FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN
DISTRICT OF OKLAHOMA (D.C. NO. 5:12-CV-01110-F)
A. Nance (John T. Carlson, Assistant Federal Public Defender,
Denver Colorado, with him on the briefs), Riggs, Abney, Neal,
Turpen, Orbison & Lewis, Oklahoma City, Oklahoma, for the
Caroline E.J. Hunt, Assistant Attorney General (Mike Hunter,
Attorney General of Oklahoma, with her on the brief), Office
of the Oklahoma Attorney General, Oklahoma City, Oklahoma,
for the Appellee.
TYMKOVICH, Chief Judge, LUCERO, and MORITZ, Circuit Judges.
TYMKOVICH, Chief Judge.
Oklahoma jury convicted and sentenced Gilbert Ray Postelle to
death in connection with the brutal killings of four people.
On Memorial Day 2005, Postelle and two other assailants
attacked Donnie Swindle at his home, murdering him along with
three acquaintances. The raid apparently sprang from the
Postelle family's grudge against Mr. Swindle alone; the
three other victims had no connection to the feud.
an unsuccessful appeal and collateral action in state court,
Postelle now pursues federal habeas corpus relief. He alleges
the state prosecution violated several of his constitutional
rights, including his Sixth Amendment right to counsel and
his Eighth Amendment right against cruel and unusual
punishment. Postelle raises three issues: (1) whether he
received constitutionally adequate trial counsel; (2) whether
he received constitutionally adequate appellate counsel; and
(3) whether the unconstitutional presentation of
victim-impact evidence at trial prejudiced his defense. He
also asks to expand the scope of our review to include
several new issues for which he has yet to receive a
Certificate of Appealability.
reasons given below, we affirm denial of the writ and decline
to extend the scope of our review.
our description of Postelle's crimes on the Oklahoma
Court of Criminal Appeals's (OCCA) account in
Postelle v. State (Postelle I), 267 P.3d
114 (Okla. Crim. App. 2011), as well as the jury's
findings and other uncontested facts.
background for these crimes begins with Earl Bradford
"Brad" Postelle being thrown from his motorcycle in
a single-vehicle accident. See id. at 124 & n.7;
Tr. 1030-33. Brad suffered grave injuries, both physical and
mental, as a result of the crash. See Postelle I,
267 P.3d at 124. Without apparent basis, he and his two
sons-David and Gilbert Postelle-would eventually blame the
accident on an acquaintance named Donnie Swindle. See
id. at 124-25; Tr. 2239. And on Memorial Day 2005, that
blame erupted into violence.
began with the Postelles hosting several friends at their
home in Midwest City, Oklahoma. See Postelle I, 267
P.3d at 123-24; Tr. 1635, 2087. The house often
served as a place to use methamphetamine, and this gathering
was no different. Postelle I, 267 P.3d at
124. On this day, however, Gilbert and David
Postelle resolved that "those responsible" for
their father's injuries "were 'going to
afternoon, the Postelles and three friends left the house,
ostensibly to go target shooting. Id. at 124-25.
After dropping off two of the passengers, however, their van
did not follow its usual course to the riverbank.
Id. at 125; see Tr. 2039, 2065. Instead, it
rolled on toward the home of Donnie Swindle.
drove onto Swindle's property, he and a guest named Terry
Smith approached the van. Postelle I, 267 P.3d at
125; see Tr. 2072. Gilbert Postelle promptly slid
open the van door and shot Smith in the face with a
military-style rifle. Postelle I, 267 P.3d at 124-25
& n.9. Gilbert and Brad then shot at Swindle, dropping
him to the ground. Id. at 125. Next, David Postelle
took Brad's gun and shot the bewildered Swindle in the
head. Id. at 126. Gilbert then "turned and ran
through [Swindle's] trailer, looking for others and
firing his gun." Id. at 126. He came out
through the back door and "chased down" a third
victim, James Alderson. Id. Gilbert "shot
[Alderson] as [he] tried to seek cover under a boat."
