Moore v. Gibson

proceedings court for consistent

opinion. MOORE,

Dewey George Petitioner- Cross-Appellee,

Appellant and GIBSON, Warden,

Gary Oklahoma E. Penitentiary, Respondent-

State Cross-Appellant.

Appellee and 98-6004,

Nos. 98-6010. Appeals,

United States Court

Tenth Circuit.

Sept.

H53 H55 H57 Chief, General, Appeals, Okla- Criminal Oklahoma, Respondent-Ap- for City, homa Cross-Appellant. pellee and KELLY, BRORBY, Before MURPHY, Judges. Circuit MURPHY, Judge. Circuit appeals Dewey George Moore of federal habeas denial district court’s mur- degree first from his Oklahoma relief and death sentence. der conviction was convicted 2254. Petitioner U.S.C. kidnaping for degree murder and of first twelve-year- and murder of the abduction Respondent cross Jenipher old Gilbert. de- the district court’s appeals, challenging and Ef- that the Antiterrorism termination Penalty Act of 1996 fective Death does petition. habeas apply relief, petitioner grounds As (1) discovery he is entitled asserts: evidentiary hearing allegations on his an him; police planted against (2) witness, chief forensic State’s trial, chemist, falsely depriving testified trial; a fair process due petitioner of (3) dismissing court erred (4) cause; prose- prospective juror for deprived petitioner of a cutor’s misconduct trial; application fair of Oklahoma’s heinous, ag- cruel” “especially atrocious or was unconstitu- gravating circumstance (6) tional; evidence was insufficient there finding that the mur- support jury’s heinous, “especially der was atrocious (7) cruel”; continuing threat Oklahoma’s circumstance is unconstitu- aggravating (8) overbroad; petitioner’s trial tionally attorneys were appeal and direct constitu- ineffective; and the cumulative tionally deprived petitioner errors effect of these granted district court a fair The trial. as petitioner appealability a certificate of (Robert M. Presson Jack- Steven Wade to all of these issues. U.S.C. briefs), son, & him with Jackson 22(b)(1). 2253(c); R.App. P. We Fed. P.C., Norman, Oklahoma, Presson, for Pe- court’s denial of affirm the district Cross-Appellee. titioner-Appellant and relief, exception of its treatment with the planted (W.A. petitioner’s police claim that D. Howard Drew Sandra him, which we Edmondson, against remand Attorney General Oklahoma brief), discovery. for Attorney the district court on the Assistant her

H59 I. FACTS eyed very nervous. Petitioner collect- ed wages and left. Police arrested him September The victim was abducted on later that morning for driving a stolen P.M., approximately 9:30 fol- vehicle. lowing junior high school game. football fifteen-year-old Two adults and a student September 29, again On on October witnessed the abduction. All three indi- 4, 1984, police executed search warrants cated that the victim had been forced into petitioner’s home, alone, where he lived trial, a yellow car. At both adults identi- search, and his car. During the first offi- petitioner’s yellow fied car looking as like found, among cers other things, partially the car in which the victim was abducted. packed petitioner’s suitcase in home and a abduction, day The after the the student napkin used feminine petitioner’s under witness, Gomes, Paulo identified two men abducted, bed. At the time she was a photo array, from one of whom was victim had been menstruating. The used petitioner, as similar to the man he had napkin feminine petitioner’s found in trial, seen abduct the victim. At the stu- home, however, appeared to be of a differ- again dent identified as looking type ent than that found at the victim’s like the man who forced the victim into the home. yellow car. murder, A week after the a paper bag partially victim’s clad body was was found on the roof grocery of the store found 11:00 A.M. the morning after the located near home and near abduction in a field ten miles from the where he stole car on the morning school. She had been.strangled suffo- following the abduction. bag Inside the cated and had died several hours before was a used napkin feminine of the same body her pep was found. The uni- club type home, found at the containing victim’s form wearing she had been at the time of type blood of the same as the victim. The the abduction was never found. There knife, bag also contained a a belt matching was tape duct in her hair and markings on arms, markings made on the victim’s body her indicating that she had been fingernail that did not match peti- either wrists, arms, tape bound with around her victim, tioner or the pieces several of duct ankles, back, thighs, neck and face. There tape, including a tape wad of with hair tape were also indicating placement marks it, label, stuck to a garment several ciga- over her nose and mouth. She had suf- butts, earring rette and an similar to that face, fered bruising or abrasions to her worn the victim on the night she was neck, back and buttocks. abducted. junior lived near high trial, At presented State the testimo- abduction, school. night On the chemist, ny a forensic Janice Davis. had family, visited his brother’s who lived victim, testimony Her linked the con- just quarters three of a mile from the car, paper bag, petitioner, tents of the his school. He left his brother’s home be- car, petitioner’s the stolen and home. tween 9:15 P.M. and 9:30 P.M. Among things, other the chemist identified morning, petitioner The next left his hair similar to the victim’s found on and yellow parked car in front of his home and bed, couch, a underneath on a and in the walked an a eighth of mile to a grocery home; living petitioner’s room in in a glove There, store. petitioner stole a car and car; in in petitioner’s found the stolen drove to the construction site where he car; yellow tape and on the duct in the worked. Petitioner told his boss that he addition, paper bag. In fibers found on had suffered a coronary” previ- “mild body carpet victim’s were similar to night ous and had hospi- been treated at a car, that, petitioner’s fibers taken from floor result, tal. He further related as a home, job. including he would have to his mats and his those from quit The boss petitioner described that morning as wide- an in afghan living his room. Fibers found disorder, primarily due to his bedroom, room, personality and living petitioner’s in abuse, function found in the that he could brush, the knife father’s but from hair and roof, were store environment. bag grocery prison on paper in a structured well pep uni- from club taken petitioner similar to fibers indicated psychologist The worn victim like the one forms if released a threat probably remain would single A limb night of the abduction. pres- did not society, but that he into back to victim was similar on the hair found anyone prison. ent a threat testi- The chemist hair. petitioner’s limb three jury found the existence The hair, that, and upon the fiber fied based had petitioner circumstances: aggravating evidence, was convinced she serological a violent felo- convicted of previously been car petitioner’s had been that the victim continuing threat presented a ny, he and home. hei- especially the murder society, and was of first petitioner jury convicted The jury nous, cruel. The sen- atrocious kidnaping. During the and degree murder the first de- to death on tenced petitioner proceeding, sentencing capital years’ and to 999 conviction gree murder phase incorporated guilt all of the kidnaping conviction. on the imprisonment addition, presented the State In evidence. Ap- Court of Criminal The prior felony convic- Oklahoma evidence of and rape, ag- petitioner’s convictions attempted degree peals first affirmed tions child, State, indecency 788 P.2d kidnaping, with Moore v. gravated sentences. dangerous battery and with (Okla.Crim.App.1990). assault The United robbery beating, and weapon, child certiorari. denied Supreme Court States weapon. dangerous Oklahoma, 881, 111 See Moore (1990). Peti- 112 L.Ed.2d S.Ct. lived with previously A who had woman re- post-conviction sought state tioner then inci- an petitioner concerning also testified lief, of Criminal which the Oklahoma Court home, petitioner entered dent when her State, Appeals denied. See Moore her. The wom- up her stared at tied and (Okla.Crim.App.1995). petitioner sex- daughter an’s testified P.2d again also testified con- denied ually Supreme abused her. She United States during petitioner Oklahoma, which cerning an incident See Moore v. certiorari. witness, or six then five awakened L.Ed.2d 146 brothers, old, ages her then years and two pro- Petitioner commenced night, in the middle of the eight, four from seeking federal relief ceeding then up them without clothes and tied sentence. conviction and his murder death they struggled get stared at them while § See 28 U.S.C. free. ANTI- THE II. APPLICABILITY OF petitioner’s former wives testified One of towards AND EFFECTIVE petitioner’s abusive behavior TERRORISM children, including incidents her and their PENALTY ACT OF DEATH rape her up, tie her when he would Proceed- A. of Habeas Commencement attempt or smother her. to choke then ing petitioner presented evi- mitigation, respondent argues appeal, cross On with his regular of his involvement dence finding that the district court erred church, kind de- generally polite request for the filed date abuse, meanor, other incidents his father’s the counsel appointment of determined chil- petitioner’s abuse of women and of corpus was filed date habeas action dren, prob- mental health significant Antiterror concluding therefore drinking, and his by his lems exacerbated Penalty Act of Effective Death ism and prison. while in A defense good behavior 1996) (AEDPA) (effective 24, April 1996 peti- testified that psychologist specifically agree and hold govern. did not We an incurable tioner suffers from borderline H61 date filing petition, not the date ‘indicates that right appointed coun- counsel, appointment of was the correct sel prior formal, adheres to the filing of a for date whether AEDPA determining legally sufficient corpus petition,” habeas governs. ‘post because “a conviction proceeding’ § within the meaning of 848(q)(4)(B) is request ap Petitioner filed his for by filing commenced of a death row 22, pointment counsel on December defendant’s motion requesting appoint- 1995, pursuant § to 21 848(q)(4)(B), U.S.C. ment of counsel for his federal habeas provides appointment which for the corpus McFarland, proceeding.” 512 U.S. indigent prisoners counsel to challenging a 854-55, 856-57, 2568; at 114 S.Ct. see also capital conviction or any sentence “[i]n 3, at id. 857 n. 114 S.Ct. 2568 (“preapplica- post-conviction proceeding under [§ ] legal tion assistance” 2254.” The included granted district court the re § 848(q)(4)(B)). Indeed, quest on 27. December filed his assistance 1, petition July attorney habeas an may 1996. The be crucial dis before actu- trict that although filing determined al of the petition. 854-56, See id. at petition habeas was filed after the effective 114 S.Ct. 2568. The Court then deter- AEDPA, date of the request appoint for mined that to give meaning to the right to counsel, ment filed pre-AEDPA, actual counsel, appointed the district court must ly commenced the proceedings thereby be stay allowed to an execution under precluding application.1 AEDPA’s The 2251, § regardless petition- of whether the Scott, district court relied on McFarland v. er had filed a petition. habeas See 849, 2568, 114 512 U.S. 129 S.Ct. L.Ed.2d McFarland, 858, 512 U.S. 114 S.Ct. (1994). 666 2568. McFarland, Supreme Court held Notably, McFarland not does hold that if a capital defendant invokes his right appointment of counsel also commences a appointed § counsel under 848(q)(4), he post-conviction proceeding within the post-conviction has a proceeding pending § meaning Cain, of 2254. Williams v. Cf. and thus need not file a corpus habeas 269, (5th Cir.1997) 125 F.Bd 274 (stating petition before a may federal court enter a McFarland does not determine what date stay McFarland, of execution. See 512 petition habeas “pending” applicabili 858-59, U.S. 114 (citing S.Ct. 2568 28 ty statutes), of substantive cert. de 2251, § permits U.S.C. which a federal —nied, -, 144, U.S. 119 S.Ct. 142 court to issue a stay “for any matter in- L.Ed.2d 116 merely McFarland volved in the corpus habeas proceeding”). ensured indigent capital defendants the McFarland, however, recognized that nei- right § to counsel established 848(q)(4). ther the federal corpus habeas statute nor Williams, 125 F.3d at the rules governing proceedings a proceeding Respondent argues § define under 2254 or that Lindh v. state Mur- 320, 2059, how such a proceeding phy, shall 117 be com- S.Ct. 138 854, (1997), menced. See id. at McFarland, 114 L.Ed.2d S.Ct. 2568. 481 de- also recognized § 848(q)(4) fined AEDPA’s applicability. Respondent 2263(a), Citing (1998); § U.S.C. the district Nguyen Reynolds, L.Ed.2d 284 court also applied, determined that if AEDPA 1340, (10th Cir.1997), cert. de 180-day statute of limitations would bar - nied, -, U.S. 119 S.Ct. the habeas claims. That determination was (1998). Therefore, applica L.Ed.2d 103 period in error because the limitations set period ble limitations is set forth 28 U.S.C. 2263(a) § forth in in applies only capital cases 2244(d)(1), petition § and the was filed time adopted which a state has certain stan Marr, ly. See Miller v. 141 F.3d appointment dards for U.S.C. of counsel. See 28 - (10th Cir.), denied, -, cert. qualified 2261. Oklahoma has not (1998); 142 L.Ed.2d 173 United provisions. Reyn under these See Duvall v. Simmonds, olds, (10th Cir.), States v. 111 F.3d cert. de - nied, -, Cir.1997). 1162 language of 28 U.S.C. at the Lindh, 117 cuit looked at 521 U.S.

