Petitioner Kirk Douglas Byrd, an Oklahoma state prisoner currently serving a fifty-five-year sentence, appeals from the district court’s denial of his 28 U.S.C. § 2254 habeas petition. Mr. Byrd alleges that he received ineffective assistance of counsel because his trial counsel (1) failed to investigate whether his prior felony convictions would be admissible for purposes of enhancing his sentence under OMahoma’s repeat-offender statute, and (2) introduced all of his prior convictions to the jury when three of them were otherwise inadmissible. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.
I. BACKGROUND
In April 2004, Mr. Byrd was charged in a ten-count amended information with, inter alia, Unlawful Possession of a Controlled Drug, Driving Under the Influence (“DUI”) of Intoxicating Liquor — Second Offense, 1 Assault and Battery Upon a Police Officer, and Unlawful Possession of Marijuana — Second Offense. 2 These charges arose from a late-night traffic stop on February 11, 2004, the related altercation between Mr. Byrd and the officer who instigated the stop, and the ensuing search of Mr. Byrd and his vehicle. Prior to this arrest, Mr. Byrd was no stranger to the law — he had previously been convicted of seven felonies with sentences totaling ninety years. 3 Consequently, the Respondent *1162 sought enhancement of Mr. Byrd’s sentence under Oklahoma's repeat-offender statute at trial. See Okla. Stat. tit. 21, § 51.1(B) (“Every person who, having been twice convicted of felony offenses, commits a subsequent felony offense ... within ten (10) years of the date following the completion of the execution of the sentence, ... [may be] punish[ed] by imprisonment ... for a term in the range of twenty (20) years to life imprisonment.”).
Pursuant to Oklahoma law, a criminal defendant facing a sentence enhancement under § 51.1(B) is entitled to a bifurcated trial; in the first stage — which focuses on the determination of guilt — a defendant’s prior convictions should not be referenced, except as permitted by the rules of evidence. See Okla. Stat. tit. 22, § 860.1. As a result, when the arresting officer referenced Mr. Byrd’s prior convictions on direct examination during the first stage of his initial trial, the state trial court sua sponte declared a mistrial. At Mr. Byrd’s second trial, the Respondent presented its case-in-chief without reference to the defendant’s prior convictions.
In anticipation of the defense’s affirmative case, an admittedly confusing colloquy took place between the trial court judge, the prosecutor, and Mr. Byrd’s trial counsel, Ms. Paula Keck and Mr. Curt Allen, wherein it was discussed whether Mr. Byrd would testify at all, and, if so, how his previous convictions would be treated. The trial court determined that, should Mr. Byrd testify at this stage, he could do so without reference to his prior DUIs and drug-related offenses, which accounted for all but one of his previous felony convictions. Moreover, the court concluded that references to these convictions were inadmissible even for impeachment purposes as their probative value was outweighed by the potential prejudicial effect of their introduction.
The trial court did, however, indicate that Mr. Byrd could be questioned as to his other conviction — namely, his Escape conviction — and as to the total number of previous felony convictions he had, although the State would be barred from soliciting further information. Further, it rebuffed Mr. Byrd’s suggestion that he be allowed to admit to two of his prior convictions to fulfill the requirements of § 51.1(B) without exposing himself to additional questioning about his criminal past. The trial court acknowledged that Mr. Byrd may admit to his prior convictions at the guilt phase of the proceedings, but warned that such an admission would waive the protection of the two-stage trial, thereby allowing the prosecution to put on evidence of all his relevant prior convictions as such evidence would have been admissible during phase two of the proceedings. 4
Faced with the apparent choice of either a single-stage trial wherein he would admit to all his prior convictions himself, or a bifurcated trial wherein the prosecution would be able to impeach him with his Escape conviction and the number of his previous felony convictions, before presenting the full array of his prior convictions and sentences at the second phase, Mr. Byrd chose to be up-front about his *1163 criminal past. Mr. Byrd admitted to each of his previous seven felony convictions on direct examination during the guilt phase of his trial, and his counsel did not object when the prosecution, on cross-examination, introduced copies of judgment-and-sentence reports for those convictions. The jury eventually found Mr. Byrd guilty on all counts, and the court sentenced him to sixty-five years in jail, plus fines. 5
Following his conviction, Mr. Byrd appealed to the OCCA. Represented by new counsel on appeal, Mr. Byrd raised nine propositions of error, two of which are relevant to the present proceedings. First, he claimed that several of his prior felony convictions arose from the same transaction or occurrence, and therefore were inadmissible for enhancement purposes. Section 51.1(B) requires that the predicate felony convictions “relied upon shall not have arisen out of the same transaction or occurrence or series of events closely related in time and location,” Okla. Stat. tit. 21, § 51.1(B), and Mr. Byrd argued that his trial lawyers were ineffective in failing to investigate the “transactional” nature of some of his prior convictions. He maintained that, had his trial lawyers been effective, they would have known that several of his prior convictions would have been inadmissible even in a two-stage trial. Second, he claimed that his trial lawyers were ineffective for presenting these otherwise inadmissible prior convictions to the jury through his testimony.
