Littlejohn v. Trammell

fenders, Office, Defender’s Federal Public

Phoenix, AZ, Petitioner-Appellant. for Todd, Pressley Esquire, Assistant

John General,

Attorney Attorney Arizona Gen- Office, Phoenix, AZ, Respon-

eral’s

dent-Appellee.

D.C. No. CV-01-757-PHX-NVW.

ORDER

KOZINSKI, Judge: Chief

Upon majority of a the vote of nonre- judges,

cused active is ordered that this pursuant

case be reheard en banc to Fed 35(a) Appellate

eral Rule of Procedure three-judge panel

Circuit Rule 35-3. The

opinion shall not precedent by be cited as

or to court of the Ninth Circuit. LITTLEJOHN,

Emmanuel

Petitioner-Appellant, Warden, TRAMMELL,

Anita Interim Penitentiary,*

Oklahoma State

Respondent-Appellee.

No. 10-6148. Appeals,

United States Court of

Tenth Circuit.

Jan. * 43(c)(2), R.App. cally Pursuant to Fed. P. Anita Randall G. Workman substituted for Trammell, who is the current Interim Warden Respondent in this case. Penitentiary, of Oklahoma State is automati- journey through long procedural

After courts, Littlejohn filed the Oklahoma Corpus, for a Writ of Habeas a Petition § under 28 U.S.C. seeking relief murder con- (relevantly) claiming were obtained and death sentence viction rights. of his constitutional violation all relief and Mr. court denied The district multiple appeals now court’s the district grounds. We affirm except for judgment grounds on all ineffective assistance Littlejohn’s claims of cumu- phase and penalty counsel at the the ineffective-assis- lative error. As to claim, judgment reverse the tance court, district with remand the case evidentiary hear- directions conduct appropriate proceed- further ing and opinion. Addi- ings consistent with of Mr. tionally, because the resolution claim cumulative-error by the court’s determina- affected district Bauman, A. Assistant Federal Randy claim, we tion of his ineffective-assistance Fears, Assis- (Shelly Defender R. Public of Mr. Little- decline to address the merits Defender, him on with tant Federal Public concerning cumulative john’s contentions OK, brief), City, for Peti- Oklahoma Instead, direct the district error. tioner-Appellant. judg- portion to vacate of its court and to consider the upon ment remand Whittaker, Attorney Robert Assistant cumulative-error claim afresh. (E. Pruitt, Attorney Gener- General Scott brief), al, him on Office of the with History Background Procedural I. and of Attorney General for the State Okla- OK, homa, Respon- City, largely undisputed. Oklahoma On The facts are dent-Appellee. Littlejohn and Glenn June a conven- Bethany robbed Root-N-Scoot LUCERO, TYMKOVICH, and Before City. At time ience store Oklahoma HOLMES, Judges. Circuit robbery, three individuals were of the store, was

working at the one of whom HOLMES, Judge. Circuit robbery was Meers. As the Kenneth up, Littlejohn and Mr. was leav- wrapping of was convicted Littlejohn Emmanuel store, The shot was fired. ing shot charges charge and a robbery-related two face, ending his Mr. Meers in the struck murder, arising from his first-degree of conflicting concern- life. The evidence was robbery in a 1992 of a Root-N-Scoot role shot, of and Mr. Little- ing the source City. He store in Oklahoma convenience fire it. john maintained he did not sentences on the prison received extended Littlejohn was In November a death sentence on robbery charges and robbery by jury charged and convicted charge. the murder firearm, spective conviction of two or competency hearings guilt with a after and the (Count One); phase. Littlejohn murder See v. (Littlejohn more felonies State (Count I), Two);1 degree conspiracy 989 P.2d (Okla.Crim.App. first 1998). firearms, However, robbery commit with after the court found error (Count imposition conviction of two or more felonies of the death sentence. See Three). At found sentencing, Specifically, id. at 910-12. it held that circumstances under aggravating testimony suggesting three admission (1) Littlejohn only law: that Mr. had Mr. killing Oklahoma confessed to not Meers, felo- previously been convicted of violent but also to an mur unrelated (2) nies; der, knowingly great that he created a amounted constitutional error be person; risk of death to more than one cause the confession was uncorroborated posed evidence, threat” “continuing by competent harmfully he contrib society. § Okla. tit. 21 701.12. uting jury’s finding Stat. of the continu punishment originally ing-threat His was set at 300 aggravator. See id. at 910-11. Moreover, years’ imprisonment and 99 on Counts One in concluded that there was Three, respectively, and death sufficient evidence that Mr. cre Littlejohn appealed “great Count Two. Mr. ated a risk of death” to more than conviction, appeal pend- person, and while the one see Okla. Stat. tit. 21 701.12(2), § ing, Cooper Court decided further undermining the sec Oklahoma, 348, 355-56, 368-69, ond of aggravating the three circum (1996), sentence, 134 L.Ed.2d 498 stances led to his death I, found which unconstitutional Oklahoma’s 989 P.2d at 911-12. The requiring rule a defendant bear the burden court remanded the matter for resentenc- proof by convincing ing light clear and fact ninety that “[o]ver incompetent percent that he is to stand trial. The ... aggravating evidence Appeals Oklahoma Court of Criminal case th[e] admissible.” Id. [still] (“OCCA”), in light Cooper and the fact at 912. Littlejohn previously that Mr. had chal- Littlejohn’s resentencing began trial trial, lenged competency his to stand or- 30, on 2000. a again October He received court, feasible, trial if dered the state to sentence, death time on two based this retrospective competency “conduct hear- aggravating previous circumstances —a ing utilizing the preponderance of the evi- felony involving conviction of a the use or R., 1, II, pt. dence standard.” Vol. at 207 person threat of violence to the and the (Dist. 2010). 27, Op., May Ct. Mem. filed R., continuing-threat aggravator. Vol. Littlejohn

juryA later found that Mr. had II, Littlejohn v. pt. see also State by preponderance of the evi- proven (Okla. II), (Littlejohn 85 P.3d 290-91 dence that he was incompetent stand Crim.App.2004). appealed, He but Littlejohn trial 1994. Mr. then filed affirmed his sentence. See Little- OCCA appeal, raising another averments of error 290-91, john P.3d at The Su 303. competency hearings, guilt as to the preme Littlejohn’s peti denied Mr. Court trial, sentencing. phase of tion for certiorari October of 2004. See Oklahoma, Littlejohn relief v. OCCA denied Mr. (2004). relating on his claims of error to the retro- 160 L.Ed.2d 261 alternative, 701.7(B). charged § In the the State had Stat. tit. 21 felony with murder. See Okla. (and misled) properly instructed post- application an Littlejohn filed court, possi- of “life without the meaning on the state relief Oklahoma conviction as an alternative bility parole” unsuccessful. but was Fur- penalty under Oklahoma law. death habe- sought federal Littlejohn then court ther, the district he contends 25, 2005. He raised February on as relief rights rejected claim that his wrongly his I, pt. claims. See fourteen court’s by virtue of the trial were violated (Pet. Habeas 10-12, for Writ of jury to [his] hear “allow[] decision to 2005). The district Corpus, Sept. filed testimony” from recorded previously and denied petition, court considered granted Aplee. trial. Br. 3. We 27, 2010. May on grounds on all relief Consequently, on these two issues. COAs However, appeal- a certificate granted entire- to consider the jurisdiction we have (“COA”) appeal its decision ability Littlejohn’s habeas ty appeal. of Mr. claims: six Zavaras, Allen Little- violated Mr. prosecution 1. The (10th Cir.2009). by pre- rights process due john’s as to senting inconsistent theories shot; fatal fired the

who II. Discussion provide failed ad- prosecution 2. The and Effective The Antiterrorism aggravation of certain equate notice (“AEDPA”) Penalty Act of 1996 Death evidence; adjudi our review claims circumscribes prosecution improperly present- 3. The proceed the merits in state court cated on of two who transcript ed a witnesses AEDPA, petitioner is enti ings. Under in absten- testified at the 1994 trial only on a tled to habeas relief claim federal in violation of Mr. tia court’s if the state he can establish rights; confrontation (1) claim on the adjudication of the merits prosecution engaged 4. The miscon- contrary in a that was “resulted decision in violation of Mr. duct to, involved an unreasonable application or rights; constitutional law”; of, or clearly established Federal was prejudiced 5. Mr. in a that was based on “resulted decision investigate counsel’s failure the facts determination of unreasonable that he has brain present in the light presented the evidence damage;2 U.S.C. proceeding.” State court error. 6. Cumulative (2). 2254(d)(1), § The AEDPA standard 6, id., II, (COA, July at filed pt. 301 demands that “highly [and] deferential given 2010). benefit state-court decisions Visciotti, v. 537 of the doubt.” eight appeals, raising now Woodford 357, 19, 24, 279 154 L.Ed.2d U.S. issues, dis- including the six for which the curiam) (2002) (quoting v. Lindh (per addition to granted trict the COA. In court 320, 7, 117 333 n. S.Ct. claims, Murphy, 521 U.S. challenges the district he six (1997)) (internal 2059, 481 L.Ed.2d deny habeas relief on 138 decision to court’s omitted). judge quotation im- marks the sentencing his claim Relief, 5, 2005), 2005, Littlejohn attempted filed Dec. for Post-Conviction 2. Later application was ever filed post-conviction [formal] motion but "[n]o another state initiate action,” 1, claim, id. at OCCA dismissed the pt. and the exhaust (Mot. Appl. 72 of Time to File for Extension

825 man, (10th Cir.2011) 980, inquiry un F.3d 991 applying legal 639 (internal 2254(d)(1), Bland, 1009) at the threshold (quoting § we ask 459 F.3d at der omitted). clearly quotation “whether there exists established marks law, exclu inquiry federal that focuses obtaining As condition for habeas cor- sively holdings Supreme on Court.” court, pus from a federal a state pris- (Victor Hooks), v. 689 Hooks Workman oner must show that the state court’s (10th Cir.2012). 1148, F.3d 1163 “The ab ruling being presented on the claim clearly sence of established federal law is lacking justifica- federal court was so 2254(d)(1).” § dispositive under House v. tion that there was an error un- well (10th Cir.2008). Hatch, 1010,1018 527 F.3d comprehended derstood and in existing And, ascertaining clearly the contours of beyond any law possibility for fairmind- law, look to established federal we must disagreement. ed dicta, holdings, opposed “the — Richter, U.S.-, Harrington v. 131 Supreme] decisions as of the Court’s [the 786-87, (2011). 770, S.Ct. 178 L.Ed.2d 624 time of the relevant state-court decision.” Furthermore, reviewing a state Alvarado, Yarborough v. 541 U.S. 2254(d)(1), § court under decision we must 660-61, 124 158 L.Ed.2d 938 S.Ct. inquiry our “to “limit[]” the record that added) (quoting (emphasis Williams adjudicated court that before state Taylor, 120 v. 529 U.S. S.Ct. the claim on the merits.” Cullen v. Pin (2000)) (internal L.Ed.2d — holster, -, omitted). quotation marks (2011). 1398, 179 L.Ed.2d 557 Factual clearly If established federal law findings presumed of the state court are exists, contrary a state court decision is applicant correct unless the rebuts only govern if the court “contradicts the presumption by convincing “clear and evi ing law” or “confronts a set of facts that 2254(e)(1); § dence.” 28 U.S.C. accord materially indistinguishable are from a de Welch, 639 F.3d at 991. Supreme cision of and never [the Court]

theless arrives at a result different from “For federal habeas claims not ad judicated the merits in state-court pro the result reached Court.” Sirmons, ceedings, ‘independent exercise our Bland v. F.3d (10th Cir.2006) (alteration in original) judgment’ and ‘review the federal district ” Williams, 405-06, (quoting 120 court’s conclusions of law de novo.’ Vic 1495) (internal Hooks, quotation marks omit tor ted). Gibson, unreasonably A state court decision McCracken (10th Cir.2001)); Gibson, applies federal law if it “identifies the cor see Sallahdin v. (10th Cir.2002). legal rect “The governing principle [Su factual are preme unreasonably decisions but district court’s determinations Court] Hooks, for clear error.” Victor applies principle to the facts of the reviewed (alteration origi ]ny in at 1164. But state-court prisoner’s “[a case.” Id. nal) Williams, 413, findings of fact that bear the claim (quoting upon 529 U.S. 1495) (internal presumption to a of correct quotation 120 S.Ct. marks are entitled Smith, omitted); only by Wiggins accord 539 ness rebuttable ‘clear convinc ” added) 510, 520-21, 2527, ing (emphases 156 evidence.’ Id. U.S. (2003). 2254(e)(1)); § (quoting 471 review the dis 28 U.S.C. see L.Ed.2d “We Ward, legal analysis trict court’s of the state Hooks v. Cir.1999).

court decision de novo.” Welch v. Work- averment of Littlejohn raised an ineffective-assistance-of- from the Apart OCCA, issues, argu- to the appeal error on direct and cumulative-error counsel II.H, II.G, trial court’s re- we address the ing primarily Parts infra appeal on substan- unconstitu- Littlejohn’s challenges was insufficient and sponse are addressed the issues tially in the order in the context of this case “when tional end, At the in the briefs. parties the oral conjunction with [its] considered for grounds except all deny relief concerning jury questions.” instructions and cumulative- the ineffective-assistance II, Specifically, at 291. 85 P.3d (the inef- the former claims. As to error deliberate, the jury retired to before the claim), we reverse fective-assistance an- jury told the that it would trial court further the case for and remand judgment an- questions appropriate “if it’s to swer evidentiary notably an most proceedings, if, swer,” jury response, and that (the latter cumulative- hearing. As to the says, you received a “code back claim), to address error we decline necessary all the law and court to re- direct the district merits and verdict, that means is the reach a what remand, readjudi- following its upon it visit is in the instruc- question answer to [the] Littlejohn’s ineffective-assis- cation of Mr. evidence, tions, you’re or it was tance claim. asking something inappropriate me that’s (emphases Id. at 291 me to answer.” for Jury A. Instructions to added) portions of the (quoting relevant challenges first the con- record) (internal quotation marks State stitutionality trial court’s instruc- omitted). rejected Mr. Little- The OCCA during stage. second jury to the tions 291-92, claim, john’s see id. at but none- jury resentencing, when the was consid- At “future guidance theless set cases sentence, it submitted note ering its asks jury during deliberations where asking, possible “[I]s the trial court parole ... eli- ... whether offender change parole the verdict of life without should gible”: specifically, “[trial courts] our verdict and without parole with after jury back to the instruc- either refer [by anyone]?” jury another verdict State tions, jury punish- ... tell the R., VII, Resentencing Tr. at 358. The Vol. options explanatory, ment are self or seemingly attempted to refer court jury punishment op- that the advise instructions, original jury back to the in their plain are to understood tions defined the three available sentenc- which (cita- at 293-94 and literal sense.” Id. “death, options under Oklahoma law: ing omitted). tions parole, without or imprisonment for life Littlejohn again argu- raised this R., imprisonment pt. for life.” Vol. petition, contending in his habeas ment R., X, Original at 1875 (quoting Vol. decision pertinent part the OCCA’s 2000)) Instructions, (Jury given Nov. “contrary appli- an unreasonable to or omitted). (internal Spe- quotation marks decisions cation of’ the Court’s cifically, conveyed the court Carolina, Simmons v. South they “have all the law and evidence 129 L.Ed.2d 133 necessary Id. to reach verdict.” Carolina, v. South (plurality), VII, Resentencing Tr. at State Shafer omitted). 364) (internal 149 L.Ed.2d marks quotation Carolina, (2001), Kelly v. South rejected request by defense It further 726, 122 151 L.Ed.2d 670 meaning U.S. S.Ct. to elaborate on the actual counsel because, (2002), em- principles under the sentencing alternatives. of the three

827 cases, “jury Shafer, did under state law. 532 in U.S. [here] those bodied way, 121 S.Ct. 1263. Put another “Sim- conveyed to them and did not not have upon eliminating jury’s mons rests a mis- away the ‘throw context] [in understand jury understanding perceive so the will not the most attractive key' implications of sentencing choice’ between ‘false Aplt. penalty.” to the death alternative period or a limited court, death of incarceration Br. at 32. The district Opening dangerousness when future is at issue.” applying in decision relying part on our Gibson, Johnson v. 254 F.3d 1166 Mullin, v. 348 F.3d Mollett Simmons (10th Cir.2001). (10th Cir.2003), that the trial found 902 response jury’s inquiry did court’s “three-option Oklahoma uses a sentenc choice, inappropriate false

not create scheme,” ing permits imposition which relief. and therefore denied different, potential punishments— three (1) (2) death, imprisonment life without the argument the same raises possibility parole, imprison or life numerous Su appeal. on He identifies Hamilton, ment. See 436 F.3d at 1191. gen Court cases that stand for the preme have held that this scheme is “consis We juror com proposition adequate that eral Supreme rulings tent with the Court’s of the trial court’s instructions prehension options since the do not create a false capital sentencing is vital to a defen sentencing petitioner choice between See, rights. e.g., constitutional dant’s sentencing peri him to a limited death and California, v. 110 Boyde (quoting Mayes of incarceration.” od Id. (1990). 316 Most S.Ct. 108 L.Ed.2d Gibson, 210 F.3d Cir. however, points he out that importantly, 2000)) (internal omitted); quotation marks against runs the hold the OCCA’s decision Welch, (noting that a 639 F.3d Simmons, insofar ings Kelly, Shafer “three-op basic instruction Oklahoma’s “jurors ignores requirement as it “constitutionally ade tion” scheme is sentencing option if they ... know have Thus, in quate”). circumstances where “the from keep that will a convicted murderer simply jury trial court directs the to re streets,” being paroled to the ever again” instructions view the prevented “creating courts are —instructions clearly three-option set forth the impression” or unbalanced false process defendant’s due scheme—“the defendant, executed, if eligible will be Welch, rights are not violated.” (em Br. at Aplt. Opening for release. alia, McCracken, (citing, at 1005 inter added).

phasis 980-81). F.3d at Simmons, In held Court However, expounding in further process require[s]