notes that 2254(e) proceeding a refers “to § which applied to AEDPA 2059, that stated S.Ct. a writ of application for by an that instituted its enactment filed after cases “ 1914(a) § which corpus”; 28 U.S.C. for a habeas application ‘an AEDPA referred ” upon the filing a fee payment of Appellee, requires of corpus.’ Br. writ of habeas for a writ of habe- “application an filing 28 U.S.C. of (quoting at 7 Cross-Appellant 2254(a)). Thus, 1 the Rules Gov- respondent corpus”; and Rule of 2244(d)(1), as §§ that ap- provides § for which request erning 2254 Cases the date of maintains in the procedure not determine “govern counsel does rules pointment of applica- held that applies. Lindh district courts AEDPA States whether United corpus § habeas 2254.” See apply to 28 U.S.C. AEDPA did not tions under passed. Williams, it was when at 1038. The Seventh applications pending 167 F.3d 336, 322-23, 327, Lindh, application 521 U.S. that an disagree See did not Circuit expressly Lindh did that 848(q)(4) § 117 is a case S.Ct. counsel under for pending for case is a habeas court. by appellate define when an may be reviewed AEDPA. applicability of purposes Gosier, of “But a re- F.3d at 506. 175 848(q)(4),part § of counsel under quest for nor Lindh McFarland Although neither 21, Chapter 15S a case under Title is not pending a ha- constitutes what addressed is, is not a request Title 28—that purposes of proceeding for corpus beas judgment.” a criminal attack on collateral AEDPA, applicability determining the Gosier, motion for “[T]he 175 F.3d at 506. considering the circuits majority it petition, because is not itself counsel for pending a case is have held that issue (or permit) even a deci- not call for does only the habeas AEDPA when purposes of And it is ‘the merits’ on the merits. sion See, v. Welb e.g., filed. Gosier petition is 2254(d)(1) all § is the amended (7th Cir.1999), orn, 504, 506 175 F.3d Holman, at 880. 1999) 126 F.3d (U.S. about.” 14, July cert. petition filed for (No. 99-5282); Coyle, v. 167 Williams circuits, Ninth Cir Unlike the other (6th Cir.1999); 1037, 1036, No 1040 F.3d peti pending federal habeas cuit defines a (5th Johnson, 409, 414 127 F.3d v. bles Galaza, v. broadly. See Nino tion more denied, 1139, Cir.1997), 118 cert. Cir.1999). (9th It has F.3d (1998). 140 L.Ed.2d S.Ct. begins case with the that a habeas held Lindh and recognized that circuits Those of counsel. See Calderon appointment and did not did not address McFarland the Cent. Dist. Court United States for them and the issue before resolve (9th Cal., F.3d 539-40 Dist. expand — on the need McFarland focused (en denied, Cir.1998) banc), cert. pending case to ordinary meaning of -, 1377, 143 L.Ed.2d 535 Congressional intent.2 See give effect to decision on based its Calderon 1038-39; Williams, F.3d at Holman States, Hohn v. United Gilmore, 879-80 Cir. (1998).3 Hohn 141 L.Ed.2d Nobles, 1997); 127 F.3d at 413-14. application for a certificate held that an constituted a case under 28 appealability fed- conclusion that a support As for its 1254,4 Supreme and therefore the upon the corpus case is filed U.S.C. eral habeas to review a court of jurisdiction had petition, the Sixth Cir- filing of the overruled concluded that Hohn pointed 3. Calderon also out 2. The Sixth Circuit McFarland, prior precedent, which had held that habeas problem, ongoing an addressed filing only upon the of a pending case petition deron, presented a case before the court whereas the corpus. See Cal- writ of habeas statutory question the effective date of at 539-40. 163 F.3d time, which, question will be provision, a Williams, irrelevant. See come the methods 4. Section 1254 sets forth appeals may in the courts of which "[c]ases Supreme by the Court.” be reviewed

1163 appeals’ application Retroactivity of an for a cer- B. denial Hohn, appealability. tificate of See 524 argues if that this court 238-89, 241, 253, at 118 S.Ct. 1969. holds that case at the commenced the time decision, In reaching this Hohn looked to petition, he filed habeas corpus the it is Quirin, parte Ex 63 S.Ct. to retroactively apply unconstitutional the (1942), 87 L.Ed. 3 which held that a dis- new of forth in standards review set AED- request trict court’s of a for denial leave to PA to court proceedings completed state petition corpus file a for a writ of habeas before enactment or of effectiveness AED- a appeal. was reviewable case on See PA. This court has the contrary, held to Hohn, 524 at 118 S.Ct. 1969. determining that AEDPA applies to cases date, filed after effective regardless its of distinguishable. agree Hohn is We when proceedings state court occurred. the Sixth Circuit Gibson, Rogers F.3d 173 1282 Quirin parte Hohn Ex stand only (10th and Cir.1999); n. 1 Berget see also for proposition by the that the denial the Gibson, 98-6381, No. WL district court of a motion for the 1999) issu- Aug.5, (unpublished Cir. order appealability], ance of a of a [certificate judgment citing Rogers holding petition motion leave to file for for the application of AEDPA to cases filed writ, or, case, our as in a motion for the after its impermissibly effective date is not appointment of ... retroactive); counsel would consti- Angelone, Mueller v. (4th Cir.) appealable tute an case. This does not F.3d (addressing 565-73 however, imply, argument that the ha- similar to that raised here and beas case corpus by holding impermissi has been initiated AEDPA does not have — effect), denied, such ble filing preliminary of motion. retroactive cert. — rejected U.S. -, Although the Court in Hohn L.Ed.2d - of a filing prelim- contention inary regarded motion “should be aas C. Standards of Review inquiry separate

threshold from the Hohn, merits,” -, at [524 U.S. of a of The review denial habeas 1974], holding logic corpus subject relief is to two different the case were limited to the determina- types analysis depending on whether a rejection tion that by district by claim on was heard its merits the state preliminary court of the motion consti- courts. “If the claim not heard on the was appealable tutes an case. courts, by merits state and the federal district made its own court determination Williams, 1040; F.3d at see also Cal instance, the first we review district deron, J., (Hall, dissenting) novo court’s conclusions of law de and its (distinguishing Hohn’s use of word “case” fact, findings any, if clear for error.” to interpret Supreme whether Court had Gibson, LaFevers v. jurisdiction from use of “case” word (10th Cir.1999). adjudicat If a claim was interpret whether statute of limitations courts, by ed its merits the state AEDPA). had run under petitioner will be entitled to federal habeas joins Accordingly, only this court relief can that the establish state to, majority holding contrary circuits in that a “was or in case decision of, pending only upon application under AEDPA volved an unreasonable law, filing petition clearly of a for writ habeas Federal as deter cor established pus. filing request Supreme of a mined of the United counsel to 2254(d)(1), States,” prepare petition or “was govern does 28 U.S.C. applicability of AEDPA itas is not a based on an unreasonable determination of petition seeking presented light substantive relief. facts the evidence pep fibers club body victim’s and from proceeding,” id. in the State court 2254(d)(2). by thereby the one worn § AEDPA increases uniform similar to abduction, plant- to night afforded state of the degree deference victim on Ward, adjudications. Boyd See v. court in his and car between the ed those home Cir.1999) (10th 904, (citing searches, 179 F.3d 912 first and and then “dis- second 1465, Zavaras, v. 107 F.3d 147 during Houchin this the execu- covered” evidence 0(10th Cir.1997)). tion second warrant. search ap that if AEDPA argues violation, a Brady To establish court the standards plies, this must define petitioner showing the burden of bears 2254(d)(1). §in We of review set forth suppressed prosecution that material standards, but have applied these See, petitioner. e.g., to evidence favorable them, beyond precise wording defined 1086, Reynolds, 153 F.3d 1112 Moore v. Ward, Bryson v. of AEDPA. See — (10th Cir.1998), denied, U.S. -, cert. (10th Cir.1999) 1193, (citing n. Mat 1199 3 (1999). 1266, 119 143 L.Ed.2d 362 S.Ct. 877, 171 885- Superintendent, teo v. F.3d Knowledge police investiga officers or (3d Cir.1999), filed, cert. 67 petition 91 for imputed prosecution. tors to the will be 1999) (No. (U.S. 22, 3008 U.S.L.W. June Whitley, v. 514 Kyles See U.S. 98-2050), Killinger, v. 169 and Nevers 437, 1555, L.Ed.2d 115 S.Ct. 131 490 (6th 352, Cir.), cert. de F.3d 357-62 (1995); Secretary Dep’t N.M. Smith v. — 2340, -, nied, U.S. 119 144 S.Ct. Corrections, 801, F.3d 824-25 50 (1999), forth 237 which set L.Ed.2d Cir.1995). interpretations of standards of various claim, Brady petition- support of this adjudica deference afforded state court upon er of Bruce relies the statement 2254(d)(l)’s “contrary under both tions Hawkins, prepared the mortician who of’ application to” “unreasonable lan and body victim’s for burial. The Oklahoma appeals). by other courts of guage federal Appeals Court of Criminal first considered Supreme The States Court has United post-conviction this in state evidence granted certiorari to review Fourth determining state- proceeding, Hawkins’ interpretation Circuit’s of these standards. not have been ment “could discovered — U.S. -, v. Taylor, 119 Williams trial, diligence due before and is not cumu- (1999); 143 L.Ed.2d see S.Ct. 516 presented any lative of evidence at trial.” — -, also 143 S.Ct. Moore, 889 P.2d at 1257-58. court (1999) (listing present issues L.Ed.2d that new further determined this evidence ed). interpretation of any possible Under “certainly suggests City po- Midwest standards, appeal the outcome of this lice followed a somewhat unusual investi- Thus, the same. we would be decline to in this gative procedure case.” Id. in interpret the standards this case.5 Nonetheless, appellate the Oklahoma court III. OF PLANTED ALLEGATIONS evidentiary hearing declined hold an

