Appeal from the United States District Court for the Western District of Oklahoma. (D.C. No. 5:07-CV-01290-D).
Madeline S. Cohen, Assistant Federal Public Defender, Office of the Federal Public Defender, Denver, Colorado (Virginia L. Grady, Federal Public Defender, Denver, Colorado, and Mark Barrett, Barrett Law Office, Norman, Oklahoma, with her on the briefs), for Petitioner-Appellant.
Jennifer L. Crabb, Assistant Attorney General (E. Scott Pruitt, Attorney General of Oklahoma, with her on the brief) Office of the Attorney General for the State of Oklahoma, Oklahoma City, Oklahoma, for Respondent-Appellee.
Before MATHESON, BACHARACH, and MORITZ, Circuit Judges.
MORITZ, Circuit Judge.
An Oklahoma jury convicted Julius Jones of felony murder and sentenced him to death for shooting and killing Paul Howell in the course of stealing Howell's Chevrolet Suburban. After the Oklahoma Court of Criminal Appeals (OCCA) rejected his direct appeal and application for post-conviction relief, Jones filed a federal habeas petition challenging his conviction and sentence on the basis of ineffective assistance of counsel. Specifically, he complained that his trial counsel made no effort to corroborate a lead that Christopher Jordan--Jones' co-defendant and the State's main witness at Jones' trial--admitted to shooting Howell and pinning the crime on Jones to avoid the death penalty. The district court denied Jones' petition and his request for a certificate of appealability (COA). We granted Jones a COA on this one ineffective-assistance-of-counsel issue. But because Jones fails to satisfy 28 U.S.C. § 2254(d), we cannot grant relief. Accordingly, we affirm.
In late July 1999, on returning from an evening of shopping for school supplies and eating ice cream with his two young daughters and sister, Howell was shot and killed in his parents' driveway while getting out of his Chevrolet Suburban. Howell's sister, Megan Tobey, heard a gunshot as she exited the passenger side of the vehicle. She turned to face her brother and saw a young black male standing beside the vehicle's open driver's side door. Tobey watched as the man--who wore a white T-shirt, a red bandana over his face, and a black stocking cap on his head--demanded that Howell give him the keys to the Suburban. Tobey could see " about a half an inch to an inch" of the man's hair between his stocking cap and " where his ear connect[ed] to his head." Trial Tr. Vol. 4, at 117:4-5, 16. But she didn't see braids or corn rows.
Tobey quickly pulled Howell's daughters out of the Suburban's back seat. As she ran with the children through her parents' carport she heard someone yelling at her to stop, followed by a second gunshot. Howell's parents ran outside and found their son lying in the driveway. His Suburban was gone. Howell died a few hours later from a single gunshot wound to the head.
Shortly after the shooting, Jordan arrived at Ladell King's apartment driving Jordan's 1972 Oldsmobile Cutlass. Jones arrived about 15 or 20 minutes later driving Howell's Suburban and wearing a white T-shirt, a red bandana, a stocking cap, and gloves. He warned King not to touch the Suburban and asked him to find someone to buy it. King's neighbor saw Jones and King checking out the Suburban that night.
The next day, Jones drove the Suburban from King's apartment to a convenience store parking lot on the south side of Oklahoma City near Kermit Lottie's auto body shop. King hoped to sell Lottie the Suburban, but Lottie refused to buy it. The convenience store's surveillance video from that day confirmed that both King and Jones briefly entered the convenience store. Oklahoma City detectives found the Suburban in the store's parking lot the next day.
Later that night--the night after the shooting--Jones and Jordan returned to see King, and Jones confessed to shooting Howell. Jones told King that as he walked up to Howell's Suburban, a young girl in the backseat waved at him, Howell's door opened, and the gun " went off." Trial Tr. Vol. 5 at 189-90.
When Oklahoma City police found Howell's Suburban they canvassed the area to determine who left it there. On a hunch, officers first visited Lottie's auto body shop, just four blocks from where officers found the vehicle. Lottie told detectives that King and at least one other person attempted to sell him Howell's stolen Suburban the day after the shooting. Because Lottie recognized the Suburban from news reports describing Howell's stolen vehicle, he refused to buy it. When police tracked down King later that day, he provided them with a phone number and address for Jones at Jones' parents' house.
Upon arriving at Jones' parents' house an officer called the phone number for Jones that King had provided, and Jones answered. The officer told Jones that the Oklahoma City Police Department had surrounded the house and wanted to talk to him about Howell's murder. Jones agreed to come out and talk, but instead left the house through a second-floor window, evaded officers attempting to secure the perimeter of the house, and fled.
Officers obtained warrants to search the house and arrest Jones. In Jones' bedroom, detectives discovered a white T-shirt with black trim and a black stocking cap--items that matched both Tobey's description of the shooter's clothing and King's description of Jones' clothing shortly after the shooting. Officers also found a chrome-plated Raven .25-caliber semiautomatic pistol wrapped in a red bandana and hidden in the attic space above the ceiling of the closet in Jones' room. And hidden behind the cover of the doorbell chime, officers discovered a loaded .25-caliber magazine belonging to the gun they had just found. The gun matched Jones' girlfriend's description of one she saw in Jones' possession during the summer of 1999. Both the bullet found lodged in Howell's head and the bullet shot into the Suburban's dashboard matched the bullets and the gun found in Jones' bedroom. They also matched bullets found in Jones' car.
Two days after the shooting, officers arrested Jordan. After an extensive citywide search, officers found and arrested Jones the following morning. The State of Oklahoma charged Jones and Jordan with first-degree felony murder and conspiring to commit a felony. The ...