Oken v. Corcoran
220 F.3d 259
4th Cir.
2000
Check Treatment
Docket

*1 scribing etiology pneumoconiosis as irreversible”);

“progressive and OKEN, Turner Steven H. Petitioner-Appellant, Elkhorn, 7-8, 428 U.S. at as x-ray well as the -in this case Thomas CORCORAN, Warden of the indicating progression in the severity of Adjustment Correctional pneumoconiotic the miner’s symptoms Center and the Penitentia from onward. The ALJ’s is “later ry; Joseph Curran, J. Jr., Attorney imposed better” rule was not mechanically General of the Maryland, State of Re or arbitrarily, applied but was in the con spondents-Appellees. text of record in the later x-rays which were not inconsistent with the earlier ones. No. 99-27. Director, Lane Hollow Co. v. Coal Cf. United States Appeals, OWCP, (4th 137 F.3d 803 n. 6 Cir. Fourth Circuit. 1998) (rejecting “later better” rule when evidence indicates improved, that condition Argued May deteriorated, time); rather than over Ad July Decided Director, OWCP, kins v. 958 F.2d 51- (4th Cir.1992) (same).

Eastern argues Coal also that the improperly upon relied

ALJ a dictionary to

discern the meaning of the term “massive” (B) in prong used of the statute and

regulation. Congress Because chose to

use the word ordinary “massive” its

sense without giving precise it a statutory definition,

or medical there can be no harm having the ALJ’s consulted the dictio

nary to find equivalent meanings for the

word. As we emphasized, any such

definition must applied so that the term

“massive lesions” will describe the same

condition that would be disclosed appli (A)

cation of the prong standard based x-ray opacities. size of case, In this no see indication that the ALJ’s use dictionary definition resulted in an as

sessment the autopsy evidence that was

at odds with a interpretation correct

statute. reasons,

For the foregoing we affirm the

decision the Benefits Review af- Board

firming the ALJ’s awarding order benefits

to Pearl Scarbro.

AFFIRMED

OPINION LUTTIG, Judge: Circuit Howard Petitioner-appellant Steven sentence Oken, under Maryland inmate court’s death, from the district appeals 28 U.S.C. under application denial corpus. Oken § for a writ of habeas alia, claims, the state inter were constitu- dire voir Morgan v. Illi- tionally inadequate under nois, *4 he surren-

L.Ed.2d criminal testify at the right dered his trial reliance phase of responsibility court was from on advice v. United under Simmons erroneous 967, 377, States, 88 S.Ct. (1968). Because we con- L.Ed.2d correctly up- the district clude rejec- Appeals’ Maryland Court held the by claims advanced these and other tion of Oken, judg- we affirm district for a writ petition denying Oken’s ment corpus. habeas Bennett, Ben- Fred Warren ARGUED: Greenbelt, L.L.P., Mary- Nathans, &nett I. Bosse, land, Appellant. Ann Norman for in 1991 to death was sentenced General, Ap- Attorney Criminal Assistant jury for the murder County a Baltimore Division, Attorney Gen- of the Office peals earlier, Gar- years Four Dawn Garvin.1 Baltimore, Appellees. eral, Maryland, for by her corpse been found naked had vin’s Davis, Davis Christopher M. BRIEF: ON apartment, her bedroom of in the father D.C., Appellant. for Davis, Washington, & wounds to her gunshot two contact Jr., Curran, Attorney General Joseph J. from her protruding bottle Division, head Of- Appeals Maryland, Criminal from handgun seized A .25 caliber vagina. Baltimore, General, Attorney of the fice later determined was Oken’s bedroom Appellees. for Maryland, piece and a weapon, murder be the the crime from scene rubber recovered WILKINSON, Judge, and Chief Before More- shoes. tennis Oken’s MICHAEL, was traced Judges. Circuit LUTTIG over, neighbors identi- of Garvin’s several attempt- person who as the Judge fied Oken opinion. by published Affirmed residences under entry their gain ed to in which Chief opinion, wrote LUTTIG e days prior pretenses a few various false joined. Judg Judge WILKINSON review, murder. On Garvin’s concurring opinion, wrote MICHAEL affirmed Appeals Court of but Part II.A. concurring in all degree for first murder convictions Oken’s concurring in the opinion and majority offense, as well as degree sexual and first judgment. Maine, Ward. Lori motel clerk of murder- separately convicted 1. Oleen sister-in-law, Hirt, well as a Patricia ing his death, his sentence of precedent but reversed his decided, that decision conviction and for burglary.2 sentence See legal reaches conclusion or a result State, 628, Oken v. 327 Md. opposite A.2d to and irreconcilable with that (“Oken (1992) I”), denied, cert. precedent reached that addresses U.S. 113 S.Ct. 122 L.Ed.2d 700 the identical issue. review, On state collateral Ma — Williams, 143 F.3d at 870. See U.S.

