Apartment groundskeeper came upon victim sunbathing, beat her,
stabbed her, then strangled her with bathing suit.
Bloody sock found
at his home and knife found in backyard.
Admitted stabbing claiming
she made sexual advances. IQ 68; Insanity defense rejected;
Postconviction DNA confirmed guilt.
Oklahoma Attorney General
W.A. Drew Edmondson, Attorney
General - Clayton Execution Scheduled for March 1
The Oklahoma Court of Criminal Appeals today set
a March 1 execution date for Tulsa death row inmate Robert William
Clayton. Clayton, 40, murdered 19-year-old Rhonda Timmons on June
25, 1985, in her Tulsa apartment.
She was stabbed 12 times in the
chest, neck, side and arms and suffered a fracture to the front of
her skull and a large bruise to the back of her head.
Clayton was given a 30-day reprieve Jan. 3 by Lt.
Gov. Mary Fallin when misplaced evidence from his case was
discovered. Clayton was scheduled to be executed Jan. 4, but the
execution was stayed to allow the Oklahoma State Bureau of
Investigation to perform DNA testing on that evidence.
On Jan. 16,
Edmondson was notified that the OSBI's DNA testing reconfirmed
Clayton as the murderer. That same day, Edmondson asked the governor
to dissolve the stay. On Jan. 19, Fallin dissolved the death row
inmate's stay of execution and Edmondson asked the court to set a
new execution date.
"Also on Jan. 16, Clayton's attorney obtained an
order from the District Court of Tulsa County allowing him until Jan.
29 to conduct independent DNA testing on the misplaced evidence,"
"Results of that test have not been provided to this
office, leading us to believe that the independent testing only
confirmed what we already knew - Robert Clayton is guilty of the
murder of Rhonda Timmons."
In today's order, the court gave Clayton
10 days to file a response detailing why his execution should not
proceed as scheduled. "I think it's reasonable to conclude that if
the independent testing cast any doubt whatsoever on Clayton's guilt
the defense would have announced the results," the attorney general
Robert Clayton was sentenced to death for a
murder committed 15 years ago. Robert William Clayton, 39, was
convicted of the 1985 murder of Rhonda Kay Timmons, 19, at a Tulsa
Clayton was an apartment complex groundskeeper
convicted of killing Timmons around noon on June 25, 1985. Timmons
was stabbed repeatedly and suffered a skull fracture to the front of
Prosecutors said during his trial that Clayton
came upon Timmons as she was sunbathing. He beat her and stabbed her
13 times in the chest, neck, side and arms before strangling her
with her bathing suit top.
Timmons' husband, Bill, found her in front of
their infant son's crib after he came home for lunch about half an
hour later. The baby was not injured. The inside of the couple's
apartment was covered in blood, authorities said. The child is now
16. Clayton had no previous convictions but testimony at trial
implicated him in a robbery in Texas and a rape in Mississippi.
At trial, Clayton's defense was that he was
psychotic and retarded. Clayton had received a stay of execution so
that additional DNA testing could be done, but the stay was lifted
on 1/19/01, three days after officials said DNA evidence confirmed
Attorney General Drew Edmondson asked the
Oklahoma Court of Criminal Appeals to reschedule Clayton’s execution
for Feb. 6th. Fallin had approved the stay after learning that
misplaced evidence had been found in an evidence locker in the Tulsa
County district attorney’s office.
The evidence included a bloody
sock, overalls and a knife. The DNA testing was done by the Oklahoma
State Bureau of Investigation. The OSBI compared a blood stain on
the sock worn by Clayton with samples of Timmons’ hair, Edmondson
The blood on the sock matched the DNA profile of Timmons’ hair
samples. The overalls had no blood stains on them because Clayton
had washed them after the crime, Edmondson said. He said testimony
at the trial was that the sock had fallen next to the washing
Death Penalty Institute of
Robert Clayton, 40, was executed via lethal
injection at Oklahoma State Penitentiary in McAlester. He was
pronounced dead at 9:10pm. Clayton was sentenced to death for the
June 26, 1985 murder of Rhonda Kay Timmons, 19.
Her body was found
in her Tulsa apartment near the crib of her unharmed one-year-old
son. She had been stabbed, beaten and strangled.
Clayton was the ninth person to be executed by
the state of Oklahoma this year. His killing had originally been
scheduled for January 4, but he received a stay on January 3 from Lt
Governor Mary Fallin. Fallin issued the stay because physical
evidence that was used in the trial -- and which had been missing
for five years -- was finally located.
This evidence was then tested
by the Oklahoma State Bureau of Investigation (OSBI) as well as a
private organization in California. After the OSBI DNA testing
failed to clear Clayton, his execution date was reset.
Vigils were held at over a dozen locations around
Rpbert William Clayton
March 1, 2001
OKLAHOMA - A man sent to Oklahoma's
death chamber 2 months later than planned was executed by injection
Thursday for the 1985 killing of a Tulsa woman.
Clayton, 40, was pronounced dead at 9:10 p.m. from a lethal dose of
drugs. He was the ninth inmate executed in Oklahoma this year.
Clayton was convicted of murdering Rhonda Timmons,
19, in her apartment. Timmons was stabbed 12 times and was beaten
and straggled with her bathing suit top. "I want to say I'm glad I'm
leaving this place and I'm going to a better place," Clayton said in
his final statement. "I love my family and I'm sorry for this other
lady that was killed. "You're still killing an innocent man," he
said. "May God have mercy on my soul." The lethal flow of drugs
began at 9:07 p.m. Clayton quickly became unconscious and was
declared dead 3 minutes later.
He was originally scheduled to be the 1st inmate
to be put to death this year, but was granted a stay 1 day before
his Jan. 4 execution date. The stay allowed him to pursue DNA tests
on lost evidence recovered just days before he was to be strapped to
a death row gurney at Oklahoma State Penitentiary. But evidence
testing by the Oklahoma State Bureau of Investigation confirmed
Clayton as the killer.
Timmons' stepfather and her mother, Pat Bullard,
witnessed the execution. "We did not seek revenge with the death of
Robert Clayton," Bullard said in a statement. "We sought justice and
justice was served." Timmons' husband, Bill, found her when he came
home for lunch. The inside of the couple's apartment was covered in
blood, authorities said. Their infant son, now a teen-ager, was in a
nearby crib. Clayton was an apartment complex groundskeeper.
Prosecutors said he came upon Timmons sunbathing and was furious
when she rejected his advances. He was convicted shortly after the
killing, when DNA tests were not widely used.
When the federal
portion of his appeals began in the mid-1990s, Clayton sought DNA
tests on traces of blood on a knife identified as the murder weapon
and on a sock and overalls Clayton supposedly wore. Defense
attorneys had said prosecutors relied on blood typing to argue for
conviction. Timmons' blood type matched the type from traces of
blood on the sock.
Attorneys said DNA tests could be more decisive.
