In Howell v. Trammell, ___ F.3d ___, 2013 WL 4750554 (10th Cir. Sept. 5, 2013), the Tenth Circuit (Tymkovich, with Lucero and Gorsuch) affirmed the denial of claims related to Howell’s original capital trial and to his sentencing retrial. The panel also denied Howell’s motion for reconsideration of the denial of a COA on claims raised in a second habeas petition based on Atkins.
The claims related to the original capital trial were: (1) juror misconduct [following closing argument at the guilt phase, a juror asked the two deputies who were providing security for the jury whether they were armed]; (2) Confrontation Clause violation [trial court admitted Howell’s co-defendant’s preliminary hearing transcript into evidence at their joint trial]; (3) juror bias [juror failed to reveal eight years of prior employment with the CIA]; and (4) Confrontation Clause violation [admission of testimony by co-defendant’s former attorneys regarding the consistency between what she told them about the crime before meeting with the prosecutor and her testimony at the preliminary hearing]. In addressing the Confrontation Clause claims, the panel looked to pre-Crawford law because Howell’s direct appeal concluded prior to the Crawford decision.
Howell raised a single claim concerning the penalty phase retrial – ineffective assistance of counsel for informing the jury that Howell was on death row. The panel found no clearly established federal law supporting Howell’s assertion that it is a terrible mistake to reveal a prior death sentence as it will predispose the new jury to return with the same verdict. Further, even if counsel could have achieved his purpose of showing good prison adjustment without mentioning the earlier death sentence, that mistake was not enough to overcome Strickland or AEDPA deference. Nor did counsel’s revelation violate Caldwell v. Mississippi.
Finally, the panel reaffirmed the decision to deny Howell a COA on claims related to the post-conviction Atkins jury proceeding. Howell had wanted to raise four issues: (1) the applicable burden of proof; (2) a Batson violation; (3) ineffective assistance of counsel for (a) not raising a Batson objection, (b) not moving to exclude testimony by the state mental health expert, and (c) not presenting an additional witness to establish that Howell had been in special education; and (4) insufficient evidence to support the jury’s finding that Howell had not established mental retardation by a preponderance of the evidence. Howell’s attempt to incorporate by reference briefing and argument on additional issues not expressly briefed in the COA application was rejected.