from the United States District Court for the Northern
District of Oklahoma (D.C. No. 4:11-CV-00150-GKF-FHM)
D. Hird, Assistant Federal Public Defender (Emma V. Rolls,
Assistant Federal Public Defender, with him on the briefs),
Oklahoma City, Oklahoma, for Petitioner-Appellant.
Jennifer L. Crabb, Assistant Attorney General (Joshua L.
Lockett, Assistant Attorney General, and Mike Hunter,
Attorney General of Oklahoma, on the brief), Oklahoma City,
Oklahoma, for Respondent-Appellee.
BRISCOE, HARTZ, and PHILLIPS, Circuit Judges.
Rozell Goode, Jr., who was convicted of first-degree murder
and sentenced to death by the State of Oklahoma, appeals the
denial by the United States District Court for the Northern
District of Oklahoma of his application for relief under 28
U.S.C. § 2254. Goode's application raises two
claims: (1) a claim under Brady v. Maryland, 373
U.S. 83 (1963), that the State suppressed material
information about the corrupt conduct of Jeff Henderson, one
of its investigating officers, and (2) an
ineffective-assistance-of-counsel claim with numerous
subclaims. Because none of Goode's claims merits relief
under § 2254, we affirm the district court's denial
of the application.
strength of the evidence of Goode's guilt is important in
resolving several issues on appeal, in particular the
Brady issue. We therefore review that evidence in
the overnight hours of August 25-26, 2005, intruders entered
the home of Mitch Thompson and his wife Tara
Burchett-Thompson at 9707 North 112th East Avenue in Owasso,
Oklahoma. (For convenience we will refer to it as Tara's
home.) Tara's ten-year-old daughter Kayla, who lived with
her grandmother Brenda Smalygo at a separate address,
happened to be staying with her mother that night. All three
occupants were murdered. The crime was discovered about 9:00
a.m. on August 26, when Ms. Smalygo learned that Kayla was
not in school and came by the house to check on her. She
observed that the garage door was open, as was the door from
the garage into the house. She found Tara and Kayla
nonresponsive in the bedroom and called the police, who later
found Mitch's body in that room.
recovered from the crime scene and forensic examination
showed that the victims had been killed by shots from three
firearms-a .22, a 9mm, and a .357. Seven .357 casings and
seven 9mm casings were found at the crime scene. A .22
caliber projectile was found in a dresser drawer. In
addition, six projectiles were found in and under the bed.
The ballistics expert determined that at least three of those
projectiles came from the .357, and one came from the 9mm.
The origin of the other two projectiles could not be
was shot at close range once in the upper back and once in
the cheek. No bullets were recovered from his body, but one
of the .357 projectiles found under the bed was directly
beneath his head.
body had 10 gunshot wounds: three on the head, two on the
chest, one on the abdomen, two on the leg, one through the
arm, and one through the hand. The medical examiner observed
that five or six shots entered and fully exited her body.
Four bullets were recovered from Tara's body-one from her
head and three from her body cavity-all of which came from
the 9mm gun. One of the .357 projectiles was found beneath
was shot once in the head, once in the back, and three times
in the hip. Three bullets lodged near her hip were recovered;
one came from a .22, and two were from the 9mm. Kayla's
head wound was not attributed to a particular weapon, but
seven 9mm casings were found, and seven 9mm shots were
accounted for. And the wound was not of the distinctly
smaller sort attributable to a .22. Based on the above
evidence, the State theorized that shots from the .357 gun
caused the head wounds of all three victims.
neighbors testified for the prosecution at trial. James
Deeter said that at 12:12 a.m. on August 26 he took out his
garbage and noticed that the Thompsons' garage door was
open, but the interior door from the garage into the house
was "definitely closed." Trial Tr. Vol. III at 606.
He and his wife both described loud barking coming from the
side of their yard adjacent to Tara's home at about 12:45
a.m. Another neighbor was awakened close to that time but
could not state the cause.
possible motive for the murders was a feud involving Mitch.
On one side of the feud were Mitch and a family friend, J.R.
Hoffman, who usually spent the night at Tara's home or
the home of Mitch's parents. On the other side were
Mitch's sister Michelle Chastain; his cousin Ronald
Thompson (called "Bunny," because he was born on
Easter), who lived with Michelle; and Goode, who was
Michelle's boyfriend. At trial, Michelle and Bunny
testified to the events of the feud, with some corroboration
from others, including a statement by Goode to the police.
