Romano and Woodruff were convicted of killing a jeweler, Roger
Sarfaty, during the course of a robbery.
Sarfaty was an acquaintance of Romano and had been bound hand and
foot and strangled, beaten about the head and stabbed five times. A
friend first discovered his body, around 11:00 P.M. Tuesday, October
At the time, Romano was serving a prison sentence and had been out
on weekend furlough from Friday evening, October 11 through Sunday
evening, October 13.
The State's theory was that the murder occurred on Saturday, October
12, between 2:00 A.M. and 2:00 P.M. Romano and Woodruff do not have
alibis for at least part of that time period.
On Sunday, October 13, Woodruff's girlfriend observed that Woodruff
had a lot of jewelry which he could not afford. Sarfaty also kept as
many as six large containers of quarters in his apartment, which
were missing after the murder.
On Saturday afternoon, October 12, Romano and Woodruff, who were
then intoxicated, attempted to purchase a television at a mall
store, using only quarters. When mall security took them into
custody for being drunk and disorderly, Romano had a "lock blade"
folding knife. He was also wearing an expensive-looking gold
When police arrested Woodruff ten months after
Sarfaty's murder, he called his girlfriend and asked her to "clear"
the house. A few weeks before the murder, Romano was in need of
money and had asked a friend, Tracy Greggs, to help him rob Sarfaty,
and stated he would have to kill him.
The State jointly tried Woodruff and Romano. The jury convicted both
of first degree malice murder and robbery with a dangerous weapon.
In a related matter, prior to the Sarfaty trial, the State had
jointly tried Woodruff and Romano for murdering another Romano
acquaintance, Lloyd Thompson.
In that case, a jury also convicted both men of first degree murder
and sentenced them to death. The State introduced evidence of those
Thompson convictions and death sentences during sentencing in the
The Oklahoma Court of Criminal Appeals overturned the Thompson
convictions and death sentences, holding the trial court had erred
in jointly trying Woodruff and Romano for that murder.
subsequently retried Woodruff and Romano for Thompson's murder.
Separate juries again convicted both of first degree murder.
Romano's jury sentenced him to death, but Woodruff received a
sentence of life imprisonment without parole.
Romano v. Oklahoma, 827 P. 2d 1335 (1992) (Thompson Direct
Romano v. Oklahoma, 847 P. 2d 368, 390 (1993) (Sarfaty Direct
Spaghetti with meatballs, ravioli and sausage and strawberry or
"For whoever I've wronged, I'd like for them to forgive me. I'd like
to tell my family and friends I love you. Thanks for your love and
Oklahoma Attorney General
News Release - W.A. Drew Edmondson, Attorney
November 27, 2001
Execution Dates Requested for Romano, Woodruff.
Attorney General Drew Edmondson today asked the
Oklahoma Court of Criminal Appeals to set execution dates for the
two men convicted of killing a 52-year-old Oklahoma City man.
U.S. Supreme Court yesterday denied the final appeals of death row
inmates John Joseph Romano, 43, and David Wayne Woodruff, 42, who
were convicted of the Oct. 12, 1985, murder of Roger Joel Sarfaty.
Sarfaty's body was found Oct. 16, 1985, in his Oklahoma City
apartment. He had been stabbed five times, beaten and strangled. His
apartment had been robbed.
Romano also has a death sentence for murdering
63-year-old Lloyd Thompson during a July 19, 1986, robbery in
Oklahoma City. Woodruff received a sentence of life without parole
for his part in the crime.
"It is the practice of this office, before an
execution date is requested, to examine each case to determine if
the testing of DNA evidence should occur," said Edmondson. "We have
determined, after a thorough review, that DNA testing would be of no
value and would have no relevance as to actual innocence. I see
nothing that should stand in the way of these executions being
The state Criminal Appeals Court set execution
dates for two death row inmates for their part in the 1985 murder of
an Oklahoma City man.
John Joseph Romano is to be put to death Jan. 29,
two days before his accomplice, David Wayne Woodruff, is executed.
Romano and Woodruff were convicted of killing
Roger Joel Sarfaty, 52, on Oct. 12, 1985. Roger's body was found
four days later in his Oklahoma City apartment. He had been stabbed
five times, beaten and strangled. His apartment had been robbed.
Romano, 43, also has a death sentence for killing
Lloyd Thompson, 63, during a robbery July 19, 1986, in Oklahoma City.
Woodruff, 42, received a life sentence without the possibility of
parole for his part in the murder of Lloyd Thompson.
National Coalition to Abolish
The Death Penalty
John Romano - Scheduled Execution Date and Time:
1/29/01 10:00 PM EST
David Woodruff - Scheduled Execution Date and
Time: 1/31/01 10:00 PM EST
John Romano and David Woodruff are scheduled to
be executed in Oklahoma on Jan. 29 and Jan. 31, respectively. In the
same trial, Romano and Woodruff were convicted of the 1985 murder of
jeweler Roger Safarty.
Their conviction was bolstered by the all-too-common
practice of prosecutors giving leniency to “jailhouse snitches” in
exchange for their incriminating statements. Much too often, however,
the confession of such witnesses turns out to be completely false.
In their federal appeals, Romano and Woodruff
argued that the district attorney prosecuting their case had secured
a deal with Greg Myers, who at one point shared a jail cell with
Romano. Myers, who was then in jail for check fraud, had previously
been convicted of a sex crime involving a child.
The same DA’s
office prosecuting Romano and Woodruff offered Myers a plea-bargain
whereby he would only serve one year of the mandatory ten for his
felony crime. Although the law requires that deals like this be
presented to the trial jury, the prosecution offered no such
Thus far, no court has ruled in favor of Romano
and Woodruff on this claim. In denying relief, Judge Ebel of the
Tenth Circuit Court of Appeals noted, “…we remain suspicious about
whether Myers in fact had a deal with the State, particularly in
light of the timing of these events and the significant benefit
Myers derived from avoiding a ten-year prison sentence when the
State did not charge him as a former felon…” No proof of the quid
pro quo exists, but the facts are too obvious to ignore. Write to
the Governor of Oklahoma and urge that this claim by Romano and
Woodruff be fully investigated.
