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Postelle v. Carpenter

United States Court of Appeals, Tenth Circuit

August 27, 2018

GILBERT RAY POSTELLE, Petitioner - Appellant,
MIKE CARPENTER [*], Interim Warden, Oklahoma State Penitentiary, Respondent - Appellee.


          Robert 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 Appellant.

          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.

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

          TYMKOVICH, Chief Judge.

         An 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.

         After 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.

         For the reasons given below, we affirm denial of the writ and decline to extend the scope of our review.

         I. Background

         We base 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.

         The 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.

         The day 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 pay.'" Id.

         That 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.

         As they 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.

         Oklahoma 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.

         Postelle 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, 18-20.

         Finally, 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.

         II. Analysis

         Postelle 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.

         In 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.[1]

         A. Ineffective Assistance of Counsel

         The 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.

         Postelle 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.

         1. The Flynn Effect

         We start with a short explanation of the Flynn Effect-an aspect of IQ testing upon which Postelle's petition heavily relies.

         The 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 414.

         But in 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).

         Academic 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.[2] 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.[3]

         2. Ramifications for Capital Punishment

         Two lines of death penalty jurisprudence connect the Flynn Effect to this case.

         The 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.[4] 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.

         In 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)).

         Flynn 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.

         3. Postelle's Claims

         Postelle adopts both of these potential uses in his claims of ineffective assistance.

         First, 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.

         The 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).

         Postelle 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.[5] 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.

         Second, 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.

         For the reasons stated below, however, neither argument justifies habeas relief.

         4. The Eligibility Argument

         The OCCA's handling of Postelle's eligibility-based argument certainly warrants AEDPA deference.

         The 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.

         The 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. Id.

         Though 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 1245-46.

         In 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).

         Accordingly, 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 permissible result.

         5. The Mitigation Argument

         Postelle's mitigation-based argument presents a more complex analysis. In the end, however, it too fails to persuade us.

         a. The State Court Adjudication

         To begin, the state-court adjudication of the mitigation-based Flynn Effect argument differs markedly from that of the eligibility-based argument.

         Postelle's 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 ...

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