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Scott Allen HAIN

 
 
 
 
 

 

 

 

 
 
 
Classification: Homicide
Characteristics: Juvenile (17) - Kidnapping - Robbery
Number of victims: 2
Date of murders: October 6, 1987
Date of arrest: 3 days after
Date of birth: June 2, 1970
Victims profile: Michael William Houghton, 27, and Laura Lee Sanders, 22
Method of murder: Forced the victims into the trunk of the car and set it on fire
Location: Tulsa, Oklahoma, USA
Status: Executed by lethal injection in Oklahoma on April3, 2003
 
 
 
 
 
 

petition for a writ of certiorari

 
 
 
 
 
 

Summary:

Laura Lee Sanders and Michael Houghton were seated in Sanders' car outside a Tulsa bar when they were approached by Scott Allen Hain and Robert Wayne Lambert.

Hain and Lambert were in the parking lot, waiting to rob a nearby house when they saw Sanders and Houghton talking in the car.

Appellant and Lambert forced their way into the car by threatening Houghton with a knife. Hain drove the car away from the bar, then stopped and robbed Houghton at gunpoint. When Houghton resisted the robbery, Hain forced him into the trunk of the car.

A short while later, Hain and Lambert stopped and put Sanders in the trunk as well. The two men went back and drove away Houghton's car and stopped after driving down a rural roadway.

The two men took Sanders' belongings, cut the gas line to the car and set it on fire. Houghton and Sanders were banging on the trunk and yelling. Hain and Lambert left the area, but returned a short time later to see if the fire was burning well.

Hains was the 22nd murderer executed in the United States since 1976 for a murder committed when they were younger than 18 years old. Lambert remains on death row awaiting execution.

Citations:

Hain v. State, 852 P.2d 744 (Okla. Crim. App. 1993). (Direct Appeal - Reversed)
Hain v. State, 919 P.2d 1130 (Okla. Crim. App. 1996). (Direct Appeal)
Hain v. State, 962 P.2d 649 (Okla. Crim. App. 1998). (PCR).

Final Meal:

Three cheeseburgers, three orders of onion rings, ice cream and a slush drink.

Final Words:

No final statement.

ClarkProsecutor.org

 
 

Oklahoma Department of Corrections

Inmate: Scott Allen Hain
ODOC# 173580
Birthdate: 06/02/1970
Race: White
Sex: Male
Height: 5 ft. 08 in
Weight: 140 pounds
Hair: Brown
Eyes: Brown
Location: Oklahoma State Penitentiary, Mcalester

 
 

Oklahoma Attorney General

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

John Michael Hooker Execution Date Set

01/31/2003 - Execution Date Set for Hain

The Oklahoma Court of Criminal Appeals today set April 3 as the execution date for death row inmate Scott Allen Hain. Attorney General Drew Edmondson asked the court to set the execution date after the United States Supreme Court denied Hain's final appeal Jan. 27.

Hain, 32, was sentenced to death in Creek County District Court for the Oct. 6, 1987, murders of Michael William Houghton, 27, and Laura Lee Sanders, 22.

Hain and co-defendant Robert Wayne Lambert kidnaped Houghton and Sanders from the Brookside Bar parking lot in Tulsa. After robbing Houghton, Hain and Lambert forced Houghton and Sanders into the trunk of Sanders' car. They drove the car to a rural location in Creek County and burned it with Houghton and Sanders still in the trunk.

Hain and Lambert were arrested in Tulsa Oct. 9, 1987. Both were convicted and given the death penalty. Lambert's appeal is pending before the United States District Court for the Northern District of Oklahoma.

 
 

ProDeathPenalty.com

During the early morning hours of October 6, 1987, Laura Lee Sanders and Michael William Houghton were seated in Sanders' car outside a Tulsa bar when they were approached by two men, later determined to be Scott Allen Hain and Robert Wayne Lambert.

Hain and Lambert were in the parking lot, waiting to rob a nearby house when they saw Laura and Michael talking in the car. Hain and Lambert forced their way into the car by threatening Michael with a knife. Hain drove the car away from the bar, then stopped and robbed Michael at gunpoint. When Michael resisted the robbery, Hain forced him into the trunk of the car. A short while later, Hain and Lambert stopped and put Laura Lee in the trunk as well.

After robbing Michael and getting the keys to his truck, the two men decided to go back to the bar where the incident began and take Michael's truck as well as Laura Lee's car. Lambert drove the truck away from Tulsa toward Sand Springs.

He stopped after driving down a rural Creek County roadway. Hain followed in Laura's car with Laura and Mike in the trunk. The two men took Laura's things, including some clothes, out of her car and put them in the truck. One of them cut the gas line to the car and set it on fire by putting lighted newspaper and a blanket under the dripping fuel line. Mike and Laura Lee were banging on the trunk and yelling.

Hain and Lambert left the area, however they returned a short time later to see if the fire was burning well. The two men stopped at a friend's house in Jennings and left a bag of things belonging to the victims in the garage. They traveled to Wichita, Kansas in Mike's truck. After spending the $565 dollars which they got from Mike and Laura Lee, the two returned to Tulsa, where they were apprehended on the evening of October 9, 1987.

Scott Hain was sentenced to death in May 1988. In 1993, he was granted a new sentencing because of an error in the jury instructions at the original trial. He was eventually re-sentenced to death in 1994.

At Hain's re-sentencing hearing, the prosecution presented evidence indicating that Hain and his co-defendant Lambert had engaged in three violent crimes in the months leading up to the murders (the assault and rape of a woman in her rural Kansas home, the kidnapping and rape of a Wichita woman, and the robbery and attempted murder of a Tulsa couple, which included the kidnapping and rape of the woman).

In addition, the prosecution presented expert psychiatric testimony indicating that Hain's personality and psychological make-up made him prone to violence. Lastly, the prosecution presented evidence indicating that Hain had escaped from his jail cell while awaiting resentencing.

Michael Houghton's mother, Delma Houghton is troubled by the national attention given to death row inmates. "I don't think we are hearing from my side, the victims' side, the people who support the death penalty," she said. "There is much more media going for the perpetrators."

Laura's family presented victim impact statements at the trial. William Sanders, the brother of victim Laura Lee Sanders, testified in part: "The extremely violent nature of this crime and the total lack of respect for human life have shocked ­ shocked me. Absolutely everyone is brought up knowing the difference between right and wrong, and murder is wrong.

Once a crime of this magnitude has been committed, a person must expect to be punished to the fullest extent of the law. Life, life without parole, and death; these are the choices? All I can say for sure is that I know my sister was not given a choice between life or death. It has been seven years since my sister was murdered, and I'm still looking forward to the time when I can remember who she was and not the horrific images portrayed of her during the various court proceedings. The guilt has been established, and I feel strongly that the punishment should reflect the severity of the crime."

Carol Lee Sanders, Laura Lee Sanders' mother, said "It is very difficult for me to find words to express the horror, anger and disbelief that we felt and still feel, knowing that Laura Lee was put in the trunk of a car and burned alive while the ones who lit the fire listened to their screams for help, and yet only made sure that the car was burning good before they left.

Add to that the fact that Laura Lee and Mike had done nothing to deserve this and had no idea who the people were that took it upon themselves to murder them. It is hard for us to imagine that anyone could have that much hate and meanness in them.

These things make it even more difficult for us to accept her death. In the past seven years, we have been trying to deal with not only the loss of Laura Lee, but also with the heinous manner in which she was murdered. We know how very scared she must have been from the time she was kidnapped and put in the trunk of her car. It hurts every time I think of the horror that she must have felt during her last minutes on this earth with the smell of gasoline, followed by the smoke, and then the heat of the flames, and having no way to escape.

Every time I see a picture of a burning car on television or in a movie, it feels like someone has just kicked me in the stomach. Several months ago, I had to have both of our dogs put to sleep. As I held them while the doctor gave them a shot, I saw them die very peacefully in my arms. I couldn't help but think of Laura Lee and Mike again and wish that they had been able to die that peacefully.

In order for true justice to be done in this case, I feel that Scott Hain should also be sentenced to death. Somebody with his mind-set should not be allowed to get off with anything less than the death penalty. There is absolutely no reason why anyone else should ever be subjected to his heinous acts of violence and to go through the pain and suffering that our families have had to endure for the past seven years."

Tena Houghton, Michael Houghton's wife, said, "I cannot watch a TV show or a movie with a fire scene in it, without closing my eyes or turning away, because these scenes bring back the pictures in my mind of Michael's body kicking and struggling and searching for a way out of that trunk. The heat, the fear, the pain that Michael suffered, I can't even begin to comprehend.

The mental pictures of this man that I loved so deeply being burnt alive to the point of being unrecognizable are almost unbearable. Scott Hain was fully aware that he was taking the life of two young and beautiful people, so aware, in fact, that he went back to the burning car, not to stop this horrible thing but to make sure it was going to do the job and make sure that Michael and Laura Lee would die.

He heard Michael and Laura Lee screaming with pain and terror, saw the car burning, but still did nothing to stop the horrible set of events which he had set into motion." Delma Houghton, Michael Houghton's mother, testified: "I've tried holding a lighted match to my finger, but I jerked it away. I tried touching the electric element in my stove, but I couldn't. I wanted to hurt myself and take away some of Mike's pain."

She further testified, "I never had a chance to say goodbye to Mike. His body was so charred, he had to be buried in a plastic bag. His beautiful hair was burned off, his nimble fingers were burned off. The medical examiner says his sparkly and gentle eyes were like hardboiled eggs, and he tried until he could try no more to beat the trunk open. I do want justice for all of us who loved him, but mostly for Michael and Laura Lee, who are not here to speak for themselves.

I believe Scott Allen Hain should be sentenced to death. He did not know Mike or Laura Lee, nor did he care who they were. He wanted to kill someone. We had to have our 10-year-old Golden Retriever put to sleep. I held her while the lethal injection was administered. She quivered a little and went gently to sleep. All I could think of was that I wished Mike and Laura Lee could have met death so gently. Until the death penalty is carried out, there is always the chance he could be released.

I believe if you take a life, your life should be taken unless it is self-defense or to save the life of another. The only true justice would be to have Mike and Laura Lee returned to us. We know that cannot be. I feel our families have been serving a death sentence for almost seven years.

Mike and Laura Lee received the death penalty without a trial, with no appeals, with no mercy and for no reason; they had committed no crime." Ashley Houghton, Michael Houghton's father, testified in part: "All that I, Michael and his family want is justice. I believe that the death sentence is deserved. The brutal way Michael was murdered, the brutal way the murder was carried out and the suffering that Michael and Laura Lee went through in the trunk of the car shows the total disregard for ­ for life that Scott Hain has. He deserves the death penalty."

UPDATE: The victims' family members all stated after the execution that the road to justice had been long and stressful but that they had finally arrived. The families said the execution was not a happy or joyful event but one that will help to let them go on with the rest of their lives with a little peace. "Tomorrow morning we won't have to deal with Scott Allen Hain in our lives," said Mike's mother, Delma Houghton. Laura's mother, Carol Sanders, said Hain's death only brings closure to the court proceedings. "He died peacefully, unlike Michael and Laura Lee," she said.

Phyllis Comstock, who was sexually assaulted by Hain and Lambert in Kansas, said the execution does bring closure for her and for other Kansas victims. Authorities said the murders of Houghton and Sanders ended a four-month crime spree by Hain and Lambert.

The two were accused of sexually assaulting several Kansas women and of later attacking a Tulsa couple, permanently injuring the man with a blow from a claw hammer and sexually assaulting and beating the woman.

Hain denied involvement in those attacks and was not tried for them. Lambert is seeking to have his death sentence for the murders vacated based on the U.S. Supreme Court ruling that mentally retarded people cannot be executed.

Lambert has tested mildly retarded. Before the U.S. Supreme Court allowed the execution to proceed Thursday evening, the federal appeals court in Denver earlier Thursday had for the second time in two days blocked Hain's execution. Thursday's 7-2 decision by the 10th U.S. Circuit Court of Appeals came about six hours before Hain's originally scheduled 6 p.m. execution at the Oklahoma State Penitentiary.

That decision was a denial of Attorney General Drew Edmondson's emergency request to overturn the stay that a panel of the court had granted 2-1 Wednesday night. Instead of allowing the execution to proceed, nine judges of the Denver-based court were to hear arguments May 6 on Hain's claim that his lawyers were entitled to be paid from federal funds to represent him at a second state clemency hearing.

Edmondson then made an emergency request to the Supreme Court to overturn the stay. The attorney general argued in a motion that the 10th Circuit judges had abused their discretion by delaying the execution. The state Pardon and Parole Board on Monday had unanimously denied Hain's request for clemency. But Presson told the appellate judges that he did not present a credible case for clemency because he could not prepare a case due to a lack of funds.

Edmondson took the position that Hain should be executed before the court decides if he and other indigent death-row inmates are entitled to have their lawyers paid from federal funds for work on state clemency cases. In Hain's case, the issue is moot because he had a clemency hearing, Edmondson argued.

Presson argued that Hain's appeal was not moot because there is precedent in Oklahoma for the Pardon and Parole Board to conduct new hearings or take another vote. The lawyer cited two instances during former Gov. Henry Bellmon's term when board members reconsidered, at the governor's request, their decision against clemency and voted to recommend clemency.

The Supreme Court took two actions Thursday to put the execution back on schedule. It denied Hain's request for a stay and vacated the stay granted by the lower court. The decision to allow the execution came from the court's conservatives: Chief Justice William H. Rehnquist and Justices Sandra Day O'Connor, Antonin Scalia, Anthony Kennedy and Clarence Thomas.

The other four noted their objections. "If this case was not surreal before the stay was issued, the case started taking on that surreal feeling last night," Oklahoma Assistant Attorney General Robert Whittaker said Thursday. The courts' inability to decide the funding issue had an impact on the case when the issue didn't affect Hain's conviction or sentence, he said.

 
 

National Coalition to Abolish the Death Penalty

Scott Hain (OK) - April 3, 2003 - 6:00 PM CST, 7:00 PM EST.

The state of Oklahoma is scheduled to execute Scott Hain, a juvenile offender, April 3 for the 1987 murders of Michael William Houghton and Laura Lee Sanders in Tulsa. Hain, a white man, was 17 years old at the time of the crime, and had no prior history of violence. The United States remains one of two countries in the world – along with Iran – that executes people for crimes they committed as children.

On October 4, 2002, the U.S. Supreme Court voted 5-4 not to review the case of Kevin Stanford, a juvenile offender on death row in Kentucky. Four justices – John Paul Stevens, David Souter, Ruth Ginsburg, and Stephen Breyer – dissented, claiming that the United States “should put an end to this shameful practice.”

As part of the Campaign to End Juvenile Executions, NCADP staff members have been active on the ground across the country during the past few months, mobilizing activists and advocating for legislation banning juvenile executions in the states. If one or two juvenile execution bills pass through the state legislatures before Hain’s execution date arrives, the U.S. Supreme Court could grant a stay and hear the case. However, in the likely event that the high court refuses to intervene for Hain, it is critically important for abolitionists around the nation and abroad to contact the state of Oklahoma and protest this scheduled execution and the juvenile death penalty as a whole.

Hain, along with his co-defendant Robert Lambert, allegedly kidnapped Michael William Houghton and Laura Lee Saunders on October 6, 1987; they then robbed them, threw them in the truck of Saunders’ car, and set the car on fire.

Both victims died, and the state charged Hain and Lambert with capital murder. A Tulsa court sentenced Hain to death in May 1988, but in 1993, he successfully appealed based on an error in jury instructions. One year later, the state sentenced him to death again.

The mitigating evidence in Hain’s case makes his pending execution an embarrassment to the state of Oklahoma and the United States as an nation. His upbringing clearly contributed to his poor decision-making, as did the substance abuse troubles he endured as a result of exposure to drugs and alcohol at an extremely young age. Hain’s father, a heavy drinker himself, introduced him to marijuana when he was 9 or 10 years old, and physically abused him as a child. His mother, meanwhile, was under court-ordered treatment for alcoholism.

At age 8, Hain suffered sexual abuse from his babysitter, another traumatic event that damaged him for years to come. He dropped out of school at age 13, punctuating a poor education career. As a teenager, his father involved him in a burglary and theft, and he eventually spent time in juvenile detention for property offenses (however, he had no record of violence).

At age 17, after leaving a juvenile facility, he lived on the streets, and struggled with drug and alcohol abuse – a problem he inherited from his family. He then met Robert Lambert, who was 4 years older than he, and they became involved in crime to buy drugs.

Hain’s story represents the tragedy of the death penalty system in the United States. His upbringing, over which he had no control, clearly misdirected his moral compass and encouraged him to engage in a life of substance abuse and crime. Before he even reached the age in which this society recognizes people as adults, the state of Oklahoma sentenced him to death.

Aside from possible U.S. Supreme Court intervention, Hain has an opportunity to convince the Oklahoma Pardon and Parole Board and Gov. Brad Henry to commute his sentence to life in prison without the possibility of parole. Henry, a Democrat, recently took office and has shown little mercy thus far.

