Texas man executed for killing during 2002 hold up- Quintanilla EXECUTED 7:32pm

July 16, 2013

Texas Execution

John Manuel Quintanilla received lethal injection for gunning down 60-year-old Victor Billings at a game room in Victoria, about 125 miles southwest of Houston. The 2002 slaying came just a few months after Quintanilla had been released from prison after serving a sentence for several burglary convictions.

Asked to make a final statement before his execution, Quintanilla told his wife he loved her.

“Thank you for all the years of happiness,” he said.

He never acknowledged his victim’s friends or relatives, including two daughters, who watched through a window.

As the lethal drug began taking effect, he snored about a half dozen times, then stopped breathing. At 7:32 p.m. CDT — 15 minutes after being given the drug — he was pronounced dead.

Quintanilla’s wife, a German national who married him by proxy while he was in prison, watched through an adjacent window and sobbed.

Quintanilla, 36, became the ninth Texas inmate to receive lethal injection this year and the 501st since the state resumed carrying out capital punishment in 1982. His was the first of two executions set for this week; the other is planned for Thursday.

Quintanilla’s punishment was carried out after the U.S. Supreme Court refused two last-day appeals.

His lawyers contended his confession was coerced by authorities threatening to also charge one of his sisters and that the statement improperly was allowed into evidence at his trial in 2004. The lawyers obtained affidavits from two jurors who said the confession was a key to their decision to convict him.

“It is clear that Quintanilla would not have been convicted of capital murder if his confession had not been admitted — a fact confirmed by two of his jurors,” appeals lawyer David Dow told the high court.

The appeal also argued Quintanilla had deficient legal help during his trial and in earlier stages of his appeals, and that his case would give justices the opportunity to define filing rules in light of recent death penalty rulings from the court.

The Texas attorney general’s office said the appeal was without merit and improperly filed, and that the juror affidavits also were improper.

“There wasn’t any coercion whatsoever,” Dexter Eaves, the former Victoria County district attorney who was lead prosecutor at the trial, recalled last week. He also said that while the robbers, who fled with about $2,000, were masked, witnesses were able to “describe very clearly who the triggerman was.”

Court records show Billings, a retired chief deputy from nearby Edna in adjacent Jackson County, was at the game center with his wife on the Sunday before Thanksgiving in 2002 when the gunmen came in through a back door. Billings approached one of them and grabbed the barrel of the gunman’s rifle “so no one else was going to be hurt and paid for it dearly,” Eaves said.

He said Billings was shot three times, the last one fired while he was on his knees.

“A very cold killing,” Eaves said.

During questioning by detectives for an unrelated robbery some two months later, Quintanilla made references to the still unsolved Billings case, then led authorities to a canal where divers recovered items used in the holdup.

“They had the mask, the guns and his statements saying who did what,” Jim Beeler, Quintanilla’s lead trial lawyer, said. “He told them everything.”

Beeler said the trial judge overruled his objections and ruled the statements proper and admissible into evidence. He also said Quintanilla signed affidavits ordering that his defense team present no mitigating evidence during the punishment phase of his trial, where jurors deciding his sentence could have considered he had virtually no parental supervision while growing up.

“You want to argue your case, completely and totally,” Beeler said. “In that situation, we’re not being allowed to present our case, based on our client.

“It’s extremely frustrating.”

Prosecutors bolstered their case for Quintanilla’s future dangerousness by presenting evidence he attacked a jailer with a homemade weapon while awaiting trial.

“He did not do himself any favors,” Eaves said.

Quintanilla’s accomplice, Jeffrey Bibb, 33, is serving 60 years for murder and 50 years for aggravated robbery.

On Thursday, another Texas inmate is set for lethal injection. Vaughn Ross, 41, is to be executed for a double slaying in Lubbock in 2001.



July 11, 2012

On July 10, Ohio Governor John Kasich (pictured) granted clemency to death row inmate John Eley, who was scheduled to be executed on July 26.  Eley’s sentence was reduced to life in prison without parole. The governor said he based his decision on evidence that Eley acted under the direction of another person, and that his mental capacity was limited, saying, “Without those factors it is doubtful that Eley would have committed this crime.” The prosecutor in the case and one of the judges who sentenced Eley to death called for mercy. The Ohio Parole Board voted 5-3 against recommending clemency.  Those who voted for clemency said that Eley’s crime was not one of the “worst of the worst,” and that similar crimes rarely receive death sentences. This is the third death-row clemency granted by Gov. Kasich, including two issued in 2

The Ohio Supreme Court summarized the facts of the case as follows:

During the early afternoon of August 26, 1986, Eley was visiting Melvin Green at the home of Green’s girlfriend in Youngstown. Accordingto Eley, he and Green were just sitting around when Green suggested that they go down to the “Arab store.” Eley and Green left the house and proceeded down a path through the woods leading to the Sinjil Market.
Along the way, Green showed Eley a “Black Snub nose gun,” and told Eley he “was going to take the Arab off.” Since the proprietor of the store, Ihsan Aydah, knew Green’s face, Eley agreed to go in alone and rob the store while Green waited outside.
Eley entered the store and told Aydah to put his hands up and to turn and face the wall. Green had told Eley that Aydah had a gun under the store counter, so when Aydah lowered his hands and went under the counter, Eley fired a shot. Eley claimed that he aimed at Aydah’s shoulder. However, the shot hit Aydah on the right side of his head, approximately four inches above the earlobe. Aydah died the next day of shock and hemorrhage due to a gunshot wound to the head.Just before Eley fired the gun, Green entered the store. After the shot, Green ran behind the counter and got into the cash register. He took Aydah’s wallet while Aydah lay wounded on the floor. As the two left the store, Green gave Eley a brown paper bag with the money and wallet. According to Eley, they went up the street, “got to the path and run up the woods.”. . .