But the evidence was lost by state officials after his trial. Tulsa
County prosecutors located it in early January. Lt. Gov. Mary Fallin,
acting in the temporary absence of Gov. Frank Keating, granted the
stay. 2 sisters, a cousin, brother-in-law and attorney witnessed the
execution on Clayton's behalf. For his last meal, Clayton requested
shrimp, oysters, fish with tartar sauce, a 32-ounce creme soda and
one strawberry cheese pie.
Clayton becomes the 9th condemned inmate to be
put to death this year in Oklahoma and the 39th overall since the
state resumed capital punishment in 1990. Clayton becomes the 16th
condemned inmate to be put to death this year in the USA and the
699th overall since America resumed executions on January 17, 1977.
Canadian Coalition to Abolish
the Death Penalty
Open Letter From Robert "Eagle"
Clayton to Media
To Whom It May Concern:
Hi! My name is Robert W. “Eagle” Clayton, DOC
#151195. I’m on death row in McAlester, Oklahoma. My appeal was
denied by the U.S. Supreme Court on October 1, 2000. I have been
asking the courts for two things: (1) DNA testing; and (2) A spray
that you spray on clothes, etc. . . and it shows if there was blood
or anything even if you paint, or wipe off the clothes, etc. . . .
All the courts have denied my requests. I believe I have a right to
have these tests done but the problem is Tulsa County. They say they
never received the evidence from the court reporter. She has a list
of everything she turned over and the list was signed by the Tulsa
County Sheriff’s Department.
These two tests will prove I’m innocent of the
crime I am charged with. I am asking that the evidence be turned
over and these tests be done, if the State of Oklahoma is so sure I
am guilty. It will show I was wrongly convicted. I am not asking you
to believe me since I know since you are a reporter, guys ask people
like you all the time to believe them to be innocent. Please help me
get these tests done and decide for yourself.
I have nothing to hide what so ever. I only want
justice and right now the very people we look to do justice are
denying me access to the evidence in my case. In addition, the
Detective Fred Parke openly stated under oath that he took notes of
the alleged confession but when asked for those notes, he said he
threw them away. However, when the District Attorney’s office asked
him he said that he must have misplaced the notes. But he can tell
you word for word the alleged confession from his written notes,
which he doesn’t have.
I’m asking why and how can any court who asks
people to trust and believe them, who claim to administer justice –
how can this be true when they refuse tests that will and can prove
that I’m an innocent man? And how can they believe a detective who
“misplaces” his own notes of an alleged confession, but says he can
repeat them word for word while on the witness stand?
I’m writing to each of you as a person, a human
being, an honest person who likes your job and wants to get to the
bottom of the truth, so I ask your help. I would like to speak with
anyone willing to talk to me a.s.a.p. I know that once you hear from
me you will see I have nothing to hide about myself or this
injustice that’s being done here. It seems to me that the courts are
hiding behind the laws. I want these tests done. I need this
detective investigated. I have nothing at all to hide from anyone.
I will close and hope you will consider
interviewing me on the issues of DNA and the other test I wrote
Death Row 2000
Robert William Clayton, 39, was sentenced to
death for murdering 19-year-old Rhonda Kay Timmons in her Tulsa,
Okla., apartment complex on June 25, 1985. Working as the
groundskeeper, Clayton stabbed Timmons repeatedly, resulting in a
skull fracture to the front of her head.
Prosecutors said during his trial that Clayton
came upon Timmons as she was sunbathing. He beat her and stabbed her
13 times in the chest, neck, side and arms before strangling her
with her bathing suit top. Timmons' husband, Bill, found her in
front of their infant son's crib after he came home for lunch about
half an hour later. The inside of the couple's apartment was covered
in blood, but the baby (now 16) was not injured.
Clayton had no previous convictions but testimony
at trial implicated him in a robbery in Texas and a rape in
Mississippi. Clayton's defense claimed he was psychotic and retarded.
After sentencing, he received a stay of execution so that additional
DNA testing could be done, but the stay was lifted as the DNA
evidence confirmed Clayton's guilt. The cold-blooded killer was
executed earlier today.
UNITED STATES COURT OF APPEALS
ROBERT WILLIAM CLAYTON, Petitioner-Appellant,
GARY GIBSON, Warden of the Oklahoma State
Penitentiary; DREW EDMONDSON, Attorney General for the State of
APPEAL FROM UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OKLAHOMA
(D.C. No. CV-96-173-K)
Before BRORBY, BRISCOE,
and MURPHY, Circuit Judges.
BRISCOE, Circuit Judge.
Petitioner Robert William Clayton was convicted of first degree
murder and was sentenced to death. He appeals the denial of his 28
U.S.C. § 2254 petition for habeas corpus. We affirm.
Rhonda Timmons, the victim in this case, resided
with her husband Bill Timmons at the South Glen Apartments in Tulsa,
On June 25, 1985, as Bill Timmons was returning
home for lunch around 12:30 p.m., he noticed towels and a pillow
near the back door to the apartment, where Rhonda Timmons had
evidently been sunbathing. The door was unlocked and when he entered
the apartment, he noticed blood "everywhere." He found his wife's
dead body near the crib of the Timmons' baby.
Rhonda Timmons had been stabbed twelve times in
the chest, neck, side, and arms, and she sustained numerous bruises
and blunt force injuries to her head and body. The baby was in the
crib and was not hurt.
Clayton was a groundskeeper at the South Glen
Apartments. Shortly before noon on June 25, he told the head
groundskeeper he was going to rest in the tool shed during his lunch
However, between 12 and 12:30 p.m., Clayton
arrived at the home of Helen Syphurs, the mother of one of his
roommates, Tony Hartsfield. Clayton's hand was injured and he was
breathing heavily. He told Syphurs he injured his hand while
resisting two male robbers. He took a shower, wrapped himself in a
towel, and placed his clothing in a paper bag. Clayton notified his
employer by telephone that he would not be returning to work that
Clayton shared a house with Hartsfield and Don
and Sharon Reinke, who were Hartsfield's brother-in-law and sister.
Syphurs drove Clayton home and Clayton repeated his story to Sharon
Reinke. He stated his clothing was bloody and put the clothing in
the washing machine.
A blood-stained sock was later found on the floor
near the washing machine and testing revealed the blood on the sock
was Type AB, the same as Rhonda Timmons' blood. Clayton repeated his
story to Hartsfield and to Don Reinke when they returned home.
Police arrived around 3:30 p.m. and escorted Clayton to the police
station for questioning.
As he left the house, Clayton asked Hartsfield
not to tell the police about a folding knife that Clayton routinely
carried. The police found the knife in the backyard the following
day. Although the blood traces on the knife were too minute for
testing, an expert testified at trial that the knife could have been
used to inflict Rhonda Timmons' injuries.
