Summary:

Pennington, a soldier stationed at nearby Fort Sill, entered a Lawton 7-Eleven convenience store at 5:00 a.m. armed with a shotgun he had recently purchased at K-Mart and demanded money.

He fired several rounds, one hitting clerk Bradley Grooms in the back, at least one shot went into a cooler, and several were fired at the cash register.

During the shooting, a second clerk, James Principi, hid in a bathroom, locking himself in.

Despite killing Grooms and using all his ammunition, Pennington left the store empty-handed when the register failed to open.

Pennington was identified to police by Principi and a customer in the store who was acquainted with Pennington.

Police tracked Pennington to his wife's house in Akron, Ohio, where he was arrested.

At trial, Pennington testified that a notorious gang member named "T" entered the store with him and committed the murder.

Pennington was a weightlifter and body builder and on appeal claimed that steroids turned him into a killer. No motive, other than greed and a desire to eliminate witnesses, was determined for the murder.

Citations:

Pennington v. State, 913 P.2d 1356 (Okl.Cr. 1995) (Direct Appeal).
Sallahdin v. State, 947 P.2d 559 (Okl.Cr. 1997) (PCR).
Sallahdin v. Gibson, 275 F.3d 1211 (10th Cir.) (2002) (Habeas).
Sallahdin v. Mullin, 380 F.3d 1242 (10th Cir. 2004) (Habeas).

Final Meal:

A small vegetarian pizza, a large garden salad with Italian dressing, a hot fudge sundae, a bag of Oreo cookies and a pint of milk.

Final Words:

Declined.

ClarkProsecutor.org

Oklahoma Department of Corrections

Inmate: MICHAEL L PENNINGTON
Alias: Sharieff Imani Sallahdin
ODOC# 218361
Birthdate: 11/25/1967
Race: Black
Sex: Male
Height: 5 ft. 06 in.
Weight: 131 pounds
Hair: Black
Eyes: Brown
County of Conviction: Comanche
Date of Conviction: 09/17/1993
Location: Oklahoma State Penitentiary, Mcalester

Oklahoma Attorney General

06/06/2005

News Release - W.A. Drew Edmondson, Attorney General

Pennington Execution Date Set

The Oklahoma Court of Criminal Appeals today set July 19 as the execution date for Comanche County death row inmate Michael L. Pennington. Pennington was sentenced to death for the Oct. 21, 1991, murder of 20-year-old Bradley Thomas Grooms in Lawton. Pennington shot Grooms during a robbery of the 7-11 convenience store near Ft. Sill Boulevard and Rogers Lane where Grooms worked. Currently, a request for an execution date for Tulsa County inmate Kenneth Eugene Turrentine is pending before the court.

ProDeathPenalty.com

A former U.S. soldier who said steroids turned him into a killer was executed Tuesday evening for the 1991 murder of a convenience store clerk during a botched robbery attempt. Michael L. Pennington, 37, a former weightlifter and body builder, was convicted in 1993 of murdering Bradley Thomas Grooms, 20, during a robbery attempt at a Lawton convenience store.

While the same store no longer occupies that location, the memories remain. James Principi, who was working with Bradley Grooms when Pennington shot him in the back, has refused media requests for interviews.

An associate of Principi said he has spent the past 13 years putting this event behind him and going forward with his life, despite the memories. Pennington, who was stationed at nearby Fort Sill, shot Grooms once in the back with a sawed-off shotgun, then left the store empty-handed because he couldn't open the register.

Police tracked Pennington to his wife's house in Akron, Ohio, where he was arrested. Pennington said that anabolic steroids, which he took to enhance his weightlifting and body building regimen, altered his normal behavior and transformed him from a disciplined soldier into a fleeing killer.

Louise Grooms was at her Indiahoma home Tuesday night when her son's killer received a lethal injection at the Oklahoma State Penitentiary. "Mr. Pennington has taken so much from me," Grooms said Monday, commenting on why she wouldn't attend his execution in McAlester. "I know it's all clinical, but it's not something you deal with everyday," Grooms said, expressing her concern for those who witnessed the execution. "I don't want him taking any more from me." Referring to James Principi, Louise Grooms said, "I'm glad that he survived," noting that, while the event surely affected Principi, his family didn't lose him. "With his surviving, that helped the police to identify Pennington."

Allison Carson, the Attorney General's Victims' Witness Coordinator, called Grooms at 6:13 p.m., informing her of Pennington's official time of death. "It's been a weird day," Grooms said. "I have to call some friends in Florida. Maybe it'll sink in by then." The emotion in her voice betraying her, Grooms said, "He got options. He got to pick his last meal and all that stuff." Pennington's options included addressing the witnesses. "No statement," he said, when asked if he wished to make one, then he looked to his left toward his mother, wife and spiritual adviser and mouthed, "I love you."

At a recent clemency hearing, Grooms said Pennington appeared apologetic but then filed a request for a stay of execution in which he alleged his race was the reason he was convicted and sentenced to death. Pennington was black. "That's not it," Louise Grooms said, expressing hope that the execution would send a message. "It's because you're a killer. Once you have killed, what kind of a crime is lying? He's a liar and a killer. He didn't have to do this. You can't get away with committing crimes."

While an exact motive was never determined, the lead detective on Pennington's case said it appeared that he entered the store at 5 a.m. Oct. 21, 1991, to rob it.

He fired several rounds from a sawed-off shotgun he had purchased at Kmart. Bradley Grooms was shot in the back, at least one shot went into a cooler and several were fired at the cash register.

After the initial gunshot, Principi hid in a bathroom, locking himself in. Pennington didn't make off with any cash, police said. He flew out of Lawton and was arrested the next day in his hometown of Akron, Ohio.

Bradley Grooms was barely 20 years old when he was killed. "Bradley was 20 for two months and one week," his mother said. "It's like he's still 19 to me."

National Coalition to Abolish the Death Penalty

Michael L. Pennington - Oklahoma - July 19, 2005 6:00 p.m. CST

The state of Oklahoma is scheduled to execute 37-year-old Michael L. Pennington, a black man, July 19th for the early morning Oct. 21, 1991 shooting death of Bradley Grooms, 20, at a 7-11 convenient store in Comanche County.

He maintains the guilty party was a person he was with, but that person was never found. On appeal, Pennington made several claims ranging from jury misconduct to impermissible admission of evidence. His defense counsel failed to reopen voir dire when one of the jury members claimed that they could not be fair and impartial. He claims that the prosecution’s use of a preemptory challenge on another juror was racially motivated and was a violation of his Fourteenth Amendment rights.

The death penalty is cruel and unusual. It is not a deterrent, and costs more than a life in prison term. Although African Americans make up 12% of the population, they account for 42% of current death row inmates. Since the United States ratified the International Convention on the Elimination of all Forms of Racial Discrimination in 1994, U.S. courts and legislatures have failed to act decisively in the face of evidence that race has a significant impact on capital sentencing.

Please contact Governor Brad Henry and the Board of Pardons and Paroles and ask them to spare the life of Michael L. Pennington.

Former Soldier Executed for 1991 Slaying of Clerk

NewsOK.com

AP - July 20, 2005

McALESTER (AP) - A former U.S. soldier and in-prison convert to Islam was executed Tuesday evening for the 1991 murder of a convenience store clerk.