Several days after the murder, Eley was arrested by Youngstown police at the residence of his cousin’s girlfriend, Carlotta Skinner. After his arrest, Eley told police that he and Green had split the money taken in the robbery, which was around $700. However, Eley later gave the money back to Green “because he said it was all on him and he had to get out.”
. . .
[After being arrested, i]n his voluntary statement Eley admitted that he and Green had robbed the Sinjil Market, and that he shot Aydah. [The arresting officer] testified that Eley did not appear to be under the influence of alcohol or drugs during the interview and was “very calm” and “passive.” The grand jury indicted Eley on one count of aggravated murder
with a specification that the murder was committed during, or immediately after, the commission of an aggravated robbery
According to an affidavit of trial counsel, before trial Eley refused to accept various plea offers that were conditioned on Eley’s testimony against Green, including an offer of a voluntary manslaughter charge with a six-year sentence. that Eley was the principal offender. This count also carried a firearm specification. In addition, Eley was indicted on one count of aggravated robbery (R.C. 2911.01[A][1] and [2]) and one count of conspiracy (R.C.2923.01[A]). Each count carried a firearm specification.
In May 1987, Eley waived his right to a jury trial and opted for a trial before a three-judge panel. Eley pled not guilty to the charges against him, there by withdrawing a prior plea of not guilty by reason of insanity. . . .
Trial was held before a three-judge panel on May 11–12, 1987, but the defense chose not to present any evidence. The panel found Eleyguilty of aggravated murder, aggravated robbery, the felony-murder capital specification, and two of the three firearm specifications, but no guilty of conspiracy. During the mitigation hearing, several family members testified
on Eley’s behalf. Eley’s mother, Cecilia Joseph, divorced Eley’s father when Eley was seven or eight years old, and stated that Eley had “not much” of a relationship with his father. Joseph testified that on Christmas night 1964, her second husband had been drinking and began choking her and her daughter. At that time, Eley stabbed the second husband with a knife in order to stop him. Joseph testified that Eley dropped out of high school in the ninth grade, but later entered the Job Corps and learned to be a welder. Eley sent money home to his mother during this time, and gave her money to help her finish paying for nursing school. Joseph stated that while Eley has had problems with drugs and alcohol, he is a better person when he is not under the influence. She characterized Eley as “church oriented,” and believed he had been “born again.”
Eley’s sister, Susan Laury, testified that Eley had helped the family financially while he was in the Job Corps, and that Eley is normally a “quiet, sweet, gentle person that wouldn’t hurt anybody.”Dr. Douglas Darnall, a clinical psychologist, found Eley to be of borderline intelligence, and ranked him in the twelfth percentile on theWechsler Adult Intelligence Test. According to Darnall, Eley has a history of chronic alcohol and polysubstance abuse, but exhibited “no evidence of psychosis or major defective disorder.” In addition, Darnall testified that Eley understands the difference between right and wrong. Darnall found Eley to be remorseful, but Eley never mentioned that he felt remorse for the victim. However, two police officers who witnessed Eley’s confession testified that Eley was remorseful before he made that statement. Eley made a short unsworn statement at the mitigation phase that consisted of several biblical quotations from the Book of Romans.

After deliberation, the panel unanimously found that the aggravating circumstance outweighed the mitigating factors beyond a reasonable doubt, and sentenced Eley to death. Upon appeal, the courtof appeals affirmed the convictions and sentence of death.

TEXAS – East Texas man on death row loses federal appeal – Richard Cobb

May 28, 2012 Source

HOUSTON – A man on death row for an East Texas robbery a decade ago where three people were shot, one fatally, has lost a federal court appeal. The decision moves 28-year-old Richard Cobb a step closer to execution.

Cobb argued to the 5th U.S. Circuit Court of Appeals that letters from a jailhouse informant to Cherokee County prosecutors improperly were withheld as evidence in Cobb’s trial.

The informant also testified against Cobb at his capital murder trial for killing 37-year-old Kenneth Vandever during the robbery of a store in Rusk in 2002 and abducting, shooting and wounding two female clerks. The New Orleans-based appeals court ruled late Friday the letters were immaterial in the trial outcome.

Cobb’s companion in the robbery, Beunka Adams, was executed last month.

TEXAS – Man gets death penalty in break-in deaths – Roderick Harris

May 21, 2012 Source :

DALLAS (AP) — A jury has decided a man should get the death penalty for capital murder in the fatal shootings of two brothers during a March 2009 Dallas home-invasion robbery.

A Dallas County jury reached its decision Monday afternoon on Roderick Harris after deliberating since last week. The same jury on May 10 found Harris guilty of capital murder in the deaths of Alfredo and Carlos Gallardo (gah-HAHR’-doh).

Witnesses said Harris entered the Gallardos’ home and confronted six family members inside, demanding wallets and valuables. When the robber tried to force the family into a walk-in closet, the brothers tried to defend the family and were shot.

Harris was shot and wounded by police after shooting at officers.

TEXAS – Roberts loses appeal in Lake Livingston Death

May 16, 2012 Source :

HOUSTON (AP) — A man sent to death row for the slaying of an East Texas woman nearly nine years ago has lost a federal court appeal, moving him a step closer to execution.

Forty-one-year-old Donnie Lee Roberts Jr. was condemned for robbing and shooting his girlfriend,Vicki Bowen, at her home on Lake Livingston in Polk County. Evidence showed Roberts, who previously served prison time in Louisiana for armed robbery, traded a gun stolen from the home for cocaine.