Applying the standard set forth in
Strickland v. Washington,
Addressing the second prong of Strickland, the OCCA concluded that “no prejudice resulted” from “trial counsel’s failure *1164 to raise this issue at trial” because “[e]ven when three of the prior convictions used for enhancement are excluded, four valid prior convictions remain[ed],” and “the sentences imposed ... were relatively light considering Appellant was a habitual offender.” Id. This lack of prejudice, the OCCA determined, was fatal to this claim.
The OCCA then turned to Mr. Byrd’s claim that his trial counsel was ineffective for introducing his prior convictions. When addressing this issue, the OCCA concluded that his trial lawyers’ decision to elicit this information constituted “sound trial strategy.” Id. at 336. In making this determination, the OCCA relied on two conclusions: first, that “the trial court ruled the State would be permitted to introduce the prior convictions and the sentences received for impeachment purposes if Appellant took the witness stand,” id. at 335; and, second, that “as this was a one stage trial, the State was able to question Appellant [in any event] about his prior convictions which could be used to enhance his sentence should the jury find him guilty,” id. However, the trial court actually had specifically ruled that all of Mr. Byrd’s prior convictions, except for his Escape conviction, were inadmissible for impeachment purposes, and it was only his trial lawyers’ decision to question Mr. Byrd about his prior convictions and sentences in the first place that made Mr. Byrd’s trial a one-stage proceeding.
Relying on its faulty understanding that Mr. Byrd’s convictions were otherwise admissible, the OCCA concluded that “defense counsel’s decision to elicit the information concerning the priors on direct examination appears to have been calculated trial strategy to lessen the impact of the priors than if the State had been allowed to bring them to the jury’s attention first.” Id. It explained:
[A]fter testifying to his prior criminal history, [trial counsel had] Appellant state[ ] that he had quit using drugs and alcohol, substances which he claimed were responsible for his prior criminal acts, and [that] he had graduated from college. Counsel’s decision to have Appellant testify showed not only Appellant’s willingness to admit his prior bad acts, but also showed he had changed his ways and was not continuing those activities which previously got him in trouble. There are countless ways to provide effective assistance in any given case, and defense counsel’s actions in this ease can be considered sound trial strategy, and not grounds for a finding of ineffectiveness.
Id. at 335-36.
In the wake of the OCCA’s adverse decision, on May 9, 2006, Mr. Byrd filed a pro se petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, in the United States District Court for the Northern District of Oklahoma, raising, in essence, the same claims he asserted before the OCCA.
7
In April 2009, he moved to amend
*1165
his petition and to add three additional claims. The district court then denied his motion and all his claims for relief, and denied him a COA.
See Byrd v. Workman,
No. 06-CV-0251-CVE-FHM,
On application from Mr. Byrd, however, this court granted a COA on two of the issues raised — specifically, whether “his counsel was ineffective [1] in introducing his prior convictions during the guilt phase of his trial and [2] in failing to adequately prepare and investigate his claims and defenses.” Order at 2, filed Mar. 25, 2010. Counsel was appointed to represent Mr. Byrd on these two claims, and a full round of supplemental briefing was submitted to this court. We now turn to the merits of Mr. Byrd’s asserted errors.
II. DISCUSSION
A. Standard of Review
Our review of a state prisoner’s petition for a writ of habeas corpus is circumscribed by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”).
See
28 U.S.C. § 2254. Under AEDPA, the standard of review applicable to a particular claim depends on how that claim was resolved by the state courts.
Fairchild v. Workman,
“In applying 28 U.S.C. § 2254(d), we first ask whether the principle of federal law invoked by the petitioner was clearly established by the Supreme Court at the time of the state court judgment.”