He had a golden opportunity to commute a sentence in February, when the Pardon and Parole Board recommended clemency for Bobby Joe Fields. He denied the recommendation, and the state executed Fields on Feb. 14.

However, these circumstances are different; according to 2002 Gallup Poll, 69 percent of Americans oppose the execution of people who committed crimes below the age of 18, and the United States is clearly moving toward an end to juvenile executions.

In 1999, the state of Oklahoma executed Sean Sellers, a white man who committed a murder at the age of 16. Sellers is the only juvenile offender executed in Oklahoma since the reinstatement of the death penalty in 1976, and Gov. Henry should see to it that he is the last. Please write the state of Oklahoma and request clemency for Scott Hain.

 
 

Court: Former Teen Killer Can Be Executed

Supreme Court Allows for Oklahoma Execution of Man Who Was 17 When He Killed Two People

ABC NEWS

Associated Press - April 3, 2003

WASHINGTON - The Supreme Court overturned a stay Thursday and allowed Oklahoma to move ahead with the execution of a man who killed two people when he was 17, an unusual step for justices who have been bitterly divided on capital punishment for people who commit crimes as juveniles.

Scott Allen Hain had won the stay a day earlier from an appeals court. He was expected to be put to death Thursday night for helping to burn a man and woman alive in the trunk of their car in 1987. Oklahoma had asked the court to intervene, arguing that Hain's appeals had run out.

The court's intervention seemed to shut the door on hopes by death row opponents that the court would soon consider banning executions of people who were juveniles when they committed their crimes. The issue has been contentious for the court, which has held that states can put to death people who were 16 or 17 when they killed.

Last October, the four most liberal justices said the court should raise the age to 18. "The practice of executing such offenders is a relic of the past and is inconsistent with evolving standards of decency in a civilized society," Justice John Paul Stevens said, along with Justices David H. Souter, Ruth Bader Ginsburg and Stephen Breyer. The United States is one of a few countries that allow such executions.

The decision to allow the execution came from the court's conservatives: Chief Justice William H. Rehnquist and Justices Sandra Day O'Connor, Antonin Scalia, Anthony Kennedy and Clarence Thomas. The other four noted their objections. Hain had won a reprieve from a panel of the 10th U.S. Circuit Court of Appeals in Denver, which voted 2-1 Wednesday night to stay the execution.

Hain is on death row for the killings of Michael Houghton, 27, and Laura Lee Sanders, 22, restaurant co-workers and friends, who were kidnapped Oct. 6, 1987, from behind a Tulsa bar and stuffed into the trunk of Sanders' car. Hain was convicted with a man of taking the couple to a rural area and setting the car on fire. Hain, now 32, says he acted under the control of Robert Lambert, a 21-year-old he had met on Tulsa's streets.

At issue in his appeal was whether the government should have paid for Hain's lawyer at a clemency hearing. An attorney appeared at the hearing with Hain, but said he could not present a credible case for clemency because he hadn't been able to prepare it, including bringing in experts to testify, because of lack of funds. "If Hain would ultimately prevail in this appeal, it remains possible that he could persuade the Oklahoma Pardon and Parole Board to reconsider its decision and/or grant him a new clemency hearing," two 10th Circuit judges wrote. Hain's lawyer, Steven Presson, said Hain talks about his regrets, describing haunting nightmares and dreams of trying to open the trunk but burning his hands.

Sanders' mother, Carol, was unmoved by Hain's apologies when he asked the parole board to spare his life. "I don't know that he has heart to care," she said. "I think we're all looking forward to getting him out of our lives."

The murders ended what authorities said was a four-month crime spree by Hain and Lambert. The two were accused of sexually assaulting two Kansas women and later attacking a Tulsa couple, permanently injuring the man with a blow from a claw hammer and sexually assaulting and beating the woman. Hain denied involvement in those attacks and was not tried for them after his conviction in the murders.

 
 

Hain Executed After Supreme Court Overturns Stay

By Robert Anthony Phillips

TheDeathHouse.com

April 3, 2003

McALESTER, Okla. - Juvenile killer Scott Allen Hain was executed by lethal injection Thursday night after the U.S. Supreme Court overturned a stay given to him by a lower appeals court. Hain, who murdered two people at the age of 17, was pronounced dead at 8:39 p.m. at the state penitentiary.

He had no last statement Hain became the 22nd condemned killer put to death in the modern era of the death penalty for murders committed at the age of 16 or 17. Hain was 32-years old. The execution came after the U.S. Supreme Court voted 5-4 to overturn a lower court ruling that had, at the time, stopped Hain's execution. The lower court had wanted to hear the issue of whether the state should have paid for a lawyer to represent Hain at a clemency hearing.

The Oklahoma Board of Pardons and Paroles had rejected clemency for Hain, who participated in the robbery and kidnapping of two people. The two were locked in the trunk of a car and killed when the vehicle was set on fire.

Although Hain appeared before the panel to apologize for the murders he committed, his lawyer said he did not have the money to hire experts and present a full clemency case. The murders occurred in 1987. Lara Lee Sanders and Michael Houghton were in the parking lot of a Tulsa bar when they were kidnapped and locked in the trunk of a car. Hain and Lambert then drove to a remote location, where they cut the gas line and set fire to the vehicle.

Supreme Refusal

Last October, a deeply divided U.S. Supreme Court declined to review a case involving the constitutionality of sentencing those under 18 to death. Thursday's narrow decision by the justices reaffirmed that decision.

In 1989, the high court ruled that it was constitutional to sentence 16 and 17-year-olds to death. Anti-death penalty groups had hoped that the high court would ban the execution of juvenile killers because the jurists had also switched gears to declare unconstitutional the execution of mentally retarded killers.

As in other cases involving the so called juvenile death penalty, the high court was split on whether Hain should be exeucted. Chief Justice William Rehnquist and Justices Antonin Scalia, Sandra Day O'Connor, Clarence Thomas and Anthony Kennedy voted to life the stay of execution for Hain.

Anti-death penalty, religious, child advocacy and medical groups say that teenage killers should not be subject to the death penalty because the adolescent brain has not been fully developed and teens do not have the same emotional controls as adults.

The lawyer for the Children's Rights Division of Human Rights Watch has stated that "Executing someone who was a child at the time of his crimes isn't justice. It's a medieval practice that should be abandoned." There are about 80 persons on death rows across the Untied States who were sentenced to death for murders committed while they were under the age of 18.

Immature Brains

The American Bar Association, in its campaign against juvenile executions, points to studies which show the adolescent brain is not fully developed and doesn't have the ability to fully control emotions and anticipate consequences of actions. "As a society, we recognize the limitations of adolescents and restrict their privilege to drive, drink alcohol, smoke, vote, marry, enter into contracts, and even watch "R" rated movies, the legal group stated."Each year we spend billions dollars for drug prevention and sex education to protect youth during this vulnerable time...thus when it comes to capital punishment, society is guilty of a critical contradiction when we subject adolescent offenders to the death penalty." Anti-death penalty groups also pointed out that national polls have shown that the overwhelming majority of Americans do not favor the death penalty for 16 and 17-year-old killers.

Pro Death Penalty Group: No Big Deal

Kent Scheidegger, legal director of the Criminal Justice Legal Foundation, a group which supports the death penalty, said although the executions of kid killers grabs media attention, the CFLF doesn't view it as a major death penalty issue. "If a state enacts a cutoff of eighteen I don’t think it will seriously impact the death penalty," Scheidegger said. But, Scheidegger added that he sees "nothing magical" about an individual’s eighteenth birthday - making a killer eligible for the death penalty on his eighteenth birthday and not eligible the day before.

States And Juvenile Death Penalty Currently, 16 states, the federal government and the military require the killer to be a minimum of 18 before prosecutors can seek the death penalty. Of those states Texas (allowing the death penalty for those 17 and older) has executed the greatest number of juveniles killers - 13. The state, before Hain was put to death, had executed the last six juvenile killers in the United States. Virginia, where prosecutors are allowed to seek the death penalty against 16-year-olds, has executed three.

But of the 22 states allowing 16 or 17-year-old to face a death sentence, juvenile killers have been put to death in only six of the states. The states that do not allow the death penalty for anyone under 18 are: California, Colorado, Connecticut, Illinois, Kansas, Maryland, Nebraska, Indiana, Montana, New Jersey, New Mexico, New York, Ohio, Oregon, Tennessee and Washington state.

David Elliot, a spokesman for the National Coalition to Abolish the Death Penalty, said that in the current legislation sessions across the Untied States, bills that would bar the death penalty for those under 18 have been introduced in 10 states. But as of yet, no state has lowered its death penalty eligibility age.

Elliot said that currently, only three bills banning juvenile executions are still alive in legislatures in Nevada, Florida and South Dakota. In Nevada, the Assembly has approved changes in its death penalty laws that would prevent prosecutors from seeking the death penalty against 16 or 17 -year olds. The state only has one person who has been sentenced to death for a murder committed at 16. His sentence would be commuted to life in prison.

Stanford Case

In the modern death penalty era, the landmark ruling allowing juvenile executions came in the Kentucky case involving Kevin Stanford, convicted of the rape and murder of a female gas station attendant. Stanford was 17-years-old at the time.The high court in 1989 upheld the death sentence against Stanford.Despite the ruling, Stanford is still alive. He has exhausted his appeals and could be executed this year.

However, Kentucky Gov. Paul Patton has yet to sign a death warrant calling for Stanford's execution.Another juvenile killer facing death is Ronald Chris Foster, a Mississippi man who at 17 robbed and killed a convenience

The last juvenile killer put to death in the United States, before Hain, was Toronto Patterson, who was executed by lethal injection in Texas in August 2002. Patterson killed a mother and her two children. Patterson was 27 at the time of his execution. April 4, 2003 Scott Allen Hain

 
 

Family Awaits Execution of Double Murderer

By Rochelle Hines - Daily Oklahoman

March 24, 2003

OKLAHOMA CITY - Sylvia Stokes and Drusilla Morgan have been gone since 1988, but for Cynthia Stokes they live on in her memories and in the faces of her sister's children.

Cynthia Stokes was 28 years old when she went from being a mother of three to a mother of seven. She had to take care of Sylvia Stokes' three young children and her 11-year-old sister, Crystal. "I miss them and stuff, but they're still here," Cynthia Stokes said Monday of the children, now ages 20, 10 and 16. "Every day is a blessing. They have really been my strength."

Cynthia Stokes said the children have not had any contact with their father, John Michael Hooker, who faces execution Tuesday evening for the deaths of their mother and grandmother. "I never raised them to be against him. I always left that door open," Cynthia Stokes said. "He never reached out to them either, to make amends or tell his side of the story or anything like that."

Hooker's lawyer filed an appeal and a request for a stay of execution with the U.S. Supreme Court on Monday. The attorney general's office was crafting a response, said Charlie Price, a spokesman with the attorney general's office. Calls to attorney Randy Bauman were not immediately returned. If it happens, Hooker will be executed nearly 15 years to the day he stabbed Morgan and Stokes to death.

March 27, 1988, was the day Sylvia Stokes had wanted Hooker out of the apartment they shared with their children. About a week before, she had taken the children and moved in with her mother. Sylvia Stokes had told Cynthia Stokes that she feared Hooker would do something to her and the children, court records show.

According to witnesses, Hooker entered the apartment that day shortly before Sylvia Stokes and Morgan went there to pick up some clean clothes and food for the children. Residents who lived in the apartment below Hooker's said they heard loud noises, and later saw Hooker with blood on his clothing.

When Cynthia and her sister, Crystal, went to check on their relatives the following day, Cynthia had trouble getting into Hooker's apartment. She managed to push the door open slightly, looked in and saw her mother on the floor surrounded by a pool of blood. "I'm feeling stuff I forgot," Cynthia Stokes said, crying as she recalled the moment. Sylvia Stokes was stabbed eight time and Morgan 12, causing internal bleeding that killed them both.

Violence marred the eight-year relationship between Hooker and Sylvia Stokes. One witness reported seeing Hooker beat his girlfriend in the head with a stick that resembled a pool cue in 1986.

The manager of the apartment complex said she had seen bruises on Stokes' head. Sylvia Stokes sought a victim's protective order against Hooker in October 1987, but the couple reconciled and planned to marry in February 1988.

They broke up again. A friend of the couple testified at Hooker's trial that Hooker had talked about killing Sylvia Stokes and possibly her mother just four days before the murders. For Cynthia Stokes, following through with that threat took away a sister who was like a twin, they were about a year apart in age, and a mother who was well-liked. "Everywhere we go, people were like `we love Miss Dru.' If they needed a cup of sugar or a few dollars to carry them over until they got paid, she'd do it," Cynthia Stokes said of her mother.

For a while in 2001, it looked like Hooker's case might change course. Officials re-examined DNA evidence because it originally had been handled by Oklahoma City police chemist Joyce Gilchrist.

Investigators retested DNA evidence submitted in all of Gilchrist's cases after officials accused her of performing shoddy work. Results of the retesting, however, showed that blood from Stokes and Morgan was found on Hooker's pants, officials said.

The 10th U.S. Circuit of Appeals in Denver denied Hooker's appeal last year and the U.S. Supreme Court rejected an appeal in January. "I'm glad it's fixing to be over," Cynthia Stokes said. "It's something that's never going to go away. We're going to always live with it." Crystal Stokes said she had "no problem with them killing that man." "Not only did my mom and sister die, but my mother's only sister drank herself to death behind this. "My uncle is 67 years old. He's been waiting on this day."

 
 

Board Says No Clemency for Convicted Killers

By Doug Russell - McAlester NEWS

April 1, 2003

Two men scheduled to be executed in the next eight days don't deserve clemency, according to the Oklahoma Pardon and Parole Board.

Board members unanimously voted Monday morning to deny clemency to 32-year-old Scott Allen Hain and voted 4-0 Monday afternoon to deny clemency to 43-year-old Don Wilson Hawkins Jr. Board chairman Patrick Morgan, a former Oklahoma County prosecutor, abstained from voting during Hawkins' hearing. Hain is scheduled to be executed Thursday. Hawkins' execution date is April 8.

Hain apologized to the families of Michael Houghton and Laura Lee Sanders then tried to shift the blame for their murders onto his codefendant, death row inmate Robert Lambert. "I come before you as a man, no longer the child sentenced to death by 12 strangers for being an unwitting accomplice to an individual who put his will upon me," Hain said. "However, even as the man I have become I find myself once again before strangers who hold the final power of the only things left to me in the world - my life and death."

Assistant Attorney General Robert Whittaker said he found it interesting that Hain's attorneys say Hain was a follower, that Lambert was primarily responsible for Sanders' and Houghton's deaths, because he was a juvenile seeking approval of an older man.

Lambert's attorneys, on the other hand, say Hain was the leader because Lambert is slightly retarded, Whittaker said. Creek County District Attorney Max Cook's voice shook as he told the board many crime victims know the criminals who harm them but "These victims weren't involved with their killers. These victims were bright young people who had great plans for their futures and their punishment for being good kids was to be put in the trunk of a car that was then turned into an oven."

Prosecutors contend Hain and Lambert were on a four month crime spree across Oklahoma and Texas when they kidnapped Sanders and Houghton, locked them in the trunk of a car and set the car on fire.

Hawkins told board members he is not the same man he was 18 years ago when he kidnapped 29-year-old Linda Ann Thompson in 1985 and drowned her in Sportsman's Lake near Seminole.

A co-defendant in the case, Dale Shelton, was sentenced to life without parole for his part in the crime. "I'm not trying to justify what I've done because I'm guilty," Hawkins said. "I put me here. I wasn't arrested in church." However, he said, since being in prison he has become a Christian and has been able to touch a number of lives, including the lives of many people on death row.

"Prison cells - the space and time - that doesn't change you," he said. "It allows you the chance to change. Only God can change you." Thompson's uncle, mother and brother asked the board to deny clemency. Hawkins "made a change in my life," said Charlie Schneider, Thompson's brother. "Memories are the only things I have of my sister. Please don't let the lasting memory be that clemency was granted."

 
 

Amnesty International

Amnesty International Urgent Action Appeal - Scott Allen Hain

18 February 2003 - USA (Oklahoma) Scott Allen Hain

Scott Hain (m), aged 32, is scheduled to be executed in Oklahoma on 3 April 2003 for a double murder committed when he was 17 years old. International law, respected in almost every country in the world, prohibits the use of the death penalty against people who were under 18 at the time of the crime.

Scott Hain and Robert Lambert (see below) were sentenced to death at separate trials for the murders of Michael William Houghton, aged 27, and Laura Lee Sanders, aged 22, on 6 October 1987. The two victims had been kidnapped in Sanders' car, robbed, and forced into the vehicle's boot (trunk). The car was then set on fire.

Scott Hain was sentenced to death in May 1988. In 1993, he was granted a new sentencing because of an error in the jury instructions at the original trial. He was eventually re-sentenced to death in 1994.

