989 F.

2d 508
NOTICE: Although citation of unpublished opinions remains unfavored,
unpublished opinions may now be cited if the opinion has persuasive value on a
material issue, and a copy is attached to the citing document or, if cited in oral
argument, copies are furnished to the Court and all parties. See General Order of
November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or
further order.

Jimmie Dean STOHLER, Petitioner-Appellant,

v.
Steve HARGETT, Warden; Susan B. Loving, Attorney
General,
Respondents-Appellees.
No. 92-5040.

United States Court of Appeals, Tenth Circuit.

March 18, 1993.

Before TACHA and BALDOCK, Circuit Judges, and BROWN, * Senior

District Judge.**
BALDOCK, Circuit Judge.

Petitioner Jimmie Dean Stohler appeals from an order denying his petition for a
writ of habeas corpus pursuant to 28 U.S.C. 2254. We affirm.

On January 21, 1982, Michelle Rae Powers was shot with a crossbow bolt. She
died several days later. Stohler left town in early March of 1982, after he
became the focus of the investigation into Powers' death and learned that
charges were going to be filed against him. Shortly after he left town, Stohler
and his coworker, Jack Ensminger, were charged with the murder.

Stohler surrendered to the police in early September 1982. He gave a statement

admitting to planning the murder, obtaining the weapon, and arranging for
another person to do the killing. He also testified on behalf of the state in
Ensminger's trial in September 1982. Ensminger was acquitted.

The state of Oklahoma impaneled a grand jury in early 1983. The grand jury
returned an indictment against Stohler for conspiracy to commit murder. On
May 4, 1983, Stohler was charged with conspiracy to commit murder. Robert
Doss, who is Stohler's good friend and Powers' ex-boyfriend and the father of
her child, was charged in the same document with conspiracy to commit murder
and first degree murder.

Stohler pled nolo contendere to the conspiracy charge, then unsuccessfully

attempted to preclude, on double jeopardy grounds, a trial on the murder charge
based on his conviction on the conspiracy charge. See Stohler v. State ex rel.
Lamm, 696 P.2d 1038 (Okla.Crim.App.1985). A jury found Stohler guilty of
first degree murder. His appeal from his conviction, Stohler v. State, 751 P.2d
1087 (Okla.Crim.App.1988), motion for post-conviction relief, and appeal from
the denial of the motion for post-conviction relief were unsuccessful as well.
Doss was acquitted.

Stohler then commenced the present habeas corpus proceeding. The matter was
referred to a magistrate judge pursuant to 28 U.S.C. 636, who conducted an
evidentiary hearing and recommended that the petition be granted. Following a
de novo hearing, the district court denied the petition.

We first address whether we must dismiss Stohler's petition because he failed to

exhaust his state remedies. A state prisoner bringing a 2254 action must show
he exhausted all claims in state court. Miranda v. Cooper, 967 F.2d 392, 398
(10th Cir.), cert. denied, 113 S.Ct. 347 (1992). A district court is required to
dismiss a habeas petition that contains both exhausted and unexhausted claims.
Rose v. Lundy, 455 U.S. 509, 510 (1982).

Respondents argued before the district court that Stohler failed to exhaust his
claim that he was denied a fair trial by the trial court's refusal to allow him to
show some of the state's witnesses committed perjury. Respondents conceded
that Stohler had exhausted all of his other claims.

In its final order, the district court raised, apparently for the first time, the fact
that Stohler had not exhausted his claims that his trial counsel, Tom Gann, had
a conflict of interest based on Gann's affair with Stohler's ex-wife and
simultaneous representation of Stohler and Robert Doss.1 The district court
nevertheless concluded that because a substantial amount of time and resources
had been invested in the case both at the state and federal levels, it would be in
the best interests of all concerned for the court to make a complete record of its
findings and conclusions as to all issues presented.

10

Respondents contend for the first time on appeal that the petition should be
dismissed because Stohler failed to exhaust the conflict of interest claims
identified by the district court as unexhausted. In Granberry v. Greer, 481 U.S.
129, 133 (1987), the Court held that where the state has failed to raise
nonexhaustion in the district court, "[t]he appellate court is not required to
dismiss for nonexhaustion notwithstanding the State's failure to raise it, and the
court is not obligated to regard the State's omission as an absolute waiver of the
claim." Rather, the court must determine "whether the interests of comity and
federalism will be better served by addressing the merits forthwith or by
requiring a series of additional state and district court proceedings before
reviewing the merits of the petitioner's claim." Id. at 134.

11

We conclude that dismissal is not required under Granberry. No unresolved

factual issues or questions of state law remain. See id. at 134-35. The interests
of comity and federalism would not be better served by requiring Stohler to
exhaust his conflict of interest claims in state court at this time.