ryland Appeals again rejected at —, 120 S.Ct. at 1519 (holding that the challenges to his conviction and preceding interpretation “accurately re sentence, affirming the lower court’s denial flects th[e] textual meaning” of the word petition of Oken’s post-conviction for relief. “contrary”). The Court then restated the State, Oken v. See 343 Md. 681 A.2d governing standard in terms, the following II”), (1996) (“Oken denied, ert. c which correspond closely preced with the sentence, ing and to which we of course (1997). Oken then filed an application for adhere in reviewing Oken’s'claims: a writ corpus of habeas in federal district Under “contrary clause, to” a federal court, pursuant § to 28 U.S.C. 2254. The habeas court may grant the writ if the district court application denied Oken’s state court arrives at a oppo- conclusion a "writ of habeas corpus and subsequently site to that reached this Court on a his motion denied for reconsideration. *5 question of law or if the state court decides a case differently than this II. Court has on a set of materially indistin- To determine whether the Maryland guishable facts. Appeals’ rejection of Oken’s Id. at 1523. The Court upheld also the claims “resulted in decision that was following interpretation of the “unreason- to, contrary or involved an unreasonable application” able clause we set forth of, application clearly established Federal in Green: law, as determined Supreme the Court represents [A] decision an “unreason- States,” of the United 28 U.S.C. able application precedent of’ only when 2254(d)(1), § apply the standard re of applies decision a precedent in a set view forth Supreme the Court in — context different from the one in which Williams v. Taylor, —, —, U.S. precedent was decided and one to 1495, 1523, L.Ed.2d which of legal extension principle (2000), of which with exception one affirmed precedent reasonable, is not when this court’s interpretation section that decision apply fails to 2254(d)(1) principle in French, Green v. 143 F.3d precedent of a in a context where such denied, cert. unreasonable, failure is or when that S.Ct. Specifi recognizes decision the correct principle cally, the Court affirmed the following in from higher precedent, but terpretation of the “contrary to” clause unreasonably applies principle to that we set forth in Green: the facts before it[.] [A] decision is “contrary precedent to” when, — only either through a decision of Williams, 143 F.3d at 870. See pure application law or the at —, of law to (holding S.Ct. at 1520 that the facts indistinguishable in any material preceding interpretation was “generally way correct”).3 from those on the basis which the The Court then restated the 2. Oken’s former conviction and sentence for application precedent unreasonable ... [ ] burglary, set appeal, aside on direct are not at when applies precedent that decision in a issue this case. context different from the in which one precedent was decided and one to which ex- did, however, 3. The Court open leave legal principle tension precedent of the question of represents whether "a decision an to “inquiry” sufficient terms, of an quirement following standard governing who, to prior even jurors identify “those in re- also adhere of course which we chief, predeter case the State’s claims:

viewing Oken’s impose ] mined ... whether [ application” the “unreasonable Under Spe 2222. penalty,” id. may grant clause, a federal habeas that, though even cifically, Oken contends court identifies if the the writ state potential of the asked some judge, the trial principle from legal governing correct the initial follow-up questions, jurors unreasonably but Court’s decisions every member propounded to the facts principle applies identify inadequate jury panel were case. prisoner’s jurors who would need potential all of at 1523. Id. follow-up questions order to be asked holding that adopted our also The Court Morgan. dictates of satisfy the is inquiry application” “unreasonable de- proeedurally claim as reject this We Green, one, 143 F.3d at see objective alternative, faulted, and, in on its mer- (“the corpus should writ of habeas its. decision court’s] if state [the ... [ ] issue ap objectively unreasonable upon an rests principles new