At the time of his arrest, Scott Hain's mother was under court-ordered treatment for alcoholism. His father was also a heavy drinker and spent little time at home. He allegedly used to physically abuse Scott, who was also sexually abused by a babysitter when he was about eight. His father introduced him to marijuana when he was nine or 10 years old.

The boy's school record was poor, he had to repeat several grades, and he dropped out of school around the age of 13. From around that time, he began to get into trouble with the law and spent time in juvenile detention for property offences. He absconded on several occasions.

During this time, he was involved in burglary and theft with his father. In July 1987, Scott Hain, now 17, absconded from a juvenile facility for the last time. For most of the next three months he lived on the streets, and increasingly resorted to alcohol and drugs, including crack cocaine.

During this time he met Robert Lambert, who was four years older, and they became involved in crime in order to obtain drugs. Scott Hain had no record of violence up to this time.

BACKGROUND INFORMATION

Robert Lambert, who is still on death row, has a claim of mental retardation. He may therefore be protected by the 2002 US Supreme Court ruling, Atkins v Virginia, which found that the execution of people with mental retardation is unconstitutional.

The Court found that such executions contravened "evolving standards of decency" in the USA, and that the disabilities of such offenders rendered the use of the death penalty against them disproportionate. The Court noted that the international community "overwhelmingly disapproved" of such executions.

Offenders who were 16 or 17 at the time of their crimes can still be subject to the death penalty in the USA under a 1989 Supreme Court decision, Stanford v Kentucky. However, the international condemnation referred to in the Atkins v Virginia decision is even clearer in relation to child offenders than it is for offenders with mental retardation. There is also all but equal evidence of a national "consensus" in the USA against both categories of execution under the criteria used by the Supreme Court.

In addition, as with offenders with mental retardation, children have characteristics that similarly render the death penalty an excessive sanction against them. For example, young people are vulnerable to peer pressure and the domination of their elders, they are impulsive, immature, have poor judgment, and tend not to see the long-term consequences of their actions. In addition, the profile of the typical condemned teenager is not of a youngster from a stable, supportive background, but rather of a mentally impaired or emotionally disturbed adolescent emerging from a childhood of abuse, deprivation and poverty.

For further information see USA: Indecent and internationally illegal: The death penalty against child offenders (AMR 51/143/2002, September 2002).

In October 2002, four of the nine Supreme Court Justices dissented from the Court's refusal to revisit its 1989 Stanford v Kentucky decision on young offenders: "There are no valid procedural objections to our reconsideration of the issue now, and, given our recent decision in Atkins v Virginia, we certainly should do so." The dissenters stated that the execution of people for crimes committed when they were under 18 years old was "a relic of the past... We should put an end to this shameful practice."

The imposition of the death penalty against people who were under 18 at the time of the crime is prohibited by international law, and has been roundly condemned by United Nations bodies and officials. The Geneva Conventions, the International Covenant on Civil and Political Rights, the Convention on the Rights of the Child, the American Convention on Human Rights and the United Nations Safeguards Guaranteeing Protection of the Rights of Those Facing the Death Penalty, all have provisions exempting this age group from execution.

In October 2002, the Inter-American Commission on Human Rights concluded: "The acceptance of this norm crosses political and ideological boundaries and efforts to detract from this standard have been vigorously condemned by members of the international community... [T]his proscription binds the community of States, including the United States".

Since 1990, the USA has executed 18 child offenders, compared to 14 such executions reported in the rest of the world combined. These 14 occurred in Democratic Republic of Congo, Iran, Nigeria, Pakistan, Saudi Arabia, and Yemen. Yemen and Pakistan have now abolished such use of the death penalty in law. Oklahoma executed Sean Sellers in 1999, the first and so far only person to be put to death for a crime committed at 16 since the USA resumed executions in 1977 (the others were 17).

 
 

The International Justice Project

Case Summary

Scott Hain was 17 years of age at the time of his arrest for the October 6, 1987 murder of Michael Houghton and Laura Sanders. Because Hain was a juvenile - under 18 years of age at the time of his crime - his execution would be contrary to American standards of justice, fairness, and decency as well as international law. In opposing his execution, we do not, in any way, seek either to excuse the crime or to minimize the pain and suffering it caused the family and friends of the victim.

The Facts of the Case

Scott Hain and Robert Lambert were drinking in Tulsa, Oklahoma, looking for something to steal when they noticed Scott Haughton and Laura Sanders in a parking lot. Hain and Lambert then stole Haughton's car, taking Haughton and Sanders with them. They eventually stopped to rob the couple and placed them in the trunk of the car. Lambert then set fire to the car, killing both Haughton and Sanders. Hain was convicted of a capital felony murder charge.

 
 

Hain's Childhood

(Source: habeas petition dated July 3, 1998)

Scott Hain was born on June 2, 1970, in Tulsa, to Don Hain and Aleta Catron Hain. The Hains married in 1966, had a daughter, Shawn, in 1968, and had Scott two years later. Aleta Hain dropped out of school in the ninth grade and worked in a variety of jobs.

A heavy drinker, Aleta Hain was, at the time of Hain's first trial, under court-ordered alcoholism treatment, having been arrested for driving under the influence three times in two years. Don Hain, a painter by profession, was also a very heavy drinker, and did not spend much time at home. Aleta Hain would prepare dinner for her husband - when he was home - and after dinner join him at a local bar. Hain and his sister Shawn fended for themselves. They did their homework by themselves and put themselves to bed.

Hain was held back in the first grade, an early sign of possible developmental difficulties. Problems at home grew. Hain reports that his father would hit him on the arms and legs with a wooden paddle. At about the time Hain was in the third grade, a sixteen year old babysitter sexually abused him and his sister. Hain was again held back in the fifth grade.

Don Hain introduced Hain to marijuana when he was nine or ten years of age. Two or three years later the family moved to Texas, in an attempt to escape debts. Hain began to smoke marijuana more regularly. Hain began to get in to more trouble, so leaving his family in Texas, he moved back to Tulsa to live with a family friend, Lou Mayfield.

While in Tulsa with Ms. Mayfield, Hain avoided trouble and stayed in school. Ms. Mayfield's influence was positive. Although the various records do not reflect the exact age at which Hain lived with Ms. Mayfield, it appears that he did so after leaving Texas at around age 12-13. Hain's family moved back to Tulsa about a year later, in approximately 1984, and Hain moved back in to the family home. It was at this juncture Hain began to get in to more serious trouble.

In May 1984, Hain was charged with grand larceny and knowingly concealing stolen property. He was adjudicated a delinquent and placed on probation. During the next year, when Hain was about 14-15 years old, he was often in the juvenile courts for various offenses such as trespassing, theft, and unauthorized use of a motor vehicle.

Placement in various juvenile facilities was attempted, but Hain often walked away. In September 1985 he was formally placed in the custody of the Department of Human Services, and a month later incarcerated at the Rader Treatment Center in Sand Springs (near Tulsa). Hain's progress at Rader was poor.

In February 1987, Hain was absent without leave (AWOL) from Rader. While AWOL, Hain and his father were involved in a burglary. Although the burglary charges were dropped, Hain was returned to Rader for "treatment." He went absent without leave (AWOL) from Rader in March 1987, but was caught and returned. He then went AWOL again - for the last time - in July that same year. Hain went with his father to Kansas, where his father found work for Hain in a warehouse. Hain would steal items from the warehouse and give them to his father, who sold them in a bar across the street from where Hain and his father were living. Police questioned them about their activities, and they quickly returned to Oklahoma.

In the three months following Hain's final absence from Rader, he spent the majority of his time on the streets of Tulsa, taking drugs daily. Hain reportedly increased his daily usage of alcohol, crystal, crack, marijuana, and speed. He also admitted that he had used LSD, PCP, and barbiturates. It was during this time of living on the streets and daily chronic drug use that Hain met Robert Lambert and accompanied Lambert on the events that lead them both to death row. Until this crime, Hain had never been involved in an act of violence.

Executing Juvenile Offenders is Contrary to International Law

The execution of child offenders is in contravention of international law and fundamental standards of human rights. The ultimate goal of the international community is to abolish the death penalty under all circumstances, however, until that time there are restrictions on the categories of persons who can be executed, juveniles being one of the restricted categories. The prohibition of the execution of juveniles is referenced in a number of international treaties, declarations, and statements by international bodies, in addition to the laws of the majority of nations. Please refer to the International Instruments section, for more explanations of juvenile offenders and international law.

Juvenile Offenders: Issues of Mitigation

By their very nature, teenagers are less mature, and therefore less culpable than adults. Adolescence is a transitional period of life when cognitive abilities, emotions, judgment, impulse control, and identity are still developing. The IJP offers overviews on brain development and trauma as possible mitigation factors for juvenile offenders.

Letters Asking for Clemency

March 3, 2003 - The Government of Mexico has sent letters to both Governor Henry and the Oklahoma Pardon and Parole Board requesting clemency

Government of Switzerland - letter asking for clemency on February 20, 2003, signed by Ambassador of Switzerland, Christian Blickenstorfer

February 26, 2003 - The European Union has issued a demarche asking both Governor Henry and the Oklahoma Pardon and Parole Board to grant Scott Hain clemency

February 27, 2003 - Council of Europe letter asking for clemency.

Petition for a Writ of Habeas Corpus - Trial Level

Petition for a Writ of Certiorari in the U.S. Supreme Court (Habeus Corpus)

News

April 3, 2003 - Oklahoma executed Scott Hain. He died approximately two hours after the U.S. Supreme Court overturned a stay. Hain was pronounced dead at 8:39 p.m. CST

April 3, 2003 - The U.S. Supreme Court has lifted the stay of execution granted by the Tenth Circuit Court of Appeals.

April 3, 2003 - The 10th Circuit, sitting en banc (with two judges recusing), voted 7-2 to keep the stay of execution in place. The U.S. Supreme Court can still overturn the stay.

April 2, 2003 - The Tenth Circuit entered a stay of execution for Scott Allen Hain. The panel denied panel rehearing, but stayed the execution to allow the full court time to vote on the pending petition for en banc review. Click here to read the Tenth Circuit's order.

April 1, 2003 - The Oklahoma Court of Criminal Appeals rejected Scott Allen Hain's second application for post-conviction relief.

March 31, 2003 - The Oklahoma Board of Pardons and Paroles denied Hain's clemency petition. The vote is a non-binding recommendation to Governor Henry.

March 26, 2003 - The 10th U.S. Circuit Court of Appeals ruled 2-1 in Hain's collateral appeal, that death row inmates are not entitled to have federally appointed and funded lawyers represent them in state clemency proceedings. This ruling means that Hain will essentially be unrepresented at his clemency hearing. His hearing is scheduled for Monday.

January 31, 2003 - Oklahoma Court of Criminal Appeals set execution date for April 3, 2003.

January 27, 2003 - Oklahoma Attorney General Drew Edmondson, requested that an execution date be set for Scott Hain.

January 27, 2003 - U.S. Supreme Court denies Hain's cert petition.

Amnesty International: US: More double standards as another child offender set to be executed.

 
 

Oklahoma executes man who killed when he was 17

OKLAHOMA CITY, Oklahoma (Reuters) -- Oklahoma Thursday executed a man who robbed and burned to death two restaurant workers when he was 17 in a case that raised questions about implementing capital punishment for a crime committed by a minor.

Scott Allen Hain, 32, died at 8:35 p.m., four minutes after prison officials injected him with a lethal cocktail of poisons to stop his heart and breathing. He had no final statement.

Hours before Hain was put to death, the U.S. Supreme Court overturned a stay on the execution that had been issued by a federal appeals court in Denver Wednesday.

The case drew international attention because Hain was 17 at the time of the murder and raised questions about implementing the death penalty for crimes committed by minors. The United States is one of a handful of nations that has executed juvenile offenders in the past five years.

Hain was executed for the 1987 double murder of Michael William Houghton and Laura Lee Sanders. Hain and an accomplice, Robert Wayne Lambert, then 21, abducted the two outside a Tulsa bar, robbed them of $565, then locked the couple in the trunk of a car and burned them alive.

Police said Hain and Lambert left the victims to burn to death in a car and then returned to the scene to inspect the charred corpses of their victims. Both were given the death penalty in the case. Lambert has not yet been executed.

Hain's last requested meal was cheeseburgers, onion rings and ice cream. "Given Hain's age at the time of the crime, his execution would be contrary to American standards of justice, fairness and decency, which punish according to the degree of culpability and reserve the death penalty for the 'worst of the worst' offenders," the American Civil Liberties Union of Oklahoma said in a statement. The group was backing life in prison as a punishment for Hain.

The decision by the Supreme Court to overturn the stay indicates that the body will not likely consider banning executions in certain cases on the basis that the offenders were juveniles at the time they committed crimes, court watchers said. About 17 family members and friends of the victim were present for the execution.

Condemned man gets last-minute delay

A divided appeals court in Denver on Wednesday postponed tonight's scheduled execution of Scott Allen Hain for the 1987 slayings of two Tulsa restaurant workers.

The 10th U.S. Circuit Court of Appeals, in an unusual after-hours decision, said Hain's execution will be stayed while the court considers his latest appeal. The judges split 2-1. In his appeal, Hain seeks federal funds to pay his lawyers for preparing his case for a second clemency hearing.

The Oklahoma Pardon and Parole Board on Monday denied Hain's request for clemency. His lawyer, Steven Presson, appeared at the hearing with Hain, but Presson said he could not present a credible case for clemency because he hadn't been able to prepare it because of lack of funds.

"If Hain would ultimately prevail in this appeal, it remains possible that he could persuade the Oklahoma Pardon and Parole Board to reconsider its decision and/or grant him a new clemency hearing," judges Mary Beck Briscoe of Lawrence, Kan., and Carlos Lucero of Denver wrote in a six-page decision.

In his dissent, judge Michael Murphy of Salt Lake City wrote, "There is simply nothing in the record before this court demonstrating any realistic possibility that Hain could ever obtain a second clemency hearing." He called the majority's position that the state board might give Hain a second clemency hearing "wild speculation."

Said Charlie Price, a spokesman for state Attorney General Drew Edmondson, "Obviously we are very disappointed that the stay was issued and we will continue to research our legal options to try to find a way to vacate the stay. This is just cruel for the families of the victims to have to go through this and we will do everything we can to see justice is done in this case."

Hain, 32, was convicted of robbing and murdering Michael Houghton, 27, and Laura Lee Sanders, 22, in 1987. Hain was 17 at the time. Hain and accomplice Robert Lambert stuffed the victims into the trunk of a car, then lit the car on fire, prosecutors said. Both defendants were sentenced to die. Lambert has not been executed.

The issue of executing juvenile offenders came up during Hain's clemency hearing Monday. Presson argued that the United States is one of few nations worldwide that execute juvenile offenders. Amnesty International and other anti-death penalty groups have assailed Hain's planned execution as a violation of international law.

But in Hain's case, the issue isn't that simple, state Assistant Attorney General Jennifer Miller said. Hain has a criminal history that dates back to his early teens. He was implicated in several rapes and assaults in Kansas and Tulsa, although he wasn't prosecuted for those crimes.

The slayings of Houghton and Sanders were particularly galling, Miller said. Hain and Lambert robbed their victims of $565, then waited as their victims burned in the trunk of Sanders' car, prosecutors said. Transcripts from a police interview with Hain indicated that he and Lambert could hear their pleas to be set free and their attempts to break out of the trunk as the car burned. They left, then later returned to make sure the car was still burning, prosecutors said.

"When a person looks at his age and the facts of this case, I just don't think it would make a difference," Miller said. "Just like with the jury. They knew he was 17, and they saw how heinous the crime was."

Hain will be the second juvenile offender executed in Oklahoma. Sean Sellers, executed at age 29 in 1999, was 16 when he killed three people in 1985 and 1986.

A recent poll, meanwhile, showed that two-thirds of Oklahomans surveyed would support legislation banning the execution of people who committed crimes when they were juveniles. The poll showed that 62.8 percent of those surveyed would favor legislation that banned executing juvenile offenders if a life-without-parole sentence were offered as an alternative.

Twenty-five percent of those polled said they would oppose such legislation. University of Oklahoma pollsters interviewed 400 people between March 17 and March 27. The poll has a 5 percent margin of error. Susan Sharp, a sociology professor at OU, said the poll's results were unexpected. "Oklahomans are pretty tough on crime," she said.

(source: The Oklahoman)

 
 

Man loses bid to stop execution

The Oklahoman

A man scheduled to be executed Thursday for the 1987 burning death of a Tulsa couple lost another appeal Tuesday to delay his execution. The Oklahoma Court of Criminal Appeals rejected Scott Allen Hain's second application for post- conviction relief.

The court last week turned down Hain's request for a stay of execution. Hain then filed for another stay. Monday, the state Pardon and Parole Board denied clemency for Hain.

Hain and Robert Wayne Lambert were convicted of killing Michael William Houghton and Laura Lee Sanders. They were restaurant workers who were abducted outside a Tulsa bar in 1987. They were robbed, put in the trunk of Sanders' car and taken to a secluded site in Creek County. The car was set on fire, burning the couple to death. Hain was 17 when the crime occurred.