Michael L. Pennington, 37, who changed his name to Sharieff Sallahdin while at the Oklahoma State Penitentiary, received a lethal injection and was pronounced dead at 6:10 p.m., corrections officials said.

The Oklahoma Court of Criminal Appeals rejected a stay request filed this past week. The U.S. Supreme Court also declined to stop the execution.

Shortly before 6 p.m., the 5-foot-7 man was strapped to a gurney in the execution chamber. Pennington's only comment was, "No statement." He then mouthed the words "I love you," to two family members who witnessed his execution. None of the victim's relatives attended the execution.

The former weightlifter and body builder was convicted in 1993 of the murder of clerk Bradley Thomas Grooms, 20, during a robbery attempt in Lawton on Oct. 21, 1991. Pennington, who was stationed at nearby Fort Sill, shot Grooms once in the back with a sawed-off, 12-gauge shotgun.

After killing Grooms, Pennington fired several times into a cash register and throughout the store. Despite killing Grooms and using all his ammunition, Pennington left the store empty-handed when the register failed to open. Police tracked Pennington to his wife's house in Akron, Ohio, where he was arrested.

For his final meal, he requested a small vegetarian pizza, a large garden salad with Italian dressing, a hot fudge sundae, a bag of Oreo cookies and a pint of milk.

The next execution in Oklahoma is scheduled for Aug. 11. Kenneth Eugene Turrentine, 52, is scheduled to die that day for murdering his girlfriend during a Tulsa County killing spree. Turrentine was convicted of the June 4, 1994, slayings of his sister, Avon Stevenson, his girlfriend, Anita Louise Richardson, and Richardson's children, Tina L. Pennington, 22, and Martise D. Richardson, 13. Turrentine shot Stevenson at her home and Richardson and her children at their residence, both in northeast Tulsa.

Former Soldier Executed for Murder

By Shaun Schafer - Washington Post

AP - July 19, 2005

McALESTER, Okla. -- A former U.S. soldier who said steroids turned him into a killer was executed Tuesday evening for the 1991 murder of a convenience store clerk during a botched robbery attempt. Michael L. Pennington, 37, who changed his name to Sharieff Sallahdin after converting to Islam at the Oklahoma State Penitentiary, was given a lethal injection and pronounced dead at 6:10 p.m., corrections officials said.

Pennington's only comment was, "No statement." He then mouthed the words "I love you" to two family members who witnessed his execution. None of the victim's relatives were there.

The former weightlifter and body builder was convicted in 1993 of murdering Bradley Thomas Grooms, 20, during a robbery attempt at a Lawton convenience store. Pennington, who was stationed at nearby Fort Sill, shot Grooms once in the back with a sawed-off shotgun, then left the store empty-handed because he couldn't open the register. Police tracked Pennington to his wife's house in Akron, Ohio, where he was arrested.

Pennington said that anabolic steroids, which he took to enhance his weightlifting and body building regimen, altered his normal behavior and transformed him from a disciplined soldier into a fleeing killer.

Local killer put to death

By Kevin J. Shutt - Lawton Constitution

July 20, 2005

Louise Grooms was at her Indiahoma home Tuesday night when her son's killer received a lethal injection at the Oklahoma State Penitentiary. Michael L. Pennington's mother, wife and spiritual adviser were present in the small viewing room when three chemicals were injected into his arms via tubes coming from two holes in the wall behind his head.

Pennington, who changed his name while in prison to Sharief Imani Sallahdin, made snoring sounds before his head slowly cocked to his right and his eyes opened halfway. A prison doctor pronounced Sallahdin's time of death as 6:10 p.m., approximately five minutes after the injections began.

"Mr. Pennington has taken so much from me," Grooms said Monday, commenting on why she wouldn't attend his execution in McAlester. "I don't want him taking any more from me."

Pennington was convicted in 1993 of shooting 7-Eleven clerk Bradley Thomas Grooms, 20, in the back at the Fort Sill Boulevard and Rogers Lane location. While the same company no longer occupies that location, the memories remain. James Principi, who was working with Bradley Grooms when Pennington shot him in the back, has refused media requests for interviews.

An associate of Principi said he has spent the past 13 years putting this event behind him and going forward with his life, despite the memories. "I'm glad that he survived," Grooms said, noting that, while the event surely affected Principi, his family didn't lose him. "With his surviving, that helped the police to identify Pennington."

Allison Carson, the Attorney General's Victims' Witness Coordinator, called Grooms at 6:13 p.m., informing her of Pennington's official time of death. "It's been a weird day," Grooms said. "I have to call some friends in Florida. Maybe it'll sink in by then." The emotion in her voice betraying her, Grooms said, "He got options. He got to pick his last meal and all that stuff."

Pennington's options included addressing the witnesses. "No statement," he said, when asked if he wished to make one, then he looked to his left toward his mother, wife and spiritual adviser and mouthed, "I love you."

A saline wash, injected through a pair of intravenous lines flowing from two holes in the wall and ending in each arm, was followed by three drugs used to effect the execution sodium thiopental, vecuronium bromide and potassium chloride. Each drug was punctuated by a shot of saline.

Three executioners inject one drug each, in the order previously listed. Sodium thiopental causes unconsciousness. Vecuronium bromide stops respiration and potassium chloride ceases heart functions. "I know it's all clinical, but it's not something you deal with everyday," Grooms said, expressing her concern for those who witnessed the execution.

At a recent clemency hearing, Grooms said Pennington appeared apologetic but then filed a request for a stay of execution in which he alleged his race was the reason he was convicted and sentenced to death. Pennington was black. "That's not it," Grooms said, expressing hope that the execution would send a message. "It's because you're a killer. Once you have killed, what kind of a crime is lying? He's a liar and a killer. He didn't have to do this. You can't get away with committing crimes."

While an exact motive was never determined, the lead detective on Pennington's case said it appeared that he entered the store at 5 a.m. Oct. 21, 1991, to rob it. He fired several rounds from a sawed-off shotgun he had purchased at Kmart. Bradley Grooms was shot in the back, at least one shot went into a cooler and several were fired at the cash register.

After the initial gunshot, Principi hid in a bathroom, locking himself in. Pennington didn't make off with any cash, police said. He flew out of Lawton and was arrested the next day in his hometown of Akron, Ohio.

Bradley Grooms was barely 20 years old when he was killed. "Bradley was 20 for two months and one week," his mother said. "It's like he's still 19 to me."

Pennington v. State, 913 P.2d 1356 (Okl.Cr. 1995) (Direct Appeal).

