Case No. 15-6340 EXECUTION SCHEDULED FOR SEPTEMBER 30, 2015, AT 3:00 P.M. CST. IN THE SUPREME COURT OF THE UNITED STATES RICHARD EUGENE GLOSSIP, Petitioner, v. STATE OF OKLAHOMA, Respondent. BRIEF IN OPPOSITION TO PETITION FOR WRIT OF CERTIORARI E. SCOTT PRUITT. ATTORNEY GENERAL OF OKLAHOMA. *JENNIFER J. DICKSON, OBA #18273 ASSISTANT ATTORNEY GENERAL 313 NE 21" Street Oklahoma City, Oklahoma 73105 (405) 521-3921 (405) 522-4534 FAX Email: fhe.docket@oag.ok.gov jenny.dickson@oag.ok.gov ATTORNEYS FOR RESPONDENT *Counsel of recordCAPITAL CASE QUESTION PRESENTED 1. Should this Court grant certiorari review of the Oklahoma Court of Criminal Appeals’ application of state law procedural rules?TABLE OF CONTENTS PAGE QUESTIONS PRESENTED .........:00seseceeeeeceeceeeereesenerenes i ee sn i re cece ec ceececeeeeeeees 2 STATEMENT OF FACTS .4 TITIONER IS NOT AN INNOCENT MAN ..........6.000000e0eeee eee 5 A. Concealing the Murder IB) {Proceeds from Murder) shee tee 8 Cc. Motive .....ccc ccc nescence recs eccccnsncncsceressecnceces, 8 D. Control Over Mr. Sneed .........02. 0002 00eeeee nessa eens 10 E. _ Stated Intent to Flee Summary ... REASONS FOR DENYING THE WRIT .........- 0000 .0000e00eeee eee 15 L CERTIORARI SHOULD BE DENIED BECAUSE PETITIONER ASKS THIS COURT TO DO LITTLE MORE THAN REVIEW THE OCCA’S REJECTION OF HIS “NEW” CLAIM BASED ON PURE STATE LAW GROUNDS DURING STATE POST-CONVICTION REVIEW... The OCCA Denied Petitioner’s Subsequent Post-Conviction Application on State Procedural Bar Grounds and Did Not Decide a Federal Question .........0...:cseeeeeeee eset eseeeeeeeenes 18 Petitioner's Freestanding Actual Innocence Claim Does Not Warrant Certiorari Review ..........0..0:s0seseeeteeeeeeeeees 23Petitioner Received the Pro Oklahoma Law .. Oklahoma's Procedural Rules for Raising Succe: Conviction Claims Do Not Offend Due Process .. . The OCCA’s Decision Does Not Conflict with Any Decisions of this Court eo MOTION FOR STAY OF EXECUTION .......5- 00 000s00ceeeeeeeeeeees 39 ICONCLUSION| ee ee ee es 39 iiiTABLE OF AUTHORITIES EDERAL CASES Atkins v. Virginia, 536 U.S. 304 (2002) 0... ce eeecec eee ee eet eeecerenenes 37,38 Barefoot v. Estelle, 463 U.S. 880 (1983) 2... eee eee eee eee eee 39 Dist. Attorney's Office for Third Judicial Dist. v. Osborne, 557 U.S. 52 (2009) 35 Glossip v. Gross, U.S. _, 135 S. Ct. 2726 (2015) 0... cece cece ee ee ee een eee 3 Glossip v. Trammell, __ US, _, 148. Ct. 2142 (2014) . Herrera v. Collins, 506 U.S. 390 (1993) . Passim House v. Bell, 547 U.S. 518 (2006) . In re Davis, 557 U.S. 952 (2009) 0... eee cee cece cece cece ee ee eee een ees 37 Jackson v. Virginia, COOLS ECC) apnonononenonesonseosoonososonononoeae 24 Johnson v. Fankell, B20 U.S. 911 (1997) 2... 2. e ee eee cette eee et eeaeeee 22 Kansas v. Marsh, bas UlG'163 (2006) ee ee 37, 38 McQuiggin v. Perkins, sais Ce lee4(0I) ee 26Robinson v. California, 370 U.S. 660 (1962) 2.20... cece e eee eee eee e ee ee eee 22 STATE CASES Glossip v. State, 2007 OK CR 12, 157 P.3d 143 ...... 0.0 e cece cece reece Passim Valdez v. State, 46 P.3d 703 (Okla. Crim. App. 2002) ........0.0.02000005 21, 22 FEDERAL STATUTES POLUEIOL APTA toonenesnnnqonnnacconaqcoapoococodocodsenennend 2 28 U.S.C. § 2255(h)(1) ... 2210:9:20005 10000 wee eee eee 3 PS JOY PTNEEE (0:0) cangopncoodonenpooncbadouncepdosnceecnnd Passim a eee ee gee ee gece ee aecccleeceeceecece! 21 CONSTITUTIONAL AUTHORITY lla ConstyartiViS 10) et ee ee 25 FEDERAL RULES Rule 10, Rules of the Supreme Court of the United States ......... WwWOTHER AUTHORITIES: A Survey of Federal and State Courts’ Approaches to A Constitutional Right of Actual Innocence: Is There A Need for A State Constitutional Right in New York in the Aftermath of Cpl 8 440.10(1)(G-1)?, 76 Alb. L. Rev. 1453 (2013)No. 15-6340 IN THE SUPREME COURT OF THE UNITED STATES RICHARD EUGENE GLOSSIP, Petitioner, vs. THE STATE OF OKLAHOMA, Respondent. On Petition for Writ of Certiorari to the Oklahoma Court of Criminal Appeals BRIEF IN OPPOSITION TO PETITION FOR WRIT OF CERTIORARI Petitioner Richard Eugene Glossip is scheduled to be exeeuted Wednesday, September 30, 2015, at 3:00 p.m. Central Standard Time inside the walls of the Oklahoma State Penitentiary at McAlester, Oklahoma. Potitionor files this last- minute appeal in an attempt to avoid execution. Respondent respectfully urges this Court to deny the petition for a writ of certiorari to review the unpublished opinion of the Oklahoma Court of Criminal Appeals, entered on Monday, September 28, 2015, in Glossip v. State, Case No. PCD-2015-820, and to deny Petitioner's request for a stay of execution.STATEMENT OF THE CASE Petitioner, an inmate in state custody at the Oklahoma State Penitentiary, ‘McAlester, Oklahoma, was tried by jury in Case No. CF-97-244, in the District Court of Oklahoma County, for the murder of Barry Van Treese. In June 2004, an Oklahoma jury convicted Petitioner of first degree murder and sentenced him to death. The state trial court sentenced Petitioner in accordance with the jury's recommendations. The Oklahoma Court of Criminal Appeals (OCCA) affirmed Petitioner's murder conviction and death sentence on direct appeal, Glossip v. State, 2007 OK CR 12, 157 P.3d 143, cert. denied, 552 U.S. 1167 (Jan. 22, 2008), and denied state post-conviction relief. Glossip v. State, No. PCD-2004-978, slip op. (Okla. Crim. App. Dec. 6, 2007) (unpublished). On November 3, 2008, Petitioner filed a petition for writ of habeas corpus, pursuant to 28 U.S.C. § 2254, The federal district court denied reliefin an unpublished opinion, Glossip v. Workman, No. CLV-08-0326-HE, slip op. (W.D. Okla. Sept. 28, 2010) (unpublished). The Tenth Circuit thereafter affirmed the denial of habeas relief. Glossip v. Trammell, No. 10-6244, slip op. (10th Cir, Jul. 25, 2013) (unpublished). The ‘Tenth Cireuit also denied panel and en banc rehearing. Glossip v. Trammell, No. 10-6244, Order (10th Cir. Sept. 23, 2013) (unpublished). On May 5, 2014, this Court denied Petitioner's petition for writ of certiorari seeking review of the Tenth Circuit's ruling affirming the denial of federal habeas relief, Glossip v. Trammell, __U.S._, 148. Ct. 2142 (2014).On October 24, 2014, the Oklahoma Pardon and Parole Board denied Petitioner clemency following a hearing. On July 8, 2015, the OCCA set Petitioner's execution date for September 16, 2015, pursuant to 22 0.$.2001 § 1001.1(K). Prior execution dates of November 20, 2014 and January 29, 2015 had been previously set by the OCCA. After this Court issued its opinion in Glossip v. Gross, U.S. _, 135 S. Ct. 2726 (2015), the OCCA set the September 16, 2015 execution date, Late in the afternoon on September 15, 2015, Petitioner filed a second application for state post-conviction relief, Respondent filed a response. On September 16, 2015, the 01 CA reset Petitioner's execution for September 30, 2015, noting that an emergency stay of execution was necessary given Petitioner's “last minute filing” and “in order for [the OCCA] to give fair consideration to the materials” filed by Petitioner. Glossip v. State, PCD-2015-820, Order Granting Emergency Request for Stay of Execution and Resetting Execution Date (Okla. Crim. App. Sept. 16, 201 Petitioner filed a first supplement and reply, and Respondent filed a supplemental response, On September 28, 2015, the OCCA denied Petitioner's second application for post-conviction relief. Glossip v. State, PCD-2015-820, Opinion Denying Subsequent Application for Post-Conviction Relief, Motion for Evidentiary Hearing, Motion for Discovery and Emergency Request for Stay of Execution (Okla. Crim. App. Sept. 28,2015) (‘OCCA Opinion”).’ The OCCA concluded that Petitioner's claims were barred because they either were or could previously have been presented, Petitioner had not shown that a miscarriage of justice would result if his claims were not reviewed, and Petitioner's claims did not fall within the guidelines of Oklahoma's post-conviction procedure act allowing the court to consider the merits or grant relief. See id. at 3-1. After the OCCA denied Petitioner's second post-conviction application, Petitioner further delayed these proceedings (and the filing of his petition for certiorari review) by filing an unauthorized petition for rehearing on September 29, 2015, approximately a full day after the OCCA denied relief. On September 29, 2015, the OCCA denied Petitioner's petition for rehearing because the court's rules do not allow for petitions for rehearing from the denial of post-conviction applications. Glossip v. State, PCD-2015-820, Order Denying Glossip’s Petition for Rehearing (Okla. Crim. App. Sept. 29, 2015). STATEME) NT OF FACTS Justin Sneed, who admitted killing victim Van Treese in the early morning hours of January 7, 1997, testified at Petitioner's trial that Petitioner hired him to kill the victim. The OCCA fully dit issed the facts of this case in its opinion affirming Petitioner's conviction, and Respondent hereby incorporates by reference that discussion. Glossip, 2007 OK CR 12, {{ 3-24, 157 P.3d 143, 147-50. In light of "Petitioner refers to the OCCA’s opinion below as Appendix 1 to this Court. Respondent is aware that this Court has a copy of the OCCA’s opinion, so Respondent, will refer to it as “OCCA Opinion.”Petitioner's claims of actual innocence, Respondent further discusses in greater detail the evidence at trial that revealed Petitioner's involvement in the murder of Van ‘Treese. Based on this evidence, the OCCA found sufficient evidence to corroborate Mr. Sneed’s testimony revealing Petitioner's involvement in the murder. PETITIONER IS NOT AN INNOCENT MAN ‘The evidence at trial revealed Petitioner's involvement in the murder of victim Van Treese. The OCCA found sufficient evidence to corroborate Mr. Sneed’s testimony revealing Petitioner's involvement in the murder. Glossip, 2007 OK CR 12, | 53, 157 P.3d 143, 153-54, ‘The State presented evidence showing Petitioner: (1) actively concealed the victim's body in Room 102 over a nearly seventeen hour period while civilians and law enforcement searched for the victim at and around the motel; (2) possessed proceeds from the $4,000.00 Mr. Sneed recovered from the vietim’s ear after the murder; (3) had strong motive and opportunity to cause the vietim’s death; (4) had control over the actions of Mr. Sneed; and (5) began selling his possessions and stated his intention to leave the state. A. Concealing the Murder. Petitioner admitted to Detective Bemo in his second interview on January 9, 1997 that he knew in the early morning hours of January 7, 1997 that Mr. Van Treese had been murdered and that the body was in Room 102. (State’s Exhibit 2; Court’s Exhibit 4 at 6).” However, Petitioner provided 2References to Petitioner's 2004 trial transcripts will be designated as “Vol. _, Tr. _”. References to Petitioner's 1998 trial transcripts will be designated as “1998 Vol. _ _.”. References to the original record in D-2004-877 will be designated as “O.R. __’). (continued...)multiple conflicting versions of when he last saw Mr. Van Treose alive. Petitioner provided three different stories to Sgt. ‘Tim Brown, Petitioner initially said he last saw the vietim at 7:00 a.m. on January 7, 1997, walking across the motel parking lot (Vol. 9, Tr. 193-95). Later, Petitioner told Sgt. Brown that he had last seen the victim at 4:30 a.m, on January 7 in the motel parking lot (Vol. 9, ‘Tr. 206). Finally, Petitioner claimed he last saw the victim at 8:00 p.m. the night before (Vol. 9, 209). Petitioner also lied about seeing the victim to Billye Hooper,’ Cliff Everhart, and the victim’s wife. Petitioner told Billye Hooper that he had seen the victim around 8:00 a.m. He claimed that the victim had “got up early that morning and had gone to get breakfast and was going to go get some materials. They were going to start working on the motel.” (Vol. 7, Tr. 62). Petitioner told Mr. Everhart that he last saw the vietim eave the hotel at 7:00 a.m. (Vol. 11, Tr. 183-84). Petitioner told the victim's wife, during a telephone conversation sometime after 3:00 p.m., that the last time he had seen the victim was between 7:00 a.m. and 7:30 a.m. that morning. He advised Mrs. Van Treese that “[the victim] was going to buy supplies for the motel and he would be back later” (Vol. 4, Tr. 99). Petitioner also told numerous lies about Room 102. Petitioner told Ms. Hooper that the victim had stayed in Room 108 (Vol. 7, Tr. 55). He also told Ms. Hooper not, to put Room 102 on the housekeeping list. He stated he and Mr. Sneed would clean (..continued) References to trial exhibits will be designated as presented at trial. °Ms. Hooper was the front desk clerk.that room (Vol. 7, ‘Tr. 64). He advised Jackie Williams, a housekeeper at the motel, not to clean any downstairs rooms. Ms. Williams had never been given that type of instruction before (Vol. 8, Tr. 122-23). Petitioner initially claimed that Mr. Sneed told him the window in Room 102 was broken by a couple of drunks (Vol. 9, Tr. 206) Petitioner told Mr. Everhart that he had rented Room 102 to a couple of drunk cowboys who broke the window (Vol 11, Tr. 188-90). He told Ms. Pursley, a motel resident, the ame lie that Room 102 had been broken by two drunks (Vol. 9, ‘Tr. 45-48) Additionally, Petitioner made it appear that he had searched the motel rooms for the victim. He searched the grounds with Mr. Everhart to make it appear as though he did not know the location or condition of the vietim (Vol. 11/Tr. 185-87) Petitioner also provided false leads, telling Mr. Everhart and Sgt. Brown that he believed some people in an upstairs room may have been responsible for the murder because they left their property in the room and disappeared without checking out. As a result, Mr. Everhart and Sgt. Brown needlessly searched the room. After the body was found, Petitioner continued lying. In his first interview with the police, on January 8, 1997, Petitioner lied to the detectives claiming that he knew nothing about the murder or the body being in Room 102 (State's Exhibit 1; Court's Exhibit 3 at 10-11). In the second interview, after being asked why he lied, Petitioner said it wasn’t to protect Sneed. Rather, Petitioner said he initially lied to detectives because when Mr. Sneed told him about the murder, he felt like he “was involved in it, I should have done something right then” and that he did not want to lose his girlfriend over it (tate’s Exhibit 2; Court's Exhibit 4 at 16-17). 7B. Proceeds from Murder. At Petitioner's book-in, the police recovered approximately $1,757.00 from Petitioner (Vol. 12, Tr. 5-13). Mr. Sneed testified that he obtained approximately $4,000.00 from the victim’s vehicle after committing the murder, Mr, Sneed testified that Petitioner told him where the money was located. He testified that the money was split with Petitioner (Vol. 12, Tr. 124-30). The evidence showed that Petitioner had no legitimate source for the money that was recovered. On January 6, 1997, Petitioner received a paycheck for $429.33 (Vol. 14, Tr. 42; Vol. 15, Ts . 17). Petitioner spent all but approximately $60.00 of that paycheck on January 7, 1997 (Vol. 14, Tr. 42-43). Petitioner received, at most, approximately $500.00 for furniture, a vending machine, and an aquarium he sold prior to his arrest (Vol. 15, Tr. 16-17). Petitioner had no savings according to his girlfriend, D-Anna Woods. Ms. Woods told the police that the two were living paycheck to paycheck and “she didn’t think [Petitioner] could save any money.” (Vol. 14, Tr. 44). This Court found this to be “{tJhe most compelling corroborative evidence” noting there was “no evidence that Sneed had independent knowledge of the money under the seat of the car.” Glossip, 2007 OK CR 12, § 43, 157 P.3d 143, 152. C. Motive. ‘The evidence established that the victim was planning to confront Petitioner on January 6 or January 7, 1997, about shortages on the motel books (Vol. 11, Tr. 169-70, 172-77, 201). Mr. Everhart had previously told the victim he believed Petitioner “was probably pocketing a couple hundred a week extra” from the motel cash receipts during the last two or three months of 1996 (Vol. 11, ‘Tr. 172- 78). In December 1996, Billye Hooper had also shared her concerns about Petitioner's 8management of the motel with Mr. Van Treese, who told her he “knew things had to be taken care” of regarding Petitioner's management of the motel. Mr. Van Treese advised he would take care of it after Christmas (Vol. 7, Tr. 37-40; Vol. 8, Tr. 32-34). Donna Van Treese testified that by the end of December 1996, she and the victim discovered shortages from the motel accounts receivables totaling $6,101.92 and that the victim intended to confront Petitioner about these shortages on January 6, 1997. Mr. Van Treese told his wife that he would also audit the Oklahoma City motel and perform a room-to-room inspection of the motel at that time (Vol. 4, Tr. 62-66, 70-72). William Bender testified that the victim “was all puffed up. He was upset. He was mad . .. He was all red in the face” when the victim arrived at the Tulsa motel just before midnight on January 6, 1997 (Vol. 8, Tr. 63-64). During Van Treose’s brief visit to the motel, he told Bender that there were a number of registration cards missing at the Oklahoma City motel, that weekend receipt money was missing and that Petitioner was falsifying the motel daily reports by allowing people to stay in rooms that were not registered (Vol. 8, Tr. 80-82). Van Treose said that he gave Petitioner until he returned to Oklahoma City “to come up with the weekend's receipts that were missing and if he came up with that, he was going to give him another week to come up with the registration cards and get all the year-end receipts together.” Otherwise, Van Treese told Bender he was going to call the police (Vol. 8, Tr. 82). Evidence was presented that the condition