The Court of Criminal Appeals said Tuesday that Hain's latest request for post-conviction relief claimed that standards have evolved among the states to the degree that the execution of a person who was 17 or younger at the time the offense was committed constitutes unusual punishment and is prohibited by the Oklahoma Constitution.

The appellate court said Hain argued that a national consensus against juvenile executions has emerged since the Court of Criminal Appeals considered his first post- conviction application. The court said Hain argued that this claim couldn't have been brought in his original application because there was not sufficient data to allow the Court of Criminal Appeals to conclude the execution of juveniles was cruel or unusual punishment.

Hain failed to show the factual basis of his claim has been previously unavailable, the court said. He hasn't cited case law from the U.S. Supreme Court or the Court of Criminal Appeals in support of the argument, the court said. "Further, the crux of (Hain's) argument is that he should not be subject to execution due to his young age at the time of the commission of the offense," the court said. "This argument was raised, thoroughly considered and rejected by this court on direct appeal."

 
 

Clemency denied for inmate

McALESTER (AP) -- The state Pardon and Parole Board voted Monday not recommend clemency for Oklahoma death row inmate Scott Allen Hain. The board voted 5-to-0 against recommending clemency. Hain is to be put to death Thursday for the 1987 deaths of Michael Houghton and Laura Lee Sanders. Houghton and Sanders were abducted and robbed outside a Tulsa bar then forced into the trunk of Sanders' car. The car was taken to Creek County and set on fire.

Various groups have asked Gov. Henry to commute Hain's sentence to life in prison because he was 17 at the time of the crime.

Inmates on death row lose lawyer funding

In Denver, a divided appeals court ruled Wednesday that death row inmates are not entitled to have federally appointed and funded lawyers represent them in state clemency proceedings.

The 10th U.S. Circuit Court of Appeals ruled 2-1 in the case of Oklahoma inmate Scott Allen Hain, who is scheduled to be executed April 3 for the 1987 killings of 2 Tulsa restaurant workers. The ruling applies to all 6 states making up the 10th Circuit.

Hain has a state clemency hearing scheduled for Monday. "He's completely unrepresented by counsel," one of Hain's federal court lawyers said regarding the state proceeding. The attorney, Steve Presson, speaking from his office in Norman, said Hain "is essentially on his own" at the clemency board.

Presson and co-counsel Robert Jackson had sought a ruling that federal courts, which are paying them to represent Hain in his federal court proceedings in Tulsa and Denver, were obligated under federal law to represent him in the state proceeding at federal expense. The lawyers argued the obligation existed because Hain had been denied relief in federal courts and the state proceeding was his next step.

On Friday, the appeals court denied Hain's emergency request to postpone his execution pending the outcome of the appeal decided Wednesday.

Presson said he, perhaps as early as today, will petition the 11 full-time 10th Circuit judges to reconsider Wednesday's decision of a three-judge panel. The court rarely agrees to reconsider decisions, but the chances are somewhat improved when, as in Hain's case, 1 judge dissented.

Oklahoma Assistant Attorney General Robert Whittaker, who is battling Hain's efforts to avoid execution, said "the appeal to obtain money (for the defense lawyers) was legitimate." But Whittaker said the earlier attempt to stay the execution pending the appeal "takes on the appearance of a delay tactic" because the appeal did not challenge the conviction or the sentence.

Hain, then 17, was convicted of murdering Michael Houghton, 27, and Laura Lee Sanders, 21, after abducting them from the Brookside Bar parking lot.

 
 

Hain execution set for April 3

2003-01-31

By The Associated Press

Oklahoma death row inmate Scott Allen Hain was scheduled to be executed on April 3 by the Oklahoma Court of Criminal Appeals Friday. Hain, 32, was sentenced to death in Creek County for the Oct. 6, 1987, murders of Michael William Houghton, 27, and Laura Lee Sanders, 22.

Hain was 17 when he and an older friend, co-defendant Robert Wayne Lambert, kidnapped the couple from a Tulsa nightspot and robbed Houghton before placing them in the trunk of Sanders' car. They drove the car to a rural area and burned it with Houghton and Sanders still in the trunk. Lambert was also sentenced to death and his appeal is pending.

Attorney General Drew Edmondson requested Hain's execution date on Monday after his final appeal was denied by the U.S. Supreme Court. Attorneys for Hain had asked the high court to set the minimum age for imposing the death penalty at 18 at the time the crime was committed.

 
 

Court Refuses Juvenile Execution Case

Associated Press

WASHINGTON (AP) -- The Supreme Court on Monday rejected an Oklahoma appeal that death penalty opponents considered their best hope of reopening a high court examination of juvenile executions. The action, taken without comment, seemed to put off for now speculation that the justices would soon bar states from executing juvenile death row inmates.

Only a handful of states have put to death people who committed their crimes when they were under 18, a politically charged practice in America and internationally. Last fall, four of the nine justices complained that executing young killers violates the Constitution's ban on cruel and unusual punishment and is a ``shameful practice.''

"The practice of executing such offenders is a relic of the past and is inconsistent with evolving standards of decency in a civilized society,'' Justice John Paul Stevens wrote in October in an opinion, joined by Justices David H. Souter, Ruth Bader Ginsburg and Stephen Breyer. The four justices, the more liberal wing of the court, had the votes to force their colleagues to hear arguments in the Oklahoma case. But, by refusing to do that, the justices signaled that there is no fifth vote to strike down juvenile executions. Justice Sandra Day O'Connor, a moderate conservative, is considered a crucial swing vote.

The Supreme Court has allowed the death penalty to be imposed on killers who were 16 or 17 at the time of their crimes. Lawyers for Oklahoma inmate Scott Allen Hain said the minimum age should be raised to 18. ``While they appear to be fully-grown physically and may seem to be functioning as adults, their judgment and impulse-control are simply not that of adults,'' attorney Steven Presson told justices in filings.

Hain was 17 when he and an older friend abducted and killed a young couple in 1987. They locked the victims in their car trunk and set it afire. Oklahoma assistant attorney general Robert Whittaker told justices that violent crime by juveniles has been increasing, and states need tools to punish the offenders. ``Homicidal crimes by juveniles have continued to confront the American public, from the school shootings in Columbine to the Washington Beltway snipers,'' he wrote in court papers.

Whittaker said charges against a 17-year-old in the sniper case ``may well be a catalyst for further national debate and legislative activity.'' He also said that there was no public outrage over the decision to put Lee Boyd Malvo on trial in Virginia, where he could receive the death penalty, instead of others states like Maryland that do not execute 17-year-olds. Malvo and an older man who treated him like a son have been linked to 19 shootings, including 13 deaths, in Maryland, Virginia, Louisiana, Georgia, Alabama and Washington, D.C.

The Supreme Court has limited executions. Most recently, the justices abolished executions for the mentally retarded last summer. ``Both juvenile and mentally retarded offenders have `the mind of a child,' albeit often in the body of an adult,'' Presson said. The case is Hain v. Mullin, 02-6438.

 
 

Hain v. Gibson (Habeas February 20, 2002)

287 F.3d 1224

SCOTT ALLEN HAIN, Petitioner-Appellant,
v.
GARY E. GIBSON, Warden, Respondent-Appellee.

No. 01-5014

United States Court of Appeals, Tenth Circuit.

February 20, 2002

Appeal from United States District Court for the Northern District of Oklahoma

Before BRISCOE, LUCERO, and MURPHY, Circuit Judges.

BRISCOE, Circuit Judge

Petitioner Scott Allen Hain, an Oklahoma state prisoner sentenced to death for two counts of first degree murder, appeals the district court's denial of his 28 U.S.C. § 2254 petition for writ of habeas corpus. We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.

I.

The following is a summary of the facts as set forth by the Oklahoma Court of Criminal Appeals (OCCA) in disposing of Hain's initial direct appeal:

During the early morning hours of October 6, 1987, Laura Lee Sanders and Michael Houghton were seated in Sanders' car outside a Tulsa bar when they were approached by two men, later determined to be Scott Allen Hain and Robert Wayne Lambert. Hain and Lambert were in the parking lot, waiting to rob a nearby house when they saw Sanders and Houghton talking in the car. Appellant and Lambert forced their way into the car by threatening Houghton with a knife.

Hain drove the car away from the bar, then stopped and robbed Houghton at gunpoint. When Houghton resisted the robbery, Appellant forced him into the trunk of the car. A short while later, Appellant and Lambert stopped and put Sanders in the trunk as well.

After robbing Houghton and getting the keys to his truck, the two men decided to go back to the bar where the incident began and take Houghton's truck as well as Sanders car. Lambert drove the truck away from Tulsa toward Sand Springs. He stopped after driving down a rural Creek County roadway. Appellant followed in Sanders' car with Sanders and Houghton in the trunk.

The two men took Sanders' things, including some clothes, out of her car and put them in the truck. One of them cut the gas line to the car and set it on fire by putting lighted newspaper and a blanket under the dripping fuel line. Houghton and Sanders were banging on the trunk and yelling. Appellant and Lambert left the area, however, returned a short time later to see if the fire was burning well.

The two men stopped at a friend's house in Jennings and left a bag of things belonging to the victims in the garage. They traveled to Wichita, Kansas in Houghton's truck. After spending the five hundred and sixty-five ($565.00) dollars which they got from Houghton and Sanders, the two returned to Tulsa, where they were apprehended on the evening of October 9, 1987.

On October 13, 1987, Hain was charged by complaint and information in the District Court of Creek County, Oklahoma, with two counts of first degree murder, two counts of kidnapping, two counts of robbery with firearms, one count of arson in the third degree, and two counts of larceny of an automobile.

The State subsequently filed a bill of particulars alleging the existence of three aggravating factors: (1) that Hain knowingly created a great risk of death to more than one person; (2) that the murders were especially heinous, atrocious or cruel; and (3) the existence of a probability that Hain would commit criminal acts of violence that would constitute a continuing threat to society.

The case proceeded to trial in May 1988. At the conclusion of the first-stage proceedings, the jury found Hain guilty as charged. At the conclusion of the second-stage proceedings, the jury, having found the existence of all three aggravating factors alleged by the prosecution, sentenced Hain to death on both of the first degree murder counts. The jury also sentenced Hain to ten years on each kidnapping count, one hundred years on each robbery with firearms count, twenty years on each larceny of an automobile count, and fifteen years on the third degree arson count.

On direct appeal, the OCCA affirmed Hain's convictions for murder, kidnapping, larceny of an automobile, and third degree arson. Hain I, 852 P.2d at 753. Because of the possibility that the jury convicted Hain under a theory of felony murder, the OCCA reversed on double jeopardy grounds Hain's convictions for robbery with firearms. Id. at 752. Lastly, because the trial court failed to instruct the jury with respect to the potential punishment alternative of life without parole, the OCCA vacated Hain's death sentences and remanded for new sentencing proceedings. Id. at 753.

The resentencing proceedings commenced on September 22, 1994. The prosecution alleged the existence of the same three aggravating factors alleged in the original second stage proceedings, i.e., that Hain knowingly created a great risk of death to more than one person, that the murders were especially heinous, atrocious or cruel, and the existence of a probability that Hain would commit criminal acts of violence that would constitute a continuing threat to society.

To establish the first two factors, the prosecution presented evidence outlining the nature of the murders. To support the third factor, the prosecution presented evidence indicating that Hain and his co-defendant Lambert had engaged in three violent crimes in the months leading up to the murders (the assault and rape of a woman in her rural Kansas home, the kidnapping and rape of a Wichita woman, and the robbery and attempted murder of a Tulsa couple, which included the kidnapping and rape of the woman).

In addition, the prosecution presented expert psychiatric testimony indicating that Hain's personality and psychological make-up made him prone to violence. Lastly, the prosecution presented evidence indicating that Hain had escaped from his jail cell while awaiting resentencing.

Hain attempted to counter the prosecution's evidence by presenting expert testimony from two psychologists and a social worker, all of whom opined that Hain was not prone to violence. In addition, Hain alleged and attempted to prove the following mitigating circumstances: (1) his youth at the time of the crime; (2) his emotional, psychological and mental age; (3) his blameworthiness; (4) the fact that he was dominated by Lambert, his co-defendant; (5) his history of drug usage; (6) the State of Oklahoma's failure to provide appropriate treatment at earlier stages of his development; (7) a "[f]ear reaction to finding himself in a fugitive/captive situation"; (8) the lack of personal participation in the actual criminal acts (in comparison to the alleged participation of his co-defendant); (9) his attempts to physically absent himself from the scene of the crime as much as possible; (10) the lack of violence involved in his alleged escape attempt from jail; (11) his attained educational level; and (12) his family history. State Record, Vol. 2 at 182 (resentencing proposed instr. No. 16). At the conclusion of the resentencing proceedings, the jury found, with respect to both murder counts, the existence of all three aggravating factors alleged by the prosecution and Hain was sentenced to death on both counts.

Following his resentencing, Hain again filed a direct appeal with the OCCA. The OCCA affirmed Hain's death sentences. Hain v. State, 919 P.2d 1130 (Okla. Crim. App. 1996) (Hain II). Hain filed a petition for writ of certiorari which was denied by the Supreme Court. Hain v. Oklahoma, 519 U.S. 1031 (1996). Hain filed an application for post-conviction relief and the OCCA denied relief on May 1, 1998. Hain v. State, 962 P.2d 649 (Okla. Crim. App. 1998) (Hain III).

On July 30, 1998, Hain filed a petition for writ of habeas corpus asserting fourteen grounds for relief, and the district court subsequently authorized Hain's counsel to add an additional claim to the petition. The district court denied Hain's petition on December 18, 2000. The district court granted Hain a certificate of appealability (COA) with respect to three of the issues raised in his habeas petition: (1) the propriety of the trial court's decision to instruct on alternative theories of malice aforethought and felony murder; (2) ineffective assistance of counsel; and (3) whether the International Covenant on Civil and Political Rights prohibited the execution of juveniles.

This court granted a COA on two additional issues: whether the trial court erred in admitting victim impact testimony and whether the trial court violated Hain's right against self-incrimination by ordering him to answer the prosecutor's questions about unadjudicated crimes that occurred in the State of Kansas.

Because Hain's federal habeas petition was filed after the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), it is governed by the provisions of the AEDPA. Wallace v. Ward, 191 F.3d 1235, 1240 (10th Cir.1999), cert. denied, 530 U.S. 1216, 120 S.Ct. 2222, 147 L.Ed.2d 253 (2000). Under the AEDPA, the appropriate standard of review for a particular claim is dictated by the treatment of that claim by the state courts. If a claim was not decided on the merits by the state courts (and is not otherwise procedurally barred), we may exercise our independent judgment in deciding the claim. See LaFevers v. Gibson, 182 F.3d 705, 711 (10th Cir.1999).

In doing so, we review the federal district court's conclusions of law de novo and its findings of fact, if any, for clear error. Id. If a claim was adjudicated on its merits by the state courts, the petitioner will be entitled to federal habeas relief only if he can establish that the state court decision "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," 28 U.S.C. § 2254(d)(1), or "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." Id. § 2254(d)(2). "Thus, we may grant the writ if we find the state court arrived at a conclusion opposite to that reached by the Supreme Court on a question of law; decided the case differently than the Supreme Court has on a set of materially indistinguishable facts; or unreasonably applied the governing legal principle to the facts of the prisoner's case." Van Woudenberg v. Gibson, 211 F.3d 560, 566 (10th Cir.2000) (citing Williams v. Taylor, 529 U.S. 362, 413, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000)), cert. denied, 531 U.S. 1161, 121 S.Ct. 1117, 148 L.Ed.2d 985 (2001).

Felony murder instructions

Hain contends his due process rights were violated during the first-stage proceedings because, even though he was charged with malice aforethought murder, the trial court instructed the jury on alternative theories of malice aforethought and felony murder. Hain argues that the trial court's actions resulted in a constructive amendment of the complaint and information and deprived him of fair notice and an opportunity to defend against the charges of felony murder.

As noted by Hain, the complaint and information charged him, in pertinent part, with two counts of first degree malice aforethought murder.1 The complaint and information did not specifically allege or otherwise mention first degree felony murder, but did allege other crimes, including kidnapping and armed robbery. During the first stage proceedings, the district court proposed instructing the jury on alternative theories of first degree malice aforethought murder and first degree felony murder. Defense counsel objected, arguing the State should be required to elect one theory or the other.

The prosecution argued that the court should instruct on any theory of the law that was applicable to the evidence presented at trial. Defense counsel argued, in response, that the killings were not an anticipated end to the robbery, and thus the theory of felony murder was inapplicable. The trial court overruled defense counsel's objections and instructed the jury on both theories.2 Because the trial court used only general verdict forms, it is unclear which theory the jury ultimately relied on in finding Hain guilty of the two murder counts.

Hain first asserted the argument now raised in his application for post-conviction relief.3 The OCCA concluded the argument was waived due to Hain's failure to assert it on direct appeal. Hain III, 962 P.2d at 651-52. The OCCA also rejected Hain's argument that appellate counsel was ineffective for failing to raise the issue on direct appeal. Id. at 653.