that “due a state trial jury penalty upon offspring, ‘to in the Simmons and its court instruct can be capital process of a trial that under state law held that a due violation phase ” court, in some ineligible parole.’ created the trial which [i]s the defendant confusion, Mullin, may engender juror 1190- Hamilton v. instances (10th Cir.2006) Simmons, choice,” thereby creating a “false even 2187). 156, 114 may correctly particular, light In of instructions Mollett, F.3d at at is state the law. See dangerousness “whenever future be entitled to relief capital sentencing proceeding in a order to sue reasoning in Mol jury in such a case under the process requires due that the viz., con pos that a carries no where the demonstrates formed life sentence let— meaning possible sen- sibility parole” if in fact that is the case fusion as to in jury—both the actually conveyed to must was tences, including petitioner death'—-a light answer and in of his judge’s the trial showings: make four what a “code” regarding earlier statements (1) the death [sought] prosecution the confu- jury mean—created response would (2) the place[d] prosecution the penalty; amounted to the creation of a sion that dangerousness is- future defendant’s process. and a violation of due false choice (3) sue; clarification jury ask[ed] the This, Littlejohn, to Mr. is com- according or a meaning imprisonment, of life fact, by explained pounded (4) term; statutory synonymous jury that modern OCCA to cause judge’s response threaten[ed] perpetually confused about Okla- pools are jury misunderstanding so jury’s sentencing scheme. three-option homa’s a false choice of incar- perceive [could] reject arguments. these We dangerousness future when ceration at issue. [wa]s Littlejohn recognizes, we have As Mr. (and Hamilton, clearly correct- (quoting Mol- held that instructions 436 F.3d at 1191 914) (internal “three-way choice lett, quotation ly) stating Oklahoma’s F.3d at Mollett, omitted);3 requirement that a 348 F.3d at the Simmons ] marks see fulfillf jury [regarding] notified the defen- be 913-15. ” [ility], even where a parole ineligib dant's] case, In the district court pros- jury asks the court about the future found, parties agree, that factors may released. pect that the defendant are through three are satisfied. We one Mayes, Mayes, 210 F.3d at 1294. Like much, assuming as proceed content clearly the instructions here stated Okla- examining the mer independently without That much is three-option homa’s scheme. factor. See United States v. its of each dispute. not in (10th McGehee, 672 F.3d Cir. 2012). course, simply judge factor at is Of the trial did not The fourth Mollett to the instructions Littlejohn contends that what refer back sue. Mr. ” (second original) (quoting acknowledge Supreme law.’ alteration in 3. We Court’s re- Matthews, Ward, Bryson pronouncement v. cent in Parker - Here, -, Cir.1999))). apply we our "four- curiam), pronged” inquiry assump- (per that the cir- in Mollett with the L.Ed.2d 32 contextually specific apply represents a may dispositively tion that it cuit courts progeny. and its precedents, rather than those of embodiment Simmons "[their] own Court, setting, only non-binding Supreme] assessing this AEDPA it is the reason- th[e guidepost. we a state Were to conclude that [a court's] [under ableness of state decision however, jury-instruction may, resolution of a chal- We consult court's AEDPA].” contrary (including, lenge capital precedent in a case was neither of lower courts course, own) application of Sim- in order to ascertain the nor an unreasonable our upon understanding clearly Supreme mons—based our best contours of established Simmons, Mollett, gleaned import of its text precedent. 348 F.3d at 913 Court may survey precedent— (suggesting we lower court and our of lower-court consider any possible court law—including application of then deviation of that state case our own four-prong Supreme precedent—in to deter- decision from Mollett's test would Court order However, Little- be immaterial. because Mr. mine whether a state court’s decision was Court); showing john make a that the OCCA's contrary Supreme cannot decision of conceivable, ("[T]his decision ran afoul of reason- also id. circuit’s decision John- mandate, because, although not control- able formulation of Simmons's son is relevant that, facts, ling, on-point are to assume on these 'federal case law inferior to content helps the correct contours precedent, serve as a Mollett illuminate Court Mollett, applicable determining law. See guide [a] reasonableness of application Supreme Court at 913. state court’s parole beyond that of are the requesting “[m]atters clarifi- receiving the note upon jury the second sen- or the court to meaning purvue [sic] the of cation on possibili- the suggested without consider” because this answer tencing option—“life Rather, receiving the upon ty parole.” jury (incorrectly) of to the that matters of judge the referred jury, from the beyond note were the boundaries of its parole “code” which told to his instructed consideration, back that indicating alternative questions jury that he would answer the sentences to death could lead to the defen- answer,” and appropriate “if only it’s (alterations in being origi- dant released if, jury the received a response, that nal)). bring This does not all the law says, you that have “code back of our case within the stable decisions verdict, necessary to reach a and evidence finding process due violations where “the jury jury’s sentencing worst, what which where phases the us permissible forced the marks that the trial yond factor for its consideration its substance-—about the removal priate of question about said eligibility something answer.” of question question Primarily at issue is the “code.” Mr. believe that this answer reasonably evidence, nothing—by that means is its for the than in its conceivably, in omitted); added) State suggested purview. parole plain meaning that’s in the parole eligibility instructions. The judge’s response judge record) suggest or [3] parole. permissible instructions, was not hands, inappropriate its consideration of that it II, 85 P.3d at 291 ^[1] We Littlejohn would have to answer a precise context, the (internal quotation the “third” answer you’re asking me believe, relevant or that answer signaled to the and, thus, be the otherwise response terms or rested else 1, pt. simply rein ^[2] factor. At appropriate could be a for me question, however, response from the it inappro portions that the decision to [the] was parole II, (em- did at judge’s tions”—“could but that the trial court informs the response—viz., the third “code” life without swer”—there was at 1005. dant is consider ed false ed. See id. to the ‘taken to mean that son, its answers at 292 oral consider Thus, parole—which appropriate meaning not allowed to answer the instructions “inappropriate should be blind to this (quoting Shafer, 1263); jury’s question (“Neither parole ineligible.” response to even we assume choice”). “Failing the issue of whether the defen- parole eligibility advised the see also parole jury, of life without the if not have created a assumed that the sentence.”). concerning the trial court’s option noted “that no “false choice” creat- for instruction cannot be parole nor its jury some jury’s question [the court] jury it after (finding Welch, the that it is not to how to decode fact.’ was available unstated rea- supplemental jury jury’s ques- determining [the court] clarify possibility could ” response prohibit- question 85 P.3d applied judge’s to an- Id. not Littlejohn responds that it is clear possibility life without the to recommend consistently juries Oklahoma would cause the sentence to be parole meaning impris- of life another, misunderstood in the hands of or other placed parole. possibility without the onment Littlejohn to be released. permit wise Thus, reasons, judge’s trial answer Mollett, he (holding 348 F.3d at 915-16 Cf. confusion where, only an inherent upon perpetuated prong four was satisfied en- note, already deeply exists and is responded jury’s judge the trial options are to be under punishment Br. at 32 Aplt. Opening trenched. See hear, (“[T]he not failure to but problem plain is stood in their and literal sense rather, phrase significance that the eligible that the defendant will be understood.”). noted, As the not been has imprison if to life parole sentenced ob- acknowledged this fact and OCCA parole.[4] possibility ment without the this is- frequency “the with which served (citations omitted). Id. 293-94 [required reexamin[ation ... a] sue arises consid- present [a] stance its] Littlejohn argues that the OCCA’s juries who ask whether of] provide guidance for future decision eration future imprisonment meaning the of life about cases, applying ruling while not its should possibility parole the without disagree. appeal, was unreasonable. We Littlejohn given explanation.” further that the trial court’s re To the extent added); (emphasis at 292-93 see 85 P.3d sponse options referred to the first two (“[C]ommon sense tells us that id. at 293 “code,” the recommendations OCCA’s when, jurors may even some be confused actually encompassed what occurred here, jury presented is with one jury ... this case—“where the asks [about sentencing option, along- ‘traditional’ life ... the trial court parole eligibility] specifically that separate option side a alia,] should[, . jury inter . back refer available.”). parole that will not be states (emphasis to the instructions.” Id. 293 Therefore, capital sentencing “provid[e] Welch, (“In added); F.3d at 1005 639 juries sentencing with accurate informa- Simmons, applying we have concluded that in tion” the OCCA held cases future simply if trial court directs jury asks whether a sentence of where jury again, to review the instructions imprisonment possibility life without the process rights defendant’s due are not vio parole parole eligible, renders an offender lated.”). refer the the trial court should either Furthermore, assuming the trial instructions, “[e]ven jury back to the tell the ... ran afoul court’s statement jury punishment options [otherwise] are Welch, law,”5 jury that explanatory, procedural self or advise the of Oklahoma 639 1860, (1988); Littlejohn questions whether even these 108 S.Ct. 100 L.Ed.2d 384 349, Florida, Gardner v. 430 U.S. 97 S.Ct. would have been sufficient “to instructions 1197, (1977) (plurality opin 51 L.Ed.2d 393 comply with the Simmons line of cases.” Carolina, 1, ion); However, Skipper v. South 476 U.S. Aplt. Opening Br. at 28 n.4. he 1669, (1986); Crane v. 106 S.Ct. 90 L.Ed.2d 1 they submits that would be a "substantial 683, 2142, Kentucky, 476 U.S. 106 S.Ct. 90 improvement over what was afforded.” [he] (1986)). 636 We would be hard- L.Ed.2d Id. pressed to conclude that these cases collec 5. Mr. claims that he relies on "fun- tively clearly amount to established federal principles damental announced in several particular factual context. See law for this [sug- other ... Court decisions House, F.3d at 1016. These cases are 527 gesting] jury that the must understand the primarily concerned with instances where the sentencing options ] before and have accu- it[ jury inappro in a manner that is instructed complete rate and information to consider ability priately limits its to consider certain performing capital sentencing when a func- evidence, see, 380, e.g., Boyde, 494 U.S. at (referencing Aplt. Reply Br. at 2 Wal- tion.” ("We proper inquiry S.Ct. 1190 think Arizona, 3047, S.Ct. ton v. 497 U.S. is there a such case whether reasonable (1990) (plurality opinion), 111 L.Ed.2d 511 applied likelihood that the has the chal Arizona, grounds by Ring v. way overruled on other lenged prevents instruction in constitutionally 536 U.S. evi consideration of dence.”); relevant Gibson, (2002); Boyde, Rojem L.Ed.2d 556 494 U.S. see also v. 1190; (10th Cir.2001), Maryland, and the defen- Mills —bert, U.S.-, n. F.3d at see id. 1004 &

(noting II set forth “three curiam) 182 L.Ed.2d (per (noting options” response for a trial court’s to a where state court’s resolution of a ” jury note “under (empha- Oklahoma law claim on the merits on a sufficient substan- added))—in op- sis that it consisted of an ground unreasonable, tive is not alterna- tion that was not one of the “three” en- grounds tive for imputing capricious error dorsed II—that OCCA point”). are “beside the not, more, would absent constitute a viola- While Mr. argument may tion of law sufficient to warrant federal have some appeal insofar as it takes issue relief, 1005; habeas see at id. Hooks v. reality with the that “a fair number of Hooks), (Danny Workman 606 F.3d jurors do not [fully] comprehend [still] (10th Cir.2010) (“[Fjederal habeas cor- plain meaning imprisonment of the life pus relief does not lie for errors of state without the possibility parole sentencing McGuire, law.” Estelle v. 502 U.S. Oklahoma],” option II, [in 116 L.Ed.2d 385 P.3d at we are apply constrained to (1991)) (internal quotation marks omit- precedent Simmons, that-relying on ted)); Johnson, 1164; see also at Shafer, Kelly similar substantially on Jones, Williams v. 571 F.3d cf. (10th Cir.2009) curiam) facts—compels relief, see, the denial of e.g., (per (“[A]ny cor- Welch, (“The at rection for a federal trial constitutional violation court’s law.”). response must be consistent with jury’s questions federal did not And, applicable as to the federal require- negate or contradict of these [three] ments, the OCCA found that choices; the trial explicitly each were set forth judge’s response in this case was consis- jury clearly presented instructions and tent with in that Simmons was not form.”); in the verdict see also McCrack “insufficient, misleading or erroneous” and en, sum, 268 F.3d at 980-81. for the suggest did not it was reasons, foregoing reject we Mr. Little- parole. Littlejohn forbidden to consider john’s argument appeal. first on Mollett, 85 P.3d at 348 F.3d at cf. (“[I]n 915-16; Welch, 639 F.3d at 1005 Testimony B. Notice of cases in which the trial court informs the Littlejohn argues Mr. the district jury that it is not to consider the issue of finding court erred in harmless the consti- parole ineligible, whether the defendant is violation.”). we tutional error that occurred when the trial process have found a due permitted This determination was not unreasonable court the State to elicit certain for given. the reasons v. damaging testimony sup- Wetzel Lam- from a witness in Cf. authorities, ability explain jury, dant's evidence to the these it must fail at the threshold. Gardner, House, ("Whether 430 U.S. at 97 S.Ct. 1197 527 F.3d at 1015 ("There opportunity peti clearly no ... for law is established is the threshold Indeed, 2254(d)(1).”). challenge accuracy § question tioner’s counsel to or under as materiality explicate greater length of ... information [that we in another set- material].”). House, ting infra, been recognized has not dem that the analysis underlying Littlejohn's onstrated that the noted authorities involve mode of remotely comparable argument—that "drawfing] clearly even factual circum involves Therefore, they sup general princi- stances. would not have federal law established House, plied clearly ples precedent,” established federal law for the teased from expressly OCCA’sresolution of Mr. claim of at 1015-16—was abandoned Musladin, Thus, Carey instructional error. insofar Mr. Litt Court (2006). lejohn’s argument predicated for relief is 166 L.Ed.2d 482 in cam- shows that after the The record presentation aggravating-factor of its

port gave trial court hearing, had not era although the State sentencing, [i.e., days] Meers, time the three defense some Bill this evidence. given notice of were guards find the who brother, try that when he testified the victim’s allegedly Littlejohn when he escorting after the first courtroom leaving the Al- to Meers. made the statement certain com- trial, Littlejohn made was unable to find though the defense him, re- including an admission ments to they locate and call guards, those did importantly, killing and—most garding the charge of Grimsley, who was in Sgt. kill threat present purposes—a guard details security and courtroom Meers testified Specifically, Meers. Grimsley Littlejohn’s first trial. him, during “the Littlejohn told that Mr. were escorted explained how defendants [i.e., dead brother’s] motherfucker’s following verdicts from the courtroom State coming he ain’t back.” (Test, Grimsley, it According to of Bill that time. VI, Tr. at 21 Resentencing a Meers). highly unlikely that defen- that Mr. would be testified further And he motherfucker, stop to and make said, dant would be able “I killed the Littlejohn family, of statement to a victim’s reporter cap- kind you.” I’ll kill Id. The court occur, write-up a and if an incident did portion at least a tured and memorialized The defense Mr. would have been made. Littlejohn’s communications to of Mr. Littlejohn, that but, also called who admitted transcript her did significantly, Meers [i.e., made the first remark to Meers by or a threat Mr. he evince an admission and not being about the brother dead Aplt. Opening Br. 33 Littlejohn.6 See back], (“The telling denied Meers coming an but reporter captured indeed court brother or that he Littlejohn on that he had shot his comment'by Mr. insensitive sen- threatened to kill Meers. courtroom after the 1994 exiting the an tencing, but it did not include either omitted). (footnotes In light Id. at 296 threat.”). or a admission Littlejohn had time to the fact that Mr. own investi allegations the with his meet notice of Littlejohn was no provided Mr. fact that the evidence gation, and the until the alleged admission or threat the continuing-threat aggravating factor resentencing trial. See day fifth substantial, that the OCCA concluded II, At an in 85 P.3d at 294. notice of Mr. Meers’s the lack of sufficient notified Mr. hearing, the court camera testimony—in regarding Mr. particular, testimony proposed threat—did not have alleged gave counsel “the weekend Mr. Meers “on the requisite prejudicial effect Monday prepare following] and [the grounds the error jury’s verdict” to make Id. at 296 n. 10. The OCCA succinct- [it].” II, R., pt. Vol. at 236. unfolding events: for reversal. ly summarized the Indeed, yet john there “contemporaneously” 85 P.3d at 295. reporter 6. The court you Littlejohn saying, transpired. “Fuck what In recorded another account of dead, coming punk. he ain’t back.” aggravating He’s still supplemental ev- State’s notice of R., Aplt. Opening (quoting State Vol. Br. at 35 idence, spoken instead were the words VIII, (internal quotation Trial Tr. at 308 were, mother, Meers, and victim’s Delores OCCA, omitted)). According to the marks bad, your Id. at son is still dead!” "Too but Meers, the re- [Mr.] the threat to "[w]ithout IX, (quoting Original likely reporter] the court [of corded statement omitted)). (internal quotation marks Little- have been ruled inadmissible.” would ” portunity deny that the Littlejohn argues appeal explain’ or the adverse evidence, Gardner, for a decision was unreasonable id. OCCA’s First, 1197), he contends that the U.S. at he would not few reasons. be “clearly in that able to demonstrably prejudicial error was show established due violation,” ability trial process limited his counsel’s id. And even if a lack Second, a more defense. he of notice rights, mount robust violates offender’s prosecutor improperly resulting error must prejudicial contends or- (and id.; misleadingly) suggested Mayes, der to warrant relief. See threat, that she had heard Mr. compounding prejudice. Fi- further deciding assume without We nally, he contends that the harm of the properly has established a prosecution’s error was exacerbated violation arising constitutional from the Bush, testimony Judy rebuttal witness provide failure to adequate State’s notice in response who testified to Mr. Little- of Mr. testimony. Meers’s We therefore

john’s denial he made the threat. follow OCCA and the district court and well-established,

It is as a matter only preju assess whether that error was law, “a of federal defendant must have dicial. We conclude it was not. meaningful deny opportunity to or ex denying Littlejohn’s petition, plain procure the State’s evidence used to upon Chapman California, OCCA relied Gibson, a death sentence.” Walker v. 228 18, 824, 386 U.S. 87 17 S.Ct. L.Ed.2d 705 (10th Cir.2000) 1217, 1240 (quoting F.3d (1967), for the proposition preju 768, Reynolds, Duvall v. 139 F.3d 797 lack in dice of notice this case (10th Cir.1998)), abrogated on other beyond was “harmless a reasonable doubt” Gibson, 1044, grounds by Neill v. 278 F.3d because Mr. mounted a defense (10th Cir.2001); Gardner, 1057 n. 5 see 430 against the statement and other evi (“We 362, at 97 1197 conclude U.S. S.Ct. presented by dence the State was over that petitioner process was denied due of whelming support continuing- in law when the death sentence imposed, II, aggravator. threat 85 part, at least in on the basis of information review, at apply P.3d 296. On habeas opportunity deny which he had no or (as court) in did the district the standard Netherland, explain.”); Gray see v. also Abrahamson, 619, Brecht v. 507 113 U.S. 152, 163-65, 2074, 518 U.S. 116 S.Ct. 135 1710, (1993), in as 123 L.Ed.2d 353 (1996); Sirmons, L.Ed.2d 457 Wilson v. sessing prejudicial effect. See DeRosa v. (10th Cir.2008) 1064, (“[W]e 536 F.3d 1102 (10th Workman, 1196, 679 1233 Cir. F.3d petitioner’s] allege construe claim to [the 2012) (“[E]ven assuming OCCA him deprived the late notice of his ], Chapman in we are [applying did err defense.”). ability provide proper apply forgiving bound to ‘the more stan (cita

Furthermore, of review’ outlined in Brecht.” “while defen dard ‘[a] omitted)); Welch, at right charges dant’s to notice of the tion 639 F.3d Workman, 1175, against which he must defend is well es Matthews v. 577 F.3d (10th Lemaster, tablished,’ Cir.2009); clearly there is no established 1181 Herrera v. (10th Cir.2002) (en right non-exculpatory constitutional dis 301 F.3d (altera Wilson, banc); Pliler, covery.” Fry 536 F.3d at 1103 see also v. 551 U.S. 121-22, original) (quoting Gray, tion in at 127 S.Ct. 168 L.Ed.2d 16 2074). (“We 167-68, Thus, proceed §in long 116 S.Ct. hold that “[s]o [Littlejohn] prejudicial meaningful ‘op- ings as Mr. had a court must assess the effect ‘grave itself in doubt’ about in a state- finds error impact of constitutional jury’s (quoting verdict.” the ‘substantial of the error on the trial under court criminal 992)); O’Neal, in set forth injurious effect’ standard 513 U.S. Lawson, appel- or not the state 677 F.3d ... whether States v. Brecht accord United Cir.2012). the error and re- recognized late court n. “‘Grave under harmlessness viewed it for where the issue of harmless- doubt’ exists doubt’ stan- beyond ‘harmless reasonable evenly that [the court] ness is ‘so balanced ” (citations Chapman.... dard set forth as to the equipoise in virtual [itself] feels ” omitted)). Bland, the error.’ harmlessness of (alterations original) at 1009-10 comity and federal “Interests of O’Neal, ism, interest as the State’s well DeRosa, 992); 679 F.3d at 1233. that have survived finality of convictions sys the state court direct review within that the agree with the district court We tem, a more deferential standard mandate of Mr. Meers’ “lack of sufficient notice evaluating petitioner’s] [the of review a substantial and testimony have] [did Matthews, (quot at 1181 claim.” 577 F.3d injurious jury’s effect on the verdict.”7 McKune, 1188, 1193 ing v. Crease In the time that pt. (internal (10th Cir.1999)) marks quotation him, gave trial court Mr. Little- the state omitted). Brecht, the standard “Under testimony of john was able to secure the whether habeas relief must determining Grimsley, aided his cause. This Sgt. which issue] is whether the error granted [at testimony, Sgt. in that significant in injurious effect or had substantial security. courtroom Grimsley was head of jury’s verdict.” determining fluence in time, it questiona Even if he had more Workman, 984, 1014 Selsor have ob ble whether Mr. could (10th Cir.2011) (alteration ellipsis evidence on the sub probative tained more Brecht, 507 U.S. at original) (quoting Indeed, court ject at hand. as the district 1710) (internal quotation marks noted, Grimsley ... testified that he “Sgt. omitted). inquiry an from defense had received Friday regarding afternoon reviewing errors from a counsel on “[W]hen guards assigned of the to Peti ... if the harmless identities proceeding criminal trial; doubt, however, despite grave in relief tioner at first ness of the error is McAninch, search, issues with record an extensive granted.” must be O’Neal discovering him from keeping prevented 115 S.Ct. 513 U.S. added); Further this information.” Id. at 234. (emphasis L.Ed.2d 947 (“[A] more, Bland, Littlejohn was able to offer his at ‘substantial Mr. rebuttal, directly testimony in which injurious effect’ exists when the court own Lockyer, Cir. persuasive Littlejohn’s 1054 n. 15 7. We do not find Mr. (and 2004) ("We suggestion obligated that the OCCA the district [harm are to conduct court, extension) by failed to consider the on the of the 'record less-error] review basis " assessing totality in of the circumstances Brecht, (quoting U.S. at as a whole.' prejudicial impact of the lack of notice. In Brecht, 1710)). Under "a ha- view, the OCCA and the district court our plenaiy petitioner review to de beas obtains properly entirety considered the of the facts in ac termine whether a trial error resulted prejudice, finding a lack of and the record Welch, prejudice." 639 F.3d at 992 tual instance, "sufficiency just, not Brecht, 'continuing aggrava- threat' evidence for omitted). 1710) (internal quotation marks Kennedy v. Aplt. Opening Br. at see tor.” (10th Cir.2002) issue, (suggesting in that he the matter at related to threats of violence suffice to establish that speaker of the threat. alleged threat). Thus, continuing offender is days to a defense prepare three While testimony Mr. Meers’s was not the linch- many years pri- against a statement made pin evidentiary presentation of the State’s amount necessarily a substantial or is concerning continuing-threat aggrava- time, Littlejohn fails establish Mr. And, logically, any prejudicial tor. effect more time to conduct further having testimony of his would been lessened have led to the discov- investigation would among the fact that it was but one item information about ery helpful other many to Mr. attested vio- the event. surrounding circumstances disposition. lent verdict, addition, rendering before its of improper claims bol- exposed to considerable evi- jury stering testimony by of Mr. Meers’s detailing Littlejohn’s prior crim- dence prosecutor do not alter our conclusion which included instances of history, inal infra, here. As further detailed the rec- II, violence, Littlejohn P.3d at 296— that the suggest prosecutor, ord does continuing that served as “substantial Meers, questioning the context of said evidence,” id. The OCCA summa- threat present that she had been in the court- history the evidence of his criminal rized trial and insinuated— room the first she as follows: say—that had expressly but did not she amount State offered substantial [T]he heard Mr. make the threat. See continuing threat evidence. VI, Resentencing Tr. at 26 State presented evidence that State (Question High) (stating, ques- of Ms. had incarcerated for all but few been Meers, tioning you “So terms of 15-years- months from the time he was having anyone never told about those crime at the old until he committed this statements, you I were aware that was 20. The introduced evi- age of State heard?”). present and As the OCCA ob- Littlejohn’s tendency dence showed served, however, the trial court sustained begun toward violence had elementa- objection prosecu- defense counsel’s school, placed he was in a class ry where statement, tor’s and “admonished the emotionally for the disturbed and he disregard it.” 85 P.3d get in trouble for his behav- continued frequently 296. This has the effect presented evidence that ior. State diminishing any prejudice, discernible cf. Littlejohn had been involved in robber- Wilson, (suggesting 536 F.3d at 1117 that ies, addition, rape. a In assaults and cautionary are a factor to con- instructions evidence of numerous State introduced totality circum- sider under a of the infractions, violent, Little-' some while stances). sure, cautionary a instruc- To be john County was in the Oklahoma Jail always to cure the tion is not sufficient trial, inci- awaiting first as well as prejudicial improper effect of statements. Littlejohn was dents that occurred while Sands, 899 F.2d United States Cf. imprisoned Department of Cor- (10th Cir.1990). However, prose- rections. oblique statement here is cutor’s brief and II, Littlejohn P.3d at 296. Mr. Little kind that would “make a sufficient- not the validity any of that it john ly strong impression does not contest the on the (em- evidence, supports disregard.” and it otherwise be unable to Id. w[ould] added). Thus, say that by phasis found we cannot continuing-threat aggravator Gibson, the cau- F.3d the OCCA’s determination jury. See Revilla v. bottom, it emphasized At must be here diminished tionary instruction by Littlejohn Mr. was a lack of prejudice alleged suffered error here relates to prejudicial unreasonable. content of Mr. notice—not Littlejohn testimony, Meers’s which Mr. Moreover, unnoticed prosecution’s not contend would otherwise be inad does witness, Bush, Judy essential- rebuttal Ms. law “but for the missible under Oklahoma testimony— ly very limited confirmed—in II, Littlejohn 85 P.3d at problem.” notice testimony suggested and Mr. Meers’s reasonably prejudi 295. The conceivable story was version of the from the lack of notice here does cial effect testi- Importantly, incorrect. Ms. Bush’s in “grave regarding not leave us doubt” mony alleged was confined to the state- injurious it whether had “substantial Littlejohn at the 1994 ments made Thus, jury’s Taking into effect” on the verdict. more. proceeding—nothing evidence, totality Meers’s we are scope not outside of the account the logically It follows direct examination. struggle not left to with this conclusion. any prejudicial Wilson, additional effect of 536 F.3d at see also testimony, arising Ms. Bush’s from the Gibson, Thomas v. testimony,

lack of notice of the Meers (10th Cir.2000); Ozmint, Humphries v. words, virtually nil. In other the sub- (4th Cir.2005) (en banc). 206, 227 testimony regarding Mr. stance of her particular, In we look to the fact that Mr. Littlejohn’s alleged roughly comments was Littlejohn days pre was allowed three Meers; conterminous with that of Mr. statement; pare response Mr. Meers’s therefore, preparing in terms of a re- that, fact, prepare reasonably he did sponse, testimony place not Ms. Bush’s did case, cogent affirmative rebuttal which fea appreciable additional burden on Mr. testimony Sgt. Grimsley, tured the who Littlejohn. charge security was “in and courtroom

Finally, contends that the trial,” guard during details first Litt [his] district court and the OCCA failed to con- added); lejohn (emphasis P.3d at 296 reliability sider the concerns associated pointed that Mr. not has is, That with this evidence. Mr. Meers’s additional favorable evidence he would testimony very Bush’s “was of Ms. acquired given if been he had more vintage directly recent conflict with notice; and that Mr. tested the the official record of what was said credibility of Mr. Meers and Ms. Bush on Aplt. Opening courtroom.” Br. at 47. But cross examination. necessarily these factors would militate sum, thoroughly the OCCA’s decision finding prejudice toward a on lack-of- considered all of the factors at the resen- grounds. Specifically, notice Mr. Little- tencing bearing any prejudice that Mr. john ability demonstrated that he had the Littlejohn allegedly suffered due to a lack did) (and point purported out these any of notice and determined that error testimony. in In particu- weaknesses their was harmless. We conclude that this deci lar, he fact that court had access to the the unquestionably sion was reasonable. reporter’s statement was more consistent any point, More to the we do not have with Mr. view of what oc- grave concerning the harmlessness Thus, doubts curred. this factor does not dis- (assumed) involving of the error a lack of suade us from our conclusion that the Consequently, reject notice. we Mr. Litt reasonably concluding OCCA acted in that lejohn’s error notice was harmless. claim.

