United States v Barrett

Barrett filed a petition for habeas relief against his death sentence. The district court denied his petition. The panel affirmed in part and reversed and remanded for a hearing on one issue. It held that trial counsel were not ineffective for relying on a strategy of cross examining government witnesses instead of calling their own experts as the tactics worked at prior state proceedings arising from the incident; there was no basis to introduce mental health evidence in guilt phase; there could have been a self-defense instruction, but, the jury found beyond a reasonable doubt that Barrett knowingly shot at police officers and thus there was no prejudice; and there was no lesser included offense to felony murder and the federal courts are not required to create one. The panel held that remand for a hearing was necessary because trial counsel did not investigate mental health issues for sentencing mitigation, there was evidence Barrett had attempted suicide and been involuntarily committed and family members also had mental health issues and this failure may be harmless given the mental health evaluations of Barrett at the time of sentencing that he was dangerous and the hearing can assist the district court in determining if relief should be granted.

Hancock v Trammell

Hancock petitioned for habeas relief from his deaths sentence. The district court denied his petition, but, granted a certificate of appealablity as to four issues. The panel, 3-0 on all issues save the accurate statement issue which was 2-1, affirmed. The majority held that Oklahoma’s Court of Criminal Appeals did not unreasonably affirm the admission of a prior conviction for manslaughter after self-defense was raised as it performed analysis functionally equivalent to federal due process analysis, the Oklahoma court’s explanation of its analysis is equally likely to be an accurate statement of what the state trial court ruled and why and thus Hancock failed to prove the decision was based on a factual inaccuracy. The majority held there was no error in affirming the state trial court’s instruction on self-defense as there was evidence which if believed showed that Hancock willingly engaged in mutual combat as he started physical altercations with a victim after a break in the action and the was evidence that one victim left the house in an effort to withdraw. The majority also held that while there was no need for an instruction the words alone do not trigger a right to self-defense, the jury knew one of the victim’s had swung a bar at Hancock so there was no possibility of confusion. The majority held that all arguments about the prosecution closing argument had been forfeited as Hancock failed to raise them at eth appropriate proceedings. The majority rejected an ineffective assistance claim holding the decision to not seek a criminal attempt manslaughter instruction did not prejudice Hancock as the facts more closely fit heat of passion defense which was charged to the jury and rejected. The majority denied Hancock’s motion to expand the certificate of appealablity as the Oklahoma court followed precedent on sufficiency of the evidence and did not unreasonably apply it; evidence of victims’ motorcycle gang membership was not necessary to explain Hancock’s fear and his flight given evidence of the victim’s drug dealing and their associates in motorcycle gangs; not allowing recordings of Hancock’s interviews with police did not prevent his defense from being presented and the interview recordings do not support the arguments Hancock wanted to make; trial counsel was not ineffective as he impeached the main state witness with one statement and using additional statements for impeachment would not have made a difference; and the evidence that the victims knew they were dying and were in significant pain were sufficient to satisfy the heinous aggravator. The dissent argued that the Oklahoma court’s analysis of the admission of the manslaughter was factually unreasonable as it claimed the trial court relied on a rule which the trial court rejected and on de novo review argued that eth evidence had no legitimate purpose and the repeated use of it during closing argument was prejudicial.

United States v Kupfer

Kupfer appealed his tax evasion and conspiracy to steal federal money convictions and his sentence. The panel affirmed the convictions and remanded for a new sentencing. It affirmed the tax evasion conviction noting it had rejected the same arguments against it as were raised in Kupfer’s codefendant’s appeal. It held that there was no error in admitting evidence of two contracts which were not part of the alleged offense as one was intrinsic to the crime and the other was probative and not prejudicial and any err was harmless. It reversed and remanded on the sentence as the district court chose the wrong offense to calculate the guideline range as it used a conduct based approach abounded in 2000 and failed to use the offense or elements approach. The panel also noted the obstruction of justice enhancement is not available here as failure to report one’s own crime is not obstruction.