*2 SEYMOUR, and Before BRORBY EBEL, Judges. Circuit PER CURIAM. appeals from a district court

Petitioner denying petition order his 28 U.S.C. § challenging a 1980 Oklahoma conviction of rape conviction of degree first after former (arson feloniously pointing and two felonies tit. weapon). See Okla.Stat. § (Supp.1978). and tit. We § only consider here1 that issue The Court: And I would overrule that previously granted petitioner this court give you and an exception. cause, i.e., probable certificate whether (State transcript 58-59), prosecution’s comments on the closing argument in re- *3 during the course of buttal: petitioner’s trial mandate habeas relief. Thompson:] I submit you, to un- [Mr. 28 U.S.C. 2253. See § evidence, der the law and the that we are The in question comments were made in position a little today different than jury: voir dire we were when we first started this trial Thompson (prosecutor):] [Mr. your duty and it was time, at that under nothing magical There’s about those land, the law of this you being- [i.e., terms “presumption of innocence” jurors, selected as actively your to proof “beyond and a reasonable doubt”]. presume minds that man over there not person being of a inno- to guilty be of rape offense protect per- designed cent was to those but, degree, know, first you things have are, indeed, guilty sons who not of a changed since you that time. I submit to crime. time, at this under the law and under the McCarthy Mr. To [defense counsel]: evidence, that that has been object, which I Your Honor. removed, that that presumption long- no I Court: would overrule that. exists, er that that has been McCarthy: jury Mr. And move that the removed standing evidence and he is be admonished and move for a mistrial. you before guilty. now That presump- The Court: Overruled. tion not there more. Q. But not to let intended those McCarthy: object that, Mr. I Judge. to justice. guilty escape who are The Court: Overruled. Honor, McCarthy: Mr. Your we McCarthy: Mr. jury Ask that the be approach the bench? and admonished move for a mistrial. The Court: Yes. (The The Court: following Overruled. proceedings were had hearing jury:) out of the of the McCarthy: Exception. Mr. Honor, Mr. I McCarthy: Your want to (State 321). transcript trial again my objection Thomp- Mr. renew hold, The district court did not argument. got I I son’s a case that maintained, and the state has not that personally Judge Gra- tried front Instead, these remarks were appealed ham that was to the Court of proper.2 upon district court relied a fundamental Appeals they ar- Criminal and held that analysis to conclude that in gument improper and to be error surrounding espe of the circumstances and by Mr. and when made Lasorsa case you cially strength request would admonish the case, not disregard impropriety it and move for a mis- involved was Thompson’s and, therefore, on Mr. comment. magnitude based liberations, (2) examining only appellate extinguished 1. After briefs and record, panel unanimously has this determined jury’s determination has been es argument materially that oral would not assist gen tablished a reasonable doubt. See appeal. the determination of this See Fed.R. Braxton, erally United States v. 877 F.2d 34(a); App.P. 10th Cir.R. 34.1.9. The case is (7th 1989); Jorge, F.2d Cir. United States v. argu- therefore ordered submitted without oral — denied, U.S. -, (1st Cir.), S.Ct. ment. (1989); United States v. 104 L.Ed.2d 198 Walker, 813-14 n. 14 Cir. We consider im (2d 1988); Scully, 672 F.2d Nelson permissible they because undermined two fun Cir.), cert. 456 U.S. aspects of inno damental (1982); 73 L.Ed.2d 1304 Dodson v. United cence, namely remains States, (4th Cir.1928). throughout every stage with the accused trial, including, importantly, jury’s de most (1990); petitioner’s vacation did not warrant O’Leary, Clark conviction: 1004-05 (7th Cir.1988) (habeas challenge to limits on Improper prosecutorial will cross-examination, grounded upon defense federal habeas relief unless not warrant clause, distinguished [peti- confrontation complained of “made the conduct during a fundamentally “general improprieties unfair as state trial trial so tioner’s] process.” cognizable unless deny him due are not error re- [which] DeChristoforo, proceed- fundamentally sulted unfair L.Ed.2d ing”). transcripts of the trial A review significance Of re particular *4 against petition- the evidence shows that Brinlee v. in gard opinion is court’s overwhelming. light In er was (10th Cir.1979), Crisp, cert. F.2d 839 608 it is clear that proceedings entire denied, 1047, 737, 444 100 S.Ct. 62 U.S. way in ren- prosecutor’s comments no (1980), specifically L.Ed.2d 733 iden trial unconstitutional. petitioner’s dered “constitutionally presump tified the rooted recommendation of December Magistrate’s tion of as one of those innocence” basic 3-4, adopted at order of may provide rights violation a whose 30, entered December district court ground of a