Defendant was convicted in the District Court, Comanche County, Peter Clinton Moore, J., of capital murder and defendant appealed. The Court of Criminal Appeals, Johnson, P.J., held that: (1) juror was properly not excused for cause; (2) trial court substantially complied with procedure for drawing prospective jurors' names; (3) prospective jurors were properly excused for cause; (4) prosecutor provided race-neutral explanation for use of peremptory challenge; (5) statute which allowed person 70 years of age or older to opt out of jury service was not unconstitutional; (6) in-court identification of defendant was independently reliable; (7) defendant was not entitled to reversal based on prosecutor's reference to his postarrest silence; (8) defendant waived his right to remain silent; (9) shotgun was admissible; (10) defendant's wife and father-in-law had authority to consent to search house; (11) police reasonably believed that wife and father-in-law had authority to consent to search bag and clothing; (12) check which defendant wrote to purchase gun and testimony that defendant sawed off barrel of shotgun were admissible; (13) postmortem photographs of victim were admissible; (14) steriod rage syndrome evidence was not admissible; (15) finding that defendant created great risk of harm to others was not supported by evidence; (16) finding that defendant killed victim to avoid arrest or prosecution was supported by evidence; (17) finding that defendant presented continuing threat to society was supported by evidence; (18) complaint to prison and letter were authenticated; (19) admission of victim impact evidence was not unconstitutional; (20) trial court's refusal to permit certain mitigating evidence was not outcome determinative; and (21) continuing threat aggravating circumstance was not vague or capable of arbitrary and capricious use. Affirmed.

JOHNSON, Presiding Judge:

STATEMENT OF THE CASE

Appellant, Michael L. Pennington, was tried by jury for the crime of First Degree Murder (malice aforethought) in violation of 21 O.S.1991, § 701.7, in Case No. CRF-91-386, in the District Court of Comanche County before the Honorable Peter Clinton Moore. The State filed a Bill of Particulars alleging three aggravating circumstances: (1) the defendant knowingly created a great risk of death to more than one person; (2) the murder was committed for the purpose of avoiding or preventing lawful arrest or prosecution; and (3) that defendant was a continuing threat to society. Appellant was represented by counsel. The jury returned a verdict of guilty and set punishment at death. The trial court sentenced appellant in accordance with the jury's verdict. From this Judgment and Sentence, appellant has perfected his appeal to this Court.

SUMMARY OF FACTS

On October 21, 1991, James Principe and Bradley Grooms were working the late shift at a 7-11 convenience store located in Lawton at Fort Sill Boulevard and Rogers Lane.

At approximately 5:00 a.m. that morning, Principe and Grooms were stocking shelves, with Grooms located toward the front of the store. During this time, a black male entered the store, went to the bathroom, and left. This male was wearing a black and white outfit with matching top and pants.

Principe described the pattern as cow-like with black and white spots. About one minute after this male left the store, Principe while still stocking shelves in the back of the store, heard a loud bang. He stood up from his crouched position and noticed another black man wearing sunglasses standing just inside the door of the store looking in the direction of Grooms.

Principe immediately heard Grooms exclaim, "Oh shit." With that, Principe ducked down and made his way to the back of the store.

As he was running, he looked back and saw the man again taking a step towards Grooms. At that point, Principe got a good look at the shooter and noticed he was wearing a black trench coat. As he continued moving to the back of the store, Principe heard another shot. Principe ran to the bathroom and locked himself inside.

While locked in the bathroom, Principe heard several more shots. Then he heard the front door buzzer, and then some voices. He heard the door buzzer again, and then came out of the bathroom and contacted the police. He then observed Grooms laying motionless between the first two aisles of the store. Principe later identified appellant as the black man who did the shooting.

During a canvass of the neighborhood for witnesses, an individual was discovered who could shed some light on what occurred while Principe was hiding in the bathroom and heard the sound of voices. Lynn Renee Smith had stopped at the 7-11, just after the shooting, to get a cup of ice.

Coincidentally, she had known appellant for about three years and had seen him earlier that evening at the Peacock Lounge. As Smith pulled up to the store, she noticed appellant behind the cash register.

Smith believed that appellant must work at the store. He asked her what she wanted. When she told him, he gave her a cup and she got some ice. She did not see anyone else while she was in the store, and she noticed that it appeared to be unusually quiet.

Upon leaving the store, Smith drove to her sister's house located approximately fifty yards from the 7-11 and backed into the driveway. As she looked towards the 7-11, Smith saw appellant, wearing a black trench coat, leave the store and drive away in his car. Smith also testified that appellant was wearing a black baseball style cap, which he had on backwards. She further noted that he had on sunglasses, which were not mirrored, and described appellant as being about 5' 5" tall. She did not see appellant wearing the black trench coat in the store.

The neighborhood canvass turned up two other witnesses. Sylvia Smith (no relation to Lynn Smith) lived in the neighborhood in the area of the 7-11. Smith heard a gunshot between 4:30 and 5:00 a.m. As she looked out of her window, she saw two black males running up the street away from the 7-11.

Jose Rodriguez lived almost next door to Sylvia Smith. He left for duty at Fort Sill about quarter after 5:00 a.m. on the same morning. He stated that he also saw two individuals running. He was unable to describe the second runner, but he was able to recall that the first individual appeared to have on a knee length black coat.

After leaving the store, appellant, who was a soldier stationed at Ft. Sill, returned briefly to the barracks and changed clothes. He then went to the airport and took the next available flight to Dallas with an ultimate destination of Akron, Ohio.

Appellant was taken into custody the following day by Ohio authorities at the home of his wife in Akron. While in custody, appellant volunteered information as to the location of the shotgun. The shotgun was located in an orange duffel bag in the basement of the Akron residence along with a green compass pouch containing four shotgun shells.

Subsequent ballistics tests conducted on the shotgun revealed that the five expended shells from the scene, and one expended shell found in the orange duffel bag, were fired from the shotgun found in the orange duffel bag. Another search was conducted the next day in the area where the duffel bag had been recovered. This time the police recovered a black baseball style cap, a three quarter length trench coat, and a gray and black sports sweatshirt.

The medical examiner, Dr. Boatsman, testified that the cause of Bradley Groom's death was a shotgun wound to the chest. Twelve pellet wounds were found in the left back and an exit wound in the back right area of the neck.

An examination of the scene indicated that nothing was missing from the store after the incident. However, the cash register drawer had been pulled and pried upon, and also apparently fired at, since four large holes were in the front drawer area.

During the homicide investigation, the police had learned that appellant was absent without leave from his unit. They also learned of Priscilla Jordan, who was appellant's girlfriend in Lawton. From Jordan the police discovered appellant owned a shotgun which he kept in an orange duffel bag.

With this information the police revisited the personnel at appellant's battery and obtained information that led them to the K-Mart store where appellant had purchased a Maverick Shotgun.

At trial, the defense called appellant. Appellant first described his early life and military career. He also described his problems with the premature birth of his child and his plans to leave the military.

The morning of the 7- 11 shooting, appellant decided to go home to Akron even though his discharge papers had not yet been processed. He testified, that in order to raise some money, he made a deal to buy some firearms to take home to sell.

This deal was entered into with a man known only as "T." Appellant went on to describe his version of how the events unfolded in the early morning hours of October 21, 1991. "T" and two other black males got into appellant's car somewhere near the Peacock Lounge. The group rode around awhile to make sure they were not followed. Eventually they directed appellant to stop near the 7-11 on Fort Sill Boulevard. Appellant parked near a massage parlor and pawn shop close to the store. One of the men exited the vehicle saying he was going to get the stuff.