Clayton was advised of his Miranda
rights at police headquarters and he twice confessed to killing
Rhonda Timmons. His first confession was ruled inadmissible by a
magistrate judge because tape recordings indicated Clayton did not
fully understand his constitutional rights. Clayton is retarded and
has an IQ of 68, placing him in the bottom two percent of the
population. Clayton's second confession, which occurred after he was
provided counsel but outside counsel's presence, was admitted at
A jury convicted Clayton of first degree malice
aforethought murder and recommended the death sentence. Clayton was
sentenced to death. His conviction and sentence were affirmed in
Clayton v. State, 840 P.2d 18 (Okla. Crim. App. 1992), and his
application for post-conviction relief was denied in Clayton v.
State, 892 P.2d 646 (Okla. Crim. App. 1995). Clayton filed his
28 U.S.C. § 2254 petition for habeas corpus, asserting numerous
claims of constitutional error. The district court denied the
petition and issued a certificate of probable cause on all claims
presented in the petition.
Clayton's petition is not subject to the
standards embodied in the Antiterrorism and Effective Death Penalty
Act, which applies only to petitions filed after April 24, 1996.
See Lindh v. Murphy, 521 U.S. 320 (1997). Clayton's
petition was filed on March 5, 1996. We therefore review Clayton's
petition under pre-Act law.
Our function in a habeas case is limited to
insuring individuals are not imprisoned in violation of the
Constitution. See Herrera v. Collins, 506 U.S. 390,
400 (1993). We therefore presume the historical factual findings of
the jury and the state district court are correct and defer to a
state's interpretation of its law. See Jackson v. Shanks,
143 F.3d 1313, 1317 (10th Cir. 1998). We review the federal district
court's factual findings for clear error and review all legal issues
de novo. See id.
Clayton contends his due process rights were
violated when his competency was retrospectively determined six
years after his trial and under a burden of proof later found
unconstitutional in Cooper v. Oklahoma, 517 U.S. 348 (1996).
Before trial, the state court ordered that
Clayton be examined to determine if he was competent to stand trial.
Although Dr. Samuel Sherman examined Clayton and found him competent,
the court apparently did not hold a post-examination competency
hearing as required by then-existing state law. On direct appeal,
the Oklahoma Court of Criminal Appeals remanded the case and
directed the court either to forward proof that a hearing had been
held or to conduct a retrospective hearing if feasible.
The trial court first conducted a hearing to
determine if a retrospective competency hearing was feasible. Based
upon the availability of evidence pertaining to Clayton's pretrial
competency, the court determined a retrospective competency hearing
was feasible. On September 12, 1991, a jury found that Clayton was
competent at the time of his trial on March 1, 1986.
On appeal, the Oklahoma Court of Criminal Appeals
found there was sufficient evidence of Clayton's competency to
render a retrospective hearing meaningful. Clayton, 840 P.2d
at 25. Clayton argues the six-year time lapse, the poor quality and
lack of written records, and the sketchy memory of important
witnesses precluded a fair retrospective determination of his
competency at the time of trial.
Although retrospective competency hearings are
disfavored, they are permissible "whenever a court can conduct a
meaningful hearing to evaluate retrospectively the competency of the
defendant." Moran v. Godinez, 57 F.3d 690, 696 (9th Cir.
1994); see Drope v. Missouri, 420 U.S. 162, 180-83
(1975). "A 'meaningful' determination is possible where the state of
the record, together with such additional evidence as may be
relevant and available, permits an accurate assessment of the
defendant's condition at the time of the original state proceedings."
Reynolds v. Norris, 896 F.3d 796, 802 (8th Cir. 1996).
A court should consider (1) the passage of time,
(2) the availability of contemporaneous medical evidence, including
medical records and prior competency determinations, (3) any
statements by the defendant in the trial record, and (4) the
availability of individuals and trial witnesses, both experts and
non-experts, who were in a position to interact with defendant
before and during trial, including the trial judge, counsel for both
the government and defendant, and jail officials. See
Reynolds, 86 F.3d at 802-03; Moran, 57 F.3d at 696.
Applying these factors, we find no constitutional
error in the state court's determination that a retrospective
competency hearing was feasible. While the time gap between
Clayton's trial and the competency determination is troubling, "[t]he
passage of time is not an insurmountable obstacle if sufficient
contemporaneous information is available." Reynolds, 86 F.3d
at 803; see Bruce v. Estelle, 536 F.2d 1051, 1057 (5th
Cir. 1976) (determining nine-year gap between trial and competency
hearing did not alone vitiate opportunity for meaningful hearing);
Barefield v. New Mexico, 434 F.2d 307, 309 (10th Cir. 1970) (finding
"mere lapse of time before a competency hearing" does not invalidate
findings made as a result of that hearing).
The trial court had before it Dr. Sherman's
pretrial report finding Clayton competent to stand trial. Although
the report was admittedly brief, it nonetheless constituted a
contemporaneous medical determination. "[M]edical reports
contemporaneous to the time [of trial] greatly increase the chance
for an accurate retrospective evaluation of a defendant's competence."
Moran, 57 F.3d at 696; see United States v. Mason,
52 F.3d 1286, 1293 (4th Cir. 1995) (finding competency determination
possible where "the defendant's treating physicians have already
conducted an inquiry into the defendant's competence and formed an
opinion as to his competence at the time of the first phase of his
In addition, numerous witnesses who interacted
with Clayton before and during trial were available to testify at
the competency hearing, including the trial judge, clinical
psychologists, the jail physician, and Clayton's trial counsel.(1)
Clayton does not dispute the availability of these witnesses, but
counters with the feasibility hearing testimony of Dr. Robert
Nicholson, a clinical psychologist with significant experience in
Dr. Nicholson testified that the time gap and the
poor quality of the contemporaneous written records made it
impossible for him to evaluate Clayton's competency at the time of
trial. While Dr. Nicholson's testimony has probative value, it is
not sufficient to establish that a retrospective competency hearing
was not feasible, particularly given the finding of competency prior
to trial and the availability of numerous witnesses who were
familiar with Clayton at the time of trial. We conclude Clayton was
not deprived of due process by having his competency determined
retrospectively. See Walker v. Attorney General, 167
F.3d 1339, 1347 n.4 (10th Cir. 1999).
Clayton also contends the trial court employed an
unconstitutional burden of proof at his competency hearing by
requiring him to prove his competence by clear and convincing
evidence. In Cooper, the Supreme Court ruled that use of the
clear and convincing evidence standard in a competency hearing
violated due process. 517 U.S. at 369. Because Cooper was
decided after Clayton's direct and post-conviction appeals, he
presented this issue for the first time in his federal habeas
The federal district court denied relief on the
ground that Clayton had procedurally defaulted this claim by failing
to raise it on direct appeal. Although the court acknowledged
Cooper was decided after Clayton's state court proceedings were
final, it reasoned that under the 1995 amendments to Oklahoma's
post-conviction statute this fact did not excuse Clayton's failure
to challenge the evidentiary standard on direct appeal.