of the Oklahoma City motel on January 7, 1997 was deplorable. Kenneth Van Treese, the victim's brother, assumed control of the motel immediately after the murder. He discovered that only around 24 9of the rooms at the motel were in habitable condition. Twelve rooms had no working heat. Other problems included keys that did not fit room doors, broken or dirty plumbing fixtures and broken telephone systems (Vol. 11, Tr. 116-18). Kenneth Van ‘Treese testified that “the main thing that was wrong with the motel was it was filthy absolutely filthy” (Vol. 11, ‘Tr. 119). The jury could easily infer that the victim was unaware of these deteriorating conditions because he made only four overnight trips to the motel during the last half of 1996 (Vol. 4, Tr. 36-40, 42, 58-59). This evidence corroborates Mr. Sneed’s testimony that Petitioner feared being fired the morning of January 7, 1997 because of Petitioner’s mismanagement at the motel and provides strong motive for the murder. Petitioner's motive to murder Mr. Van Treese explains why Petitioner's active concealment of the body for seventeen hours is inconsistent with either Petitioner’s innocence or mere culpability as an accessory. The jury could infer that Petitioner wanted the victim murdered so he would not lose his job and not be prosecuted for embezzlement. D. Control Over Mr. Sneed. Justin Sneed testified that the sole reason he murdered the victim was because of pressure from Petitioner. The State presented extensive evidence that Petitioner largely controlled Mr. Sneed, an 18 year old, eighth- grade dropout who worked as a maintenance man for Petitioner at the motel (Vol. 12, ‘Tr. 47-48) and that Mr. Sneed’s mental capacity and personality made it unlikely he would plan to kill anyone, let alone Van Treese, whom he barely knew. One motel resident testified that, based on his limited observations, Mr. Sneed “didn’t have a lot of mental presence.” (Vol. 6, Tr. 16). Bob Bemo, a retired homicide detective who 10interviewed Mr. Sneod, testified that Mr. Sneed did not appear very mature and had below average intelligence. He also testified that Petitioner appeared more aggressive and intelligent than Mr. Sneed. Bemo observed that Petitioner was “a very intelligent individual . .. a very manipulative individual . .. what he does with everything that he does is he’s manipulating, using people.” (Vol. 14, Tr. 46-48). Kayla Pursley described Mr. Sneed as being “very childlike” (Vol. 9, Tr. 17). Mr. Sneed assisted caring for her children when Ms. Pursley broke her foot. Ms. Pursley testified that Mr. Sneed played with her children “[mJore as a peer . . . [that] he fit kind of in with my boys, you know, he played and he was real simple. He had a skateboard and that was his life . . he didn’t make a lot of decisions. You had to tell him sometimes what to do.” (Vol. 9, Tr. 17). Ms. Pursley described how Mr. Sneed would not eat unless someone told him to eat (Vol. 9, Tr. 18). Petitioner and Mr. Sneed were described as “very close” friends by Billye Hooper (Vol. 7, Tr. 28). Mr, Sneed was largely dependent upon Petitioner for food and money (Vol. 7, Tr. 28; Vol. 9, Tr. 21). Ms. Pursley testified that Mr. Sneed usually followed Petitioner when they were together, that you normally did not see one without the other and that “[Petitioner] would have to tell him what to do and how to do it.” (Vol. 9, Tr. 19-20, 23). Petitioner had control over Mr. Sneed because Mr. Sneed had no other place to go and no family in the area (Vol. 9, Tr. 21, 24). Ms. Pursley observed that “{y]ou had to almost tell [Sneed] what to do in any circumstance, whether it was a working relationship or personal.” (Vol. 9, Tr. 23). Cliff Everhart testified that Mr. Sneed was Petitioner's “puppet”, that Mr. Sneed “was not self-motivated. [Petitioner] Wtold him everything to do. [Petitioner] would tell him to do this, he'd do it . .. If he needed something, he'd come to (Petitioner].” (Vol. 11, Tr. 185). Billye Hooper testified that Mr. Sneed did not know the vietim very well (Vol. 7, Tr. 34). This corroborated Mr. Sneed’s testimony thathe had only met the victim approximately three times prior to the murder during which time the pair had no real conversations (Vol. 12, Tr. 76-77). Witnesses who knew both Petitioner and Mr. Sneed testified that, based on Sneed’s personality, they did not believe Mr. Sneod would commit a murder on his own (Vol. 7, Tr. 84; Vol. 9, Tr. 25). ‘This evidence shows that Petitioner largely had control over Mr. Sneed's actions, that Mr. Sneed was dependent upon Potitioner and that Mr. Sneed’s personality and mental capacity made it unlikely that he would murder Mr. Van Treese on his own volition. The evidence shows Mr. Sneed had the type of personality in January 1997 that allowed him to be easily influenced by Petitioner into committing the murder. In the words of the trial judge during a bench conference, Mr. Sneed was “an illiterate guy who's just one notch above a street person” (Vol. 13, Tr. 61). Evidence of Mr. Sneed’s personality and mental capacity and Petitioner's control over him, combined with evidence that Petitioner: (1) turned up with a large sum of cash shortly after the murder; (2) actively concealed the body in Room 102 for practically an entire day by misleading investigators and others who were searching for the victim at the motel; and (3) had strong motive to kill the victim, connects Petitioner with the murder in this case. 12E. Stated Intent to Flee. After being interviewed by detectives, Petitioner began the process of selling all of his possessions. He told Cliff Everhart that “he was going to be moving on” (Vol. 11, Tr. 199-200). When homicide detectives got word of Petitioner's stated intention to leave Oklahoma, they put police surveillance on him (Vol. 14, Tr. 23). On January 9, 1997, Petitioner failed to appear for a previously scheduled meeting with homicide detectives at police headquarters. Petitioner was eventually intercepted and taken downtown to meet with homicide detectives where he eventually gave a second interview (Vol. 12, Tr. 6-9). Evidence that Petitioner sold his possessions shortly after his initial contact with homicide detectives (but before he admitted in the second interview to actively concealing the victim’s body in Room 102) represents evidence tending to connect Petitioner with the murder of the victim. Evidence that Petitoner was preparing to leave the state demonstrates a consciousness of guilt which, combined with the additional circumstantial evidence discussed above, corroborates Mr. Sneed’s testimony by connecting Petitioner with the murder. Summary. Based on the above evidence, the OCCA concluded Justin Sneed’s testimony was sufficiently corroborated to support Petitioner's first degree murder conviction. Glossip, 2007 OK CR 12, {{] 43 - 53, 157 P.3d at 151-54. In summary, the OCCA held: In this case, the State presented a compelling case which showed that Justin Sneed placed himselfin a position where he was totally dependent on Glossip. Sneed testified that it was Glossip’s idea that he kill Van Treese. Sneed testified that Glossip promised him large sums of cash if he would kill Barry Van Treese. Sneed testified that, on the evening before the murder, Glossip offered him $10,000 dollars if he Bwould kill Van Treese when he returned from Tulsa. After the murder, Glossip told Sneed that the money he was looking for was under the seat of Van Treese’s car. Sneed took an envelope containing about $4,000.00 from Van ‘Treese’s car. Glossip told Sneed that he would split the money with him, and Sneed complied. Later, the police recovered about $1,200.00 from Gossip and about $1,700.00 from Sneed. The most compelling corroborative evidence, in a light most favorable to the State, is the discovery of the money in Glossip’s possession. There was no evidence that Sneed had independent knowledge of the money under the seat of the car. Id. 2007 OK CR 12, § 43, 157 P.8d at 152. The OCCA also concluded: Glossip's motive, along with evidence that he actively concealed Van Treese’s body from discovery, as well as his plans to “move on,” connect him with the commission of this crime, Evidence that a defendant attempted to conceal a crime and evidence of attempted flight supports an inference of consciousness of guilt, either of which can corroborate an accomplice’s testimony. Id. 2007 OK CR 12, { 47, 157 P.3d at 153. In response to Petitioner's claim that the State’s evidence showed merely that he was an accessory after the fact, the OCCA wrote: “[dJespite this claim, a defendant’s actions after a crime can prove him guilty of the offen: Evidence showing a consciousness of guilt has been used many times.” Id. In a separate opinion, Judge Charles Chapel stated: “I agree with the majority that the State presented a strong circumstantial case against Glossip, which when combined with the testimony of Sneed directly implicating Glossip, was more than adequate to sustain his conviction for the first-degree murder of Barry Van Treese.” Id. 2007 OK CR 12, § 44, 157 P.3d at 175 (J. Shapel, dissenting). 