EVIDENCE any That inquiry. conduct further factual court, instead, peti- the truth of assumed argues Petitioner first that the district allegations factual re- tioner’s denied in denying discovery court erred on his lief, holding that “mere evidence of unusu- police planted claim that officers part, al conduct on the detectives’ when car, home not disclose did of the entire fact, evaluated the context rec- Brady Mary- this violation of v. ord, material, land, is not and does not create a (1963). probability the trial’s out- reasonable L.Ed.2d Petitioner asserts changed.” hair be at 1257-58. police officers obtained from the come would Id. pre-AEDPA, any Even under the review afforded further relief. petitioner we conclude would not be entitled petitioner The determination of whether un It prove remains the truth is a therefore, disclosed evidence is material mixed We, allegations. those turn question of law and fact reviewed de novo to the question of whether prior to AEDPA. See Unit entitled discovery this claim. See ed Trujillo, States 899, 905-06, Bracy Gramley, (10th Cir.) (direct appeal), criminal cert. 138 L.Ed.2d 97 — denied, -, 87, 119 142 U.S. S.Ct. (1998); L.Ed.2d 69 see also Newsted v. A petitioner federal habeas Gibson, 1094 Cir. “if, will discovery be entitled to only and to 1998) Brady (reviewing novo claim as de that, the extent judge in [district court] in pre-AEDPA petition), serted the exercise of his for good discretion and — denied, U.S. -, cert. 119 S.Ct. grants so, cause shown leave to do but not appeal 143 L.Ed.2d 661 In this 6(a), otherwise.” Rule Rules Governing AEDPA, therefore, governed we con Cases; LaFevers, Section 2254 see also sider whether state appellate court’s “ 182 specific F.3d at 723. allega ‘[W]here materiality determination amounts to an tions before court show to be reason application” clearly “unreasonable es lieve that the if may, the facts Supreme precedent. tablished fully developed, are able be to demonstrate 2254(d)(1). U.S.C. We conclude it does. relief, that ... he is entitled to it is the Suppressed exculpatory evi duty provide of the court to necessary will “only dence be deemed material if procedures adequate facilities and for an that, a probability there is reasonable had ” 908-09, inquiry.’ Bracy, 520 U.S. at defense, the evidence been disclosed to the Nelson, S.Ct. v. (quoting Harris proceeding the result would have 1082, 22 89 S.Ct. L.Ed.2d been different. A probability’ ‘reasonable (1969)). Petitioner has met this bur is a probability sufficient to undermine den here. Pennsylvania confidence the outcome.” Ritchie, 39, 57, 107 S.Ct. statement, In his Hawkins asserts that (further 94 L.Ed.2d 40 quotation two detectives returned to the funeral — omitted); Greene, see also Strickler separate home on three occasions to obtain — U.S. -, -, 1936, 1948, samples pubic, scalp of the victim’s L.Ed.2d -, -(1999). question “The They limb apparently hairs. returned the is not whether the defendant would more because, visit, during first second time likely than not have received different hairs, they plucking had instead of cut evidence, with verdict but whether in occasion, them. the detec- On third trial, its absence he received a fair under up to tives took two and one-half hours to resulting stood as trial a verdict wor obtain additional evidence. thy Kyles, of confidence.” part record corroborates statement, indicating Hawkins’ that detec- against petitioner

The State’s case was togo tives did the funeral home several entirely circumstantial. The existence and of the and hair samples cross-transference fiber times to obtain additional hair, evidence was crucial to the State’s case completion victim’s after of the medi- against proved, petitioner’s allega- him. If cal examiner’s examination. Detective police planted tions that officers this evi- Marston testified that he and Detective dence, therefore, material—i.e., be would on Howard went to the funeral home Mon- probability that there is reasonable day, obtain October the victim’s proceeding result would been fingerprints. to the forensic Pursuant different. request, Ingle chemist’s Detective also therefore, went to the funeral

Petitioner’s home October allegations, proved samples would him obtain victim’s limb hair. entitle to habeas relief. search, a used feminine first during the further as- statement, Hawkins In his discovered. had been napkin employee, home funeral another serts that deceased, fol- now Boeing, who contradictory John trial, gave detectives At vis- second after their the detectives they lowed had concerning whether testimony According to Haw- home. funeral it to the pep club sweaters three two or obtained the detectives that him kins, Boeing told Detec- found. any fibers compare home the funeral from directly went both testified and Garner Howard tives home, entered where one sweat- such three they had obtained window, unlocked then open used, an through three part of as ers, one two new and asserts inside. Hawkins from the the door to be used outfits pep club complete sweater them red had with they Detective comparisons. necessary any just they had samples hair however, testified, the victim’s later Garner The detec- funeral home. at the collected the to foren- sweaters only two submitted for home petitioner’s in remained tives The forensic analysis. for chemist sic “ap- subsequently time, then and some only re- had that she testified chemist petitioner’s to doing things” to be peared new one analysis, for two sweaters quested in front car, parked was which yellow account one could No one used. and Hawkins evening, Later that his home. the sweater. third the whereabouts home petitioner’s to Boeing accompanied testimony contradictory also was There remained window that and confirmed whether, in what and concerning at trial open. peti manner, secured officers had police Hawkins, he and Boe- both to According The the first search.6 home after tioner’s petitioner’s to the detectives ing followed therefore, support record, lends some to the visit third home after detectives’ alle petitioner’s not and does contravene that the asserts home. Hawkins funeral which, would warrant proved, gations open at that was still home window specific those light In relief. habeas time. state by Hawkins’ supported allegations, its discre ment, court abused the district key hair evi- confirms that The record discovery. Bracy, See denying tion until the second was not discovered dence We, therefore, 909, 117S.Ct. 1793. addition, In 1984. search, on October one discovery on this for limited fi- remand discover red did not investigators remanding, relief. ground for habeas club uniforms pep bers, consistent 6(a) it makes however, that “Rule we note victim’s, the second until similar of such scope and extent that clear one had seen though no Even search. confided a matter discovery [remains] search, forensic the first during them Bra Court.” the District the discretion red fibers near these discovered chemist 909, 117 home, cy, 520 U.S. imme- petitioner’s door of the front the home entry of upon her diately FO- OF TESTIMONY EXPERT IV. During the search. the second conduct RENSIC CHEMIST search, also discover- investigators second that argues next peti- under located red fibers ed similar expert testi- where, admission trial court’s bed, same location in the tioner’s hand, and Howard Detectives the other that he On entered testified brother 6. Petitioner's brother petitioner’s testified both Garner obtained Sunday, September on petitioner's home late petitioner's home from medicine rec- Jail petitioner's medication. to obtain de- Friday, September 28. The on afternoon petitioner first received indicated that ords they searched testified that further tectives petitioner's Sunday. The home on his medication September Saturday, home There was been searched. appeared to have home lock- secured which Garner after however, trailer, sealing tape no evidence evi- taping trailer with ing the door and may or doors open and window was tape undisturbed tape. remained dence until may locked. not been search, on October the second

H67 mony of chemist, the State’s forensic Hair and fiber comparison evi Davis, Janice hair concerning and fiber per dence is not se inadmissible. See id. petitioner evidence linking crime, to the at 1522-23 (addressing admissibility of deprived petitioner process of due evidence). hair analysis possess Davis did fair trial. appeal, On direct expertise in hair and fiber analysis, having challenged Davis’ testimony only on state been trained forensic science generally grounds. law v. Henry, Duncan 513 and having attended several law enforce 130 L.Ed.2d ment training seminars specifically ad curiam) (“If (per pe- dressing hair and analysis. fiber See Sto titioner wishes to claim that an Collins, evidentia- ry v. (5th ry ruling at a state Cir.1991) trial denied (addressing expert admission of him the process due guaranteed law testimony concerning sexually-abused chil by Amendment, dren). Fourteenth he must We say cannot that it was funda so, say only not court, in federal in mentally but unfair for the trial court to allow court.”). state respondent Because her does to testify expert. as an See Bennett v. argue Lockhart, this claim is unexhausted Cir.1994). barred, or procedurally however, we ad- On cross-examination ar dress the merits of federal gument before the trial judge, defense claim. 2254(b)(2) (feder- See 28 U.S.C. counsel ably challenged the hair and fiber al habeas may deny relief on mer- evidence, Davis’ qualifications, and her claim); its unexhausted see also Hooks testing methods. See Johnson, Little v. Ward, v. 1206, (10th 184 F.3d 1216-1217 855, (5th 162 F.3d Cir.1998) 863 & n. 11 Cir.1999) (State is obligated to pro- raise (citing Estelle, v. 880, Barefoot cedural default as affirmative defense or 898-99, 3383, 77 L.Ed.2d 1090 so). right lose to do — (1983)), denied, cert. -, U.S. 119 Because the state did courts not address 1768, S.Ct. 143 (1999); L.Ed.2d 798 see claim, the federal however, the district also Adams v. Leapley, 713, 31 F.3d 715 court addressed the (8th merits of this Cir.1994). issue He also had a defense the first court, instance. therefore, This expert guide available to and inform his reviews the legal conclusions underlying Little, cross-examination. 162 F.3d at Cf. the district novo, (counsel court’s decision de and 863 could offer expert rebuttal any factual findings for clear error. See evidence and cross-examine purported LaFevers, F.3d 182 at 711. expert). state Davis, herself, testified that a compari-