Roberts contended his trial judge improperly refused testimony from an expert witness about his alcohol and drug use, that his trial legal help was deficient and that his trial judge refused testimony from one of his relatives during punishment.

The 5th U.S. Circuit Court of Appeals late Tuesday rejected each of his claims.

TULSA – Michael Selsor – execution – may 1, 2012 EXECUTED

File 60516


On September 15, 1975, a U-Tote-M store in Tulsa, Oklahoma, was robbed. One of the store employees, Clayton Chandler, was shot to death and the other, Ina Morris, was shot and wounded. Selsor and Dodson were arrested for the robbery and shootings. Selsor was charged in state court with robbery with firearms in violation of 21 O.S.Supp.1973, § 801; shooting with intent to kill in violation of 21 O.S.1971, § 652; and murder in the first degree in violation of 21 O.S.Supp.1973, § 701.1. Dodson was charged with robbery with firearms, after former conviction of a felony in violation of 21 O.S.Supp.1973, § 801; shooting with intent to kill, after former conviction of a felony in violation of 21 O.S.1971, § 652; and murder in the first degree in violation of 21 O.S.Supp.1973, § 701.1. Selsor and Dodson were tried together and were both jointly represented by the same two public defenders from the same office. One attorney conducted both defenses while the other attorney supervised that attorney. Selsor v. Kaiser, 22 F.3d 1029, 1031 (10th Cir.1994) (Selsor I ).

At trial Ina Morris, the U-Tote-M employee wounded in the robbery, testified about the ordeal. She stated that she had gone into the store’s walk-in cooler, and that while in there “[a] man walked up to the first window [of the cooler] and opened it up and looked at me.” State Tr. at 183. She said the man then walked around to the big walk-in door and pointed a revolver at her. Id. at 184, 186. He told her to get on her knees on the floor. Id. at 186. She testified that she “just looked at him” because she “couldn’t believe it.” Id. She said to the gunman “You’ve got to be kidding.” Id. The gunman then fired a shot at her, hitting her in the right shoulder. State Tr. at 187. She got down on her knees. The gunman told her that if she looked up he would kill her. Id. at 188. Three to five minutes later Morris raised her head and saw the gunman standing outside the window, holding both hands on the gun. Id. at 190-91. She then saw him pull the trigger and heard the bullets hit the window. She ducked. Id. at 191. She heard more than two bullets fired. Her body went numb. Id. at 192. She lay down and lost consciousness. She was wounded in her right shoulder, on the right side of the back of her head, on top of her head, underneath her jaw, in her back and in her neck. Id. at 199. Two bullets were left in her neck. Id. Morris regained consciousness approximately five to seven minutes later. State Tr. at 193. She walked north in the cooler and looked out to see Clayton Chandler lying on the floor of the U-Tote-M. Id. at 194. Mr. Chandler died as a result of his injuries.

Morris identified Dodson as the man who shot her. Id. at 204. She gave no testimony about seeing any assailant other than Dodson, nor did she testify that she heard any shots other than those from Dodson. She did state, however, that the door to the walk-in cooler was closed and that she heard the cooler fan, a noise she described as “[v]ery loud.” Id. at 189.

Ms. Morris was the only eyewitness to the crime and her testimony did not implicate Selsor. The evidence against Selsor instead was based on his and Dodson’s confessions as presented through the testimony of two police officers, Officer Evans, a major crimes investigator for the Santa Barbara, California Police Department, and Officer Roberts of the Tulsa Police Department.

Officer Evans testified that on September 22, 1975, he and a Sergeant Williams interviewed Dodson at the Santa Barbara Police Department. State Tr. at 238. Officer Evans testified that

[Dodson] stated that he and Mr. Selsor were driving a green ’67 Pontiac…. He stated that they had been together in this car on the evening of September 15th around 11:00 P.M. and had passed by this U-TOTE-M store which he thought was located at 66th and 33rd, in that vicinity. He stated that both of them were in the car as they passed by this store a couple of times and Mr. Dodson stated that he noticed that the traffic was light around the store and the outlying area and that there was a light fog or something. He then stated that they both were armed.


Q And, what did he say in that regard?

A Mr. Dodson was armed with a nine shot .22 caliber revolver, black and silver and Mr. Selsor was armed with a .22 automatic Lugger Blackhawk.

Q Now, did he say anything in regard to any plan concerning this matter on 33rd West Avenue other than what you have thus far related?

A Yes, he did.

Q What did he say in that regard?

A He stated that prior to entering the store in a conversation with Mr. Selsor there was discussion of taking these people out.


Q Did he ever indicate in the conversation what he meant by taking them out?

A Later in the conversation it was shown that taking them out meant killing them.

Q And, when you use the expression, taking these people out, did you know at the time he told you this who he had reference to?

A By name or incident?

Q Well, by perhaps position with the store?

A Yes, meaning the proprietors of the store.


In January 1976, in the state district court for Tulsa County, Oklahoma, Petitioner and Richard Dodson, a codefendant, were tried jointly on charges of murder in the first degree–i.e., a homicide perpetrated in the commission of an armed robbery (felony murder), the underlying felony of armed robbery, and shooting with an intent to kill. Petitioner and Dodson were represented by the same counsel. Petitioner was convicted on all three counts and was sentenced to death on the murder charge, twenty-five years imprisonment on the armed robbery conviction, and twenty years imprisonment on the shooting with intent to kill charge. Dodson was acquitted on the murder charge, but convicted on the other two charges.

Petitioner’s convictions were affirmed on direct appeal by the Oklahoma Court of Criminal Appeals, although the court modified Petitioner’s death sentence on the murder charge to life imprisonment, holding that Oklahoma’s death penalty statute was unconstitutional. See Selsor v. State, 562 P.2d 926 (Okla.Crim.App.1977). In his direct appeal, Petitioner alleged, inter alia, that the trial court erred in failing to either grant a severance of his trial from Dodson’s trial or appoint separate counsel. Petitioner did not raise a double jeopardy issue in his direct appeal.