Hain does not contest the fact that the OCCA's procedural bar ruling rests on an independent and adequate state procedural ground. See Hale v. Gibson, 227 F.3d 1298, 1328 (10th Cir.2000) (holding that Oklahoma's procedural bar rule, applicable to most claims not raised on direct appeal, is independent and adequate default rule), cert. denied, 533 U.S. 957, 121 S.Ct. 2608, 150 L.Ed.2d 764 (2001).

Instead, he attempts to establish cause and prejudice excusing the procedural default by arguing that his appellate counsel was ineffective for failing to assert the issue on direct appeal. See Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991) (holding constitutionally ineffective assistance can establish cause excusing procedural default).

Hain's claim of ineffective assistance is governed by the familiar two-part test announced in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Under that test, Hain must establish that (1) counsel's performance fell below an objective standard of reasonableness and (2) there is a reasonable probability that, but for counsel's errors, the outcome of the proceedings would have been different. Id. at 688, 694, 104 S.Ct. 2052; see also Kimmelman v. Morrison, 477 U.S. 365, 375, 106 S.Ct. 2574, 91 L.Ed.2d 305 (1986).

More specifically, in the context of this appeal, Hain must establish that appellate counsel was "objectively unreasonable" in failing to assert the claim on direct appeal, and that there is a reasonable probability that, but for counsel's failure to raise the issue, Hain would have prevailed in challenging his murder convictions on direct appeal. See Neill v. Gibson, 278 F.3d 1044, 1057 (10th Cir. 2001). In order to properly address these issues, we must "`look to the merits of the omitted issue.'" Id. (quoting Hooks v. Ward, 184 F.3d 1206, 1221 (10th Cir.1999)).

Before turning to the merits of the omitted issue, we note that our resolution of Hain's ineffective assistance claim is circumscribed by the OCCA's own resolution of that claim. As previously noted, Hain asserted the identical ineffective assistance claim in his application for post-conviction relief, and the OCCA resolved it against him on the grounds that appellate counsel's performance was not deficient. Hain III, 962 P.2d at 653. Under the AEDPA standards of review, we are bound by that determination unless we conclude the OCCA unreasonably applied Strickland in reaching this determination. See 28 U.S.C. § 2254(d)(1).

Hain bases his substantive argument on the Supreme Court's statement in Jackson v. Virginia, 443 U.S. 307, 314, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), "that a conviction upon a charge not made ... constitutes a denial of due process."

This principle in turn rests on the "broader premise" that "a person cannot incur the loss of liberty for an offense without notice and a meaningful opportunity to defend." Id.; see Stirone v. United States, 361 U.S. 212, 217, 80 S.Ct. 270, 4 L.Ed.2d 252 (1960) (noting that a "court cannot permit a defendant to be tried on charges that are not made in the indictment against him"); Cole v. Arkansas, 333 U.S. 196, 201, 68 S.Ct. 514, 92 L.Ed. 644 (1948) (holding "that notice of the specific charge, and a chance to be heard in a trial of the issues raised by that charge, if desired, are among the constitutional rights of every accused in a criminal proceeding in all courts, state or federal"); Johnson v. Gibson, 169 F.3d 1239, 1252 (10th Cir.1999) ("A charging instrument may violate the Sixth Amendment by failing to provide a defendant with adequate notice of the nature and cause of the accusations filed against him."); Hunter v. State of New Mexico, 916 F.2d 595, 599 (10th Cir.1990) (noting that the "specific inquiry" in deciding whether a constructive amendment of the indictment has occurred "is whether the jury was permitted to convict the defendant upon a set of facts distinctly different from that set forth in the indictment") (internal quotation omitted).

To determine whether a state habeas petitioner has been convicted of a crime not set forth in the charging instrument, courts look to the law of the state where the petitioner was convicted. See Jones v. Smith, 231 F.3d 1227, 1233 (9th Cir.2001) (noting that the "difference between a constructive amendment and a mere variance... hinge[s] on whether the crime specified in the indictment/information and the crime for which the defendant was convicted are separate offenses under state law"); Jenkins v. Nelson, 157 F.3d 485, 498-99 (7th Cir.1998); Cokeley v. Lockhart, 951 F.2d 916, 919 (8th Cir.1991).

Oklahoma statutes have long defined the offense of "murder"4 or "first degree murder" as encompassing both malice aforethought murder and felony murder. E.g., Tucker v. State, 66 Okla. Crim. 335, 92 P.2d 595, 597 (App.1939) (outlining the provisions of the 1931 version of the Oklahoma murder statute). Consistent therewith, the OCCA has characterized malice aforethought murder and felony murder as different theories for the same general offense of first degree murder,5 and has held that a defendant charged with malice aforethought murder can be convicted at trial of felony murder if the evidence supports such a conviction. E.g., Wilson v. State, 983 P.2d 448, 463 (Okla.Crim.App.1998) (referring to different "theories" of first degree murder); Munson v. State, 758 P.2d 324, 332 (Okla. Crim.App.1988) (noting long-standing Oklahoma law that "where an information charges first degree malice aforethought murder, a conviction may be had for felony-murder if supported by the evidence"); Evinger v. State, 57 Okla.Crim. 63, 45 P.2d 552, 559 (App.1935) (noting that where an information charges first degree malice aforethought murder, a conviction may be had, if warranted by the evidence, under the other subdivisions of the first degree murder statute); Ware v. State, 47 Okla. Crim. 434, 288 P. 374, 383 (App.1930) (noting "the accused may be charged with the crime of murder alleged to have been committed with premeditated design to effect death under the first subdivision of the [1931 murder] statute, and a conviction had under the proof of killing, in the commission of a felony as proved under the third subdivision of the statute"); see also Easley v. State, 78 Okla.Crim. 1, 143 P.2d 166, 167 (App.1943) (noting "[t]hat when an information for murder charges that the homicide was unlawfully committed with a premeditated design to effect the death of the deceased, it includes every character and degree of unlawful homicide").

In light of this authority, we conclude the information filed against Hain reasonably placed him on notice that he could be convicted at trial of first degree felony murder. As noted, the information alleged that he and co-defendant Lambert effected the death of the two victims by placing them in the trunk of a vehicle and setting fire to the vehicle. The information further alleged that Hain and Lambert committed seven additional felonies, all of which occurred on the same date and were part of a common scheme. Under Oklahoma law, we believe these allegations were sufficient to reasonably place Hain on notice that he could be convicted at trial under alternative theories of malice aforethought or felony murder.

Several additional factors bolster our conclusion that Hain's due process rights were not violated. First, after examining the trial transcript, we note that the evidence presented by the prosecution at trial was entirely consistent with the set of facts alleged in the information. In other words, it is clear from the record that Hain's murder convictions were not "based on an entirely separate uncharged set of facts." Jenkins, 157 F.3d at 498. Second, Hain's trial counsel did not argue lack of notice or prejudice at the time the trial court proposed instructing the jury on the theory of felony murder, nor is there any indication in the trial transcript that trial counsel attempted to defend Hain under the assumption that felony murder would not be at issue.

Indeed, we note that trial counsel relied primarily on an insanity defense,6 which, under Oklahoma law, is applicable to both malice aforethought and felony murder. See Ullery v. State, 988 P.2d 332, 351 (Okla.Crim.App.1999). Third, our review of the record leads us to conclude the evidence presented at trial was more than sufficient to support Hain's convictions under either theory of first degree murder.

Although Hain attempts to draw support from the OCCA's resolution of his co-defendant's direct appeal, we conclude the two cases are not, as Hain suggests, identical. Hain's co-defendant was tried separately before the same trial judge. As in Hain's trial, the trial court instructed the jury on alternate theories of malice aforethought murder and felony murder, even though the complaint and information charged Lambert only with malice aforethought murder.

Lambert was found guilty of the murder charges but, as with defendant Hain, the use of general verdict forms prevented a determination of the specific theory relied on by the jury in reaching its verdicts. On direct appeal, the OCCA reversed Lambert's murder convictions. Lambert v. State, 888 P.2d 494, 504 (Okla.Crim.App.1994).

In doing so, the OCCA concluded that Lambert was prejudiced by the failure to charge felony murder in the information because he had testified at trial that he committed the robbery and kidnapping but never intended to kill anyone and that he objected when Hain allegedly set fire to the vehicle. More specifically, the OCCA agreed with Lambert that he had demonstrated prejudice resulting from the failure to specify felony murder in the information, in that "he would never have willingly admitted to the jury that he committed a crime which would have resulted in his receiving the death penalty."7 Id. Notably, in reversing Lambert's murder convictions, the OCCA specifically stated that Hain was not entitled to relief on the same issue:

We find it necessary to clarify that the same problem did not arise in the case of [Lambert's] co-defendant, Scott Allen Hain, F-88-466. Mr. Hain did not testify at trial, and is therefore unable to show any prejudice from the failure to charge felony murder in the information, as is present in [Lambert's] case.

Id. at 504 n. 1.

For these reasons, we believe the OCCA reasonably applied Strickland in concluding Hain's appellate counsel did not perform deficiently by failing to raise the issue on direct appeal. Not only does the record fail to establish a violation of Hain's due process rights, we are confident the OCCA would not have granted relief on the issue had it been raised by Hain's appellate counsel. Thus, we in turn conclude that Hain cannot establish cause and prejudice sufficient to overcome the OCCA's procedural bar ruling on the merits of his substantive due process claim.

Admission of victim impact testimony

Hain contends the admission of victim impact testimony during the resentencing proceedings "was so far out of permissible constitutional bounds ... as to deprive him of a fair sentencing hearing and due process of law." Hain's Opening Br. at 33. To properly address Hain's contention, we begin by reviewing the relevant events that transpired during the sentencing proceedings.

Prior to trial, five of the victims' family members prepared written victim impact statements. Those statements were reviewed and redacted in part by the prosecution and the trial court. During the resentencing proceedings, the prosecution, over the objection of defense counsel, presented each of the five family members and had them read their redacted statements to the jury.

William Sanders, the brother of victim Laura Lee Sanders, testified in pertinent part:

The extremely violent nature of this crime and the total lack of respect for human life have shocked — shocked me. Absolutely everyone is brought up knowing the difference between right and wrong, and murder is wrong. Once a crime of this magnitude has been com — committed, a person must expect to be punished to the fullest — full extent of the law. Life, life without [parole], and death; these are the choices? All I can say for sure is that I know my sister was not given a choice between life or death. It has been seven years since my sister was murdered, and I'm still looking forward to the time when I can remember who she was and not the horrific images portrayed of her during these — during the various court proceedings.

The guilt has been established, and I feel strongly that the punishment should reflect the severity of the crime.

Vol. I of Resentencing Proceedings (9/26/94) at 211-12. Carol Lee Sanders, Laura Lee Sanders' mother, testified in pertinent part:

It is very difficult for me to find words to express the horror, anger and disbelief that we felt and still feel, knowing that Laura Lee was put in the trunk of a car and burned alive while the ones who lit the fire listened to their screams for help, and yet only made sure that the car was burning good before they left. Add to that the fact that Laura Lee and Mike had done nothing to deserve this and had no idea who the people were that took it upon themselves to murder them. It is hard for us to imagine that anyone could have that much hate and meanness in them. These things make it even more difficult for us to accept her death.

In the past seven years, we have been trying to deal with not only the loss of Laura Lee, but also with the heinous manner in which she was murdered. We know how very scared she must have been from the time she was kidnapped and put in the trunk of her car. It hurts every time I think of the horror that she must have felt during her last minutes on this earth with the smell of gasoline, followed by the smoke, and then the heat of the flames, and having no way to escape. Every time I see a picture of a burning car on television or in a movie, it feels like someone has just kicked me in the stomach.

Several months ago, I had to have both of our dogs put to sleep. As I held them while the doctor gave them a shot, I saw them die very peacefully in my arms. I couldn't help but think of Laura Lee and Mike again and wish that they had been able to die that peacefully.

* * *

In order for true justice to be done in this case, I feel that Scott Hain should also be sentenced to death. Somebody with his mind-set should not be allowed to get off with anything less than the death penalty. There is absolutely no reason why anyone else should ever be subjected to his heinous acts of violence and to go through the pain and suffering that our families have had to endure for the past seven years.

Id. at 214-17.

Tena Houghton, victim Michael Houghton's wife, testified in pertinent part:

I cannot watch a t.v. show or a movie with a fire scene in it, without closing my eyes or turning away, because these scenes bring back the pictures in my mind of Michael's body kicking and struggling and searching for a way out of that trunk. The heat, the fear, the pain that Michael suffered, I can't even begin to comprehend. The mental pictures of this man that I loved so deeply being burnt alive to the point of being unrecognizable are almost unbearable.

Id. at 220.

Scott Hain was fully aware that he was taking the life of two young and beautiful people, so aware, in fact, that he went back to the burning car, not to stop this horrible thing but to make sure it was going to do the job and make sure that Michael and Laura Lee would die. He heard Michael and Laura Lee screaming with pain and terror, saw the car burning, but still did nothing to stop the horrible set of events which he had set into motion.

Id. at 223. Delma Houghton, Michael Houghton's mother, testified: "I've tried holding a lighted match to my finger, but I jerked it away. I tried touching the electric element in my stove, but I couldn't. I wanted to hurt myself and take away some of Mike's pain."

Id. at 226. She further testified

I never had a chance to say goodbye to Mike. His body was so charred, he had to be buried in a plastic bag. His beautiful hair was burned off, his nimble fingers were burned off. The medical examiner says his sparkly and gentle eyes were like hardboiled eggs, and he tried until he could try no more to beat the trunk open.

Id. at 228.

I do want justice for all of us who loved him, but mostly for Michael and Laura Lee, who are not here to speak for themselves. I believe Scott Allen Hain should be sentenced to death. He did not know Mike or Laura Lee, nor did he care who they were. He wanted to kill someone. We had to have our 10 year old Golden Retriever put to sleep. I held her while the lethal injection was administered. She quivered a little and went gently to sleep. All I could think of was that I wished Mike and Laura Lee could have met death so gently.

Until the death penalty is carried out, there is always the chance he could be released. I believe if you take a life, your life should be taken unless it is self-defense or to save the life of another. The only true justice would be to have Mike and Laura Lee returned to us. We know that cannot be. I feel our families have been serving a death sentence for almost seven years. Mike and Laura Lee received the death penalty without a trial, with no appeals, with no mercy and for no reason; they had committed no crime.

Id. at 229. Ashley Houghton, Michael Houghton's father, testified in part:

All that I, Michael and his family want is justice. I believe that the death sentence is deserved. The brutal way Michael was murdered, the brutal way the murder was carried out and the suffering that Michael and Laura Lee went through in the trunk of the car shows the total disregard for — for life that Scott Hain has. He deserves the death penalty.

Id. at 234.

Hain challenged the admission of this testimony in his direct appeal following the resentencing proceedings.8 The OCCA concluded that two portions of the challenged testimony should not have been admitted, but were nevertheless harmless:

Title 22 O.S.Supp.1993, § 984 provides victim impact evidence should be limited to the "financial, emotional, psychological, and physical effects," or impact of the crime itself on the victim's survivors; as well as some personal characteristics of the victim. As long as these personal characteristics show how the loss of the victim will financially, emotionally, psychologically, or physically impact on those affected, it is relevant, as it gives the jury a "glimpse of the life" which the defendant "chose to extinguish."

However, these personal characteristics should constitute a "quick" glimpse, and its use should be limited to showing how the victim's death is affecting or might affect the victim's survivors, and why the victim should not have been killed. At trial, objections to victim impact evidence are to be based upon its relevance to the guidelines set forth in § 984. Objections such as those made in the present case, while legitimate concerns, are not proper and do not provide sufficient ground to exclude any evidence.

Reviewing the challenged comments, we find only one improper. Section 984(1) defines victim impact statements and allows for the victim's opinion of a recommended sentence. We find this includes the opinion of a member of the victim's immediate family as defined in 22 O.S.Supp.1993, § 984(2) regarding a recommended sentence. Therefore, Mr. Sanders' opinion of the appropriateness of the death penalty was in accordance with the statutory provisions. (Footnote omitted.)9

Section 984(1) also provides for information about the manner in which the crime was committed. Tena Houghton's statement was therefore relevant. However, Delma Houghton's comment was not relevant to the manner in which the crime was perpetrated, nor was it relevant to the financial, emotional, psychological, or physical impact of the crime on the victim's survivors. It was purely an emotional plea which is not statutorily permitted. The consequences of the improper admission of this statement is addressed in the Mandatory Sentence Review.

Hain II, 919 P.2d at 1144 (internal citations omitted).

Upon our review of the record and careful weighing of the aggravating circumstances and the mitigating evidence, we find the sentence of death to be factually substantiated and appropriate. Under the record before this Court, we cannot say the jury was influenced by passion, prejudice, or any other arbitrary factor contrary to 21 O.S. Supp. 1987, § 701.13(C), in finding that the aggravating circumstances outweighed the mitigating evidence. Any improper victim impact evidence admitted was harmless beyond a reasonable doubt. There was sufficient evidence, independent of the victim impact evidence, to support the aggravating circumstances.

