United States Tenth Circuit

In a capital habeas matter, a denial of petitioner's habeas petition is affirmed where: 1) the state's allegation of future dangerousness was not based on state-sponsored psychiatric evidence, but rather on petitioner's history of violent criminal conduct, including his role in the murder at issue, and thus he was not entitled to a psychiatric examination under Ake; 2) the heinous, atrocious or cruel aggravating factor was based not upon petitioner's state of mind, but rather the brutal manner in which the victim was killed; 3) the jury could clearly have inferred, based upon its viewing of (and listening to) the surveillance tape of the murder, that petitioner was well aware that a murder was going to occur and may well have directly participated in beating the victim; and 4) petitioner failed to identify what other action his trial counsel could or should have taken to obtain a court-ordered neuropsychological examination.

Appellate Information

• Decided 02/16/2010
• Published 02/16/2010

Judges

• BRISCOE, Circuit Judge., Before KELLY, BRISCOE, and TYMKOVICH, Circuit Judges.

Court

• United States Tenth Circuit

Counsel

• For Appellant:
  
• Robert W. Jackson, (Steven M. Presson with him on the briefs), Presson Law Office, Norman, OK, for Petitioner-Appellant.


• For Appellees:
  
• Jennifer B. Miller, Assistant Attorney General (W.A. Drew Edmondson, Attorney General of Oklahoma, with her on the brief), Oklahoma City, OK, for Respondent-Appellee.