John Joseph Romano Homepage
About Me: Dead Man Waiting . . . John Joseph
Romano is on death row in the state of Okalahoma, the current leader
in number of executions (17) for this year. His appeals are all but
run out and he has little hope of any clemency or relief.
wish is to get enough funding to pay for his own funeral and allow
his family to claim his body, rather than be buried in the prison
cemetery where it would be all but impossible for his family to
visit or tend his grave.
In a recent letter to me, he said, "I have hurt
my family, my mother, so much with the things I have done in my life
that I truly wish to give them this final bit of comfort." At this
time, you may send contributions for John's funeral fund to C&E
Jasper, 2109 Harmony Place, Bloomington, IN 47403; or through
PayPal.com, Elizabeth Jasper/Readings by Elizabeth.
Please help John's family to have a little dignity in the loss of
their son. Few of us realize how terribly families suffer for the
crimes of their children. Many families abandon their family members
in prison altogether, especially on death row, but John's has not.
They just simply don't have the money to give John a private burial.
We see many responses from opponents accusing prisoners of wanting
fancy funerals. All we are talking about here is a marked grave, not
on prison property. Even small donations are a big help. John has,
in my best judgement, three to five months before his execution date
will be set.
Hobbies & Interests: John has been a model
prisoner during his 15+ year stay on death row. He serves as a
messenger/runner for H-Unit. You can also find more information
there about Oklahoma's dedicated execution practices. John is a very
religious person and a sincere Christian. If you want to write to
John, send an e-mail to firstname.lastname@example.org and I will forward it to
John via regular mail. Prisoners have no e-mail or internet access.
Friends & Family: John's family has given him
rare support in his difficult situation. I don't know a great deal
about them, except that he loves them so much, the same way my
children love me. John has been fortunate, he says, in the friends
he has been able to make on death row. "There are high prices to pay
emotionally for developing friendships in this place, but it has
been worth it to me. I have been here since I was a very young man
(28), so it has really been my only chance to have friends." I met
John through my pen-pal at H-Unit. We have shared a few letters and
I find him to be sincere, responsible for his life and actions and
determined to act in the best interests of his family.
COURT OF THE UNITED STATES
JOHN JOSEPH ROMANO,
On writ of certiorari to the
court of criminal appeals of Oklahoma
June 13, 1994
Ginsburg, with whom Justice Blackmun,
Justice Stevens, and Justice Souter join,
Caldwell v. Mississippi, 472 U.S. 320
(1985), this Court overturned a capital sentence
as inadequately reliable because of a statement
made by the prosecutor, in closing argument at
the penalty phase of the trial. The Caldwell
prosecutor told the jury: "[Y]our [sentencing]
decision is not the final decision"; "the
decision you render is automatically reviewable
by the [state] Supreme Court." Id., at
to the issue presented in Caldwell, this
Court observed that capital sentencing jurors,
required to determine "whether a specific human
being should die at the hands of the State,"
id., at 329, are "placed in a very
unfamiliar situation and called on to make a
very difficult and uncomfortable choice." Id.,
at 333. Such jurors, the Court noted, might find
"highly attractive" the prosecutor's suggestion
that persons other than themselves would bear "responsibility
for any ultimate determination of death." Id.,
possibility the jury might have embraced the
prosecutor's suggestion, the Court concluded,
rendered the imposition of the death penalty
inconsistent with the Constitution's requirement
of individualized and reliable capital
sentencing procedures. See id., at 323,
329-330,340-341. Emphasizing the " `truly
awesome responsibility' " imposed upon capital
sentencing juries, id., at 329, quoting
McGautha v. California, 402 U.S.
183, 208 (1971), the Court held:
constitutionally impermissible to rest a death
sentence on a determination made by a sentencer
who has been led to believe that the
responsibility for determining the
appropriateness of the defendant's death rests
elsewhere." 472 U. S., at 328-329.
In my view,
this principle, reiterated throughout the
Court's Caldwell opinion,
covers the present case: The jury's
consideration of evidence, at the capital
sentencing phase of petitioner Romano's trial,
that a prior jury had already sentenced Romano
to death, infected the jury's life or death
deliberations as did the prosecutorial comments
condemned in Caldwell. Accordingly, I
would vacate the death sentence imposed upon
Romano and remand for a new sentencing hearing.
penalty phase of Romano's trial for the murder
of Roger Safarty, the prosecution sought to put
before the jury a copy of the "Judgment and
Sentence" from an earlier and unrelated
prosecution. That document revealed that Romano
had been convicted of the first degree murder of
Lloyd Thompson and that he was to be executed
for that crime. Defense counsel offered to
stipulate to Romano's conviction for the
Thompson murder, but objected to the jury's
consideration of the death sentence.
court overruled defense counsel's objection and
admitted the "Judgment and Sentence" document.
That document stated that Romano had given "no
good reason why [the] Judgment and Sentence [for
the murder of Thompson] should not be pronounced,"
and commanded the State's Department of
Corrections "to put the said JOHN JOSEPH ROMANO
to death." App. 6. The jury in the instant,
Safarty murder case also sentenced Romano to
pendency of Romano's appeal from his conviction
and sentence for the Safarty murder, the
Oklahoma Court of Criminal Appeals vacated his
conviction for the Thompson murder. Romano
v. State, 827 P. 2d 1335 (1992). Romano
urged on appeal in the Safarty case that, under
Caldwell v. Mississippi, it was
impermissible to place before the jury, as
relevant to its deliberations whether Romano
should live or die, evidence that he was already
under sentence of death.
court rejected that contention and affirmed
Romano's conviction and death sentence for the
Safarty murder. 847 P. 2d 368, 390 (Okla. Crim.