Some time passed, so appellant decided to go into the 7-11 to purchase some Lactaid milk. He took his $1,500.00 (to purchase the guns) with him, but left his gun behind in the car. He went on to testify that while he was in the store, "T" walked in carrying appellant's shotgun. "T" immediately began firing the gun. With that, appellant jumped behind the checkout counter. Then "T" came behind the checkout counter and told appellant not to worry, but to just give him the money he knew appellant had on him to purchase the guns. Appellant gave "T" his cash. After that "T" focused his attention on the locked cash register. "T" got mad and shot the cash register several times and tried unsuccessfully to yank it open. After that "T" ran out of the store with appellant's gun.

Appellant states that he remained in the store in a state of shock. He looked over and saw Grooms motionless and assumed he was dead. This is the point at which Lynn Smith entered the store and asked for the cup of ice. After she left, appellant got a grip on himself and ran out of the store. As he was running toward the car he saw his shotgun laying on the ground and picked it up as a reflex action. He then drove off in his car and went back to the post. Appellant stated that he did not call the police because he feared "T" who was a notorious gang member. "T" was never found or identified. Additional facts will be discussed as pertinent to the assignments of error.

* * *

After carefully reweighing the aggravating circumstances and all mitigating evidence, we find the aggravating circumstances far outweigh the mitigating evidence and that the sentence of death is factually substantiated and appropriate. When reweighing, this Court must review the aggravating and mitigating evidence to ascertain the role which the invalid "great risk of death to more than one person" aggravator played in the jury sentencing process. Stringer v. Black, 503 U.S. 222, 230, 112 S.Ct. 1130, 1136, 117 L.Ed.2d 367 (1992). The Court must then determine, through the reweighing process, what the jury in this case would have decided had it not considered the invalid aggravator. Stringer, 503 U.S. at 230, 112 S.Ct. at 1137 Richmond v. Lewis, 506 U.S. 40, 49, 113 S.Ct. 528, 535, 121 L.Ed.2d 411 (1992).

This Court has provided a thorough analysis of the evidence offered in support of each of the aggravating circumstances, as well as, the evidence in mitigation. We find the discussion above to be sufficient. We do not need to set forth the facts again except to say guilt is clear. We have appellant at the scene, we have him with the death weapon together with an eyewitness and a witness that knows appellant and places him at the crime scene.

Upon carefully considering and reviewing the evidence which supports the two valid aggravating circumstances, as well as the evidence which may be considered mitigating, this Court finds the sentence of death was factually substantiated and appropriate. Furthermore, we find the jury's consideration of the invalid aggravator did not play a significant role in its decision to sentence appellant to death as the evidence supporting the two valid aggravators was concrete and substantial. Finding no error warranting reversal or modification, the Judgment and Sentence is AFFIRMED.

AN APPEAL FROM THE DISTRICT COURT OF COMANCHE COUNTY THE HONORABLE PETER CLINTON MOORE, DISTRICT JUDGE Appellant, Michael L. Pennington, was tried by jury and convicted of Murder in the First Degree (Malice Aforethought). Appellant was tried in Case No. CRF-91-386, in the District Court of Comanche County before the Honorable Peter Clinton Moore, District Judge. The jury recommended punishment of death. The trial court sentenced accordingly. From this Judgment and Sentence, appellant has perfected this appeal. The Judgment and Sentence of the trial court is AFFIRMED.

Sallahdin v. State, 947 P.2d 559 (Okl.Cr. 1997) (PCR)

Following defendant's conviction for first-degree malice aforethought murder, in the District Court, Peter Clinton Moore, District Judge, and the affirmance of defendant's conviction and sentence on appeal, 913 P.2d 1356, defendant filed application for postconviction relief and requests for discovery and evidentiary hearing. The Court of Criminal Appeals, Johnson, J., held that: (1) claim of ineffective assistance of trial counsel was barred; (2) claim of ineffective assistance of appellate counsel was not supported by any evidence; and (3) requests for discovery and evidentiary hearing would not be granted. Denied. Lumpkin, J., concurred in the results and filed an opinion. Lane, J., concurred in the results and filed an opinion.

OPINION DENYING APPLICATION FOR POST-CONVICTION RELIEF AND REQUESTS FOR AN EVIDENTIARY HEARING AND DISCOVERY

JOHNSON, Judge.

Petitioner, Sharieff Sallahdin (formerly Michael Pennington), was tried by a jury in the District Court of Comanche County, Case No. CRF-91-386, before the Honorable Peter Clinton Moore. Petitioner was convicted of First Degree Malice Aforethought Murder. The jury found Petitioner guilty and sentenced him to death after finding three aggravating circumstances. The trial court sentenced Petitioner accordingly on September 17, 1993. On direct appeal in Case No. F-93-968, Petitioner's conviction and sentence were affirmed. Pennington v. State, 913 P.2d 1356 (Okl.Cr.1995) , cert. denied, 519 U.S. 841, 117 S.Ct. 121, 136 L.Ed.2d 72 (1996). A Petition for Rehearing was filed on January 17, 1996. This Petition was denied on April 26, 1996.

On January 15, 1997, Petitioner filed an initial application for postconviction relief together with requests for discovery and an evidentiary hearing with this Court. [FN1] The issues that may be raised as well as our scope of review in this matter are narrowly defined as follows:

FN1. 22 O.S. Supp.1995, § 1089(D)(1) provides that an original application for post-conviction relief shall be filed with this Court. The recent amendments to the Post-Conviction Procedure Act do not require the State to respond to the original application and no State response was filed.

The only issues that can be raised in post-conviction are those which were not or could not have been raised in a direct appeal and support a conclusion either that the outcome of the trial would have been different but for the errors or that the defendant is factually innocent. On review, this Court must determine whether controverted, previously unresolved factual issues material to the legality of the applicant's confinement exist, whether the applicant's grounds were or could have been previously raised, and whether relief may be granted.... This Court will not consider an issue which was raised on direct appeal and is therefore barred by res judicata, nor will we consider an issue which has been waived because it could have been raised on direct appeal but was not. McGregor v. State, 935 P.2d 332, 333-334 (Okl.Cr.), cert. denied, 521 U.S. 1108, 117 S.Ct. 2489, 138 L.Ed.2d 996 (1997) [footnotes omitted]. Based upon the foregoing, we will not consider the claims raised in Petitioner's first through eighth and tenth propositions of error because they either were raised on direct appeal and are now barred by res judicata, or could have been raised on direct appeal and are now waived.

These propositions of error are as follows:

I. The prosecutor's references to petitioner's post arrest silence violated Petitioner's rights to due process of law in violation of the Eighth and Fourteenth Amendments to the United States Constitution and Article II, §§ 7 and 9 of the Oklahoma Constitution.

II. Misrepresentations by members of the jury of facts that would have supported reasons to challenge those jurors for cause denied Mr. Sallahdin a trial before an impartial jury as required by the Sixth, Eighth and Fourteenth Amendments.

III. The jury was not properly instructed regarding life without parole, and as a result Mr. Sallahdin was denied due process of law and a reliable sentencing proceeding in violation of the Eighth and Fourteenth Amendments of the United States Constitution and Article II, §§ 7 and 9 of the Oklahoma Constitution.