Id. Gilbert then gunned down one final victim-Amy
Wright-with three shots from behind. See id. at 123
& n.1, 126. The perpetrators then got back in the van and
drove away. Id. at 126.
law enforcement eventually identified, arrested, and charged
Gilbert Postelle with four counts of first-degree murder and
one count of conspiracy to commit a violent felony. See
id. at 123. In light of evidence depicting the events
above, a jury convicted Postelle of all five crimes. See
id. Then, despite mitigating evidence of "organic
brain damage and mental illness," "drug abuse from
an early age," and a "chaotic and abusive
upbringing," Postelle v. State (Postelle
II), No. PCD-2009-94, slip op. at 14 (Okla. Crim. App.
filed Feb. 14, 2012), the jury sentenced Postelle to death,
see Postelle I, 267 P.3d at 123.
challenged his conviction and sentence in the Oklahoma
courts. On direct appeal, he argued-among other claims-that
the State's use of victim-impact statements during the
trial's sentencing phase violated his Eighth Amendment
rights. See Brief ex rel. Gilbert Ray Postelle,
Appellant at 78-80, Postelle I, 267 P.3d 114
(D-2008-934). The OCCA rejected the challenge on plain error
review. See Postelle I, 267 P.3d at 142-43. Postelle
then applied for post-conviction collateral relief. This
time-again, among other claims-he contended his trial and
appellate counsel had rendered constitutionally inadequate
assistance. See Original Appl. Post Conviction
Relief Death Penalty Case at 5-10, 47-49, Postelle
II, slip op., (PCD-2009-94) [hereinafter PCR Appl.]. The
OCCA rejected these arguments as well, again affirming the
trial court. See Postelle II, slip op. at 9-17,
Postelle sought protection from the federal courts. In
September 2013, he filed this action in the Western District
of Oklahoma for the writ of habeas corpus. See R.,
Vol. I at 10. Postelle based his petition, in relevant part,
on the alleged constitutional violations just mentioned.
See id. at 24-51. The district court denied relief.
See id. at 584-85. Postelle now appeals that denial.
asks us to overturn the district court with respect to three
issues. First, he claims his trial counsel rendered
ineffective assistance by not using the "Flynn
Effect" as part of the mitigation strategy to help argue
against a death sentence. See Aplt. Br. at 2.
Second, he claims his appellate counsel
rendered ineffective assistance by not challenging
trial counsel's failure to use Flynn Effect
evidence for death penalty-eligibility and mitigation
purposes. See id. Finally, Postelle claims certain
victim-impact evidence erroneously introduced in the
sentencing phase was not harmless, but in fact prejudiced his
defense. See id.
appeals from orders denying a writ of habeas corpus, we
review the district court's legal analysis de novo and
its factual findings for clear error. Smith v.
Duckworth (Smith II), 824 F.3d 1233, 1241-42
(10th Cir. 2016). To qualify for the writ, however, a state
prisoner must carry a heavy burden. Indeed, Congress has
directed federal courts to give their state counterparts
deference in all but the narrowest circumstances.
See 28 U.S.C. § 2254(d). As relevant here,
under the Antiterrorism and Effective Death Penalty Act
(AEDPA), a state court must contradict or unreasonably apply
"clearly established Federal law, as determined by the
Supreme Court of the United States" as a prerequisite to
federal habeas relief. Id. Mindful of that threshold
inquiry, we turn to Postelle's claims.
Ineffective Assistance of Counsel
Sixth Amendment guarantees every accused "the right . .
. to have Assistance of Counsel for his defence." U.S.
Const. amend. VI. The Supreme Court has interpreted this
right to guarantee every criminal defendant a minimum quality
of advocacy from a professional attorney. In Strickland
v. Washington, 466 U.S. 668 (1984), the Court held a
criminal defendant could establish a violation of his right
to counsel upon two related but distinct showings. First, he
"must show that counsel's performance was
deficient." Id. at 687. In this context, only
commission of "errors so serious that counsel was not
functioning as the 'counsel' guaranteed . . . by the
Sixth Amendment" constitutes "deficient
performance." Id. "Second, the defendant
must show that the deficient performance prejudiced the
defense." Id. This inquiry also looks to
counsel's errors, this time to determine whether they
were "so serious as to deprive the defendant of a fair
trial" with a "reliable" result. Id.
challenges the adequacy of both his trial counsel and
appellate counsel. See Aplt. Br. at 2; see
generally Evitts v. Lucey, 469 U.S. 387 (1985)
(establishing the right to effective appellate
counsel). As far as this appeal is concerned, however,
both claims derive from a single alleged error:
trial counsel's failure to incorporate evidence of the
Flynn Effect into Postelle's defense.
