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Littlejohn v. Royal

United States Court of Appeals, Tenth Circuit

November 7, 2017

EMMANUEL LITTLEJOHN, Petitioner - Appellant,
TERRY ROYAL, Warden, Oklahoma State Penitentiary, [*] Respondent - Appellee.

         Appeal from the United States District Court for the Western District of Oklahoma (D.C. No. 5:05-CV-00225-M)

          Sarah M. Jernigan, Assistant Federal Public Defender (Randy A. Bauman, Assistant Federal Public Defender, with her on the briefs), Oklahoma City, Oklahoma, for Petitioner-Appellant.

          Robert L. Whittaker, Assistant Attorney General (E. Scott Pruitt, Attorney General, with him on the brief), Office of the Attorney General for the State of Oklahoma, Oklahoma City, Oklahoma, for Respondent-Appellee.

          Before TYMKOVICH, Chief Judge, LUCERO and HOLMES, Circuit Judges.

          HOLMES, Circuit Judge.

         Following various Oklahoma state-court proceedings, an Oklahoma jury convicted Emmanuel Littlejohn of first-degree murder and sentenced him to death. This case-which comes before us for a second time-arises from the district court's denial of Mr. Littlejohn's petition for a writ of habeas corpus under 28 U.S.C. § 2254.

         The first time around the district court found Mr. Littlejohn's ineffective-assistance and cumulative-error claims-among twelve other bases for relief-meritless or procedurally barred. Reviewing the district court's conclusions de novo, we addressed the declaration of Dr. Manual Saint Martin, a psychiatrist who diagnosed Mr. Littlejohn-for the first time-with undefined, synapse-level neurological deficits, or an organic brain disorder. Given that evidence, we reasoned that the disposition of Mr. Littlejohn's ineffective-assistance claim-and, derivatively, his cumulative-error claim-hinged on whether Dr. Saint Martin's averments would prove worthy of belief, because "[e]vidence that an organic brain disorder was a substantial factor in engendering Mr. Littlejohn's life of deviance probably would have been a significant favorable input for Mr. Littlejohn in the jury's decisionmaking calculus" during the penalty phase. Littlejohn v. Trammell (Littlejohn I), 704 F.3d 817, 864 (10th Cir. 2013). As a result, we remanded the case to the district court for an evidentiary hearing on whether Mr. Littlejohn's trial counsel proved ineffective by failing to adequately investigate and present to the jury a mitigation theory of organic brain damage.

         On remand, the district court held an evidentiary hearing; the parties presented the testimony of various individuals-including Dr. Saint Martin and Mr. Littlejohn's trial counsel, James Rowan. Following the hearing, the district court largely restated its earlier findings and again denied Mr. Littlejohn habeas relief on his ineffective-assistance and cumulative-error claims. Mr. Littlejohn now appeals from the district court's judgment on remand. With the benefit of a more robust factual record relative to Mr. Littlejohn's alleged organic brain damage, for the reasons that follow, we affirm.


         In Littlejohn I, we detailed the factual and procedural backdrop of Mr. Littlejohn's state-court conviction and sentencing. See 704 F.3d at 822-24. In brief, in 1992, Mr. Littlejohn and his acquaintance Glenn Bethany robbed a convenience store in Oklahoma City. As the robbery neared its conclusion, one of the store's employees-Kenneth Meers-took a fatal shot to the face. Although Mr. Littlejohn maintained that he did not fire the fatal shot, a jury convicted him of first-degree murder and sentenced him to death in 1994. In 1998, however, the Oklahoma Court of Criminal Appeals ("OCCA") vacated and remanded his initial death sentence, because the trial court improperly admitted uncorroborated testimony suggesting that Mr. Littlejohn had confessed to the killing of Mr. Meers and also an unrelated murder. See Littlejohn v. State, 989 P.2d 901, 910-12 (Okla. Crim. App. 1998). At resentencing, a jury again sentenced Mr. Littlejohn to death, based on two aggravating circumstances: (1) his previous conviction for a violent felony, and (2) the fact that he posed a continuing threat to society.

         Following Mr. Littlejohn's unsuccessful efforts for state post-conviction relief, he filed a habeas petition under 28 U.S.C. § 2254 in federal district court. See Littlejohn v. Workman, No. CIV-05-225-M, 2010 WL 2218230 (W.D. Okla. May 27, 2010) (unpublished). As relevant here, he argued that (1) the prosecution violated his due process rights by failing to give adequate notice of certain evidence it intended to present at resentencing in support of the continuing-threat aggravator; (2) the introduction of the testimony of two witnesses violated his rights under the Confrontation Clause, because the prosecution failed to make the necessary showing of unavailability; (3) his trial counsel had been constitutionally ineffective for failing to investigate and present evidence of his organic brain damage; and (4) the cumulative weight of these errors entitled him to relief.