IV. Mr. Sallahdin was denied his Sixth Amendment right to a trial by a fair and impartial jury, his Eighth Amendment right to a reliable sentencing hearing, and his Fourteenth Amendment right to due process of law because a member of his jury was asleep during the defense's case.

V. The trial court deprived Mr. Sallahdin of a fair and impartial jury, as guaranteed by the Sixth, Eighth, and Fourteenth Amendments, by refusing to sustain his challenges for cause against a juror who, after being accepted for cause, indicated he could not be fair and impartial.

VI. Mr. Sallahdin's death sentence violates the Eighth and Fourteenth Amendments of the United States Constitution because the "Continuing Threat" aggravating circumstance, as it is currently being applied is unconstitutionally vague.

VII. Failure of the Information to properly allege the elements of the offense of First Degree Malice Aforethought Murder under the law in effect at the time of the offense resulted in fundamental and reversible error. This error violated Mr. Sallahdin's rights under the Fifth, Eighth and Fourteenth Amendments.

VIII. The introduction of the Appellant's shotgun, other items seized from his belongings, testimony about these items, and the results of scientific tests concerning these items violated Appellant's rights under the Fourth, Eighth and Fourteenth Amendments of the United States Constitution and Article II, §§ 7, 9 and 30 of the Oklahoma Constitution as these items were seized without a search warrant and the police failed to obtain valid consent.

X. Mr. Sallahdin's due process rights under the Fifth and Fourteenth Amendments to the United States Constitution were violated when the Prosecutor failed to disclose exculpatory evidence to the defense.

* * *

After carefully reviewing Petitioner's application for post-conviction relief and requests for discovery and an evidentiary hearing, we find that Petitioner is not entitled to relief. Accordingly, Petitioner's Application for Post-Conviction Relief and Application for an Evidentiary Hearing and Discovery are DENIED.

Sallahdin v. Gibson, 275 F.3d 1211 (10th Cir.) (2002) (Habeas).

State prisoner whose conviction of capital murder was affirmed on appeal, 913 P.2d 1356, petitioned for writ of habeas corpus. The United States District Court for the Western District of Oklahoma, Wayne E. Alley, J., denied the petition, and petitioner appealed. The Court of Appeals, Briscoe, Circuit Judge, held that: (1) defendant was not deprived of a fair and impartial jury; (2) information was constitutionally adequate; (3) trial court's failure to define life without parole for the jury was not constitutional error; (4) prosecutor's references to post-arrest silence did not violate defendant's right to remain silent; (5) two aggravators applied to sentencing were supported by sufficient evidence; (6) continuing threat aggravator was constitutional; (7) instructions sufficiently informed the jury that it did not have to be unanimous to find and apply mitigating circumstances to sentence; (8) proposed testimony of psychiatrist as defendant's steroid expert in sentencing phase was admissible; (9) defendant was prejudiced by the absence of the proposed steroid testimony; and (10) determination of counsel's reasons, or lack thereof, for foregoing the use of the expert's testimony during the sentencing phase required remand to district court. Affirmed in part, reversed in part, and remanded.

BRISCOE , Circuit Judge.

Petitioner-Appellant Sharieff Imani Sallahdin, formerly Michael Pennington, [FN1] appeals from the district court's denial of his federal habeas corpus petition brought pursuant to 28 U.S.C. § 2254. In his petition, Sallahdin lodged eleven challenges to his first degree murder conviction and death sentence. His appeal contests the district court's disposition of each challenge, raising the following issues: (1) four challenges concerning the jury and whether Sallahdin was deprived of due process of law and a fair and impartial jury; (2) whether the information was constitutionally adequate; (3) whether the trial court's failure to define life without parole for the jury was constitutional error; (4) whether the reference to post-arrest silence violated his constitutional rights; (5) whether the two aggravators applied to his sentencing are supported by sufficient evidence; (6) whether the continuing threat aggravator is unconstitutional because it is vague and applied in a standardless manner; (7) whether the jury instructions failed to inform the jury that it did not have to be unanimous to find and apply mitigating circumstances to his sentence; and (8) whether Sallahdin was deprived of admissible mitigation evidence concerning steroid-induced psychosis. This court has jurisdiction pursuant to 28 U.S.C. § 1291.

FN1. Sallahdin formally changed his name.

Sallahdin's most troubling challenge concerns whether trial counsel was ineffective for failing to present mitigating evidence of the effects of Sallahdin's steroid use on his behavior at the time of the crime. After carefully examining the record, we are persuaded that, had this evidence been presented, there is a reasonable probability the outcome of the sentencing phase would have been different, i.e., that the jury would have imposed a sentence other than death. Because, however, we are not privy to trial counsel's reasons for not presenting this evidence, and because we can envision circumstances where it would have been constitutionally reasonable for counsel not to introduce this evidence despite its potentially mitigative effect, we find it necessary to reverse and remand this case to the district court for an evidentiary hearing solely on this specific issue concerning trial counsel's performance. As regards all other issues raised by Sallahdin, we affirm.

FACTS

The pertinent facts concerning the murder are undisputed as summarized by the Oklahoma Court of Criminal Appeals in the opinion disposing of his direct criminal appeal. Pennington v. State, 913 P.2d 1356 (Okla.Crim.App.1995), cert. denied, 519 U.S. 841, 117 S.Ct. 121, 136 L.Ed.2d 72 (1996). At approximately 5:00 a.m. on October 21, 1991, James Principe and Bradley Grooms were stocking shelves at the 7-Eleven convenience store where they worked. Principe heard a loud bang and saw a black man looking in Grooms' direction. Principe ducked, made his way to the back of the store and locked himself in the bathroom.

After emerging from the bathroom, he contacted the police and then saw Grooms lying motionless on the floor with a gunshot wound to the chest. Grooms died from his injuries. Principe later identified Sallahdin as the man who shot Grooms. That same morning, Lynn Smith stopped at the 7-Eleven to get some ice. Sallahdin was behind the counter and gave her a cup of ice. She did not see anyone else in the store. Upon leaving, she looked back and saw Sallahdin leave the store and drive away in a car. The following day, Sallahdin was taken into custody at his wife's home in Akron, Ohio.

At trial, Sallahdin testified another man committed the murder. The jury convicted Sallahdin of first degree malice murder, which is punishable by death in Oklahoma. When the trial proceeded to the sentencing phase, the State sought the death penalty based on three aggravators: (1) Sallahdin posed a continuing threat to society; (2) he committed the murder to avoid arrest or prosecution; and (3) he knowingly created a great risk of death to more than one person. In addition to the guilt phase evidence about the crime, the State presented evidence of threats Sallahdin made while incarcerated. The jury found all three aggravating circumstances. After Sallahdin presented his own testimony in mitigation and mitigating testimony from friends, family, commanders, peers and others who knew him; the jury determined the aggravating factors outweighed the mitigating evidence and fixed punishment at death.

On direct appeal, the Oklahoma Court of Criminal Appeals affirmed the conviction and death sentence, after striking the great risk of death to more than one person aggravator and reweighing the remaining aggravators against the mitigating evidence. That court later denied post-conviction relief. Sallahdin v. State, 947 P.2d 559 (Okla.Crim.App.1997) .