Petitioner is not entitled to federal son of hairs only could establish habeas either that error, relief unless “the if any, was the known and unknown were so hairs grossly prejudicial that it fatally infect source, from the same or that the hairs ed the trial and denied the fundamental were microscopically and, similar there- fairness that is the pro essence due fore, could have come from the same cess.” Ward, Williamson v. 110 F.3d also source. She stressed hair com- 1508, (10th Cir.1997) 1522 (pre-AEDPA). parison could not in positive result a iden- The district court determined any tification. question concerning the admission Davis’ testimony did not rise to the level of The trial court instructed the jury that it process due violation. Petitioner was argues to determine the weight to given be this was prejudicial unduly be any expert testimony. Little, 162 F.3d unreliable, cause it was false; inaccurate or 863; at Bachman Leapley, 440, v. 953 F.2d the nature hair (8th and comparisons Cir.1992). fiber is 442 “Because this eviden- inexact; Davis testified in a tiary biased and issue was fully and competently aired subjective manner; and “proba she was courts,” in the state petitioner has failed to bly” unqualified to testify as an expert. show a “violation of fundamental fairness

1168 (7th Cir.) 728, (ap 734 Spence Gramley, 141 F.3d process clause.” under the due — (5th Cir.1996). AEDPA), denied, Johnson, 989, plying 1000 cert. U.S. 80 F.3d -, L.Ed.2d 402 S.Ct. this support In federal Johnson, (1998); Fuller claim, submits the affidavit of petitioner (5th Cir.1997) (same). making 500-01 expert further hair and fiber who another determination, judge the trial must such a testimo credibility of Davis’ challenges the prospective credibility assess upon the ny methods. Based testing juror, appellate an court cannot task affidavit, petitioner he is entitled to asserts Witt, easily upon do a record. See based evidence, this This discovery on claim. 844; S.Ct. see also 469 U.S. at however, at petitioner tri was available Ward, F.3d Castro v. addition, expert al. In had defense Cir.) (“Because credibility issues of challenge this trial inform his evi judge’s crucial to the trial demeanor are Calderon, 167 Siripongs v. dence. Cf. determination, our review of that determi (9th Cir.1999) (reject 1227-28 deferential.”), quite cert. de nation upon opinion of ing habeas claims based —nied, -, expert, where test re newly-hired defense were and reviewed de L.Ed.2d 343 sults available trial). Petitioner, expert prior fense op- argues juror who therefore, good failed to establish has poses penalty may the death not be ex- discovery issue. See cause cused for cause he is able to follow 6(a), Governing Rules Rule Section judge’s trial instructions set aside 908-09, Cases; Bracy, see also Here, in deference to the law. own beliefs 117 S.Ct. 1793. judge maintains the did not question prospective juror to properly MEMBER V. REMOVAL OF VENIRE he could so. The determine whether do argues Petitioner the trial following colloquy occurred: Sixth, Eighth, his and Four violated Parrish, I THE Mr. will ask COURT: by improperly rights teenth Amendment in is you, the defendant this case removing a for cause with venire member in charged degree. with murder the first allowing an opportunity out him to rehabil your duty to It is determine whether “ juror.7 juror may ‘[A] itate the not be not or of mur- guilty guilty defendant is challenged for cause based on his views in degree. der the first punishment capital about unless those provides punishment that the law substantially im prevent views would or in first is or degree for murder life pair performance of his a duties as beyond you death. If find a reasonable juror in with his instructions accordance ” guilty doubt that the defendant Witt, Wainwright and his oath.’ v. 469 degree, you can murder in the first con- 844, 412, 420, 105 U.S. 83 L.Ed.2d legal punishments, sider both life or Texas, Adams v. (quoting death? 100 S.Ct. 65 L.Ed.2d 581 No. MR. PARRISH: omitted). (1980))(emphasis judge’s A trial you THE Let me ask this COURT: a potential juror’s determination of bias beyond you If found a question, sir. finding a under this standard is factual reasonable doubt that the defendant was presumption entitled to a correctness. guilty degree of murder in the first 428-29, (pre-AED See id. at S.Ct. 844 if, evidence, under the facts circum- PA); Dep’t Davis v. Executive Dir. of (10th case, Corrections, per- would stances of the law 100 F.3d Cir. death, 1996) (same); Pitsonbarger you mit a see also to consider sentence Contrary opinion, peti- Amendment violation. to the district court's did tioner assert district court Sixth

H69 your are reservations about juror the death was properly excluded under Witt such penalty that regardless law, because the trial court’s questioning estab- the facts and case, circumstances of the lished he would not consider imposing the you would not consider inflicting death penalty in proper case. See death penalty? Moore, 788 P.2d at 397. That court deter- MR. PARRISH: Yes. mined the trial court did not err in disal- Tr. vol. I at 60-61. prosecution After the lowing further questioning by defense moved juror, excuse counsel, defense counsel because further questioning may asked for a conference, bench during have resulted in confusion and the relevant which requested he an opportunity fur- questions had been asked clearly an- ther question juror. swered. See id. MR. RAVITZ: Judge, we contend contends that the second questions two can not de- properly question asked by the trial court “is virtu juror’s termine a feelings, and we’re ally identical to question this Court de explore, allowed to this Court can scribed as ‘confusing, and because its not make any type of factual judgment negative phrasing, ambiguous invites an on it. swers.’” Appellant’s Opening Br. at 44 We would request that we per- be (quoting Maynard, Davis v. mitted to ask the juror explain to the — (10th Cir.1989), vacated on other juror law, the fact that all he is re- grounds by Davis, Saffle quired to do is consider pen- the death (1990), L.Ed.2d 756 alty, that this defendant is entitled to a opinion part reinstated Davis v. representative jury peers, of his that if Maynard, Cir. juror wants to consider it and re- 1990)). The following question was at is ject it, he has right to do it as sue in Davis: long as he’s willing to it. consider you If found beyond as long That as he is reasonable doubt willing long—as

as it will not affect Defendant on case was guilt decision innocence, guilty has a Murder in right to sit the First Degree on it. you If don’t let and if me inquire this, under evidence, we facts and can’t make—this record will be totally circumstances of the ease the law would insufficient for an appellate permit you court to re- to consider a sentence of view whether this Court death, was correct in are your reservations about the excusing him. Death Penalty such that regardless of finish, IWhen law, the Court may the en- the be facts and the circumstances tirely correct in excusing, I case, but think the you would not inflict the I’m entitled to that opportunity. Penalty? Death Id. at 62-63. The trial court overruled Davis, 869 F.2d at 1408. This deter- defense request counsel’s and excused the mined that a “no” answer question to this juror.8 could ambiguously mean either that On direct criminal appeal, the juror Oklahoma could not inflict the death penalty Court of Criminal Appeals held that the despite the law and evidence or that any Thereafter, 8. counsel a made record of the We contend Supreme Court's questions additional he would have asked the standard in Witt Witherspoon being is prospective juror if the trial court had al- totally by violated an excusal giving without lowed to him do so. following The is illustra- me an opportunity to ask questions these tive of the trial record counsel made. because we juror, believe this if assured of Judge, juror ... has to at least be his civic responsibility, say in would fact asked, can he set opinions aside his could sit on this jury and what do he thinks law, can, follow the because if he he can sit proper is in the case. jury. on this And those'questions none of Tr. I vol. at 64-65. ever asked that. 2222, 729, 112 S.Ct. 119 L.Ed.2d 492 would not im- juror had reservations (1992). Here, adequate voir dire was proper inflict the

pair ability to juror’s Davis, juror prospective to whether the at 1408-09.9 detect See id. sentence. however, as qualified conclude that the ex- been to serve a to would have refused juror juror. Angelone, for cause was revers- v. See Yeatts clusion (4th Cir.) (corollary right to error. See id. ible dire impartial jury requirement voir is refusing, Davis looked to In so identify jurors), unqualified sufficient to Supreme “Court estab where the Witt — denied, U.S. -, cert. S.Ct. jurors’ bias towards prospective lished that (1999). Thus, trial L.Ed.2d 668 proved be with penalty need not the death ” constitutionally to required court was not clarity’ in order to excuse ‘unmistakable opportunity grant defense counsel an Witt, 469 (quoting Id. juror for cause. inquiry. searching conduct Sellers 844). 424, 105 Cf. S.Ct. (10th Cir.) Ward, F.3d juror This determinations is because (where attorney inquire defense wanted to question-and- reduced to bias cannot be jurors spe find prospective whether would which obtain results answer sessions — denied, mitigating), cific facts cert. the manner of a catechism. What com- U.S. -, 557, 142 L.Ed.2d 463 experi- realized mon sense should have (1998). The trial court’s decision many veniremen sim- proved: ence has permit by questioning further defense enough questions be ply cannot asked did not exceed bounds of that counsel their point where bias has reach the Neely court’s considerable discretion. See clear”; “unmistakably these- been made Newton, 1083-84 they may not know how will veniremen Cir.1998) federal courts are defer (holding imposing react when faced asked), questions ential to what should be sentence, unable may or be death — denied, U.S. -, cert. articulate, may or wish to hide their true Even assuming 142 L.Ed.2d clarity lack of feelings. Despite this help questions additional would been however, record, printed there will ful, the trial court’s failure to allow defense is judge be situations the trial left where did questions counsel to ask the not render impression pro- with the definite fundamentally id. at unfair. See spective juror unable to faith- would be fully impartially apply is deference must why .[T]his

law... pre- has failed to rebut paid judge to the trial who sees and be sumption the trial court was correct juror. hears the finding juror’s views would have Witt, 424-26, 105 469 U.S. at S.Ct. 844 prevented substantially impaired (footnote omitted). Thus, even where performance juror. of his duties as court, the trial aided ambiguity, there Appeals’ Oklahoma Court of Criminal de- juror’s credibility, the its assessment of juror’s termination the answers clear- ambiguity the in may resolve favor the ly not indicated that could consider 434, 105 See id. at S.Ct. 844. State. imposing penalty regardless the death evidence and the was not the instructions we Nor do believe the trial contrary application to or an unreasonable required court to afford an was of Witt. to further and reha opportunity examine juror. guarantee bilitate the of the “[P]art VI. PROSECUTORIAL MISCONDUCT jury an right impartial of a defendant’s to prosecution en- identify unqual alleges dire to adequate is an voir Illinois, jurors.” in of his Morgan gaged stages misconduct both ified Davis, particular follow-up case?” Id. at 1408. defense counsel asked a some you question: “Do I hear that to mean that juror responded "yes.” Id. Penalty possibly impose could the Death in