The Flynn Effect
start with a short explanation of the Flynn Effect-an aspect
of IQ testing upon which Postelle's petition heavily
Flynn Effect is an observed phenomenon believed to impact the
accuracy of IQ testing. See generally John Matthew
Fabian et al., Life, Death, and IQ: It's Much More
Than Just a Score: Understanding and Utilizing Forensic
Psychological and Neuropsychological Evaluations in
Atkins Intellectual Disability/Mental Retardation
Cases, 59 Clev. St. L. Rev. 399, 414-16 (2011). As the
well-known scoring system makes clear, IQ testing does not
aim to pinpoint the test subject's absolute intelligence.
Instead, it attempts to measure his intelligence relative
to the rest of the population. See Nancy Haydt
et al., Advantages of DSM-5 in the Diagnosis of
Intellectual Disability: Reduced Reliance on IQ Ceilings
in Atkins (Death Penalty) Cases, 82 UMKC L.
Rev. 359, 364 (2014). Accordingly, before administering a new
IQ test to any one person, the creator must first
"norm" it by scoring the performance of a sample
group. Fabian et al., supra, at 414. Like zeroing a
scale, this norming process identifies how someone of average
intelligence should perform on the new test. See id.
The test maker then keys that average performance to an IQ of
100 and constructs a "normal" bell curve of
performance around that point. See id.; see
also Haydt et al., supra, at 364 (explaining
points on the IQ scale as corresponding to deviation from the
mean on a normal curve). Assuming the sample group accurately
represented the general population, the test should now be
capable of identifying any single taker's relative
intelligence. See Fabian et al., supra, at
1984, Dr. James Flynn published a study documenting an
increase in average performance on IQ tests over time.
See James R. Flynn, Tethering the Elephant:
Capital Cases, IQ, and the Flynn Effect, 12 Psychol.
Pub. Pol'y & L. 170, 172 (2006). Specifically,
Flynn's findings indicated an upward creep of average IQ
scores by about 0.33 points every year. See John H.
Blume et al., Of Atkins and Men: Deviations from
Clinical Definitions of Mental Retardation in Death Penalty
Cases, 18 Cornell J.L. & Pub. Pol'y 689, 700
(2009); Fabian et al., supra, at 414 (identifying a
rate of 0.31 points per year); Richard J. Bonnie &
Katherine Gustafson, The Challenge of Implementing
Atkins v. Virginia: How Legislatures and Courts Can
Promote Accurate Assessments and Adjudications of Mental
Retardation in Death Penalty Cases, 41 U. Rich. L. Rev.
811, 838 (2007) (identifying a rate of 0.31 points per year).
literature has since dubbed this phenomenon "the Flynn
Effect," and it carries relatively straightforward
implications for the accuracy of IQ testing: The performance
of the sample group used to norm an IQ test is obviously
static-frozen in time. But the average performance of all
other test takers gradually improves with each passing year.
Thus, just as a photo taken at dawn will not depict the
brightness of noon, a sample group used to norm an IQ test in
1995 will not reflect average intelligence in
2005. On the contrary, because of the upward
creep in average scores, we should expect a person of average
intelligence in 2005 to score a 103 on an IQ test normed ten
years earlier, rather than the usual 100. See Blume
et al., supra, at 701. Conversely, if a person
scores a 73 on an IQ test normed ten years before its
administration, we may adjust his score downward to 70 to
reflect his intelligence relative to today's general
population. See id.
Ramifications for Capital Punishment
lines of death penalty jurisprudence connect the Flynn Effect
to this case.