Turrentine v. Mullin,
[ujnder the “contrary to” clause, we grant relief only if the state court arrives at a conclusion opposite to that reached by the Supreme Court on a question of law or if the state court decides a case differently than the Court has on a set of materially indistinguishable facts. Under the “unreasonable application” clause, relief is provided only if the state court identifies the correct governing legal principle from the Supreme Court’s decisions but unreasonably applies that principle to the facts of the prisoner’s case.
Gipson v. Jordan,
As the Supreme Court has recently-underscored, “AEDPA imposes a ‘highly deferential standard for evaluating state-court rulings,’ ”
Renico v. Lett,
— U.S. -,
Our standard of review changes if there has been no state-court adjudication on the merits of the petitioner’s claim. In such situations, “§ 2254(d)’s deferential standards of review do not apply.”
Selsor,
Finally, we may not consider claims that have been “defaulted in state court on adequate and independent state procedural grounds ... unless the petitioner can ‘demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice.’ ”
Matthews v. Workman,
B. Ineffective Assistance of Counsel
We review Mr. Byrd’s claims of ineffective assistance of counsel under the familiar framework laid out in
Strickland.
Under that standard, in order to prevail on a claim of ineffective assistance of counsel, Mr. Byrd must show both that his counsel’s performance “fell below an objective standard of reasonableness”
and
that “the deficient performance prejudiced the defense.”
Strickland,
We have cautioned that our review of counsel’s performance under the first prong of
Strickland
is a “highly deferential” one.
Hooks,
The challenge is even greater for a petitioner under § 2254, as our review in such circumstances is “doubly deferential.”
Knowles v. Mirzayance,
As for
Strickland’s
prejudice prong, Mr. Byrd must establish “that there is a reasonable probability that, but for counsel’s error, ‘the result of the proceeding would have been different.’ ”
United States v. Challoner,
Against this backdrop, we now address Mr. Byrd’s arguments on appeal.
1. Failure to Investigate the “Transactional” Nature of Some of Mr. Byrd’s Prior Convictions
Under Oklahoma law, regardless of whether a trial is bifurcated or not, prior “transactional” convictions are inadmissible for sentence-enhancement purposes.
See
Okla. Stat. tit. 21, § 51.1(B);
accord Miller v. State,
Respondent, for its part, does not contest the fact that five of Mr. Byrd’s prior convictions arose from two transactions. Rather, it argues that the OCCA’s application of Strickland — and particularly its finding that no prejudice resulted from this failure — was not contrary to, nor did it involve an unreasonable application of, clearly established federal law.
Mr. Byrd does not contest that the OCCA identified the correct governing principle, i.e.,
Strickland.
Rather, he contends that the OCCA unreasonably applied that clearly established federal law.
See Williams v. Taylor,
The OCCA found that the failure of Mr. Byrd’s trial lawyers to discover that some of Mr. Byrd’s prior convictions were transactional was not prejudicial because “[e]ven when three of the prior convictions used for enhancement are excluded, four valid prior convictions remain[ed] with which to sentence Appellant as a habitual offender,” and “the sentences imposed ... were relatively light considering [Mr. Byrd] was a habitual offender.” R., Vol. 1, at 334. By his own admission, Mr. Byrd “does not argue that his sentence would not have been enhanced had his trial counsel not performed deficiently. Rather, he argues that there is a reasonable probability that his sentence would not have been enhanced to the extent it was ” had counsel not been ineffective in failing to identify these prior convictions as arising from the same transactions. Aplt. Reply. Br. at 4. Stated differently, Mr. Byrd believes that “the OCCA failed to consider the extent to which trial counsel’s deficient investigation might have caused the otherwise inadmissible, highly prejudicial evidence to taint the jury’s sentencing calculus, and that th[is] failure was an unreasonable application of federal law.” Id. at 5.
Mr. Byrd presents us with a novel argument. He maintains, in effect, that the OCCA unreasonably applied Strickland’s prejudice prong because it did not specifically reject the possibility that the jury might have recommended a lesser sentence had it not been presented with his otherwise inadmissible, transactional felony convictions. As Mr. Byrd explains it, “[t]he OCCA’s mere acknowledgment ... that the jury did not impose the longest sentence possible hardly constitutes a finding that there is no reasonable probability the jury would have recommended a shorter sentence but for the ineffective assistance of counsel.” Aplt. Reply Br. at 7.