In November 1978, Petitioner filed an application for post-conviction relief, Okla.Stat.Ann. tit. 22, Sec. 1080 (West 1986), in the state district court in Tulsa, Oklahoma. In that application the only issue Petitioner raised was that he had been denied his Sixth Amendment right to effective assistance of counsel because the trial court refused to sever the trials or appoint separate counsel for Petitioner and Dodson. Petitioner did not raise a double jeopardy issue in this post-conviction application. The state district court denied Petitioner’s application in February 1980, and the denial was later affirmed by the Oklahoma Court of Criminal Appeals in an unpublished order.

In July 1989, Petitioner filed a second application for post-conviction relief in the state district court in Tulsa, Oklahoma, alleging for the first time that he had been punished in violation of the Double Jeopardy Clause of the Fifth Amendment when he was convicted and sentenced for both the charge of felony murder and the underlying felony of armed robbery. The state district court denied that application on the ground that Petitioner failed to raise the double jeopardy claim in the trial court, on direct appeal, or in his first application for post-conviction relief; therefore, the court held, under Oklahoma law, the claim was waived. In an unpublished order, the Oklahoma Court of Criminal Appeals affirmed the denial, holding that all issues previously ruled upon by the Oklahoma Court of Criminal Appeals were res judicata, and that Petitioner had waived all issues raised for the first time in his second petition for post-conviction relief. See Okla.Stat.Ann. tit. 22, Sec. 1086 (West 1986).

In October 1991, Petitioner, appearing pro se, filed the present petition for relief pursuant to Sec. 2254 in the United States District Court for the Western District of Oklahoma. In this petition, Petitioner raised the following two grounds for relief: (1) he was denied his Sixth Amendment right to the effective assistance of counsel because of his attorney’s conflict of interest–i.e., the same attorney represented both Petitioner and Dodson; and (2) the separate convictions and sentences for felony murder and the underlying felony–i.e., armed robbery, violated the Double Jeopardy Clause of the Fifth Amendment. Respondent filed a motion to dismiss the petition for failure to exhaust state remedies as to Petitioner’s claim of ineffective assistance of counsel.

On December 4, 1992, the district court denied Petitioner’s petition. The district court did not grant Respondent’s motion to dismiss for failure to exhaust. Instead, the district court addressed the merits of Petitioner’s ineffective assistance of counsel claim and concluded that Petitioner was not entitled to relief. The court also found that Petitioner was procedurally barred from raising his double jeopardy claim. Finally, the district court concluded that refusing to entertain Petitioner’s double jeopardy claim would not result in a fundamental miscarriage of justice. Petitioner appeals the district court’s denial of his petition.

In this court, Petitioner filed his initial brief pro se. Thereafter, we entered an order appointing the Federal Public Defender for the District of Colorado to represent Petitioner on appeal.1


Petitioner first contends that he was denied his Sixth Amendment right to effective assistance of counsel because his trial counsel had a conflict of interest in that he represented both Petitioner and Dodson at trial. The district court apparently concluded that Petitioner had raised that particular issue in the state courts of Oklahoma and therefore had exhausted his state remedies.2 The district court rejected Petitioner’s claim of ineffective assistance of counsel on the merits, stating that Petitioner had not shown that any “conflict of interest,” resulting from trial counsel’s representation of both Petitioner and Dodson, had “actually affected” the “adequacy of [counsel’s] representation” of Petitioner.

Petitioner and Dodson were jointly represented at trial by two attorneys from the state public defender’s office, with one attorney conducting both defenses while the other attorney supervised that attorney. Petitioner and Dodson both entered pleas of not guilty. Prior to trial, counsel moved to sever the trials of Petitioner and Dodson, or appoint separate counsel for each, because of a possible conflict of interest. That motion was denied. On the day the case came up for trial, Dodson amended his plea to not guilty by reason of insanity, at which time counsel again moved for separate trials, or separate counsel, which motion was again denied.

At trial, the prosecution called an eye witness to the robbery and shooting, who gave her account of events. The prosecution also introduced confessions from both Petitioner and Dodson.3 After the prosecution rested, both defendants invoked their constitutional right not to testify. The only witness called by either defendant was Dr. Rustico Dizon Garcia, a forensic psychiatrist, who had examined Dodson. Although he was called on Dodson’s behalf, the doctor testified that he had no opinion as to whether Dodson was legally sane, or insane, at the time of the robbery and murder.

In rejecting Petitioner’s claim, the district court relied on the Supreme Court’s decision in Cuyler v. Sullivan, 446 U.S. 335, 350, 100 S.Ct. 1708, 1719, 64 L.Ed.2d 333 (1980), in which the Court held that in order to demonstrate ineffective assistance of counsel, a defendant must establish that an “actual conflict of interest adversely affected his lawyer’s performance.” We conclude the district court’s reliance on Cuyler’s “actual conflict” standard was misplaced.