App. 1993). In so ruling, the court acknowledged
that "[l]earning that the defendant had
previously received a death sentence for another
murder could diminish the jury's sense of
importance of its role and mitigate the
consequences of [its] decision." Ibid.
The court further recognized that "evidence of
the imposition of the death penalty by another
jury is not relevant in determining the
appropriateness of the death sentence for the
instant offense." Id., at 391.
the court concluded, "when the jury is properly
instructed as to its role and responsibility in
making such a determination we cannot, on
appellate review, conclude that the jur[ors]
inany way shifted the responsibility for their
decision or considered their decision any less
significant than they would otherwise." Id.,
That judgment is now before the Court.
Caldwell, this Court found constitutionally
impermissible a prosecutor's statement, at the
penalty phase of a capital trial, that the
jury's decision was "not the final decision"
because it was "automatically reviewable." The
prosecutor's assurances were impermissible, the
Court ruled, because they created an
unacceptable risk that the jury would "minimize
the importance of its role," "believ[ing] that
the responsibility for determining the
appropriateness of the defendant's death rest[ed]
elsewhere." Caldwell, 472 U. S., at 333,
329. This belief, the Court explained, is
inconsistent with the "heightened `need for
reliability' " in capital sentencing. Id.,
at 323, quoting Woodson v. North
Carolina, 428 U.S. 280, 305 (1976) (plurality
The risk of
diminished jury responsibility was also grave in
Romano's case. Revealing to the jury that Romano
was condemned to die for the Thompson murder
signaled to the jurors in the Safarty murder
case that Romano faced execution regardless of
their life or death decision in the case before
them. Jurors so informed might well believe that
Romano's fate had been sealed by the previous
jury, and thus was not fully their
responsibility. See People v. Hope,
116 Ill. 2d 265, 274, 508 N. E. 2d 202, 206
(1986) (" `[T]he jury's awarenessof defendant's
prior death sentence would diminish its sense of
responsibility . . . . Assuming that defendant
was already going to be executed, the jurors may
consider their own decision considerably less
significant than they otherwise would.' "),
quoting People v. Davis, 97 Ill.
2d 1, 26, 452 N. E. 2d 525, 537 (1983); West
v. State, 463 So. 2d 1048, 1052-1053
(Miss. 1985) ("[I]f the jury knows that the [defendant]
is already under a sentence of death it would
tend to relieve them of their separate
responsibility to make that determination.").
uncertain whether to vote for death or for life
might be swayed by the knowledge that " `another
jury had previously resolved the identical issue
adversely to defendant.' " Hope, supra,
at 274, 508 N. E. 2d, at 206, quoting Davis,
supra, at 26, 452 N. E. 2d, at 537. Such
a juror, although "unconvinced that death is the
appropriate punishment, . . . might nevertheless
wish to `send a message' of extreme disapproval
for the defendant's acts," Caldwell, 472
U. S., at 331, reasoning that the defendant was
already to be executed in any event.
jurors otherwise inclined to hold out for a life
sentence might acquiesce in a death penalty they
did not truly believe warranted. Cf. id.,
at 333 ("[O]ne can easily imagine that in a case
in which the jury is divided on the proper
sentence, the presence of appellate review could
effectively be used as an argument for why those
jurors who are reluctant to invoke the death
sentence should nevertheless give in.").
State of Oklahoma correctly observes, however,
that evidence of a prior death sentence may not
produce a unidirectional bias toward death.
Brief for Respondent 23. Some jurors, otherwise
inclined to believe the defendant deserved the
death penalty for the crime in the case before
them, might nonetheless be anxious to avoid any
feeling of responsibility for the defendant's
execution. Jurors so minded might vote for a
life sentence, relying on the prior jury's
determinationto secure defendant's death. See
ante, at 12.
offending prosecutorial comments in Caldwell,
by contrast, created an apparently
unidirectional "bias toward a death sentence,"
for the appellate review that the Caldwell
jurors were encouraged to consider could occur
only if the jury sentenced the defendant to
death, not if it voted for life. 472 U. S., at
331-332. Oklahoma maintains that Romano remains
outside the Caldwell principle, because
he is unable to demonstrate that the evidence of
his prior death sentence tilted the jurors
Romano's prosecutor, at least, seems to have
believed that informing the jurors of the prior
death sentence would incline them toward death,
for otherwise, he probably would not have
insisted upon introducing the "Judgment and
Sentence" itself, over Romano's objection, and
despite Romano's offer to stipulate to the
underlying conviction. Most critically,
Caldwell, as I comprehend that decision,
does not require Romano to prove that the
prosecutor's hunch was correct, either in
Romano's case in particular or in death penalty
dominantly concerns the capital sentencing
jury's awareness and acceptance of its " `awesome
responsibility.' " Id., at 341. To assure
that acceptance, this Court's Eighth Amendment
jurisprudence instructs, capital sentencing
procedures must be especially reliable. See
id., at 323 (prosecutor's comments were "inconsistent
with the Eighth Amendment's heightened `need for
reliability in the determination that death is
the appropriate punishment in a specific case,'
" quoting Woodson v. North Carolina,
supra, at 305); 472 U. S., at 341 (death
sentence "does not meet the standard of
reliability that the Eighth Amendment requires,"
when it may have been affected by the State's
attempt "to minimize the jury's sense of
responsibility for determining the
appropriateness of death").