Id. at 1149.

In Booth v. Maryland, 482 U.S. 496, 501-02, 107 S.Ct. 2529, 96 L.Ed.2d 440 (1987), the Supreme Court addressed the question of "whether the Eighth Amendment prohibits a capital sentencing jury from considering victim impact evidence." The petitioner in Booth had been convicted of two counts of first-degree murder and sentenced to death. During the sentencing phase of his trial, the prosecution, consistent with Maryland law, presented a written victim impact statement (VIS) that "provided the jury with two types of information. First, it described the personal characteristics of the victims and the emotional impact of the crimes on the family. Second, it set forth the family members' opinions and characterizations of the crimes and the defendant." Id. at 502, 107 S.Ct. 2529.

The Supreme Court, by a 5-4 majority, concluded that victim impact evidence was per se inadmissible during the sentencing phase of a capital trial, except to the extent that it related "directly to the circumstances of the crime." Id. at 507 n. 10, 107 S.Ct. 2529. With respect to the first type of information contained in the VIS, the Court determined it might "be wholly unrelated to the blameworthiness of a particular defendant," id. at 504, 107 S.Ct. 2529, and, in any event, "create[d] an impermissible risk that the capital sentencing decision w[ould] be made in an arbitrary manner." Id. at 505, 107 S.Ct. 2529. As for the second type of information contained in the VIS (family members' opinions and characterizations of the crimes), the Court concluded it could "serve no other purpose than to inflame the jury and divert it from deciding the case on the relevant evidence concerning the crime and the defendant." Id. at 508, 107 S.Ct. 2529.

In 1989, the Court extended the rule announced in Booth to statements made by a prosecutor to a capital sentencing jury regarding the personal qualities of the victim. See South Carolina v. Gathers, 490 U.S. 805, 109 S.Ct. 2207, 104 L.Ed.2d 876 (1989).

In 1991, the Court revisited these issues, and partially reversed course, in Payne v. Tennessee, 501 U.S. 808, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991). The petitioner in Payne was sentenced to death for the murders of a 28-year-old woman and her 2-year-old daughter. During the sentencing phase of trial, the prosecution presented testimony from the adult victim's mother, who testified about the physical and emotional impact the murders had on the adult victim's 3-year-old son (who had also been assaulted by the defendant but had survived). The prosecutor commented on this testimony during closing arguments in the sentencing phase and emphasized the continuing effects of the boy's experience.

The Court, expressly overruling its decisions in Booth and Gathers, held that "if the State chooses to permit the admission of victim impact evidence and prosecutorial argument on that subject, the Eighth Amendment erects no per se bar." Id. at 827, 111 S.Ct. 2597.10 Instead, the Court held, the only constitutional limitation on such evidence is if it "is so unduly prejudicial that it renders the trial fundamentally unfair." Id. at 825, 111 S.Ct. 2597. In such an event, the Court indicated, "the Due Process Clause of the Fourteenth Amendment provides a mechanism for relief." Id.

Importantly, Payne left one significant portion of Booth untouched. Unlike Booth, Payne did not involve any testimony or statements from the victim's family members regarding their "opinions and characterizations of the crimes and the defendant." Booth, 482 U.S. at 502, 107 S.Ct. 2529. Thus, although the Court expressly overruled Booth, it stated in a footnote:

Our holding today is limited to the holding[] in Booth ... that evidence ... relating to the victim and the impact of the victim's death on the victim's family [is] inadmissible at a capital sentencing hearing. Booth also held that the admission of a victim's family members' characterizations and opinions about the crime, the defendant, and the appropriate sentence violates the Eighth Amendment. No evidence of the latter sort was presented at the trial in this case.

Payne, 501 U.S. at 830 n. 2, 111 S.Ct. 2597. To date, three circuits, including our own, have expressly recognized that the portion of Booth prohibiting family members of a victim from stating "characterizations and opinions about the crime, the defendant, and the appropriate sentence" during the penalty phase of a capital trial survived the holding in Payne and remains valid. See Parker v. Bowersox, 188 F.3d 923, 931 (8th Cir.1999), cert. denied, 529 U.S. 1038, 120 S.Ct. 1534, 146 L.Ed.2d 348 (2000); United States v. McVeigh, 153 F.3d 1166, 1217 (10th Cir.1998); Woods v. Johnson, 75 F.3d 1017, 1038 (5th Cir.1996); Robison v. Maynard, 943 F.2d 1216, 1217 (10th Cir. 1991); but see Alley v. Bell, 101 F.Supp.2d 588, 648 n. 46 (W.D.Tenn.2000) ("Petitioner argues that Payne left portions of Booth intact, but this Court does not read Payne as so limited.").

Turning to Hain's arguments, we agree that some of the testimony he now challenges was improperly admitted and resulted in the violation of his Eighth Amendment rights. Most significantly, four of the five witnesses (William Sanders, Carol Lee Sanders, Delma Houghton and Ashley Houghton) expressed their views of the appropriate punishment for Hain, all stating (or at least strongly implying) they thought he should receive the death penalty. This testimony was clearly contrary to Payne and Booth and resulted in a violation of Hain's Eighth Amendment rights.

Further, four of the witnesses (Carol Lee Sanders, Tena Houghton, Delma Houghton and Ashley Houghton) commented in one way or another on Hain and the crime (e.g., stating it was hard "to imagine that anyone could have that much hate and meanness in them," criticizing Hain for being "fully aware that he was taking the life of two young and beautiful people," for returning to the car "to make sure it was going to do the job and make sure that Michael and Laura Lee would die," and for failing to do anything "to stop the horrible set of events which he had set into motion"). Again, this testimony was contrary to Payne and Booth, and violated Hain's Eighth Amendment rights.

The remaining question is whether the error was harmless, or instead requires the reversal of Hain's death sentences. The OCCA addressed this point in disposing of Hain's direct appeal following resentencing, concluding that any constitutional errors arising out of the admission of the victim impact testimony were "harmless." Hain II, 919 P.2d at 1144 n. 3. Under the AEDPA, our task is to decide whether the OCCA's conclusion was reasonable.11 See 28 U.S.C. § 2254(d)(1).

After carefully examining the transcript of the resentencing proceedings, three factors convince us that the OCCA's conclusion was reasonable under § 2254(d)(1). First, the horrific nature of the murders was uncontroverted. Indeed, Hain's defense counsel conceded, and the jury specifically found, that the murders were especially heinous, atrocious or cruel under Oklahoma law. Second, the evidence of Hain's guilt was substantial.

At best, Hain was a knowing and willing participant in a robbery and kidnapping scheme that resulted in the arson of a stolen vehicle and the deaths of two victims. At worst, Hain intended to cause the deaths of the two victims, and not only assisted in setting fire to the stolen vehicle, but stood by and watched as the victims screamed for help, and subsequently returned to the scene of the crime to ensure that the vehicle was still burning.

Finally, substantial evidence supports the jury's finding that Hain was a continuing threat to society. In particular, the prosecution presented evidence that Hain and co-defendant Lambert committed a string of violent crimes, including rapes, sexual assault, kidnapping, and attempted murder, between July and September 1987. In sum, we conclude beyond a reasonable doubt that the jury would have imposed a sentence of death even absent the improper victim impact testimony.

Hain also argues that the trial court erred in failing to instruct the jury regarding the proper use of the victim impact testimony. Hain's defense counsel did not raise this issue at trial, however, and it does not appear that Hain attempted to present the issue to the OCCA. Because the claim is unexhausted and would be procedurally barred under Oklahoma law if Hain now attempted to present it to the OCCA, see Okla. Stat. tit. 22, § 1086, we need not address it as no cause and prejudice has been alleged, and Hain cannot establish that a fundamental miscarriage of justice would occur if the claim is not addressed. See Coleman, 501 U.S. at 735 n. 1, 111 S.Ct. 2546.

Violation of Hain's Fifth Amendment rights

Hain contends the trial court violated his Fifth Amendment rights when, during his sentencing phase testimony, it compelled him to answer questions from the prosecutor regarding unadjudicated crimes he may have committed in the State of Kansas. In seeking to establish the continuing threat aggravator, the prosecution presented evidence of both adjudicated and unadjudicated crimes committed by Hain.

With respect to adjudicated crimes, the prosecution presented evidence that, on September 24, 1987, in the City of Tulsa, Hain and Lambert robbed, kidnapped and attempted to murder Derek Wunsch and Heather Rogers (Hain pled guilty to these crimes). With respect to unadjudicated crimes, the prosecution presented evidence of two offenses committed by Hain and Lambert in the State of Kansas.

The first of these was the July 10, 1987, abduction, rape and sodomy of Wichita resident Mary Hofford. The second was the September 5, 1987, assault and rape by instrumentation of Goddard resident Phyllis Comstock. In all three of these instances, the prosecution presented testimony from the victims of the crimes.

The OCCA described Hain's response to this evidence and the subsequent chain of events:

Prior to the introduction of this evidence, Appellant objected, arguing that such evidence forced him either to let the evidence go unanswered or give up his Fifth Amendment right to silence and respond to the evidence. The trial court ruled that if Appellant needed to respond to the evidence, he would be granted immunity from prosecution for the unadjudicated offenses.

During the defense case-in-chief, Appellant took the witness stand. He testified to his childhood, the 1987 robbery, kidnaping and attempted murder of Derek Wunsch and Heather Rogers (crimes for which Appellant pled guilty), and the circumstances surrounding the Houghton and Sanders murders. On cross-examination, the prosecution asked Appellant if he had committed a rape and burglary against Ms. Comstock. Appellant denied committing the offenses.

There was not a timely objection to this first question. However, after Appellant's response, defense counsel objected on grounds the evidence was an unadjudicated offense, and Appellant was being forced to give up his Fifth Amendment right to silence. Counsel informed the court he was going to advise Appellant not to answer the question and not to answer any questions pertaining to the Comstock and Hofford matters. The trial court overruled the defense objection, granted Appellant immunity from prosecution in the Comstock and Hofford matters and directed Appellant to answer questions on those matters or be held in contempt of court. When asked about the rape and sodomy committed against Ms. Hofford, Appellant denied commission of those offenses.

Hain II, 919 P.2d at 1140-41.

In his direct appeal following resentencing, Hain complained about the trial court forcing him to respond to the prosecution's questions. The OCCA agreed that the trial court's actions were improper, but concluded the resulting error was harmless:

[W]e find the trial court erred in granting Appellant immunity in exchange for his testimony concerning the unadjudicated offenses. The trial court had no authority to grant Appellant immunity from the prosecution of offenses committed in the State of Kansas. The legal authority of judges in the State of Oklahoma extends only to offenses committed in the State of Oklahoma. 20 O.S. 1991, § 91.1. Criminal offenses committed in other states [are] beyond the purview of the Oklahoma state judicial system.

This erroneous grant of immunity resulted in the admission of testimony in violation of the Fifth Amendment Self-Incrimination Clause. This error, albeit constitutional, is subject to a harmless error analysis as it was an error in the trial process itself, and not a defect affecting the entire framework of the trial....

* * *

In the present case, evidence of the unadjudicated offenses, as testified to by Ms. Hofford and Ms. Comstock, was properly admitted. When asked about those unadjudicated offenses at trial, Appellant denied them. The jury had no more information before it in deciding the existence of the "continuing threat" aggravator than if Appellant had remained silent on the issue.

In fact, Appellant's denial may have been more to his benefit since his silence could have invited negative inferences from the jury. Appellant's testimony on the unadjudicated offenses had little if any impact on the jury's consideration of the "continuing threat" aggravator. Therefore, we find admission of Appellant's testimony concerning the unadjudicated offenses harmless beyond a reasonable doubt. This assignment of error is denied.

Hain II, 919 P.2d at 1141-42.

"The Fifth Amendment provides that `[n]o person ... shall be compelled in any criminal case to be a witness against himself.'" Ohio v. Reiner, 532 U.S. 17, 121 S.Ct. 1252, 1254, 149 L.Ed.2d 158 (2001) (quoting U.S. Const., Amdt. 5). "[T]his privilege extends not only `to answers that would in themselves support a conviction ... but likewise embraces those which would furnish a link in the chain of evidence needed to prosecute the claimant.'" Id. (quoting Hoffman v. United States, 341 U.S. 479, 486, 71 S.Ct. 814, 95 L.Ed. 1118 (1951)). "`[I]t need only be evident from the implications of the question, in the setting in which it is asked, that a responsive answer to the question or an explanation of why it cannot be answered might be dangerous because injurious disclosure could result.'" Id. (quoting Hoffman, 341 U.S. at 486-487, 71 S.Ct. 814).

The Supreme Court has given the privilege a broad scope, explaining that "it protects against any disclosures which the witness reasonably believes could be used in a criminal prosecution or could lead to other evidence that might be so used." Kastigar v. United States, 406 U.S. 441, 444-45, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972) (footnote omitted). Consistent with this broad interpretation, the Court has held that "this privilege serves to protect the innocent who otherwise might be ensnared by ambiguous circumstances." Slochower v. Board of Higher Ed. of New York City, 350 U.S. 551, 557-558, 76 S.Ct. 637, 100 L.Ed. 692 (1956).

Despite the Court's broad interpretation of the privilege, it has long been held that a criminal defendant can waive the privilege by taking the stand in his own behalf. See McGautha v. California, 402 U.S. 183, 215, 91 S.Ct. 1454, 28 L.Ed.2d 711 (1971). In such circumstances, the defendant is subject to cross-examination "on matters reasonably related to the subject matter of his direct examination." Id.

Here, the OCCA was clearly correct in concluding that the trial court exceeded its authority when it purportedly granted Hain immunity from prosecution on the unadjudicated crimes. Although the OCCA in turn concluded that this resulted in a violation of Hain's Fifth Amendment rights, we disagree. We instead agree with the federal district court that Hain made at least two remarks during his direct examination that "opened the door" for the prosecution to cross-examine him regarding the two unadjudicated Kansas crimes. First, Hain testified on direct examination that he did not meet Lambert until early September 1987. Resentencing Tr., Vol. II at 370.

Obviously, this testimony contradicted Hofford's testimony that she was abducted, kidnapped, and sexually assaulted by Hain and Lambert in Wichita on July 10, 1987. Second, and perhaps most importantly, Hain testified on direct exam that he had never committed a violent act prior to the September 24, 1987, attack on Wunsch and Rogers. Id. at 383.

Clearly, this testimony was contradictory to the testimony of both Hofford and Comstock. Thus, the prosecution's questions to Hain regarding whether he was involved in the Comstock and Hofford crimes was reasonably related to the subject matter of Hain's direct examination, and no violation of Hain's Fifth Amendment rights occurred as a result of those questions.

Propriety of imposing death sentence on juvenile offender

Hain argues that, because the murders for which he was convicted occurred when he was seventeen years old, the International Covenant on Civil and Political Rights (ICCPR), which the United States ratified on September 8, 1992, prohibits him from being put to death for those crimes. Although Hain acknowledges that the United States Senate, in ratifying the ICCPR, placed a reservation on the specific provision (Article 6 paragraph 5) prohibiting imposition of the death penalty on juveniles, he argues this purported reservation was invalid and ineffective because the Constitution does not give the Senate authority to make reservations to treaties, the reservation is specifically prohibited by the terms of the ICCPR itself, the reservation violates the object and purpose of the ICCPR, and in any event the prohibition against executing juveniles is a peremptory norm of international law, or jus cogens, that is accepted and recognized by the international community and that cannot be derogated.

It is debatable whether Hain sufficiently presented these arguments to the Oklahoma courts. In his direct appeal following resentencing, Hain asserted generally that the imposition of the death penalty for juveniles was an international human rights issue and that the United States was "a signatory to the Geneva Convention and two other treaties which prohibit[ed] the execution of persons under the age of 18." See Hain's Br. filed 9/18/95, at p. 18. Hain did not, however, specifically cite the ICCPR. In rejecting Hain's direct appeal, the OCCA did not address Hain's arguments. The district court, in considering Hain's federal habeas petition, concluded that Hain had fairly presented his arguments to the OCCA and thus had satisfied the exhaustion requirements.

Assuming, arguendo, that Hain adequately presented his arguments to the OCCA, we find no merit to them. "In 1992, the United States Senate ratified the ICCPR with various reservations, understandings, [and] declarations." Beazley v. Johnson, 242 F.3d 248, 263 (5th Cir.), cert. denied, ___ U.S. ___, 122 S.Ct. 329, 151 L.Ed.2d 243 (2001); see Buell v. Mitchell, 274 F.3d 337, 371 (6th Cir.2001) (same). Included among these was the following proviso:

[T]he United States reserves the right, subject to its Constitutional constraints, to impose capital punishment on any person (other than a pregnant woman) duly convicted under existing or future laws permitting the imposition of capital punishment, including such punishment for crimes committed by persons below eighteen years of age.