plication of established added)). Nevertheless, it (emphasis facts” claim reject Oken’s We courts that state rejected our statement defaulted because failed procedurally fed unreasonably apply clearly established appeal this claim on to raise “interpret[ they ] only when law eral a matter of it as thereby I waived that rea a manner such law “in apply[ ]” because, matter of law, as a state state unreason agree all jurists would sonable law, special show circum he failed to Green, able,” 143 F.3d waiver. See Oken excusing this stances *6 tend to “would this ground that statement that satisfied 36-38. We are A.2d at 681 by focusing courts federal habeas mislead that, requiring rule procedural this state subjective inquiry on a attention their circumstances, first issues special absent one,” objective on an rather than review is both “inde on be raised — at —, Williams, 120 S.Ct. at U.S. required by “adequate,” as and pendent” rejected refer the Court Although 1522. 722, 750, Thompson, 501 U.S. v. Coleman in jurists” conduct to “all reasonable (1991). ence It 2546, L.Ed.2d 640 111 115 S.Ct. inquiry, application” “unreasonable ing the “consistently it or is “adequate” because is to have the Court thus understand Mississippi, v. Johnson regularly applied,” holding that categorical our affirmed 1981, 587, 100 578, 108 S.Ct. 486 U.S. See objective one. is inquiry relevant (1988), by Maryland courts. 575 L.Ed.2d supra. 136, State, Md. See, v. 329 e.g., McElroy 1070, (1993); v. 1068, 1075 Smith A.2d 617

A. 4 Md. Warden, Penitentiary, Maryland (1968), 897, 550, cert. 898 243 A.2d App. court district argues that Oken 393 Maryland, v. nom. Smith denied sub on his claim him relief denying in erred 470, 451 989, 21 L.Ed.2d U.S. 89 S.Ct. ques- dire voir the state that Director, (1968); Patuxent Insti Anglin v. inadequate un- constitutionally were tions 532, 564, tution, A.2d 533 232 719, Md.App. 1 Illinois, 112 v. Morgan der v. (1967), Anglin nom. (1992), sub cert. denied 2222, be- 492 119 L.Ed.2d 164, 873, 19 88 S.Ct. 389 Maryland, U.S. satisfy Morgan’s re- they failed cause may perhaps cor holding be reasonable, though th[is] decision that fails when [or] ís not rect,” require "[t]oday's does not us case precedent in a principle of a apply the — is, Williams, unreasonable,” it fact whether in decide” such failure is context where at —, 870, S.Ct. at 1521. Green, 120 finding U.S. "[ac- that at 143 F.3d

265 156 We are satisfied 37 (citing Maryland, L.Ed.2d also Curtis v. 284 Md. 132, procedural sufficiently 464, (1978)). bar “in- this 395 A.2d law, dependent” though of federal even of Under rule Coleman v. Appeals, it, Maryland applying Court of in Thompson, we are therefore barred from Zerbst, v. referred to Johnson U.S. reviewing the Morgan merits of Oken’s 458, 1019, 58 S.Ct. 82 L.Ed. 1461 claim, unless has demonstrated that Maryland since the court’s decision does [this “failure consider will claim] “fairly appear primarily not to rest on result in a miscarriage jus fundamental of law or to be federal interwoven feder- tice” or that “preju sufficient “cause” and Coleman, 735, 740, law,” al U.S. at procedural dice” exist to excuse this de S.Ct. 2546. The rule issues must first Coleman, fault. appeal, be on direct on which raised has demonstrated neither. Maryland court its based decision He no argument makes that the failure to waived, claim is itself consider his will in claim result clearly a state-law rule. See cases cited justice.” “fundamental miscarriage And supra. Admittedly, the Maryland court only “cause” that has advanced did look federal law the ante- making procedural for this default—the ineffective cedent determination waiver need appellate assistance of his Oken I coun “intelligent knowing.” Because proeedurally sel—was itself' defaulted be Maryland part has caselaw relied any cause Oken failed to make mention of v. construing scope Johnson Zerbst in it in opening Maryland brief 645A(c)’s § Art. Md.Code “intelli- Appeals II. See Oken standard, see, gent waiver knowing” 5; 681 A.2d at 36 n. see also Health Servs. e.g., McElroy, Mary- 617 A.2d Cost Review Hospi Comm’n v. Lutheran land did look court to federal law deter-. Inc., Maryland, tal 298 Md. mining that this waiver standard did not (1984) A.2d (holding issues Nevertheless, that, apply. say we cannot brief, only reply raised alone, virtue of this fact brief, waived); opening are Federal Land primarily on “rest[s] court’s decision fed- Baltimore, Esham, Bank Inc. 43 Md. eral law” is “interwoven with federal (1979) (same). App. A.2d law.” To the extent any And Oken has also failed to make making look to law in did federal showing “prejudice” “cause” to ex antecedent determination that the waiver *7 procedural Thus, cuse this last default. be “intelligent knowing,” need not and the alleged the ineffective ássistance of Oken’s court’s reliance federal law limited on was appellate counsel cannot serve as “cause” aspect Morgan to one of the holding and to Mor excuse Oken’s failure raise his precedents applying state-law John- gan appeal. on direct See Edwards claim son ’s dicta “fundamental constitution- — —, —, Carpenter, 120 may al rights” only intelligently waived 1587, 1592, S.Ct. knowingly, and 304 U.S. at Consequently, reject Morgan we Oken’s And, 1019. importantly, Mary- more the defaulted, proeedurally claim as and thus primarily land court did not to feder- look need reach we not the merits of this claim. making al law in this antecedent determi- Rather, nation. it based its determination large part on premise the state-law if we mer Even were to reach-the Morgan