Caldwell'sreasoning, diminution of jurors'
sense of responsibility violates the Eighth
Amendment's reliability requirement, whether or
not a defendant can demonstrate empirically that
the effect of this diminution was to bias the
jurors' judgment toward death. According to
Caldwell, if a reviewing court "cannot say"
that an effort "to minimize the jury's sense of
responsibility for determining the
appropriateness of death . . . had no effect on
the sentencing decision, . . . [t]he sentence of
death must . . . be vacated" as unreliable.
today reads Caldwell to apply only if the
jury has been "affirmatively misled regarding
its role in the sentencing process." Ante,
at 7. According to the Court, because no
information, incorrect when conveyed, was given
to the jury responsible for sentencing Romano
for Safarty's murder, "[t]he infirmity
identified in Caldwell is simply absent
in this case." Ante, at 7.
rests its rendition of Caldwell on the
premise that only a plurality of the Court's
members endorsed the principle I regard as
pivotal: Diminution of the jury's sense of
responsibility "preclude[s] the jury from
properly performing its [charge] to make an
individualized determination of the
appropriateness of the death penalty." See
ante, at 6-7, citing Caldwell, 472 U.
S., at 330-331, 341. In fact, however, key
portions of Caldwell that the Court
attributes to a plurality of four were joined by
five of the eight Justices who participated in
O'Connor parted company with the other members
of the majority only as to a discrete, three
paragraph section, Part IV-A (id., at
335-336), in which "[t]he Court," in her view, "seem[ed]
generally to characterize information regarding
appellate review as `wholly irrelevant to the
determination of the appropriate sentence.' "
Id., at 342 (opinion concurring in part and
concurring in the judgment), quoting id.,
O'Connor explained that she did not read
California v. Ramos, 463 U.S. 992
(1983), "to imply that the giving of
nonmisleading and accurate information regarding
the jury's role in the sentencing scheme is
irrelevant to the sentencing decision." 472 U.
S., at 341 (emphasis omitted). It was in that
context that Justice O'Connor stated her view,
quoted ante, at 7, that "the prosecutor's
remarks were impermissible," not because they
referred to the existence of post-sentence
review, but "because they were inaccurate and
misleading in a manner that diminished the
jury's sense of responsibility." 472 U. S., at
O'Connor's concurring opinion thus appears to
rest on "grounds narrower" than those relied
upon by the other members of the Court's
Caldwell majority, see ante, at 7,
only insofar as her concurrence disavowed any
implication that the "giving of accurate
instructions regarding postsentencing procedures,"
472 U. S., at 342, is irrelevant or
of Romano's death sentence for the murder of
Thompson, however, was not information regarding
postsentencing procedures Romano might pursue.
Nor, as the Oklahoma Court of Criminal Appeals
found, was the "Judgment and Sentence" for
Thompson's murder relevant to the Safarty jury's
sentencing decision. 847 P. 2d, at 391 ("evidence
of the imposition of the death penalty by
another jury is not relevant in determining the
appropriateness of the death sentence for the
I do not read JusticeO'Connor's concurring
opinion as narrowing the Court's Caldwell
holding with respect to the issue this case
presents. Nor, for reasons set out in the margin,
do I agree with the Court that several post-Caldwell
cases, beginning with Darden v.
Wainwright, 477 U.S. 168 (1986), confirm the
narrow interpretation of Caldwell the
Court announces today. See ante, at 7.
Court relies, as did the Oklahoma Court of
Criminal Appeals, on the trial court's
instruction to the jurors that "[t]he importance
and worth of the evidence is for you to decide,"
together with the court's disavowal of any view
as to the appropriate punishment. Ante,
at 3. The Court quotes the Oklahoma court's
conclusion that " `[i]t was never conveyed or
intimated in any way, by the court or the
attorneys, that the jurycould shift its
responsibility in sentencing or that its role in
any way had been minimized.' " Ante, at
8, quoting 847 P. 2d, at 390.
trial court's instruction to consider the
evidence cannot resolve the Caldwell
problem in this case: The "Judgment and Sentence"
form, bearing Romano's prior death sentence, was
part of the evidence the jury was told to
consider. Further, once it is acknowledged that
evidence of the prior death sentence "could
diminish the jury's sense of importance of its
role and mitigate the consequences of [its]
decision," 847 P. 2d, at 390, it cannot be said
that the court or attorneys did not "conve[y] or
intimat[e]" that the jury's role was diminished.
prosecution proffered the death commanding "Judgment
and Sentence" as evidence, and the trial court
admitted it--over Romano's objection, and
despite his offer to stipulate to the conviction.
As discussed supra, at 4-7, admission of
that evidence risked leading jurors to "minimize
the importance of [their] role," "believ[ing]
that the responsibility for determining the
appropriateness of the defendant's death rest[ed]
elsewhere." Caldwell, 472 U. S., at 333,
329. This risk was "unacceptable in light of the
ease with which [it] could have been minimized."
Turner v. Murray, 476 U.S. 28, 36
(1986) (opinion of White, J.).
the jury to consider evidence that Romano was
already under sentence of death, while that jury
determined whether Romano should live or die,
threatened to "minimize the jury's sense of
responsibility for determining the
appropriateness of death." Unable to say that
the jury's consideration of Romano's prior death
sentence "had no effect on the [instant]
sentencing decision," Caldwell, 472 U.
S., at 341, I would vacate that decision and
remand the case for a new sentencing hearing.
278 F.3d 1145
John Joseph Romano,
Gary Gibson, Warden, Oklahoma
State Penitentiary, Respondent-appellee
United States Court of
Appeals, Tenth Circuit.
January 25, 2002
Before SEYMOUR, LUCERO,
and MURPHY, Circuit Judges.
SEYMOUR, Circuit Judge.
