Alverson v. Workman: The Death Penalty and State Procedural Bars

Daniel Graham

The death penalty continues to be a controversial topic. Scholars argue that the possibilities for legal relief afforded death row inmates during their federal habeas claims have been diminished due to the effects of “doctrines of exhaustion and of procedural default.”[1]  These issues arose in the recent Tenth Circuit case, Alverson v. Workman.[2]

In this case, Billy D. Alverson and Richard Harjo murdered a convenience store clerk by beating him to death with a baseball bat.[3] The two men handcuffed their victim, tied his legs, and left him “in a pool of blood, beer and milk.”[4] Later that day, in their search of Alverson’s home, the police found one of the stolen safes and the video surveillance tape.[5] Subsequently, he was convicted of first degree murder and robbery with a dangerous weapon,[6] and he was sentenced to death.[7]

The first issue the majority opinion discussed was whether it could reach the merits of Alverson’s “Ake claim” on appeal.[8] As acknowledged by the majority, under 28 U.S.C. § 2254(d), the federal court cannot grant “habeas relief on the basis of that claim [one that the state considered on the merits] unless the state court decision ‘was contrary to, or involved an unreasonable application of, clearly established Federal law . . . .’”[9]  An Ake claim involves the due process rights of a defendant.[10]  Particularly, the Ake court in held that “indigent defendants must have ‘access to the raw materials,’ or ‘basic tools,’ ‘integral to the building of an effective defense.’”[11]  Alverson claimed that the state trial court denied him the funds he needed to obtain a “neuropsychological examination to investigate the possible effects of head injuries that he suffered as a child.”[12]  He asserted that this denial of funds was error by the trial court and so the federal court should grant his habeas claim.[13]

The majority discussed the extensive procedural history of Alverson’s claim in the state court,[14] and concluded that it could reach the merits of the claim because the Oklahoma Criminal Court of Appeals “reaffirmed its prior sua sponte decision.”[15]  Therefore, “under the deferential standards outlined in [28 U.S.C. §] 2254(d),” the federal court could delve into the merits of the Ake claim.[16] 

In its discussion of the procedural history, the majority glosses over two critical facts: (1) the Oklahoma Criminal Court of Appeals raised the Ake claim on its own after Alverson failed to raise it;[17] and (2) the Oklahoma Criminal Court of Appeals dismissed the Ake claim pursuant to a state procedural bar and only mentioned its previous discussion of the merits of the Ake claim in a footnote.[18]  In fact, the majority acknowledged that the Oklahoma Criminal Court of Appeals had dismissed Alverson’s Ake claim based on a state procedural bar because he had failed to raise the claim on direct appeal.[19]

In his concurrence, Circuit Judge Tymkovich argued that the court should not have reached the merits of the Ake claim because Alverson had failed to raise the claim on appeal.[20] Therefore, the claim was barred by state procedural rules and the federal court should not consider it.[21] Referencing the “independent and adequate state ground” doctrine, the concurring opinion cited Coleman v. Thompson and explained that the Supreme Court has held that when the state court decision prior to federal review bases its decision on a state procedural rule, the federal court cannot ignore that procedural rule and reach the merits.[22] According to the concurrence, the Oklahoma Criminal Court of Appeals stated that Alverson failed to raise the Ake claim on direct appeal, and so he had waived his right to that claim.[23] This waiver is pursuant to Oklahoma statute, which mandates that on appeal, a court cannot hear those claims which “ʻ[w]ere not and could not have been raised in a direct appeal.’”[24] The majority opinion, according to the concurrence, acknowledged that Alverson failed to raise this claim on appeal.[25] Nevertheless, the majority would allow the court to reach the merits because the Oklahoma Court of Appeals brought up the Ake claim sua sponte, and so in effect it was raised on appeal.[26] For the concurring Judge, this sua sponte presentation of the claim is not sufficient to preserve the defendant’s right to raise it on federal appeal.

Because the Oklahoma Criminal Court of Appeals in its last treatment of the case expressly stated that Alverson’s Ake claim was barred by a state procedural rule, the Tenth Circuit should have not reached the merits of the claim.  Judge Tymkovich was correct to assert that an independent and adequate state procedural ground existed for not hearing the claim.  When courts do not respect state procedural bars and otherwise confuse the procedure surrounding the death penalty, the discussion about this penalty is hindered.

As discussed above, the death penalty continues to be a controversial topic. Continued debate helps maintain the health of our judicial system. However, courts must follow established procedure if the debate is to have its greatest effect.  While it is true that large philosophical questions form a major component of the debate over the death penalty, how the penalty is administered also requires attention.  If it were possible for a court to issue a death sentence but existing procedure made it next to impossible for such a sentence to be handed down, then that would change the nature of the debate surrounding the penalty. Similarly, if the procedure and administration of the penalty are in a state of confusion because federal courts only sporadically respect a state procedural bar, then scholars and the general public will have a more difficult time focusing the debate on the critical matters because there will be significant uncertainty as to when the penalty will actually be applied.  Federal courts should decrease the uncertainties present in a death penalty case by following the procedures that have been set forth in precedent.

By eliminating the confusion that exists in the procedure surrounding the death penalty, we can focus the death penalty debate on the critical questions[27] that it involves, rather than spending time questioning whether federal courts will respect state court decisions.  By fostering greater consistency in the administration of the death penalty, we will be able to engage in more meaningful discussion about this ultimate penalty.


[1] Andrew Hammel, Diabolical Federalism: A Functional Critique and Proposed Reconstruction of Death Penalty Federal Habeas, 39 Am. Crim. L. Rev. 1, 7 (2002).

[2] 595 F.3d 1142, 1163 (10th Cir. 2010).

[3] Id. at 1144.

[4] Id.

[5] Id.

[6] Id. at 1145.

[7] Id.

[8] Id. at 1146.

[9] Id.

[10] Id.

[11] Id. at 1154 (quoting Ake v. Oklahoma, 470 U.S. 68, 77 (1985)).

[12] Id. at 1146.

[13] Id.

[14] Id. at 1147-49.

[15] Id. at 1153.

[16] Id. at 1147.

[17] Id. at 1152-53.

[18] Id. at 1153.

[19] Id. at 1152-53.

[20] Id. at 1163.

[21] Id.

[22] Id. at 1163-64.

[23] Id.

[24] Id. (emphasis in original).

[25] Id.

[26] Id.

[27] There is great concern over the fairness with which the penalty is employed given that it has been shown that prosecutors are more likely to seek the death penalty in murder cases involving a black defendant and a white victim. Kenneth Williams, The Death Penalty: Can it be Fixed?, 51 Cath. U. L. Rev. 1177, 1180-82 (2002). As this controversy has arisen and developed, a death row inmate’s access to counsel during his or her attempt to gain federal habeas relief has changed. Hammel, supra note 1, at 7-8.