In Cuyler the defendant brought a Sec. 2254 petition for habeas relief based, in part, on an allegation that his two trial attorneys represented potentially conflicting interests in their joint representation of the defendant and two codefendants. Id. at 337-38, 100 S.Ct. at 1712-13. The defendant in Cuyler, however, did not object to the joint representation at trial. Id. Because of the defendant’s failure to object at trial, Cuyler concluded that the trial court had no duty to inquire about the possibility of a conflict of interest. Id. at 347, 100 S.Ct. at 1716. The Court also held that the defendant could not establish a Sixth Amendment violation based on a showing of a mere possibility of a conflict of interest; rather, the defendant must demonstrate an actual conflict. Id. at 348, 100 S.Ct. at 1718. The Court in Cuyler announced this “actual conflict” standard, however, by stating, “[i]n order to establish a violation of the Sixth Amendment, a defendant who raised no objection at trial must demonstrate that an actual conflict of interest adversely affected his lawyer’s performance.” Id. (emphasis added). This language makes it clear that the Cuyler “actual conflict” standard applies only in those cases in which the defendant fails to raise a conflict of interest objection at trial. See Hamilton v. Ford, 969 F.2d 1006 (11th Cir.1992) (“Cuyler is limited to those cases in which a defendant raises no objection to joint representation at trial”), cert. denied, — U.S. —-, 113 S.Ct. 1625, 123 L.Ed.2d 183 (1993); see also United States v. Martin, 965 F.2d 839, 841 (10th Cir.1992) (applying Cuyler actual conflict standard “[b]ecause defendant failed to raise a Sixth Amendment objection at trial”); United States v. Bowie, 892 F.2d 1494, 1500 (10th Cir.1990) (same). Because in the instant case, Petitioner vigorously objected to the joint representation at trial, Cuyler is inapplicable.

We conclude that the instant case is controlled by the Supreme Court’s holding in Holloway v. Arkansas, 435 U.S. 475, 98 S.Ct. 1173, 55 L.Ed.2d 426 (1978). In Holloway, one public defender represented three codefendants who were tried jointly. Id. at 477, 98 S.Ct. at 1175. Weeks before trial, counsel moved the court to appoint separate counsel for each defendant because “the defendants ha[d] stated to him that there is a possibility of a conflict of interest in each of their cases.” Id. After conducting a hearing on the motion, the court refused to appoint separate counsel. Id. Before the jury was empaneled, defense counsel renewed the motion for appointment of separate counsel, and again the court denied the motion. Id. at 478, 98 S.Ct. at 1175. Finally, at trial, after the prosecution had rested, defense counsel informed the court that all of the codefendants insisted on taking the stand, and as a result, he would be unable to represent all three because he could not effectively cross-examine any of them. Id. at 478-81, 98 S.Ct. at 1175-77. The court stated, inter alia, “[t]hat’s all right; let them testify. There is no conflict of interest.” Id. at 479, 98 S.Ct. at 1176. All three codefendants were eventually convicted. The Arkansas Supreme Court affirmed the convictions on the basis that the record demonstrated no actual conflict of interest or prejudice. Id. at 481, 98 S.Ct. at 1177.

Without ever reaching the issue of whether there was an actual conflict of interest, the Supreme Court reversed the convictions. Id. at 484, 98 S.Ct. at 1178. The Holloway Court determined that because defense counsel timely objected to the joint representation at trial, the trial court erred in failing to “either appoint separate counsel, or to take adequate steps to ascertain whether the risk was too remote to warrant separate counsel.” Id. at 484, 98 S.Ct. at 1179. The Court determined that this failure deprived the defendants “of the guarantee of ‘assistance of counsel,’ ” id., and necessitated automatic reversal of the defendants’ convictions, id. at 487-91, 98 S.Ct. at 1180-82. Under the Holloway standard, the trial court’s failure to appoint separate counsel, or adequately inquire into the possibility of conflict, in the face of a timely objection by defense counsel, demonstrates ineffective assistance of counsel without a showing of actual conflict of interest. See id.; see also Hamilton, 969 F.2d at 1011 (“[W]hen defendants make timely objections to joint representation, they need not show an actual conflict of interest when a trial court fails to inquire adequately into the basis of the objection.”). In this situation, prejudice to the defendant is presumed. See 435 U.S. at 489, 98 S.Ct. at 1181 (“[P]rejudice is presumed regardless of whether it was independently shown.”); Cuyler, 446 U.S. at 348, 100 S.Ct. at 1718 (“But unless the trial court fails to afford [ ] an opportunity [to show that potential conflicts imperil his right to a fair trial], a reviewing court cannot presume that the possibility for conflict has resulted in ineffective assistance of counsel.”); see also United States v. Sutton, 794 F.2d 1415, 1419 (9th Cir.1986) (“Thus, whenever a trial court improperly requires joint representation over timely objection based on possible conflicting interests, prejudice is presumed and reversal is automatic.”).

Although Respondent does not raise the issue, we believe it is appropriate to state our conclusion that Holloway comports with the Supreme Court’s later holding in Strickland v. Washington, 466 U.S. 668, 692, 104 S.Ct. 2052, 2067, 80 L.Ed.2d 674 (1984). In Strickland, the Court held that to set aside a judgment based on ineffective assistance of counsel, the defendant must demonstrate prejudice. See id. at 668, 104 S.Ct. at 2052. The Court also stated that for purposes of conflict of interest, “[p]rejudice is presumed only if the defendant demonstrates that [ ] ‘an actual conflict of interest adversely affected his lawyer’s performance.’ ” 466 U.S. at 692, 104 S.Ct. at 2067 (quoting Cuyler, 446 U.S. at 348, 100 S.Ct. at 1718). Despite its restrictiveness, we do not interpret this language as evidencing an intention on the part of the Supreme Court to overrule its earlier pronouncement in Holloway that prejudice is presumed without a showing of actual conflict when a defendant makes a timely objection to joint representation and the trial court fails to inquire adequately into the basis of the objection. Strickland specifically stated that a “fairly rigid rule of presumed prejudice for conflicts of interest” is reasonable given the obligation of counsel to avoid conflicts and the “ability of trial courts to make early inquiry in certain situations likely to give rise to conflicts.” 466 U.S. at 692, 104 S.Ct. at 2067. Thus, Strickland’s requirement of a showing of actual conflict presupposes that trial courts conduct an appropriate inquiry when the defendant properly raises the issue. Holloway, however, addresses the situation where the trial court fails to make such inquiry in the face of the defendant’s timely objection. As a result, the Strickland rule requiring a defendant to demonstrate an actual conflict of interest in order to obtain a presumption of prejudice is inapplicable to a Holloway-type case. We therefore conclude the holding in Holloway–i.e., that prejudice is presumed when the trial court fails to either appoint separate counsel or make an adequate inquiry, in the face of the defendant’s timely objection–satisfies Strickland’s prejudice requirement without a showing of actual conflict.