state for vacation conviction important the outset draw an We must at independent general pro of the more due respect to with distinction DeChristofo underlying cess concerns fundamental fair ro fundamental fairness standard that re Id. at 854. generally See analysis. ness directly specific to the concern raised lates States, 100, v. 104, Cool United U.S. 93 While, ordinarily, claims of by petitioner. (1972) (refer 34 L.Ed.2d 335 S.Ct. prosecutorial misconduct and other trial er ring “constitutionally to rooted presump manner on habeas in the rors are reviewed v. innocence”); Zygadlo Wain tion of above, passage quoted reflected wright, (11th Cir.1983) complained effec impropriety of when the (“[t]he every grants constitution defendant specific the defendant of a tively deprived denied, cert. innocence”), a presumption of right, a habeas claim constitutional 466 U.S. 104 S.Ct. L.Ed.2d 468 requiring proof that established without light precedent, In of such our thereby fun was rendered the entire trial prosecutorial of petitioner’s review miscon DeChristoforo, damentally unfair. See claim, squarely upon duct which rests (distinguishing at 1871 at 94 S.Ct. U.S. innocence, of not con upon generalized claims based prin strained fundamental by the fairness comment, prosecutorial to objectionable ciple recognized in DeChristoforo. analysis ap which fundamental point is not Our conclusion on this incon- prose plies, claims that particularized Kentucky v. holding sistent with infringed specific cution’s remarks Whorton, 99 S.Ct. see also Darden rights); constitutional (1979), give L.Ed.2d that the failure to 168, 181-82, 106 Wainwright, 477 U.S. specific charge on the 2471-72, in and of itself innocence “does not violate (habeas following case DeChristoforo in the absence of the Constitution” a find- objectionable re noting that failure, ing that when such considered with “implicate specific other marks did not circumstances, other rendered all the trial right rights the accused Id. fundamentally unfair. silent”); right to remain counsel or Kentucky, Taylor at 2090. Saffle, 869 F.2d Coleman v. Cf. 478, 486-88, 490, 1930, 1935-36, (habeas Cir.1989) reviewing pros case (1978) (predecessor L.Ed.2d only for objectionable comments ecutor’s give holding pre- that failure to Whorton unfairness under DeChristo fundamental gave innocence instruction rise prosecutor’s arguments “because foro particular any specific to constitutional error infringe on constitu did not — U.S. -, presented). right”), exacerbating circumstances It tional prosecutorial bly not follow that a does mis- fundamental nature of the affirmatively advising innocence, the jury whether, statement but rather under the is no there innocence petitioner’s trial, pre- circumstances requires showing of the same fundamental sumption was so undermined that the con- required challenge unfairness that is stitutional protection ordinarily afforded pre- mere absence an instruction on thereunder effectively denied. Since sumption. the essence prosecu- error in the tion’s here they was that con- A misstatement of law that affirmatively veyed to the the idea that negates right principle sumption had been eliminated from the often, view, infringe our more serious prior deliberations, case we conclude request ment than mere omission of a petitioner’s rights affirmatively Thus, example, ed instruction. while a meaning denied within the may not be defendant entitled to in manner the rights defendant defining struction fundamental stan Whorton simply were not. doubt,” see, e.g., Unit dard of “reasonable Olmstead, ed States 645- Notwithstanding our conclusion *5 denied, 486 (1st Cir.1987), cert. 56 U.S. the that fundamental fairness 1009, 1739, 100 108 S.Ct. L.Ed.2d 202 analysis here, govern does not still we therein, and numerous cases cited this must prejudicial evaluate the effect recognized court has nevertheless objectionable pre the comments had on the sub such an be given should instruction considering by the stantially (viewing error charge the as pertinent surrounding at circumstances tri whole), a relief habeas is warranted absent circumstances, however, al. These show of harmless error. See also finding a and, therefore, prejudice substantial lead Zelez, 885, 888-91, Monk v. 901 F.2d 93 us to conclude that a valid constitutional (10th Cir.1990).3 govern “Because the by petitioner. claim has been out made guilt beyond ment’s burden proving all, vigorously First defense counsel ob reasonable doubt is one the fundamental jected both voir closing dire and components and the ‘corner prosecutor’s the misconduct justice of the system,’ stone criminal immediately categorically and was and on erroneous instruction this burden re presence the jury. overruled corpus quires relief it habeas unless imprimatur thereby placed upon official the a reasonable doubt.” Id. harmless prosecution’s misstatements law obvi (citations omitted).4 888 at ously amplified potential prejudicial their