14Petitioner has repeatedly attempted to undermine the reliability of Mr. Sneed’s testimony. As shown above, Mr. Sneed’s testimony was sufficiently corroborated. It was also highly credible as found by the trial judge, the late Twyla Mason Gray. Judge Gray, during an in camera conference, noted: . .. Fve also had an opportunity to observe the witnesses and it is fascinating to me to see the difference that it makes to observe the witnesses on the stand. Some of the opinions that I had based on reading the first transcripts I, frankly, had very different opinions after listening to the testimony as it was presented and observing the witnesses. And I’ve got to tell you that one of those observations was about Justin Sneed. And I did find him to be a credible witness on the stand. (Vol. 15, Tr. 45) (emphasis added). Additional fact will be discussed below as they become pertinent to Respondent's argument. REASONS FOR DENYING THE WRIT Petitioner fails to present this Court with an important question of federal law arising in this case that requires resolution by this Court. Nor has he presented any circuit or state court decisions that conflict with the OCCA’s ruling in this case. Nor has he even shown that the Oklahoma court's decision conflicts with a decision from this Court. This is because, at best, Petitioner asks this Court to review the OCCA’s rejection of his actual innocence claim on pure state law grounds during state post- conviction proceedings. Potitioner's mere disagreement with the state court's rejection, of this claim does not warrant certiorari review. 151 CERTIORARI SHOULD BE DENIED BECAUSE PETITIONER ASKS THIS COURT TO DO LITTLE MORE THAN REVIEW THE OCCA’S REJECTION OF HIS “NEW” CLAIM BASED ON PURE STATE LAW GROUNDS DURING STATE POST-CONVICTION REVIEW. Petitioner believes he is entitled to certiorari review, and a stay of execution, because of the OCCA’s denial of his claim based on alleged newly discovered evidence in the form of (1) evidence that Mr. Sneed, while in prison, bragged about lying about Petitioner and said that Petitioner was not involved in the murder; (2) evidence that Mr. Sneed was a “severe, thieving, methamphetamine addict”; (8) expert opinions that Mr. Sneed was interrogated in a manner to produce false and unreliable information; and (4) a purported recent interview of Mr. Sneed allegedly containing inconsistencies. Petition for a Writ of Certiorari to the Oklahoma Court of Criminal Appeals (“Petition”) at 2-15. Petitioner contends that his “new” evidence shows his actual innocence and that, in light of this evidence, his execution would violate the Eighth and Fourteenth Amendments because he is innocent, insufficient evidence now supports his convictions, and his death sentence is predicated “solely” on the undermined testimony of Mr. Sneed. Id. at Iii, 17-18. He further suggests that, in the face of his new evidence, it was unconstitutional for the OCCA to deny relief without an evidentiary hearing on his post-conviction application. Id. at ii, 17. Respondent submits that Petitioner is not entitled to certiorari review of this claim because Petitioner fails to present any compelling federal constitutional issue 16requiring resolution by this Court. Rule 10, Rules of the Supreme Court of the United States, provides in pertinent part the following: Review on a writ of certiorari is not a matter of right, but of judicial discretion. A petition for a writ of certiorari will be granted only for compelling reasons. The following, although neither controlling nor fully measuring the Court's discretion, indicate the character of the reasons the Court considers: (a) a United States court of appeals has entered a decision in conflict with the decision of another United States court of appeals on the same important matter; has decided an important federal question in a way that conflicts with a decision by a state court of last resort; or has so far departed from the accepted and usual course of judicial proceedings, or sanctioned such a departure by a Tower court, as to call for an exercise of this Court's supervisory power; (b) _ astate court of last resort has decided an important federal question in a way that conflicts with the decision of another state court of last resort or of a United States court of appeals; (© _ astate court or a United States court of appeals has decided an important question of federal law that has not been, but should be, settled by this Court, or has decided an important federal question in a way that conflicts with relevant decisions of this Court. A petition for a writ of certiorari is rarely granted when the asserted error consists of erroneous factual findings or the misapplication of a properly stated rule of law. (emphasis added). In the instant case, Petitioner has failed to develop a compelling federal constitutional issue that even approaches the above categories of cases, The Oklahoma 7court’s rejection of his claim of “new” evidence represents an application of established state procedural bar rules (Okla. Stat. ti § 1089) to Petitioner's second state post- conviction relief application. Petitioner has identified no circuit or state court decisions or for that matter decisions from this Court — with which the OCCA’s ruling conflicts. At best, Petitioner asks this Court to review the OCCA’s application of a state procedural bar rule to the claim contained in his second post-conviction application, a matter of state law. In other words, Petitioner primarily complains of a misapplication ofa properly stated rule of state law by the OCCA in denying his second post-conviction application. Accordingly, certiorari review should be denied based solely upon Petitioner's failure to develop any compelling federal question, or conflict in federal law, that requires resolution by this Court. ‘The OCCA Denied Petitioner’s Subsequent Post-Conviction Application on State Procedural Bar Grounds and Did Not Decide a Federal Question. In denying Petitioner's post-conviction application, the OCCA applied provisions of the Oklahoma Post-Conviction Procedures Act, which provides in pertinent part the following: 8. Ifanoriginal application for post-conviction relief is untimely or if a subsequent application for post-conviction relief is filed after filing an original application, the Court of Criminal Appeals may not consider the merits of or grant relief based on the subsequent or untimely original application unless: a, the application contains claims and issues that have not been and could not have been presented previously in a timely original application or in a previously considered application filed under this section, because the legal basis for the claim was unavailable, or 18b. (@)_the application contains sufficient specific facts establishing that the current claims and issues have notand could not have been presented previously in a timely original application or ina previously considered application filed under this section, because the factual basis for the claim was unavailable as it was not ascertainable through the exercise of reasonable diligence on or before that date, and (2) 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 the alleged error, no reasonable fact finder would have found the applicant guilty of the underlying offense or would have rendered the penalty of death. 22 0.S.2011, § 1089(D)(8); see OC! 0A Opinion at 2-3.4 Here, Petitioner attempted to raise a claim based on a newly discovered factual predicate under § 1089(D)(8)(b) — specifically, that it would violate the Eighth and Fourteenth Amendments to execute him based solely on Mr. Sneed’s testimony, especially in light of new evidence casting doubt on Mr. Sneed’s credibility. Gossip v. State, PCD-2015-820, Successive Application for Post-Conviction Review at 14-24, dated Sept. 15, 2015 (“Successive Application’).° The OCCA reviewed Petitioner's post-conviction claim against the “Judge Lewis's opinion, in which Judges Lumpkin and Hudson specially concurred, is the OCCA’s controlling opinion, while the opinions of Judges Lumpkin and Hudson offer additional explanation for the majority opinion’s rationale, Under the Rules of the Oklahoma Court of Criminal Appeals, a judge who specially concurs with an opinion “agrees with the rationale and result reached, but would like to add specific authority or explanation to the rationale used in the opinion.” Rule 3.13(C)(2), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2015). 'Petitioner raised three additional propositions of error in his post-conviction application: (1) Petitioner received ineffective assistance when trial counsel failed to attack Mr. Sneed’s credibility; (2) Petitioner's second trial violated double jeopardy (continued...) 