H71 (1) by: sympathy Allegations trial for the eliciting prosecutorial (2) victim; credibility vouching questions misconduct are mixed of law and (3) witnesses; stating personal opin- state 1462, Kerby, fact. See Fero v. petitioner’s guilt; ion about under- (10th Cir.1994). every improper Not mining jury’s responsibility sense of in prosecutor and unfair remark aby made punishment. selecting appropriate On will amount to a federal constitutional de appeal, petitioner direct criminal raised privation. See Caldwell v. Mississippi, only only first claim and so did on 320, 338, 472 U.S. 105 S.Ct. grounds. state law The Oklahoma Court L.Ed.2d 231 A prosecutor’s im Criminal Appeals determined that state proper argument require comment will Moore, law was not violated. See 788 P.2d reversal of a state only conviction where post-conviction, petitioner at 401. On sufficiently remarks infect so claims, all four doing raised so on state law and, fundamentally as make it unfair respect with grounds to the first three and therefore, a denial of process. due respect on grounds federal to the DeChristoforo, Donnelly 416 U.S. citing fourth. Without state or federal 643, 645, 94 S.Ct. 40 L.Ed.2d 431 law, Ap- the Oklahoma of Criminal (1974); see also Darden v. Wainwright, peals recognized prosecutor’s comments occasionally skirted the bound- (1986); Kerby, L.Ed.2d 144 Hoxsie v. permissible argument, aries of but consid- (10th Cir.1997). 1239, 1243 F.3d ered the context of the closing entire require not arguments, did reversal or Inquiry into the fundamental fair modification. The court determined ness of a trial can only be made after prosecutor primarily permissible made examining the entire proceedings. See merely comments based the evidence or Donnelly, 416 U.S. at 94 S.Ct. 1868. responded to closing defense counsel’s ar- To prosecutor’s view the statements in Moore, guments. See 889 P.2d at 1255 n. context, we strength look first at the against the evidence the defendant and respondent peti- prosecutor’s

Because does not decide whether the argue state- tioner failed to exhaust plausibly first three ments could tipped have claims on grounds federal and does prosecution.... scales in of the favor procedural argue respect bar with to all ascertain We also whether curative in- claims, four we address the of all merits by judge, given, structions the trial 2254(b)(2) (per- claims. See 28 U.S.C. might mitigated the effect on the mitting deny federal relief on jury improper statements.... claim); Hooks, merits of unexhausted prosecutor responds When a an at- (holding 1216-1217 State must counsel, tack made defense we evalu- waived). procedural bar or it is raise response light ate of the defense argument.... Ultimately, we must The federal district court addressed the probable prosecu- consider the effect the merits of the first three claims on federal tor’s have on [statements] would grounds law first instance. We jury’s ability judge the evidence fair- review the district court’s legal conclusions ly- findings de novo and its factual for clear LaFevers, error. See 182 F.3d at 711. Fero, omitted). (quotations F.3d at 1474 appellate

We assume the state court re- mind, in With these standards we turn to viewed the merits of the fourth claim un- petitioner’s prosecuto- of individual claims law, petitioner der federal as requested. rial misconduct. Accordingly, we review the Oklahoma Eliciting Sympathy A. for the Victim Court of Criminal Appeals determinations argues during on the fourth claim for Petitioner first that clos- reasonableness. 2254(d)(1). ing arguments stages, prosecu- See U.S.C. at both the family, court deter- and and the federal district a conviction to ensure sought tion improper, but the comments were appealing to the emo- mined by death sentence comments attempting to elicit failed to show the jury petitioner and tions of the first During the as the trial the victim. to render sympathy egregious were so prosecutor unfair, especially the in of stage closing arguments, fundamentally light not victim a nickname referred to the of the overwhelming guilt evidence and the Also, the pros- the supported by evidence. sympathy. jury regarding instructions speculate about jury the to ecutor asked victim, to may happened the

what not condone This court does that he not know despite admitting did the prosecutorial encouraging remarks her, com- .happened to and exactly what to influence its jury sympathy to allow suffering the of the victim’s mented on Duvall, 795. 139 F.3d at decision. See stage, the During the second family.10 record, however, we reviewing After the pleas for continued with its prosecution comments the cannot conclude the affected by speculating about sympathy victim stage pros at either of trial. The outcome re- happened to the victim and her what hap what speculations ecution’s about loss to her fami- sponses, pointing out the possi pened to the victim were reasonable the stating gets the benefit of ly, petitioner on the ble inferences based evidence. Cf. despite her but the victim did doubt (refer Hooks, 1221-1222 innocence, stating and that death verdict far actual evidence ences not “so off the victim and of love for the proper was out that prosecutor’s nor central to the case so past the future her and the and parents they likely jury’s have affected were petitioner.11 victims of verdicts”). it makes The State’s evidence probable young that the murder prosecutor speculated the extent the To produced pros before the victim, sympathy victim about what did any closing remarks. See ecution made district court determined the com- federal Duvall, is F.3d at 795. “Some emotion explanation on ments a tenable based were capital sentencing[,]” inevitable in and from the logical and inferences prosecutor’s appeals to emotion in respect to comments evidence. With ar- case not sufficient to render the suffering of the victim’s mother were about help prosecutor following he her. She cried for made the com- when snatched The (1) may parking "Did he have this knife his hand lot. And those well ments: there pull got he it out when he then or did that ever out have been the last words came (2) got (3) time her "[F]rom th[e] [he car?” "What must have been her mouth.” bruised, and until her battered car] inside going through girl’s he little mind when morning body was found the next lifeless little up tape everywhere? duct trussed her road, exactly what we don't know beside the (4) body.” clothing And off her ... cut (3) pretty good he "We have a did her.” through "Nobody go kind should have to (4) things he did.” "She idea some (5) through[J” girl put that little terror he probably struggling.” to death and was scared helpless, was “She alone and scared (5) baby "She in order for this killer died her she died in silence with his hands around (6) satisfy his own sadistic sexual desires.” (6) pain she neck.” "The sort of and fear you imagine baby going what that was "Can (7) unimaginable.” experienced must be trailer, through? taped Took out to his her parents] ever visit [the [her]?” "Can victim’s right up tape, with that took that knife her (8) every giving him benefit of "We're kept off there and cut that uniform of her and doubt, right justice prevails. every system our (7) "Jenipher never her there for hours.” will (9) any Jenipher get "She didn’t of those.” (8) teenager." mom] be a never "[Her (10) way totally innocent.” "There’s no was (9) again.” going "[The to drive her to school Jenipher could have been more innocent little family] victim's will never be the same.” deserving happened to her or less of what (11) "[B]ring ver- night.” a death back prosecutor following made the com- parents] out love for the (1) '[victims dict really don’t "[W]e ments: know what past imag- the future and the evening.” you the world and her "Can did to terror, baby girl [petitioner].” the fear that had victims of ine Brown, gument improper. Coleman v. proper, 802 make statement may but it affect (10th Cir.1986). 1227, 1239 context jury in which improper views statement). Also, the statements were jury The trial court instructed the at in made isolation. Donnelly, See 416 U.S. to stages both consider the evidence and at (determining S.Ct. 1868 at testimony received trial and not to allow should lightly prosecutor not infer intend- sympathy to into its enter deliberations. isolated, instructions, ed presum- ambiguous jury These which the remark to have followed, helped mitigate ably damaging to the effect most or meaning jury that will jury any possible pros- on the improper meaning draw that from damag- other less Fero, ecutorial statements. See 39 F.3d at ing interpretations); see also United Ludwig, States v. 508 F.2d Cir.1974) in (reversing conviction direct light In of the evidence and the instruc- criminal tions, appeal prosecutor where vouched persuaded this court is not that the for integrity police state prosecution’s vouching petitioner remarks denied incident). process. fair trial his to not right due was isolated Nor did the prosecutor cross the line from advocate Vouching Credibility B. of witness with these isolated statements. State Witnesses Furthermore, the trial court instructed the