138 Cong. Rec. S4783 (1992). Thus, contrary to Hain's arguments, Article 6 paragraph 5 of the ICCPR does not prohibit Oklahoma from imposing capital punishment for crimes committed by a person under eighteen years of age.

Even if, as suggested by Hain, the above-quoted reservation were void (for any of the reasons suggested by Hain), it is clear that the ICCPR is not binding on the federal courts. See Buell, 274 F.3d at 372. "`Courts in the United States are bound to give effect to international law and to international agreements, except that a `non-self-executing' agreement will not be given effect as law in the absence of necessary authority.'" Id. (quoting Restatement (Third) of Foreign Relations Law § 111 (1987)).

When the Senate ratified the ICCPR, it specifically declared that the provisions thereof were "not self-executing." 138 Cong. Rec. S4784. And, since that time, Congress has never "enacted implementing legislation for" the ICCPR. Buell, 274 F.3d at 372; see Beazley, 242 F.3d at 267-68 (citing cases and other sources indicating that the ICCPR is not self-executing).

Finally, there appears to be no basis for granting Hain federal habeas relief on the grounds that imposition of the death penalty for crimes committed while a juvenile would violate jus cogens norms of international law. It is far from certain that abolition of the death penalty for juveniles is a customary norm of international law that has "risen to the level that the international community as a whole recognizes it as jus cogens, or a norm from which no derogation is permitted." Buell, 274 F.3d at 373.

Instead, it appears the countries that have abolished the death penalty in these instances have done so for "moral" or "political" reasons (as opposed to any "sense of legal obligation"). Id. Even if the abolition of the death penalty for juveniles could be considered a "customary norm of international law" or "jus cogens," this does not appear to be a sufficient basis to invalidate Hain's death sentences. Id.

In Stanford v. Kentucky, 492 U.S. 361, 380, 109 S.Ct. 2969, 106 L.Ed.2d 306 (1989), a majority of the Supreme Court held that the imposition of capital punishment on an individual for a crime committed at sixteen or seventeen years of age does not constitute cruel and unusual punishment under the Eighth Amendment.

Although the dissent in Stanford argued that, "[w]ithin the world community, the imposition of the death penalty for juvenile crimes appears to be overwhelmingly disapproved," id. at 390, 109 S.Ct. 2969 (Brennan, J., dissenting), the majority implicitly rejected this argument in holding the practice constitutional and in noting that "no modern societal consensus" forbids the imposition of the death penalty on individuals age sixteen or seventeen. In light of Stanford, which essentially authorizes the imposition of the death penalty upon a criminal defendant such as Hain, "the determination of whether customary international law prevents [the] State [of Oklahoma] from carrying out the death penalty ... is a question that is [properly] reserved to the executive and legislative branches of the United States government, as it [is] their constitutional role to determine the extent of this country's international obligations and how best to carry them out." Buell, 274 F.3d at 376.

Cumulative error

Although Hain has asserted a cumulative error argument, it is without merit since he has failed to identify multiple constitutional violations arising at trial. See Moore v. Reynolds, 153 F.3d 1086, 1113 (10th Cir.1998) ("Cumulative error analysis applies where there are two or more actual errors; it does not apply to the cumulative effect of non-errors.").

The judgment of the district court is AFFIRMED.

*****

1

Count One, for example, charged as follows:

That the said defendants in the County and State aforesaid, on the day and year aforesaid, while acting in concert each with the other, with malice aforethought, did then and there wilfully, unlawfully and feloniously, without authority of law, effect the death of LAURA LEE SANDERS, by means of burning, to-wit: by placing the victim in the trunk of a vehicle and by means of a flammable substance setting fire to the said vehicle, then and thereby inflicting mortal wounds in the body of said LAURA LEE SANDERS, from which mortal wounds the same LAURA LEE SANDERS did languish and die.

State Record, Doc. 1.

2

For example, Instruction Number 10 stated:

You are instructed that the statutes of the State of Oklahoma provide in pertinent part:

A. A person commits murder in the first degree when he unlawfully and with malice aforethought causes the death of another human being.

B. A person also commits the crime of murder in the first degree when he takes the life of a human being, regardless of malice, in the commission of robbery with a dangerous weapon or in the commission of kidnapping. State trial record at 557. Other instructions set forth the specific elements of each theory.

3

In his initial direct appeal, Hain argued that "error occurred when the jury was not required to specify whether the guilty verdict was based on malice aforethought murder or felony murder."Hain I, 852 P.2d at 752. The OCCA rejected that argument, concluding "[t]he verdict was proper" and "there [wa]s no error with regard to the murder conviction." Id.

4

The 1931 version (as well as earlier versions) of the Oklahoma murder statute did not distinguish between degrees of murder. Instead, malice aforethought, felony murder, and what would now be characterized as second degree murder all fell within the single offense of "murder." This was consistent with the common-law crime of murderSee Schad v. Arizona, 501 U.S. 624, 648, 111 S.Ct. 2491, 115 L.Ed.2d 555 (1991) (Scalia, J., concurring).

5

This view appears to be consistent with that embraced by at least a plurality of the Supreme CourtSee Schad, 501 U.S. at 649, 111 S.Ct. 2491 (Scalia, J., concurring) (noting that "most States [now] have a single crime of first-degree murder that can be committed by killing in the course of a robbery as well as premeditated killing" and rejecting the notion that "the Due Process Clause of the Fourteenth Amendment requires the subdivision of that crime into (at least) premeditated murder and felony murder").

6

During the first-stage proceedings, Hain's trial counsel presented testimony from a clinical psychologist who opined that Hain, due to his emotional problems and personality makeup, "was very likely not conscious of any potential consequences of his behavior or actions" during the crime, Tr. at 734, and could "be seen as not understanding the nature nor the consequences of any acts or acts of omission."Id. at 736. During first-stage closing arguments, Hain's trial counsel addressed both theories of first degree murder, arguing that Hain did not intend to kill anybody and that the deaths of the victims were not the approximate or expected result of the other charged felonies. Id. at 919, 921. Ultimately, however, Hain's trial counsel asked the jury to find Hain not guilty by reason of insanity. Id. at 930.

7

InLambert, the OCCA stated, in part, that the trial "court instructed on a crime [felony murder] not charged in the information." 888 P.2d at 503. This statement appears to be clearly inconsistent with the Oklahoma criminal statutes and the pre- and post-Lambert authority outlined above. In any event, it appears clear that the controlling factor in Lambert was that Lambert demonstrated, to the OCCA's satisfaction, that the information misled him in the presentation of his defense.

8

Hain specifically highlighted only three of these statements: "Delma Houghton's statement she wished her son could have died a gentle death, as the family dog had experienced who was given a lethal injection, quivered a little and went to sleep; [William] Sanders' opinion death was the only appropriate punishment for Appellant and Tena Houghton's references to the unbearable pain of burning to death."Hain II, 919 P.2d at 1144.

9

In the omitted footnote, the OCCA acknowledged that the "evidence may not pass scrutiny by the United States Supreme Court" in light of its decision inPayne v. Tennessee, 501 U.S. 808, 830, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991). Hain II, 919 P.2d at 1144 n. 3. The OCCA nevertheless concluded that "[a]ny error in the admission of the evidence [wa]s harmless." Id.

10

In reaching this conclusion, the Court specifically outlined why victim impact evidence was relevant to a capital jury's sentencing decision:

We are now of the view that a State may properly conclude that for the jury to assess meaningfully the defendant's moral culpability and blameworthiness, it should have before it at the sentencing phase evidence of the specific harm caused by the defendant. "[T]he State has a legitimate interest in counteracting the mitigating evidence which the defendant is entitled to put in, by reminding the sentencer that just as the murderer should be considered as an individual, so too the victim is an individual whose death represents a unique loss to society and in particular to his family." Booth, 482 U.S. at 517, 107 S.Ct. at 2540 (WHITE, J., dissenting). By turning the victim into a "faceless stranger at the penalty phase of a capital trial," Gathers, 490 U.S. at 821, 109 S.Ct. at 2216 (O'CONNOR, J., dissenting), Booth deprives the State of the full moral force of its evidence and may prevent the jury from having before it all the information necessary to determine the proper punishment for a first-degree murder.

Id. at 825, 111 S.Ct. 2597.

11

The decision inBooth does not expressly indicate whether the Court believed such errors to be trial errors subject to harmless error review, or structural error requiring automatic reversal. Further, the Court's language remanding the case to the Maryland state courts is somewhat cryptic and could conceivably be construed either way. See 482 U.S. at 509, 107 S.Ct. 2529 ("The decision of the Maryland Court of Appeals is vacated to the extent that it affirmed the capital sentence. The case is remanded for further proceedings not inconsistent with this opinion."). Nevertheless, we do not believe the OCCA unreasonably applied Booth in concluding that such errors are subject to harmless error review. See Clemons v. Mississippi, 494 U.S. 738, 754, 110 S.Ct. 1441, 108 L.Ed.2d 725 (1990) (indicating it is constitutionally permissible for a state appellate court to engage in reweighing or harmless-error analysis when errors have occurred in a capital sentencing proceeding); Rose v. Clark, 478 U.S. 570, 579, 106 S.Ct. 3101, 92 L.Ed.2d 460 (1986) ("[I]f the defendant had counsel and was tried by an impartial adjudicator, there is a strong presumption that any other [constitutional] errors that may have occurred are subject to harmless-error analysis."); United States v. McVeigh, 153 F.3d 1166, 1203 (10th Cir.1998) (applying harmless error review where trial court may have abused its discretion in admitting certain victim impact testimony).

 
 

324 F.3d 1146

Scott Allen Hain, Petitioner-Appellant,
v.
Mike Mullin, Warden, Oklahoma State Penitentiary, Respondent-Appellee.

No. 03-5038

Federal Circuits, 10th Cir.

March 26, 2003

Before BRISCOE, LUCERO and MURPHY, Circuit Judges.

BRISCOE, Circuit Judge.

Petitioner Scott Hain, an Oklahoma state prisoner convicted of capital murder and sentenced to death, appeals the district court's denial of his request for funding under 21 U.S.C. 848(q)(8). At issue is whether § 848(q)(8) entitles state prisoners, such as Hain, to federally appointed and funded counsel to represent them in state clemency proceedings. Because we agree with the district court that § 848(q)(8) does not authorize funding under these circumstances, we affirm.1

I.

Hain was convicted in Oklahoma state court of two counts of first degree murder and sentenced to death. After exhausting his state-court remedies, Hain filed a 28 U.S.C. 2254 petition for federal habeas relief. The district court, acting pursuant to 21 U.S.C. 848(q)(4)(B), appointed counsel to represent Hain. The district court subsequently denied Hain's request for habeas relief. We affirmed the district court's decision. Hain v. Gibson, 287 F.3d 1224 (10th Cir.2002). The Supreme Court of the United States denied Hain's petition for writ of certiorari. Hain v. Mullin, ___ U.S. ___, 123 S.Ct. 993, 154 L.Ed.2d 916 (2003).

Hain's federally appointed counsel then filed a motion with the district court "seeking confirmation of counsel's continuing obligation to represent ... Hain, and under... § 848(q)(8), to receive compensation for time and expenses in representing... Hain in a [state] clemency proceeding." Petitioner's Br. at 2. The district court denied the motion. In doing so, the district court concluded, consistent with previous orders issued in the Northern District of Oklahoma, that § 848(q)(8) does not encompass representation of a state prisoner in state clemency proceedings. Hain filed a timely notice of appeal from the district court's order.

II.

Title 21, § 848(q)(4)(B) creates a right to federally appointed and funded counsel for "financially unable" state capital defendants pursuing federal habeas relief. See generally McFarland v. Scott, 512 U.S. 849, 855, 114 S.Ct. 2568, 129 L.Ed.2d 666 (1994). Section 848(q)(8) of Title 21 in turn provides:

Unless replaced by similarly qualified counsel upon the attorney's own motion or upon motion of the defendant, each attorney so appointed shall represent the defendant throughout every subsequent stage of available judicial proceedings, including pretrial proceedings, trial, sentencing, motions for new trial, appeals, applications for writ of certiorari to the Supreme Court of the United States, and all available post-conviction process, together with applications for stays of execution and other appropriate motions and procedures, and shall also represent the defendant in such competency proceedings and proceedings for executive or other clemency as may be available to the defendant.

21 U.S.C. 848(q)(8).

Hain contends that § 848(q)(8) encompasses state executive clemency proceedings pursued by a state capital defendant following the denial of federal habeas relief. Thus, Hain contends, he is entitled to federally appointed and funded counsel to represent him in his upcoming state clemency proceedings. The United States, whom we invited to participate in this appeal, disputes Hain's interpretation of § 848(q)(8). In the United States' view, § 848(q)(8) was never intended by Congress to encompass state judicial or clemency proceedings.

Because this appeal hinges on the interpretation of a federal statute, we apply a de novo standard of review.2 See United States v. Quarrell, 310 F.3d 664, 669 (10th Cir.2002). As in any instance of statutory construction, we begin with the language of the statute. See id. If that language "is clear and unambiguous, the plain meaning of the statute controls." Id. A statute is ambiguous if it is "capable of being understood in two or more possible senses or ways." Chickasaw Nation v. United States, 534 U.S. 84, 90, 122 S.Ct. 528, 151 L.Ed.2d 474 (2001) (internal quotations omitted). If an ambiguity is found in the statutory language, "a court may seek guidance from Congress's intent, a task aided by reviewing the legislative history." Quarrell, 310 F.3d at 669 (internal quotations omitted). "A court can also resolve ambiguities by looking at the purpose behind the statute." Id.

Importantly, "[i]n determining whether Congress has specifically addressed the question" at issue, we are not confined to examining § 848(q)(8). Food and Drug Admin. v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 132, 120 S.Ct. 1291, 146 L.Ed.2d 121 (2000). As the Supreme Court has emphasized, "[t]he meaning ? or ambiguity ? of certain words or phrases may only become evident when placed in context." Id. Thus, "[i]t is a `fundamental canon of statutory construction that the words of a statute must be read in their context and with a view to their place in the overall statutory scheme.'" Id. (quoting Davis v. Michigan Dept. of Treasury, 489 U.S. 803, 809, 109 S.Ct. 1500, 103 L.Ed.2d 891 (1989)).

Three of our sister circuits have addressed similar appeals. The first to do so, the Eighth Circuit, concluded that "[t]he plain language of § 848(q)(8) evidences a congressional intent to insure that indigent state petitioners receive `reasonably necessary' ... clemency services from appointed, compensated counsel." Hill v. Lockhart, 992 F.2d 801, 803 (8th Cir.1993). More recently, the Fifth and Eleventh Circuits have concluded otherwise, holding that § 848(q)(8) does not encompass state clemency proceedings. See Clark v. Johnson, 278 F.3d 459, 462-63 (5th Cir.), cert. denied, ___ U.S. ___, 123 S.Ct. 687, 154 L.Ed.2d 580 (2002); King v. Moore, 312 F.3d 1365, 1368 (11th Cir.), cert. denied, ___ U.S. ___, 123 S.Ct. 662, 154 L.Ed.2d 563 (2002). For the reasons that follow, we agree with the Fifth and Eleventh Circuits.

Consistent with the rules of statutory construction outlined above, we believe the meaning of § 848(q)(8) can only be determined by examining it in light of its place in the overall statutory scheme. As noted by the Eleventh Circuit in King, § 848(q)(8) is located within a statute, 21 U.S.C. 848, whose initial topic is punishment for defendants who engage in continuing criminal enterprises in violation of federal drug laws. In particular, § 848 authorizes the death penalty for certain of these defendants and outlines the trial and appellate procedures to be followed in such cases. Also included within § 848 are provisions authorizing the appointment and funding of "counsel for financially unable [capital] defendants." 21 U.S.C. 848(q).

Though these latter provisions deal primarily with federal capital defendants, § 848(q)(4)(B) also authorizes the appointment of counsel for any "financially unable" defendant in a "post conviction proceeding under section 2254 ... of Title 28, seeking to vacate or set aside a death sentence...." In other words, state capital defendants seeking federal habeas relief are entitled to federally funded and appointed counsel to represent them if they are "financially unable to obtain adequate representation...." 21 U.S.C. 848(q)(4)(B).

Viewing § 848(q)(4)(B) in context, it is apparent that "the language contained in the sections preceding and following [it] relates more directly to federal criminal trial and appeals, than to habeas cases seeking relief from state court sentences." King, 312 F.3d at 1367. Thus, we conclude "the word `federal' is an implied modifier for `proceedings' when `proceedings' are mentioned in § 848(q)(8) of the statute: `proceedings' = the federal proceedings that are available to the defendant."3 Id.

A broader construction of § 848(q)(8), in our view, defies common sense and would produce absurd results. See generally United States v. Brown, 333 U.S. 18, 27, 68 S.Ct. 376, 92 L.Ed. 442 (1948) ("No rule of construction necessitates our acceptance of an interpretation resulting in patently absurd consequences."). Were we to accept Hain's proposed construction, every state capital defendant unsuccessful in seeking federal habeas relief would be entitled to federally appointed and funded counsel to represent them in state clemency proceedings.