837 ... as to amount to a denial specific right Misconduct Prosecutorial C. Matthews, (quoting right.” of that Id. prosecu- claims that the 1186) (internal quotation at marks F.3d comments improper numerous tion made omitted). infringe Additionally, absent violat- resentencing proceeding, during his a right, a constitutional specific ment of rights. ing his constitutional in in some prosecutor’s misconduct petitioner’s render a habeas trial stances Vouching Improper deny him fundamentally unfair as to “so mis prosecutorial allegation first DeChristoforo, Donnelly v. process.” due improper allegedly concerns conduct U.S. made prosecutor statements Wilson, (1974); see 536 F.3d L.Ed.2d (which just Mr. Meers questioning (“Unless prosecutorial at 1117 misconduct discussed)—i.e., sugges prosecutor’s a specific right, a constitutional implicates Littlejohn make heard Mr. tion she improper require remarks re prosecutor’s Meers disputed statements if only conviction versal of state first after the he left the courtroom when the trial with unfair remarks so infected kill him. The trial, the threat to including resulting conviction a ness as to make statement, full embodied prosecutor’s v. (quoting denial of due Le Mul process.” Meers, made on to Mr. her question (10th Cir.2002) lin, 1002, 1013 311 F.3d “So terms and was as follows: re-direct (internal curiam)) quotation marks (per anyone about having told you never Matthews, omitted)); 132 S.Ct. at see also statements, that I you were aware those Oklahoma, 2153-54; v. Romano R., Vol. and heard?” State was present 1, 12-13, 129 L.Ed.2d Meers VI, Resentencing Tr. at 26. Mr. (1994). affirmatively that he was responded (Test. of Id. present.” [she was] “aware a trial determining whether Meers).8 Littlejohn argues that “fundamentally light unfair” is rendered impermissible amounted to this statement prosecutor, of a of the conduct vouching. prosecutorial proceeding, the entire “in- we examine or “an assurance “Vouching,” the evidence strength of cluding the attorney of credibil

by prosecuting guilt as to petitioner, both against through per witness ity government of a the trial and as moral stage by or other information knowledge sonal sentencing phase as at the culpability testimony jury,” before the outside cautionary steps—such well as con improper prosecutorial amounts jury—offered instructions Kelchner, 256, 271 304 F.3d duct. Lam improper remarks.” court to counteract (3d Matthews, Cir.2002); 577 F.3d Bland, Wilson, Workman, at 1117 536 F.3d Douglas v. 1024). Cir.2009). should not court Generally, “[A] 1156, 1177-79 prosecutor intends an infer lightly ways prosecutorial in which there are two most to have its dam ambiguous remark misconduct, vouching, result like can jury ... DeRosa, meaning or that a will aging error. constitutional meaning.” Don- “First, [necessarily] draw prejudice can at 1222. [it] heard the version the court that she perspec- informed prosecutorial-misconduct a From tive, Littlejohn’s that was record- statement particularly proble- of Mr. this comment significant- because, matic, reporter—which, by the court Littlejohn, ed Mr. reasons a threat to Meers. ly, did not prosecutor had contain proceedings, the same earlier nelly, jurisprudence 416 U.S. at see Confrontation Clause were Workman, apposite capital sentencing in a context—a Banks v. Cir.2012) (10th II.D, matter that we touch on in Part (noting that the fundamen- infra, pursue but need not here—Mr. Litt- allegedly improp- tal-fairness standard lejohn’s argument get would not even out prosecution er statements constitutes “a hurdle”). gate, expressly of the not because he does every improper or high “[N]ot rely upon jurisprudence.9 According- prosecutor unfair will remark made ly, hard-pressed we would be to conclude depriva- amount to a federal constitutional clearly that the OCCA violated established Cook, tion.” Tillman v. federal law under (10th Cir.2000). Confrontation Clause. Littlejohn complains prose that the specific cutor’s statement “implicate[d his] As for the fundamental-fairness Wilson, right,” constitutional 536 F.3d at inquiry, prosecu the OCCA found 1117, to confront a person who effect tor’s “improper” comment was removed in the prosecutor was witness case—the purview jury’s from the of the consider entitling him heightened herself—thus ation when the trial court “sustained the scrutiny Donnelly. under He faults the objection question defense’s and ad and the district court for recog OCCA not disregard monished the it.” Little Moreover, nizing specifically sug this. he II, 296, 300; john 85 P.3d at see also gests that the statement was “akin to (11th 1145, 1159 Upton, Greene [ringing testimonial-like bell” that a] could Cir.2011) (holding finding that state court’s “unrung.” Aplt. Opening not be Br. at that an preju admonition eliminated the added). (emphasis disagree. We inappropriate dice of an comment was not unreasonable). Despite oblique his references to the Clause, Confrontation does The OCCA discussed and assessed all of actually claim that such a violation pertinent legal arriving factors in place—only prosecutor’s took decision, its 85 P.3d at “comments were akin to a violation of the say, and we cannot after a review (empha- law, Confrontation Clause.” Id. at 51 governing record added). Supreme rejection sis Even if the Court’s its of Mr. argument See, House, primarily prece- e.g., 9. Mr. relies on our claim. Ward, dent in Paxton v. 199 F.3d 1197 ("[C]learly F.3d at 1016 law established con- There, Cir.1999). rejected "the state’s holdings sists of Court in cases appropriate inquiry contention that closely-related where the facts are at least or prosecutor's argument whether the denied judice."). similar to the case sub Further- petitioner] right fundamentally [the to a more, under factual circumstances such as sentencing proceeding.” fair stead, Id. at 1217. In- prosecutor's these—where the statements facts, quite different we reasoned: evidence—Donnelly were not admitted into agree "We with the district court that the Littlejohn's argument itself indicates that Mr. undisputedly misconduct which occurred ais non-starter. See 416 U.S. at 643 n. [involving prosecutor’s misleading here ("Respondent suggest S.Ct. 1868 does that the deceptive argument] integral part was an prosecutor's deprived statements deprivation petitioner's] of [the constitu- right him of the to confrontation. But this evidence, rights present mitigating tional merit, argument prosecutor is without for argument against rebut evidence and used simply opinions here stated his own and in- him, and to confront and cross-examine the by persons troduced no made statements un- goes state’s witnesses.” Id. 1218. It with- (citation questioning available for at trial.” however, saying, sup- out that Paxton cannot omitted)). ply clearly support established federal law to opinion necessary that if don it was for under AEDPA’s defer was unreasonable Matthews, standards, jury the to a unanimous sentence” ential reach (rejecting process due claim that present and other factors were con- 2153-55 “coercion”).10 the assertion that the predicated upon tributed to this that the insinuated defendant prosecutor man lawyer ... to Appellate

“had colluded with 2. Reference Pro- emotional disturbance ufacture an extreme cess if the is “even comment defense” because that Mr. also contends the the directing jury’s atten understood prosecution improperly injected the issue considerations, that inappropriate tion to appellate of into the case. the review that the Su [state]

would not establish prosecutor’s closing argument final at re- preme rejection prose- ... Court’s sentencing she asserted: contrary claim” was to cutorial misconduct has told you [Mr. counsel] law); clearly Wogen established federal basically prosecu- that Ms. [the Stensaas Mitchell, F.3d stahl in Bethany something tor the did trial] (6th Cir.2012) (holding prosecutor’s that [i.e., by arguing that was wrong incon- for the improperly vouching comments theories], sistent improper, was [that] prejudi State’s did not amount to witness wrong was with something there what Matthews, error); cial 577 F.3d at see also she did he well knows that that full assess state (noting that “[w]e [the by appellate has been courts. reviewed the lack prejudice decision of court’s] [on R., VII, Resentencing Tr. at State Vol. through AEDPA’s of challenged remarks] (State’s Closing Argument) (emphasis Hooks, lens”); Danny forgiving cf. added).11 trial court sustained an ob- (holding prosecu that the at 744-46 jection prosecution to the the extent was petitioner where prejudiced tor’s conduct However, arguing facts not evidence. prosecutor repeatedly [the the “misled the that Mr. Little- the a because court found jury] obligation it was to believe john’s the door” to the juror minority opinion “opened to aban- counsel holding susceptible light only think that the was particularly is true of the fact statement This 10. Thus, prejudicial question that thrust of the Littlejohn’s interpretation. Mr. Mr. to subject Specifi- some fairminded debate. to not demonstrated "the has cally, dispute as to whether the there is ruling [in the claim context] state court’s prosecutor attempting imply that she was justification lacking so that there make statement. The heard Mr. compre- well understood an error point "whole State contends that the existing beyond possibility hended in law context, question,” patently "was ex- Richter, disagreement." for fairminded plain why did not need to Meers feel the [Mr.] added). (emphases S.Ct. at 786-87 [immediately] report the threat there since present.” Aplee. were witnesses Br. at other trial, prosecu- Bethany’s At Mr. “the same suggests interpreta- The State its 26-27. presented tor” from case Mr. question tion the fact is bolstered permitted the theory State’s in a manner that Mr. was raised on re-direct examination after jury Bethany fired the fatal infer that questioned why Mr. Littlejohn’s counsel See Part II.F shot that killed Mr. Meers. the claim failed to raise earlier. Meers Littlejohn's introduced counsel VI, infra. Resentencing Tr. at State (Cross-examination transcript Bethany’s portions Meers). of Mr. Mr. Little- attempt in an convince the trial question john that the “cre- of course reasons respective argued trials of the State had impression jury” ated a false Littlejohn that the de- Bethany and Mr. prosecutor and heard content of was there But, Aplt. Reply fendant on was the shooter. Br. at 9. trial statement. See correct, regardless which view is we do not 840 conduct, prosecution’s

reference the did not contravene Caldwell—much less permitted prosecution the to “address the rejection the OCCA’s of the claim was Aplt. issue within record.” Opening the to, contrary or involved an unreasonable Br. at prosecutor subsequently 54. The of, application prosecutor’s Caldwell. The that, told jury “[i]f the there was some- comments simply do not amount to a Cald thing wrong Ms. closing with Stensaas’ they well violation because referenced “the argument, you would be told that.” State prosecutor’s actions Bethany’s Mr. [in R., VII, Resentencing Tr. at Vol. 314. No and whether prosecution case] the had objection made to was this latter com- R., 1, inappropriately,” II, acted pt. Vol. OCCA, II, Littlejohn ment. Both the see added); at (emphases they 248 did not 301, court, 85 P.3d at and the district suggest jury’s the “mini role was 1, 248-49, pt. rejected at Caldwell, importance,” mize[d in] 472 U.S. Littlejohn’s claim that the prosecutor’s ar- 333, 105 S.Ct. 2633. gument improper. Indeed, considering closing argu claims that the foregoing context, Gibson, ments in see Pickens v. argument is a clear violation of Caldwell v. (10th 988, Cir.2000), 206 F.3d 1000 320, 328-29, Mississippi, 472 U.S. 105 comments at issue merely response were 2633, (1985), S.Ct. 86 L.Ed.2d 231 where suggestion defense counsel’s Supreme Court held that “it is consti prosecution had acted improperly by argu tutionally impermissible Eighth [under the ing inconsistent theories at the trials of to rest a death Amendment] sentence on a and Mr. Bethany. No rea determination made a sentencer who jury sonable would have construed the has been led to believe that responsi implying “anyone statements as bility for other determining appropriateness jury than responsible of the defendant’s death fixing rests elsewhere.” for This holding interpreted by appropriate has been sentence.” Thornburg v. Mullin, simply requiring (10th Court as 1113, 422 F.3d Cir. jury “the ... not regarding 2005); be misled see id. at 1135-36 (holding that role it plays in the sentencing decision.” prosecutor’s comments suggesting that the Hooks, Danny (quoting F.3d at 743 jury was the “State” did not run afoul of Romano, 2004) U.S. Caldwell)-, Gibson, Moore v. 195 F.3d (internal omitted) quotation marks (citing 1152, 1174 Cir.1999) (holding that the cases); see Wainwright, Darden v. statements, prosecutor’s suggesting, inter 183 n. 91 alia, jury that the was a cog “little in the (1986) (“Caldwell L.Ed.2d is relevant community” responsible carrying out only to types certain of comment—those proceedings, the criminal did not violate that mislead the as to its role Caldwell portions relevant of the sentencing process way in a that allows the record) (internal quotation marks omit jury to feel responsible less than it should ted)); Ward, Sellers v. decision.”); for the sentencing see also (10th Cir.1998) (“Viewing the record with Adams, Dugger 109 charity, we prosecutor’s note the hyper (1989); 103 L.Ed.2d 435 DeRo regarded bole as colorful. It sa, 679 not, however, the stuff anyone from which

Here, perceive could an offer to has not share the burden shown that the case.”); district court was incorrect ultimate decisions in this in concluding that Workman, the instant comments see also Black v. Cir.2012) (“Caldwell sibility determining the death whether should imposed” (quoting Ro broadly.”) penalty too should be read

not (Okla. State, 368, P.2d mano 847 390 here is mark- comment prosecutor’s The (internal marks Crim.App.1993)) quotation held to be edly distinct statements omitted)). of Consequently, this claim problematic under the constitutionally fail. prosecutorial misconduct must Caldwell, 472 of Caldwell. See principles 340, (holding S.Ct. 2633 at 105 U.S. Duty and the jury’s 3. Civic Emotion that prosecutor’s

that comments and job “[wa]s “not the final decision” was Finally, that argues “focused, unam- were reviewable”—which prosecutors [improperly] expressed “[b]oth the Eighth and biguous, strong”—violated jury to personal opinions urged and the portions relevant Amendment community at return for the a verdict (internal record) quotation marks omit- the For large.” Aplt. Opening Br. at 55. Mullin, ted)); Cargle v. 317 instance, prosecutor, at the conclusion one (10th Cir.2003) (concluding pros- that 1223 id., closing,” “[y]ou the noted that “first inappropriate in argument ecutor’s was community the of the representatives are jurors part are “suggested] that it jurors to that have chosen be the been prosecution police, the team job is your this case and it’s to decide what the impartial than arbiters between rather VII, case,” R., justice in this State Vol. (internal quota- the State and defendant” Additionally, the Resentencing Tr. at 279. omitted)). tion marks that, the prosecutor “you noted are second Moreover, emphasized the prosecution community of this representatives twelve to impose times that the decision multiple to what in which we all live decide one, tough but one penalty death was the justice in this case is justice. And what is solely with the that nonetheless rested Litt- Id. at penalty.” the death VII, See, R., e.g., Resen jury. State Vol. lejohn object to comment. did not either 329-31, Tr. at 349-50. tencing Con summarily rejected argu The OCCA jury, includ sidering everything before improper. ment that these comments were arguments entirety closing ing the II, at 301. See P.3d jury’s repeatedly emphasized which moreover, court, Mr. Little district found role, find simply cannot unrea correct lack john’s merit because argument that the OCCA’sdetermination sonable issue, context, did at taken comments jury affirmatively regard was not misled based “encourag[e] a death sentence not process. part sentencing its in the ing vengeance outrage.” on and/or Bland, (considering the 459 F.3d at 1019 agree with the district pt. at 249. We context,” “in prosecution’s comments court. rejection peti