In responding jury to the to consider in the evidence in case planted, claim that had been the making its decision. We the re- conclude prosecutor apologized, on behalf of the marks, viewed the context of the entire State, to the who on officers worked trial, prejudice did not petitioner by influ- case, go “the men who out work the encing jury stray responsi- from its try society streets and to make this safe.” bility fair to be and unbiased. See United According petitioner, prosecution 1, 12, 18, v. Young, States 470 U.S. attempting jurors was to make the feel S.Ct. L.Ed.2d 1 officers, of gratitude debt to these who had wronged by petitioner’s been challenge to C. Expressing Opinion Personal About addition, testimony. their Petitioner’s Guilt comment challenges prosecutor’s that petitioner’s attack on the searches was an prosecutor jury told the attack on prose both himself and another odds that petitioner committed the crime cutor. The federal district court deter a quarter are of a million to one. Petition improper mined there had no been argues er jeopardized that this statement vouching, as the first grand instance was right to be tried based the evidence standing and the merely second was skirt presented jury and instead indicated the boundaries, ing the but did not warrant government’s judgment should trust relief. over its own view of evidence. See id. Generally, prosecutors should not 18-19,105 at personally vouch for the credibility state The federal district court determined place witnesses or their integrity own implicate any this comment did due credibility Hopkinson in issue. See process Duvall, violations. See 139 F.3d (10th Cir.), Shillinger, at 794. Although prosecutor should reh’g on other grounds, 888 F.2d 1286 expressed opinion not have his personal (10th Cir.1989). Here, however, the state guilt, regarding suggestion there no response ments were made in to comments that, so, doing he relied on evidence Darden, of defense counsel. See 477 U.S. presented beyond that at trial. 2464; Hopkin see also son, Young, S.Ct. 1038. (recognizing 866 F.2d at 1210 Moreover, improper prosecutor also response statement made remarked arguments jury defense counsel’s petitioner guilty does not should find be- and not because the Tr. vol. VII 1626-27. evidence based on the violated that these statements Cald- lieves guilty. he was prosecution said jury the to make designed well and were Jury’s Responsibility Undermining judgment D. the judgment its to surrender enforcement, in Punishment rath- Selecting prosecution and law the on the make a based er than to decision in prosecutor stated his sec The strength of the evidence. argument that when he stage closing ond review, post-conviction the Oklahoma On for the particulars bill of and asks files de- Appeals, apparently of Criminal proper is a case for the penalty, death it de- ciding petitioner’s argument, Caldwell Also, informed the penalty.12 he death re- merely that these comments termined cog in is'“only piece, one little jury it one to counsel’s second sponded Additionally, prose community.” Moore, closing argument. See stage jury that cutor told the 4. P.2d at 1255 n. The federal district you presented can to any case be before invited determined that defense counsel in what your terms of for consideration by re- his own comments these comments sentence, in appropriate is sentence to threat petitioner’s continuing garding happen. things a number of to disease,14 society,13 petitioner’s the social to has be The decision—the evidence personal consequences jury’s and upon you which can brought you before decision,15 appropri- types of cases improp- It be base that decision. would Further, for penalty.16 ate the death jury to in that you go er for room court determined the remarks did district bring having back a decision without place sentencing ultimate decision you, as proper before Mr. Dea- evidence anyone jury. other than the See Cald- on son and I have done. well, 328-29, 105 S.Ct. 2633. time, Prior to that decision has be the comments The court believed penalty will sought made as what be merely part in the jury’s underscored in that case. That decision is then Brown, justice. system of See Dutton v. made. (10th Cir.1987). time, kind Prior to that before that viewed prosecutor’s statements made, an investigation decision can be not affir the context of the entire trial did depart- police has to be made jury its matively regarding mislead the ment— determining punishment, responsibility for did not violate Caldwell. See and thus —in has to this case. And evidence Oklahoma, 8-9, 114 Romano That has to brought be forth. 2004, 129L.Ed.2d 1 Further ' It was done this case. gathered. be more, in the trial court’s instructions duty it jury Before that. Before that evidence can had the formed person penalty imposed. one who volun- We gathered, be determine the be did tarily prosecutor’s into this scene is conclude the statements enters whole penalty the death verdict unre- [petitioner].... not render really says capital you [petitioner] want in 40 14. to kill "[Petitioner’s counsel] "[D]o 12. you really do want to kill the disease.” you proper case cases hear that this penalty right. That’s the death times. "Taking greatest life ... someone's has capital case is. That’s when I That’s what personal consequences one’s and social particulars the bill of and ask for the file lifetime." penalty. every degree not in first death That’s murder case.” you "if sat 16. Defense counsel stated capital juries, you would hear it times” [petitioner] going examples "If to let out were gave we were of what he believed tomorrow, proper penalty. be a threat.” cases for the death would

H75 circumstance, Sellers, (pros F.3d at liable. See 135 1343 or cruel” aggravating cious suggestion personally ap ecutor’s that In argument, petitioner his sixth asserts proved penalty death of and statements that sup- there was insufficient evidence to “many jumped hurdles had to be be port jury’s finding the existence of this capital fore a murder trial oc could ever aggravator. any cur” insufficient suggest were jury other than one had burden to make A. Constitutionality decision); sentencing ultimate see also The constitutionality ag of an Moore, (prosecutor’s 153 F.3d com 1113 gravating circumstance a question is of jury part of ments that was small machin See, Hooks, 1206, law. e.g., 184 F.3d ery put petitioner on death row and The Oklahoma Court of Appeals’ Criminal prosecutor made decision to seek death rejection of this claim contrary was neither penalty, if improper, signifi even were not to, of, an application nor unreasonable enough jury’s cant to influence sentencing clearly Supreme prece established decision); Brown, 1496, v. Parks 840 F.2d 2254(d)(1). § dent. See 28 U.S.C. (10th Cir.1987) (prosecutor’s 1503-04 com language The of “especially Oklahoma’s importance ments did not minimize of heinous, atrocious or cruel” aggravating sentence), jury’s in fixing role rev’d is unconstitutionally circumstance vague Parks, grounds by other 494 U.S. Saffle without further narrowing. Maynard See 484, 1257, 110 S.Ct. 108 L.Ed.2d 415 356, 363-64, v. Cartwright, 486 U.S. (1990). Petitioner has failed show the S.Ct. 100 L.Ed.2d 372 Court of Appeals’ Oklahoma Criminal deci court, however, trial contrary did further narrow sion was to or an unreasonable application of application aggravator by of Caldwell. in- U.S.C. 2254(d)(1). structing jury "that term ... [t]he “heinous” means ex- E. Combined of Impact Comments tremely wicked or shockingly evil. prosecutor’s Even com “Atrocious” means wicked outrageously ments viewed in not isolation do warrant pitiless and vile. “Cruel” means or de- relief, petitioner maintains that their com signed high degree pain, to inflict a “ impact bined does. ‘Cumulative-error enjoyment utter to or indifference analysis applies where there are or two suffering of You others. are further actual apply, more errors. It not does phrase “especially instructed however, to the cumulative effect non- heinous, or atrocious cruel” is directed] ” Castro, errors.’ (quoting 138 F.3d at 832 to those crimes where the death of the Hoxsie, 1245); Newsted, see preceded by victim was torture of the (“A 158 F.3d at 1097 non-error and non physical victim or serious abuse. prejudicial cumulatively error do not R. II Post-Conviction vol. at 252. error.”). prejudicial amount to This court instruction, The first of this part considered, context, has each of itself, insufficiently appli narrowed the alleged of prosecutorial instances miscon cation of this aggravator. See Shell by petitioner duct identified and concludes Mississippi 498 that, when taken together, even the com curiam); (per L.Ed.2d id. at ments fun did render (Marshall, J., concurring) 111 S.Ct. 313 damentally unfair. (setting language challenged forth in HEINOUS, VII. ESPECIALLY ATRO- struction). Nonetheless, the last sentence CIOUS OR CRUEL AGGRAVA- constitutionally did aggrava narrow this TING CIRCUMSTANCE Arizona, ting circumstance. See Walton v. 652-55, relief, fifth ground (1990) (plurality) (upholding L.Ed.2d 511 petitioner challenges constitutionality heinous, heinous, “especially limiting application “especially atro- Oklahoma’s process independent Eighth due or cruel, factor an depraved” aggravating or or Id. at involving anguish phys mental violation.” Amendment murders death); prior to see “A occurring state court’s (pre-AEDPA). ical abuse S.Ct. 3092 also, Hooks, 1206, 1239-1241 e.g., circumstance finding aggravating of an constitutionality jury instruc (upholding capri- arbitrary ... particular case challenged to instruction tion identical only if no sentencer cious if reasonable ; LaFevers, here) at 720-21 182 F.3d 783, Id. at 110 could have so concluded.” 1283, (same); Ward, v. 165 F.3d Cooks Creech, 3092; at S.Ct. see also 507 U.S. (10th Cir.1998) (same), petition 1290 n. 3& 478, more 113 1534. As discussed S.Ct. (No. (U.S. 1999) 14, May 98- cert. below, filed here. fully that is not the case 9420). Further, of use the instruction’s to” not re language the does “direct[ed] Sufficiency Supporting B. of Evidence any ambiguity. sult Petitioner asserts there was insuffi- finding support jury’s the argues

Petitioner next cient evidence Appeals has Court of Criminal Oklahoma of this circum- aggravating existence interpreted circumstance aggravating this The Oklahoma Court of Criminal stance. inconsistency inconsistently that this Appeals rejected this claim as well. See adequate deprived petitioner of notice. Moore, 788 P.2d at 401-02. consistency review of the Federal habeas appropriate standard of review of an applied courts have with which state this the ‘rational factfinder’ stan- claim “is however, circumstance, in aggravating is Virginia, in Jackson v. dard established Creech, 507 appropriate. See Arave 307, 2781, 99 61 L.Ed.2d 560 U.S. S.Ct. 1534, 463, 477, 113 123 L.Ed.2d S.Ct. (1979)whether, viewing ‘after the evidence Walton, (1993); at see also prosecu- light in the most favorable event, 655-56, any In 110 S.Ct. 3047. tion, have any rational trier of fact could consistently applied Oklahoma courts [aggravating be- circumstance] found See, LaFevers, 182 aggravator. e.g., this 319, at yond a reasonable doubt.’ [Id.] Cooks, 721; at at 165 F.3d LaFevers, 2781.” 182 F.3d at S.Ct. that, argues although the Petitioner AEDPA, challeng- Prior to a habeas claim fur- Appeals of Criminal Oklahoma Court ing sufficiency of evidence under Jack- application aggrava- of ther limits the this See, e.g., presented son of law. question ting to crimes which circumstance 1024, Tansy, 46 F.3d Romero consciously physi- “serious victim suffered Cir.1995). Bryson, But WL cf. abuse,” never instructed jury cal was (post-AEDPA raising claim habeas suffering. need to find on the conscious question of whether there was sufficient also that the trial court asserts jury instruct on lesser included that, failed to instruct under Oklahoma capital presented case factual offense law, jurors were to determine wheth- first issue). AEDPA, sufficiency if Under er the victim suffered torture or serious law, question of evidence is treated as of then, so, physical abuse and whether 2254(d)(1), question then under heinous, “especially atrocious or crime was Criminal whether the Oklahoma Court of cruel.” Appeals unreasonably applied this stan- arguments These im primarily dard. only law Lewis v. plicate state errors. See Nonetheless, appears it this Jeffers, has, times, question treated (1990). “[Fjederal 111 L.Ed.2d 606 whether sufficient evidence to there was application review of state court’s support finding the sentencer’s the exis- constitutionally aggravating cir narrowed an circumstance as a aggravating tence of limited, most, determin cumstance is See, Hooks, e.g., factual determination. was ing finding whether the state court’s (noting 1239-1241 arbitrary as to constitute 184 F.3d capricious so Appeals case, OMahoma Court Criminal convincing evidence. howev- there sufficient er, “found” was evidence to we need not determine which is the finding of support aggravating sentencer’s more appropriate analysis peti- because circumstances district affirming tioner’s claim merit lacks under either line “finding” court’s that especially heinous reasoning. physical “serious abuse” stan- aggravator’s abduction, At the time of peti met; although noting dard had been also tioner held his hand across the victim’s Criminal Appeals OMahoma “con- face, hit mouth and her across knock sufficient); cluded” evidence was Ross v. her ing back into the car. At the time her (10th Cir.1999) Ward, 800-01 body found, was at 11:00 A.M. the next (“finding]” record contained sufficient evi- morning, only she had been dead a few support jury’s finding aggrava- dence to interim, hours. In the she had been bound cert, circumstances), petition ting for filed wrists, arms, tape with duct around her (U.S. (No. 6,1999) 99-5138); July Nguyen, ankles, back, thighs, face, neck and and (noting 131 F.3d at 1344 OMahoma Court tape placed had been over her nose and Appeals of Criminal “found” evidence was removed, Her mouth. clothes had been support especially insufficient to heinous pulled her underwear down on her thighs, times, At other aggravator). this court her pulled up and bra above her breasts. of has treated the resolution this issue aas occasions, See, Ward, prior petitioner On several legal e.g., conclusion. had Foster (10th Cir.1999) 182 F.3d bound children 1194-95 in order to watch them (“conclud[ing]” supported jury’s struggle get record free. finding physical of suffering conscious suf- Further, the victim had suffered bruis- especially