More dramatically, every state capital defendant successful in seeking federal habeas relief would be entitled to federally appointed and funded counsel to represent them in their resulting state trials, state appeals, and state habeas proceedings.4 In our view, nothing in § 848 or its legislative history indicates that Congress intended such a result. Indeed, as noted by the Eleventh Circuit in King, "[t]he whole-business of federal compensation (controlled by federal courts) for lawyers acting in state proceedings seems too big and innovative to have been dealt with," as was § 848, "at the tail end of a session as the legislation was being approved at the last moment." 312 F.3d at 1367-68.

As a final matter, we take issue with the dissent's assertion that "it is undisputed that Oklahoma does not fund counsel at state clemency proceedings." Dissent at 4 n. 1. Although Hain has certainly made that assertion, the district court made no factual findings on this point (since it concluded that § 848(q)(8) did not encompass state clemency proceedings). Thus, it is impossible to reach any conclusion on this point based upon the record before us.

The judgment of the district court is AFFIRMED. Hain's Motion Challenging Standing of Respondent to Appear in this Appeal is DENIED.

*****

LUCERO, Circuit Judge, dissenting.

Because the interpretation of 21 U.S.C. 848(q) constructed by the majority is precluded by the plain meaning of the statutory language, I respectfully dissent. In adopting § 848(q), Congress unequivocally provided for appointment and payment of one or more attorneys to represent defendants in 28 U.S.C. 2254 habeas proceedings challenging state-imposed death sentences. Using words of laser-like precision, Congress directed that "each attorney so appointed shall represent the defendant throughout every subsequent stage of available judicial proceedings ... and shall also represent the defendant in such ... proceedings for executive or other clemency as may be available to the defendant." § 848(q)(8) (emphasis added). Prior to the instant case, at least one district of this circuit, the Western District of Oklahoma, has authorized the payment of counsel for § 2254 petitioners in subsequent state clemency proceedings. This practice has been approved by a panel of this court by unpublished disposition. See Hooker v. Mullin, Nos. 00-6181 & 00-6186 (10th Cir. Dec. 10, 2002) (order appointing counsel pursuant to § 848(q)(8) for state clemency proceeding). By today's ruling, the majority would avoid the congressional mandate and disturb our circuit practice by the expedient of two arguments: (1) that § 848 relates to federal criminal trials and appeals and the provisions of § 848(q) must be qualified as applying only to federal proceedings; and (2) to afford the statute its plain meaning would effect an absurd result. Both propositions are incorrect.

* This case hinges on the interpretation of 21 U.S.C. 848(q). The Supreme Court has "stated time and again that courts must presume that a legislature says in a statute what it means and means in a statute what it says there." Conn. Nat'l Bank v. Germain, 503 U.S. 249, 253-54, 112 S.Ct. 1146, 117 L.Ed.2d 391 (1992). Thus, as always, we begin "with the language of the statute," Duncan v. Walker, 533 U.S. 167, 172, 121 S.Ct. 2120, 150 L.Ed.2d 251 (2001), and we must "give effect, if possible, to every clause and word," id. at 174, 121 S.Ct. 2120 (quotation omitted). "When the meaning of the statute is clear, it is both unnecessary and improper to resort to legislative history to divine congressional intent." Edwards v. Valdez, 789 F.2d 1477, 1481 (10th Cir.1986). As Justice Holmes once wrote, "We do not inquire what the legislature meant; we ask only what the statute means." Oliver Wendell Holmes, Collected Legal Papers 207 (1920), cited in Schwegmann Bros. v. Calvert Distillers Corp., 341 U.S. 384, 397, 71 S.Ct. 745, 95 L.Ed. 1035 (1951) (Jackson, J., concurring).

Section 848(q)(4)(B) provides:

In any post conviction proceeding under section 2254 or 2255, seeking to vacate or set aside a death sentence, any defendant who is or becomes financially unable to obtain adequate representation or ... other reasonably necessary services shall be entitled to the appointment of one or more attorneys and the furnishing of such other services in accordance with paragraphs (5), (6), (7), (8), and (9).

21 U.S.C. 848(q)(4)(B). Because this provision includes § 2254 proceedings, a path exclusive to state prisoners, it expressly applies to petitioners seeking federal habeas relief from a state-imposed death sentence. Paragraph (8) of the same section provides, in words that I repeat, "each attorney so appointed shall represent the defendant throughout every subsequent stage of available judicial proceedings... and shall also represent the defendant in such ... proceedings for executive or other clemency as may be available to the defendant." Id. § 848(q)(8) (emphasis added). Thus, under the plain language of the statute, a state prisoner who seeks federal habeas relief is expressly entitled to federally funded counsel at subsequent state clemency proceedings.

In Hill v. Lockhart, 992 F.2d 801 (8th Cir.1993), the Eighth Circuit reached this very conclusion. According to the Hill court, "[t]he plain language of § 848(q) evidences a congressional intent to insure that indigent state petitioners receive `reasonably necessary' ... clemency services from appointed, compensated counsel."1 Id. at 803. Although the Eleventh and Fifth Circuits have reached a different conclusion, namely that § 848(q) does not authorize federal funding for representation in state clemency proceedings, their reasoning is simply unpersuasive and contrary to the plain language of the statute. Thus, unlike the majority, I would not adopt their holdings for our circuit.

In Clark v. Johnson, 278 F.3d 459, 462-63 (5th Cir.2002), the Fifth Circuit summarily held that the phrase "proceedings for executive or other clemency as may be available to the defendant," as used in § 848(q)(8), does not apply to state clemency proceedings. Similarly, in King v. Moore, 312 F.3d 1365, 1367-68 (11th Cir.2002), the Eleventh Circuit determined that Congress's intent to pay for counsel in state proceedings "is by no means clear" and agreed that the statute does not provide federal compensation for counsel at state clemency proceedings.

Adopting the reasoning of the Eleventh and Fifth Circuits, the majority concludes that the meaning of § 848(q) can be gleaned only by placing it in the context of the entire statutory scheme. Because § 848(q) is part of a statute that punishes violations of federal drug laws, outlining the trial and appellate procedures in such cases, the majority holds that "the language contained in the sections preceding and following [§ 848(q)(4)(B)] relates more directly to federal criminal trial and appeals, than to habeas cases seeking relief from state court sentences." (Maj. Op. at 1149, 1150 (quoting King, 312 F.3d at 1367).) Moreover, the majority agrees with the Eleventh Circuit that the word "federal" is an implied modifier for "proceedings," as it is used in § 848(q)(8). Thus, according to the majority, a habeas petitioner under this statute is entitled to federally appointed and funded counsel only at all subsequent federal proceedings.

I agree that we must view § 848(q)(8) in context, but this context includes § 848(q)(4)(B), which specifically states that funding for counsel will be provided "[i]n any post conviction proceeding" brought by state prisoners under § 2254 to vacate a death sentence, as well as in § 2255 proceedings. As stated earlier, § 848(q)(8) provides that counsel shall also represent any defendant at "proceedings for executive or other clemency as may be available to the defendant." A state prisoner, of course, will have only state clemency proceedings available. It is not possible, therefore, to limit the language of § 848(q)(8) to federal clemency proceedings, as would the majority. Moreover, as appellant notes, the reference to "executive or other clemency," § 848(q)(8) (emphasis added), is meaningless unless it is assumed to include state clemency, as there is no other form of clemency in the federal system. Reading § 848(q)(8) in context does not mean ignoring its plain text.2

The extraordinary steps that the Fifth Circuit, the Eleventh Circuit, and the panel majority have taken to justify their result subject them to the same type of criticism leveled against Church of the Holy Trinity v. United States, 143 U.S. 457, 12 S.Ct. 511, 36 L.Ed. 226 (1892). In Holy Trinity, a church in New York had contracted with an Englishman to have him cross the Atlantic and become its rector and pastor. Id. at 457-58, 12 S.Ct. 511. Unmoved by the piety of the Holy Trinity parishioners, the United States government claimed that this contract violated a federal statute that made it illegal for any person to "in any way assist or encourage the importation or migration, of any alien ... into the United States ... under contract or agreement ... to perform labor or service of any kind in the United States." Id. at 458, 12 S.Ct. 511. Faced with this statute, the Court concluded that Congress could not possibly have intended to cover a contract between a church and its rector, as "the intent of congress was simply to stay the influx of... cheap, unskilled labor." Id. at 465, 12 S.Ct. 511.

Thus, the Court decided that "labor" had to mean manual labor, even though that was not what the statute said. In a recent commentary, Justice Scalia excoriated the Court's decision in Holy Trinity as an example of the tendency of common-law judges to ignore the plain meaning of a statute in order to give effect to the supposed unexpressed intent of the legislature. As Justice Scalia noted, "Congress can enact foolish statutes as well as wise ones, and it is not for the courts to decide which is which and rewrite the former." Antonin Scalia, A Matter of Interpretation: Federal Courts and the Law 20 (1997).

II

This gets me to the majority's second proposition, that applying the statute literally would produce absurd results. I am equally unpersuaded by this argument. In order "to justify a departure from the letter of the law" on the ground of absurdity, "the absurdity must be so gross as to shock the general moral or common sense." Crooks v. Harrelson, 282 U.S. 55, 60, 51 S.Ct. 49, 75 L.Ed. 156 (1930); see also Payne v. Fed. Land Bank of Columbia, 916 F.2d 179, 182 (4th Cir.1990) (noting that the absurdity exception applies only when "the absurdity and injustice of applying the provision [literally] to the case would be so monstrous that all mankind would without hesitation, unite in rejecting the application") (quoting Sturges v. Crowninshield, 17 U.S. (4 Wheat.) 122, 202-03, 4 L.Ed. 529 (1819)).

While, to the majority, funding counsel for state proceedings subsequent to a federal habeas petition might not be a wise use of the federal purse, reading the statute literally does not create an absurdity "so gross as to shock the general moral or common sense." Crooks, 282 U.S. at 60, 51 S.Ct. 49. To my mind, there is nothing absurd whatsoever about the use by Congress of its power to provide for the payment of counsel in state clemency proceedings, where such is not otherwise available, in order to satisfy its collective conscience that in this country defendants facing a death penalty following habeas may seek executive clemency as a final resort. I consider the majority's conclusion to the contrary disturbing.

As for the majority's proposition that, were we to afford the statute its plain meaning, successful § 2254 habeas petitioners would be entitled to payment of counsel at resulting state trials and appeals, there are three straightforward answers. First, the issue is not before us. Second, even if it were, the proposition has no potential factual basis. Section 848(q)(4)(B) states that counsel will be appointed when a defendant "is or becomes financially unable to obtain adequate representation." If the state becomes obliged to provide counsel, "adequate representation" is available, and § 848(q)(4)(B) is no longer implicated. Under Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), states are obliged to provide counsel to indigent defendants at criminal trials.

Thus, a defendant granted a new trial as a result of a successful § 2254 petition is constitutionally guaranteed counsel, and is no longer "unable to obtain adequate representation" under the statute. Under prevailing practice, indigent defendants are provided counsel at state expense. By contrast, when a state refuses to pay for counsel at clemency proceedings, the defendant remains unable to obtain adequate representation, and such representation is funded under the statute. Third, if some court at some future date read § 848(q) as requiring the appointment of counsel at new trials subsequent to a grant of habeas ? even though counsel is available under state procedures ? Congress, if it chooses to do so, may address the issue.

III

Because the plain language of 21 U.S.C. 848(q) entitles state prisoners on death row, like Hain, to receive federal funding for representation in state clemency proceedings subsequent to the filing of a § 2254 petition, I would reverse the judgment of the district court.

*****

Notes:

1 Although Hain has not addressed the issue of our appellate jurisdiction, we have considered the issuesua sponte and conclude the district court order appealed by Hain is a "final decision" for purposes of 28 U.S.C. 1291. See Clark v. Johnson, 278 F.3d 459, 460-61 (5th Cir.2002).

2 As noted by the dissent, the Tenth Circuit has previously appointed counsel under § 848(q)(8) to represent a state habeas petitioner in a state clemency proceedingSee Hooker v. Mullin, Nos. 00-6181 & 00-6186 (10th Cir. Dec. 10, 2002). Because, however, that was an unpublished order, it does not constitute binding precedent. See 10th Cir.R. 36.3(A).

3 The dissent contends it is impossible "to limit the language of § 848(q)(8) to federal clemency proceedings" because the statute refers to "executive or other clemency" and the federal system offers only executive clemency. Dissent at 5. In other words, the dissent suggests, the statute's reference to "other clemency" must have been intended to refer to state clemency proceedings. We respectfully disagree. In each state that affords clemency procedures to capital defendants, "the power [of clemency] is vested in the executive branch...." Alyson Dinsmore,Clemency in Capital Cases: The Need to Ensure Meaningful Review, 49 UCLA L.Rev. 1825, 1838 (2002). Thus, state systems of clemency could just as easily fall within the scope of § 848(q)(8)'s reference to "executive clemency" as they could to its reference to "other clemency." Of course, that leaves open the question of what was intended by the phrase "other clemency." In our view, the phrase is ambiguous, and it is possible that Congress simply intended it as a catch-all for any types of federal clemency systems that might be enacted in the future. In the end, we conclude that § 848(q)(8)'s reference to "executive or other clemency" is ambiguous and, for the reasons outlined, was intended to be modified by the word "federal."

4 The dissent disputes this proposition. In the dissent's view, if a state habeas petitioner obtains federal habeas relief and is granted a new trial, § 848(q)(4)(B) would "no longer [be] implicated" because, "[u]nderGideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), states are obligated to provide counsel to indigent defendants at criminal trials." Dissent at 8. We respectfully disagree. Section 848(q)(4)(B) hinges on a defendant's financial status, i.e., it requires appointment of counsel if a defendant is "financially unable to obtain adequate representation." Once appointed thereunder, counsel's representation of the defendant presumably must continue unless (a) the defendant's financial status changes, or (b) counsel is "replaced by similarly qualified counsel upon the attorney's own motion or upon motion of the defendant...." 21 U.S.C. 848(q)(8). Although it is possible that federally appointed counsel could be replaced by state appointed counsel in a new trial setting, we are not convinced that would occur. For example, given the standards for federally appointed counsel set forth in 21 U.S.C. 848(q)(5) and (6), which are geared exclusively toward practice in federal court, it is likely that the "similarly qualified" standard could not be met by state appointed counsel.

*****

Notes:

1 As originally enacted, § 848(q)(10) provided that services performed by counsel at a clemency hearing would be compensated at "reasonably necessary" rates. Anti-Drug Abuse Amendments Act of 1988, Pub.L. No. 100-690, Title VII, § 7001, 102 Stat. 4387, 4394. Accordingly, inHill, the Eighth Circuit set forth two requirements that must be met in order for services performed in a state clemency proceeding to be considered "reasonably necessary" under § 848(q)(10): (1) the request must be "made as part of a non-frivolous federal habeas corpus proceeding," and (2) state law must "provide[ ] no avenue to obtain compensation for these services." 992 F.2d at 803. Congress subsequently amended § 848(q)(10), however, removing the "reasonably necessary" language and replacing it with a maximum hourly fee rate. Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, § 903(b), 110 Stat. 1318, 1318. It might be argued that this amendment eliminates the need to show that state compensation is unavailable, but, in my view, such a showing remains necessary to demonstrate that a defendant is "unable to obtain adequate representation" under § 848(q)(4)(B). See infra. In any event, both factors are met here. There is no allegation that Hain's federal habeas petition was frivolous, and it is undisputed that Oklahoma does not fund counsel at state clemency proceedings. Thus, Hain would be entitled to funding even under the factors enunciated in Hill.

2 Presumably, the majority would agree that § 848(q) applies to all capital cases, not just drug-related cases, even though § 848 is generally addressed at violations of the federal drug laws

 
 

Hain v. State, 962 P.2d 649 (Okla. Crim. App. 1998). (PCR)

Petitioner Scott Allen Hain was convicted of two counts of First Degree Murder (21 O.S.1981, § 701.7), two counts of Kidnapping (21 O.S.1981, § 741) two counts of Robbery with a Firearm (21 O.S.1981, § 801) , one count of Third Degree Arson (21 O.S.1981, § 1403) and two counts of Larceny of an Automobile (21 O.S.1981, § 1720) , Case No. CRF-87-240, in the District Court of Creek County. The jury found the existence of three aggravating circumstances and recommended the punishment of death for each murder conviction. In Hain v. State, 852 P.2d 744 (Okl.Cr.1993), this Court reversed with instructions to dismiss the conviction for Robbery with Firearms and affirmed all other convictions.

The death sentences imposed for the murder convictions were vacated and the case was remanded to the District Court for new second-stage proceedings. In the retrial of the sentencing stage, the jury found the existence of three aggravating circumstances and recommended the punishment of death for each count of murder. This Court affirmed the death sentences in Hain v. State, 919 P.2d 1130 (Okl.Cr.1996) Petitioner filed his Original Application for Post-Conviction Relief in this Court on September 10, 1997. 


 


Scott Allen Hain

 

 

 
 
 
 
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