finding that OCCA’s improper prosecu for a “It is unrea argument tioner’s Caldwell duty jury has a civic sonable, emphasized suggest tor to prosecutor where the 1134; convict,” Thornburg, at say); jury that the had the final Roma cf. States, 318 U.S. also v. United no, (finding see Viereck 236, 247-48, L.Ed. 734 the introduction of evidence concern (1943), wholly irrele “appealing to] previously imposed death sentence ing 247-48, Viereck, issues, sentencing vant” U.S. jury mislead on its did not Furthermore, reasons, is of vital because, “[i]t 63 S.Ct. 561. other among “[t]he role and to to the defendant respon- importance that it had instructed (con community added); decision impose (emphasis see id. at 1133-34 be, be, appear cluding multiple death sentence based comments from the prosecutor regarding caprice jury’s reason rather than or emotion.” role in al Gardner, “justice lowing prevail” [to] were not nec Wilson, essarily inappropriate because there was a 536 F.3d at 1121. “Appeals to nexus between the references and the evi jury’s vengeance emotion or sense of dence); see also Young, United States v. question call into integrity of the crimi 1, 6-7, 1038, 470 U.S. 105 S.Ct. 84 L.Ed.2d justice system nal by encouraging jury (1985); Selsor, 1024; Wilson, 1 644 F.3d at to convict outrage, based on and not on the 536 F.3d 1120-21. clearly Under estab Wilson, evidence,” (alter 536 F.3d at 1121 law, lished federal the OCCA could reason omitted) Bland, ation 459 ably prosecutor’s conclude that the com 1028) (internal quotation omitted), marks error, ments did not constitute reversible thereby undermining the “acute need for because they sufficiently were rooted reliability in capital sentencing proceed case, the facts of geared not to incite ings,” Monge California, 721, v. 524 U.S. not, jury, circumstances, under the 732, 2246, 118 S.Ct. 141 L.Ed.2d 615 sufficient to undermine the fairness Mr. (1998); Idaho, v. 500 U.S. Lankford Littlejohn’s resentencing proceeding. See 110, 126, 1723, 111 S.Ct. 114 L.Ed.2d 173 Mullin, Spears 1215, v. 1247-48 (1991); Brown, 538, California (10th Cir.2003) (holding that “the OCCA’s 107 (1987); S.Ct. 93 L.Ed.2d 934 decision denying petitioner] [the relief on Woodard, Ohio Adult Parole Auth. v. 523 based, alia, claim” [his] inter prose U.S. 140 L.Ed.2d argument “justice cutor’s cries out for (1998) (Stevens, J., concurring in part [a was not an conviction]” unreasonable dissenting part). application precedent Court and did not result in a “fundamentally The district court correctly deter unfair trial” in light of the entirety of the mined that the comments in this case did record); Bland, see also 459 F.3d at 1026- play jury’s emotions, on the or other (holding prosecutor’s sug comment improperly wise jury’s embed into the sen gesting jury ability had the tencing consideration a sense of societal prevent the defendant from harming ever alarm or the community justice. need for anyone line,” else “c[a]me close but In advocating for a result commensurate it,” did not “cross[] because it could be “justice,” prosecution with nonetheless interpreted implying as a “duty to decide emphasized that retained full re whether to sentence [the defendant] sponsibility for weighing the evidence— death,” duty not a him); to so sentence extensively which it outlined in closing ar Kinsella, accord United States v. gument—and “justice” would be the (1st Cir.2010). product of this weighing process. See VII, State Resentencing Tr. at Consequently, argu “justice” References to are not nec ment rejected. must be The comments at essarily improper, at least where the issue were plainly not so “[and] fundamen “prosecutor’s firmly comments [are] rooted tally deny unfair as to Littlejohn] [Mr. due ” in the the case and are not other process.” Donnelly, 416 U.S. at facts of wise made in a substantially inflammatory Gibson, see Smallwood v. manner. Thornburg, 1257, 1275-76 (10th Cir.1999). F.3d at 1134 F.3d L.Ed.2d 674 Absent Witnesses D. (1986),stating: argues next denying court erred district OCCA the entire examination record shows The Clause aon Confrontation claim based jury. was read witnesses of both trial, at his 1994 Specifically, violation. adequate indicia testimony had The (Mr. Betha Ware witnesses—Michelle two and Harris reliability as both Ware murder) time of the at the girlfriend ny’s by de- thoroughly cross-examined were sister)—(cid:127) (Ms. Ware’s Harris and Cecilia addition, the testimo- counsel. fense testimony that Mr. “offered under oath at ny was taken he admitting implicitly a statement made by a li- transcribed trial and was first at 56. Br. Aplt. Opening shooter.” was the thereby providing reporter, censed court witnesses, called them prosecution The cross-exami- adequate record. in certain them impeaching up ended but Litt- at Harris and nation of both Ware state prior inconsistent with instances by the conducted first trial was lejohn’s fur trial counsel Littlejohn’s ments. attorney competent defense highly same testimony on the their impeached ther Littlejohn at his resen- represented who points of bias, multiple and on grounds exposed Defense counsel tencing trial. V, R., See, Vol. e.g., State inconsistency. and Ware of both Harris the bias (Test, Har of Cecilia Trial Tr. 113 at 1994 percep- accuracy of their challenged the Har Ms. ris) (showing inconsistencies addition, In their and memories. tions loca story regarding ris’s of- only evidence testimony was not the Ware) (Test, tion); of Michelle at id. 98-95 the Littlejohn was to that fered show in Ms. bias out obvious the (pointing us, before On the record triggerman.... had a that she testimony—viz., Ware’s harmless error was find the we that Bethany was that Mr. testify reason doubt. a beyond reasonable shooter). Littlejohn’s resen- In the intro prosecution the tencing proceeding, II, (citing Chap- at 298 P.3d 85 Little- of Mr. objection the duced(cid:127)—over 824). 22, man, S.Ct. at 87 386 U.S. testimony of Ms. 1994 john’s counsel—the Brecht, court, agreed applying district their “by reading Harris and Ms. Ware a not have substantial “did the error Little transcript of the testimony from verdict.” jury’s on the injurious effect II, P.3d 85 first trial.” john’s II, 1, 240. pt. 296. lati Littlejohn maximum Allowing Mr. determined OCCA appeal, the On claim, we assume addressing his tude in pro- the required Clause the Confrontation the Confrontation deciding that without State) showing (here, a to make ponent sentencing proceedings. capital applies Clause It con- at 297. unavailability. See id. Wilson, 1111 F.3d at 536 made, . any- if Cf prosecution that the cluded ‘far that it is (“[W]e recently stated showing; consequently, thing, paltry a the Confrontation clear’ whether Confrontation determined OCCA sentencing capital applies even Clause (referencing See id. was violated. Clause v. States (quoting United proceedings.” 65-66, 100 Roberts, 56, 448 U.S. v. Ohio (10th Cir. Barrett, 1099 (1980)). How- 597 65 L.Ed.2d S.Ct. 2007))). decid assume without We further harmless error ever, that this it found correctly concluded the OCCA ing that doubt, considering beyond reasonable the testi introduction State’s Supreme by the factors identified violated two witnesses Arsdall, mony of the 475 v. Van in Delaware Court case the Confrontation Clause error this Confrontation Clause.12 harmless.”). context, In the habeas However, “Confrontation Clause recognized, the district court Brecht must subject harmless-error errors[ are] consideration; be taken gives into Arsdall, analysis.” Van U.S. at complexion of the Confrontation Clause Iowa, Coy v. analysis differ- harmless-error somewhat 1021-22, ent L.Ed.2d shade: Robinson, (1988); United States court Con- When federal considers a Cir.2009); violation in frontation Clause a habeas cf. — Mexico, U.S.-, Bullcoming v. New relevant error proceeding, harmless 11, 180 whether, 2719 n. L.Ed.2d 610 analysis assuming (2011) (“[W]e damaging no view on of the express potential whether cross-exami- However, (2007). reaching light approach its that the State conclusion Clause, claim, resolving violated the Confrontation the OCCA that we take see no Supreme pause definitively opine relied on the Court’s decision in need to on the Roberts, 65-66, implications 448 U.S. at non-retroactivity S.Ct. 2531. of Crawford’s case; Following at 297. dispute 85 P.3d parties’ for Mr. ruling, the OCCA’s Court issued proverbial amounts to more than a tem- little decision, court, landmark Clause its Confrontation pest teapot. in a Like the district we 36, Washington, v. 541 U.S. 124 recognize that the OCCA claim resolved this Crawford S.Ct. 1354, (2004). also, 177 158 L.Ed.2d The infra, on the and noted we merits as recently departure Court discussed proceed to rule in the State’s harm- favor on Crawford's analytical the framework of from Roberts: grounds. propriety less-error The of this de- path depends in the Crawford, cisional first instance Before this Court took the view clearly on whether or Roberts is that the Clause did Confrontation not bar Crawford law, established federal but on there the whether admission of an out-of-court statement all, clearly firmly that is established federal law at such exception fell within a rooted [Roberts, rule, hearsay requirement that the AEDPA’s threshold for rul- 448 U.S. at 66, 2531], ing Crawford, 100 S.Ct. but in on the is Victor the claim satisfied. See Hooks, ("Under adopted fundamentally Court new F.3d at inter- 689 1163 2254(d)(1), pretation right, holding question § of the confrontation the threshold wheth- is clearly "[t]estimonial statements of er there witnesses exists established federal (where law....”); absent only be] from trial admitted note 17 focus [can we infra cf. unavailable, law, clearly where the is declarant and on the absence of established only prior though where the defendant has had a even OCCA applica- the assumed the error). opportunity bility precedent to cross-examine.” of and federal found Illinois, -, arguendo assuming sup- Williams v. -U.S. Even that Roberts (and plied (plurality clearly 183 L.Ed.2d 89 the established federal law (second not), opinion) origi- clearly and alteration third did there still was es- Crawford nal) (quoting Crawford, apply law 541 U.S. at 124 tablished federal for the OCCA to 1354). here, fortifying position adjudicate going S.Ct. In and our forward the claim Indeed, Littlejohn places proper. limited some reliance on therefore would Litt- Aplt. Opening lejohn (noting Reply Br. at 57 have understood this. See Crawford. "recently (noting that the objection Court confirmed” Br. at 15 the is State’s important point” given that "the Confrontation "not an Clause that Roberts is Crawford required precisely applicable). requirement what the the defense re- Once threshold satisfied, quested presentation approach, live this case: the is under our is the focus witnesses”). objects, application claiming the on the de State novo of harmless-error specific pre- reliance on is standards. At on the least facts Crawford here, impermissible differing because that decision sented does not the substantive stan- apply retroactively. true that It is is dards of Roberts for determin- Crawford Crawford matter, whether, already ing not "retroactive to final the cases on di- antecedent Bockting, v. rect review.” Whorton 406, 409, 549 U.S. has been are Confrontation Clause violated largely 127 167 S.Ct. L.Ed.2d 1 immaterial.

845 realized, principles, reviewing Applying these fully were nation agree with the district court that the ad say the might court nonetheless testimony at mission of the issue was injurious ef- error had substantial Welch, 639 at harmless. See F.3d the determining fect or influence (“[W]e [in review the Confrontation Clause This court’s harmless er- jury’s verdict. only whether the context] admission the

ror review de novo. testimony under is harmless the Brecht Gibson, 206 F.3d Jones standard.”). First, proceeding as the at (citations Cir.2000) omitted) (quoting Van resentencing, was a much issue of the Arsdall, U.S. proof prosecution’s aggravating concerned Brecht, 623, 637-38, jury’s imposition the supporting 1710) (internal quotation marks omit- S.Ct. the penalty—quite apart death ted). evidence related whether Mr. Consequently, fired fatal shot. whether was harm determining error testimony hardly contested the central context, we less in this consider factors prosecution’s evidence in the case.13 See of the witness’ “importance such as Arsdall, Van case, testimony prosecution’s wheth Yates, Merolillo v. cumulative, cf. pres testimony er the (9th Cir.2011) (applying first corroborating ence absence of evidence or factor in concluding Van Arsdall testimony of the wit contradicting or testimony expert state witness went points, ness material the extent “straight against to the heart” of case permitted, cross-examination otherwise petitioner because it concerned “the strength prose and ... overall counsel”). argued issue most both Arsdall, 475 at cution’s case.” Van 684, 1431; Jones, Second, compe- 106 S.Ct. accord State the offered other 957; Boyette, Littlejohn that Wiggins F.3d at see 635 tent evidence was the (4th Cir.2011). instance, 116, 121-22 “[although For triggerman. F.3d he However, nevertheless 13. This discussion tracks the last Van Arsdall ness. consid is, strength totality the er it as a factor under the of the factor—that "the overall of Arsdall, Arsdall, prosecution’s See Van 475 U.S. at case." Van 475 U.S. circumstances. discussed, 684, context, prose- As 106 S.Ct. 1431. the 106 S.Ct. 1431. the ag- presented prosecution’s "case” related to whether the a substantial amount of cution II, gravating Littlejohn propriety the evidence. See 85 P.3d evidence established the of im And, disposi support position penalty. the the at 296. That fact would conclu- death Duvall, ("Un not, secondary the tive or 139 F.3d 789-90 sion that evidence issue law, primary disagree- jury is free to decline to case. In der Oklahoma the focus its ment, jury's impose penalty even relying question the death if it finds that on the concern- instructions, outweigh ing aggravating death-penalty Part circumstances the the see the circumstances.”), II.A, aggravating supra, Littlejohn mitigating evi contends that this obviously jurors prosecution's is "close ... where the were dence central was a case Furthermore, noting considering seriously than case. it is worth sentence less thus, death,” penalty Aplt. support and death Opening Br. at such evidence necessarily aggravating not need to focus on whether "mere existence of factors cannot did Banks, reasonably [harmless- not was the shooter. and does establish Cf. ("[C]ase ness],” law made clear Aplt. Reply Putting Br. aside 692 F.3d at 1141 has at 14. capital punishment felony Littlejohn’s conjectural murder our doubts about Mr. charges jury's purport- both constitutional and not infre inference about the view of case, imposed disagree quently when defendant was ed closeness of the we do present during the and acted with strength prosecution’s case murder alone, life.”). not, disregard standing harmless- reckless for human does establish Littlejohn] Third, did [Mr. not see fire the fatal attorney thor shot, Tony Hulsey, oughly the store clerk ... saw cross-examined the witnesses at II, gun approached with a as Meers the 1994 trial. [him] 85 P.3d at 298. The Littlejohn] transcripts believed entire trigger- [Mr. the testi II, mony of Ms. man.” Ware and Ms. 85 P.3d at Harris were 298. Con evidence, read into providing context for sequently, even if the two witnesses’ “testi to consider the deficiencies in the mony was entirely] [not cumulative Furthermore, testimony. prosecution [other] Van it].” corroborated at the 1994 trial repeatedly impeached Arsdall, Ms. 475 U.S. at Harris, Ware Ms. in order to elicit (“Close Wiggins, 635 F.3d at 125 exam they answers previously given had at a ination of the record leaves us with the preliminary hearing that were inconsistent firm conclusion that the same evidence with the they answers offered in direct improperly makes the admitted state examination. ments cumulative corroborates ”); Herbert,

them.... see also Perkins v. Just to provide one example, Ms. Ware (2d 161, 178 Cir.2010); Jones, 206 testified that she did not money know that 957; Crespin Mexico, F.3d at v. New 144 she received Bethany from Mr. came from (10th Cir.1998); Olden v. robbery, when in fact previ she had cf. Kentucky, ously testified that she believed the funds curiam) (hold 102 L.Ed.2d 513 (per R., were tainted. V, See State Vol. ing that the petitioner’s Trial Tr. at confrontation 84-85. Similarly, there were rights violated, that, discrepancies were See, between their under Van stories. Arsdall, e.g., (“Ms. pt. violation at 236 was not Ware harmless testified that beyond doubt, she heard say reasonable Petitioner where it con he did not mean to shoot Mr. cerned the limitation Meers who of cross-examination came after him with a broom. Ms. prosecution’s Harris key witness, and the testified similarly, but recalled that only Peti other corroborating evidence was sub tioner said that Mr. gun Meers had a stantially questionable); Yates, Slovik v. hand.”). prosecution’s repeated need Cir.2009) (hold impeach witnesses, to these along with the ing that a Confrontation Clause violation—(cid:127) discrepancies inherent between their own resulting from a limitation imposed on the stories, persuasive undermined the value cross-examination key of a witness— of testimony. their These factors collec amounted to a “substantial injurious tively diminished harm impact jury’s on the decision” where the attended the introduction of testimony the only potentially cumulative evidence of of the two women without the opportunity fered “shaky” and nonspecific). Mr. contemporaneous cross-examination of pointed has to no compelling them on the witness stand. United why reason the could not Cf. credit Mr. Burke, States v. 1048, 1057-58 Hulsey’s testimony, or the other evidence (10th Cir.2009) (“The extent of the cross- See, further corroborating it. e.g., Vol. examination impeachment] actually [and 1, pt. (noting that “[additional conducted ... diminishes the preju risk of evidence showed that all of the bullet frag ”); dice .... Wiggins, also 635 F.3d at ments found at the scene were part of a 121-25. bullet”—viz., single .380 type the

gun Hulsey testified to seeing in Mr. stresses that the Con- Littlejohn’s possession). provides frontation Clause him right the rights, including right “the to cross-exam- and to have face his accusers physically right the to exclude out-of-court [and ] the wit- ine the demeanor of jurors assess (citation omitted)). Specifical- See, statements” Pennsylva- e.g., him. against nesses ly, testimony the admission of out-of-court Ritchie, 39, 51, 107 S.Ct. 480 U.S. nia v. (1987) (“The in violation of the Confrontation Clause 989, L.Ed.2d 40 Confronta- inability in the invariably will result types protec- two provides tion Clause of the jury to assess the demeanor declar- right for a criminal defendant: tions However, that, not mean ant. does testify against to face those who physically circumstances, application such him, right to conduct cross-exami- harmless-error review is a futile exercise. nation.”). the district He contends OCCA) (and improperly over- court context, Indeed, in this foregoing importance of the looked prior recognized Court has counsel’s consideration, decisions] and “rested [their ability cross-examine an unavailable de proposition the wit- largely [that] prior proceeding clarant in a that was testimony Aplt. ... was reliable.” nesses’ any way” counsels “significantly limited Opening Br. 59.14 finding underlying in favor of no viola Green, tion. 399 U.S. at 90 S.Ct. has the Littlejohn is correct that he Here, we find same consider And face his accusers. right physically weigh in favor of a ations found Green jury’s that the consider- acknowledge we error because Mr. finding of harmless is no doubt ation of a witness’s demeanor preclud was not at all counsel aspect of the Confrontation important thoroughly cross-examining Ms. ed from See, e.g., protections. Clause’s California Ms. Harris at the 1994 trial. Ware and Green, 157-58, 90 S.Ct. U.S. (referencing 26 L.Ed.2d 489 Littlejohn’s argu- Consequently, States, Mattox v. United Clause ments under the Confrontation (1895)). 242-43, L.Ed. 409 rejected. presented, On the facts must be However, disagree that this facet of say “[g]rave doubt” exists we cannot (assumed) Littlejohn’s Con- assumed violation of Mr. Confron- as to the effect definitively tilts “the matter is rights Clause tation error or that frontation Clause finding evenly [we feel] in favor of a of revers- balanced that the scales so error’s equipoise regarding of out-of- prejudice. ible The admission virtual Mullin, 425 Patton v. testimony in violation of a defen- harmlessness.” court Cir.2005) rights inqui- entails an dant’s confrontation 992) O’Neal, different than that used ry somewhat omitted). (internal marks quotation unconstitutional restrictions on the assess witness ability of the defendant to test the Testimony Impelling E. Coy, See at trial. that the re- Littlejohn next claims that the Mr. (noting Confrontation admitting redact- sentencing court erred “implicit” numerous encompasses

Clause out, Littlejohn "makes correctly points Mr. argues Littlejohn also that the district 14. Mr. of a shorthand wrong much of the court's use prejudice inquiry the too out framed the court Aplee. 36. claim.” Br. at pros- reference to his "the way because it focused on whether clearly addressed whether court showing una- The district failure to make a ecution’s testimony "confron- of the without Ware admission vailability prior to the admission of Ms. jury’s substantially ver- affected testimony” prejudicial tation” had a and Ms. Harris’s II, See, R., II, R., pt. at 239-40. e.g., Vol. pt. dict. at 240 on the verdict. Vol. effect However, required in this case. added). all that Brecht That is (emphasis as the State testimony gave Littlejohn during Mr. testified the 1994 portions ed he R., VIII, “im during the 1994 trial because he was proceedings. See State Vol. testify deny (Test, in order to errone pelled” Tr., at of Mr. Little Trial allegations by jailhouse made infor ous testimony, In john). portion a short of his prosecution’s mant. He claims anything to Tin confessing he denied Mr. testimony use of his 1994 violated Harri At gle while his cell. See id. 107-08. States, prohibits the son v. United which resentencing, the 2000 the State read introduction into evidence of a defendant’s Littlejohn’s testimony much of Mr. into testimony “impelled” that is the eviden record, portions dealing but redacted tiary illegally use of the same defendant’s Tingle with the incident. See State procured confessions. (“But V, Resentencing Tr. at 799-800 (1968); 2008, 20 L.Ed.2d 1047 record, testimony] goes for the from [the (“[W]e id. at 223 n. 88 S.Ct. 2008 decide page page exception 198 with the only prosecution here a case which the ”). portions.... ap the redacted On direct illegally introduced the defendant’s confes peal from the 2000 resentencing, against sion in evidence him at trial in its rejected Littlejohn’s argument OCCA Mr. case-in-chief.”). Harrison bars the use of testimony reading that the of his was un testimony such of a it defendant because lawful and should result another resen- poisonous deemed to be “the fruit of the tencing. 85 P.3d at See 298- illegal tree” of his confessions. Id. at Assuming arguendo 99. that his testimo 88 S.Ct. 2008. ny suppressed should been under penalty phase Littlejohn’s At the of Mr. Harrison, any the OCCA found that error trial, testimony the State elicited beyond was harmless a reasonable doubt. “jailhouse Tingle, Lawrence See id. snitch,” that, who claimed while incarcerat ed, Mr. killing confessed both to The district court found that Harrison Mr. “hiring Meers and also to a hit man to clearly was not federal established law as kill ex-girlfriend baby” and their applied to Mr. case because Tulsa, Aplt. Opening Oklahoma. Br. at 81. illegally Harrison involved an obtained ultimately Another individual was convict confession, primarily and otherwise dealt charges relating ed of murder fruit-of-the-poisonous-tree with the doc Littlejohn’s ex-girlfriend baby. trine—concepts any not at issue here. State, (citing Young See id. 992 P.2d 332 event, Brecht, applying found (Okla.Crim.App.1998)). appeal, On direct error under Harrison did not have a sub found that OCCA State had of injurious stantial or effect on Little fered no “true corroborating evidence” for john’s resentencing trial. agree We with I, Tingle’s testimony. the district court that Harrison does not Accordingly, 989 P.2d it found that supply clearly established federal law on testimony the admission of the violated Consequently, these facts. we need not process rights due decide whether the of Mr. Litt admission beyond the error was not harmless lejohn’s testimony was harmless error. reasonable doubt in that it contributed “ ‘[C]learly in established Federal law1 jury’s finding continuing-threat the 2254(d)(1) § Thus, holdings, op ‘refers to the as aggravator. in part See id. based dicta, posed Supreme] th[e the finding, on this remanded for the resen tencing proceeding, ultimately which Court’s decisions as of the time of the took ” Musladin, place 2000. See id. at 911-12. relevant state-court decision.’