The novelty of this argument, however, is largely its undoing. Mr. Byrd offers us no Supreme Court cases wherein
Strickland’s
prejudice prong was applied in this manner and this virtually forecloses the possibility of an unreasonable application of that standard. “[A] federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the state-court decision applied
Strickland
incorrectly.”
Woodford,
Considering the wide latitude that AEDPA gives to state courts, we simply cannot conclude that the OCCA’s failure to conduct the specific analysis Mr. Byrd requests renders its decision “objectively unreasonable.” We fail to see how its conclusion — namely, that Mr. Byrd’s relatively light sentence indicated that a further reduction was not “reasonably probable” given his uncontested status as a career offender — could be construed as being in “such tension with governing U.S. Supreme Court precedents, or so inadequately supported by the record, or so
*1171
arbitrary as to be unreasonable.”
Smith v. Dinwiddie,
2. Introduction of All of Mr. Byrd’s Prior Convictions and Sentences on Direct Examination
Mr. Byrd’s remaining ineffective-assistance-of-counsel claim is straightforward: given that only four of his prior convictions were admissible for enhancement purposes, and that the trial court had ruled those same convictions inadmissible for impeachment purposes during the first stage of the trial, Mr. Byrd believes that his trial lawyers’ decision to have him “offer[ ] highly prejudicial and otherwise inadmissible evidence” was beyond the pale of “professionally competent assistance.” Aplt. Supplemental Opening Br. at 51. The OCCA addressed this claim, rejecting it in its entirety. It expressly concluded that Mr. Byrd’s trial lawyers’ decision “appears to have been [a] calculated trial strategy to lessen the impact of the priors than if the State had been allowed to bring them to the jury’s attention first.” R., Vol. 1, at 335.
Mr. Byrd now avers that the OCCA’s determination was based on an “unreasonable determination of the facts.” 10 Specifically, Mr. Byrd claims that the OCCA’s conclusion was based on the mistaken assumption that the trial court had ruled his prior convictions admissible for impeachment purposes. True to this point, the OCCA’s decision does incorrectly state that “the trial court ruled the State would be permitted to introduce the prior convictions and the sentences received for impeachment purposes if [Mr. Byrd] took the witness stand.” R., Vol. 1, at 335. Mr. Byrd claims that this mistake corrupts the rest of the OCCA’s analysis, including its conclusion that his trial lawyers’ decision to have him testify about his prior convictions represented a sound trial strategy.
It is clear that, “where the ■state courts plainly misapprehend or misstate the record in making their findings,
*1172
and the misapprehension goes to a material factual issue that is central to petitioner’s claim, that misapprehension can fatally undermine the fact-finding process, rendering the resulting factual finding unreasonable.”
Taylor v. Maddox,
Mr. Byrd’s claim under § 2254(d)(2) ultimately fails because he cannot show that the “decision” — i.e., the overall
Strickland
determination of the court — was “based on” — i.e., “rests upon,”
Ward v. Sternes,
Mr. Byrd offers little more than speculation regarding the purported prejudicial effect of the admission of these additional felonies on his sentence, and it is well-established that such speculation alone cannot give rise to a “reasonable probability” that the outcome of the trial would have been different.
See, e.g., Hale v. Gibson,
In Wood, a panel of this court was called upon to consider whether a petitioner was entitled to a COA based on his claims of ineffective assistance of counsel. As in this case, the petitioner in Wood had received a sentencing enhancement under § 51.1(B), and, like Mr. Byrd, several of his previous convictions had arisen from a single prior transaction or occurrence. The petitioner’s lawyer had not objected when all of his client’s previous felonies were submitted to the court. As a result, the petitioner sought a writ of habeas corpus on the grounds that “his trial counsel was ineffective for failing to challenge the use of the related convictions for enhancement purposes.” Id. at 888-89.
After concluding that it “[could not] think of any tactical reason why petitioner’s trial counsel would not have investigated this matter,” id. at 890, the panel turned to the issue of prejudice:
Respondent argues, without citing any authority, that even assuming that these three convictions should be counted as only one, petitioner cannot show prejudice because he still would have three valid prior convictions to support his enhanced sentence. Under Oklahoma law, however, sentencing decisions are left to the jury’s discretion, and the number of prior convictions presented to the jury may well affect the jury’s discretion ....