* * *

Steroid-Use Evidence

Sallahdin argues the trial court erroneously denied him an opportunity to present mitigating evidence that he was experiencing psychiatric effects from anabolic steroid use at the time of the crime. According to Sallahdin, the steroids, taken to enhance his weight lifting and body building regimen, altered his normal behavior and therefore the trial court wrongly prevented him from explaining what transformed him from a disciplined soldier into a fleeing killer. He contends that if this steroid evidence had been admitted, he probably would not have received a death sentence.

He also argues his conviction and death sentence are constitutionally infirm because counsel rendered ineffective assistance in failing to investigate and present evidence of the effects of his anabolic steroid use on his behavior at the time of the crime. Apt. Reply Br. at 19-20.

Preclusion of Steroid Evidence by Trial Court--Prior to trial, Sallahdin disclosed that he intended to present the testimony of Dr. Harrison Pope, a psychiatrist and steroid expert. The State filed a motion in limine requesting that the trial court enter an order prohibiting any testimony concerning "Steroid Rage Syndrome." At the hearing on the motion, Dr. John A. Call, a psychologist, testified for the State that "Steroid Rage Syndrome" is not generally accepted as a bona fide diagnosable *1233 syndrome. Tr. of Hear'g of May 4, 1993 at 4-6, 14.

During the hearing, Sallahdin's counsel stated the defense intended to call Dr. Pope only at the sentencing phase to introduce expert testimony that steroid use may explain the change in Sallahdin's personality, and did not necessarily intend to refer to "Steroid Rage Syndrome." See id. at 18-19.

The trial court granted the State's motion in limine, limiting its decision to finding only that the State showed there is no scientific theory called "Steroid Rage Syndrome." Id. at 19-20. The court acknowledged there may be other reasons steroid-use evidence could be admissible and ordered written notice of Dr. Pope's testimony. Id. at 20, 30; D. Ct. Rec. Vol. 3 at 77. In sum, contrary to Sallahdin's contention the trial court denied him the opportunity to present any steroid use testimony during either stage of the trial, the trial court precluded only expert testimony concerning "Steroid Rage Syndrome," not all testimony, be it expert or otherwise, concerning the effects of steroid use on Sallahdin.

Sallahdin filed a discovery supplement withdrawing Dr. Pope as a possible first-stage witness and, in response to the trial court's order, delineating Dr. Pope's anticipated sentencing phase testimony. The supplement anticipated Dr. Pope would testify: (1) steroids caused manic symptoms while Sallahdin took them and depressive symptoms and impulse control disorder during his withdrawal from them; and (2) to a reasonable medical certainty, the change in Sallahdin's behavior was attributable to steroid use. D. Ct. Rec. Vol. 3 at 70-73. The supplement also represented Dr. Pope would not testify that "Steroid Rage Syndrome" is a mental illness or that it was identified as such in the medical or scientific communities. Id. at 73.

Approximately one month before trial, in a motion to prohibit the State's expert from examining Sallahdin, counsel again set forth his purpose for presenting expert testimony on the effect of steroids on Sallahdin. D. Ct. Rec. Vol. 3 at 92-96.

The motion indicated steroid use was comparable to problems caused by alcohol consumption, was not a mental illness, and the steroid evidence would only be used as mitigating evidence during the sentencing phase of the trial to show the effects of steroid use on Sallahdin-- not to show steroids caused him to commit the murder, or to lower the degree of homicide, or as a defense. Id. at 92, 93-94. Despite the court-ordered supplementation of Dr. Pope's testimony and the motion delineating the intended use of the testimony, counsel failed to call on Dr. Pope to testify or to present any steroid evidence to the jury at either stage of the trial.

Sallahdin now argues on federal habeas that the trial court erred in precluding evidence concerning the effects of steroid use during the trial. Neither the trial court nor the state appellate court addressed this specific issue on the merits. See Pennington, 913 P.2d at 1370. The federal district court did not hold an evidentiary hearing on the matter and relied solely on the state court record. Accordingly, we review the federal district court's conclusions of law de novo and perform an independent review of its factual findings. See LaFevers, 182 F.3d at 711;

The federal district court determined the trial court did not err in refusing to admit steroid-use evidence because: (1) "Steroid Rage Syndrome" was not shown to be a reliable theory at the time of the hearing, under either Frye or Daubert; [FN7] (2) counsel specifically denied any intent to use the testimony during the guilt phase; and (3) counsel did not request permission to present the evidence at the sentencing proceeding. ROA, Vol. 1, Doc 27 at 5-6; 8-11. Although we agree with the district court's determinations, the dispositive fact is that the trial court did not actually preclude presentation of evidence about the effects of steroid use on Sallahdin.

The trial court's ruling precluded only evidence of "Steroid Rage Syndrome." The court expressly left open the possibility of introducing other steroid evidence and ordered counsel to provide the State with clarification of the steroid expert's probable testimony. Counsel subsequently provided a detailed discovery supplement containing the steroid expert's anticipated testimony. D. Ct. Rec. Vol. 3 at 70-73. Counsel, however, did not attempt to present such evidence to the jury and did not ask the trial court for a ruling on its admissibility. Consequently, the trial court never ruled on the admissibility of the steroid use evidence and did not preclude Sallahdin from introducing such evidence at either stage of the trial. Accordingly, the trial court did not err as Sallahdin claims.

* * *

CONCLUSION

After considering Sallahdin's arguments on appeal, we are not persuaded that constitutional error infected the first stage of his trial. Likewise, we reject the majority of his arguments concerning his sentence. We do, however, have concerns regarding his claim that trial counsel was ineffective for failing to present steroid-use evidence during the second stage of trial. We AFFIRM in part, and REVERSE in part, and REMAND the case to the district court for an evidentiary hearing and further proceedings consistent with this opinion.

Sallahdin v. Mullin, 380 F.3d 1242 (10th Cir. 2004) (Habeas).

Background: State prisoner whose conviction for capital murder and death sentence was affirmed on direct appeal, 913 P.2d 1356, petitioned for writ of habeas corpus. The District Court, Wayne E. Alley, J., denied the petition, and petitioner appealed. The Court of Appeals, Briscoe, Circuit Judge, 275 F.3d 1211, affirmed in part, reversed in part, and remanded. On remand, the United States District Court for the Western District of Oklahoma, held evidentiary hearing and granted conditional habeas relief in form of a new sentencing hearing. State appealed.

Holding: The Court of Appeals, Briscoe, Circuit Judge, held that prisoner failed to overcome presumption that his trial counsel acted within wide range of reasonable professional assistance by making strategic decision not to present mitigating evidence of prisoner's steroid abuse, during sentencing phase. Reversed. Ebel, Circuit Judge, filed dissenting opinion.

BRISCOE, Circuit Judge.

Respondent Mike Mullin, warden of the Oklahoma State Penitentiary, appeals the district court's decision granting conditional habeas relief in the form of a new sentencing hearing to petitioner Sharieff Sallahdin, an Oklahoma state prisoner convicted of first degree murder and sentenced to death. We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and reverse.