Generally, it is a prerequisite to habeas relief
that a petitioner exhaust his remedies in state court. See 28
U.S.C. § 2254(b)(1). The exhaustion requirement is not
jurisdictional, however, and may be waived by the state or avoided
by the petitioner if an attempt to exhaust would be futile. See
Demarest v. Price, 130 F.3d 922, 933-34 (10th Cir. 1997).
Both exceptions apply here. The state has expressly waived the
exhaustion requirement by conceding Clayton has "exhausted his state
remedies as to this factual claim." Record, Doc. 10 at 46.
In addition, the Oklahoma Court of Criminal
Appeals ruled unequivocally that a Cooper claim is barred if
not presented on direct appeal or submitted in a first application
for post-conviction relief, even if the direct appeal and post-conviction
processes were final before Cooper was decided. See
Walker v. State, 933 P.2d 327, 338-39 (Okla. Crim. App. 1997).
Further presentation of the claim to the Oklahoma courts thus would
be futile. See Wallace v. Cody, 951 F.2d 1170, 1171
(10th Cir. 1991).
Having deemed Clayton's claim exhausted, we next
must consider if Clayton's claim is procedurally barred.(3)
A claim that has been defaulted in state court on an adequate and
independent state procedural ground will be considered on federal
habeas review only if a petitioner can demonstrate cause and
prejudice to excuse the default or establish failure to consider the
merits of the claim will result in a fundamental miscarriage of
justice. Rogers v. Gibson, 173 F.3d 1278, 1290 (10th Cir.
1999). To be adequate, a state's procedural rule must have been
firmly established and regularly followed when the purported default
occurred. Walker, 167 F.3d at 1344.
Here, the 1995 amendments to Oklahoma's post-conviction
statute supplied the basis for the procedural bar finding. The
amendments sharply limit a petitioner's ability to bring claims in a
new post-conviction application that were not raised on direct
appeal or in a prior post-conviction application, including new
claims based on an intervening change in law. Id. at 1345. We
consistently have held, when considering Cooper claims, that
the 1995 amendments do not constitute an "adequate" state law ground
for procedural default purposes if they did not exist at the time of
the default. See Rogers, 173 F.3d at 1290; Walker,
167 F.3d at 1345.
In this case, the district court ruled Clayton's
default occurred when his direct appeal became final in 1992, three
years before the effective date of the 1995 amendments. "A defendant
cannot be expected to comply with a procedural rule that does not
exist at the time, and should not be deprived of a claim for failing
to comply with a rule that only comes into being after the time for
compliance has passed." Walker, 167 F.3d at 1345. In these
circumstances, Clayton's procedural competency claim is not barred
by his failure to raise it on direct review or in his post-conviction
application. We therefore consider Clayton's claim on the merits.
Clayton is entitled to relief on his procedural
competency claim only if "the state trial court ignored evidence
that, viewed objectively, raised a bona fide doubt as to [Clayton's]
competency to stand trial." Id. (citing Drope, 420 U.S.
at 180-81). A defendant will be deemed competent to stand trial if
at the time of trial he had "sufficient present ability to consult
with his lawyer with a reasonable degree of rational understanding--and
. . . a rational as well as factual understanding of the proceedings
against him." Dusky v. United States, 362 U.S. 402 (1960).
Although not limited to these factors, a court
conducting a competency inquiry should consider defendant's demeanor
at trial, any evidence of irrational behavior by defendant, and
perhaps most important, any prior medical opinions regarding
competency. Walker, 167 F.3d at 1346. In addition, where, as
here, defendant's competency was determined under an
unconstitutional standard, the jury's finding of competency is not
entitled to a presumption of correctness. Id. at 1345.
In arguing a bona fide doubt exists as to his
competency at the time of trial, Clayton relies primarily on the
competency hearing testimony of his trial counsel, Ronald Wallace,
and of Dr. Nicholson. Wallace testified that before and during trial,
he questioned Clayton's competency, specifically wondering if
Clayton was capable of understanding the proceedings and assisting
Although Wallace thought Clayton's comprehension
was limited to understanding he was in an adversarial proceeding,
Wallace declined to characterize his concerns as "serious." At the
feasibility hearing, Dr. Nicholson, for the most part, reiterated
his testimony that Clayton's competency at the time of trial could
not be determined accurately given the dearth of contemporaneous
In contrast to the ambivalent testimony of
Wallace and Dr. Nicholson is the unequivocal testimony of three
doctors who either evaluated or observed Clayton at the time of
trial. Dr. Goodman, who examined Clayton twice before trial,
testified that Clayton was lucid and did not have difficulty
recalling events or relating an account of the crime. Although he
conceded Clayton might have an underlying personality disorder, he
was satisfied that Clayton's sanity would not be an issue at trial.
Dr. Barnes, the jail physician, examined Clayton
physically and responded to Clayton's claims of illness. He
testified that Clayton had no physiological problems that would have
affected his competency at trial. Dr. Sherman performed the pretrial
examination of Clayton and found him to be competent.
Dr. Sherman described the procedures he typically
performed in a competency evaluation and testified that in 1986 he
had found after evaluation that Clayton was competent. He was
unwilling to rule out the possibility that Clayton had a mental
disorder, but testified an individual can have a mental disorder and
be competent to stand trial.
Clayton points out that Dr. Sherman conceded at
the hearing he had no independent recollection of Clayton, had no
records or files regarding the pretrial examination, and could not
identify the bases for his conclusion. Although troubling, these
problems ultimately pose issues of credibility. The jury was free to
discount or even ignore Dr. Sherman's testimony. It chose not to do
so and we cannot second-guess this rational credibility
determination on habeas review. The evidence in the record does not
raise a bona fide doubt as to Clayton's competency at the time of
Admissibility of statement
Clayton asserts he is entitled to habeas relief
because his involuntary statement to police was admitted at trial.
He actually gave two statements to authorities. After he was taken
to the police station and advised of his Miranda rights, he
signed a waiver form and admitted killing Rhonda Timmons after she
made unwanted sexual overtures toward him. Clayton refused to repeat
his story for a tape recording without a lawyer present.
Questioning ceased and a public defender was
dispatched to serve as Clayton's attorney. The public defender spoke
with Clayton alone and, before he left, advised Clayton to remain
silent and requested that officers not reinitiate questioning in
counsel's absence. Counsel left with the understanding that Clayton
would be booked and returned to his cell.
In the course of filling out a booking
information slip, Clayton was identified as "Randy" rather than "Robert."
To resolve confusion, a police officer asked Clayton his "true name."
Clayton provided his name, his date of birth, and his social
security number. Clayton then indicated he "had something he wanted
to get off his chest." Trial tr. at 896. The officer reminded
Clayton of his counsel's advice, but Clayton repeated his desire to
make a statement and he repeated his earlier story.