         The district court denied Mr. Littlejohn's petition, and he brought his first appeal. In Littlejohn I, we affirmed the district court's disposition of Mr. Littlejohn's due-process and Confrontation Clause claims, but reversed the district court's judgment as to the ineffective-assistance claim and vacated its judgment as to the cumulative-error claim, with instructions to the district court to conduct an evidentiary hearing on remand. See 704 F.3d at 822. Following an evidentiary hearing, the district court again denied Mr. Littlejohn's petition, see Littlejohn v. Trammell, No. CIV-05-225-M, 2014 WL 3743931 (W.D. Okla. July 30, 2014) (unpublished), and he filed this appeal.


         We begin with Mr. Littlejohn's ineffective-assistance claim. To make out an ineffective-assistance claim, a petitioner "must show both that his counsel's performance 'fell below an objective standard of reasonableness' and that 'the deficient performance prejudiced the defense.'" Byrd v. Workman, 645 F.3d 1159, 1167 (10th Cir. 2011) (quoting Strickland v. Washington, 466 U.S. 668, 687-88 (1984)). These two prongs may be addressed in any order; indeed, in Strickland, the Supreme Court emphasized that "if it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, . . . that course should be followed." 466 U.S. at 697; accord Byrd, 645 F.3d at 1167; Knighton v. Mullin, 293 F.3d 1165, 1178 (10th Cir. 2002). Here, we take this approach and conclude that, even assuming arguendo that Mr. Rowan's performance was constitutionally deficient, Mr. Littlejohn's ineffective-assistance claim fails on the basis of lack of prejudice.

         Under the prejudice prong, a petitioner must demonstrate "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694. "When a petitioner alleges ineffective assistance of counsel stemming from a failure to investigate mitigating evidence at a capital-sentencing proceeding, 'we evaluate the totality of the evidence-both that adduced at trial, and the evidence adduced in habeas proceedings.'" Williams v. Trammell, 782 F.3d 1184, 1215 (10th Cir. 2015) (quoting Smith v. Mullin, 379 F.3d 919, 942 (10th Cir. 2004)), cert. denied, --- U.S. ----, 136 S.Ct. 806 (2016).

         In doing so, we "reweigh the evidence in aggravation against the totality of available mitigating evidence, " Hooks v. Workman, 689 F.3d 1148, 1202 (10th Cir. 2012) (quoting Young v. Sirmons, 551 F.3d 942, 960 (10th Cir. 2008)), considering "the strength of the State's case and the number of aggravating factors the jury found to exist, as well as the mitigating evidence the defense did offer and any additional mitigating evidence it could have offered, " Knighton, 293 F.3d at 1178. "[W]e must consider not just the mitigation evidence that Defendant claims was wrongfully omitted, but also what the prosecution's response to that evidence would have been." [Michael] Wilson v. Trammell, 706 F.3d 1286, 1306 (10th Cir. 2013); accord Grant v. Trammell, 727 F.3d 1006, 1022 (10th Cir. 2013). At the end of the day, "[i]f 'there is a reasonable probability that at least one juror would have struck a different balance'-viz., that 'at least one juror would have refused to impose the death penalty'-prejudice is shown." Hooks, 689 F.3d at 1202 (citations omitted) (first quoting Wiggins v. Smith, 539 U.S. 510, 537 (2003); then quoting Wilson v. Sirmons, 536 F.3d 1064, 1124 (10th Cir. 2008) (Hartz, J., concurring)).

         Under the foregoing rubric, we begin by discussing the salient aspects of the procedural history and factual background of Mr. Littlejohn's ineffective-assistance claim. We then turn to whether the more comprehensive factual record now before us lends force to Mr. Littlejohn's claim of prejudice under Strickland.


         In his habeas petition, Mr. Littlejohn asserted that his trial counsel, Mr. Rowan, rendered ineffective assistance in the resentencing proceeding by failing to adequately investigate and present a mitigation theory of organic brain damage. Rather, Mr. Rowan focused his mitigation case on the testimony of Dr. Wanda Draper, a developmental epistemologist who presented a socio-psychological account of the impact that Mr. Littlejohn's troubled upbringing had on his development. More specifically, Dr. Draper testified extensively about the substance abuse of Mr. Littlejohn's mother during her pregnancy and regarding the lack of nurturing and attention that Mr. Littlejohn received as a child, and then explained the stunted development that Mr. Littlejohn suffered as a result of these factors. In particular, she testified that Mr. Littlejohn had long exhibited emotional problems and disruptive behavior, and determined that, although he understood the difference between right and wrong, he often did not act on that knowledge. More specifically, on cross-examination, Dr. Draper stated that she did not think that Mr. Littlejohn had "a mental illness per se"; rather, "he had emotional disturbance, [and] he was a troubled child." State R., Vol. VI, Resentencing Tr. at 133.