Having determined that the district court applied the incorrect legal standard in the instant case, we remand for its reconsideration in light of Holloway. On remand, the district court must determine whether: (1) Petitioner’s objection at trial to the joint representation was timely, and, if so, (2) whether the trial court took “adequate steps to ascertain whether the risk [of a conflict of interest] was too remote to warrant separate counsel.” See Holloway, 435 U.S. at 484, 98 S.Ct. at 1178.


Petitioner’s second ground for relief in his Sec. 2254 petition is that he was placed in double jeopardy by being punished both for felony murder and the underlying felony. The district court agreed that there was a double jeopardy violation, but held that since Petitioner had not raised the issue in his direct appeal or in his first post-conviction proceeding in the Oklahoma courts, he had procedurally defaulted the double jeopardy claim under Oklahoma law and was barred from raising the matter in a federal habeas corpus petition. The federal district court further held that Petitioner did not come within any exception to the procedural default rule and on this basis declined to consider the double jeopardy issue on its merits.

The parties agree that Petitioner was placed in double jeopardy by virtue of being punished for felony murder and the underlying felony. See Harris v. Oklahoma, 433 U.S. 682, 97 S.Ct. 2912, 53 L.Ed.2d 1054 (1977) (holding that when one defendant was convicted of felony murder based on his codefendant’s killing of a victim during the course of an armed robbery, the Double Jeopardy Clause of the Fifth Amendment barred a separate prosecution of the defendant for the lesser crime of armed robbery); Castro v. State, 745 P.2d 394, 405 (Okla.Crim.App.1987) (holding that the defendant’s conviction and punishment for both robbery with a firearm and first degree felony murder, with the robbery serving as the underlying felony, violated the Double Jeopardy Clause of the Fifth Amendment), cert. denied, 485 U.S. 971 , 108 S.Ct. 1248, 99 L.Ed.2d 446 (1988). The parties also agree that Petitioner procedurally defaulted his double jeopardy claim. However, Respondent argues that Petitioner’s default bars him from raising the double jeopardy issue in federal court, while Petitioner argues that he meets one of the exceptions to the procedural default rule in that our failure to consider Petitioner’s double jeopardy claim would result in a fundamental miscarriage of justice.

The independent and adequate state ground doctrine bars federal habeas “when a state court declined to address a prisoner’s federal claims because the prisoner had failed to meet a state procedural requirement.” Coleman v. Thompson, 501 U.S. 722, —-, 111 S.Ct. 2546, 2554, 115 L.Ed.2d 640 (1991). “In all cases in which a state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claims is barred unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice.” Id. at —-, 111 S.Ct. at 2565.

In Kuhlmann v. Wilson, 477 U.S. 436, 454, 106 S.Ct. 2616, 2627, 91 L.Ed.2d 364 (1986), the Supreme Court held that the fundamental miscarriage of justice exception applies when a prisoner “supplements his constitutional claim with a colorable showing of factual innocence.” (emphasis added). The fundamental miscarriage of justice exception provides for federal habeas relief where a constitutional violation “has probably resulted in the conviction of one who is actually innocent.” Murray v. Carrier, 477 U.S. 478, 496, 106 S.Ct. 2639, 2649, 91 L.Ed.2d 397 (1986) (emphasis added). In Sawyer v. Whitley, — U.S. —-, —- – —-, 112 S.Ct. 2514, 2519-20, 120 L.Ed.2d 269 (1992), the Court noted that the exception for actual innocence is narrow, and the concept is “easy to grasp” in the context of a noncapital case. The Sawyer Court characterized the prototypical example of actual innocence as the case where “the State has convicted the wrong person of the crime.” Id. at —-, 112 S.Ct. at 2519. The Court also emphasized that “the miscarriage of justice exception is concerned with actual as compared to legal innocence.” Id. at —-, 112 S.Ct. at 2519 (citing Smith v. Murray, 477 U.S. 527, 537, 106 S.Ct. 2661, 2668, 91 L.Ed.2d 434 (1986)).

In Steele v. Young, 11 F.3d 1518, 1522 (10th Cir.1993), we addressed the issue of whether a double jeopardy claim satisfies the fundamental miscarriage of justice exception, and concluded that, standing alone, it does not. We stated in Steele that a double jeopardy claim that is not supplemented by a claim of factual innocence bars federal habeas review. Id. We also noted that even if the petitioner prevailed on the merits of his double jeopardy claim he would not show factual innocence; rather, “[d]oing so would show only ‘legal innocence’ of part of his conviction.” Id. at 1522 n. 8 (citing Sawyer, — U.S. at —-, 112 S.Ct. at 2519).4

In a case strikingly similar to Petitioner’s case, the Eighth Circuit concluded that the petitioner’s double jeopardy claim was procedurally barred from federal habeas review. See Wallace v. Lockhart, 12 F.3d 823, 826-27 (1994). In Wallace, the petitioner and a codefendant were convicted in Arkansas state court of felony murder and the underlying felony of kidnapping. Id. at 825. In the codefendant’s petition for post-conviction relief, an Arkansas court overturned her kidnapping conviction as violative of the Double Jeopardy clause of the Fifth Amendment. Id. The petitioner subsequently filed a second petition for post-conviction relief raising the double jeopardy issue. Id. The Arkansas courts, however, refused to overturn the petitioner’s kidnapping conviction because the petitioner had failed to raise his double jeopardy claim until his second state petition for post-conviction relief. Id. The petitioner then sought federal habeas relief claiming, inter alia, that despite the procedural bar, the failure of the federal courts to entertain his petition would result in a fundamental miscarriage of justice. Id. at 826. The Eighth Circuit disagreed, concluding that because the petitioner did not claim factual innocence of the kidnapping offense, he failed to come within the fundamental miscarriage of justice exception. Id. at 827.