Supreme Court has read the Eighth Amendment's prohibition
on "cruel and unusual punishments," U.S. Const.
amend. VIII, to forbid "'[e]xcessive'
sanctions." Atkins v. Virginia, 536 U.S. 304,
311 (2002). The federal courts determine whether a
"punishment is excessive" according to currently
prevalent standards. Id. And in Atkins v.
Virginia, 536 U.S. 304 (2002) (quoting U.S. Const.
amend. VIII), the Supreme Court observed "a national
consensus . . . against" putting intellectually disabled
persons to death. Id. at 316. The Court
therefore held states could not execute such persons, as that
punishment would be "excessive" in the eyes of the
Eighth Amendment. See id. at 314-17.
addition, states cannot prevent a court or jury from hearing
relevant, mitigating evidence during a capital sentencing
determination. In Lockett v. Ohio, 438 U.S. 586
(1978), a plurality of Justices took the position
that-pursuant to the Eighth Amendment-states must permit
capital juries to "consider" all proffered
mitigating evidence respecting the "defendant's
character[, ] . . . record[, ] . . . [or] the circumstance of
the offense" "in all but the rarest kind of capital
case." Id. at 604 (Opinion of Burger, C.J.).
Several years later, in Eddings v. Oklahoma, 455
U.S. 104 (1982), a majority of the Court adopted, expanded,
and applied that rule. See id. at 112-15.
Eddings clarified "that the sentencer in
capital cases must be permitted to consider any relevant
mitigating factor." Id. at 112 (emphasis
added). "Relevance" here takes the same meaning as
in any other evidentiary context-that is, relevant evidence
has some "tendency to make . . . any fact . . . of
consequence . . . more . . . or less probable than it would
be" otherwise. Tennard v. Dretke, 542 U.S. 274,
284 (2004) (quoting McKoy v. North Carolina, 494
U.S. 433, 440 (1990)).
Effect evidence could potentially play an important role
within each of these two jurisprudential veins. First,
accounting for the Flynn Effect might impact whom states may
execute consistent with the Eighth Amendment. This is because
IQ is one of the metrics commonly used to identify
intellectual disability. See, e.g., Atkins,
536 U.S. at 308 n.3, 309 n.5, 317 & n.22. Second, when
the death penalty is, in fact, available as a sentence,
evidence of the Flynn Effect may bear on the sentencer's
choice to issue it in lieu of a lesser punishment.
adopts both of these potential uses in his claims of
Postelle argues his trial counsel should have used Flynn
Effect evidence to help exempt him from the death penalty
under Atkins. This is because, under Oklahoma law,
his entitlement to an intellectual disability determination
depended entirely on whether the court adjusted IQ scores to
account for the Flynn Effect.
Supreme Court has left to the states the task of
"determining which offenders . . . in fact" fall
within Atkins's ambit. Id. at 317. To
implement this directive, the State of Oklahoma has created a
process whereby capital defendants may be adjudicated
intellectually disabled either by the court prior to trial,
see Okla. Stat. tit. 21, § 701.10b(E), or by
the jury prior to determination of a sentence, see
id. at § 701.10b(E)-(F). But a criminal defendant
that scores a 76 or higher on any valid IQ test may not
receive an Atkins determination under Oklahoma law.
See id. at § 701.10b(C).
completed two separate IQ tests in 2006 and 2007 in
anticipation of trial. Postelle II, slip op. at 12;
Tr. 2870. He scored a 79 on the first and a 76 on the second.
Postelle II, slip op. at 12. If adjusted for the
Flynn Effect, Postelle contends, his two IQ scores would both
have fallen to roughly 73. Aplt. Br. at 27-28. He therefore
argues his trial counsel should have used Flynn Effect
evidence to get him an eligibility determination, and claims
his appellate counsel rendered ineffective assistance by not
raising trial counsel's omission on direct appeal.
See Aplt. Br. at 2, 46.
