Opinion
24-5054
05-17-2024
In re: DARRIN LYNN PICKENS, Movant.
(D.C. No. 4:96-CV-00984-GKF-CDL) (N.D. Okla.)
Before HARTZ, BRISCOE, and PHILLIPS, Circuit Judges.
ORDER
Darrin Lynn Pickens, an Oklahoma prisoner proceeding pro se, has filed a motion for authorization to bring a second or successive 28 U.S.C. § 2254 petition. We deny the motion for the reasons explained below.
In February 1990, Pickens robbed three convenience stores in Oklahoma-two in Tulsa County and one in Creek County-and shot the clerk on duty in each. One of the Tulsa County clerks, Tina Sue Wolfe, died of her wounds, but the other clerk, Earl Butler, fought with Pickens and survived. The Creek County clerk, Tommy Lee Hayes, died of his wounds.
The State of Oklahoma brought a prosecution against Pickens in Tulsa County for the murder of Wolfe and the assault on Butler. The State brought a prosecution against Pickens in Creek County for the murder of Hayes. Both trials resulted in convictions and, as to the murders, death sentences. However, postconviction proceedings eventually led to both death sentences being modified to life without parole. Pickens has since filed unsuccessful § 2254 petitions challenging those amended judgments.
This court received the motion for authorization currently at issue on April 29, 2024. The motion challenges only the Tulsa County convictions.
We may not grant authorization unless Pickens makes a prima facie showing that
(A) . . . the claim relies on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or
(B)(i) the factual predicate for the claim could not have been discovered previously through the exercise of due diligence; and
(ii) the facts underlying the claim, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.28 U.S.C. § 2244(b)(2); see also id. § 2244(b)(3)(C) (establishing the movant's prima facie burden at this phase). Pickens invokes § 2244(b)(2)(B), regarding newly discovered evidence, but his theory is somewhat difficult to understand. He says that, after his arrest, a police officer collected blood samples, hair samples, and bloody clothing from him. He further claims this yielded exculpatory DNA evidence. He says the jury had this DNA evidence when it was deliberating, but he also says there were no DNA test results in front of the jury. Finally, he finds it suspicious that the officer who collected his blood-stained clothing did not testify at trial about the blood on the clothing.
Pickens's bloody clothing apparently resulted from the struggle with Butler, the surviving clerk. Based on Butler's 911 call, police apprehended Pickens as he fled from that robbery. See Pickens v. State, 850 P.2d 328, 331-32 (Okla. Crim. App. 1993) (describing Pickens's struggle with Butler, and noting that, after Pickens' arrest, a police officer "requested blood and hair samples from [Pickens]" and "removed blood from [Pickens's] body and clothing").
As best we can discern, Pickens means to say the prosecutor carried out a scheme to disclose exculpatory evidence without giving the jury any context for recognizing its significance. Pickens frames this as a violation of the prosecutor's duty to disclose under Brady v. Maryland, 373 U.S. 83, 87 (1963).
Pickens offers no support for his claim that the police developed DNA evidence, exculpatory or otherwise, nor for the claim that the evidence was before the jury. Assuming for argument's sake that these claims are true, he fails the requirement that "the factual predicate for the claim could not have been discovered previously through the exercise of due diligence," § 2244(b)(2)(B)(i). Pickens's explanation why he did not raise this argument earlier shows he has known about the alleged DNA evidence since his trial: "I just was not learned-skilled-educated enough to raise it correctly [earlier]. The Public Defenders would not acknowledge the fact that exculpatory DNA evidence existed in this case, and nothing was ever done, until I was able to bring it myself." Mot. for Auth. at 9.
Pickens's alleged inability to raise the claim himself due to lack of legal training is not a recognized exception to the § 2244(b)(2) requirements. In any event, our records show he has brought at least six previous motions for authorization, dating back to 2013.
We accordingly deny the motion for authorization. This denial "shall not be appealable and shall not be the subject of a petition for rehearing or for a writ of certiorari." 28 U.S.C. § 2244(b)(3)(E).