19procedural requirements in § 1089(D)(8) to determine whether merits review was appropriate and concluded that the claim was procedurally barred. OCCA Opinion at 4-7. First, the OCCA determined that Petitioner's claim was barred by § 1089(D)(8)(b)(1) because it was, or could have been, previously raised. See OCCA Opinion at 5-6; id. at 3 (Hudson, J., specially concurring). Specifically, the OCCA found on direct appeal that Mr. Sneed’s testimony was sufficiently corroborated to support Petitioner's conviction. OCCA Opinion at 6; id, at 8 (Hudson, J., specially concurring). Thus, Petitioner's “new’ evidence merely expand|ed] on theories” already presented to the OCCA. OCCA Opinion at 5. Further, to the extent that Petitioner now offered a “new slant” on his original evidentiary sufficiency claim, or argued that a death sentence cannot be predicated solely on the testimony of a murderer whose story has changed, such claims could have been earlier raised and were now barred. OCCA Opinion at 3 (Hudson, J., specially concurring). In addition, Petitioner did not explain why the information offered in support of his claim “could not have been developed with due diligence earlier,” as required by § 1089(D)(8)(b)(1). OCCA Opinion at 3 Hudson, J., specially concurring). *(...continued) because the evidence at his first trial was insufficient to support his murder conviction; and (8) Petitioner received ineffective assistance when trial counsel failed to adequately prepare for and challenge the medical examiner's testimony. Successive Application at 24-33. However, Petitioner makes no reference to these claims in his petition before this Court and does not argue that the OCCA’s rejection of these claims entitles him to certiorari review. 20Second, the OCCA concluded that Petitioner's claim was barred by § 1089(D)(8)(b)(2). Specifically, Petitioner did not show by clear and convincing that no reasonable fact finder would have found him guilty or rendered the penalty of death in light of the new information proffered in support of his claim. OCCA Opinion at 6; id. at 3-4 (Hudson, J., specially concurring). The OCCA explained: On direct appeal this Court found that Sneed’s testimony was sufficiently corroborated for a conviction. Even with this “new” evidence, presented in his successive application, Sneed’s testimony is still corroborated. None of the trial witnesses have recanted their testimony, and Glossip has presented no credible evidence that the witnesses gave falsified testimony at trial. The thorough discussion of the facts and our conclusion that those facts were sufficient in our 2007 Glossip v. State Opinion has not been refuted with credible documentation. Glossip’s conviction is not based solely on the testimony of a codefendant and the execution of the sentence will not violate the Eighth Amendment to the United States Constitution. OCCA Opinion at 6. After determining that Petitioner's claims were waived and procedurally barred under § 1080(D)(8)(b)(1) and (2), the OCCA also proceeded to reject Petitioner's claim that relief should be granted — despite these procedural bars — to avoid a miscarriage of justice, pursuant to Valdez v. State, 46 P.3d 703 (Okla. Crim. App. 2002). OCCA Opinion at 3-4, 6. In Valdez, the OCCA held that it had “power to grant relief when an error complained of has resulted in a miscarriage of justice, or constitutes a substantial violation of a constitutional or statutory right,” based on Okla. Stat. tit. 20, § 8001.1. Valdes, 46 P.3d at 710-11, In Petitioner's case, the OCCA concluded that his claim failed to show that he had suffered or would suffer a miscarriage of justice if 2relief were not granted based on the OCCA’s inherent power to grant relief where other avenues are barred or waived. OCCA Opinion at 6. Neither ground relied on by the OCCA in denying relief — its application of § 1089(D)(8)(b) or its conclusion that Petitioner did not show a miscarriage of justice under Valdez ~ presents a compelling federal question or conflict in federal law that warrants the grant of certiorari review. As to the former ground for denying relief, the instant petition amounts essentially to Petitioner's disagreement with the OCCA’s application of its state procedural bars in § 1089. Such is not a cognizable issue in federal court, even on certiorari review from the state court’s decision. This Court is bound by the OCCa’s construction and interpretation of Oklahoma law. See Johnson v. Fankell, 520 U.S. 911, 916 (1997) (‘Neither this Court nor any other federal tribunal has any authority to place a construction on a state statute different from one rendered by the highest court of the State.”); Robinson v. California, 370 U.S. 660, 666 (1962) (holding that a state court's construction of state statutes is “a ruling on a question of state law that is binding on [federal courts] as though the precise words had been written into the statute” (quotation marks omitted). Thus, this Court is unable to somehow expand, or redefine, Oklahoma's standard for bringing a claim based on newly discovered facts in § 1089(D)(8)(b), no matter how much Petitioner might wish it were so. Second, the OCCA’s application of the miscarriage of justice exception under Valdez to Petitioner's case is also not a cognizable issue in federal court, even on certiorari review from the state court’s decision. Specifically, the OCCA’s conclusion 22that Petitioner's claims did not make a sufficient showing for this state law miscarriage of justice standard docs not present a compelling federal question. ‘The Oklahoma court was not required to follow any particular federal constitutional standards of review in determining whether Petitioner had shown a miscarriage of justice sufficient for his procedurally barred claims to receive post-conviction merits review. Petitioner’s Freestanding Actual Innocence Claim Does Not Warrant Certiorari Review. In his petition, Petitioner asserts that he has made a showing of actual innocence, such that his execution would be unconstitutional under Herrera v. Collins, 506 U.S. 390 (1993). Petition at ii, 18 n.6. Petitioner is not entitled to certiorari review of his actual innocence claim based on Herrera for multiple reasons. First, this Court has recognized that “[eJlaims of actual innocence based on newly discovered evidence have never been held to state a ground for federal habeas relief absent an independent constitutional violation occurring in the underlying state criminal proceeding.” Herrera, 506 U.S. at 400. If this is true for federal habeas review of a state conviction, it most certainly is true of certiorari review of a state court’s denial of a second application for post-conviction relief like in this case. In his second post-conviction application, Petitioner raised a claim of ineffective assistance of counsel for failing to challenge Mr. Sneed’s testimony based on the manner in which he was interrogated and evidence of his drug conviction. Butin his Petition before this Court, Petitioner does not advance any argument concerning ineffective assistance, and he instead contends that his execution is now unconstitutional based solely on alleged 23new evidence. Moreover, although Petitioner contends that the evidence is now insufficient to support his conviction, this Court recognized in Herrera that “sufficiency of the evidence review . . . is limited to ‘record evidence’ . . . [and] does not extend to nonrecord evidence, including newly discovered evidence.” Herrera, 506 U.S. at 402 (citing Jackson v. Virginia, 443 U.S. 307, 318 (1979)). Second, Herrera did not purport to establish standards for a state court to apply when denying actual innocence claims under state law. Indeed, the entire issue of actual innocence arose in Herrera because, under Texas law, a claim of actual innocence notwithstanding the verdict could not be raised on post-conviction review. Id, (‘Such a claim is not cognizable in the state courts of Texas. For to obtain a new trial based on newly discovered evidence, a defendant must file a motion within 30 days after imposition or suspension of sentence.”). Further, this Court held that the ‘Texas court's refusal to entertain Herrera’s newly discovered evidence eight years after his conviction did not transgress a principle of fundamental fairness and thus did not violate due process. Id. at 407-11 In addition, although this Court in Herrera “assume[d], for the sake of argument , that in a capital case a truly persuasive demonstration of ‘actual innocence’ made after trial would render the execution of a defendant unconstitutional,” this Court indicated that such a demonstration would warrant federal habeas relief only “if there were no state avenue open to process such a claim.” Id. at 417. In the instant case, Petitioner had multiple state avenues in which to pursue his actual innocence claim. Unlike the