Clayton sought to suppress both confessions
before trial. The trial court ruled the first statement was
inadmissible because Clayton did not understand his rights and
therefore could not voluntarily waive them. The court ruled the
second statement was admissible because Clayton voluntarily
On appeal, Clayton contends his counsel was
ineffective for failing to challenge the voluntariness of his
confession based on his mental capacity. We do not consider the
merits of this argument. It is apparent from the record that
Clayton's counsel did challenge the voluntariness of his confession
by filing a motion to suppress, which the court denied.
Clayton also contends his confession was not
voluntary because the officers improperly resumed questioning after
he had invoked his right to counsel. This contention is without
merit. Interrogation of an accused must cease once the accused
invokes the right to counsel. Miranda v. Arizona, 384 U.S.
436, 474 (1966). Nonetheless, an accused may be interrogated further
if, after invoking the right to counsel, he voluntarily initiates
further communication with the police and waives his right to
counsel. Edwards v. Arizona, 451 U.S. 477, 484-85 (1981).
There is nothing in the record to indicate the
questions to clarify Clayton's first name were designed, or
reasonably likely, to elicit an incriminating admission from Clayton.
Questioning related to booking or other administrative pretrial
matters does not constitute "interrogation" for purposes of
Miranda. See Pennsylvania v. Muniz, 496 U.S. 582,
601 (1990). "Routine booking questions do not constitute
interrogation because they do not normally elicit incriminating
responses." United States v. Parra, 2 F.3d 1058, 1068 (10th
Cir. 1993). It was Clayton who reinitiated communication. See
United States v. Glover, 104 F.3d 1570, 1581 (10th Cir.
The act of reinitiating communication does not,
by itself, suffice to constitute a waiver of Clayton's right to
counsel. Instead, we must separately determine if the statement was
the "product of a free and deliberate choice rather than
intimidation, coercion, or deception, and . . . was made in full
awareness of the nature of the right being waived and the
consequences of waiving." Cooks v. Ward, 165 F.3d 1283, 1288
(10th Cir. 1998). In making this determination, we consider the
totality of the circumstances and bear in mind "the necessary fact
that the accused, not the police, reopened the dialogue." Oregon
v. Bradshaw, 462 U.S. 1039, 1046 (1983).
Clayton's waiver clearly was effective. There is
no evidence that his change of heart was precipitated by any police
impropriety or that it was prompted by any promises or inducements.
He had been advised twice of his Miranda rights and after
his first statement had invoked the specific right he waived in
making his second statement.
Detective Parke testified at Clayton's
preliminary hearing that Clayton was reminded of his counsel's
advice, but that Clayton nonetheless insisted upon making a
statement in counsel's absence. This evidence is more than
sufficient to establish Clayton voluntarily, knowingly, and
intelligently waived his right to counsel. See Cooks,
165 F.3d at 1288-89.
Clayton contends prosecutorial misconduct
deprived him of a fair trial. Specifically, he alleges the
prosecutor (1) informed the jury the district attorney's function
was to "seek the truth"; (2) improperly characterized the burden of
proof; (3) purposefully aroused the passions and prejudices of the
jury; (4) shaded the truth during questioning and closing argument;
and (5) commented on Clayton's invocation of his rights to counsel
and to remain silent.
Prosecutorial misconduct warrants federal habeas
relief only if, in light of the proceedings as a whole, the conduct
complained of "so infected the trial with unfairness as to make the
resulting conviction a denial of due process." Donnelly v.
DeChristoforo, 416 U.S. 637, 643 (1974). "[I]t is not enough
that the prosecutors' remarks were undesirable or even universally
condemned." Darden v. Wainwright, 477 U.S. 168, 181 (1986).
Two of the alleged instances of prosecutorial
misconduct occurred during voir dire. First, the prosecutor asked a
venire person to describe the function of the district attorney's
office. When the juror responded, "Prove someone guilty," the
prosecutor stated the "function of the District Attorney is to seek
the truth." Trial tr. at 414-15.
While this comment was improper to the extent the
district attorney intended to suggest the government's allegations
necessarily were true, the statement itself was a theoretically
accurate description of a prosecutor's function and not the type of
egregious statement that was even remotely likely to infect the
subsequent trial with unfairness. Second, the prosecutor asked a
prospective juror if the juror performed his job as a safety
director "reasonably well," and further, if the juror had heard the
prosecutor talking about the burden of proof and understood "it is
just one of reasonable doubt." Id. at 53-54.
Clayton argues this colloquy informed the jury it
could convict if it was "reasonably well" satisfied of defendant's
guilt. Even assuming the prosecutor's statement did not accurately
describe the government's burden, it had no constitutional effect on
the trial. The court reminded the jury several times in instructions
that the government bore the burden of proving each element of the
offense beyond a reasonable doubt.
Clayton also contends that, in order to inflame
the passions of the jury, the prosecutor elicited testimony that
Rhonda Timmons died while looking into the crib at her baby.
Notwithstanding Clayton's contentions, a review of the record
reveals this was but one of several reasonable interpretations of
the evidence. Clayton also complains the prosecutor elicited graphic
testimony of the victim's "sucking chest wound" and testimony that "sham"
resuscitation efforts were attempted because the victim's husband
was outside the apartment.
The testimony accurately depicted the victim's
wounds and was relevant to establish the cause and manner of death.
As for emergency resuscitation efforts, the witness testified only
that paramedics "at least owed it to [the victim's husband] to try,
since we had no idea how long she had been down." See id.
at 630. While perhaps unnecessary, these accurate statements did not
render Clayton's trial fundamentally unfair. See Duvall v.
Reynolds, 139 F.3d 768, 795 (10th Cir. 1998).
Clayton next contends the prosecutor misled the
jury during closing argument by improperly arguing that police found
Clayton's knife where Clayton said it would be instead of where
Hartsfield told police it would be. Clayton did tell the
police he thought his knife was at the house. Police found it in the
yard behind the house. Clayton also complains the prosecutor
questioned a detective in a manner that suggested bloody footprints
were found at Clayton's house.
The footprints actually were found in the
apartment. Although the questioning of the detective does shift
without any apparent reason from one subject to another, a
reasonable juror listening to the entire testimony would have
understood the detective was referring to the apartment when he
described the footprints. In any event, any resulting confusion was
slight and did not render the proceeding unfair.
Finally, Clayton contends the prosecutor
inappropriately commented on Clayton's invocation of his right to
remain silent and his right to counsel. Clayton did not present this
argument in state court either on direct appeal or in his
application for post-conviction relief.
It is not disputed that Oklahoma would bar
consideration of this precise claim on an independent and adequate
state law procedural ground if Clayton presented it in a second
post-conviction application. As such, Clayton's claim is
procedurally barred in the absence of a showing of cause and
prejudice, an excuse Clayton does not allege.(4)
See Coleman v. Thompson, 501 U.S. 722, 735 n.1 (1991);
Steele v. Young, 11 F.3d 1518, 1524 (10th Cir. 1993).