The gist of the events is not disputed and was endorsed in
the defense closing argument.
July 14, 2005, Goode gave J.R. money to run an errand for him
in Claremore, Oklahoma. J.R. borrowed Michelle's car for
the trip. He wrecked the car and was arrested for driving
under the influence. When they learned that J.R. was in jail,
Mitch's mother and Bunny bailed him out. Goode and Bunny
retrieved the car, which was badly damaged.
weeks later, Bunny and Goode confronted J.R. at the home of
Mitch's parents. Goode demanded that J.R. pay for the
damage to the car, J.R. refused, and Goode punched him in the
mouth. Goode and Bunny left and went to Michelle's house.
Goode's friend Damos "Peanut" Joseph came to
that house and gave Goode a handgun, which Goode tucked into
his pants. Meanwhile, Mitch's mother drove J.R. to
Tara's house because he was drunk and acting erratically.
that night, Michelle heard a knock at her door. She and Bunny
went to answer it and found Mitch accompanied by J.R. and
armed with a baseball bat. Mitch began attacking Bunny with
the bat. He was badly beating Bunny when Michelle called for
Goode, who emerged from a bedroom carrying a gun. Michelle
had never seen Goode with a gun before that night and did not
know where he obtained it.
ordered everyone outside. But Mitch continued to beat Bunny,
while J.R. pointed at Goode and yelled "I want this
motherfucker right here." Trial Tr. Vol. V at 1022.
About this time, Peanut joined the group in the yard. Goode
handed Peanut his gun and engaged in a fistfight with J.R,
which he won. An ambulance was called for Bunny, who suffered
a broken rib from the beating with a bat.
this incident, Mitch called the child-welfare division of the
Oklahoma Department of Human Services (DHS) to say that
Michelle had not reported the income of people living in her
home. DHS initiated an investigation and scheduled a home
visit. Mitch also called the dental office where Michelle
worked and said that she was involved with drugs, causing her
to be fired. He similarly attempted to get Goode fired from
his job as an aide at Brookhaven Hospital by reporting to the
hospital that he was selling drugs, but this effort was
Goode's trial, two witnesses gave accounts of the
murders. One, Bunny Thompson, confessed to participating in
the crime. On August 25 he reported to his usual job as a
cart puller at Walmart. Because his car was inoperable, he
was driven to work by his uncle, Mitch's father. Not long
before 10:00 p.m. his boss told him to leave the store, but
did not fire him, for taking Xanax at work. Bunny tried
calling Michelle to pick him up but could not reach her, so
he called Goode to get a ride home. Goode said he was already
coming to Walmart and could pick him up. He arrived at
Walmart with Kenneth "Fu Fu" Johnson in
Johnson's white four-door Mercury Marquis. The two men
did some shopping at the store and then connected with Bunny,
who had never met Johnson before.
got in the car with Goode and Johnson. He sat in the back,
Goode sat in the front passenger seat, and Johnson drove. As
they departed, Goode told Bunny they were going to "take
care of some business." Trial Tr. Vol. V at 909-10. He
gave Bunny a .22 gun and latex gloves. At trial Bunny first
described the gloves as "yellow ones, like the doctors
use" but then said they were clear. Trial Tr. Vol. V at
910. Johnson had a 9mm gun and Goode had a .357. Bunny put on
the latex gloves, and Johnson and Goode put on both latex
gloves and another set of gloves, which Bunny first described
as "[l]ike batting gloves" and then as
"painter gloves" that were "blue on the
outside." Trial Tr. Vol. V at 911-12. Bunny testified
that they then drove straight to Tara's home, though the
State said that the murders did not occur until later that
night. Bunny said that when he left Walmart with Goode and
Johnson, he took some ecstasy in Johnson's car, which,
combined with Xanax, muddled his recall.
the three men arrived at Tara's house, Bunny rang the
doorbell. Getting no response, he went through the open
garage door and kicked in the interior door to the house. He
went to the left, heading for the room where J.R. regularly
stayed. Goode and Johnson went to the right, to Mitch and
Tara's bedroom. Bunny heard gunshots coming from that
bedroom and went there, where he found Goode and Johnson
shooting. Johnson held his gun to Bunny's head and
demanded that he start shooting or he would "be
next." Trial Tr. Vol. V at 917-18. Bunny fired three or
four shots into the wall over the bed. He admitted that he
"might have shot" Kayla in the hip as he
"raised up the gun." Trial Tr. Vol. V at 923. Bunny
then ran out of the home, with Goode and Johnson behind him.
three headed to the home of "Peanut" Joseph. While
driving there on Highway 169, they threw their gloves out the
car windows. Upon arriving at Peanut's, Goode told Bunny
to "get rid of the bullets" from his gun. Trial Tr.