         In his habeas petition, Mr. Littlejohn advanced the view that Mr. Rowan should have investigated and presented evidence of organic brain damage that he suffered as a result of his mother's drug use during her pregnancy with him. In order to buttress that assertion, Mr. Littlejohn attached a declaration from Dr. Saint Martin, a psychiatrist who examined him in 2005, five years after his resentencing. In the declaration, Dr. Saint Martin stated that "Mr. Littlejohn's history and behavioral symptomatology presented indications of neuro-developmental deficits." R., Vol. I, at 176. In other words, Mr. Littlejohn's brain was "not 'wired' correctly" at the "level of the synapse[-i.e., ] the microscopic connections between individual brain cells." Id. at 177. Dr. Saint Martin specifically explained that Mr. Littlejohn "suffer[ed] [from] a behavioral disorder manifested by poor impulse control, psychological immaturity and judgment [and] caused by neurodevelopmental deficits experienced in his peri-natal development." Id. Finally, Dr. Saint Martin described these deficits as "irreparable, but . . . treatable" because "drug therapy" can "control the behavior and diminish the impulsivity, which creates most of the problems in interacting with society." Id. at 178-79. Based on Dr. Saint Martin's declaration, Mr. Littlejohn argued that Mr. Rowan acted ineffectively by failing to investigate and present evidence of Mr. Littlejohn's organic brain damage during his resentencing.

         In its initial consideration of Mr. Littlejohn's habeas petition, the district court denied relief on the ineffective-assistance claim. See Littlejohn, 2010 WL 2218230, at *26-*30. The district court first found de novo review of Mr. Littlejohn's claim appropriate, because the state court had not adjudicated the claim on its merits, and because the State did not argue that Mr. Littlejohn procedurally defaulted his claim. See id. at *27. Reviewing the claim de novo, the district court found that Mr. Littlejohn had failed to demonstrate any prejudice flowing from Mr. Rowan's allegedly deficient performance, because Dr. Draper had provided the jury with a complete picture of Mr. Littlejohn's troubled personal development. See id. at *28-*30. The district court thus concluded that the evidence that Dr. Saint Martin could have presented "would not have had a pervasive effect on the jury's decision"; as a result, it found "no reasonable probability that the balancing of the aggravating and mitigating evidence would have led the jury to return a sentence other than death." Id. at *30.

         In Littlejohn I, we reversed the district court's judgment on this claim. At the outset, we detailed two unique procedural features of Mr. Littlejohn's ineffective-assistance claim. First, we emphasized that the absence of a state-court "merits adjudication" or a "procedural default" on the ineffective-assistance claim triggered a merits-based de novo review. 704 F.3d at 855. Second, we determined that Mr. Littlejohn's essentially unchallenged diligence in developing the factual basis for his ineffective-assistance claim relieved him of the obligation of satisfying the "strict standards for an evidentiary hearing" under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Id. at 858.

         Undertaking our own de novo review, we concluded-based on the averments in Dr. Saint Martin's declaration-that Mr. Littlejohn's ineffective-assistance claim "may have merit." Id. at 856 (emphasis added). We noted that "[e]vidence that an organic brain disorder was a substantial factor in engendering Mr. Littlejohn's life of deviance probably would have been a significant favorable input for Mr. Littlejohn in the jury's decisionmaking calculus." Id. at 864. Evidence of organic brain damage, we explained, could have strengthened Mr. Littlejohn's mitigation case by offering "at least a partial explanation" for his extensive criminal history-and importantly, one grounded in his physical, neurological deficits. Id.

         In addition, the evidence of organic brain damage could have weakened the prosecution's case in support of the continuing-threat aggravator, by "offer[ing] a less blameworthy explanation of Mr. Littlejohn's extensive criminal history" and by providing some suggestion that Mr. Littlejohn suffered from treatable deficits. Id. at 865. Along these lines, we emphasized that evidence of organic mental deficits "ranks among the most powerful types of mitigation evidence available" and stressed that such evidence is qualitatively different-in significant ways-from the social-environment evidence that we typically are called on to consider in capital habeas cases. Id. at 864.