12

Turning to the merits of the first issue, Stohler argues that Gann had a conflict
of interest because he became involved romantically with Stohler's then-wife,
Kay, before Stohler's trial began. The district court found that the romance did
not begin until after Gann's representation of Stohler ended, but even if it had
begun during the appeal, Stohler failed to show any adverse effect. Because the
district court's findings were based on testimony presented to that court, we
must uphold them unless they are clearly erroneous. See Castleberry v. Alford,
666 F.2d 1338, 1342 n. 2 (10th Cir.1981). A finding of fact is not clearly
erroneous unless it is "without factual support in the record, or if the appellate
court, after reviewing all the evidence, is left with the definite and firm
conviction that a mistake has been made." LeMaire ex rel. LeMaire v. United
States, 826 F.2d 949, 953 (10th Cir.1987). Our review of the record does not
convince us that the district court's findings are clearly erroneous.

13

Stohler next argues that, under the test enunciated in Grady v. Corbin, 495 U.S.
508 (1990), his double jeopardy rights were violated because he pled nolo
contendere to conspiracy, and one of the overt acts in the conspiracy charge
was relitigated in the murder trial. Grady held that "the Double Jeopardy
Clause bars any subsequent prosecution in which the government, to establish
an essential element of an offense charged in that prosecution, will prove
conduct that constitutes an offense for which the defendant has already been
prosecuted." Id. at 521. As the Court later explained, this language, taken out of
context and read literally, would bar a conspiracy prosecution and a prosecution
for the underlying substantive offense. United States v. Felix, 112 S.Ct. 1377,
1383-84 (1992). However, the Court declined to interpret Grady in such a

manner because of the long-standing rule that a substantive crime and the
conspiracy to commit that crime "are separate offenses for double jeopardy
purposes." Id. at 1385. We therefore hold the district court properly rejected
Stohler's double jeopardy claim.
14

Stohler next contends that the district court erred in finding that he did not have
a plea agreement with the state that induced his confession. In support of his
contention, Stohler points to certain findings of a grand jury indicating that a
plea agreement had been made; statements made by Gann in a letter and motion
indicating such an agreement had been made; and Gann's closing argument at
Stohler's murder trial.

15

The district court found that the weight of the evidence overwhelmingly
supported the conclusion there was no plea agreement. Stohler testified at the
Ensminger trial and before the grand jury that no agreement had been reached
with the district attorney's office. Tom Gann, Kay Stohler Gann, and District
Attorney David Moss testified that no plea agreement had been reached. Ample
evidence supports the district court's finding. We uphold it.

16

Stohler also argues the district court erred in finding that his confession was not
coerced by promises of leniency. After an independent evaluation, the district
court concurred with the Oklahoma Court of Criminal Appeals' conclusion that
Stohler knowingly and intelligently waived his rights and understood the
consequences of his waiver. Stohler, 751 P.2d at 1089-90.

17

The voluntariness of a confession depends on the totality of the circumstances.

Schneckloth v. Bustamonte, 412 U.S. 218, 226 (1973). Stohler had the burden
of proving his confession was involuntary. Martin v. Wainwright, 770 F.2d
918, 925 (11th Cir.1985), modified on other grounds, 781 F.2d 185 (11th Cir.),
cert. denied, 479 U.S. 909 (1986). We independently review whether a
confession was voluntary. Miller v. Fenton, 474 U.S. 104, 115 (1985).

18

In United States v. Garot, 801 F.2d 1241, 1244-45 (10th Cir.1986), relying on
Hunter v. Swenson, 372 F.Supp. 287, 298 (W.D.Mo.), aff'd, 504 F.2d 1104 (8th
Cir.1974), cert. denied, 420 U.S. 980 (1975), we listed the following questions
as relevant in addressing a claim that a confession was unconstitutionally
coerced by a promise of lenience: 1) was an express or implied promise of
leniency made; 2) if not, did the defendant reasonably believe such a promise
had been made; 3) was the defendant's statement induced by either the promise
or the defendant's reasonable belief that a promise had been made; and 4) was
the inducing promise coercive? For guidance as to what constitutes coercion,

we looked to United States v. Williams, 447 F.Supp. 631, 636 (D.Del.1978),

which rejected an inflexible rule that condemns any incriminating statement
obtained due to promises, and instead applied a totality of the circumstances
test that considers whether: 1) the defendant was in custody at the time of his
statement; 2) he was alone and unrepresented by counsel; 3) the promise was
initiated by the state, or by the defendant or his agent; 4) the defendant was
aware of his constitutional and other legal rights; 5) the incriminating statement
was part of an abortive plea bargain; 6) the promises or inducements were
fulfilled by the state; and 7) the defendant was subjected to protracted
interrogation or there is evidence showing that coercion precluded his statement
from being knowing and intelligent. Garot, 801 F.2d at 1245 (citing Williams,
447 F.Supp. at 636-37).
19

Stohler testified before the grand jury that no promises were made, but there
was a possibility of leniency if he cooperated. District Attorney Moss testified
before the district court that he did not make any recommendation as to a
specific amount of years on a reduction or anything else, but took the position
that Stohler would have to earn his consideration. He later agreed that he would
have reduced the charges to conspiracy or solicitation for a term of years if
Stohler had given testimony implicating Doss, which Stohler did not give.