Postelle claims his trial counsel was ineffective for not
using Flynn Effect evidence in his sentencing determination,
again faulting appellate counsel for not raising this error
on appeal. See id. at 2. This argument presents a
more direct attack on the failure to utilize the Flynn
Effect. So the logic goes, a capital defendant may use
any relevant evidence to convince a jury not to
return a death sentence. Thus, Postelle claims counsel
rendered deficient and prejudicial performance by not
mentioning the Flynn Effect in support of a lesser sentence.
See Aplt. Br. at 2, 18-24.
reasons stated below, however, neither argument justifies
The Eligibility Argument
OCCA's handling of Postelle's eligibility-based
argument certainly warrants AEDPA deference.
OCCA clearly rejected Postelle's eligibility-based
argument in his application for post-conviction relief.
See Postelle II, slip op. at 11-13, 18-20. It
explained that any attempt to exempt Postelle from the death
penalty by virtue of intellectual disability would have been
fruitless. See id. at 13. We take this to mean
counsel was wise to strategically omit the evidence, and-by
extension-such omission could not have prejudiced
Postelle's defense. See id. at 13. Postelle
therefore could not fault appellate counsel for
failing to raise a meritless claim of trial-counsel
ineffectiveness on appeal. Id. at 19.
Oklahoma legislature established its statutory framework for
implementing Atkins in 2006. See Okla.
Stat. tit. 21, § 701.10b (effective July 1, 2006). Four
years later, in Smith v. State, 245 P.3d 1233 (Okla.
Crim. App. 2010), the OCCA deemed Flynn Effect
evidence-"whatever its validity" -irrelevant to the
statute's IQ cutoff. Id. at 1237 n.6. The
defendant in Smith then sought federal habeas
relief, arguing the Oklahoma court's decision
contradicted Atkins. See Smith II, 824 F.3d
at 1242. The district court denied the petition, and we
affirmed. See id. at 1238. In so doing, we observed
"Atkins does not mandate an adjustment for the
Flynn Effect . . . and 'no decision of the Supreme Court
squarely addresses the issue.'" Id. at 1246
(quoting Hooks v. Workman (Victor Hooks
II), 689 F.3d 1148, 1170 (10th Cir. 2012) (brackets and
ellipses omitted)). Thus, Smith had no right to habeas relief
because Oklahoma's treatment of the Flynn Effect did not
contradict or unreasonably apply Supreme Court precedent.
the Supreme Court's more recent decision in Hall v.
Florida, 134 S.Ct. 1986 (2014), did not bear on our
analysis in Smith, see Lockyer v. Andrade,
538 U.S. 63, 71-72 (2003), we nevertheless explained that
Hall, like Atkins, "says nothing about
application of the Flynn Effect to IQ scores in evaluating a
defendant's intellectual disability." Smith
II, 824 F.3d at 1246. Hall deals only with the
standard error measurement-a feature of IQ testing already
accounted for in Oklahoma's statute. See id. at
light of our decision in Smith, Postelle's
eligibility-based argument cannot further his claim of
ineffective appellate counsel. Regardless of whether
Postelle's counsel could have predicted it, Smith's
experience clearly shows any attempt to pursue an
Atkins exemption through Flynn Effect evidence would
have failed. Indeed, the exact same argument failed in
Smith, and Postelle gives us no reason to believe
that his trial and appeal would have turned out any
differently. His claim therefore falls far short of the
requirements necessary to show prejudice under
Strickland. See, e.g., Grant v.
Royal, 886 F.3d 874, 905 (10th Cir. 2018).
Postelle's claim of ineffective appellate counsel cannot
draw support from his eligibility-based argument. Far from
contradicting or unreasonably applying Supreme Court
precedent, the OCCA rendered sound analysis to reach a
The Mitigation Argument
mitigation-based argument presents a more complex analysis.
In the end, however, it too fails to persuade us.
The State Court Adjudication
begin, the state-court adjudication of the
mitigation-based Flynn Effect argument differs
markedly from that of the eligibility-based
only mention of the Flynn Effect as mitigation
evidence in his state post-conviction briefing appears at the
tail end of his eligibility-based argument. There his
application states-without elaboration-that "even if
counsel had been unsuccessful in obtaining a pre-trial
finding that Mr. Postelle is [intellectually disabled],
counsel could have ...