         Based on the current record, we concluded as to the prejudice showing that Dr. Saint Martin's declaration created "a reasonable probability that [the presentation of] such evidence would have led at least one juror to support a sentence less than death." Id. In other words, we determined-under the limited circumstances developed at that time-that "[e]vidence that an organic brain disorder was a substantial factor in engendering Mr. Littlejohn's life of deviance probably would have been a significant favorable input for Mr. Littlejohn in the jury's decisonmaking calculus, " and that Mr. Rowan's failure to investigate and present organic-brain-damage evidence (as sketched by Dr. Saint Martin) would have caused Mr. Littlejohn prejudice. Id.; see id. at 865-67.

         However, we also underscored that further factual development would be necessary before a definitive conclusion could be reached regarding the merits of Mr. Littlejohn's ineffective-assistance claim. Id. at 856. Indeed, we emphasized the "highly fact-bound" nature of Mr. Littlejohn's particular ineffective-assistance claim, and thus explained that "[a] further exploration of the substance of Dr. Saint Martin's findings might well reveal significant theoretical or factual holes that would make a finding of deficient performance or prejudice unsound." Id.

         Consistent with our reticence to reach definitive determinations on the undeveloped record, we said:

[W]e conclude that Mr. Littlejohn has alleged a mitigation theory and supporting facts which, if true, would entitle him to relief under Strickland-viz., would justify us in concluding that his counsel was constitutionally deficient in failing to investigate and put on mitigating evidence concerning Mr. Littlejohn's claimed physical brain injury and that, but for that failure, there is a reasonable probability that the jury would have selected a penalty less than death.

Id. at 867. In light of these conclusions, we remanded the matter to the district court for further factual findings concerning Mr. Littlejohn's mitigation theory.

         In particular, on remand, we tasked the district court with determining whether Mr. Littlejohn could demonstrate sufficient factual support for his mitigation theory. The district court held an evidentiary hearing at which both parties presented evidence and testimony. As most relevant here, Dr. Saint Martin offered-in terms far more specific than in his declaration, which we considered in Littlejohn I-diagnoses of Mr. Littlejohn's physiological mental deficits. Dr. Saint Martin explained that he "diagnosed an impulse control disorder[] and attention deficit disorder[, ]"[1] R., Vol. III, at 123-both of which constitute "dysfunctions in Mr. Littlejohn's frontal lobes, " stemming from "prenatal and perinatal insults." Id. at 126.[2]

          These two disorders, in Dr. Saint Martin's opinion, led Mr. Littlejohn to have "low frustration tolerance" and "a lot of problems with impulses" because "the normal controls one would expect [to] override destructive impulses are not present or present enough." Id. at 126-27. When asked about possible treatment options for these disorders, Dr. Saint Martin noted "an 80 percent response rate to medication" for attention deficit disorder and a response "on the order of about 40 percent" for an impulse-control disorder, but admitted that Mr. Littlejohn had never received medications for these disorders and that, consequently, there was no guarantee that he would respond to them. Id. at 128-29, 186.

         In addition, Dr. Saint Martin acknowledged on cross-examination that, "on a very, very, very large number of tests of intellectual functioning and neuropsychological functioning, Mr. Littlejohn perform[ed] in the low-average to average-range." Id. at 146-47. Additionally, he diagnosed Mr. Littlejohn with" mixed personality traits, " but declined to conclude that he suffers from antisocial personality disorder. Id. at 123. Nevertheless, Dr. Saint Martin acknowledged that Mr. Littlejohn exhibited a number of characteristics "consistent with anti-social personality disorder" and admitted that "individuals with attention deficit hyperactivity disorder are significantly more likely to develop anti-social personality disorder." Id. at 177.

         In Littlejohn I, we asked the district court to reevaluate in an evidentiary hearing Mr. Littlejohn's ineffective-assistance claim, notably on the issue of prejudice. More specifically, this examination should have entailed the district court making a critical determination in the first instance of whether Mr. Littlejohn did in fact suffer from treatable mental deficits that could have substantially explained his past criminal behavior, such that it was reasonably probable that Mr. Rowan's failure to investigate and present evidence of organic brain damage caused Mr. Littlejohn prejudice. However, the district court's findings are not specific regarding these matters. Instead, the court generally reasoned that Dr. Saint Martin's declaration was "not all that it appeared to be, " and found that "the introduction of this evidence would have been accompanied by demonstrated limitations and pitfalls." R., Vol. I, at 961. Essentially, under this rationale, the district court concluded that Mr. Littlejohn had failed to demonstrate prejudice, and this appeal followed.

         Our analysis begins with a discussion of the relevant standard of review. We then turn to whether the evidence elicited on remand demonstrates that organic brain damage played a substantial role in engendering Mr. Littlejohn's life of criminal deviance-viz., the critical question we identified in Littlejohn I. Although we cannot fully embrace the district court's analysis, we ...

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