In Donnelly, Moreover, Supreme except- the Court on jury. effect trial analysis attempt ed the fundamental court did thereafter not cure or prosecutor’s “in problem through those cases which the re- minimize the admonish prejudiced marks so specific right or special jury. ... as ment instruction Further, denial right.” charge to amount to a of that 416 court’s overall on 643, (emphasis 94 1871 U.S. S.Ct. at of innocence and burden added). Thus, sufficiently specific the issue is not the undenia- of proof was not (7th denied, 1073, Cir.1976), point 3. Additional illustrations of the made 989 cert. may (1977). above be found in other contexts. For 97 S.Ct. 50 L.Ed.2d 790 example, may prosecution attempt while the not credibility law to bolster of its enforcement Admittedly, these cases involve mistaken by emphasizing govern witnesses their status as jury instruction rather than a misstatement of officers, Marquez, see ment United States 462 by Ordinarily, law counsel. misstatements (2d Cir.1972), urge F.2d 896 and not potential prejudice counsel have the for less to convict the defendant in order to judge. than misstatements of law lawbreaking, deter future see United States v. Flowever, judge’s here the twice to cor- refusal (D.C.Cir.1984), Monaghan, 741 F.2d 1441 pub- rect the when misstatements denied, cert. U.S. requested gave licly so to do such statements (1985), the L.Ed.2d 146 defendant is not entitled appearance judicial approval. some specific advisory instructions on mat to ters, Wright, see United F.2d States of the Given and con preserve sic evidence. the character evidence, it prosecutor’s specific aggravated statement that had ef dition of extinguished case.5 prosecution’s been from the dis fect misconduct Cf. Monk, (additional above, ref F.2d at n. 7 that this miscon cussed the fact reasonable erroneously directly pre erences to defined to a fundamental duct went import standard “are of little when guiding doubt cept factfinder’s evaluation [jurors] improperly innocence, instructed say we that the cannot meaning”). Finally, note that the to its we infirmity petitioner’s crimi pointed has not misstatements state trial was Ve generally nal harmless. See implicate the might defense counsel that Shulsen, larde v. mitigating response” doctrine.6 “invited Cir.1985); Lane, Williams v. Thus, permitted some the factors that have (7th Cir.1987). 666-68 prosecutorial courts to overlook similar judgment Dis- United States in this misrepresentations present not are for the trict Court Northern District Foltz, case. Beam Cf. Oklahoma REVERSED. The cause is (6th Cir.1987), 1407-08 it held REMANDED with directions that L.Ed.2d 489 abeyance ninety days from the date (1988). v. Missis generally See Caldwell permit the mandate issues to the state to 336-40, sippi, 472 U.S. petitioner. retry If such retrial does 2643-45, occur, then the not writ shall issue. Having that the held petitioner’s violated constitution BRORBY, dissenting. Judge, Circuit *6 this rights, we must determine whether al majority analysis of the The bases its may yet be deemed “harmless be violation theory that prosecutor’s remarks on the yond a reasonable doubt.” United States comments, attempt to under- Rivera, 1462, 1470 Cir. presumption mine the defendant’s of inno- 1990) California, (quoting Chapman v. cence, “specif- a deprivation amount to of a 18, 24, 386 U.S. 87 S.Ct. right,” (Per Opin- ic constitutional Curiam (1967), holding the L.Ed.2d 705 for 4) thereby relief warranting ion at habeas considered constitutional can be error improper the unless is shown de only if court is “able to harmless “harmless doubt.” be a reasonable beyond a harmless clare a belief it was 7.) (Per majority’s charac- Curiam The doubt.”); also Graham reasonable see inquiry used terization thus eliminates the (10th Cir.1987) Wilson, 828 F.2d prosecutorial impropriety: most wheth- (court error appeals of reviews harmless er the comment rendered defendant’s novo), proceeding in de issue habeas fundamentally deny him unfair as to “so 484 U.S. DeChristoforo, process.” Donnelly v. due (1988). Petitioner never de L.Ed.2d 999 intercourse, which nied the act of sexual (1974). majori- I find the L.Ed.2d 431 As corroborated, evidence physical would alleged impro- ty’s characterization of the consistently on the rather defended but incorrect, I priety and the result to be trial, jury was basis of consent. At respectfully dissent. relatively basically presented with two credible, disagreement majority’s competing My related