Petitioner-appellant John Joseph Romano
appeals the denial of habeas relief,
see 28 U.S.C. § 2254, from his
Oklahoma first degree murder conviction
and death sentence.
argues, among other things, that his
trial attorneys' second-stage strategy
was constitutionally ineffective. We
disagree, and affirm the denial of
habeas relief on this and his other
Romano of murdering a business
acquaintance, Lloyd Thompson.1
Thompson was a fifty-eight year old
gambler with a heart condition.
worked for Thompson setting up card
July 19, 1986, Thompson's neighbors
reported seeing either one or two men
with Thompson. One man was changing a
tire on Thompson's car.
admitted doing so. That tire had been
flattened by two punctures made in the
sidewall with a sharp object, such as a
knife. After changing the tire, at least
one man accompanied Thompson to his
second-story apartment. Immediately
thereafter, Thompson's stereo was turned
up very loud and there followed a lot of
loud thumping and banging, lasting
between two and ten minutes.
another neighbor noticed a man coming
from Thompson's apartment, carrying a
brown paper bag. This man got into a
brown Mercury Cougar, where another man
waited, and the two left hurriedly. That
car was registered to Romano's
girlfriend. She had let him use the car
Thompson's neighbors summoned police,
who found the victim's body in his
apartmerit. Thompson had been beaten and
stabbed twenty-two times. Underneath his
body, police found a broken knife blade.
There was evidence a struggle had
occurred, including blood found
throughout the apartment's living room.
That afternoon, Romano's girlfriend
Romano had scratches on his neck
that she had not previously noticed.
Thompson was known to keep large amounts
of money in his front pants pockets.
However, when police found his body,
Thompson's front pockets had been turned
inside out and were empty. And, although
he had had no money that morning,
turned up later that day with one
Romano had told his girlfriend
that morning that he was going to meet
David so that he could collect some
money to finance a trip to Clovis, New
Mexico, planned for that afternoon.
David Woodruff also was seen with three
hundred dollars that same afternoon.
Woodruff was wearing what was positively
identified as Thompson's watch.
sets of bloody clothes and two bloody
knives, one broken, were subsequently
found in a trash dumpster behind a
retail store. The broken knife matched
exactly the blade found under Thompson's
body. At trial, both Woodruff's and
Romano's girlfriends identified the
bloody clothing as belonging to the two
co-defendants. The blood found on all
the clothes and the knives was Type A,
matching the victim's blood type.
blood spatter expert testified that the
blood stains on Romano's clothes were
consistent with the wearer, while in
close proximity, having inflicted
multiple stab wounds on a bleeding
victim. The stains on Woodruff's clothes,
on the other hand, were more consistent
with the wearer's holding a bleeding
victim, rather than stabbing him. The
State surmised that the two men had
attacked Thompson, stabbing him both
from Thompson's front and back.
Woodruff's knife blade must have broken.
Woodruff then grabbed and held Thompson
continued stabbing him.
Romano that same evening in
Clovis, New Mexico, for first degree
murder. At the time,
commented that he would go to the
penitentiary for sure this time. He
called Woodruff from jail the next
morning. This call prompted Woodruff and
his girlfriend to drive around looking
in trash dumpsters in the area where the
bloody clothes were found.
alternately with first degree malice
aforethought and felony murder. The jury
returned a general guilty verdict. At
sentencing, the State presented evidence
Romano and Woodruff had similarly
gambling acquaintance, Roger Sarfaty,
six months before Thompson's murder.
jury found two aggravating factors:
had committed the murder to avoid arrest
and prosecution for robbing Thompson,
and Thompson's murder was especially
heinous, atrocious or cruel. The jury
declined to find that
was a continuing threat to society.
After weighing the two aggravating
factors with Romano's mitigating
evidence, the jury sentenced him to
Oklahoma Court of Criminal Appeals
affirmed Romano's conviction and
sentence on direct appeal, and denied
post-conviction relief. Romano v.
State, 909 P.2d 92 (Okla.Crim.App.1995),
cert. denied, 519 U.S. 855, 117
S.Ct. 151, 136 L.Ed.2d 96 (1996);
Romano v. State, 942 P.2d 222 (Okla.Crim.App.1997).
the Antiterrorism and Effective Death
Penalty Act of 1996 (AEDPA),
is entitled to relief from his death
sentence only if he can show that the
state court's resolution of his claims
was "contrary to, or involved an
unreasonable application of clearly
established" Supreme Court precedent, or
represented "an unreasonable
determination of the facts in light of
the evidence presented." 28 U.S.C. §
2254(d). We presume state court factual
findings are correct, absent clear and
convincing proof to the contrary. Id.,
§ 2254(e)(1). If the state court did not
address a claim's merit, however, this
court then reviews the district court's
legal determinations de novo and
its factual findings, if any, for clear
error. See Thomas v. Gibson, 218
F.3d 1213, 1220 (10th Cir.2000).
Ineffective representation at sentencing.
challenges his trial attorneys' second-stage
representation. In particular,
complains that his own attorneys
presented his sister's testimony that
had sexually abused her, and their
siblings, for years. According to
this testimony was "devastating" to his
second-stage defense. Appellant's
Opening Br. at 17.
first asserts that the federal district
court should have granted his motion for
discovery and conducted an evidentiary
failed to request an evidentiary hearing
in state court. He did raise several
ineffective-assistance claims on direct
appeal, including this one. During that
direct appeal, he requested an
evidentiary hearing, but only
specifically to permit him to develop
evidence of his exemplary incarceration
record while on death row. See
Appellant's Direct Appeal Br. at 31.
Further, although he sought a state-court
evidentiary hearing in his post-conviction
relief application, as well, he did so
again on unrelated ineffective-assistance
claims. See Post-Conviction
Application at 2, 31. Lastly, he did not
raise until these habeas proceedings one
of the factual issues he now seeks to
develop, that defense counsel presented
the sexual-abuse testimony during
sentencing despite Romano's denying its
occurrence. See Appellant's
Direct Appeal Br. at 25-32.
as here, a petitioner has failed to
develop diligently the factual basis of
his federal habeas claim in state court,
28 U.S.C. § 2254(e)(2) permits a federal
evidentiary hearing only in very limited
circumstances where, among other
requirements, the claim relies on "a new
rule of constitutional law ..." or "a
factual predicate that could not have
been previously discovered through the
exercise of due diligence," id.,
§ 2254(e)(2)(A). See Williams v.