849 tionally obtained confessions in violation 74, 649 at 127 S.Ct. 549 U.S. 1495). 222, at Amendment. See id. Williams, 120 the 529 U.S. at Fifth (“[T]he principle 2008 same holdings 88 S.Ct. Supreme Court It “consists pro use of confessions so closely- prohibits at the facts are least cases where the the testimo judice.” prohibits cured also use to the case sub related or similar poi fruit of the House, clearly ny impelled thereby—the 1016. Whether 527 F.3d at tree.”); Elstad, Oregon sonous v. exists is a thresh- federal established law 298, 316-17, 105 S.Ct. “analytically dispositive U.S. and is question old (“If 2254(d)(1) prosecution the has analysis.” Id. at 1017. L.Ed.2d § in the the Fifth actually violated defendant’s Harrison, introduced prosecution the rights by introducing an inad Amendment petitioner alleg- that the three confessions trial, compelling at missible confession custody. See edly made while he was rebuttal, the rule testify defendant to After the 88 S.Ct. 2008. ..., precludes in Harrison use announced confessions, petition- admission of the testimony (emphasis retrial.” of that to offer his the stand order er took added)). in question. of the events own version Fifth was concerned with the guilty, found him but Harrison jury ultimately The prohibition on law enforce ap- on direct Amendment’s conviction was reversed unlawful extraction of confessions confes- ment’s grounds “[his] on the peal Elstad, See, e.g., obtained and were from defendants. illegally had been sions 316-17, 105 S.Ct. United against in evidence inadmissible therefore (8th Gianakos, remand, prosecution States v. him.” Id. On Cir.2005) sought that Harrison (noting portions relevant read into evidence benefitting prevent government testimony over the defense’s petitioner’s illegally obtained inferentially in- from the “fruit of objection—testimony added)); (emphasis Luna v. confession” petitioner. See id. criminated (1st Massachusetts, Cir. held Court 88 S.Ct. 2008. 2004) (“The of Harrison was premise petition- use of the prosecution’s that the (actually several original confession problematic because testimony was er’s confessions) wrongfully obtained had been after the Government only testified “[he] (citation omitted)); federal law.” into evidence under illegally introduced had cf. 702, Sigler, 435 F.3d confessions, Cosby wrongfully all ob- three (“Since Cir.2006) petitioner’s] state [the 2008. The Id. at tained.” obtained, there illegally testimony ob- ment was “impelled” Court held admitted, state improperly fore not a Fifth Amendment tained as a result of Harrison]” no ... burden (i.e., illegal- [under bears the admission of violation com confessions) testimony was not that her “show[ ] was inadmissible ly obtained of the statement.” pelled by the admission tree.” Id. poisonous the “fruit of the added)). (emphasis petitioner’s first-tri- It concluded that the and, impelled conse- testimony al was so Here, contention that there is no prejudiced by admission quently, he was a confession wrongfully obtained State 224-26, testimony. id. at prior of his in violation of the from Mr. constitu- any other Fifth Amendment—or amendment, matter. Rath- for that terms, only tional applicable By its Harrison er, only facts involve impelled these testimony is where a defendant’s freely were alleged admissions-—that unconstitu- improper use of his own actor, made, private pression) prior where a defendant’s testi without coercion—to Tingle Mr. testified process due Tingle. mony by When impelled alleged is admissions, al- about these violation. adopt To such a rule would testify to offer his legedly compelled felt to to extend Har require inappropriately us may story. This scenario side of the rison to a novel context. See Premo v. it is not the stuff of many things, but — Moore, U.S.-, Elstad, 316-17, Harrison. See 470 U.S. at ... (“[Njovelty 178 L.Ed.2d 649 rule an- (noting that “the renders relevant rule less than [that] [a] Harrison applies the “[i]f nounced” ‘clearly provides a reason established’ prosecution actually has violated the de- AEDPA.”).15 reject to it under by rights Fifth Amendment in- fendant’s Whether Harrison ever may at tri- be extend troducing an inadmissible confession al, testify to compelling beyond the defendant Fifth ed its Amendment confession hand, but, rebuttal” on the other “the question context is not before us.16 that a Court has refused to find defendant Rather, giving due deference to state court confesses, being falsely who after told that commands, adjudications as AEDPA our his codefendant has turned State’s evi- Harri threshold concern whether must be dence, involuntarily”). does so son’s holding furnished the OCCA with clearly established federal law to resolve

It apparent is rule Mr. Little- Littlejohn’s john argument. We answer application advocates for involves the (i.e., remedial sup question negative.17 of Harrison’s measure For that acknowledge process rights holding 15.We that our decision in of Harri Gibson, Humphreys sufficiently 261 F.3d 1016 son is to broad outlaw it. For Cir.2001), reasons, Humphreys at first blush indicate that these does not advance applicability Harrison has broader than is Mr. contention that Harrison's suggested Humphreys, petitioner holding clearly here. In is established federal law be objected resentencing yond admission at the Fifth Amendment confession con testimony guilt stage his own from the of his text. argued trial. id. at initial 1023. He compelled testify very questioned he was after the trial 16. The OCCA in this case "refusing] court erred in to instruct on first whether Harrison limited could be to the Fifth degree manslaughter,” separate theory Amendment context. See However, ("We the case. Id. the OCCA held that P.3d at 298 are not convinced Hanison refusing easily the trial court did err in can be so limited because in both in- that, pro- instruction. Id. We concluded stances Fifth Amendment [the and due contexts], petitioner "impelled” complaining extent that the cess the defendant is was, less, testify, "wrongfully impelled.” testify he was not Id. that he more or forced to However, Harrison, referencing we did not because the State used his inadmissible con- him.”). clearly against hold that it was federal established fession contrary, See id. To the law. noted that directly peti Littlejohn suggests "Harrison does not address 17. in the alternative [the situation,” Elstad, that, (citing id. tioner’s] "since the state court at least assumed 316-17, 1285), 2254(d) applied, U.S. at triggered but nonethe Hanison [§ ] is not (in alternative) all, apply less we considered his its failure Hanison at but merit, argument [only] by because was without see id. its unreasonable harmless error event, petitioner Humphreys analysis.” Aplt. Opening Br. at 85. In other words, view, clearly framed his claim to establish that the under Mr. because prosecution’s testimony applica- use of his "violated OCCAassumed that Harrison was it, privilege against his Fifth Amendment self- ble and that there under AEDPA was error substantially implicated regarding incrimination.” Id. This dif is not the substance of and, Littlejohn’s argument: challenge consequent- ferent than Mr. the constitutional reading testimony ly, of his violated his due we have no occasion to examine the felony escaped murder and im- convicted of reason, Mr. reject penalty. the death argument. pelled-testimony Littlejohn sought prevent the Mr. Theories Inconsistent F. in- taking he deemed an State what prosecu that the Littlejohn argues Mr. in his trial. The trial position consistent posi took inconsistent inappropriately tion Littlejohn’s attempt judge rejected Mr. trial of his the earlier in his trial and tions theo- prosecution’s and concluded that the co-defendant, Bethany. Specifically, Mr. Bethany’s in Mr. case was not inconsis- ry trials, that, separate in their he contends theory in Mr. Little- proposed tent with its finger the pointed first prosecution the Littlejohn john’s case. Mr. claimed Littlejohn, at Mr. Bethany, and then process rights that his due appeal direct the shot that killed person who fired as conduct. by prosecutor’s were violated trial, At the 1994 Kenneth Meers. rejected argument, finding The OCCA Littlejohn for first prosecuted State was less than that because “the evidence aforethought malice degree murder with identity of the shoot- conclusive as to the murder. and, alternatively, felony for er,” left to the appropriately the issue was Litt However, in March earlier a matter. jury to determine as factual prosecutor the same lejohn claims that I, 989 P.2d at 909. he Bethany’s trial that at Mr. insinuated review, the district court On habeas particu Meers. the shooter of Mr. was that, at Mr. Betha- agreed. It concluded lar, allegedly “made several prosecutor trial, reference prosecutor “the made Bethany ny’s could that Mr. arguments finding might support which across to evidence gun,” that two witnesses have had (Mr. 1, pt. the shooter.” taller man was [he] “said that the the street added). However, shooter,” (emphasis at 217 and that “Mr. Bethany) was the mur- malice [a] she “did not advocate Bethany up [of with his version came conviction, ju- repeatedly told i.e., Littlejohn] after der but story, blaming Mr. it was their determination rors that by police warned being case, And, in Mr. him make.” Id. certainly going to blame was almost was “more adamant” Open prosecutor while the Aplt. when asked.” shooting for the shooter, “the that Mr. was Bethany ultimately Br. at 98. Mr. ing petition and reach the merits” question whether Harrison is sider threshold claim). law, assumes a Where a state court clearly federal but rather er’s established address merely whether the OCCAun- violation in order to look at constitutional should principles actually harm- harmed reasonably applied federal whether the defendant violation, here, disagree. error. We the state court takes less merits; just disposes of it it the claim on obliged examine the state court's We are reasoning. merits-based on alternative Cf. a whole in order adjudication of the claim as Luebbers, (8th Brown "on the merits” to ascertain whether Cir.2004) ap (holding that AEDPA deference and, so, clearly estab whether there is if holding alternative plied to a state court's and whether federal law for claim lished applied a trial error and where it assumed "reasoning the result []or court’s the state Chapman). review under harmless error Early v. federal law. ... contradicts” such is, a decision that is on it renders Packer, That Richter, AEDPA, purposes of curiam); merits for (2002) (per Aycoxv. L.Ed.2d 263 cf. therefore, inquiry must Cir.1999) our 131 S.Ct. at Lytle, 196 F.3d of AED analytical framework adhere to the (applying deference in the face of AEDPA PA, assay into whether includes an which no summary ”[t]here [wa]s decision where law. clearly federal there is established court did not con- evidence ... that the state 187, premised pre- aggravated on the tion for murder.” Id. argument was still observe, and did not violate did sented evidence” 125 S.Ct. 2398. The Court process rights. Littlejohn’s “general” however, due allegedly incon- that the “use fundamentally, the Id. at 217-18. More may have a direct sistent theories more Littlejohn’s that Mr. district court found ... for petitioner’s] effect on sentence [the argument was not inconsistent-theories arguable at least that the sentenc- [wa]s grounded clearly in established federal ing panel’s principal conclusion about [his] law—viz., clearly federal no established role the offense was material to its prosecution law would have barred the It sentencing determination.” Id. remand- arguing from inconsistent theories. for a further determination of the ed claim, “expressing] opinion no on whether court, con Like the district we prosecutor’s the action amounted to a due Littlejohn’s inconsistent- clude violation, or vio- process whether such argument theories fails at threshold prejudicial.” lation would have Id. been clearly because it is not based on estab Supreme lished federal law. The Court Bradshaw, Supreme “Before Court only had one occasion to address a has suggested prose- had not that inconsistent prosecutorial State’s use of inconsistent cutorial theories could constitute a due 2005, theories. It did so after all of Mr. Branker, process violation.” DeCastro v. Littlejohn’s had proceedings state conclud (4th Cir.2011). 442, 457-58 Jus Stumpf, ed. See Bradshaw v. 545 U.S. tice Thomas’s remarks his Bradshaw 2398, 162 L.Ed.2d 143 strongly concurrence evidence this: The (2005). Bradshaw, the Court consid hinted, “[Supreme] Court has never much viability ered the of a prosecutor’s use of held, that less the Due Process Clause involving inconsistent theories two co-de prevents prosecuting from State defen separately who prosecuted. fendants were theories,” dants based on inconsistent Below, Id. at 125 S.Ct. 2398. (Thomas, J., S.Ct. 2398 prosecu Sixth Circuit had held that DeCastro, concurring); accord 642 F.3d at tion’s use inconsistent theories as to 457-58; Quarterman, Pondexter v. identity pro of the shooter violated due (5th Cir.2008).18 Even if required cess and the invalidation possible it were to read Bradshaw’s hold guilty plea. defendant’s See id. at ing extending process protections due (Souter, J., concurring). 125 S.Ct. 2398 us, facts like those before that case would Supreme disagreed. It Court rea noted, Littlejohn. not avail Mr. As change prosecution’s soned that the in the Brad theory guilty plea was made after the and shaw decided after final, precise identity “the triggerman conviction became and he does not petitioner’s] suggest [the immaterial to convic- that Bradshaw has retroactive ef- J., (Souter, (third Littlejohn disagrees concurring) 18. Mr. with this view of 125 S.Ct. 2398 Supreme precedent. Scott, state of Court He original) (quoting alteration in Jacobs points to Justice Souter’s concurrence Bradshaw, opined which that Justice Stevens J., (1995) (Stevens, dissenting L.Ed.2d 618 years [prior] “observ[ed] 'serious However, certiorari)). from denial of Jus- questions sovereign are raised when the itself "on-point” tice Stevens’s comment was made positions separate takes inconsistent in two in a dissent denial of certiorari. proceedings against criminal two of its citi- hardly This contradicts Justice Thomas's ob- zens,’ heightened and that need reli- '[t]he regarding holdings servation the actual ability capital only cases underscores ” opinions. Court's gravity questions.’ of those 545 U.S. at However, Littlejohn’s al reject clearly Thus, not constitute it could feet. holdings transmute the chemic efforts to law for Mr. federal established clearly federal these cases into established See De- argument. inconsistent-theories In context. particular law for this (“Because Brad- Castro, at 458 factual House, deed, noted that expressly in finality the of Peti- post-dated ... shaw in abandoned Musla Supreme Court him in conviction, help cannot [it] tioner’s approach essentially identical din relief.”); v. Thaler for habeas quest cf. here, Littlejohn advances one that Mr. 1171, 43, 1174 130 S.Ct. Haynes, 559 U.S. clearly estab “drawing] which involved curiam) (per L.Ed.2d 1003 n. 175 general principles law from lished federal deci- Supreme a certain Court (noting that House, 527 F.3d precedent.” teased from feder- clearly established could not be sion post- that “in the at 1015-16. We noted it was claim because petitioner’s al law for analysis, clearly established law Musladin convic- “nearly years six after his decided Supreme holdings Court consists years final and more than six tion became closely- are at least cases where the facts decision”). the relevant state-court after judice.” related or similar to the case sub Bradshaw, we are analysis Given further clarifica Id. at 1016. We offered that there is conclude primed generally legal rule at by stating, “Although tion to which clearly federal law no established genesis need have had its issue can tether his inconsistent- context, factual closely-related or similar event, In that Mr. Little- claim. theories expressly Supreme Court must have claim fails at the threshold. john’s legal rule to that context.” extended the however, that Littlejohn suggests, Id. not delimit the universe Bradshaw does Post-Musladin, confronts feder- clearly established possibly relevant obstacle. The cases an insurmountable law, may look elsewhere. and that we al he relies well be viewed upon which Littlejohn suggests that Specifically, articulating principles of fundamental in, decisions most Supreme Court’s fairness, articulat- Supreme Court but States, 295 notably, Berger v. United U.S. factual con- principles those distinct ed (1935), L.Ed. 79 1314 the one before that do not resemble texts 83, 83 S.Ct. Brady Maryland, 373 U.S. Turner, 468-74, at 85 379 U.S. us. See (1963), and Turner v. L.Ed.2d 215 fraternizing (holding that S.Ct. 546 Louisiana, 466, 85 key wit- jurors prosecution between (1965), clearly supply L.Ed.2d estab- pro- the defendant’s due nesses violated for these circumstances lished federal law at Brady, 373 U.S. rights); cess in- resolution of his (“We and that the OCCA’s sup- now hold S.Ct. 1194 constituted an claim consistent-theories of evidence prosecution pression of those cases. application request vio- upon unreasonable an accused (cid:127)favorable to collectively, Littlejohn, According to Mr. the evidence process lates due where proposition punishment, for the or to guilt the cases stand material either to faith engages in unfair or faith or bad prosecutor irrespective good of the where conduct, may in- prosecutor Berger, U.S. unjust prosecution.”); of the litany of bad (noting process due 55 S.Ct. 629 fringe upon defendant’s trial conduct on See, inappropriate Br. at 32 e.g., Aplt. Reply faith and rights. including “mis- “longstand- prosecution, behalf of the that these cases invoke (noting ... cross-examination facts in stating fair- of ... fundamental ing principles witnesses,” ... “suggesting ness”). investigate present had been made out of statements of proof); court” in the absence see also experiences from his birth and childhood 180-81, Darden, 477 organic dysfunction. caused brain We 643-44, Donnelly, 416 U.S. that, light unique proce- conclude Nor has the Court S.Ct. 1868. case, a dural circumstances of this remand expressly principles extended the of those development for further of the factual rec- prosecutor’s cases to the context of a use ord is order. Accordingly, theories. inconsistent clearly supply those cases cannot estab- 1. Standard of Review: De novo Littlejohn’s in- lished federal law for Mr. argument. consistent-theories Littlejohn Mr. September On Furthermore, Littlejohn’s Mr. reliance Martin, by Dr. was evaluated Manual Saint that ap- on various extra-circuit decisions potential who uncovered evidence of a or ply foregoing Supreme Court cases to Attorneys ganic brain disorder. from the predicated upon prose- claims inconsistent Indigent System Oklahoma Defense see, arguments, e.g., cution Smith v. (“OIDS”) appointed represent were Mr. Groose, Cir.2000), 205 F.3d 1045 is Littlejohn in collateral proceedings; state unavailing. Putting aside the fact that he representation their was focused on the controlling is not even able to marshal or presentation post-conviction of a motion. persuasive precedent the Tenth Cir- Twice within a few weeks OIDS filed position, cuit to support important OCCA, point pleadings is that the before the Court has re- “acknowl peatedly emphasized that the AEDPA edging 60-day [filing] constraint of analysis should not be focused on “[circuit] 9.7(G)(3) seeking OCCA Rule vari [for precedents, rather than [on] those th[e ous an ap additional time to file reasons] Court, Supreme] in assessing the reason- R., II, plication.” pt. at 257. See ableness of the decision.” [state court’s] generally Appeals Okla. Ct.Crim. R. Matthews, see id. at 9.7(G)(3) (“No subsequent application for (“It plain repetitive error post-conviction relief shall be considered rely for the Sixth Circuit to on its own by this it sixty Court unless is filed within precedents granting ha- petitioner] [the (60) days previously from the date the relief.”). Consequently, beas Mr. Little- legal serving unavailable or factual basis john’s prece- reliance on circuit scattered as the basis for a new issue is announced misguided unpersuasive. dent is discovered.”). OCCA, however, or sum, above, for the reasons noted non-compliance dismissed the matter for Littlejohn’s conclude that Mr. inconsistent- 9.7(G)(3). Littlejohn with Rule argument theories a fatal fall takes at the Post-Sentence), (Littlejohn State No. clearly threshold of established federal PCD-2005-1155, (Okla.Crim.App. at 2-3 guide law. No such law was available 2005).19 Dec. It held that Mr. Little adjudication argument. OCCA’s of his john’s attempt present the matter to the G. Ineffective Assistance at the Penal- day court was noticed “on the after 58th

ty Phase the factual for [he] contended] basis Littlejohn claim became available.” Post- Littlejohn alleges that his resen- Sentence, However, tencing failing counsel was for ineffective 2-3. deemed this slip-opinion slip 19. This decision is attached in tachment F. Citations herein are to the Littlejohn's opening opinion. form to Mr. brief as At- “comply petitioner’s] insufficient to with Rule claim of ineffective assis- “notice” as an tance.” 476 F.3d at 1141. as it could not “be construed 9.7” Id. application court].” relief [for Upon our review the State’s “[a]ny application Littlejohn] [Mr. Because brief, it appears (again) the State has ultimately file in the future com- could challenge failed to asser un- pliance 9.7[ with Rule would be ] 9.7(G)(3) tion that Rule is inadequate. The timely,” the OCCA dismissed the matter. in passing Littlejohn State avers that Mr. at 3. Id. “never exhausted this claim in the OCCA court, main Back federal the State because he did not file a applica successor tained that Mr. failed to exhaust tion post-conviction Aplee. relief.” pt. the claim. See Yol. at 258 perfunctory Br. at 39. This statement— (“Respondent only contends that the issue not even falling within the framework of a unexhausted.”). rea argument—falls broader far short of ad dressing that he no contentions that longer soned could exhaust stance, exhaustion is futile the instant circum light claim OCCA’s Post-Sentence, 2-3-thus, subsequent procedural stances and that a ex “adequately” applied bar cannot be Moreover, argued haustion was futile. he him.20 Nor does contest the district 9.7, procedural that bar in Rule finding futility court’s or its decision to him, applied inadequate to bar fed apply Consequently, de novo review. like eral habeas review. See Anderson v. Sir court, the district we review Mr. Little- (10th Cir.2007) mons, 1131, 476 F.3d 1140 Anderson, john’s claim on the merits. See (noting procedural default bars a ha- 1139-40; 476 F.3d at see also Neill v. application only ap beas where the rule (10th Gibson, 1184, 263 F.3d 1197 Cir. plied “independent” “adequate” 2001) (declining apply procedural de English Cody, v. 146 F.3d where, alia, fault inter the state “d[id] (10th Cir.1998))). 1259 The district court applicability), continue to assert” its attempt found that further to exhaust aff'd (10th Cir.2001); reh’g 278 F.3d 1044 Mr. claim would be futile. Moore, (addressing 195 F.3d at 1167 an Moreover, because the “failed to de State issue on the merits where State did not 9.7(G)(3),” adequacy fend the of Rule adequately argue that the claim was unex inadequate court found the rule to bar barred). procedurally hausted or pt. In doing relief. at 258.

so, path the court followed the that we Furthermore, we have at our because Anderson, endorsed in where we conclud adjudication of disposal no merits that, claim, ed where has made no “[the State] is de novo. our standard of review Anderson, 1142; either court or attempt, before the district 476 see also F.3d court, Workman, adequacy of Rule this defend Davis v. 695 F.3d 1073 9.7(G)(3) (“Because (10th Cir.2012) 9.7(G)(3), ... Rule is not ade there has been adjudication no on the merits quate to bar federal habeas review of state-court [the Here, Anderson, meaning application amount to "a as in we have a “definitive would properly ruling utterly futile act to exhaust from the state court that it will not less Selsor, Id.; application 644 review on the merits a his state court remedies.” successor 1026; Workman, Littlejohn] raising a F.3d at Fairchild v. 579 F.3d [Mr. from claim trial (10th Cir.2009). points 476 F.3d at 1139. 1155 The State counsel was ineffective.” by which Mr. Little attempt subsequent to no other mechanism need not OCCA; john properly in application could otherwise exhaust his for relief before the action, light dismissing claim. of its order such effective-assistance however, 2254(d) juncture, At we would be claim, § does not AEDPA’s affirmatively grant Mr. hard-pressed to having court ad- apply.... prior No relief. His ineffective- habeas merits, review is necessar- dressed the our the- primarily assistance claim rests on the Le, (citation omitted)); ily de novo.” damage that Dr. Saint Martin ory of brain (“[Where] there is no n. supports with posits his declaration claim to adjudication particular on the averments. As is often true of factual 2254(d) attaches, § which deference under claims, however, Littlejohn’s inef- such particular claim de ... we review fact- highly fective-assistance claim is Gibson, novo.”); v. 239 F.3d Romano vigorous- In particular, parties bound. (10th Pickens, Cir.2001); 206 F.3d ly dispute persuasiveness the scientific Horn, v. accord Breakiron theory and the actual Dr. Saint Martin’s Mitchell, (3d Cir.2011); Smith organic existence of an brain disorder. Cir.2009). 62-63, Compare, e.g., Aplt. Opening Br. at 73-74, Aplee. Br. at 43-44. A further with 2. Merits of Dr. Saint exploration of substance signifi- findings might Martin’s well reveal contends that his cant theoretical or factual holes would failing to con counsel was ineffective or finding performance make a of deficient nect the dots between his childhood devel at this prejudice Consequently, unsound. opmental problems and the fact that he time, Little- we cannot conclude demonstrated, physiological suffers john prevail is entitled to on his habeas Dr. dis damage, brain which Saint Martin However, claim. that is not the end of the disagreed, covered. The district court story. Littlejohn finding that Mr. had not shown recognize heightened care that We prejudiced by that he was his counsel’s employed death-penalty must be in the investigate present failure to the fore qualitatively context to ensure that going evidence. The district court sum penalty different of death rests on a solid marily an denied evidentia See, Ohio, footing. e.g., Lockett v. legal ry factual hearing develop basis 2954, 57 98 S.Ct. his claims. (not- (plurality opinion) L.Ed.2d 973 disagree with the We are constrained to imposition by public that of death ing “the district court’s resolution of this claim. authority profoundly so different from is unique procedural posture Under the penalties”). Consequently, all other case, under which our review is de genuine existence of factual issues in this novo, that Mr. we conclude more— case should not cause us—without may claim mer ineffective-assistance have relief, deny if is an there specifically, it. More we determine that procedural mechanism avail- appropriate may trial counsel have able to those issues. conclude resolve We constitutionally repre furnished deficient available: there is such mechanism by failing investigate sentation the links evidentiary hearing. an See Rule 8 of the dispos between the evidence he had his Governing Rules Section Cases potential damage, al and brain advisory Dist. Courts committee’s U.S. (1976 Littlejohn may prejudiced have been func- adoption) (noting note “the See, e.g., evidentiary hearing try as a result. v. Wash an is to Strickland tion of fact”); Banks, 668, 687-88, ington, 466 issues of 692 F.3d cf. (“[A]n (1984). evidentiary hearing 1144 n. 4 is not 80 L.Ed.2d 674 2254(e)(2)(A)(i), Instead, § its function U.S.C. or “a factual expedition. fishing facts.”). disputed predicate previ to resolve that could not have been ously through discovered the exercise of begin with a brief discussion of We 2254(e)(2)(A)(n). § diligence,” due id. Ac govern whether Mr. legal standards Higgins, cord McGee may his entitlement to establish (10th Cir.2009). Furthermore, petitioner Then, by refer- evidentiary hearing. an underlying that “the must show facts jurisprudence to the well-settled re- ence claim would be sufficient to establish claims garding ineffective-assistance convincing clear and evidence that but for cases, why Mr. Little- capital explain we error, constitutional no reasonable factfin- john legal has satisfied those standards applicant guilty der would found the hearing.21 is entitled to a and thus underlying offense.” 28 U.S.C. Evidentiary Hearing a. Under 2254(e)(2)(B). §