with the stories 1) accused, nei is twofold: not characterize complaining opinion and the I do witness conclusively presumption defendant’s ther of which was confirmed a right type specific extrin disproportionately of constitutional discredited be jury any way paranoia a mis- of defense in invited 5. The instructions were read to arguments closing made. before innocence to statement of the of "right generally Unit- somehow scales.” See by de- The dissent cites an earlier comment 12-13, Young, ed States v. 470 U.S. prosecution fense counsel to the effect that the 1038, 1045, 84 L.Ed.2d along. presuming all had been defendant’s expression agree cannot innocuous We that this a fun- which warrants habeas relief absent beas relief looking without at the funda- 2) inquiry; trial, damental fairness consider- mental of defendant’s mere totality ing prosecutor of the circumstances in this regarding the case, prosecutor’s argu- I do not believe the should not be so character- ized. deprivation language amounted to a of The acknowledges ments defen- above importance right to a fair constitutionally dant’s trial. of inno- cence, yet clearly it indicates the Court’s majority opinion The characterizes the bypass process refusal to due analysis. type innocence as the looking In the totality of the circum- specific right constitutional which warrants stances to determine whether defendant heightened standard of review. As a trial, deprived a constitutionally fair characterization, majority basis for this the Court indicates it does not deem this authority indicating presump- cites case very to be within the narrow “constitutionally tion innocence is root- category specific rights constitutional Crisp, ed.” Brinlee v. where relief habeas in- warranted (10th Cir.1979). I argue do not this conten- dependent process analysis. of a due Rather, disagree I majori- tion. with the majority the case cites Crisp, Brinlee v. ty’s presump- conclusion that because the (10th Cir.1979), where rooted, constitutionally tion innocence is dicta, court, this indicated that “trans- prosecutor’s arguments case gressing constitutionally rooted necessarily deprivation amounted to the may provide of innocence” a ba- right the defen- specific granting sis for habeas relief without en- dant. general gaging analysis. Whorton, Kentucky In Supreme In light of the Court’s language 789, 99 S.Ct. do not find Kentucky, per- this dicta (1979), Court, Supreme discussing Additionally, suasive. this case is distin- prior decision it the trial where found guishable in that Brinlee refers to a com- presump- court’s refusal to instruct on the plete transgression presumption. tion innocence to have resulted remarks this case were *7 of process, violation defendant’s due also as to strong not so have amounted ato holding, “explicitly indicated its limited or denial transgression of defendant’s of and the Court’s detailed discussion the sumption of innocence. trial, circumstances of the defendant’s belie Looking totality the at of circumstances any intention to create a an in- rule that trial, by of prosecu- the the statements the presumption on the struction of innocence impose a prejudice tor did not substantial constitutionally required every case.” deny on the so as to him defendant due Court Id. The also stated that: process. majority The sets out two com- give requested failure instruction on it by prosecutor the ments made not in the of innocence does to a constitu- found amounted substantial and of itself violate the Constitution^ The first of these com- tional violation. such a failure must be evaluated but] dire, during voir and the ments occurred light totality circum- the prosecutor’s closing argu- during next including all the instructions stances— by pros- statements made ment. While the counsel, jury, arguments improper, have been ecutor Su- the weight whether of the evidence was preme previously has held in Darden Court overwhelming, relevant other 168, 181, Wainwright, factors—to determine the defen- whether (1986): L.Ed.2d received a constitutionally dant trial. fair enough prosecutors’ that the “is not [I]t (emphasis supplied). Id. remarks were undesirable or even uni- complete Id., by give quoting If a refusal the court to versally condemned.” Dar- requested Wainwright, instruction on the den v. (1983). type specific question is not the relevant is whether The prosecutor’s comments “so infected violation which warrants ha- instructions, Following with unfairness as to make the the court’s de-