“A deprivation of an opportunity to have a sentencing court exercise its discretion in a defendant’s favor can constitute ineffective assistance of counsel.” United States v. Castro,26 F.3d 557 , 560 (5th Cir.1994) (quoted in United States v. Harfst,168 F.3d 398 , 404 (10th Cir.1999)). Petitioner has presented evidence that his counsel was ineffective for failing to challenge prior convictions used to enhance his sentence. We thus conclude that, assuming the facts are as petitioner contends and the Missouri convictions should have been counted as only one, petitioner has demonstrated a reasonable probability that but for counsel’s error, the result of the sentencing proceeding would have been different.
Id. at 890-91 (footnote omitted).
Mr. Byrd contends that “[t]he facts of
Wood
are remarkably similar to those here,” and therefore urges us to conclude that he has shown a reasonable probability of prejudice. Aplt. Reply Br. at 30. We are, of course, not bound by this nonprecedential opinion, but we find it easily distinguishable in any event. In
Wood,
the “prosecutor emphasized and, in fact, solely
*1174
relied on the number of prior convictions in seeking a harsh sentence for petitioner,”
In situations like the one presented in
Wood,
the probability that the sentence would be affected by the inclusion of the otherwise inadmissible convictions is seemingly quite high. Not only does the “prosecutor’s opinion carr[y] with it the imprimatur of the Government,”
United States v. Young,
All that Mr. Byrd is left with in the end is the bald assertion that had the jury not known about some of his prior convictions, it would have given him a lighter sentence. But this is simply not enough to satisfy the demands of Strickland. We believe that Mr. Byrd’s argument that the jury might have imposed a lesser sentence had his counsel not introduced evidence “suggesting that he was an unrepentant recidivist,” Aplt. Reply Br. at 10, is particularly hollow given that the disagreement here is over whether seven prior felony convictions should have been admitted or just four. In either case, Mr. Byrd — at least in the eyes of most of the world — is an unrepentant recidivist. We see nothing in the record to indicate that the jury would parse things as finely as Mr. Byrd suggests. Accordingly, even under de novo review, we would find that Mr. Byrd has shown no prejudice from his trial lawyers’ alleged ineffectiveness in introducing his otherwise inadmissible prior, transactional felony convictions on direct examination. Therefore, Mr. Byrd has failed to satisfy the requirements of Strickland.
III. CONCLUSION
Based on the foregoing, we AFFIRM the district court’s denial of Mr. Byrd’s habeas petition.
Notes
. As the Oklahoma Court of Criminal Appeals ("OCCA”) later recognized, Mr. Byrd actually had been convicted of two prior DUI offenses — i.e., this was Mr. Byrd's third DUI offense. R., Vol. 1, at 336 (Byrd v. State, No. F-2004-1080, slip op. at 9 (Okla.Crim.App., filed Jan. 20, 2006) (unpublished)) (“This is Appellant's 3rd DUI conviction.”).
. In addition to these felonies, the ten-count information also charged Mr. Byrd with six misdemeanor offenses, none of which are relevant to this appeal.
. Mr. Byrd’s prior felony convictions included a DUI — Second Offense conviction in 1988 (three-year sentence); three convictions in 1989 for Unlawful Possession of a Controlled Drug with Intent to Distribute (twenty years), *1162 Unlawful Possession of Marijuana with Intent to Distribute (twenty years), and Maintaining a Dwelling where Controlled Drugs were Kept (twenty years); and three more convictions in 1993 for Unlawful Possession of a Controlled Drug (twenty years), DUI — Second Offense (five years), and Escape (two years).
.
See Eslinger v. State,
. The jury recommended a longer sentence— seventy-two-and-a-half years — but the triad court found that two of the ten counts merged, and reduced Mr. Byrd's sentence accordingly. On appeal to the OCCA, Mr. Byrd's sentence was further reduced due to an erroneous jury instruction, thereby yielding his current sentence of fifty-five years. See R., Vol. 1, at 336-37.