We conclude Petitioner has failed to demonstrate that our refusal to consider his double jeopardy claim would result in a fundamental miscarriage of justice. Petitioner’s claim is no different from that of the petitioner in Steele, and, because a three-judge panel cannot overrule circuit precedent, see O’Driscoll v. Hercules Inc., 12 F.3d 176, 178 n. 1 (10th Cir.1994), we are bound by Steele. Like the petitioner in Steele, Petitioner claims only that his double jeopardy rights were violated. Although Petitioner’s claim that he was placed in double jeopardy by virtue of being punished for felony murder and the underlying felony is meritorious, this shows only legal innocence, which the Supreme Court has held insufficient to establish a fundamental miscarriage of justice. See Sawyer, — U.S. at —-, 112 S.Ct. at 2519. Because Petitioner has failed to supplement his constitutional double jeopardy claim with a claim that he is factually innocent of the underlying armed robbery conviction, federal habeas review of his double jeopardy claim is barred. See Steele, 11 F.3d at 1522, 1522 n. 8; see also Wallace, 12 F.3d at 826-27.

We also reject Petitioner’s characterization of the issue such that because the Fifth Amendment prohibits multiple punishments for the same offense, he is actually innocent of the sentence he received for armed robbery.5 Petitioner cannot show actual innocence of the armed robbery sentence without also claiming actual innocence of the armed robbery itself. Petitioner cites various capital cases and habitual offender cases for the proposition that an individual can be actually innocent of a sentence and thereby come within the fundamental miscarriage of justice exception. See, e.g., Sawyer, — U.S. at —-, 112 S.Ct. at 2519 (exception applies to violations that have resulted in the imposition of death sentence upon one who is actually innocent of the death sentence); Smith, 477 U.S. at 537-38, 106 S.Ct. at 2667-68 (same); Mills v. Jordan, 979 F.2d 1273, 1279 (7th Cir.1992) (actual innocence exception applies to habitual offender proceedings, whether or not they involve the possibility of capital punishment). In both of these types of cases, a petitioner can demonstrate actual innocence of the sentence without showing factual innocence of the underlying conviction because the sentence requires a separate showing from the proof required to convict. See, e.g., Sawyer, — U.S. at —-, 112 S.Ct. at 2520 (under Louisiana law, one convicted of capital murder is not eligible for the death penalty unless the jury concludes that one of a list of statutory aggravating circumstances exists); Mills, 979 F.2d at 1279 (under Indiana law, one can be sentenced as an habitual offender if the state proves that he has accumulated two prior unrelated felony convictions). In a capital punishment case, the petitioner is actually innocent of the sentence if he can show factual innocence of the aggravating factors that render one eligible for the death sentence. Sawyer, — U.S. at —-, 112 S.Ct. at 2523. In a habitual offender case, the petitioner is actually innocent of the sentence if he can show he is innocent of the fact–i.e., the prior conviction–necessary to sentence him as an habitual offender. Mills, 979 F.2d at 1279. In any event, actual innocence of the sentence still requires a showing of factual innocence.

In the instant case, Petitioner is unable to show factual innocence of his armed robbery sentence. Unlike in a capital case or an habitual offender case, Petitioner’s conviction and sentence for armed robbery are inextricably intertwined. Once Petitioner was convicted of the armed robbery, he was eligible for the twenty-five year sentence without any showing of proof separate from the showing required to convict him. As a result, Petitioner cannot be actually innocent of the sentence unless he is actually innocent of the armed robbery itself. Because Petitioner makes no showing of actual innocence of the armed robbery, and because his double jeopardy claim merely demonstrates legal, as compared to actual innocence, Petitioner is not entitled to relief on this claim.

We AFFIRM the district court’s denial of Petitioner’s double jeopardy claim. As to Petitioner’s claim of ineffective assistance of counsel, we REVERSE and REMAND for further proceedings consistent with this opinion.


Update april 16  source :

OKLAHOMA CITY (WTW) — An Oklahoma death row inmate’s plea for clemency was rejected Monday by the state Pardon and Parole, which voted 4-1 against commuting the inmate’s death penalty to life in prison without parole.

Michael Bascum Selsor, 56, apologized to family members of 55-year-old Clayton Chandler, the Tulsa convenience store clerk he was twice convicted of killing during a robbery 37 years ago, and reminded board members he had confessed to the crime.

“I didn’t pass the blame, I shared the shame,” he said during a brief appearance before the board via teleconference from the Oklahoma State Penitentiary in McAlester.

“Is it too late to say I’m sorry?” Selsor said. “I am truly sorry for the suffering and damage I have caused.”

Selsor said he knows he will die in prison and believes he could be a mentor and friend to young inmates facing lengthy sentences.

“I’ll try to be an example for the young guys,” Selsor said.

But Chandler’s daughters urged the board to not interfere with the death penalty a Tulsa County jury gave Selsor in 1998. He is scheduled to die by lethal injection on May 1.