The relevant underlying facts of Sallahdin's crime and state court proceedings were set forth in Sallahdin v. Gibson, 275 F.3d 1211, 1221 (10th Cir.2002) (Sallahdin I ):

At approximately 5:00 a.m. on October 21, 1991, James Principe and Bradley Grooms were stocking shelves at the 7-Eleven convenience store where they worked [in Lawton, Oklahoma]. Principe heard a loud bang and saw a black man looking in Grooms' direction. Principe ducked, made his way to the back of the store and locked himself in the bathroom. After emerging from the bathroom, he contacted the police and then saw Grooms lying motionless on the floor with a gunshot wound to the chest. Grooms died from his injuries. Principe later identified Sallahdin as the man who shot Grooms.

That same morning, Lynn Smith stopped at the 7-Eleven to get some ice. Sallahdin was behind the counter and gave her a cup of ice. She did not see anyone else in the store. Upon leaving, she looked back and saw Sallahdin leave the store and drive away in a car. The following day, Sallahdin was taken into custody at his wife's home in Akron, Ohio. On direct appeal, the Oklahoma Court of Criminal Appeals affirmed the conviction and death sentence, after striking the great risk of death to more than one person aggravator and reweighing the remaining aggravators against the mitigating evidence. That court later denied post-conviction relief. Sallahdin v. State, 947 P.2d 559 (Okla.Crim.App.1997).

In Sallahdin I, we affirmed the denial of all of Sallahdin's federal habeas issues except one. We found "troubling" Sallahdin's assertion that his trial counsel was ineffective for failing to present second-stage mitigating evidence of the effects of Sallahdin's steroid use on his behavior at the time of the crime. Id. at 1220. With respect to that issue, we concluded: After carefully examining the record, we are persuaded that, had this evidence been presented, there is a reasonable probability the outcome of the sentencing phase would have been different, i.e., that the jury would have imposed a sentence other than death. Because, however, we are not privy to trial counsel's reasons for not presenting this evidence, and because we can envision circumstances where it would have been constitutionally reasonable for counsel not to introduce this evidence despite its potentially mitigative effect, we find it necessary to reverse and remand this case to the district court for an evidentiary hearing solely on this specific issue concerning trial counsel's performance. Id.

With respect to the evidentiary hearing on remand, we stated: [T]he purpose of the evidentiary hearing will be to determine trial counsel's reasons, or lack thereof, for foregoing the use of [defense expert] Dr. Pope's testimony during the sentencing phase. If trial counsel made a strategic decision not to use Dr. Pope's testimony, the district court will then need to assess whether that was a constitutionally reasonable decision under the circumstances. If, however, it is established that trial counsel was neglectful, or otherwise erred, in failing to call Dr. Pope as a second-stage witness, then trial counsel's performance cannot be deemed constitutionally reasonable. In turn, Sallahdin would be entitled to federal habeas relief in the form of a new sentencing proceeding. Id. at 1240-41.

During the evidentiary hearing on remand, Sallahdin maintained that his trial counsel, Mark Barrett, was neglectful in failing to present evidence of his steroid use. Sallahdin relied exclusively on the testimony of Barrett to support the theory. Barrett, who appeared primarily through videotaped deposition testimony, testified that at some point during his two-year representation of Sallahdin he hired Dr. Harrison Pope, a psychiatrist and Harvard professor, as an expert on the psychological effects of steroids.

According to Barrett, Pope examined Sallahdin and concluded that Sallahdin "had suffered extreme negative effects from the use of steroids, and, particularly important in this case, from withdrawal of the use of steroids." Barrett Dep. at 10. Barrett testified that, prior to trial, he and Sallahdin were in agreement that Pope's testimony would be helpful to the defense and should be presented during the second-stage proceedings (assuming Sallahdin was found guilty at the conclusion of the first-stage proceedings).

Approximately four days prior to trial, Barrett submitted a written request to the director of the Oklahoma Indigent Defense System (OIDS) requesting funding for Pope's appearance at trial and the request was approved by the director of OIDS on the day it was submitted. According to Barrett, he had some recollection that, on the evening after the jury returned its first-stage verdict and *1245 prior to the beginning of the second-stage proceedings, he asked another attorney in his office "to look into getting Dr. Pope there." Id. at 26.

Barrett conceded, however, that Pope ultimately did not appear as a second-stage witness, but he was unable to recall why he did not call Pope as a witness--he did not think he made a strategic decision to not call Pope, nor did he think not calling Pope was the result of his negligence. When asked if he made a strategic decision not to present Pope's testimony, Barrett testified: "I can't imagine that I did. I mean the difficulty in answering that with any certainty is because there's no explanation for all this that makes any sense to me. But it was important enough evidence to us that I can't imagine making any such [strategic] decision." Id. at 27.

Barrett testified that he did not remember seeking Sallahdin's approval to forego the presentation of Pope as a second-stage witness. Barrett testified that he vaguely remembered approaching the bench during the second-stage proceedings and making an offer of proof as to Pope's testimony, but conceded that the transcript of the state court proceedings contained no such bench conference or offer of proof. When asked if he simply neglected to present Pope's testimony, Barrett testified he did not think that was a "strong ... possibility," but admitted that "everything [wa]s a possibility." Id. at 35.

On cross-examination, Barrett again admitted that neglect was "a possibility," but questioned whether that was in fact what had occurred: "I mean, it's not something I could have just overlooked, hey, you know, the trial was going on, I just kind of forgot about Dr. Pope. I mean, he's a Harvard professor who was probably the world's leading expert on steroid use. The fact that he was out there wouldn't have just slipped my mind." Id. at 58. Thus, Barrett carefully walked the line between admitting that not calling Pope as a witness was a strategic decision and admitting it was the result of his negligence.

Although respondent did not have the burden of proof, he presented evidence from four witnesses to counter Sallahdin's theory that counsel was negligent. Dr. John Call, a forensic psychologist hired by the prosecution, testified that he examined Sallahdin approximately two months before trial and, during the examination, Sallahdin admitted he had not used steroids since April 1991 (approximately five to six months prior to the homicide). Call further testified that on August 23, 1993, approximately two weeks prior to trial, he prepared and sent to the prosecutors a memo stating, in pertinent part, that "by his own admission, Mr. [Sallahdin] had not been using steroids for many months prior to" the homicide. Evidentiary hearing tr. at 71.

Fred Smith, Jr., the assistant district attorney who helped prepare the Sallahdin case for trial, testified that he received and was aware of the contents of Call's memo. More importantly, Smith testified that he recalled pretrial discussions with Barrett in which Barrett stated he was not going to present steroid-related evidence "as a mitigator in the second phase of the trial." Id. at 49. According to Smith, Barrett stated his decision to forego the defense was based on "the defendant having stopped using steroids some time before the murder itself" and because he "didn't want to run the risk of antagonizing or alienating the jury by presenting this type of argument." Id. at 49-50.

Robert Schulte, the district attorney who tried the case against Sallahdin, testified that, in accordance with office policy, Call's memo would have been hand-delivered to Sallahdin's counsel (but admitted he had no independent recollection of giving the memo to Barrett). Schulte testified that Smith informed him prior to trial that steroids would not be part of the trial, and that steroids were never an issue at trial. To counter Barrett's suggestion that the trial judge may have prohibited the defense from presenting any evidence pertaining to steroid use, Schulte testified that it was the trial judge's standard practice to make a record of everything.