defendant in Herrera, Petitioner was able to raise his actual innocence 24claim in state court through his state post-conviction application filed pursuant to § 1089(D)(8). Based on his post-conviction application, Petitioner received a stay of execution and a thorough consideration of his claim. Further, Petitioner requested executive clemency from the Oklahoma Pardon and Parole Board. Id. at 411-12 (Clemency is deeply rooted in our Anglo-American tradition of law, and is the historic remedy for preventing miscarriages of justice where judicial process has been exhausted.” (footnote omitted). In Oklahoma, as this Court in Herrera noted was the case in Texas, the Governor has the power, upon the recommendation of a majority of the Board of Pardons and Parole, to grant clemency. Id. at 416; Okla. Const. art. VI, § 10. Thus, Herrera provides Petitioner no relief because he has had multiple reviews of his meritless actual innocence claims. Inany event, even assuming that Petitioner did not have other avenues of relief, Petitioner has not made a “truly persuasive demonstration of ‘actual innocence.” See Herrera, 506 U.S. at 417. The Herrera Court explained as to persuasive demonstrations of actual innocence that, “because of the very disruptive effect that entertaining claims of actual innocence would have on the need for finality in capital cases, and the enormous burden that having to retry cases based on often stale evidence would place on the States, the threshold showing for such an assumed right would necessarily be extraordinarily high.” Id.; House v. Bell, 547 U.S. 518, 554-55 (2006) (declining to resolve the open issue of whether, in a capital case, a truly persuasive demonstration of actual innocence made after trial would render the defendant's execution unconstitutional, but reaffirming that the threshold for such a 25freestanding innocence claim would be “extraordinarily high”). As summarized above, the evidence presented at trial established Petitioner's guilt beyond a reasonable doubt. In light of the evidence presented at trial, Petitioner's alleged “new” evidence falls far short of the extraordinarily high burden for a truly persuasive demonstration of his actual innocence. First, Petitioner relies on the affidavits of Michael Scott and Joseph Tapley, who allegedly were formerly incarcerated with Mr. Sneed. Petition at 3-5, 11. Mr. Scott, who did not come forward until September 2015, writes that, in 2006 or 2007, he heard ‘Mr. Sneed say that he “set Richard Glossip up” and that “Richard Glossip didn’t do anything.” Mr. Tapley, who did not come forward until less than 24 hours before Petitioner's first scheduled execution, claims that, in 1997, Mr. Sneed described Mr. Van Treese’s murder to him but never mentioned Petitioner's involvement. The affidavits of Mr. Scott and Mr. Tapley fail to make a persuasive showing of actual innocence for multiple reasons. To begin with, this Court recognized in Herrera that requests for new trials based solely on affidavits are disfavored because the affiants’ statements are obtained without the benefit of cross-examination and an opportunity to make credibility determinations. Herrera, 506 U.S. at 417. Further, to the extent that such affidavits contain hearsay, like Mr. Scott's, they are “particularly suspect.” Id. In addition, like the affiants in Herrera, Mr. Scott and Mr. Tapley offer no convincing explanation for why they waited until the eleventh hour to come forward with their claims. See id. at, 417-18; see also McQuiggin v. Perkins, 133 S. Ct. 1924, 26(2013) (holding, as to actual innocence gateway claims for overcoming procedural bar: /hat:“[u}nexplained delay in presenting new evidence bears on the determination whether the petitioner has made the requisite showing” and “a court may consider how the timing of the submission and the likely credibility of a petitioner's affiants bear on the probable reliability of evidence of actual innocence” (quotation marks omitted and alterations adopted). Mr. Scott, who claims to have heard Mr. Sneed admit to falsely implicating Petitioner, states that he “realized just how important this information was” only after viewing a Dr. Phil segment about Petitioner. However, this explanation is inconsistent with Mr. Scott's claim that, among the inmates incarcerated with Mr. Sneed, “it was common knowledge that Justin Sneed lied and sold Richard Glossip up the river” and that Mr. Sneed repeatedly bragged about, “solling Richard Glossip out.” In other words, Mr. Scott understood at the time of Mr. Sneed’s statements the implications of Mr. Sneed’s alleged perjury for Petitioner, and Mr. Seott does not explain what new information he learned during the Dr. Phil segment that in any way changed his understanding of Mr. Sneed’s statements or their implications for Petitioner. Mr. Tapley’s affidavit, generated around 18 years after Mr. ‘Tapley claims he heard Mr. Sneed make the alleged statements in 1997, also lacks a convincing explanation for why he did not earlier come forward with his claims. Mr. Tapley’s claims further lack credibility because he admits to using methamphetamine with Mr. Sneed while incarcerated and states that Mr. Sneed was “tweaking” while in jail, such that it appears that Mr. Tapley is describing conversations that, if they happened at, 27all, occurred while Mr. Tapley and Mr. Sneed were under the influence of drugs. More importantly, Mr. Tapley’s affidavit does not make a persuasive showing of actual innocence because, even accepting his claimsas true, Mr. Sneed never actually told Mr. Tapley that he acted alone in killing Mr. Van Treese. It is apparent from the face of the affidavit that Mr. Tapley merely assumes that Mr. Sneed acted alone because Sneed did not mention an accomplice. Perhaps Mr. Sneed failed to mention Petitioner because he did not want to become known in the jail as a “snitch.” In any event, it cannot be said that Mr. Tapley’s affidavit meets the extraordinarily high threshold for showing Petitioner's actual innocence. Second, Petitioner relies on the affidavit of Richard Barrett and the report of Dr. Pablo Stewart in support of his allegations that Mr. Sneed was addicted to methamphetamine at the time of the killing and that Mr. Sneed’s actions were consistent with a methamphetamine addict acting “erratically and violently.” Petition at 6-10. None of the allegations of Mr. Barrett and Dr. Stewart meets the extraordinarily high threshold for a persuasive demonstration of actual innocence. Mr. Barrett's affidavit merely discusses his unlawful actions with Bobby Glossip (Petitioner's brother) and Mr. Sneed involving methamphetamine. Mr. Barrett claims that Mr. Sneed was a drug user. This information w 6 known at Petitioner's trial, however, as Mr. Sneed testified to his use of marijuana and crank (Vol. 12, Tr. 47). ‘The record also reveals, contrary to the affidavit of Mr. Barrett, that Mr. Sneed admitted during Petitioner's first trial to using methamphetamine, although Mr. Sneed testified that he snorted it, rather than shooting it in his arm (1998 Vol. 6, Tr. 111- 28112). Further, Mr. Barrett's affidavit is highly suspect because, contrary to trial testimony,® Mr. Barrett claims he “saw nothing to make me think that Justin Sneed was controlled by Richard Glossip.” Additionally, it is unclear how Mr. Barrett would know whether Mr. Sneed was controlled by Petitioner — unlike others who dealt with Petitioner and Mr. Sneed on a continuous basis — because Mr. Barrett claims that Petitioner had very little interaction with either Mr. Sneed or Bobby Glossip in his presence. Dr. Stewart’s report also fails to support a persuasive demonstration of actual innocence. Dr. Stewart's findings are based on speculation that Mr. Sneed was a methamphetamine addict and that he used it intravenously over a period of time. As noted above, Mr. Sneed testified specifically that he used marijuana and “a little bit of crank” (Vol. 12, Tr. 47). He also testified that he snorted it, rather than injecting it intravenously (1998 Vol. 6, Tr. 111-12). Further, Dr. Stewart based his opinion on information that he received stating that Mr. Sneed was prescribed lithium upon his "Petitioner and Justin Sneed were described as “very close” friends by Billye Hooper, the front desk clerk at the motel (Vol. 12, Tr. 28). Mr. Sneed was largely dependent upon Petitioner for food and money (Vol. 9, Tr. 21; Vol. 12, Tr. 28). Kayla Pursley testified that Mr. Sneed usually followed Petitioner when they were together, that you normally did not see one without the other, and that “[Petitioner] would have to tell him what to do and how to do it.” (Vol. 9, Tr. 19-20, 23). Petitioner had control over Mr. Sneed because Mr. Sneed had no other place to go and no family in the area (Vol. 9, Tr. 21, 24), Ms. Pursley observed that “[yJou had to almost tell [Sneed] what to do in any circumstance, whether it was a working relationship or personal.” (Vol. 9, Tr. 28). Cliff Everhart testified that Mr, Sneed was Petitioner's “puppet”, that Mr. Sneed “was not self-motivated. [Petitioner] told him everything to do. [Petitioner] would tell him to do this, he'd do it. .. If he needed something, he'd come to [Petitioner].” (Vol. 11, Tr. 185). 