20

If a promise was made, or Stohler reasonably believed a promise had been

made, the totality of circumstances nonetheless support the conclusion that
Stohler's statement was voluntary. While he was in custody when he made his
statement, he was represented by counsel. Gann testified that he approached
Moss about an agreement, but Moss was not interested initially. Stohler, a
former police officer, was aware of his constitutional rights; in fact, he admitted
he knew anything he said could and would be used against him. The statement
was not part of an abortive plea bargain. Moss testified that the state agreed to
reduce the charge to second degree murder and recommended twenty years to
life. However, the judge refused to accept the agreement. The state also did not
ask for the death penalty on the first degree murder charge. Finally, given
Stohler's age, education, and experience in law enforcement, a five-hour
interrogation was not so protracted as to make the statement involuntary.
Stohler has not identified any other evidence in the record showing that
coercion precluded the statement from being knowing and intelligent. We
conclude the statement was voluntary.

21

Stohler next argues that the state trial court violated his right to present a
defense by excluding extrinsic evidence that Doss and Powers had been
involved in a custody dispute, and that Powers allegedly abused her and Doss's
son. The constitutional right to present a defense requires that a defendant not

be arbitrarily deprived of relevant, material evidence that is vital to the defense.

United States v. Begay, 937 F.2d 515, 523 (10th Cir.1991). Stohler concedes
the excluded evidence was not relevant to self-defense or a justification
defense. Rather, he argues that the evidence was relevant to his motive and
intent.
22

Stohler relied on Wadley v. State, 553 P.2d 520 (Okla.Crim.App.1976), at trial.

Wadley held that "the conduct, attitude, and feelings of the accused and the
deceased [victim] toward each other may be shown in a murder case to
establish motive, malice or intent." Id. at 523. However, in Wadley, the
defendant had admitted fighting with the victim but denied any intent to
seriously injure her. Id. at 522. The evidence at issue, that he told others about
beating her previously, would have been relevant to show whether he had the
requisite motive and intent.

23

The issues at Stohler's trial were whether he unlawfully and with malice
aforethought caused Powers' death. See Okla.Stat. tit. 21, 701.7A. The
excluded evidence of child abuse was intended not to show whether he had the
requisite intent, but why he had that intent. However, Stohler's motive for
planning the murder was not a legally recognized defense. See, e.g., Okla.Stat.
tit. 21, 731, 733. The evidence therefore did not tend to prove or disprove
any issue in the case. See Okla.Stat. tit. 12, 2401. Exclusion of the evidence
did not violate Stohler's right to present a defense.

24

Stohler also contends that his right to present a defense was violated by the trial
court's refusal to allow him to impeach Moss and Jerry Quinton, the chief
investigator for the district attorney's office, to show that his confession was
induced by promises and therefore was involuntary. The trial court refused to
allow the use of grand jury testimony to impeach Moss because it was remote
in time and misleading. We see no indication that Stohler requested
impeachment of Quinton with the grand jury testimony. As the trial court could
not have erred in denying a request that was never made, that issue is not before
us.

25

Stohler elicited testimony from Moss that while no formal agreement had been
reached, it was understood if Stohler came back and testified, Moss was
obligating himself to give Stohler some consideration, and there was a
"gentleman's agreement" to give Stohler leniency. Stohler has not identified any
specific inconsistent statements made by Moss before the grand jury that add
anything to the testimony elicited at trial. He has not established any denial of
his right to present a defense.

26

Stohler next argues that Gann's representation of him was ineffective. To

establish an ineffective assistance of counsel claim one must prove both that
counsel's performance was deficient, and that the deficient performance
prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984).

27

Stohler argues Gann was ineffective because he simultaneously represented

Stohler and Doss. Stohler must demonstrate that "an actual conflict of interest
adversely affected his lawyer's performance." Cuyler v. Sullivan, 446 U.S. 335,
350 (1980). The district court found that Gann was no longer representing Doss
when he began representing Stohler. However, Gann testified that he continued
to represent Doss with respect to a child custody matter after he began his
representation of Stohler.