Pre-AEDPA Standards However, petitioner if a has not satisfy the re petitioner A must strict diligence developing failed to exercise attain an quirements of AEDPA to eviden claim, request the factual for his basis tiary hearing develop if he “has failed to evidentiary hearing may for an as claim in State the factual basis of [his] less-rigorous pre-AEDPA sessed under U.S.C. proceedings.” court Ward, 517 standards. See Coronado v. Fairchild, 2254(e)(2); § see (10th Cir.2008) (“If 1212, 1217 n. 2 AEDPA, a fed (noting “[u]nder argu [petitioner’s diligence] were to credit grant an eviden- eral habeas court ments, we would assess his contention tiary hearing to a defendant who failed to standards.”); pre-AEDPA error under court, in a develop except his claim state Williams, also 529 U.S. at circumstances”). few, narrowly defined (“If there has been no lack of dili requirements AEDPA establish a Those gence stages at the relevant the state evidentiary hear high attaining bar for proceedings, prisoner has not ‘failed A must demon ing. petitioner habeas 2254(e)(2)’s § develop’ the facts under upon his claim relies “a new rule of strate clause, and he will be excused law, opening constitutional made retroactive to the balance by showing compliance from with Supreme cases on collateral review the Court, unavailable,” requirements.”). Un- previously that 28 of the subsection’s was reviewing adjudicated adjudicate a claim 21. Because the OCCAdid not admissible court”). Littlejohn's merits, Compare claim on the ineffective-assistance in state on the merits one, qualifies alternative, long Davis, (“In so as he 695 F.3d at 1072 evidentiary hearing may to federal be used requests evidentiary hearing Defendant an to develop the factual basis for his claim and present that his state- additional evidence (and court) may the district court our consid- have been excluded. But we ments should produced hearing the evidence in the er already evidence that considered all the claim, assessing the his without merits of courts, presented he to the Oklahoma running recent afoul of the Court's our review of the OCCA deci- under AEDPA Cullen, which held that "review decision sion on this issue must be confined 2254(d)(1) § is limited to the record under record.”), (“Be- with id. at 1076 state-court adjudicat- before the court that state OCCAdid not address this coercion cause the 131 S.Ct. at ed the claim on the merits." 2254(d) § therefore is issue on the merits and Black, added); (emphasis inapplicable, evidence from a federal-court (noting at 895 that "even if a federal-court hearing evidentiary could be considered in by evidentiary hearing is not barred issue.”). resolving the 2254(e)(2), § in- the evidence so obtained is noted, the standards, step to one. As OCCA “[peti getting pre-AEDPA der those Littlejohn evidentiary hearing to obtain permit entitled to an refused to tioner is ... counsel so counsel post-conviction issue of ineffective appointment on the if true and not allegations, his claim. long as this ineffective-assistance to exhaust record, existing factual by the contravened pleadings numerous before OIDS filed Young relief.” him to habeas would entitle OCCA, to find Mr. seeking opportunity an (Kevin Young), 486 v. Sirmons pursue new counsel to the claim (alteration Cir.2007) (10th ellipsis collateral review. The OCCA refused on Ward, Hammon v. original) (quoting any potential barred to hear the claim and Cir.2006)) (internal 919, 927 of it. PosP-Sen assertion omitted); see also Coro quotation marks tence, at 2-3. (“Under nado, 1217 n. 2 F.3d at However, resolving than rather rubric, petitioner is enti [pre-AEDPA] question, we diligence the merits of the evidentiary hearing long so tled to an AEDPA grounds conclude on waiver if true and not contradicted allegations, so, do most apply. standards do We record, him would entitle to existing relief.”). has failed to notably, because State habeas challenge dili specifically Littlejohn’s re- that Mr. We conclude brief, opening in its but also related gence evidentiary may be hearing an quest for ly allege has failed to because State pre-AEDPA assessed under the properly procedural bar that the OCCA Arguably, Mr. legal regime. applied adequate, or that Mr. Little seeking develop diligence exercised john timely failed to raise his claims before and, for his claim the factual basis argue the OCCA. Where the State fails basis, obligation could be relieved of diligent, than petitioner that the was less satisfying AEDPA’s strict standards for previously diligence have held that a he evidentiary hearing.22 particular, Fairchild, challenge is waived. See sought review of his ineffective-assistance (“[T]he F.3d at see id. with claim before the OCCA argued petitioner] has not that [the State Dr. Martin. The record demon- Saint chal diligent. was less than State did Littlejohn promptly that Mr. strates diligence in its re lenge petitioner’s] [the sought to file his collateral claim before court. But it has litigate sponse it. district prepared and was OCCA Nonetheless, effectively argument by abandoned the precluded he was from even 420, Taylor, declined to consider the non-record 22. v. 529 U.S. 443- OCCA See Williams 1479, 44, (2000) 780, evidence); Ryan, 120 S.Ct. 146 L.Ed.2d 435 v. 679 F.3d 804 James ("As postconviction longer Cir.2012) state relief was no (9th (concluding that there was no light, available at the time the facts came to 2254(e)(2) § diligence under where lack of petitioner have been futile for to return would petition- the state court failed to address circumstances, these court[]. In [state] petitioner claim on the merits and the er’s though op an the state courts did not have hearing requested evidentiary in state an claims, petition portunity to consider the new Liebman, court); Randy 1 Hertz & James S. develop er cannot be said to have failed to Corpus Practice and Procedure Federal Habeas having by ne them in state court reason of (6th ed.2011) 20.2[b], (sug- § at 1030 & n.22 pursue glected remedies available under gesting petitioner "diligently” that a acts un- Wilson, law.”); see also 536 F.3d at [state] 2254(e)(2) "responsible § when a state is der (concluding petitioner acted dil 1079 that the develop[]” the for ... failure facts [the to] igently seeking evidentiary hearing on an by petitioner attempt the face of an supported by an issue non-record redress). seek OCCA, though requesting even it before

859 ” Strickland, appellate strategy.’ (quoting it in its brief.” trial 466 failing to make 2052)). omitted)). 689, 104 (citations Thus, by the U.S. at guided jurisprudence governing the well-settled However, “a strong while we entertain claims of ineffective-assistance resolution presumption that counsel’s conduct falls cases, proceed to determine capital range pro within the wide of reasonable is entitled to an whether assistance,” Matthews, fessional 577 F.3d evidentiary hearing pre-AEDPA under Strickland, (quoting at 1190 466 U.S. at ultimately conclude that standards. We (internal 2052) 689, quotation 104 S.Ct. is. he omitted), apply marks we nevertheless scrutiny reviewing attorney “closer when b. Assistance in Ineffective performance during sentencing phase Sentencing Capital case,” Ward, capital of a v. Cooks 165 F.3d (10th 1283, Cir.1998); 1294 see also Osborn Strickland, petitioner “must Under (10th Shillinger, v. 861 F.2d 626 n. performance show both that his counsel’s Cir.1988) (“[T]he minimized state interest objective standard of reason ‘fell below in finality resentencing when alone is the perform ableness’ and ‘the deficient remedy, combined with the acute interest ” prejudiced Byrd ance the defense.’ death, facing justify of a defendant (10th Workman, 645 F.3d Cir. scrutiny attorney court’s closer per omitted) 2011) (emphasis (quoting Strick formance at sentencing phase.”); cf. 2052). land, 687-88, Hall, Wellons v. may be addressed in prongs These two (per 175 L.Ed.2d 684 cu order, satisfy and failure to either is riam) (“From end, judicial beginning to “dispositive.” Id. at 1168. proceedings purpose conducted for the performance counsel’s under “Review of deciding put whether a defendant shall be prong highly is deferen- Strickland’s first dignity to death must be conducted with Hooks, Danny tial.” 606 F.3d respect.”).

“Every effort must be made to evaluate in accor perspective perform the conduct from counsel’s Counsel must Challoner, “prevailing professional dance with the time.” United States v. (10th Cir.2009) (Julius (quoting Young Dev- norms.” v. Sirmons Penitentiary, Young), Cir. er v. Kan. State (10th Cir.1994)) (internal 2008) (quoting Wiggins, 539 U.S. at quota- 2527). omitted). cases, Furthermore, capital we refer tion marks “coun- 123 S.Ct. Appoint ABA strongly presumed to have rendered Guidelines for sel signifi- all ment and Performance of Counsel adequate assistance and made Guidelines”) (“ABA Penalty cant in the exercise of reasonable Death Cases decisions norms.” judgment.” Byrd, assessing “professional 645 F.3d at those professional omitted) (alteration Dever, Generally, “[a]mong topics Id. at 957. 1537) (internal investigate counsel should and quotation 36 F.3d at marks defense Fairchild, omitted); presenting consider include medical histo accord 579 F.3d (‘We history, employment and approach ry, 1140 these issues with ‘a educational history, history, family and social training that counsel’s conduct strong presumption expe prior juvenile and correctional range falls within the wide of reasonable adult riences, influ assistance,’ religious and cultural and that ‘the chal- and professional added). (emphasis might be considered sound ences.” Id. lenged action 860 Wilson, “thorough (emphasis a 536 F.3d at must conduct

Counsel added) (internal omitted) quotation marks mental particular, of investigation—in (citations omitted); at 1085 (noting see id. for preparation health evidence—in emphasized own has Circuit “[o]ur phase of trial.” Wil sentencing capital a [due-diligence] principle”). guiding this son, recently F.3d at had 536 1083. “We Moreover, Hooks, we under- Victor expound principle, occasion to on this importance specific type of a scored of drawing trilogy Supreme on a of Court is, mental-health evidence evidence—that 362, v. Taylor, cases—Williams 529 U.S. organic inju- to brain relating physical or (2000), 120 S.Ct. L.Ed.2d ry: Smith, Wiggins damage of organic Evidence brain is (2003), Rompil 156 L.Ed.2d 471 and courts, something that we and other in- Beard, la v. Court, cluding found (2005)—involving L.Ed.2d 360 ineffec powerful a mitigating to have effect.... pro tive assistance capital-sentencing good And for involuntary reason—the Hooks, ceedings.” Victor F.3d at 1201 structures, physical of brain alteration Wilson, (referring to the discussion behavior, its with attendant effects 1084-85). “three F.3d at set forth We culpability, tends to diminish moral al- important principles” that are derived tering relationship the causal between cases: from these and impulse action. First, question coun- is not whether (cita- Hooks, at 1205 See Victor something; sel did counsel must conduct omitted). tions Because of its central sig- investigation full pursue a reason- nificance, where the defendant’s circum- leads when evident. they able become put play, ordinarily it it stances would Second, to determine what is reasonable “patently for [counsel] unreasonable to investigation, first to courts must look mitiga- omit this evidence case for from his Mullin, guidelines, the ABA as ref- tion.”23 Smith v. which serve (10th Cir.2004); (noting see id. “evi- points acceptable erence for what is [petitioner’s] retardation, dence mental preparation mitigation phase damage, background brain troubled capital Finally, case. because and, mitigating constituted evidence” in- mitigating crucial role that evidence of a deed, “exactly is sort of evidence poor upbringing prob- or mental health jurors”). most garners sympathy sentencing phase, lems can have counsel pursue defense must this avenue If performance counsel’s sen deficient, investigation diligence. with due tencing we must then assess and, Contrary suggestion, theory Dissent's we do date bolster ordinarily, or such a layer responsibility,” present jury, not "add another Dis- such if it is powerful mitigative sent at on to counsel with re- Given the defense found. effect evidence, investigation spect presentation competent reasonably of such coun- Instead, organic damage. mitigation evidence of brain not have sel would settled for some clearly recog- cases like as our Victor Hooks case based on evidence such mental-health nize, here, credible, reasonably there are presented regarding largely where dis- behavioral abnormalities, capital organic-brain-damage cernable clues that a defendant's cir- if available; support mitigation theory option only cumstances will behav- organic damage, ioral-abnormality based on it is at the brain evidence different kind concerning organic of a defense re- core counsel’s constitutional from evidence brain dam- but, sponsibilities critically, age, investi- conduct reasonable in most instances also gation mitigative significantly into existence of evidence to vali- will be of lesser value. ten,” R., 1, prejudiced opment age as a “stifled around petitioner whether the Vol. II, Strickland, 261, that, pt. at and 466 U.S. at while he under- result. See stood the Prejudice right “a rea- difference between 2052. means S.Ct. that, it, wrong, “sensitivity” he lacked probability but for counsel’s State sonable R., VI, errors, Resentencing Vol. Tr. at Fur- the result of the unprofessional ther, evidence was detailing have been different.” offered vari- proceeding would aspects Littlejohn’s ous of Mr. arising out of “troubled” prejudice Id. “To assess childhood, capital-sentencing including testimony indicating a counsel’s errors at that he ‘reweigh difficulty making “had friends and proceeding, we must knowing boundaries,” R., against totality appropriate of avail- aggravation Vol. ” Hooks, pt. and that he a mitigating rough able evidence.’ Victor had life, home id. at 260-61. (quoting Young, F.3d at 1202 Julius 960). “If there is a reasonable Furthermore, testimony heard juror that at least one would probability suggesting that Mr. mother balance, ... preju- have struck a different during used narcotics the duration of her (citations omitted) dice is shown.” Id. pregnancy with him. at 260. In See id. Wiggins, 539 U.S. at deed, mother, Mason, Ceily his opined that 2527) (internal omit- quotation marks he “had to be ... ruined from the womb ted). took much ... dope [because she] so till delivered, “[bjecause Furthermore, didn’t [she] [she] even know [the instant] day.” delivered till the next [she] ... State claim was not decided on the merits (Test. R., VI, OCCA, Resentencing Vol. Tr. at 45 procedur- not and because is Mason). Ceily Dr. barred, Draper talked about ally habeas federal review the Anderson, the effect of a mother’s substance abuse on claim is de novo.” omitted) a fetus. (noting See id. at 89-92 (citing 1142 (emphasis Torres v. (10th Cir.2006)). substance abuse “is considered to be a Lytle, 461 F.3d very significant Thus, develop intrusion on the provisions AEDPA’s deferential do fetus”). ment of the apply. See id. noted, however, in As connection with i. Performance post-conviction proceedings, Martin, Reviewing per the matter of counsel’s secured the services of Dr. Saint that, novo, psychiatrist, thorough formance de we conclude who conducted a ex if averments, him. facts validate amination of Dr. Saint Martin is rep perform psychological then we find that his counsel’s “licensed to would constitutionally neuropsychological resentation was deficient. evaluations” in several (Deck I, R., sentencing, pt. At it is true that Mr. Little states. Vol. at 170 2005). Martin, john’s presented mitigation Sept. counsel case. Dr. Saint dated testimony presented That case involved the of Wanda In a declaration Mr. Little Draper, Draper john’s proceeding, Ph.D. Dr. held “a PhD in federal habeas Dr. Saint development,” suggested “a masters of science Martin that “Mr. mani development,” post

child and had done a behavioral disorder suffer[s from] control, psychologi in genetic epistomology. by poor impulse doctoral work fested VI, Resentencing immaturity judgment Tr. at 78 cal State (Test, by neuro-developmental deficits ex Draper). presented of Wanda She caused socio-psychological report perienced peri-natal development,” on Mr. Little- drug Id. john, concluding essentially specifically that his devel- his mother’s abuse. (“[T]he Vol. from birth.” State added); [originating] see id. (emphasis at 171 (Test. of Dr. Tr. at 13 neurological Competency with is consistent evaluation Robbins). Little noted: to Mr. B. He by insults Glenn deficits caused through his moth john’s developing brain cognitive talking probably minor We’re through and drug pre-nataly abuse er’s in his it demonstrated problems he Specifically, neglect post-nataly.”). academics, have—could and that could existing] in the identified “deficits con- poor impulse interpreted neuro-chemical and microscopic structure we problems----And attention or] trol “merely that did not of the brain” function injured patients a lot in head see this con sociological psychological or [involve] And once normal individuals. who are noted, such Id. at 172. As siderations.” cortex, they the brain become you injure impor vital evidence is “of mental-health aggressive. punish at jury’s decision tance to the added). Moreover, Dr. (emphasis Id. Smith, F.3d at 942 phase.” ment testimony inferentially suggested Draper’s 10.4, 1.1, 4.1, §§ ABA (quoting Guidelines damage could be inflicted on physical 10.11) (internal 10.7, quotation marks abuse, drug to a mother’s see a fetus due omitted). 89-91, id., VI, at Resentencing Tr. Mason, mother, great Littlejohn’s afforded a Ms. counsel is and Mr. While during pregnancy, a de presenting drug deference confirmed her use amount of Hooks, fense, at Danny 606 F.3d at 45. see see id. compelling miti investigate the failure to “[Reasonably diligent counsel draw theory can ineffective as gation constitute to think they good reason a line when Anderson, sistance, at 1145. be a waste.” investigation would further investigation focus on whether “[W]e at 125 S.Ct. 2456. Rompilla, 545 U.S. not to intro supporting counsel’s decision However, obliged up to follow on counsel is ... was mitigating duce evidence itself readily identifiable leads that are Wiggins, 539 U.S. at

reasonable.” Wilson, evidence. See And, making this deter 2527. S.Ct. investigation unreasonable (finding an mination, rely “hindsight.” cannot we where, “information despite the fact that Rompilla, easily [relating mitigation case] Instead, examine the reasonableness reach,” availed counsel’s he never within at the time investi perspective “counsel’s information); see also himself of gative are made.” Id. decisions (“The Anderson, 476 F.3d at 1145 Su- 2052) Strickland, 689, 104 466 U.S. at rejected the preme squarely Court has omitted). (internal quotation marks that, ‘some infor- notion when counsel has back- case, respect petitioner’s mation with presented In while counsel this necessarily has fulfilled ground,’ to Mr. counsel mitigation evidence—relating some duty investigate his constitutional psychologi- socioeconomic mitigation.” (quoting present in- a case development—there cal were numerous 2527)). neurological Wiggins, 539 U.S. suggesting that a dicators case, readily there was available evidence evaluation could have uncovered instance, a rea- that should have alerted For organic damage. brain to the realistic defense counsel competency retroactive sonable suffered court, possibility Bar- in state Dr. Glenn proceedings damage. Although we organic brain ry testified that he believed Robbins con- to make definitive “neurological injury attempt do not Littlejohn had juncture on the evidence, elusion matter this and go could far in offering a scienti- record, fically on this there a very supported is real likeli- and physical link to Mr. Littlejohn’s hood that the crime and “developmental decision of Mr. Littlejohn’s his- tory.” Aplt. Opening Br. at counsel to see solely focus on Porter mitigating evi- McCollum, v. relating dence to the socioeconomic condi- curiam) L.Ed.2d 398 (per Littlejohn’s tions Mr. upbringing and to (holding that ... “[c]ounsel[’s] failure] to psychological makeup—without even uncover present and any evidence of [the investigating whether there was some petitioner’s] mental health or mental im- physical, brain-related condition that pairment,” among evidence, other “did not would account Littlejohn’s for Mr. behav- reflect professional reasonable judgment”); ior—amounted to constitutionally deficient Hall, also Ferrell v. performance. (11th Cir.2011); Wilson, 536 F.3d at The State disagrees, suggesting Dr. 1092-93; Wackerly Workman, cf. Saint theory spurious. Martin’s is Pre Cir.2009) (rejecting sumably, view, in the State’s it logically the petitioner’s claim that counsel was in- follows that reasonable counsel should not effective for failing to introduce evidence obliged have been to investigate and devel of organic an brain disorder because he op evidence theory. related to the Specifi proffered “no evidence” that life event cally, the State that Dr. in any behavior, [he] of of his bad tiary. that the balance Because concluded have

would sen 24-month circumstances of all his mitigating almost and served aggravating 1992], Mul Knighton v. released being death.” warrant .... [After tence did not Cir.2002) 1165, 1178 Be He and lin, selling dope. started [he] Strickland, (quoting ... on original) (ellipsis the Root-N-Scoot thany robbed 2052) (internal 695, 104 S.Ct. at 466 U.S. 20,1992. June omitted). the making In marks quotation (footnote omit- 263-64 R., at pt. Vol. determination, must consider we latter omitted). However, Dr. (citation ted) case and strength State’s of “the at suggests declaration Martin’s Saint aggravating factors of number it. his- His explanation a partial least mitigating exist, as as well found “im- problem with a evinces tory possibly and offer did the defense evidence of lack compulsive a control” pulse have it could evidence mitigating additional youth. during his “judgment” primarily a reasonable there is Id. “If offered.” id., I, at pt. juror one would at least that probability balance, preju a struck different have deficits mental organic Evidence Hooks, at 689 F.3d Victor is shown.” dice types powerful the most among ranks omitted) Wiggins, (citations (quoting See, e.g., available. mitigation evidence 2527) (internal 537, 123 S.Ct. Wilson, “Counsel at 1083-85. 536 F.3d omitted). The marks quotation jury why explain capital cases must may be prejudice has confirmed Court did— acted as he may have a defendant what presented “counsel even where found between, the one the dots connect must rea superficially as a be described could life problems, hand, mental a defendant’s during pen theory mitigation sonable and, history circumstances, personal — U.S. Upton, Sears alty phase.” crime of the other, commission on the 177 L.Ed.2d -, Hooks, Victor question.” curiam). (2010)(per added); (collecting id. (emphasis disagree review, must novo On de cases). court’s resolution the district with brain organic an disorder Evidence undisputed It is question. prejudice engendering a factor substantial history of crimi- long a Littlejohn has probably deviance Littlejohn’s life of acts. violent conduct, including serious nal favorable significant have would been evi- summarized court district deci- jury’s in the for Mr. input dence: And, par- under the sionmaking calculus. his criminal relayed himself Petitioner case, there of this circumstances ticular hot he learned to [noting that] history, such probability a reasonable and stole age at the cars wire juror sup- one at least would led being institutional- cars before countless Yet, here than death. less a sentence port Released facility. juvenile in a ized explanation virtually no jury received robbery committed Petitioner age alleged mental how Mr. an with later. Armed two weeks just And murder. into the played problems victim several Uzi, at his Petitioner shot prosecution explanation, this without head in the hitting him times before mitigation defense able frame money. Pe- was taking his with Uzi circum- social automobile, a mere collection burglarized also titioner stances of Mr. upbringing— the can brain and be treated with appro- that, unfortunate, circumstances while do priate medication, likely are to [be] re- not excuse regard, murder. garded by jury as more mitigating than ” prosecutor stated, “It is unfortunate that generalized personality (al- disorders.... are in [rough] children raised environ- original) Wilson, terations in ment[s], but it doesn’t make them killers. 1094) (internal F.3d at quotation marks people Choices make killers.” State omitted)); Simons, Gilson v. cf. VII, Tr., Resentencing at 346. (10th Cir.2008) (holding that evidence organic brain disorder—seem- potential