the failure to a claim on raise claim, its of would still appeal is the sort of “tactical deci- deny ground sion of counsel” Oken relief on courts because have, law, rejection Court as matter of state construed the of Appeals’ to,” falling scope “contrary as outside the intended of of his claim not 645A(c). II, of,” application section See Oken A.2d at an Mor- 681 or “unreasonable 266 jury pan of the every member pounded initially asked of questions The four

gan. penalty to the death referred explicitly were as el jury panel every member juror’s potential whether and asked follows: were penalty the death about feelings feelings, strong any have you Do [1.] denied, 520 U.S. cert. “strong”), other, to the regard with way one or (1997). More L.Ed.2d 179 S.Ct. penalty? death meaningful differ over, any we fail to see attitude, re- your you Do feel that [2.] have you “Do question ence between pre- penalty, would the death garding penal death in favor of the strong feelings impair you from substantially vent or apparently concedes which Oken ty?”, impartial decision fair and making a Br. at Appellant’s adequate, see would be guilty not or is the Defendant whether 878), at Tipton, 90 F.3d (citing 15-16 presented on the evidence guilty, based you here—“Do asked question first to the as instructions Court’s way or feelings, one any strong law? penalty?”. other, death regard attitude, regard- you your feel Do [3.] questions, if read, initial four Fairly or prevent penalty, would ing the death answered, have enabled would truthfully making impair you from substantially whether a to determine the trial court whether decision on impartial fair the death feelings about juror’s potential criminally or was not the Defendant substantially prevent or penalty “would insanity, based by reason of responsible his duties impair performance and the presented on the evidence instructions with his juror in accordance on the law? instructions Court’s oath,” at Morgan, 504 U.S. and his attitude, re- your you feel that Do [4.] omitted). (citation Conse S.Ct. prevent garding court had if the trial even quently, from sen- impair you substantially addi jurors potential several of asked Defendant, upon the based tencing an individual follow-up questions on tional in- and the Court’s presented here, still basis, we would court did as the applica- as to law which structions four that the initial be satisfied ble? panel jury every asked of member ques These at 681 A.2d 38-39. to satisfy sufficient were themselves fairness “general not the sort tions were suf “inquiry” requirement Morgan’s, questions” the law and ‘follow who, jurors even “those identify ficient Morgan, inadequate held Court chief, pre case in prior to the State’s 2222; at see id. at S.Ct. impose ... whether [ ] determined (“Do any reason you know S.Ct. 2222; 736, 112 S.Ct. penalty,” id death impartial?”; fair cannot be why you (“The also id. see sides a fair give can you feel both you “Do dictate a ... ] does [ Constitution trial?”). Rather, referred they explicitly dire, only that the voir but catechism for *8 asked whether penalty and impartial jury.”).4 be afforded defendant feelings about juror’s potential Compare “strong.” were death B. 861, 878- F.3d Tipton, 90 States United trial court argues Cir.1996) (4th “the district (holding that 79 any testimo him that erroneously advised penalty attitudes into death inquiry responsibili criminal provided at the ny he dictates of satisfy the sufficient” during him against be used ty phase could pro only question Morgan, where argument, at oral as conceded suggestion that the reject 4. We also ques- crime-specific voir dire jurors require potential required does not to ask court was automatically impose the they would tions. whether because, cases rape-murder penalty in death phase sentencing to,” that this errone “contrary or an applica “unreasonable ous advice misled him of,” into surrendering Simmons tion because, crimi right testify his at responsi the criminal nal responsibility phase been tried to the bility phase of his trial.5 Oken contends jury, opposed to the judge sitting with that the court’s advice was erroneous be out the jury, then it would not have been cause, States, under Simmons v. United to,” “contrary or an applica “unreasonable 967, 19 88 S.Ct. L.Ed.2d 1247 of,” tion Simmons to hold that.any testi (1968), any testimony that he gave at the mony that Oken gave at the criminal re criminal responsibility phase could not be sponsibility phase could be against used against used him at the later sentencing him at the later sentencing phase, and phase. because we see no reason why a different result should simply obtain because the In making claim, cannot, last criminal responsibility phase was tried to not, and does directly rely upon the stated the judge sitting without the jury. holding of Simmons “that when a defen- dant support testifies in of a motion to Had the criminal responsibility phase suppress evidence on Fourth Amendment been tried to the jury, it would not have grounds, his testimony may not thereafter to,” been “contrary or an “unreasonable be against admitted him at trial on the application of,” Simmons to hold that any guilt issue of unless he makes no objec- testimony that gave at the criminal tion,” at U.S. 88 S.Ct. 967. Rath- responsibility phase could be against used er, he relies only upon broadly worded him at the later sentencing phase because rationale by offered the Simmons Court the Supreme has, post-Simmons, Court for its holding namely, that “it [is] intol- — consistently upheld and assumed the valid erable that one constitutional right should ity of capital-murder bifurcated proceed be surrendered in order to assert ings in which the jury same hears the another,” id. rationale, Based on this evidence at both guili/innocence that, Oken argues unless his at testimony sentencing phases without being instructed the criminal responsibility phase is inad- testimony defendant’s at against missible him at the sentencing guilt/innoeence phase may not be used phase, right testify at the criminal against defendant the sentencing responsibility phase would “have to be sur- See, e.g., phase. Oklahoma, Romano v. rendered order to assert” his Fifth U.S. 114 S.Ct. L.Ed.2d Amendment right not to compelled (1994) (assuming validity of such incriminate himself at the later sentencing proceeding); Buchanan v. Kentucky, phase. 402, 417, U.S. 107 S.Ct. 97 L.Ed.2d We that Maryland (1987) conclude Court of 336 (reaffirming “that the State’s rejection Appeals’ of this claim was not in háving interest single jury decide all 5. The responsibility phase, criminal which the Court Oken elected to have by decided the trial "declared that its earlier decision in Simmons judge sitting jury, without the followed the strictly protection limited to the of a guih/innocence phase, by which was heard testimony hearing defendant's in a on a mo- jury, preceded sentencing phase, suppress tion to alleged to have been which was jury. heard the same obtained in violation of his constitutional I, rights,” Oken A.2d (citing at 263 concluding In that the trial court did not McGautha, 211-12, run afoul of advising Simmons Oken that 1454). question To avoid the of the continued any testimony gave at the criminal respon- *9 authority of in McGautha the wake of its sibility phase against could be used him at the vacatur, partial uphold we the sentencing later phase, the court's decision the trial that reasoned that court’s advice California, in McGautha v. 402 183, did 1454, run U.S. not afoul of Simmons on S.Ct. different L.Ed.2d 711 grounds. part in grounds vacated on other sub Ohio, Crampton 941, nom. v.