Clayton next argues the prosecutor failed to
disclose exculpatory evidence, in violation of Brady v. Maryland,
373 U.S. 83 (1963). Clayton is procedurally barred from pursuing
this claim for federal habeas review. He did not present this
argument in state court, either on direct appeal or in his
application for post-conviction relief.
It is not disputed that Oklahoma would bar
consideration of this precise claim on an independent and adequate
state law procedural ground if Clayton presented it in a second
post-conviction application. Again, Clayton does not assert cause
and prejudice in an effort to overcome this procedural bar.
Clayton argues the State deprived him of due
process by denying his request for expert psychiatric assistance at
the penalty phase of his trial.(5)
Before trial, Clayton's counsel filed a motion for appointment of a
private psychiatrist. Counsel stated that, based on conversations
with various family members, he questioned defendant's sanity at the
time of the alleged crime. After arguments, the court found the
defendant failed to demonstrate that his sanity at the time of the
offense was a significant factor at trial, as required by Ake v.
Oklahoma, 470 U.S. 68 (1985).
In Ake, the Supreme Court held that "when
a defendant has made a preliminary showing that his sanity at the
time of the offense is likely to be a significant factor at trial,
the Constitution requires that a State provide access to a
psychiatrist's assistance on this issue if the defendant cannot
otherwise afford one." Id. at 74.
To demonstrate a denial of due process under
Ake at the penalty phase, a petitioner must establish both that
the state presented evidence in the sentencing phase that petitioner
posed a continuing threat to society and that petitioner's mental
condition was likely to be a significant mitigating factor.
Rogers, 173 F.3d at 1285.
Clayton presented this issue for the first time
in his post-conviction application. The Oklahoma Court of Criminal
Appeals ruled he had waived the issue by failing to raise it on
direct appeal. Because this ruling was based on an independent and
adequate state law ground, we may not consider the claim on federal
habeas review unless Clayton can "demonstrate cause for the default
and actual prejudice as a result of the alleged violation of federal
law." See Ross v. Ward, 165 F.3d 793, 798 (10th Cir.
In ultimately concluding Clayton could not
establish prejudice, the federal district court ruled that Clayton
sought to excuse his default by alleging ineffective assistance of
appellate counsel. Although this contention, if proven, would
constitute sufficient "cause" to excuse Clayton's default, our
review of the habeas petition filed in district court does not
reveal such allegation. Nor may Clayton's appellate brief fairly be
read as asserting such claim. Clayton does assert, in conjunction
with his Ake claim, that trial counsel was constitutionally
deficient in failing to present additional mitigating evidence
during the penalty phase of the trial. However, Clayton does not
assert his appellate counsel was ineffective for failing to raise
the Ake issue on direct appeal. As such, Clayton's Ake
claim is procedurally barred.
Even assuming Clayton has established "cause"
sufficient to excuse his procedural default, the record is barren of
evidence of any prejudice. First, in addition to finding Clayton
posed a continuing threat to society, the jury found the murder was
"especially heinous, atrocious, or cruel." Because most, if not all,
of the evidence relating to the continuing threat aggravator
properly would have been admitted and considered by the jury in
considering the "especially heinous, atrocious, or cruel" aggravator,
the Ake error, if any, would be harmless. See
Rogers, 173 F.3d at 1286; Johnson v. Gibson, 169 F.3d
1239, 1246 (10th Cir. 1999).
Second, Clayton did present testimony
concerning his mental condition during the penalty phase. Dr. Diane
Williamson, a psychologist who examined Clayton before trial,
testified that his IQ was 68. She stated his performance on a "word
recognition, spelling and arithmetic skills" test placed him at a
third or fourth grade level, and other tests indicated that his "reality
skills" were poor.
She further testified that he was "very limited
in his abilities to maintain interpersonal relationships," was
emotionally immature, was very dependent on others, and had
difficulty controlling his impulses and tendencies. Trial tr. at
1051. In short, the tests revealed themes of violence, helplessness,
and an inability both to solve problems and to engage in "literal,
concrete modes of thinking." Id. at 1053.
Clayton acknowledges this testimony but argues at
least one juror would have voted for life rather than death had a
mental health expert been made available to the defense. He does not
explain what testimony another mental health expert could have
offered and how that testimony would have differed from the
testimony that was presented. Dr. Williamson's testimony constituted
powerful mitigating evidence based on Clayton's mental condition.
Given the strength of this evidence, and the
jury's decision to impose the death sentence, Clayton cannot
establish that the additional testimony of a mental health expert
appointed pursuant to Ake would have persuaded at least one
juror to vote for life instead of death.
"Especially heinous, atrocious or cruel"
Clayton next asserts his death sentence must be
vacated because the "especially heinous, atrocious or cruel"
aggravating circumstance found by the jury was supported only by "bogus"
expert testimony that was erroneously admitted at trial.
Clayton challenges the testimony of Kenneth Ede,
a forensic chemist who at the time of trial worked part-time for the
police department. At trial, he was qualified as an expert in
serology. Ede testified that the blood on the sock found near the
washing machine was Type AB, a type different than Clayton's but the
same as that of the victim. He further testified that pubic hairs
recovered from the same sock were consistent with pubic hairs taken
from Clayton. Finally, he testified that, based on the nature of the
blood splatters at the scene, the victim was assaulted two or three
times in two or three different locations in the apartment. The
prosecution used his blood splatter testimony primarily as support
for its second stage argument that the murder was "especially
heinous, atrocious, or cruel."
In his application for post-conviction relief,
Clayton challenged Ede's qualifications to testify as a blood
splatter expert. Clayton filed affidavits from law enforcement
officials and agencies indicating Ede had overstated his "blood
splatter" qualifications and disavowing Ede as a "blood splatter"
The Oklahoma Court of Criminal Appeals agreed and
ruled Ede's testimony should not have been admitted. The court
nonetheless found the error harmless because the testimony of the
state medical examiner and the physical evidence of a "blood trail"
through the apartment supported the jury's finding. The federal
district court agreed.
On appeal, Clayton argues there is no evidence
outside of Ede's testimony from which a rational jury could find the
presence of the "especially heinous, atrocious, or cruel" aggravator
beyond a reasonable doubt.
The "especially heinous, atrocious or cruel"
aggravating circumstance is properly found if the death was preceded
by torture or serious physical abuse, "as evidenced by conscious
physical suffering." Duvall, 139 F.3d at 793. Here, the state
medical examiner testified that the victim suffered blows to her
head and numerous stab wounds to her chest and neck; that neither
the stab wounds nor the blunt force injuries, all of which occurred
before death, were sufficient to cause death instantaneously; and
that wounds inflicted to the victim's neck before death were caused
by a ligature of some sort, most likely her bikini top.