29arrest. However, records submitted by Petitioner in his original application for post- conviction relief, No. PCD-2004-978, reveal that Mr. Sneed was not prescribed lithium until March, 1997 after having a tooth pulled. See Appendix 4 attached to original application for post-conviction. Thus, Dr. Stewart's opinion is based on unreliable and false information. ‘Third, Petitioner relies on the opinion of Richard A. Leo, Ph.D., J.D., as “new” evidence revealing that interrogation techniques used during Mr. Sneed’s interrogation were improper and increased the risk of obtaining false statements. Petition at 12-13. However, Dr. Leo merely concludes that the interrogation techniques “could have caused” Mr. Sneed to make a false statement. The record reveals that Mr. Sneed, like most individuals accused of a crime, began by minimizing his involvement and then finally admitted his own involvement and the involvement of Petitioner in the murder. Although Mr, Sneed may have continued adding facts, even during Petitioner's second trial, Mr. Sneed was consistent in his statement that Petitioner was the mastermind behind the murder. Further, trial counsel effectively cross-examined Mr. Sneed on the evolution of his statement from denial to admission of guilt and his withholding of information. (Vol. 12, Tr. 205-213; Vol. 13, Tr. 6-50). In addition, the record shows Mr. Sneed was not promised anything, nor had he spoken to anyone from the District Attorney's office prior to giving his statement (Vol. 12, Tr. 54-55). Thus, the statement was not given to receive a plea agreement. The opinion of Dr. Leo does not support a truly persuasive demonstration of actual innocence. 30Fourth, Petitioner relies on an alleged recent interview of Mr. Sneed by a news reporter. Petition at 13-15, For starters, although Petitionor claims “{a] transcript of the interview was presented to the lower court,” Petition at 13, Petitioner never properly and timely filed this transcript in the OCCA. Rather, Petitioner filed this, transcript with his supplemental reply only after the OCCA had denied his post- conviction application and the mandate had issued.” Thus, this transcript was not properly before the OCCA and this Court should decline to consider it in determining whether to grant certiorari review. In any event, the transcript of Mr. Sneed’s interview does not offer persuasive evidence of Petitioner's actual innocence. In the interview, Sneed never recants his testimony against Petitioner and, in fact, reaffirms his testimony, stating that his explanation of the killing is “the same as I told the juries... . It still goes back to the same factors, that Mr. Glossip coerced me and pleaded with me for over three months.” Glossip v. State, PCD-2015-820, Reply to State's September 24, 2015 Response to Petitioner’s Supplement to Successive Application for Post-Conviction Review, Attachment § at 1, dated Sept. 28, 2015.* As the OCCA reasoned in denying "The OCCA’s Rules governing post-conviction applications do not contemplate or explicitly provide for a reply to the State's response to a post-conviction application. See generally Rule 9.7, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch 18, App. (2015). Thus, there was nothing improper in the OCCA’s denying Petitioner's post-conviction application prior to receiving a supplemental reply to the State’s supplemental response. *Petitioner has not presented the entire transcript of Mr. Sneed’s interview in his Petition to this Court. 31Petitioner's post-conviction application, “None of the trial witnesses have recanted their testimony, and Glossip has presented no credible evidence that the witnesses gave falsified testimony at trial.” OCCA Opinion at 6. Thus, Mr. Sneed’s statements in the interview merely serve to undermine Petitioner's claim that he testified falsely against Petitioner and support the OCCA’s determination that no trial witnesses have recanted and that Petitioner has offered no credible evidence otherwise.” Accordingly, Petitioner is not entitled to relief. In sum, the evidence Petitioner relies on his petition for certiorari review does not make a persuasive demonstration of his actual innocence. Even assuming arguendo that this evidence would be relevant to Mr. Sneed's credibility, this Court in Herrera suggested that such evidence is insufficient to show actual innocence when produced so many years after a trial: This is not to say that petitioner's affidavits are without probative value. Had this sort of testimony been offered at trial, it could have been weighed by the jury, along with the evidence offered by the State and petitioner, in deliberating upon its verdict. Since the statements in the *Petitioner refers this Court to Appendix H, claiming that Mr. Sneed has in the past expressed a wish to recant his testimony and quotes what appears to be statements of Mr. Sneed’s daughter. See Petition at 11 n.3. However, there is no evidence in the record of an affidavit or of sworn statements from Mr. Sneed’s daughter, Ryan Justine Sneed. Petitioner merely produced hearsay in an affidavit from Crystal Martinez, who claims that she spoke to Ms. Sneed and that Ms. Sneed stated her father had lied about Petitioner's involvement to avoid the death penalty. Ms. Martinez claims to have received a “rough draft” of a letter written by Ms. Sneed and swears that she has “the e-mail traffic saved.” However, as presented in Petitioner's Successive Application, attached to Ms, Martinez’s affidavit is neither “the e-mail traffic’ or a copy of the actual e-mail she claims to have received from Ms. Sneed. As discussed above, contrary to Ms. Martinez’s claims, Mr. Sneed has spoken on the issue and has denied recanting. 32affidavits contradict the evidence received at trial, the jury would have had to decide important issues of credibility. But coming 10 years after petitioner's trial, this showing of innocence falls far short of that which would have to be made in order to trigger the sort of constitutional claim which we have assumed, arguendo, to exist. Herrera, 506 U.S. at 418-19. Similarly, here, even if Petitioner's evidence is relevant to Mr, Sneed’s credibility, this evidence — produced more than a decade after Petitioner's trial — does not meet the extraordinary threshold for showing actual innocence. Therefore, even assuming that a truly persuasive, freestanding showing of actual innocence would merit federal habeas review, Petitioner's case does not warrant certiorari review. Petitioner Received the Process to Which He was Due Under Oklahoma Law. The real question here is whether Petitioner received the process to which he was due under Oklahoma law with respect to the review of his claim raised in a second or subsequent post-conviction application that could have been or was raised previously. Review of the OCCA’s denial of Petitioner's second post-conviction application makes clear that Petitioner received all the process to which he was due under existing Oklahoma law. The OCCA gave Petitioner a full and fair review of his procedurally barred claim ~a claim that was, in one form or another, already litigated on direct appeal. The OCCA properly concluded that Petitioner's claim was barred by § 1089(D)(8)(b) because it was previously raised and was based on facts that could have been previously discovered through the exercise of reasonable diligence. Oklahoma’s Procedural Rules for Raising Successive Post-Conviction Claims Do Not Offend Due Process. Petitioner suggests that it violates the Eighth 33and Fourteenth Amendments “for a State not to provide a procedure for determining facts in the face of sworn affidavits and other evidence demonstrating the sole testimony upon which a conviction and sentence of death are based is unreliable.” Potition at ii, He also suggests that he was entitled to an evidentiary hearing in his, state post-conviction proceedings. Petition at 17. Petitioner has not demonstrated that Oklahoma lacks a post-conviction procedure for the consideration of his actual innocence claim or that Oklahoma's post-conviction procedural rules are unconstitutional. Thus, certiorari review is not warranted on this ground, ‘To begin with, Oklahoma does have a procedure for consideration of Petitioner's new evidence and claim of actual innocence ~ Okla. Stat. tit. 22, § 1089, as discussed in great length above. Moreover, § 1089 provides for the possibility of an evidentiary hearing where a post-conviction application raises “controverted, previously unresolved factual issues material to the legality of the applicant's confinement” and meets other requirements. 