United States Tenth Circuit

In habeas proceedings brought by a state prisoner convicted of first degree child abuse murder and sentenced to death, denial of habeas relief is affirmed over claims of error regarding whether: 1) the conviction for capital murder, based on a divided jury verdict as to whether he was guilty of "committing" the child abuse that led to the child's death, or of "permitting" such abuse, violated due process; 2) the imposition of the death penalty violates his Eighth Amendment rights due to the lack of certain unanimous jury findings; 3) the death sentence was disproportionate to his offense; 4) there was an Ex Post Facto violation; 5) his constitutional rights were violated by the trial court's refusal to provide instructions on lesser included offenses; 6) a refusal to allow testimony from defense expert witness violated his constitutional rights; and 7) trial counsel was ineffective for failure to present evidence of petitioner's brain damage.

Appellate Information

• Decided 04/02/2008
• Published 04/03/2008

Judges

• BRISCOE, Circuit Judge., Before HENRY, Chief Circuit Judge, TACHA and BRISCOE, Circuit Judges.

Court

• United States Tenth Circuit

Counsel

• For Appellant:
  
• Timothy R. Payne, Assistant Federal Public Defender (James A. Drummond, Federal Public Defender, and Mariatu Kargbo, Research and Writing Specialist, with him on the briefs) Death Penalty Federal Habeas Corpus Division, Office of Federal Public Defender, Oklahoma City, OK, for Petitioner-Appellant.


• For Appellees:
  
• Preston Saul Draper, Assistant Attorney General (W.A. Drew Edmondson, Attorney General of Oklahoma, with him on the brief), Oklahoma City, OK, for Respondent-Appellee.