The final witness for the respondent was Darrell Dawkins, a detective who worked on the Sallahdin case. Dawkins testified that he participated in a post-arrest interview of Sallahdin (approximately seven or eight days after the homicide) in which Sallahdin indicated it had been "six months or longer" since he had used steroids. Id. at 113. Dawkins acknowledged, however, that he did not take any notes during the interview and had not included this information in his report of the interview since, according to him, he did not know that steroid use would be an issue at trial.

Sallahdin presented rebuttal evidence from two witnesses. Dale Johnson, an acquaintance from Sallahdin's hometown of Akron, Ohio, testified that he and Sallahdin had lifted weights together for many years, and that he and Sallahdin had regularly purchased and used steroids. Johnson further testified that Sallahdin's behavior was radically different when he was using steroids--when using steroids, he was aggressive and reckless; when not using steroids, he was quiet and reserved. According to Johnson, Sallahdin traveled to Akron in August or September 1991 (approximately a month or two prior to the homicide) and, during the visit, purchased approximately $250.00 worth of steroids.

Sallahdin's second rebuttal witness was Barrett, who denied telling prosecutors prior to the first-stage verdict that he would not be calling Pope as a witness in the second stage. Barrett testified that he would not have prepared and submitted a request for funding for Pope's trial appearance if he had informed the prosecution he would not be presenting Pope's testimony.

Barrett further testified that Call's memo would not have affected his decision because the defense had evidence (presumably Johnson's testimony) that Sallahdin had used steroids in Akron shortly before the homicide. Barrett also testified that, in light of how quickly the jury returned its first-stage verdict, it was not his plan to rely on a residual doubt theory during the second stage. On cross-examination, Barrett admitted that he had no independent memory of what transpired and was testifying based on what he thought would have been consistent with the circumstances. Barrett also admitted that he was certain he did not have any conversations with Pope after the trial began.

On March 24, 2003, the district court granted Sallahdin conditional habeas relief. The court examined Barrett's testimony and rejected his suggestion that the trial court may have prohibited him from presenting Pope's testimony. ROA, Doc. 77 at 3 ("The trial record reveals no such ruling by the court.").

The court further concluded, based upon Barrett's testimony, there was "no evidence ... that trial strategy was the basis for failing to proffer Dr. Pope's testimony as a witness during sentencing." Id. The court acknowledged the respondent's contention "that the likely reason ... Barrett did not offer Dr. Pope's testimony was the discovery that [Sallahdin] had ceased taking steroids months before the murder." Id. The court rejected this contention, however, on the basis of Barrett's testimony that he had independent evidence that Sallahdin "had taken steroids near the time of the crime," that he had no recollection of Call's memo, and that he had no recollection of being informed by the police "that his client had stopped his steroid usage before the murder." Id. at 4. Ultimately, the district court concluded:

Th[e] evidence establishes that there is no discernible explanation for counsel's failure to call Dr. Pope to the stand on Petitioner's behalf. Even applying the deferential standard mandated by Strickland[ v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ], the Court cannot conclude that Mr. Barrett's decision not to present the testimony was the result of trial strategy given the importance of the steroid testimony and the absolute lack of any basis for failing to present it. Fees and expenses had been approved for Dr. Pope and Dr. Pope knew that he would be needed with little advance notice should Petitioner be convicted.

Despite being able to recall this information Mr. Barrett is unable to remember why Dr. Pope did not appear and why no proffer of evidence was made. Nothing in the trial court record indicates that the court excluded the evidence or that court-imposed or other time constraints prevented Mr. Pope from appearing at the trial. Petitioner has met his burden under the first prong of Strickland. Id.

The court ordered the State of Oklahoma "to commence a new sentencing proceeding" within 180 days from the date of its order. Id. at 5. The court stated that "[f]ailure to commence such a proceeding," would "result in ... vacation of [Sallahdin]'s death sentence and an order sentencing [Sallahdin] to life imprisonment." Id. The district court stayed its conditional grant of habeas relief pending appeal.

* * *

Lastly, it appears the district court's factual finding of neglect was impacted by its erroneous conclusion that there could have been no strategic "basis for failing to present" the steroid-related evidence. ROA, Doc. 77 at 4. In our view, the record on appeal supplies at least three reasons why "it would have been constitutionally reasonable for counsel not to introduce this evidence despite its potentially mitigative effect." Sallahdin I, 275 F.3d at 1220.

First, the jury could have viewed Sallahdin's steroid use in a negative light. Not only are anabolic steroids illegal, the jury could have drawn negative inferences from the fact that Sallahdin knowingly used the substances for a period of approximately four years, during which time he allegedly exhibited various signs of aggressiveness and hostility toward friends and family. In other words, the jury reasonably might have concluded that Sallahdin's steroid use was reckless and that Sallahdin knew or should have known that it might result in negative consequences.

Second, there was a significant risk that the jury, having found Sallahdin to be less than a credible witness during the first-stage proceedings, likewise would have discounted his steroid theory since a critical component of that theory (Pope's scientific conclusions) rested heavily on Sallahdin's self-reports of his psychiatric symptoms.

Third, the evidence presented by respondent during the evidentiary hearing on remand indicates the prosecution was in possession of a powerful rebuttal to Sallahdin's steroid theory--post-arrest statements by Sallahdin indicating he had not in fact used steroids in close proximity to the murder.

For any or all of these reasons, we conclude that Barrett reasonably could have decided not to present a steroid-related defense during the second-stage proceedings.

* * *

Ultimately, given the strong presumption of reasonable professional assistance and the accompanying evidentiary burden imposed on Sallahdin, we agree with respondent that it is Sallahdin, rather than respondent, who must bear the brunt of Barrett's faulty memory and his ambiguous testimony. See Yarborough, 124 S.Ct. at 5 (suggesting such a result where evidence is insufficient to overcome presumption of reasonable professional assistance); Williams, 185 F.3d at 1227-28 (reaching similar conclusion where habeas petitioner's trial counsel unable to recall his thought processes during trial); Fretwell v. Norris, 133 F.3d 621, 623-24 (8th Cir.1998) (rejecting district court's reliance on trial counsel's inability to recall reasons underlying his performance as basis for establishing lack of competent performance); cf. United States v. Corrado, 304 F.3d 593, 605 (6th Cir.2002) ("The party with the burden, in effect, bears the risks of [witness] amnesia and faded memory because of the passage of time."). [FN5] As the Eleventh Circuit noted in Chandler, "[a]n ambiguous or silent record is not sufficient to disprove the strong and continuing presumption" that counsel's performance was reasonable and that counsel made all significant decisions in the exercise of reasonable professional judgment. 218 F.3d at 1314 n. 15.

Thus, we agree with respondent that the scales tipped in his favor at the start of the evidentiary hearing (i.e., in favor of the "strong presumption" that Barrett acted in a constitutionally reasonable fashion), and, given Barrett's inability to remember, remained in respondent's favor at the conclusion of the evidentiary hearing. We therefore conclude the district court erred in holding that Sallahdin satisfied the first prong of the Strickland analysis, and in turn granting Sallahdin conditional habeas relief in the form of a new sentencing proceeding.

  

Michael Lannier Pennington