Vol. V at 925. Bunny gave his gun to Goode and then tossed
what he said were the bullets "outside in a field."
Trial Tr. Vol. V at 925. (It is possible that Bunny was
referring to the casings, not the bullets themselves. The .22
was the only gun used in the murders to retain its casings;
the other two firearms were automatic weapons, so their
casings were automatically discharged upon firing.)
that morning, Bunny awoke at Michelle's house, where
someone picked him up and took him to his sister's home.
The next day, August 27, Bunny confessed to his sister
"what all happened," and she drove him to the
police station. Trial Tr. Vol. V at 929.
interview with the police, Bunny at first denied involvement
in the shootings. Although he admitted that he got in the car
with Goode and Johnson, he said that after they pulled into
Tara's neighborhood and showed him the gloves and guns,
he got out of the car but did not enter Tara's home. Then
he admitted entering Tara's home but claimed he did not
have a gun. He initially said that Johnson kicked in the door
to the home, but then admitted that he was the one who had
done so. He then modified his account once again, admitting
to using a .22 caliber gun to fire shots into a wall at the
home. And when officers told Bunny that a .22 bullet was
recovered from Kayla's hip, he admitted that one of his
shots might have hit her. In exchange for Bunny's
testimony, the State withdrew the death penalty in his case.
other account of the murders came from Michelle Chastain, who
described two occasions on which Goode confessed to the
murders. Goode woke her up at her home at 4:18 a.m. on August
26. He rubbed her face and then went to the other side of the
bed. Michelle told him she had called and left messages on
his phone several times that evening and accused him of being
with another woman. They argued until Goode shouted out,
"I just shot your fucking brother, is that what you
wanted to hear?" Trial Tr. Vol. V at 1043.
did not take his statement about her brother seriously
because Goode immediately changed the subject, talking about
jerseys that his "cousin" Fu Fu (Johnson) had given
him. About this time, Michelle heard the microwave in the
kitchen and assumed it was Bunny. But Goode explained that it
was Johnson, who then came to the bedroom. Michelle got out
of bed and Goode introduced Johnson to her as his cousin.
Michelle had never met Johnson before that night. Johnson
asked Michelle to get Bunny's stuff out of his car. She
followed Goode and Johnson outside and saw a four-door
vehicle, which she had never seen until that night, parked
curbside with Bunny lying beside it unconscious. She took
Bunny's bag out of the backseat of the car and helped
take Bunny to the guest room, where he often stayed.
before 6:00 a.m., Johnson left, followed shortly thereafter
by Goode. Before he left, Goode told Michelle to watch the
news. Michelle did not know how Goode got home; she did not
recall seeing Goode's truck outside her house, but said
it was possible the truck was there. Later that morning,
Goode, his friend Peanut, and another man came to
Michelle's to help clean up her home for the DHS
inspection scheduled for that day. Goode then left to visit
his brother in prison.
learned of the murders the early afternoon of August 26 when
Detective Jeff Felton and a police chaplain came to her home.
Until then she had not known that anyone had actually been
killed. She soon learned that her father had suffered a heart
attack upon hearing of the murders, and she went to the
hospital to be with him. While there, she spoke with
Detective Felton and Officer Mike Denton. During this time,
Goode called her to say she was "making him
nervous." Trial Tr. Vol. V at 1059. She said nothing to
the police implicating Goode.
again spoke with Goode in the early morning hours of August
27. After he threatened to come to the hospital, she agreed
to meet him at a Denny's restaurant instead. At
Denny's, Goode told Michelle that her brother was a
"punk and a coward" and further described the
murders. Trial Tr. Vol. V at 1061. Goode told Michelle that
on the night of the murders he, Johnson, and Bunny went to
Tara's home and waited outside for the occupants to fall
asleep. The garage door had been left open. When they decided
to go in, Bunny kicked in the door from the garage to the
house, leaving a footprint. Bunny was supposed to go to
J.R.'s room, but instead came up behind Goode and Johnson
and shot Kayla. As they were leaving the home, Goode heard
something move. He turned on the lights and saw Mitch-who had
previously been shot-trying to crawl away. Goode went over to
Mitch and demanded that he look him in the eye, but he did
not do so. He told Mitch that he should have "never
snitched" on him and he should "die like a
bitch." Trial Tr. Vol. V at 1062. He then shot Mitch
again. Goode claimed that he shot Mitch eight times and that
Johnson shot Tara. He and Johnson would have shot Bunny, but
he took off running. Goode had a shotgun and Bunny had a .22.