22 0.8.2011 § 1089(D)(5), (6). Petitioner's failure to meet the requirements of § 1089(D) in his post-conviction application, or show entitlement to a remand to the trial court or an evidentiary hearing under that section, does not establish that Oklahoma provides no procedure for the consideration of new evidence and allegations of actual innocence. Petitioner has further failed to demonstrate that Oklahoma’s post-conviction. procedural rules are unconstitutional. 'This Court has explained that a state-created right to prove one’s innocence with new evidence under state law can create a liberty interest in that right and, “in some circumstances, beget yet other rights to procedures 34essential to the realization of the parent right.” Dist. Attorney's Office for Third Judicial Dist. v. Osborne, 557 U.S. 52, 68 (2009) (considering Alaska’s post-conviction law providing that those who use newly discovered evidence to establish by clear and convincing evidence that they are innocent may obtain vacation of their conviction or sentence). However, because the presumption of innocence disappears after a fair trial, a state “has more flexibility in deciding what procedures are needed in the context of postconviction relief” and “ due process does not dictate the exact form such assistance must assume.” Id. at 68-69 (quotation marks omitted and alterations adopted). A prisoner's right to due process in the post-conviction setting is “not parallel to a trial right, but rather must be analyzed in light of the fact that he has already been found guilty at a fair trial, and has only a limited interest in postconviction relief.” Id. at 69. ‘Thus, the question is whether consideration of the prisoner's “claim within the framework of the State’s procedures for postconviction relief offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental, or transgresses any recognized principle of fundamental fairness in operation.” Id. (quotation marks omitted). “Federal courts may upset a State's postconviction relief procedures only if they are fundamentally inadequate to vindicate the substantive rights provided.” Id. Petitioner has not shown that Oklahoma’s procedures for vindicating any limited state right he has to post-conviction relief are inadequate. Oklahoma's procedural requirements in § 1089(D)(8)(b) — that actual innocence claims be based on facts that could not have been earlier discovered through the exercise of reasonable diligence and 35show no reasonable fact finder would have found the petitioner guilty — appear to be in line with, or at least similar to, the analogous federal standard and the laws of many other states, See 28 U.S.C. § 2255(h)(1) (requiring a federal prisoner seeking permission to file successive motion to vacate to show “newly discovered evidence that, ifproven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no reasonable factfinder would have found the movant guilty of the offense”); John M. Leventhal, A Survey of Federal and State Courts’ Approaches to A Constitutional Right of Actual Innocence: Is There A-Need for A State Constitutional Right in New York in the Aftermath of Cpl $ 440.10(1(G-1)2, 76 Alb. L. Rev. 1453, 1473 (2013) (surveying state post-conviction statutes and concluding that, “in most jurisdictions, the petitioner must show (ata minimum) that... evidence [was] discovered since the trial and [was] not discoverable by reasonable diligence beforehand, and [is] of the sort that would probably change the jury’s verdict if'a new trial were granted’). Thus, Petitioner cannot show that the OCCA’s application of the procedural rules in § 1089(D)(8)(b) to his claim offended any principle of justice rooted in the traditions and conscience of our people or violated a principle of fundamental fairness. ‘To the extent that Petitioner contends that the OCCA’s failure to grant him an evidentiary hearing is unconstitutional, this argument is foreclosed by Herrera. See Herrera, 506 U.S. at 406-11 (holding that Texas court’s refusal to entertain petitioner's newly discovered evidence through an evidentiary hearing violated fundamental fairness). 36In addition, citing In re Davis, 557 U.S. 952 (2009), Petitioner contends that this Court should hold that procedural bars are unconstitutional if they result in the execution of an innocent man. Petition at 18 n.7. However, nothing in the majority opinion of Davis, which simply granted certain parties leave to file amici briefs and remanded to a federal district court for an evidentiary hearing, established that procedural bars that prevent a defendant from obtaining an evidentiary hearing based on claims that were previously raised and evidence that could have been earlier obtained through the exercise of due diligence are unconstitutional. Indeed, this Court in Davis remanded for “findings of fact as to whether evidence that could not have been obtained at the time of trial clearly establishes petitioner's innocence.” Davis, 557 U.S. 952 (emphasis added). Thus, Petitioner has not shown that the OCCA’s decision in this case or applic: ion of the procedural bars in § 1089(D) in any way conflicts with Davis. Therefore, certiorari review is not warranted on this ground. The OCCA’s Decision Does Not Conflict with Any Decisions of this Court, In addition to Herrera and Davis, which Respondent discussed above, Petitioner cites Atkins v. Virginia, 536 U.S. 304 (2002), and Kansas v. Marsh, 548 U.S. 168 (2006), in his petition. Petition at 17. However, as explained below, Petitioner does not even argue, and certainly does not demonstrate, that the OCCA’s rejection of his claim conflicted with this Court’s decisions in Atkins and Marsh. Citing to Atkins, Petitioner states that this Court “has recognized that false confessions are an intolerable risk in capital cases.” Petition at 17. First, this is an overstatement of Atkins's brief discussion of false confessions. In Atkins, the Supreme 37Court held that the execution of an intellectually disabled person violates the Eighth Amendment. Atkins, 536 U.S. at 321. In that context, the Supreme Court noted the enhanced risk of false confessions among intellectually disabled defendants and the number of recent exonerations, including an exoneration of an intellectually disabled death row inmate. Id. at 320-21 & n. . Second, and more importantly, nothing in. Atkins had any bearing on a state’s procedural rules for raising claims in subsequent post-conviction applications that had been or could previously have been raised, and thus, Petitioner has not shown that the OCCA’s decision in his case conflicts with Atkins, Petitioner cites to a dissenting opinion in Marsh for the proposition that “[t]his Court is sensitive to the risks of wrongful convictions and death sentences.” Petition at 17. In Marsh, this Court held that “the Kansas capital sentencing system, which directs imposition of the death penalty when a jury finds that aggravating and mitigating circumstances are in equipoise, is constitutional.” Kansas v. Marsh, 548 U.S. 163, 181 (2006). Again, nothing in Marsh concerned a state's procedural rules for raising claims in subsequent post-conviction applications, and the OCCA's decision in this case did not in any way conflict with Marsh. Insum, certiorari review is wholly unwarranted in this case because the OCCA’s rejection of Petitioner's claim, as a matter of pure state law, does not establish an issue of federal constitutional dimension requiring this Court's review. Petitioner bases his request. for certiorari review on little more than disagreement with the OCCA’s 38application of its state law procedural rules and does not identify any decision of this Court, or any other court, with which the OCCA’s decision conflicts. MOTION FOR STAY OF EXECUTION For the reasons discussed above, Petitioner's request for stay of execution should also be denied. Petitioner wholly fails to present this Court anything but his disagreement with the OCCA’s application of a state law procedural bar, and the miscarriage of justice exception, to his second post-conviction application. Thus, Petitioner has not shown a reasonable probability that this Court would grant a writ dei of certiorari or a significant possibility of reversal of the OCCA’s decision. See Barefoot v. Estelle, 463 U.S. 880, 895-96 (1983). To stay Petitioner's execution for further proceedings on this case would be a travesty of justice. Petitioner's request for stay of execution should therefore be denied. CONCLUSION For the reasons set forth above, Respondent respectfully requests this Court deny the Petition for Writ of Certiorari and deny Petitioner's motion for a stay of execution. 39*Counsel of Record Respectfully submitted, E. SCOTT PRUITT TORNEY Gi 313 N.E, 2ist Street Oklahoma City, OK 73105 (405) 521-3921 (405) 522-4534 FAX Service email: fhe.docket@oag.ok.gov ATTORNEYS FOR RESPONDENT 40