“I think it’s time to put this to rest,” said Debbie Huggins, who fought back tears as she and her sister, Cathy Durham, remembered their father and asked board members to deny Selsor’s request for clemency.

“When we were growing up, our dad was our best friend,” Huggins said.

“I was his little girl,” Durham said. She said her father’s death had denied him an opportunity to walk her down the aisle at her wedding and get to know his grandchildren.

Huggins said Selsor made a conscious choice when he entered the convenience store where her father worked and repeatedly shot him with a .22-caliber pistol on Sept. 15, 1975. Prosecutors say Chandler suffered eight bullet wounds.

“My daddy had no choice,” Huggins said.

After the women’s presentation, board Vice-Chairperson Marc Dreyer said he was sorry for their loss. Chandler’s widow, Anne Chandler, attended the clemency hearing but did not address the board.

Selsor’s attorney, Robert Nance, invoked Christian religious beliefs and cited biblical scriptures as he urged board members to commute Selsor’s death penalty.

“God can use those who have done evil to accomplish good,” Nance said. “Grace as I understand it is an unmerited gift from God. God does that because he loves us.”

Assistant Attorney General Robert Whittaker reminded board members that while Oklahoma law allows them to extend mercy, it also requires them to uphold lawful convictions and court judgments.

“The Pardon and Parole Board is not church,” Whittaker said.

Selsor was originally sentenced to death following a 1976 trial, but the U.S. Supreme Court later invalidated Oklahoma’s death penalty statute. The Oklahoma Court of Criminal Appeals modified Selsor’s sentence to life in prison.

But Selsor initiated a new round of appeals challenging his conviction and in April 1996, the 10th U.S. Circuit Court of Appeals threw out Selsor’s murder conviction as well as two other related convictions.

Selsor was convicted of first-degree murder and sentenced to death a second time following a retrial. The same jury recommended Selsor serve a life term as an accessory to the shooting of Chandler’s co-worker, Ina Louise Morris, who survived multiple wounds inflicted by a co-defendant, Richard Eugene Dodson. In addition, the jury imposed a 20-year term for armed robbery.

Selsor and Dodson were arrested in Santa Barbara, Calif., a week after Chandler’s slaying. At the 1976 trial, a Santa Barbara police detective testified that Selsor admitted shooting Chandler during the robbery.

Dodson, now 71, was convicted of robbery and shooting with intent to kill and is serving a prison sentence of 50 to 199 years in prison.

U.S. Court of Appeals, Tenth Circuit

U.S Supreme Court

No. 11-9886      *** CAPITAL CASE ***
In Re Michael Bascum Selsor, Petitioner
Docketed: April 19, 2012
Linked with 11A997
~~~Date~~~ ~~~~~~~Proceedings  and  Orders~~~~~~~~~~~~~~~~~~~~~
Apr 17 2012 Petition for writ of habeas corpus and motion for leave to proceed in forma pauperis filed.
Apr 17 2012 Application (11A997) for a stay of execution of sentence of death, submitted to Justice Sotomayor.

~~Name~~~~~~~~~~~~~~~~~~~~~ ~~~~~~~Address~~~~~~~~~~~~~~~~~~ ~~Phone~~~
Attorneys for Petitioner:
Madeline S. Cohen Assistant Federal Public Defender (303) 294-7002
633 17th Street
Suite 1000
Denver, CO  80202
No. 11A300
Michael Bascum Selsor, Applicant
Randall Workman, Warden, et al.
Linked with 11-7744
Lower Ct: United States Court of Appeals for the Tenth Circuit
  Case Nos.: (09-5180)
~~~Date~~~ ~~~~~~~Proceedings  and  Orders~~~~~~~~~~~~~~~~~~~~~
Sep 12 2011 Application (11A300) to extend the time to file a petition for a writ of certiorari from October 9, 2011 to December 8, 2011, submitted to Justice Sotomayor.
Sep 19 2011 Application (11A300) granted by Justice Sotomayor extending the time to file until December 8, 2011.

~~Name~~~~~~~~~~~~~~~~~~~~~ ~~~~~~~Address~~~~~~~~~~~~~~~~~~ ~~Phone~~~
Attorneys for Petitioner:
Madeline S. Cohen Assistant Federal Public Defender (303) 294-7002
633 17th Street
Suite 1000
Denver, CO  80202
Party name: Michael Bascum Selsor
No. 11-7744      *** CAPITAL CASE ***
Michael Bascum Selsor, Petitioner
Randall Workman, Warden, et al.
Docketed: December 9, 2011
Linked with 11A300
Lower Ct: United States Court of Appeals for the Tenth Circuit
  Case Nos.: (09-5180)
  Decision Date: May 2, 2011
  Rehearing Denied: July 11, 2011
~~~Date~~~ ~~~~~~~Proceedings  and  Orders~~~~~~~~~~~~~~~~~~~~~
Sep 12 2011 Application (11A300) to extend the time to file a petition for a writ of certiorari from October 9, 2011 to December 8, 2011, submitted to Justice Sotomayor.
Sep 19 2011 Application (11A300) granted by Justice Sotomayor extending the time to file until December 8, 2011.
Dec 7 2011 Petition for a writ of certiorari and motion for leave to proceed in forma pauperis filed. (Response due January 9, 2012)
Dec 29 2011 Brief amici curiae of Criminal and Constitutional Law Scholars filed.
Jan 9 2012 Brief of respondents Randall Workman, Warden, et al. in opposition filed.
Jan 19 2012 DISTRIBUTED for Conference of February 17, 2012.
Jan 20 2012 Reply of petitioner Michael Bascum Selsor filed. (Distributed)
Feb 21 2012 Petition DENIED.