. The analysis of Mr. Byrd’s claims first took place in the context of whether he satisfied the standards for an evidentiary hearing on his ineffective-assistance-of-counsel claims pursuant to Oklahoma's Rule 3.1 l(B)(3)(b)(i). See Okla. Stat. tit. 22, ch. 18, app., Rule 3.1 l(B)(3)(b)(i) (authorizing an evidentiary hearing for ineffective-assistance-of-counsel claims when “the application and affidavits ... contain sufficient information to show this Court by clear and convincing evidence there is a strong possibility trial counsel was ineffective for failing to utilize or identify the complained-of evidence”). Later.in the opinion, however, the OCCA also stated that it rejected Mr. Byrd’s claims under Strickland, and referenced back to its earlier discussion under Rule 3.11 (B)(3)(b)(i). Although inelegantly done, it is clear that the OCCA was incorporating by reference its earlier analysis and stating that Mr. Byrd’s claims failed under Strickland for the same reasons it had identified earlier.
. Mr. Byrd did not seek post-conviction relief in the state courts prior to filing his federal habeas petition. Nevertheless, for the purpose of his federal habeas proceeding, his claims are exhausted because they were presented — and ruled on — by the OCCA, the highest state court in criminal matters in Oklahoma.
See O'Sullivan v. Boerckel,
. Mr. Byrd asserts that we should review the OCCA's decision de novo under the rule set forth in
Young v. Simons,
The OCCA’s subsequent interpretation of Rule 3.1 l(B)(3)(b)(i)’s standard at least raises significant questions regarding the continuing validity of
Young’s
reasoning.
See Simpson v. State,
. We pause to address an issue raised by Mr. Byrd in his supplemental opening brief. In laying out the applicable standard of review, Mr. Byrd rightly notes that a finding that a state court's decision was contrary to, or involved an unreasonable application of, clearly established federal law does not ordinarily complete our inquiry. As Mr. Byrd explains, "[u]nless the error is a structural defect in the trial that surmounts harmless-error analysis, this court must apply the harmless-error standard enunciated in
Brecht v. Abrahamson,
However, although this is generally true, applying the
Brecht/McAninch
harmless-error test is a needless formality in the context of a
Strickland,
claim, which itself demands a showing that the alleged deficiency was prejudicial. Had these two
tests
— that is, the
Strickland
test and the
Brecht/McAninch
harmless-error test — applied different prejudice standards, it is entirely possible that a two-level inquiry would be required, as Mr. Byrd seems to suggest. We agree with our sister circuits, however, that
“Strickland
prejudice and
Brecht
harmless error are essentially the same standard,” and that a second prejudice analysis under
Brecht/McAninch
is therefore unnecessary when considering ineffective-assistance-of-counsel claims.
Breakiron v. Horn,
. At times in his supplemental opening brief, Mr. Byrd appears to conflate the two prongs of § 2254(d). For instance, Mr. Byrd first argues that
[finsofar as the OCCA based its findings that defense counsel were not deficient in affirmatively introducing the prior convictions and sentences on its belief that the trial court had already found the convictions and sentences admissible for impeachment purposes, that was an unreasonable determination of the facts in light of the record.
Aplt. Supplemental Opening Br. at 48; see id. at 46-50. He then goes on to argue, however, that OCCA’s subsequent conclusion that "defense counsel introduced the prior convictions to prove that Mr. Byrd had turned over a new leaf, and that counsel exercised 'sound trial strategy' in doing so,” was "contrary to, or involved an unreasonable application of, Strickland and other Supreme Court cases holding that 'sound trial strategy’ for criminal defense counsel does not include inculpating their clients.” Id. at 50.
Fortunately, the confusion that plagued Mr. Byrd's supplemental opening brief was eliminated in his reply brief, where he made clear that he is “not argu[ing] that the OCCA’s decision on this issue was contrary to or an unreasonable application of Strickland under [§ ] 2254(d)(1); rather, he [is] invoking] 28 U.S.C. § 2254(d)(2), [and] arguing that the OCCA's finding on this issue was based upon an unreasonable determination of the facts.” Aplt. Reply Br. at 12 (emphasis omitted). Consequently, we consider his arguments only as they relate to that clause.
. Mr. Byrd explicitly acknowledges that such a de novo inquiry would be appropriate if the *1173 district court did not address the merits of the prejudice question. See Aplt. Supplemental Opening Br. at 38 (“On de novo review, this Court should determine that Mr. Byrd did indeed suffer prejudice.”).
. The other case Mr. Byrd relies on is
Miller v. State.
In
Miller,
the OCCA found prejudice in a comparable situation where "[t]he prosecutor based his argument for a long prison term solely on the number of prior convictions.”