the trial pro- presented closing argu- a denial of due fense counsel his resulting conviction length ment in DeChristoforo, 416 which he discussed at cess.” presumption of 40 L.Ed.2d innocence and the state’s S.Ct. 431] [94 Moreover, proof. argument, appropriate burden In his Mr. stan- McCarthy expressly prosecu- stated: for such a claim on writ dard of review “[the presuming tor corpus is “the one of habeas narrow is] [the defendant] guilty.... He comes into this court with process, and not the broad exercise that idea. He makes his based supervisory power.” Id. at 642 [94 idea, on that he look at the but doesn’t at 1871]. it____” (TR proven to see if he has evidence dire, during It should be noted that voir 314.) prosecutor at commenced his questioned jurors ex- defense counsel closing argument by indicating he tensively about the of inno- responding would be to some of the com- proof, pro- and the cence state’s burden by ments made defense counsel.2 Consid- poten- viding adequate clarification for context, ering by the statements by prosecutor. tial confusion created prosecutor arguably invited de- addition, prosecutor In himself stated fense counsel. The contention “you pay have to voir dire don’t too presented was that evidence say, say I much attention too what what trial, at defendant’s initial evidence____” (TR 30.) is not innocence was since overcome. In other closing arguments, Prior to the the trial words, prosecutor arguing that the judge gave numerous instructions to the proof. had met its state burden Consid- jury. The first instruction dealt with the ering proceedings, prosecu- the entire proof, and the state’s burden of second arguments, perhaps improper, tor’s while with the defendant’s of inno- did not render defendant’s trial so funda- instructions, along cence.1 Both these with mentally deny process. unfair as to him due instructions No. and No. stressed Therefore, I AFFIRM would the decision requirement prov- that unless the state had of the district court. guilt beyond en defendant’s a reasonable doubt, acquittal granted. must be additionally final

court’s instruction stated: law, instructions contain all the

“[t]hese otherwise, ap- statute or to be

whether by you in this

plied case and the rules *8 you weigh are to the evidence and (Instruction facts in

determine the issue.” 11.)

No. significant portion prosecutor's Numbers 1 and 2 2. The ar- Instruction read as follows: gument you, stated: "I submit to under the law No. 1 "You are instructed that the burden of evidence, and the that we are in little different proof in this case is State to estab- today position than we were when we first start- beyond evidence lish reasonable doubt time, your duty trial and it was at that ed this allegations all the material contained in the land, you being under the law of this as information, and unless the State has met its jurors, actively your minds selected you duty respect in this cannot find the defen- guilty presume that over there to be man not guilty, acquit must dant but him.” but, rape degree, you the offense of in the first 2 "You are instructed that the defendant No. know, things changed time. since that charged presumed innocent of the to be crime time, you at the law and submit this under against him in the information until his evidence, has under the beyond evidence a reason- is established removed, longer no doubt, been that that and that able of inno- exists, that that has been removed cence continues with the defendant until ev- standing you he now allegation evidence and before ery material of the information is guilty. is not there proven by That evidence a reasonable (TR 321.) more.” doubt.”