ficient to establish OMahoma’s face, ing neck, abrasions to her back LaFevers, heinous aggravatoi'); 182 F.3d buttocks, and and had strangled been and at 723 (affirming district court’s conclusion suffocated. The medical examiner testi- that there was sufficient evidence for ra- that her puffy fied face was and smeared tional trier of fact to aggrava- have found pinkish coming mainly foam from her ting beyond circumstance reasonable mouth while she still was alive. Her face doubt); Cooks, (“con- at F.3d eyes exhibited numerous small hemor- cluding]” supported record jury’s finding rhages a of compression as result of circumstance). of aggravating the veins in her neck. This evidence was If we treat the issue of the sufficiency of support sufficient to jury’s finding the evidence supporting the sentencer’s heinous, “especially this murder was atro- heinous, finding “especially atro- See, Cooks, e.g., cious or cruel.” 165 cious or aggravating cruel” circumstance at determination, legal question as a for consideration, our under 28 U.S.C. VIII. CONTINUING THREAT AG- 2254(d)(1), § would be whether the state GRAVATING CIRCUMSTANCE rejection court’s of this claim contrary was argues Petitioner next that OMahoma’s an to or application clearly unreasonable threat continuing aggravating circum- Supreme precedent. established On unconstitutionally vague stance is hand, the other if we treat this issue as overbroad. this claim Petitioner asserted fact, applicable one inquiry under to the Ap- OMahoma Court Criminal 2254(d)(2) § would be whether the state peals only petition rehearing fol- rejection court’s of this represented claim lowing appeal. his direct criminal an unreasonable determination of facts Appeals Oklahoma Court Criminal de- Further, light evidence. rehearing nied without comment. Al- 2254(e)(1) requires this court to afford a though respondent argues that this claim presumption of correctness to a state barred, findings, procedurally corut’s factual is unexhausted and petitioner unless presumption resolved, can rebut easily with clear and is so because this issue we X178 (1) performance prove counsel’s previously- er must its merits. We

address deficient, er- challenging that counsel made argument was such rejected this same Oklahoma’s con- constitutionality acting not so that counsel was rors serious circumstance. aggravating tinuing threat by the Sixth guaranteed the counsel as 815-17; Castro, at see also 138 F.3d counsel’s deficient Amendment Foster, Hooks, 1206, 1238-1239; 184 F.3d defense, prejudiced de- performance LaFevers, 1194; 182 F.3d at 182 F.3d petitioner of a fair trial with priving the 720; F.3d at 922. Boyd, 179 v. Wash- result. See Strickland reliable 104 S.Ct. ington, that Okla- further contends (1984). To under L.Ed.2d 674 succeed consistently applied ag- not has homa court, petitioner must overcome prong, A howev- the first federal habeas gravator. er, consistency of the presumption that counsel’s conduct may address aggravating of an application constitutionally Boyd, state courts’ effective. See was Creech, See, e.g., factor. Specifically, at 914. that, un- presumption “must overcome circumstances, challenged ac- der OF IX. INEFFECTIVE ASSISTANCE might be considered sound trial strat- tion COUNSEL Strickland, at 104 egy.” U.S. that district court argues omitted). Petitioner (quotation For coun- S.Ct. 2052 relief on his four claims denying erred in performance constitutionally to in- sel’s be assistance of counsel of ineffective effective, completely it must have been claims of ineffective assistance and two unreasonable, merely See wrong. not Oklahoma Court of appellate counsel. The Hoxsie, at 108 F.3d 1246. one claim of Appeals, deciding Criminal pe prong, on its Under the second ineffective assistance of trial counsel court, that, merits, de- must but for counsel’s and the federal district titioner show errors, ciding claims of ineffective assis- proceedings all other result of the would appellate Strickland, and counsel on tance of trial have been different. See instance, held that their merits in the first alleged at 2052. If the appellate counsel ren- neither trial nor during ineffective assistance occurred constitutionally ineffective assis- dered is there guilt stage, question whether tance counsel. would probability jury a reasonable regarding guilt. had reasonable doubt peti- respondent argue

Because does not See id. at 104 S.Ct. 2052. assess any failed to exhaust claims or tioner barred, at totali ing prejudice, this court looks any procedurally claims are see 28 2254(b)(1) Hooks, (exhaustion); evidence, just § U.S.C. not the evidence ty bar), 1206, 1216-1217 (procedural petitioner. F.3d helpful Boyd, review claim decided the Okla- we 914. If ineffective alleged F.3d at Appeals homa of Criminal under the during of counsel occurred assistance 2254(d) set forth in 28 standards U.S.C. phase, sentencing court considers novo, of the claims de and the remainder probability there is a “reasonable whether LaFevers, see that, errors, the ... absent the sentencer that the balance of would have concluded A. Ineffective Assistance of Trial circumstances aggravating mitigating and Counsel Strickland, not death.” did warrant Claims of ineffective assistance 695, 104 questions of law and of counsel are.mixed per may “This address the fact, de novo. See Miller v. reviewed components any prejudice formance Champion, 161 AEDPA). order, Cir.1998) [peti both if but need address (applying To establish counsel, showing to make a petition- tioner] fails sufficient ineffective assistance Cooks, 1292-93; land, 165 F.3d at one.” see determined failed to meet Davis, F.3d at 760. also his burden of proving perfor- deficient resulting mance or prejudice respect alleges four instances of argument to his that counsel failed con- ineffective assistance of trial counsel. proper Moore, duct a investigation. See First, argues that counsel did little to Likewise, post-convic- 788 P.2d at 401. training demonstrate Janice Davis’ lack of review, tion again that court cited Strick- experience in hair analysis. and fiber If land and determined that ably “counsel so, petitioner counsel had done believes brought out Gomes’s inconsistencies and jury likely disregard would have Petitioner, testimony. however, her weak identification at ed trial. [Petitioner] recognizes that “counsel did commend cannot show that counsel’s failure con- job able cross-examining Davis on the ac pretrial tact Gomes constituted deficient opinions, curacy general of her performance prejudiced which his client.” validity analysis.” of hair and Appel fiber Moore, P.2d at n. 1257 14. lant’s Br. Opening at 88. The federal dis Although counsel did not inter trict court found that counsel’s cross-exam trial, view Gomes before counsel estab ination of Davis satisfied Strickland. through lished cross-examination and later novo, Reviewing agree. de we Contrary jury reminded the during stage first clos petitioner’s argument, the record shows ing argument picked that Gomes had out that counsel did cross-examine Davis about someone from photo line-up. else background her training. During performance Counsel’s was not deficient. first stage closing argument, coun- defense assuming performance, Even pe deficient questioned sel Davis’ credentials and re- titioner has failed to show defense jury minded the of how little education and counsel had interviewed trial Gomes before in training she had hair fiber compari- and yielded cross-examination would have Even if not challenged son. counsel had any more and the result of the trial would credentials, Davis’ we have concluded that have been Considering different. evi qualified expert. Davis was as an to serve total, dence in we conclude suggested not there is no Petitioner has how further probability cross-examination jury would have shown that reasonable would have expertise testify she lacked to an as ex- reached a different result. The Oklahoma Thus, pert. we conclude counsel’s cross- Appeals’ Court of Criminal decision was examination was not petition- deficient and an application not unreasonable of Strick prejudice. er cannot show 2254(d)(1). land. See U.S.C. argues Petitioner next that coun Third, petitioner argues that coun pre-trial sel failed to conduct sufficient in objected sel should have to admission of vestigation concerning Paulo Gomes’ iden top the evidence found in on the sack petitioner tification of photographic grocery many store because of the line-up. If counsel had interviewed Gomes conclusively items the sack were never trial, petitioner before believes that coun Petitioner, however, linked to petitioner. sel would learned have that Gomes had attempt to has failed even to show that person selected another before selecting absent the evidence the sack the result petitioner and that the magistrate judge of the trial would been have different. who issued the search warrants was not Thus, petitioner prove preju has failed to of that According peti informed fact. dice. tioner, this evidence would have created guilt doubt as to his and would have bol Petitioner’s final trial ineffective suppression prior stered the motion filed argument assistance is that counsel not did to trial. during stage act as his advocate second arguments. appeal, closing During argument, On direct criminal the Oklahoma (1) Appeals, Court of Criminal citing proved Strick- counsel had conceded State Cir.1995). appellate An counsel’s circumstances be- aggravating three all (2) may and doubt; may be deficient petitioner performance a reasonable yond if only counsel incarcerated the defendant prejudice if he is not a threat would be (3) if Id. argue “dead-bang killed he winner.” life; should be fails to petitioner for time of the winner” as “an always (defining “dead-bang as he did at the acted at 395 (4) murder; Department of the trial the Oklahoma was obvious from issue which danger- petitioner is record, realizes have ... which would Corrections and one ous; if threat petitioner on appeal”). in reversal resulted be executed. he should prisoners, other argues appellate Petitioner that maintains, elaboration, petitioner Without attacked the continu should have counsel court’s de- district contrary to the federal on di circumstance ing aggravating threat heinous, termination, confessing the appeal and should not have rect criminal circum- aggravating cruel atrocious or rehearing.17 on first raised the issue if a dan- suggesting execution stance found no merit be district court federal be consid- prisoners cannot to other ger he had raised an conceded cause strategy. ered sup of the evidence to sufficiency issue De novo review reveals disagree. We rehearing. on We port aggravator strategy ask that it was counsel’s merit, no but for an the claim has agree he spared life be because petitioner’s Because, as discussed reason. other impris- if society a threat to would be above, no an there is merit to attack society. and he contribute might oned argu continuing aggravator, threat strong supporting light winner, “dead-bang” is not a ment factors, psycho- and the aggravating counsel was not ineffective. appellate indicating petitioner would logical evidence if claims argues any remained incarcerated not be threat assistance of counsel ineffective life, and the defer- for the remainder of his appeal, raised on direct been should perfor- scrutiny given counsel’s ential failing appellate counsel was ineffective Strickland, mance, see them. The federal district to raise strategy was not defi- counsel’s it had considered determined has performance. Petitioner failed cient of ineffective assistance of claims that under presumption to overcome be without and had found them to counsel argument the circumstances trial counsel’s the federal district Accordingly, merit. id. strategy. was sound trial See this claim of ineffective court determined Appellate B. Ineffective Assistance was without appellate counsel assistance reject petitioner’s Counsel merit. Because we too merits, appel- conclude claims on their we A claim of ineffective assis failing late counsel was not ineffective presents appellate tance of counsel appeal. on direct to raise claims fact. question mixed of law and See Newsted, claim at 1090. When 158 F.3d Ineffective Assistance C. Cumulative appellate ing ineffective assistance of Counsel counsel, a show both con petitioner must the dis Petitioner believes that stitutionally performance deficient the en have considered trict court should required by Strickland. prejudice as See representation, rath- scope tire of counsel’s Newsted, at 1090. This court’s 158 F.3d each item in looking than isolation. an . er review of counsel’s decision omit however, Petitioner, failed to make this appeal highly issue on deferential. See Thus, Cook, court. assertion in the district States v. 45 F.3d United unsupported and undevel- suggests argu- We do not consider without further Kunzman, oped See United States v. support appellate should issues. ment or counsel (10th Cir.1995). aggravators. have attacked each of the other