28

Nevertheless, Stohler still must show that Gann's representation of Doss

adversely affected Gann's representation of Stohler. He notes that Gann used
some information he obtained from Doss as part of his defense tactic, and
speculates that if Doss had testified at Stohler's trial, this could have caused
Gann to compromise one client or the other. This does not establish that Gann's
actual representation of Stohler was adversely affected. Stohler also maintains
that the magistrate judge's finding that Gann enticed Stohler back to Tulsa to
give a confession in which Doss was not implicated, resulting in Stohler's legal
demise, was correct. However, he has not identified any evidentiary support for
the finding. We conclude that Stohler failed to establish ineffective assistance
of counsel based on Gann's representation of Doss.

29

Stohler next argues that Gunn was ineffective because he failed to insist on a
mandatory post-examination competency hearing. There is no evidence that
Stohler was incompetent. Thus, if Gann had requested the hearing, the outcome
would have been no different. The district court properly rejected this claim.

30

Stohler contends Gann was ineffective because he told the jury he would prove
that Powers' abuse of her child led to Stohler's involvement in the crime, and
that Stohler's confession was involuntary, after the trial court ruled such
evidence inadmissible. Stohler discussed the abuse in his videotape statement,
which the jury heard. Further, Moss and Quinton testified concerning the
circumstances surrounding Stohler's surrender and statement. Thus, it was not
error for Gann to refer to these matters in his closing argument.

31

Stohler argues Gann was ineffective because he failed to present Kay Stohler
Gann's alibi testimony that she and Stohler had dinner at Jamil's restaurant the
night of the murder. He asserts that Gann should have known the state would

attempt to prove an inference could be drawn that Stohler was at the scene of
the murder because the district attorney made this argument in her opening
statement.
32

Even if Kay Stohler Gann had testified that she and Stohler ate at Jamil's the
night of Powers' murder, Stohler admitted at the Ensminger trial that there
might have been enough time to finish eating at Jamil's and drive to Powers'
apartment and shoot her. Additionally, the jury heard his confession to
participating in the planning of the crime. The jury was instructed that all
persons concerned in the commission of a crime are regarded as principals and
are equally guilty thereof. See Okla.Stat. tit. 21, 172. Stohler has not shown
that Gann's failure to call Kay Stohler Gann prejudiced the defense.

33

Stohler's next claim of ineffective assistance appears to be that Gann based part
of his defense on his claim that Stohler's acts amounted to the crime of
solicitation, but Stohler had already been convicted of that crime. We fail to see
how this strategy prejudiced Stohler's defense.

34

The next claim of error is that Gann's appellate brief and petition for rehearing
before the Oklahoma Court of Criminal Appeals were inadequate because they
did not cite to authority in support of some arguments and did not include
portions of the grand jury transcript. Stohler made no showing in this appeal
that he would have prevailed on any of these issues had Gann supplied the
missing information.

35

Stohler notes Abels v. Kaiser, 913 F.2d 821, 823 (10th Cir.1990), held that
"when courts have found counsel constitutionally inadequate, because [he]
failed to properly perfect an appeal, they do not consider the merits of
arguments that the defendant might have made on appeal." The attorney in
Abels failed to perfect an appeal by failing to file any brief. Id. at 822. In
contrast, Gann did not fail to properly perfect the appeal; he failed to provide
authorities for some of his arguments on appeal. The Supreme Court held that
the prejudice component of Strickland is inapplicable and prejudice presumed
where there has been an actual or complete denial of the assistance of counsel
on appeal; however, it distinguished a complete lack of representation from a
situation where counsel failed "to argue an issue as effectively as he or she
might." Penson v. Ohio, 488 U.S. 75, 88 (1988). We conclude that Stohler
failed to establish ineffective assistance of counsel in his direct appeal.

36

Finally, Stohler argues that the cumulative effect of errors denied him a fair
trial. Because we have found no errors, we reject this argument.

37

The judgment of the United States District Court for the Northern District of
Oklahoma is AFFIRMED.

38

The mandate shall issue forthwith.

Honorable Wesley E. Brown, Senior District Judge, United States District

Court for the District of Kansas, sitting by designation

**

After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination
of this appeal. See Fed.R.App.P. 34(a); 10th Cir.R. 34.1.9. The case is therefore
ordered submitted without oral argument

*** This order and judgment has no precedential value and shall not be cited, or
used by any court within the Tenth Circuit, except for purposes of establishing
the doctrines of the law of the case, res judicata, or collateral estoppel. 10th
Cir.R. 36.3
1

Stohler also did not exhaust the claim that Gann was ineffective because he
argued evidence to the jury that the trial court had ruled inadmissible.
However, the state has not argued that the petition should be dismissed because
this claim is unexhausted. We therefore do not address that issue