Notwithstanding the nature of these injuries,
there is a question as to whether the victim endured "conscious
physical suffering." The state medical examiner testified the stab
wounds, while not likely to cause immediate unconsciousness, would
cause unconsciousness within a very short time. However, the blunt
force injuries to the head would almost certainly "produce
unconsciousness immediately." Trial tr. at 886. The examiner was
unable to ascertain which blows occurred first, the stab wounds or
the head injuries.
Clayton argues no rational jury could find from
this testimony that the victim was conscious after the first blow
was struck. However, he ignores crucial evidence in the record that
is contrary to his position. As depicted by photographs of the scene
and by numerous witnesses, there was a trail of blood from the door
of the apartment to the bedroom where the victim's body was found.
This trail of blood strongly suggests the victim was struck at the
door to the apartment and that she retreated to the bedroom while
she was conscious and under continual attack.
Expert testimony is not required for a jury to
conclude from this evidence that the victim was alive and conscious
when many of her wounds were inflicted. There was sufficient
evidence from which a rational jury could find beyond a reasonable
doubt that the victim's death was preceded by serious physical abuse
as evidenced by conscious physical suffering. Application of the "especially
heinous, atrocious or cruel" aggravating circumstance therefore was
constitutional. See Cooks, 165 F.3d at 1290.
Ineffective assistance of counsel
Clayton contends he was deprived of effective
assistance of counsel at both phases of his trial. To demonstrate
constitutionally ineffective assistance of counsel, Clayton must
establish both that his counsel's representation was objectively
deficient and that absent such deficiency there is a reasonable
probability the result at trial would have been different. See
Strickland v. Washington, 466 U.S. 668, 688, 694 (1984).
Our scrutiny of counsel's performance is highly
deferential and we indulge a strong presumption that counsel's
conduct fell within the wide range of reasonable professional
assistance. Id. at 689. Counsel's conduct is analyzed not
through the distorting lens of hindsight, but from counsel's
perspective at the time of the alleged error. Id.
Guilt phase -- It appears the gravamen
of Clayton's claim is that his trial counsel was ineffective for not
utilizing an alternative perpetrator defense strategy in which
Hartsfield or Bill Timmons is portrayed as the killer. Clayton
bolsters this broad allegation with complaints of other, more direct
instances of ineffective assistance. He notes his counsel reserved
and ultimately waived opening statement, failed to conduct relevant
cross-examination, failed to present a case-in-chief, and made too
short a closing argument.
Wallace specifically determined after preparing
for trial "there was not any way to present a defense that denied Mr.
Clayton's involvement in Rhonda Timmons' death, and that we simply
had very little evidence to fight back with about the issue of guilt."
Appendix at 3. Consequently, the primary defense chosen (the state's
failure to satisfy its burden of proof) was not asserted strongly
during the guilt phase "in order to maintain credibility with the
jury in the mitigation phase." Id.
In light of the substantial, if not overwhelming,
evidence of Clayton's guilt, we cannot characterize this strategy as
unreasonable. See Hatch v. Oklahoma, 58 F.3d 1447,
1459 (10th Cir. 1995) ("For counsel's advice to rise to the level of
constitutional ineffectiveness, the decision . . . must have been
completely unreasonable, not merely wrong, so that it bears no
relationship to a possible defense strategy.").
Further, there is not a shred of credible
evidence, either direct or circumstantial, linking Hartsfield or
Bill Timmons to the murder. In fact, Clayton mentions Bill Timmons
almost as an afterthought. As for Hartsfield, Clayton attempts to
reconstruct by irrational inferences, innuendos, and half-truths a
story line linking Hartsfield to the scene of the crime, the
possible murder weapon, and the bloody sock found by the washing
machine. Trial counsel was under no duty to investigate this
unreasonable alternative perpetrator theory.
Of the more direct claims of ineffectiveness,
Clayton's complaint that counsel failed to make an opening statement
is the only potentially viable assertion. Indeed, there is no
reasonable explanation in counsel's affidavit for his decision first
to reserve opening statement and then to waive it entirely. However,
we consistently have held failure to make an opening statement does
not alone constitute ineffective assistance of counsel. See
Stouffer v. Reynolds, 168 F.3d 1155, 1163 (10th Cir. 1999).
Even if Clayton could establish his trial counsel
provided ineffective first phase assistance, the evidence of
Clayton's guilt is overwhelming and precludes a finding of prejudice.
In addition to Clayton's confession, the physical and circumstantial
evidence directly linked Clayton, and only Clayton, to the crime
scene and the murder.
Sentencing phase --Clayton also contends
his counsel rendered ineffective assistance during the sentencing
phase by failing to adequately investigate and present potentially
mitigating evidence. In support of this contention, Clayton submits
the affidavits of eight family members and friends who state they
would have testified on behalf of Clayton during the penalty phase.
Of these eight, none were contacted by trial
counsel and at least one was in the courtroom during trial. The
potential witnesses would in Clayton's words have "testified that
Robert Clayton had good qualities as a person, that his life had
value, [and] that he had touched and affected the lives of other
people in a positive way." Aplt's Br. at 94.
Trial counsel has a duty to investigate the
existence of potentially mitigating evidence, even if after
investigation counsel makes a tactical decision not to present some
or all of any mitigating evidence discovered. Stouffer, 168
F.3d at 1167. "[A]n attorney must have chosen not to present
mitigating evidence after having investigated the defendant's
background, and that choice must have been reasonable under the
circumstances." Brecheen v. Reynolds, 41 F.3d 1343, 1369
(10th Cir. 1994).
Even if trial counsel rendered deficient
assistance by not contacting family members during the course of
conducting a second stage investigation, Clayton still must show
prejudice from this deficient performance. Prejudice is established
at the sentencing phase if there is a reasonable probability that,
absent counsel's errors, "the sentencer--including an appellate
court, to the extent it independently reweighs the evidence--would
have concluded that the balance of aggravating and mitigating
circumstances did not warrant death." Davis v. Executive Dir. of
Dep't of Corrections, 100 F.3d 750, 760 (10th Cir. 1996). In
assessing whether counsel's deficient performance was prejudicial,
we must bear in mind the mitigating evidence introduced during the
penalty phase, the aggravating circumstances actually found by the
jury, and the strength of the State's case. See Boyd v.
Ward, 179 F.3d 904, 915 (10th Cir. 1999).
In light of the nature of the crime and the
strength of the state's case, there is not a reasonable probability
that the testimony of Clayton's family and friends would have
altered the outcome of the sentencing phase. This is not a case
where no mitigating evidence was presented on behalf of Clayton. Dr.
Williamson testified at length in the sentencing phase regarding
Clayton's low IQ and mental health.
In addition, the jury found the presence of both
the "continuing threat to society" and the "especially heinous,
atrocious or cruel" aggravating circumstances. As regards the "especially
heinous, atrocious or cruel" aggravator, the testimony that family
and friends considered Clayton to be a good person and that his life
had value would not have explained or justified the manner in which
Clayton committed the crime.