Taylor, 529 U.S. 420, 429-30,
432-34, 437, 120 S.Ct. 1479, 146 L.Ed.2d
435 (2000); see also, e.g., Mayes v.
Gibson, 210 F.3d 1284, 1287 n. 2
(10th Cir.), cert. denied, 531
U.S. 1020, 121 S.Ct. 586, 148 L.Ed.2d
does not assert that this claim would
fit within either § 2254(e)(2)(A)
exception. Consequently, he is not
entitled to an evidentiary hearing in
federal court. See Valdez v. Ward,
219 F.3d 1222, 1230 (10th Cir.2000),
cert. denied, 532 U.S. 979, 121 S.Ct.
1618, 149 L.Ed.2d 481 (2001); see
also Smith v. Massey, 235 F.3d 1259,
1275 (10th Cir. 2000), cert. denied,
___ U.S. ___, 122 S.Ct. 235, 151 L.Ed.2d
169 (2001), abrogated on other
grounds by Neill v. Gibson, 278 F.3d
1044, 1057 n. 5 (10th Cir.2001). Nor did
the federal district court abuse its
discretion in denying
discovery in these habeas proceedings.
See Rule 6(a), Rules Governing
Section 2254 Cases.
obtain habeas relief,
must establish both that presenting
evidence that he sexually assaulted his
siblings amounted to deficient
performance by his attorneys and that
his defense was thereby prejudiced.
See Strickland v. Washington, 466
U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d
674 (1984). Here, "[b]ecause we resolve
this ineffective-assistance claim by
addressing [defense counsel's]
performance, we affirm the denial of
habeas relief without addressing
Strickland's prejudice inquiry."
Bryan v. Gibson, 276 F.3d 1163, 1175
(10th Cir.2001) (citing Strickland,
466 U.S. at 697, 104 S.Ct. 2052).
establish deficient performance,
must show that his attorneys' "representation
fell below an objective standard of
reasonableness." Strickland, 466
U.S. at 687-88, 104 S.Ct. 2052.
"Judicial scrutiny of counsel's
performance must be highly deferential....
A fair assessment of attorney
performance requires that every effort
be made to eliminate the distorting
effects of hindsight, to reconstruct the
circumstances of counsel's challenged
conduct, and to evaluate the conduct
from counsel's perspective at the time."
Id. at 689, 104 S.Ct. 2052.
is a "strong presumption that counsel's
conduct falls within the wide range of
reasonable professional assistance."
Id.; see also Kimmelman v. Morrison,
477 U.S. 365, 384, 106 S.Ct. 2574, 91
L.Ed.2d 305 (1986). To prevail,
Romano must "overcome the
presumption that, under the
circumstances, the challenged action
might be considered sound trial strategy."
Strickland, 466 U.S. at 689, 104
S.Ct. 2052 (further quotation omitted).
"[S]trategic choices made after thorough
investigation of law and facts relevant
to plausible options are virtually
unchallengeable." Id. at 690, 104
concedes that defense counsel pursued
the "sound" second-stage strategy of
Romano as "a redeemed individual
who deserved a punishment... less than
death." Appellant's Opening Br. at
17-18. Essentially he complains that
defense counsel went too far by
eliciting Romano's sister's testimony
Romano had sexually abused her
and his other siblings.
concedes, see id., it was clearly
the second-stage defense strategy to
acknowledge what a horrible person
had been, but then to show that he had
evolved into an individual worth sparing
from death. In her second-stage opening
argument, defense counsel previewed for
the jury Romano's sad family background
and evidence of "Romano
in his teenage years, mid 20s, he was a
gambler, a drug addict, a hustler,
manipulative and materialistic ...
violen[t]." Trial tr., vol. V at 943.
Counsel further asserted, however, that
"[y]ou will [also] hear testimony about
John Romano, the man he is now,
Christian, drug free, non-violent and
sincere[,] who has changed.... [W]e hope
that after you hear this you will spare
his life." Id.
show the person
the defense presented three jail guards
who testified that
never questioned authority and was
always a "model" prisoner, pleasant,
cooperative, obedient, helpful,
respectful, and a calming, cheering and
positive influence on the violent
offenders with whom he lived. One guard
stated it was like night and day when
Romano to the other maximum
Another guard suggested if anything
threatening were to happen to him while
on duty, alone among fifty violent
inmates it would be
who would "back up" the guard. Romano's
former defense attorney testified that
was very open, likable, and intelligent.
He was the only former client with whom
she kept in contact.
ordained and lay prison ministers
was a devout Christian, attended
religious services regularly and helped
with Bible studies. He had a positive
outlook, was very empathetic and
encouraging, and had a positive
influence on those who counseled him, as
well as on other inmates. As one example,
had once successfully counseled a
suicidal inmate. Because many of these
witnesses were able to speak about their
over a five- or six-year time period,
they were able to attest credibly to his
addition, Romano's fifteen year old
brother spoke to
each week. He testified that
would counsel him to do what was right,
stay away from drugs and out of trouble,
and help his mother. The defense then
put on Romano's mother and his sister to
explain "how [his] home environment
influenced his behavior, how it
contributed to his attitude and the very
means of his personality," id. at
941 (defense second-stage opening
mother testified that she was seventeen
when she married Romano's father, who
was then eighteen. The couple had four
children in their marriage's first five
years. She described Romano's father as
controlling and cruel, referring to her
frequently as a whore, pig and white
trash. She had to protect the children
from their own father, who was
physically abusive and hard on the
who was the eldest. For example,
Romano's father severely beat him when
was unable to ride a bike on the first
couple fought constantly. They
eventually divorced after being married
for fifteen years.
had himself begged them to divorce.
Their divorce was fraught with years of
litigation and battles over the children
and the marital property.