gave two recorded statements to the police. On August 27 the
police asked to speak with her, and she came to the police
department. She was first interviewed by Detective Sonya
DeArmond, who was essentially stalling for time until Officer
Denton-who had been at the crime scene and was thus familiar
with the case- returned to the police department from another
assignment. DeArmond asked Michelle about the baseball-bat
incident, and she said that Goode did not have a gun during
that encounter. She did not tell DeArmond about Goode's
confession or his involvement in the murders, or that she had
seen Goode during the early morning hours of August 26.
Denton continued the interview once he arrived at the police
the audio quality of the August 27 interview was poor, Denton
interviewed Michelle again on August 30. (Denton did not
testify about what Michelle told him on August 27.) At this
interview-which occurred after Goode had been
arrested-Michelle told Denton of Goode's confession to
her. At trial the defense pointed to several inconsistencies
between what she said at her August 30 interview and her
trial testimony. In the interview, for instance, Michelle
said that she first saw Bunny on August 26 when she woke up
in the later morning hours, not when she went outside to
Johnson's car. Also, she said that Goode confessed to her
at her home, and they went to Denny's only after his
confession. On the other hand, there is one indication that
she was not distorting her account of the confession to fit
what she later learned about the crimes: during the interview
she expressed surprise at Goode's claim that he had shot
Mitch eight times, because she had seen on the news that it
was Tara, and not Mitch, who had been shot multiple times.
accounts of the murders given by Michelle and Bunny were
corroborated by a variety of other evidence at trial. To
begin with, a Walmart security video showed Goode, Johnson,
and Bunny leaving the store where Bunny worked at about 10:00
p.m. on the night of August 25. They departed in a white
four-door vehicle that looked like Johnson's Mercury
supportive were records of Goode's cell-phone activity,
which were obtained by an investigator for the defense at
least five months after the murders and introduced by the
defense at trial. They showed very frequent calls throughout
August 25, but no activity from 11:48 p.m. to 1:03 a.m. The
call at 1:03 a.m. was placed to the phone of Damos
"Peanut" Joseph, who, according to Bunny's
statement to the police a few days after the murders, was the
person with whom the murder weapons were left promptly after
William Mozingo, who investigated the murders, provided
corroboration on three points. Two involved the crime scene.
He testified that officers found a partial footprint on the
door from the garage into Tara's house, corroborating
Bunny's testimony and Goode's confession to Michelle
that Bunny kicked in the door to the home. And he said that
he observed two small holes in the wall in the Thompsons'
bedroom, supporting Bunny's account that he shot the .22
into the bedroom wall.
third item of corroborating evidence related to the gloves
mentioned by Bunny. On August 30 officers searched a
four-mile stretch of Highway 169 for "[a] latex glove
and blue knobby work glove." Trial Tr. Vol. VI at 1263.
In a grassy area near an offramp from the highway, Mozingo
found a "blue and white work glove," a "latex
glove," and a "blue and white work glove encased in
a latex glove," supporting Bunny's account that
these types of gloves were worn the night of the murders and
were thrown out the car window as they left for Peanut's
house. Trial Tr. Vol. VI at 1264, 1266-67. Other
officers found a portion of a latex glove on the front floor
mat of Johnson's Mercury Marquis, and a box of latex
gloves in the bed of Goode's truck under a locked
cover. Goode had access to latex gloves as part
of his job with Brookhaven Hospital.
corroborating Bunny's account was the testimony of
Officer Jeff Henderson. (Goode's Brady claim
concerns impeachment of this testimony.) He said that on
August 29 he went with other officers to Peanut Joseph's
home because of information received from Bunny. He found two
.22 casings and one live .22 round in the vacant lot across
from Peanut's home.