The prejudice flowing from this ingly with no possible evidence as to treat- heightened omission was in these circum- ment—would not have altered the jury’s by stances the fact that a considerable prejudice analysis because the “presenta- portion of the aggravation State’s case in tion of th[e] evidence likely would have continuing-threat related aggrava- weighed against petitioner] by [the erasing tor. Evidence Mr. Littlejohn pos- that any lingering doubts that have existed physical, neurological sessed deficits of the as to his murder, role underlying] [the type suggested by Dr. Saint Martin’s dec- by confirming the jury’s conclusion laration averments would have a offered that represented he threat, continuing blameworthy explanation less of Mr. Litt- life”). even if in prison confined for lejohn’s extensive criminal history. Fur- thermore, such evidence could have jury that Littlejohn Mr. sentenced strongly against militated a conclusion death, however, was not any offered that, even given that criminal history, Mr. thing of the sort through the testimony of Littlejohn actually a continuing threat. Indeed, Dr. Draper. suggested she that Specifically, that, Dr. opined Saint Martin Mr. Littlejohn did “[not] have kind of while the “deficits ... are irreparable, illness,” R., mental State VI, Vol. Resen they are I, treatable.” pt. tencing Tr. at and that his develop (emphasis added); see id. at 173 mental problems necessarily could not (“[D]rug therapy is available to control the medication, cured by see id. at 103. Dr. behavior and diminish the impulsivity, Draper testify did regarding “very sig which creates most of Littlejohn’s] [Mr. intrusion,” nificant id. at on fetal devel problems in interacting society.”). with opment could that have been caused

This kind of evidence could drug have been abuse of Mr. Littlejohn’s mother. powerful effect, mitigating used testimony indicat- This suggested possibility ing that Mr. Littlejohn’s past criminal Littlejohn is that Mr. physical brain suffered product of a physical condition is damage—a that possibility that we have noted treatable, such past that his criminal supra is not reasonably that competent counsel predictor an accurate of his future.24 That would investigated. have And her testimo is, it could have ny indicated to a jury slight bears superficial resemblance to Mr. was not a continuing threat. some of Dr. Saint Martin’s declaration Hooks, Victor (“Diag- regarding implications averments specific ..., noses of mental illnesses abuse substance which are associated with However, abnormalities of his mother. it is critical to note 24. The Dissent's assertion that "Dr. physiological Saint offered a explanation for Mr. testimony Martin's double-edged was a classic deviant conduct and some assur- sword,” that, widely treatments, Dissent at through off ance medical his Instead, criminal, mark. testimony such past have would violent prologue. not be would “always “violent” he was argue that any opinion offer not did Draper Dr. VII, Resentencing Id., Vol. been.” [has] in fact whether regarding (“Does the see, e.g., id. at and, in- Tr. injuries brain pre-natal suffered drug to a addicted born that he was fact equipped deed, have been not would she his accounta- way reduce in some mother psychia- Draper Dr. do so. 1992[?]”). actions his bility for any other Martin—or Dr. Saint

trist—like There- matter. for that physician, type course, previ- true, It is any reli- not offer fore, could she some prejudice lack ously found a the ques- evidence persuasive able addi- present failed to counsel cases where Littlejohn suffered whether tion of capital in a mental-health tional could injury brain organic DeRosa, See, e.g., proceeding. sentencing behavior.25 adversely affect peti- (holding that the at 1219-21 any poten- had not established tioner indicating that any evidence Absent performance deficiency in counsel’s tial due was conduct past criminal alia, because, the inter him treatable, prejudiced the that were causes physical to painted adequately presented the evidence askance at free to look was prosecution him); Knighton, of picture detailed mitigating psychological and socioeconomic eoun- (finding defense that at 1177-80 and F.3d presented Mr. that it would suggestion that worrisome sent's Dissent’s central flaw Perhaps the perform- constitutionally adequate been and have performance analysis Strickland's of both rely on to Littlejohn's counsel Mr. recog ance to in its failure prongs lies prejudice sense,” regard- id. at jury's "common equipped the simply was not Draper Dr. that nize of pre-natal effects maternal ing the harmful training experience to offer or by professional abuse, Draper was Dr. because substance in Dr. Saint kind reflected testimony of the Little- dots to Mr. the to connect available performance, As for declaration. Martin’s However, as it relates view, john's circumstances. at Dissent contrary the Dissent's to damage physiological particulars of reasonably con to have not counsel could Mr. produced in abuse testimony such substance that Saint Martin's that Dr. cluded negative likely behavioral its and Draper’s. Dr. of Dr. be cumulative would compe- effects, actually not Draper was Dr. expert offered testimo Draper have could not Indeed, Dissent concedes speak. tent to Littlejohn's deviant regarding ny whether explain "in Draper was unable Dr. that physiological deficits was behavior rooted physical mechanism is, "the damage). terms” (that scientific organic brain brain injury” on prenatal inflicted words, have that Draper not have could Dr. other In added). (emphasis Littlejohn. Id. well-recog subject that is regarding a testified hand, Martin, certainly effect, on other Dr. Saint mitigative powerful to have nized For this task. qualified to undertake was Martin's makes Dr. declaration Saint whereas reasons, prejudice, question of on qualified to similar professionally patent that he was suggestion accept the Dissent's astig cannot we Highlighting its subject. speak testimony "unlikely” kind that the matism, it is performance that its bolsters the Dissent seemingly prepared Martin is Dr. Saint sugges no noting that is argument by there difference,” have made offer “would Litt misdiagnosed [Mr. Draper "Dr. tion suggestion predicated is at 877. That id. her evaluation.” lejohn] erred in or otherwise “Dr. oft-expressed view that Dissent's point: if hardly the even is at 871. But that Id. created, testimony would Martin's Littlejohn had Saint diagnosis of Draper's Dr. best, in the amount marginal increase particulars, she lacked spol-on all been available,” and id. information training experience to offer and professional in a resulted evaluation Saint Martin's physical "Dr. causes diagnosis of kind identical, similar, diagnosis as virtually if not we have effects found possible behavioral bluntly, the Put Draper's,” id. at 872. testimony. Dr. present Dr. Saint Martin's does wrong the record simply Draper’s Dissent of Dr. limitations substantive view. support its Dis- testimony underscored are further mitigation theory extensive, sel’s and risk of death to more person”— than one though even no organic evidence of the factual included, brain basis of which inter alia, damage presented, there an instance “[was] no[] where the defendant that, ... broke into an probability reasonable family’s had innocent de- home and held the residents presented hostage fense counsel ... for an extended [such evi- period time); Humphreys, 261 jury F.3d at imposed dence] would have a sen- 1019 (noting that the found three death”); ag- tence than less Humphreys, 261 factors). gravating And, as already, noted F.3d at (finding prejudice no where the continuing-threat aggravator-—which put counsel on a mitigation reasonable de- was the focus of much of the State’s case— fense, and additional evidence that “he could have been diminished significantly suffered brain damage” would not have by evidence of a organic treatable brain death). altered the verdict of Thus, disorder. these cases do not stand However, DeRosa, Knighton and Hum way of a conclusion that Mr. Little- phreys, First, are distinguishable. lat john prejudice. has suffered ter two cases were issued before the Su preme Court’s in Rompilla decisions 3. Conclusion emphasized Sears—cases that the need for sum, under a standard,26 de novo courts to consider the prejudicial effect of conclude alleged has counsel’s failure to investigate a viable mit mitigation theory and supporting facts igation theory even in the of an other face which, true, would him entitle to relief if wise mitigation See, reasonable defense. Strickland-viz., under would justify us in Sears, e.g., 130 S.Ct. at Moreover, 3266. concluding that his counsel was constitu cases, in all three the aggravating evi tionally deficient in failing to investigate dence more serious than in Mr. Little- put on mitigating evidence concerning john’s case, where only two aggravating Mr. physical claimed brain in See, factors were e.g., DeRosa, found. that, jury failure, but for that there is F.3d at 1219-21 (detailing the extensively probability reasonable that jury the brutal nature of the underlying murder would have selected a penalty less than which served as a “heinous, for a basis death. Consequently, juncture, at this we atrocious, or cruel aggravator”); Knigh are constrained to conclude that the dis ton, 293 F.3d at 1178 (noting that jury the trict court erred in finding—as a matter of found aggravating three circumstances— law—that there was no proba reasonable (1) (2) prior felony convictions, “continuing bility that at juror least one could (3) threat,” and the creation of a “great against death, decided in light of counsel’s pause 26. We unique to proce- to, underscore the damage”—"was contrary not nor an un- posture dural of this case. We are not of, application clearly reasonable established obliged adjudica- here to defer to a state-court Supreme However, precedent”). Court those tion of the ineffective-assistance claim. It is standards of review play not in are be- here possible—and certainly perhaps likely—that we cause have no merits decision we would have reached a different conclu- Furthermore, OCCA. the absence of such a sion, reviewing if under the deferential stan- opens decision merits also the door in this dards of AEDPA a decision OCCA re- possible case for a evidentiary hearing federal jecting on merits Mr. claim of develop to Littlejohn's factual basis of Mr. See, e.g., ineffective assistance. Humphreys, claim—a door that firmly Court (holding 1018-21 that the state shut in Cullen where the state court has ruled court's decision that counsel was not ineffec- on the merits of the federal claim. Cul- See failing tive put to forth additional evidence len, 1398; S.Ct. at supra see also 21. note in mitigation—including evidence of “brain context, habeas the federal “In possi- present investigate failure that errors harmless otherwise only dam- organic brain based ble defense constitution are federal aggregated be case can that should this conclude age. We suffice will errors, conduct errors court to and such al district remanded doc (and error appro- cumulative other hearing relief under evidentiary permit Little- errors concerning Mr. constitutional ‘only when priate proceedings) trine fatally claim. so court trial ineffective-assistance in the state john’s committed they violated that the trial infected ” Matthews, Error H. Cumulative fairness.’ trial’s fundamental n. Julius at 1195 577 F.3d cumula argues 972). Young, case warrants this effect error tive the district OCCA and argues however, OCCA, sum relief. habeas the errors finding erred court Littlejohn’s cumulative rejected marily He cumulatively harmless. case were this “did the errors claim, finding that error the error magnitude of that the contends resen Littlejohn of a fair deprive [Mr.] by the fact underscored 85 P.3d tencing trial.” less considering sentence Sirmons, clearly was see Short Cir.2006). case. The district in this than death it Specifically, essentially agreed. court remand of our decision In light errors—only three most, five found, at definitively re- however, cannot case, analysis because relevant its were which error Littlejohn’s cumulative solve Mr. Littlejohn’s resentenc- they related to arguments claim, the related or II, at pt. ing proceeding.27 because, This is so raised thereunder.28 considered errors The three nec- and other evidentiary hearing after an intro improper prosecution’s were: remand, dis- upon essary proceedings Mr. of prejudicial of duction appropriate may deem court trict resentencing with at the testimony Meers’ constitutionally defi- allegedly include (2) notice; adequate providing out Littlejohn’s coun- Mr. of performance cient transcript of presentation prosecution’s See calculus. cumulative-error in the sel and Ms. Ware two witnesses—Ms. of the Short, 1224-25; Cargle, una showing of their Harris—without F.3d 1197-98; Spears, 343 cf. Littlejohn’s vailability, of violation impact (considering the cumulative rights; confrontation Amendment Sixth claims). of ineffective-assistance prejudice (3) improper introduction the State’s course Thus, that the best believe we testi Littlejohn’s own transcripts court to the district permit action is AEDPA Applying trial. mony at the 1994 after claim the cumulative-error revisit deference, the court determined hearing on Mr. evidentiary conducting an to, contrary neither was decision OCCA’s claim. ineffective-assistance of, any application an unreasonable nor Part II.G.3. law. federal clearly established reason, address we need not 28. For Littlejohn's sentence “death 27. Because applied argument that the OCCA resentencing proceeding a determined was it noted that wrong when standard court jury,” the district a different before aggregate” and in the were “harmless errors stage carryover concern.” "no first found Littlejohn of a fair resentenc deprive “did II, 1, pt. at 255. at 303. 85 P.3d ing.” sure, To challenges State the But more fundamentally, I disagree with ability threshold of this court to even con- the majority’s conclusion counsel’s sider this issue. argues It that such a failure to develop additional neurological claim cognizable is not under habeas re- evidence'—evenwhen a constitutionally ad- view because clearly there is no equate estab- mental health mitigation defense lished federal law on cumulative error. was presented at trial—requires habeas (and However, not) we need not do defini- relief. I therefore respectfully dissent. tively resolve this question here.29 In our

view, prudent it is the path to permit the To show ineffective assistance of coun- district court to consider fully this claim sel, Littlejohn “has the twofold burden of (and it) arguments related to on remand (1) establishing that defense per- counsel’s after conducting an evidentiary hearing. formance deficient, i.e., was ‘rep- counsel’s resentation fell below an objective stan- III. Conclusion dard of reasonableness’ as measured In light of the foregoing, we AFFIRM ‘prevailing professional (2) norms,’ and de- the district judgment court’s on all fendant prejudiced i.e., thereby, ‘there grounds except for Mr. Littlejohn’s inef- is a probability that, reasonable but for Five) fective-assistance claim (Proposition counsel’s unprofessional errors, the result and his cumulative-error claim (Proposi- of the proceeding would have been differ- Seven). tion As to the ineffective-assis- ” ent.’ Rushin, United States v. claim, tance judgment REVERSE the Cir.2011) (quoting Strick- and REMAND case to the district land v. Washington, court, with directions to conduct an eviden- (1984)). 80 L.Ed.2d 674 tiary hearing and any further appropriate performance Counsel’s in this case proceedings consistent with opinion. this neither prejudicial. deficient nor regard, as to the cumulative-error claim, we direct the district court to VA- part As mitigation trial, Little- CATE that portion of its judgment upon john’s counsel undertook the following remand and (1) reconsider and rule on that tasks: conducted an adequate investi- claim, light of its resolution Mr. gation Litt- of mitigating factors, presented lejohn’s ineffective-assistance claim. Littlejohn’s mental defects through expert lay witnesses, and and TYMKOVICH, Circuit Judge, explained may what have caused those concurring and dissenting part. mental defects and they how contributed agree I with the majority on all issues to the commission of murder. Littlejohn except its Littlejohn’s conclusion counsel and the majority would add layer another may have failed to meet Strickland re- of responsibility—counsel has a constitu- quirements for ineffective assistance of obligation tional to articulate from a neuro- my view, counsel. In perform- counsel’s logical/psychiatric perspective additional ance was neither deficient nor prejudicial. potential physical damage. brain have divergence We noted a analysis cir- clearly between tive-error 29. established feder- Hooks, law, cuits on this issue. See Victor long 689 al we have conducted cumulative- alia, F.3d 1194 (comparing, at n. 24 inter analyses error in our review of federal habeas Anderson, 789, (6th Id.; see, Williams v. Banks, 460 F.3d 816 e.g., claims.” 692 at Cir.2006), Runnels, 1150-51; Davis, with Parle v. 695 F.3d at Thackerv. 922, (9th Cir.2007)). Workman, 928 “[a]lthough 820, But Cir.2012); 849 Matthews, expressly never held ... that cumula- 577 F.3d at n. 10. I. require- such no imposes Strickland Court applicable ment. While not defi- was performance Counsel’s capi- requires precedent Circuit and Tenth cient evidence present counsel tal defense Litt- flaws in two majority identifies The health mental defendant’s to a relating First, performance. lejohn’s counsel’s to en- relevant, far as go so none where adequate an not conduct did finds counsel now approach neuro-psychiatric shrine health mental investigation as opinion majority by the advocated alarming- Second, more and pathologies. such which through lens only acceptable addi- develop failure to concludes the ly, it view, my presented. evidence to “or- linked health tional mental adequate an conducted counsel inherently both was damage” brain ganic elected and investigation health mental prejudicial. and deficient tes- expert through results present points. disagree I on both psychologist. developmental timony of the bounds well within This choice sen penalty in a death counsel Defense defense gives the law discretion tactical a rea conduct required to trial is tencing how determining whether evi mitigating counsel investigation sonable McCollum, mitigation evidence. present v. Porter dence. (2009). 175 L.Ed.2d argu the sake assuming for even But investiga a reasonable What constitutes defi performance counsel’s

ment professional by “prevailing judged tion is by the prejudiced not cient, Littlejohn was Beard, 545 U.S. Rompilla norms.” by submitted affidavit error. L.Ed.2d 380, 125 S.Ct. Saint Dr. psychiatrist, post-conviction investi (2005). “In defense’s judging pur Littlejohn for Martin, who evaluated generally, Strickland applying gation, as only the offers petition, of his habeas poses adequa by pegging hindsight is discounted Littlejohn ex observation mundane time’ at the perspective ‘counsel’s cy to a behav with” “consistent symptoms hibits made, by are decisions investigative neuro-develop “caused disorder ioral of deference measure ‘heavy giving peri in his experienced deficits mental 381, 125 judgments.’” Id. counsel’s I, pt. development.” natal omitted) (citations underscores Martin Dr. Saint Strickland, awith of his observations ambiguity in 2052). for such expectations Basic ‘wir of these specifics “the disclaimer edu reviewing prison, include vestigation understood.” yet well are ing’ problems records, as well cational, and medical another suggestive 171. While family Id. at interview to contact attempting evidence, his Hook, health to mental id.; Bobby v. Van approach members. See under fundamentally L.Ed.2d not 175 do observations 130 558 S.Ct. More a actually signs taken. (2009). are approach there cut Where believed, would a mental de from testimony, may if over, suffer such defendant general double-edged fect, sword—while health evaluation a a mental constitute Sirmons, culpability Anderson required. moral ly might reduce Cir.2007). (10th But it 1131, 1143 strengthen a jury, it could eyes of in the a guess a reasonable second job our dangerous is not future about concerns jury’s pas where strategy, even Littlejohn mitigation suggest ness, it would since ex- of new retention time or the sage of his behavior. not control could perts suggest better ways to package -, a U.S.

mental health defense.1 (2010) (“[T]he L.Ed.2d 1025 cursory nature of counsel’s investigation into mitigation

Applying teachings of the Supreme evidence—limited day less, to one or talk- Court, I find counsel’s investigation was ing to witnesses selected by [Sears’s] adequate. all, First of counsel hired Dr. mother—was on its face ... constitutional- Wanda a Draper, professor former at the ly (alteration inadequate.” in original) University of Oklahoma School of Medi- (quotation omitted)); Porter, marks cine. Dr. Draper, a psychologist with a (2009) (“Counsel S.Ct. at 453 doctorate thus failed to in child development, inter- uncover present any evidence of viewed Port- and reviewed his court er’s mental health or mental records, impairment, prison records, records, medical family background, or his military school ser- preparation records for her vice.”); Anderson, 476 testimony. F.3d at met personally She with Litt- (“Anderson lejohn was not by for a evaluated any men- mental-health evaluation and tal health or other expert qualified determined that he was average as- intelli- certain gence whether Anderson mentally was not suffered ill. She did determine, neurological however, or other deficits that would suf- mitigate fered from his moral culpability.” (emphasis behavioral disorder added)). Here, made it difficult for him Dr. fully Draper’s investigation control his behavior in was far comprehensive some more circumstances. She also and thorough. interviewed Littlejohn’s mother, grand- While there be some mental condi mother, and gain sister to a better under- tions for which a psychological evalua standing of the circumstances of Little- opposed tion—as psychiatric to a evalua john’s upbringing. There is no evidence insufficient, tion-—is this is not one of those investigation was rushed or that cases. does not argue that Dr. Draper Dr. precluded from developing Draper misdiagnosed him or otherwise any relevant evidence. erred in her evaluation. To the contrary,

Nevertheless, Littlejohn and the majori- Dr. Saint Martin arrived at a nearly identi ty argue the investigation inadequate cal diagnosis: that Littlejohn suffered because counsel did not specifically order from “a Thus, behavioral disorder.” this is psychiatric or neurological evaluation. not a case a mental where diagno health The cases they rely on argument, sis, for this which should have discovered, been however, do not support the notion that a was overlooked due to an unqualified eval psychological evaluation, such as that con- uator or time constraints. See Dunlap v. ducted Draper, Dr. Clements, is constitutionally 476 Fed.Appx.

insufficient. cases, those Cir.2012) defense (“On coun- (unpublished) occasion, the procured sel no mental health evaluation Court has condemned an attor — See, whatsoever. e.g., v. Upton, Sears ney’s failure to thoroughly investigate sen- 1. As the Supreme Bobby Court said in v. Van (2005). 162 L.Ed.2d 360 It is Hook, here, equally as is true "This is case, itself, instead a like Strickland in which case in which attorneys defendant's failed defense counsel's 'decision not to seek more’ to act potentially powerful while mitigating mitigating evidence from the defendant's face, evidence stared them in the Wiggins, cf. background already 'than was in hand' fell U.S., 539 at 123 S.Ct. or would range 'well within the professionally of rea- have apparent been from " documents rea- judgments.' (some sonable 130 S.Ct. 19 attorney obtained, sonable would have cf. omitted). citations Beard, Rompilla 374, 389-393, v. 545 U.S.