Romano's mother asserted she had had at
least five "nervous breakdowns,"
beginning when she was twenty-one. She
had tried to kill herself in front of
her children by jumping out of a moving
car. She had also once taken a Valium
overdose, after which her husband
refused to allow her to go to the
was currently undergoing counseling. She
further testified that
had a drug addiction, and her oldest
daughter had, at one time, been on speed.
That daughter had undergone one and one-half
years of therapy, plus marriage
counseling. Another daughter was
anorexic, weighing only eighty pounds,
and had to live with a psychiatrist for
all of this mitigating evidence, the
defense presented the testimony of
Romano's thirty-two year old younger
sister. She testified that her parents
married young, fought constantly, and
separated several times before finally
divorcing. Their family life was violent.
"It was hitting and screaming and
constant." Id., vol. VI at
father would encourage his children to
fight physically, hitting and punching.
He would spank them until they could not
stand. Her mother was depressed all the
time and had tried to kill herself in
front of the children, once by trying to
jump out of a moving car and on another
occasion by trying to shoot herself.
the divorce, her mother worked three
jobs to support the family, often
leaving her five children unattended.
must have been about fourteen at the
time of the divorce; this witness was
twelve. They would see their father only
about once a month, and they would go
weeks without seeing their mother except
to get her up as they left for school.
was left in charge of the children. His
sister described him as "very, very
mean." Id. at 1165. He would
physically beat the other children "all
the time." Id. It is during this
discussion that his sister testified
sexually abused my sister and I for...
as long as I can remember. I don't
remember when it started. And ...
actually my little brother too.
youngest I can remember that it
definitely was going on was at least
second grade, which I would have been
seven or eight years old and I just
don't remember it starting, but I do
remember it then.
stopped when I was 12.
hated him. I felt like he ruined my life.
I felt like he took something away from
[me] that I didn't even know I had to
Consonant with the defense strategy,
however, Romano's sister further
testified that her relationship with her
brother had changed: "I've forgiven him.
And because of that I talk to him. I
talk to my kids about him, and I care
about him. I love him now." Id.
is no question that the defense strategy
specifically included presenting this
sexual-abuse testimony. Defense counsel
clearly referred to it in her second-stage
opening statement. The question
presented here is not whether counsel's
decision to present this testimony was
strategic, but whether that strategy was
reasonable. See Roe v. Flores-Ortega,
528 U.S. 470, 481, 120 S.Ct. 1029, 145
L.Ed.2d 985 (2000); see also Burger
v. Kemp, 483 U.S. 776, 789 n. 7, 107
S.Ct. 3114, 97 L.Ed.2d 638 (1987). "For
counsel's actions to rise to the level
of constitutional ineffectiveness, [this]
strategic decision must have been
completely unreasonable, not merely
wrong, so that [it] bear[s] no
relationship to a possible defense
strategy." Fox v. Ward, 200 F.3d
1286, 1296 (10th Cir.) (further
quotations omitted), cert. denied,
531 U.S. 938, 121 S.Ct. 329, 148 L.Ed.2d
denying relief, the Oklahoma Court of
Criminal Appeals, applying Strickland,
held that Romano's sister's testimony "effectively
illustrated" Romano's "transformation...
from a victimizer to a born again
Christian." Romano, 909 P.2d at
jury was fully aware [Romano]
had behaved abhorrently in the past and
was violent. Any damage her testimony
could have caused would be to emphasize
was a continuing threat, an aggravating
circumstance not found by the jury. On
the contrary, her testimony added to the
was no longer a threat to society.
state appellate court's decision denying
relief was not unreasonable. See
28 U.S.C. § 2254(d)(1). Although
argues on appeal that defense counsel
should never have called Romano's sister
to testify at all, in fact her testimony
generally was key to the defense
strategy. Through her, the defense
presented much of the family's sad
history, explaining to some degree,
had become the person he had. No other
witness offered all of this same
sexual-abuse testimony, in particular,
reinforced the defense strategy.
had been a mean, violent person, capable
of horrific behavior. But the sister's
testimony supported the defense theory
Romano was now a changed man,
dramatically emphasizing that his sister
had been able to forgive him and did
love him. This appears to be exactly
what the defense attorneys were hoping
the jury would also do — look
beyond his horrible crimes and sentence
Romano had become to a sentence
less than death. In fact, defense
counsel argued in closing:
you think a woman who has suffered like
that, who has reason to hate that man
for violating her body like that, if she
can forgive that brother for that kind
of harm, can't you spare his life, a man
you have never met. A man who has never
caused you any personal trauma.
tr., vol. VI at 1232.
are countless ways to provide effective
assistance in any given case[,]" and "[e]ven
the best criminal defense attorneys
would not defend a particular client in
the same way." Strickland, 466
U.S. at 689, 104 S.Ct. 2052; see also,
e.g., Sallahdin v. Gibson, 275 F.3d
1211, 1240 (10th Cir.2002); Bryan,
276 F.3d at 1179. "[A]nd it is all too
easy for a court, examining counsel's
defense after it has proved unsuccessful,
to conclude that a particular act or
omission of counsel was unreasonable."
Strickland, 466 U.S. at 689, 104
light of all the circumstances, see
Morrison, 477 U.S. at 384, 106 S.Ct.
2574, we cannot say that defense
counsel's strategic decision to present
this testimony was "completely
unreasonable," Gonzales v. McKune,
247 F.3d 1066, 1072 (10th Cir.2001),
reh'g en banc granted on other grounds;
see also Morrison, 477 U.S. at 382,
106 S.Ct. 2574 (noting only those habeas
petitioners whose attorneys' "gross
incompetence" has denied them a fair
trial are entitled to habeas relief).