By his own admission, Clayton inflicted blunt
force injuries to the victim's head and body, stabbing her twelve
times and choking her with her bikini top, all while she fled from
the door of the apartment to the bedroom of her baby, where she
collapsed and died. The nature of the victim's death reveals Clayton
subjected her not to a single violent episode but a sustained
assault that left a trail of blood through the apartment.
During the guilt phase, the state introduced even
more evidence of Clayton's violent tendencies and checkered past. It
was established he had brutally assaulted and raped a woman at knife
point in Alabama in 1984 and, along with Hartsfield and Hartsfield's
sister, had assaulted a man in Houston shortly before the victim in
the present case was murdered.
In short, while we are troubled that in preparing
for the second phase of trial Clayton's counsel did not contact
Clayton's immediate family, we are firmly convinced Clayton suffered
no prejudice from counsel's performance. The state's case was
formidable and the evidence amply supported the imposition of both
aggravating circumstances. The general and cumulative mitigating
testimony of Clayton's family and friends would not have made a
difference. Cf. Cooks, 165 F.3d at 1296.
Newly discovered evidence
Clayton lists in his appellate brief several
revelations discovered by his habeas counsel in interviews with
trial witnesses ten years after his conviction. It is unclear
whether Clayton is presenting this allegedly "newly discovered
evidence" as an independent constitutional claim of actual innocence
warranting habeas relief as a mechanism by which to bypass a
procedural bar, or as evidence supporting his claim of ineffective
assistance of counsel. Neither argument previously was presented in
Clayton characterizes the following as newly
discovered evidence: (1) Hartsfield confided to his sister that he
may have killed a man in Texas; (2) Hartsfield's brother-in-law now
denied being with Hartsfield on the morning of the murder; and (3)
Hartsfield's sister contradicted her trial testimony by stating the
blood on Clayton's clothing was dry when she saw it, that she
witnessed Clayton hide the knife, that Hartsfield asked her to "cover"
for him, and that she believed her husband was at work on the
morning of the murder and not with Hartsfield.
Clayton offers an affidavit from an attorney
attesting to what Hartsfield's brother-in-law said in an interview
but does not offer an affidavit from the brother-in-law. The
transcript of a recorded conversation indicated that Hartsfield's
sister could not fully recall if her husband was at work on the
morning of the murder and she did not understand Hartsfield's
request to "cover him" to be a request to lie on his behalf. She
also stated unambiguously that Clayton's clothing was bloody.
Bearing in mind the actual state of the record, we turn to Clayton's
newly discovered evidence claim.
In Herrera, the Supreme Court intimated
strongly that newly discovered evidence of actual innocence is not
sufficient to warrant habeas relief absent an independent
constitutional violation in the underlying state criminal proceeding.
506 U.S. at 400.
The Court nonetheless declined to completely
foreclose the possibility that a "truly persuasive demonstration of
'actual innocence' made after trial [would] . . . warrant federal
habeas relief," instead cautioning that "the threshold showing for
such an assumed right would necessarily be extraordinarily high."
Id. at 417. Typically, however, newly discovered evidence of
actual innocence may serve only to satisfy the fundamental
miscarriage of justice exception that excuses a petitioner's
procedural default and permits a court to address an otherwise
barred constitutional claim. Id. at 404.
Clayton's newly discovered evidence claim does
not satisfy the extraordinarily high threshold set forth in
Herrera and he asserts no separate underlying constitutional
violation. The evidence which he asserts as newly discovered
evidence barely aids his case and is merely impeaching evidence that
would not cause a rational person to doubt Clayton's guilt. See
Stafford v. Saffle, 34 F.3d 1557, 1561 (10th Cir. 1994).
Nor is Clayton's newly discovered evidence
sufficient to invoke the fundamental miscarriage of justice
exception, which excuses a petitioner's procedural default. Clayton
has not made a colorable showing of factual innocence, see
Herrera, 506 U.S. at 404, and has not identified an independent
constitutional claim, other than ineffective assistance of counsel,
that we could review even if we found the miscarriage of justice
exception applicable. As for his vague and passing reference to
ineffective assistance of counsel, Clayton fails to identify how his
counsel was ineffective in failing to discover this evidence or how
any deficient performance prejudiced him. It is a virtual certainty
that disclosure of this newly discovered evidence would not have
altered the outcome of Clayton's trial.
Clayton contends the cumulative effect of
otherwise harmless errors deprived him of a fair trial. This
contention does not merit review given the lack of any discernible
Except for the trial judge and one of the clinical psychologists,
all of these individuals testified at the retrospective competency
Respondent has not asserted, and we do not consider, whether
Cooper is retroactively applicable to cases where the direct
appeal was final before Cooper was decided. See
Goeke v. Branch, 514 U.S. 115, 117 (1995) (holding court need
not entertain a Teague v. Lane, 489 U.S. 288 (1988), defense
if state has not raised it); Schiro v. Farley, 510 U.S. 222,
229 (1994) (indicating state can waive the Teague defense by
not raising it).
procedural default analysis is necessary because Clayton's challenge
is a procedural competency claim, which is subject to waiver, rather
than a substantive competency claim, which is not subject to waiver.
See Rogers v. Gibson, 173 F.3d 1278, 1289 (10th Cir.
Clayton misunderstands our rules regarding exhaustion and procedural
bar. He reasons (1) he did not present his claim on direct appeal or
in his application for post-conviction relief; (2) Oklahoma's
consistently applied procedural rules would preclude him from
presenting the claim in a successive application for post-conviction
relief because it previously could have been raised; and (3) because
further filings in state court would be futile, the "futility"
exception to exhaustion applies and mandates his new claim be heard
on federal habeas review. Assuming the futility exception applies,
it does not foreclose application of the procedural bar, provided
(1) Clayton had the opportunity to present the issue in state court,
but either chose not to or overlooked the issue entirely, and (2)
the state court would bar presentation of the issue on a state
procedural ground if presented in a new post-conviction application.
See O'Sullivan v. Boerckel, 119 S. Ct. 1728, 1734
(1999). Because these conditions are met, the procedural bar applies.
In any event, Clayton's contention is without
merit. Testimony that Clayton was advised of his rights is
admissible to "lay a proper foundation for the admission of any
statements" later made by Clayton. United States v. De La Luz
Gallegos, 738 F.2d 378, 381 (10th Cir. 1984). "This is so
because it is the jury which must ultimately make the determination
as to whether or not any subsequent statements made by a defendant
were voluntary and what weight to give to such statements in their
deliberations." Id. at 381-82.
Several times in his appellate brief, Clayton also refers to the
denial of expert psychiatric assistance during the guilt phase of
trial. To the extent these general references are intended to
constitute a separate appellate issue, they are inadequate to show
Clayton's sanity was likely to be an issue during the guilt phase.
See Liles v. Saffle, 945 F.2d 333, 335-36 (10th Cir.