872 fact, conclusion And, in at 19. con- mitigation evidence tencing-phase Dr. us: before by the evidence out But.... borne assistance. stitutionally deficient in a sim- resulted Martin’s evaluation ne- Saint inexcusable involve cases [t]hose identical, diagnosis as ilar, virtually if not Sirmons, 536 F.3d v. Wilson glect.”); cf. Draper’s. Cir.2008) Dr. (10th (finding consti- 1064, 1085 investi- adequate where an

tutional error that end, agree I cannot' In to an evaluator have allowed gation could of evidence develop additional to failure schizophrenia). diagnosis a confirm in this required injury was brain organic ways to are ... countless “There case. course, possible it is Of any given assistance in effective provide an evaluation procured have counsel could at- defense criminal the best case. Even like psychiatrist a Draper Dr. particular defend a would not torneys recognizes, The law Dr. Martin. Saint way. are Rare in the same in- client however, point additional that at some coun- the ‘wide latitude which situations diminishing returns. results vestigation tactical decisions’ making have sel must Strickland, S.Ct. 104 technique or any one be limited to (“Counsel’s well will strategy choice was 2052 at 788- Harrington, 131 S.Ct. approach.” reason- professionally range within the Strickland, omitted) (citation (quoting to not decision judgments, able 2052). There- evi- 466 U.S. psychological or more character seek ‘strong presumption’ fore, “a apply courts like- in hand already dence than to to certain issues reasonable.”). case, that counsel’s attention any given In wise tactics trial reflects exclusion of others hypothetical any number of [are] “there ” Id. at 790 neglect.’ than ‘sheer rather might possibly insight ... whose experts Gentry, 540 U.S. Yarborough v. entitled [is] been useful.... Counsel have (per L.Ed.2d 8, 124 S.Ct. reasonable strategy [is] a to formulate curiam)). “the decision particular, re- limited and to balance at the time quintessentially call is witnesses trial tactics which accord with effective sources in attorney.” for the Richter, strategy trial matter Harrington strategies.” — McKune, 1132, 1139 Boyle v. -, Cir.2008). the rea- inquiry This into (2011); Dunlap, also L.Ed.2d an decisions is of counsel’s disagree sonableness (“Lawyers often at 167 Fed.Appx. one; if evidence additional objective even in the disregarded strategy, a fact on trial argument, claims.”). defense supported a have could of ineffectiveness vast number ineffective supposed to are not find courts reasonably could Here, Littlejohn’s counsel they if “conclude basis on that assistance additional mental concluded not elect attorney might competent to be expected “be could health evaluations at 789 Harrington, 131 it.” S.Ct. from to use cumulative, and ... distractive only added).2 Bobby, (emphasis important duties.” more indulge “post hoc may Although not courts his an affidavit from Littlejohn points us decisionmak- for counsel’s rationalization’’ stating his choice not trial counsel the available ing that contradicts engage psychiatric expert was motivated actions, may they insist neither counsel's strategic considerations. every aspect of the strate- however, confirm Court, look counsel us not to has instructed After or her actions.... basis for gic his subjective motivations counsel's to defense expe- most reasonableness, at trial even the verdict particular- determining adverse when resist find difficult counsel only rienced motiva- ly when counsel articulates might strategy asking a different whether long after the trial: tions evaluation, the course of her Dr. communicated to jury by Littlejohn’s Draper found that Littlejohn did not suffer mother during her testimony. from a severe mental disorder. She also Dr. Saint Martin’s testimony would have found that he average was of intelligence. added little to the evidence already before But, she diagnose did him with a behavior- affidavit, His jury. in summary, estab- disorder, al which she characterized anas major (1) lishes points: three Littlejohn “emotional disturbance” that created a re- has a disorder; behavioral Littlejohn’s duced to capacity control his actions and disorder is “consistent with neurodevelop- empathize with others. Dr. Draper sur- mental experienced deficits peri- his mised that this emotional disturbance was (3) “[sjtudies natal development”; and Littlejohn’s result of early life experi- demonstrate” that such deficits are “corre- ences, including his prenatal mother’s sub- lat[ed]” with observable effects “at the lev- abuse, stance as well as neglect by his el of synapse,” with the caveat that mother, father, grandmother. Coun- “the specifics of ... problems these are sel to decided humanize with yet not well understood.” I understand this the hope of generating this to mean prenatal sub- enough sympathy from negate to stance abuse and upbringing may have government’s case for death. contributed to his anti-social behavior later trial, At Dr. Draper testified that Little- life, and that such abuse also may have

john’s behavioral development nega- had physically some detectable, ill- albeit tively impacted by First, several factors. defined, impact on Littlejohn’s brain cells. she testified that his mother’s substance Dr. Draper’s testimony had already abuse es during pregnancy negatively impact- tablished first two propositions ed his ad development, though she did not by vanced Dr. Martin; explain Saint length physical mechanism from a by which suffered behavioral disorder occurred. caused She then walked exposure his through prenatal stages various up- substance abuse bringing, neglect and the explained he experienced detail how the throughout Thus, severe his neglect he childhood. experienced only resulted in significant an inability to addition trust in Dr. Saint others and control his Martin’s impulses. affidavit On is the cross-examination, point: third she ad- articulation of a mitted ill, pattern certain mentally activity not of brain but corre diagnosed his lated prenatal condition with as “emotional substance dis- But abuse. Tr., VI, turbance.” 2000 as everyone at 133. who has She ever taken a statistics also learns, admitted he was class able “distinguish “correlation and causation are reality between fantasy.” two things.” Id. different While Arredondo v. Lock Dr. Draper’s lear, testimony (10th focused Cir.2006); 462 F.3d more Littlejohn’s upbringing than on expo- also Norris v. Baxter Healthcare prenatal sure to abuse, (10th substance Corp., Cir.2005) she did clearly bring (“A that abuse jury’s causation.”). atten- correlation does equal tion. Those facts were separately also Dr. affidavit, Saint face, Martin’s on its better, and, have been 788-89; course of that Harrington, 131 S.Ct. at see also Al reflection, magnify responsibil- own Mullin, their len v. Cir. ity Strickland, for an unfavorable outcome. 2004) (noting the motive trial counsel " however, inquiry calls for an objec- into the stage at the habeas ‘fall on the

tive perform- reasonableness of counsel’s sentence”). sword’ in order to derail death ance, not counsel’s subjective state of mind. ain resulted neglect, with childhood bined anything with provide, to purport not does essentially That is disorder. behavioral confidence, miss- a scientific approaching Dr. Saint by identified harm the same prena- Littlejohn’s link between ing causal Martin. mental and to alcohol exposure tal Rompilla, to points majority

defects. The Sears, and 374, 125 S.Ct. affidavit Saint Martin’s if Dr. But even re- us to require they arguing link, is there causal a definitive provide did the explain to fails mand when counsel that proposition for the in law support no underlying defen- biological mechanisms neurologi- testimony prenatal on additional they while But mental disorder. dant’s jury to necessary for a development is cal the as general issues the same address prenatal link between causal the grasp investigation health case—mental present It is damage. brain and drug exposure evidence— mitigation of presentation and women that pregnant knowledge common are almost com- particulars the factual smoke, alcohol, to drink supposed not are opposite. pletely may harm doing so drugs use because or to failed counsel First, Rompilla, knowl- in common It is likewise fetus. the evidence, even is mental health present this harm sense—that common edge—or developable. easily mechanism, readily and it was when physical aby accomplished Sears, investigation was counsel’s to And in exposed physically is is, fetus the to failed inadequate—counsel blatantly it. harm mother in the substances testing, and health any mental this, conduct explained fact, Draper And, Dr. abusive into Sears’s inquire to failed then of passage of testifying “because un The at 3264-65. id. upbringing. See there’s placenta, through nutrients itself investigation of reasonableness use of about of concern deal great the reasonableness casts serious doubt in the alcohol, particularly, drugs and at 3265 id. strategy. See trial counsel’s VI, (noting Tr., at 91 mother.” reason respect (“[A]ny with finding does abuse substance and “alcohol theory counsel mitigation 89). ableness fetus,” id. developing impact the trial with tension utilized hos- Littlejohn was also testified She finding that counsel’s unambiguous court’s of his part because at birth pitalized as so unreasonable itself investigation was sci- Further exposures. prenatal mother’s unconstitutional.”). facially to be biological specific explication entific and interesting, may investigation been contrast, have pathways Here, counsel’s an air of authoritative- lent investi- adequate. Counsel even than was more necessary to no ness, by past pro- means troubled but gated sub- ingests that un- idea: mother evaluation explain the health a mental cured fetus, substance disorder. reaches stance, of behavioral substance covered Dr. by subsequent harm evaluation harms fetus. behav- that he was indicate on his future resulting influence Martin does its Saint Thus, unlike Draper’s Dr. Draper. Dr. very point of misdiagnosed ior was the rather Sears, investigation supports testimony. the reasonableness undermines than expert sure, important it is To be strategy. trial counsel’s harm the sub- type articulate se- moreover, suffered And, Sears did here, Draper Dr. But causes. stance “de- He dysfunction. mental as a vere the harm identified exactly that—she learning disabled severely which, com- scribed normally, develop failure severely behaviorally Anderson, handicapped.” (“[Rjather 476 F.3d at 1144 Id. at 3262. addition to “gross[ these ]” than offering jury a potential explana- impairments, Sears exhibited something tion for Anderson’s actions relating to the less than a full grasp on reality—a “gran- murders participated in, he trial counsel’s diose self-conception and evidence of [] case in mitigation was limited to a simple magical thinking.” Id. at 3264. This evi- plea for mercy.”); Mullin, Smith v. 379 dence paints a graphic picture of an indi- (10th Cir.2004) (“[Evidence 942 significantly vidual more impaired than of Mr. Smith’s mental retardation, brain Littlejohn, who has average intelligence damage, and troubled background consti- and does not have a severe mental disabili- tuted mitigating evidence-It pat- was ty, according even to his own experts. ently unreasonable for Mr. Watson to omit

Perhaps most significantly, ju- Sears’s this evidence from his case for mitiga- rors kept were completely in the dark tion.”); Porter, see also 130 S.Ct. at 453 regarding his impairments; mental as far (“Counsel ... failed to uncover and pres- knew, as they was an average Sears indi- ent any evidence of Porter’s mental health vidual, with an upbringing that was “sta- .”).3 or mental impairment... ble, loving, and essentially without inci- majority points to Victor Hooks v. dent.” Id. at Littlejohn’s 3261. jurors, in Workman, Cir.2012), 1148 contrast, were made well-aware of Little- but that case is unpersuasive. also First, john’s disorder, behavioral the effects of Hooks’s mental defects were more severe which were in described detail by Dr. than Littlejohn’s. Hooks was re- Draper. mildly Whereas the new information tarded, whereas about was of likely average Sears would have caused a intelligence. top that, On significant paradigm Hooks’s shift in brain the minds of injury jurors, was most Dr. linked to psychotic Saint chronic Martin’s dis- testimony created, would have order. As best, above, I discussed marginal Littlejohn’s increase in post-conviction the amount of information examination Dr. Saint available. Martin did not result in a clear diagnosis of significant brain but damage, only tenta- Sears,

Like the other cases Littlejohn tive possible conclusions of brain injury. relies on involved defendants with severe Second, Hooks’s preparation counsel’s mental defects that totally were hidden inadequate—the family history and mental jury. See, from the e.g., Up Jefferson - health work-up only ton, perfunctory. -, U.S. Third, Hooks, unlike (2010) (“[A]s expert, 176 L.Ed.2d 1032 far as the Draper, Dr. did jury knew, “connect the dots” from Jefferson did not suffer from impairment brain mental damage neurological or his later impairment; explained he crimes. organic disorders; physical had no She mech- emo tional anism that stability, impulse may have control, prenatal inflicted judg in- (albeit ment perfectly were normal.” not (quotation terms); scientific she omitted)); marks explained Littlejohn’s Taylor, detail; Williams v. upbringing U.S. S.Ct. she explained L.Ed.2d how all these experi- (2000) (“Counsel failed to ences introduce manifested themselves in a behavior- available evidence that Williams was ‘bor al disorder involving poor impulse con- mentally derline retarded’ and did ad trol—the exact conclusion the majority and vance beyond grade school.”); sixth Dr. Saint want Martin us to reach and Wilson, 3. investigation Even was less substantial than the one here. 2052). And the mitigation evi- powerful would be think status hallowed to a elevation majority’s behav- a] “[Littlejohn dence: suffers health evidence of mental types certain impulse by poor disorder ioral manifested by Su- compelled, alone let required, An not I, pt. R. Vol. control.” precedent. Court preme impulse Littlejohn’s “poor that opinion type of men- one by was “caused” control” a thin II. is another than rather disorder

tal perform- hang deficient on which to reed performance assuming counsel’s Even a to point not certainly does It ance. preju- deficient, Littlejohn was not was mitigation “significant discover failure diced Supreme by the required evidence” Littlejohn “must prejudice, establish To Sears, at 3266. Court. that probability a reasonable show the Su- between ready differences The af sentence capital a rejected would have cases and Tenth Circuit and Court preme mitigat body of entire weighed the ter a com- my view “that strengthen one this body of entire against ing evidence to use” not might elect attorney petent Wong Bel evidence.” aggravating Saint by Dr. proffered type of evidence montes, 130 S.Ct. at 789. 131 S.Ct. Harrington, Martin. (2009). theAs L.Ed.2d 328 evidently strategy Littlejohn’s counsel’s explained: recently Court by sympathies jury’s to evoke the a court not whether is question [T]he reason- Littlejohn. Counsel humanizing performance counsel’s be certain can the less concluded ably could have whether or the outcome no effect on had ap- developmental-psychology technical might doubt reasonable possible it is a Draper accom- Dr. best offered proach if counsel acted established have been light of goal. this plished Instead, asks Strickland differently. defects, counsel mental moderate rather re- likely” the “reasonably it is whether on the focusing concluded may have This been different. have sult would Littlejohn’s mental aspects biological coun- showing that a require does not or confuse distract would condition not al- likely than “more sel’s actions believed, may also jury. Counsel outcome,” the difference but tered average light particularly standard prejudice Strickland’s between not be jury would intelligence, standard more-probable-than-not inju- neurological overly convinced rarest “only in the and matters slight is sufficient- they if existed—were ries'—even re- of a different The likelihood case.” judg- impair his significantly ly serious con- substantial, just not sult must been may have Finally, counsel ment. ceivable. present scientific reluctant (citations at 791-92 131 S.Ct. Harrington, Martin’s which, by Saint Dr. specifics Strickland, omitted) (quoting under- admission, yet well “are not own 2052). Littlejohn 696-97, I, pt. stood.” meet burden. cannot have chosen counsel other While above, Littlejohn’s mental explained As Litt say I cannot approach, different jury. hidden were defects outside performance counsel’s lejohn’s Littlejohn’s condi- Draper described Dr. have in must counsel latitude “wide his be- causes, its effects on tion, its Harrington, decisions.” making tactical additional unlikely that Strickland, It havior. at 788-89 information provided by Dr. Saint Martin “decidedly mixed”); Daniel A. Krauss & would any difference, have made particu Sales, Bruce D. Clinical and Effects of larly given the tentative nature his anal Expert Testimony on Juror De- Scientific Indeed, ysis. prejudice no has been found cision Making Capital Sentencing, 7 in cases where the new information that Psychol. Pol’y & L. Pub. would have provided been by additional (finding “less scientific” presentation of ev- testimony See, was significantly greater. idence may be more convincing jurors); e.g., Mullin, Knighton v. Bradley also D. al., McAuliff et Can (10th Cir.2002) (“Defense counsel ... Jurors Recognize Missing Control present did great deal psychiatric Groups, Confounds, Experimenter evidence at sentencing, although the de Bias in Psychological Science?, 33 Law & fense did not do so under the rubric of 247, (2009) (“[JJurors 255 Hum. Behav. may organic brain damage.”); Humphreys v. be unable to evaluate statistical and meth- Gibson, 1016, (10th 1021 Cir. odological issues in a sophisticated man- 2001) (finding psychiatric new testimony of ner.”). Here, jury was faced with a organic brain damage and addiction “es defendant moderate, afflicted with a by but sentially cumulative” prior with testimony no severe, means mental disorder. of depression, severe alcohol abuse and a truth, Dr. Saint disorder). Martin’s approach may personality It Littlejohn’s is have been less burden to effective than prejudice, Draper’s Dr. show and the evi dence he more marshals humanizing approach does not surmount that in evoking the hurdle. jury’s sympathies.4 argument, majority’s essence, is Littlejohn’s prejudice argument fails for that a more presentation technical of or an additional reason: Dr. Saint Martin’s ganic brain injury evidence is inherently testimony a was classic double-edged persuasive more than a more pres holistic sword that jury “[t]he per could have entation of the kind offered by Draper. Dr. ceived ... as aggravating rather than miti I support find no argument this in orn- gating.” Wackerly Workman, v. ease law. Nor I agree do that the kind of 1171, (10th Cir.2009) 1178 (quoting Duvall testimony by offered Dr. Draper inher v. Reynolds, Cir.1998)); 139 768 ently less convincing than variety of accord 476 Dunlap, Fed.Appx. at 166 by fered Dr. jurors Saint Martin. Some (“Evidence of mental illness can arouse may swayed by be testimony that sounds sympathy and culpability—or diminish it more scientific; technical and may others can raise specter irrational, of an in skeptical. confused or It can abe corrigible predator.”). Evidence of mixed brain bag. See Schauer, Frederick Can might defects Littlejohn’s Bad Science Be reduced Good Evidence? Neuros cience, Detection, culpability somewhat, Lie but 95 also could have Beyond, Cor (2010) strengthened jury’s (finding nell finding of future L.Rev. empirical regarding evidence dangerousness, the extent to insofar as it suggested juries which rely on testimony scientific Littlejohn’s beyond behavior was his con 4. Even to the extent some of cases our accen- homa would view one type of evidence tuate the difference between impair- mental persuasive more credible and than other. physical ments generally and damage brain more, Without presume I cannot trial counsel Hooks, particular, see Victor F.3d at more, should have done or that if he did it Wilson, 536 F.3d at nothing pre- was generated would have convincing testimony. sented in this case that would show an Okla- give But to be. one, it would not At treatable.5

trol, partially if even mental type of one quality talismanic U.S. Virginia, kins showing without (“[R]eli evidence (2002) health 2242, 153 L.Ed.2d juries persuasive inherently more it is mitigating aas retardation mental ance the cases stretches other than two-edged sword can be factor beyond what far goes recognition past aggrava likelihood enhance review- requires when Court bewill dangerousness future ting factor of claims. Strickland ing Lynaugh, Penry v. jury.”); by the found 2934, 106 (“[Defendant’s] mental L.Ed.2d 256 performance counsel’s is thus history of abuse retardation was, Littlejohn if it deficient, and even not may diminish it two-edged sword: error. by his counsel’s prejudiced even as crime for his blameworthiness the district Therefore, affirm I would he probability is a there indicates ineffective- denial court’s future.”), abro dangerous bewill claim. assistance Atkins, 536 grounds gated on other 321, 122 S.Ct. here presented no evidence there is And brain dam- organic linked to

that violence violence than more treatable

age is Thus, disorder. to a behavioral

linked claim that on a rely

Littlejohn cannot his behavior account physiological

more ef- aggravating diminished the

would present- evidence health of the mental

fect

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As a final of a cate- its erection analysis is

majority’s injury” brain “organic invocation

gorical purposes in kind for different

evidence as in the Nothing analysis.

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mental cases, neurological in some

While others, such persuasive, more general majority to assume seems Smith, 6. The at 943 n. 5. Unlike treatable, but injuries are organic brain can the defendant one which case is not " (or at least are not disorders behavioral 'edge' of double- "aggravating argue the as- so). make that basis to I have no jury. less already before edged sword vast ma- my guess is that the sumption, and Littlejohn's ina- edge aggravating here are at least disorders health jority of mental primary Littlejohn's bility control himself. cases I do not think part. But testimony treatable Draper’s that Dr. argument is failed juries presumption that categorical support of self-control. jury of his lack convince a "treata- sympathetic to likely to be more Dr. are simultaneously claim that He cannot a "treatable” injury than brain convincing physical ble” testimony succeeded Draper’s disorder. behavioral this fact. notes Saint lasting Martin “resulted brain damage” and other admittedly clearly “suggested] relied on evidence that Dr. Ste any injuries [he] suffered had phen impact Carella little at Mr. offered on his mental capacity”). 1997 competency proceedings and found that, information, based on that there was sum, there were patent flags” “red no indication that case, has pointing possible to a physiologi- “gross damage to cal explanation his frontal lobes.” for Mr. Littlejohn’s violent I, and pt. anti-social However, behavior. Dr. 171-72. Saint Mar- Dr. tin’s declaration suggests Martin that in fact Saint also in his opined declaration Littlejohn suffered physical from brain that the physiological problems with Mr. damage. noted, As we have it is well- Littlejohn’s brain global “are more ... settled that such evidence is of considera- distinct from the types deficits Car Dr. importance ble to a capital sentencing testing designed ella’s to detect.” Id. See, jury. Smith, e.g., 379 F.3d at 942 Littlejohn suffers, 172. Mr. according (noting that this type of evidence is “exact- Martin, to Dr. Saint from a neurological ly the sort of garners evidence that by deficit “caused insults to develop [his] most sympathy jurors”). Thus, ing brain through his drug mother’s abuse critical factor becomes whether Dr. Saint pre-nataly and through neglect post-nata Martin’s declaration averments—if devel- ly.” Id. at 171. These problems occur at oped and probed through the adversary the synapse level cells, between all brain process—would prove worthy of belief. If impair global, physical develop so, then we would be hard-pressed to con- ment of the brain. clude that Mr. counsel was not Thus, the State simply correct, is constitutionally failing deficient in to follow suggesting that “gross” damage up flags. the red frontal lobe necessary for a finding of Prejudice ii. organic damage, according to Dr. Saint theory. Martin’s To the contrary, prejudice inquiry capital theory, supported and validated sentencing requires case a showing that if crimes these he committed that, because ab probability reasonable is a “there adult, peniten he sent errors, sentencer [counsel’s] sent

Case Details

Case Name: Littlejohn v. Trammell

Court Name: Court of Appeals for the Tenth Circuit

Date Published: Jan 7, 2013

Citation: 704 F.3d 817

Docket Number: 10-6148

Court Abbreviation: 10th Cir.