Evidence supporting "avoid arrest"
State charged, and the jury found, that
had killed Thompson to avoid being
arrested or prosecuted for robbing him.
contends the evidence does not support
the jury's determination.
relevant habeas inquiry here is whether,
viewing the evidence in a light most
favorable to the State, there was
sufficient evidence for any rational
fact finder to find this aggravating
factor beyond a reasonable doubt. See
LaFevers v. Gibson, 182 F.3d 705,
723 (10th Cir.1999) (applying Jackson
v. Virginia, 443 U.S. 307, 319, 99
S.Ct. 2781, 61 L.Ed.2d 560 (1979));
see also, e.g., Sallahdin, 275 F.3d
at 1231. The state appellate court
determined there was. See
909 P.2d at 119. That determination was
not unreasonable. See 28 U.S.C. §
Oklahoma law, this aggravator focuses on
the defendant's intent, which can be
proven either through his own statements
or circumstantial evidence, and
additionally requires proof of a
predicate crime, other than the murder,
for which the defendant seeks to avoid
arrest or prosecution. See, e.g.,
Romano v. Gibson, 239 F.3d 1156,
1179 (10th Cir.), cert. denied,
___ U.S. ___, 122 S.Ct. 624, 151 L.Ed.2d
evidence established that
and his girlfriend needed cash for their
New Mexico trip.
worked for Thompson and knew he always
carried large amounts of cash in his
front pants pockets. Police found
Thompson's body with his front pants
pockets turned inside out and empty.
Later that day,
had one thousand dollars with him that
he did not have earlier that morning.
addition, his co-defendant Woodruff had
three hundred dollars and was wearing
Thompson's watch. This evidence was
sufficient to support the jury's finding
this aggravating factor beyond a
reasonable doubt. See, e.g.,
239 F.3d at 1179 (reviewing, under AEDPA,
reasonableness of state court's denying
similar claim); Hale, 227 F.3d at
1334-35 (reviewing similar claim de
Evidence supporting especially heinous,
atrocious or cruel aggravating factor.
also asserts there was insufficient
evidence to support the jury's finding
that Thompson's murder was especially
heinous, atrocious or cruel. This issue
is not properly before us.
Neither the district court nor this
court ever granted
a certificate of appealability (COA) on
this issue. See 28 U.S.C. §
2253(c). The district court denied him
COA on this claim, and
did not renew that COA request in this
court. Nonetheless, our case management
ten days from its date, October 18,
2000, to seek COA from this court on any
additional issues. Such a request "must
be raised by written motion."
still failed to request COA on this
case management order further
specifically provided that "[u]nless
otherwise ordered by the merits panel,
no issue shall be included in the briefs
other than those set forth" in that
never properly sought and obtained COA
on this issue, it is not properly before
if we were to grant COA and consider
this claim's merit, we would deny habeas
relief. The state appellate court's
determination that there was sufficient
evidence to support this aggravator,
see Romano, 909 P.2d at 118-19, was
reasonable, see 28 U.S.C. §
challenges the cumulative effect of
improperly admitted evidence. See
Appellant's Opening Br. at 66-68.
challenges the blood spatter expert's
testimony; the co-defendant's
girlfriend's hearsay testimony; the
trial court's admitting six gruesome
photographs; the prosecutor's
hypothetical question about ligature
marks found on Woodruff's and Romano's
other murder victim, Roger Sarfaty; and
a detective's "comment on [Romano's]
id. at 67. Romano's perfunctory
discussion of these issues on appeal to
this court alone warrants denying habeas
relief. See, e.g., Walker v. Gibson,
228 F.3d 1217, 1239-40 (10th Cir.2000) (declining
to address conclusory and unsupported
argument), cert. denied, 533 U.S.
933, 121 S.Ct. 2560, 150 L.Ed.2d 725
(2001), abrogated on other grounds by
Neill, 2001 WL 1584819, at *8 n. 5;
see also Sallahdin, 275 F.3d at
1231 (noting this court need not address
undeveloped argument). Moreover, these
evidentiary claims, considered
separately or together, did not result
in a fundamentally unfair trial. See,
e.g., Estelle v. McGuire, 502 U.S.
62, 67-68, 70, 112 S.Ct. 475, 116 L.Ed.2d
385 (1991); Elliott v. Williams,
248 F.3d 1205, 1214 (10th Cir.) cert.
denied, ___ U.S. ___, 122 S.Ct. 286,
151 L.Ed.2d 211 (2001).
these reasons, we AFFIRM the denial of
This was Romano's
second trial for Thompson's murder. The
State had initially tried
together with his co-defendant, David
Woodruff. The Oklahoma Court of Criminal
Appeals, however, overturned their
resulting first degree murder
convictions and death sentences, ruling
the trial court should have granted a
mistrial when it became apparent that
Romano's and Woodruff's defenses had
become mutually antagonistic See
Romano v. State, 827 P.2d 1335, 1337
In a separate trial,
another jury convicted Romano's co-defendant,
Woodruff, of the first degree murder of
Thompson, but sentenced him to life
Against this backdrop
concerning who Romano currently was at
the time of this trial in 1993, the jury
was obviously aware of the facts
regarding his murder of Thompson in
1986. Moreover, the State presented
and Woodruff had been convicted of
robbing, stabbing, beating and
gambling acquaintance in 1985, fifty-two
year old Roger Sarfaty
This court has not
resolved whether this state court
determination is factual, reviewed under
§ 2254(d)(2) and (e)(1), or a mixed
question of law and fact, reviewed under
§ 2254(d)(1)See Hale v. Gibson,
227 F.3d 1298, 1335 n. 17 (10th
Cir.2000), cert. denied, ___ U.S.
___, 121 S.Ct. 2608, 150 L.Ed.2d 764
(2001); see also, e.g., Sallahdin,
275 F.3d at 1231 n. 6.
would not be entitled to habeas relief
under either standard. See, e.g.,
Sallahdin, 275 F.3d at 1231 n. 6.
asserts only that the detective's
comment deprived him of a fair trialSee
Appellant's Opening Br. at 67.