H81 district court’s failure to consider the en- ing the detectives’ unusual entry into the tire scope of representation counsel’s was Petitioner’s home following those collec- not error. We decline to address this tions, in no way undermine my confidence argument raised for the first ap- time on in the jury’s verdict. Accordingly, I am peal. Oyler Allenbrand, 23 F.3d unable to conclude the Oklahoma Court of (10th Cir.1994). 299 n. 8 Criminal Appeals was unreasonable in reaching the same conclusion. X. CUMULATIVE ERROR I have no quarrel with the substantive If this court fails to grant relief any law underlying Petitioner’s Brady claim or issue, one petitioner argues that the standard of review we apply to that should consider the cumulative effect of claim. It is (1) well settled “the govern- two or more seemingly harmless errors. ment has the obligation to turn over evi- Considering all petitioner’s claims, ex- dence in possession its that is both favor- cept his Brady claim for which we are able to the accused and material to remanding, guilt we conclude has not punishment”; (2) met his burden “evidence is material demonstrating that ei- if only ther there his is a conviction or death reasonable probability sentence is that, had constitutionally infirm. evidence been disclosed to defense, the result of the proceeding XI. CONCLUSION would have been different”; (3) “[a] In conclusion, reasonable we agree probability is a respon- probability suf- position dent’s ficient to argued in his undermine cross appeal confidence in the out- and, therefore, we come.” review Pennsylvania ha- Ritchie, beas claims under AEDPA. RE- We 1001, 94 L.Ed.2d 40 VERSE district court’s denial of habe- (quotation marks and citations omit- as relief on petitioner’s claim police ted). Because the Oklahoma Court of planted officers against him, evidence and Criminal Appeals considered Petitioner’s REMAND that claim to the district court evidence in support of planted permit and, discovery if necessary, an claim, rejected that claim on the mer- evidentiary hearing. In all other respects, its, it is further settled under the AEDPA we AFFIRM the district court’s denial of that we may disturb the Oklahoma court’s habeas relief. ruling only it is to,” “contrary or involves “an unreasonable application of, clearly es- BRORBY, Judge, Circuit dissenting. tablished law, Federal as determined by I respectfully dissent from that portion the Supreme Court of the United States.” majority opinion that holds the § 2254(d)(1). U.S.C. As the majority Oklahoma Court of Criminal Appeals’ “ma- acknowledges, the AEDPA mandates that teriality determination” concerning allega- we increase the degree of deference af- tions of planted evidence represents an forded state adjudications. court application unreasonable of clearly estab- Boyd Ward, v. 904, 912 lished Supreme precedent. Court My dif- Cir.1999). My quarrel lies with what I ference of opinion is First, twofold. I deem to be the majority’s misapplication of believe the majority fails to honor the def- the AEDPA standard. erential standard of review un- mandated The majority der the recites AEDPA. the Second, appropriate if even we ven- standard, ture but beyond concludes, then the AEDPA without fur- standard and ther substitute our reference guess to or analysis best as of to the the proba- Okla- impact ble of the homa Court of undisclosed Criminal Appeals’ evidence on ruling, the outcome of trial, that Petitioner’s because Mr. Haw- the against “State’s peti- case kins’ statements concerning multiple tioner hair was entirely circumstantial,” and sample collections, and his recollection of a the “existence and cross-transference of deceased co-workers’ comments concern- the fiber and hair evidence was crucial to

1182 such AEDPA sanctions the believe do not allega- case,” Petitioner’s the State’s the 2254(d)(1); See 28 U.S.C. interference. and hair planted officers police that tions 419, 514 U.S. Whitley, v. Kyles materi- see also be “would evidence, proved, fiber 490 L.Ed.2d 131 456-58, 115 probability a reasonable creating al,” thus (recognition, dissenting) (Scalia, J. would trial Petitioner’s of the result that defer- our to AEDPA-mandated prior I understand As even different.1 have been statutes, factual accu- this responsibility ence, “that the federal under role cases, or in other evidence cases as capital the in racy, reevaluate not to is court ju- judges conclu- trial court’s Oklahoma elsewhere—with the rests second-guess courts, and the lower simply determine rather, ries, appellate sion, must state but reasonably courts”). the Oklahoma federal whether constitu- federal appropriate applied to delve Notwithstanding my hesitation or evidence the facts to standard tional there ex- believe further, simply not do I presented. the disclosure probability reasonable ists a of Crimi Court Oklahoma It clear the defense is to the statements Hawkins’ of Mr. the same precisely applied Appeals Peti- nal of the outcome changed have would materiality evaluate legal standard undis- materiality of trial. tioner’s of evidence proffered the Petitioner’s of “must be evalu- evidence favorable closed that samples as fiber hair and planted record.” the entire of context in the ated Supreme States United by the applied 97, 112, 427 U.S. Agurs, v. States United Hawkins’ considering Mr. After Court. (1976). “It 49 L.Ed.2d 96 S.Ct. of Criminal Court affidavits, the Oklahoma show enough to simply not that, “evaluated when concluded Appeals allowed have would evidence undisclosed record,” Mr. entire of context destroy weaken, even or the defense material,” “not were statements Hawkins’ or witnesses prosecution particular probabili a reasonable “create did which evidence prosecution of items be would outcome trial’s ty Kyles, relates.” undisclosed State, P.2d Moore changed.” (Scalia, J. dis- 115 S.Ct. denied, 516 cert. (Okla.Crim.App.), demon- must The Petitioner senting). L.Ed.2d 881, 116 S.Ct. evidence, all the of “in light strate benefited might have we Although vio- Brady by the untainted including that of discussion more extensive from jury probable that reasonably lation, it is compared that evidence of weight relative doubt a reasonable entertained would view, the evidence, my to the rest (citing Id. guilt.” regarding un Appeals of Criminal Oklahoma Bagley, 473 U.S. States United rule the correct applied questionably (1985); L.Ed.2d its err unquestionably did not law 2392). 112-13, 96 S.Ct. Agurs, state (cid:127) of Mr. Hawkins’ characterization statements Hawkins’ extent Mr. To this disposition its ultimate ments in- knowledge personal reflect beyond delve To issue. fact-dependent investigation the detectives’ tegrity this court’s to substitute analysis is only that death, he states Gilbert’s Ms. of Petition the outcome toas speculation home funeral to the returned detectives opinion considered for the er’s samples to obtain occasions separate I three Appeals. Criminal Oklahoma that, “if, the [dis extent only and to ery petitioners habeas my experience, most his discre the exercise judge which, court] would trict proved, allegations make grants leave good shown conviction cause their tion and for change sentence, the outcome 6(a), so, '‘ma Rules Rule be considered not otherwise.” thus could but do Cases; however, quality Few, La present also see Governing terial.” Section to war Gibson, sufficient quantity of evidence and/or Fevers this reason It relief. Cir.1999). rant habeas to discov is entitled federal

H83 pubic, victim’s scalp hairs, and limb that they should plucked instead of

cut the hairs time, the first they up

took to two and one-half hours to obtain

additional evidence on the third visit. He

further claims the hair samples were un-

doubtedly affected by the embalming pro-

cess, and he open witnessed an window at

the Petitioner’s home two occasions af-

ter the detectives’ second and third visits

to the funeral facts, home. These even accepted true, as simply do not constitute material to support Petitioner’s

claim police planted evidence. As the points out,

majority the remainder of Mr.

Hawkins’ statements reflect his recollec-

tion of a now deceased co-worker’s com-

ments concerning the co-worker’s alleged

surveillance of the detectives’ activity fol-

lowing their second visit to the funeral

home. Here again, even accepting this

obvious hearsay true, evidence as it simply

does not my undermine confidence in the

outcome Petitioner’s trial.

For all reasons, these I would affirm the

district court’s denial of habeas relief on

Petitioner’s Brady claim.

UNITED STATES of America,

Plaintiff-Appellee,

Alfred Andre DICKERSON,

Defendant-Appellant.

No. 98-6452.

United States Court Appeals,

Tenth Circuit.

Oct. 20, 1999.

Case Details

Case Name: Moore v. Gibson

Court Name: Court of Appeals for the Tenth Circuit

Date Published: Sep 28, 1999

Citation: 195 F.3d 1152

Docket Number: 98-6004, 98-6010

Court Abbreviation: 10th Cir.