evidence partially corroborated Michelle's account of how
Goode described his role in the murders. First, a shot was
fired through Mitch's cheek at close range, which fit
with Michelle's testimony that Goode said he hovered over
Mitch and demanded that he look him in the eye as he shot
him. Also, seven .357 casings were found at the crime scene,
nearly matching Goode's statement to Michelle that he
fired his gun eight times (although Michelle reported that
Goode told her he had used a shotgun, not a .357). Finally,
Goode told Michelle that Johnson shot Tara, and four bullets
from the 9mm-the gun Bunny said was used by Johnson-were
found in her body.
addition, a defense witness, Penny Avans, supported the
State's theory of the case in important respects. Penny,
a friend of Goode and Michelle, was called to testify that
Michelle had told her she wanted to kill Mitch after he got
her fired and called child services, and that she had heard
Michelle tell Bunny where Mitch kept a gun in his
home. But her account of what happened the night
of the murders is generally consistent with the other
descriptions. She stated that she was at Michelle's home
the evening of August 25, that Goode left around 6:00 or 6:30
p.m., saying that he was going to "take care of some
business," Trial Tr. Vol VII at 1497-98, and that when
she left Michelle's near 12:10 a.m., Goode had not
returned. She also said that Michelle called her at 3:18 a.m.
and told her that she should come over because Goode had
brought a good-looking guy named Fu Fu (Johnson) to her home.
(Michelle, however, denied making that call.) And Penny said
that she went to Michelle's house later that morning to
pick up Bunny. When asked whether she thought of Bunny as
someone who is easily led by others, she said she did.
did not testify but he gave a statement to police the
afternoon of August 28, less than three days after the
murders. Detective Mozingo, who interviewed Goode, testified
to the content of his statement. Goode admitted that he and
Johnson picked up Bunny from Walmart on the night of August
25 in Johnson's white vehicle. He referred to Johnson as
his cousin and said that though they were not actually
related they had grown up together. Goode's mother, whom
Goode lived with, lived across the street from Johnson's
grandmother. Goode said that he and Johnson were reconnecting
on the night of the murders after not seeing each other for a
year or two.
at first told police that after he and Johnson picked up
Bunny from Walmart, Bunny asked to be dropped off in Mannford
(a community about 38 miles away) at the home of a woman who
was either his girlfriend or his wife (Goode was unsure who
exactly the person was). Johnson drove, and Bunny provided
directions. He and Johnson dropped Bunny off (he did not
specify where), and Johnson then drove Goode home, where the
two conversed. Goode said that he needed to go home because
he and his mother were going to visit his brother in prison
the next day.
break in the interview, however, Goode changed his story.
Explaining that he now remembered what had occurred less than
three days before, he claimed that after he and Johnson
picked up Bunny from Walmart, Johnson dropped Goode at his
truck, and Goode drove home. Johnson then took Bunny-whom he
had met for the first time that night-to Michelle's
house. Back at home, Goode later received a call from Johnson
telling him that there was something wrong with Bunny, and
Goode then met Bunny and Johnson at Michelle's. When
Goode arrived, Bunny "was fucked up," so he pulled
Bunny out of Johnson's car and attempted to bring him
into the home. Trial Tr. Vol. VI at 1284.
to Mozingo, Goode "stated that he couldn't see Bunny
doing anything like [the murders] . . . . [H]e said something
to the effect of he don't have it in him or he don't
- doesn't have the heart for it." Trial Tr. Vol. VI
was asked whether he knew Peanut (the person with whom Bunny
said the trio stashed their weapons after the murders). He
responded that he "kn[ew] a lot of Peanuts." Trial
Tr. Vol. VI at 1284. Also, Goode admitted that J.R. had
wrecked Michelle's car, that he had previously been
involved in a fistfight with J.R., and that Mitch had
attempted to get him fired from his job and had successfully
gotten Michelle fired.
called two alibi witnesses, but neither could account for his
whereabouts after midnight on August 25. Goode's mother
saw him at home before 8:00 p.m. on August 25 but knew
nothing of his whereabouts thereafter. She said that she had
planned to go with Goode to visit his brother in prison early
the next morning but admitted that they left for the visit
later than expected because she was waiting on Goode.
Gilyard-the partner of Goode's imprisoned brother who
lived with Goode's mother-testified that she saw Goode at
his home the night of the murders. He left at 8:00 p.m., but
then returned about 11:00 p.m. They conversed for a short
time before she went to shower and get ready for bed. When
she got out of the shower, she heard Goode rummaging through
his things in another room. She did not see or hear from
Goode the rest of the night. Neither ...