at a guilt–innocence trial based only on the

categorical determination that such testimony is always unreliable. The Oklahoma

Court of Criminal Appeals’ holding that Rock does not require allowing a noncapital

defendant to present irrelevant-under-state-law mitigation testimony at a sentencing

proceeding was not unreasonable. Even if the right to testify at issue in Rock applies

in a sentencing proceeding, the Oklahoma Court of Criminal Appeals’ decision was

not “so lacking in justification” as to eliminate any “possibility for fairminded

disagreement.” White, 572 U.S. at 420. The district court therefore erred in granting

Petitioner a writ of habeas corpus.

REVERSED.

Entered for the Court

Joel M. Carson III Circuit Judge