26 itself, was jury. And that choice which capital proper,” trial was the issues in a law, only Md. R. any instructing provided for for state see intimating need without 4-314(b)(5)(B), the testimony in did not involve jury the defendant’s Cr. P. the that phase may right, not used a constitutional guilt/innocence the be exercise of federal n (reaffirm Lockhart, sentencing supra i the against the defendant see cited 162, McCree, ing Gregg uphold v. phase); Lockhart U.S. the Court’s decision (1986) 1758, under ing capital sentencing plan 90 L.Ed.2d Georgia’s (“We upheld against jury constitutional “the same must sit both have which capital trial” Georgia sentencing plan phases capital a bifurcated murder attack the jury to first provided that the same must sit the defendant elects have the which once added)). capital (emphasis mur phases phase jury in both of a bifurcated tried to a trial,” require not that and which did der jury

the instructed that the defendant’s be C. testimony guilt/innocence phase may in the in is argues in the Oken next there against not be the defendant used to sustain his conviction Georgia, 428 sufficient evidence phase); Gregg sentencing 190-92, degree offense. And be 96 S.Ct. first sexual U.S. (1976) (plurality opinion); cause state obtained (White, 207-08, only upon circum aggravating based 428 U.S. at 96 S.Ct. Indeed, while J., that Oken murdered Garvin concurring judgment). stance to first committing attempting or commit a suggested the Court has never even her, against degree sexual offense Consequent need for an instruction. such may lawfully that he not be exe never contends ly, although squarely the Court has No rational trier of fact could have jury need be instructed cuted. held not beyond him testimony guilty in the found reasonable the defendant’s offense, first phase may degree used doubt of sexual guilt/innocence evi sentencing argues, in the because there was insufficient against the defendant say vagi alive when her it would be dence that Garvin was phase, we cannot to,” na “contrary penetrated was bottle. applica “unreasonable of,” hold, the fact that the given particular focuses on tion so Simmons no upheld cap medical examiner found repeatedly the Court has state area, which, Oken groin have in trauma to Garvin’s proceedings ital-murder And, not alive again, argues, suggests that Garvin was cluded such an instruction. reason, vagi no nor at oral when the bottle was inserted into see could Oken' reason, any why na. argument a dif suggest

ferent result should obtain because simply “[Vjiewing disagree. the evidence We responsibility phase tried the criminal was prosecu- most light favorable jury. sitting judge without tion,” “rational trier of fact could de- [first found the essential elements of

Even if different result should beyond responsibility gree sexual a reasonable offense] obtain when the criminal doubt,” Virginia, 443 phase sitting to the without Jackson v. judge tried 2781, 61 L.Ed.2d 560 jury, still does not have a color- clothing found [...] claim that he surren Because Garvin’s able “ha[d] floor, living at the criminal strewn about the room because right testify ]” der! out, turned pants her were found inside responsibility phase “in order assert” her was still fas- because brassiere privilege against his Fifth Amendment side, ripped a rational compelled tened but self-incrimination the sen- counsel, because, trier fact have inferred that Gar- phase could tencing assisted of- perpetration vin of the sexual responsibility he chose resisted to have criminal at the her and thus alive phase upon fense judge sitting tried to the without

269 circumstance, a mitigating that the offense was committed. See as time that Oken I, impor- A.2d 612 at 275-76. More a recognized Oken suffered from disor- mental II, police recovered from Oken’s tantly, der. See Oken A.2d at 47. To in handwriting a list Oken’s implement home a strategy, such defense which following pads; “gauze persuading included items: succeeded in at least one mem- chloroform, [...], (form ... sock and gag; jury, [ ber of see J.A. ] contain- dildos; vibrators,” tape, ... ing jury’s “findings [ ] adhesive and sentence determi- list, I, nation,” A.2d at 276. From this in which the jury certified rational factfinder could have inferred of us” “[o]ne or more found sexual sadism planned perpe- mitigating circumstance), Oken had restrain and to be a trial victim; establish, upon trate a sexual offense a live counsel had through the testi- drawn Payson Berlin, such a factfinder could have then mony of Drs. factu- the additional inference that did al diagnosis bases for their sexu- Oken’s Moreover, sadism; plan. fact out such a al carry diagnosis such a would not have persuasive rational factfinder could have concluded been a mitigating factor signs the absence of of trauma to Payson fully Drs. Berlin not explained groin Garvin’s area is not In jury. Payson inconsistent it to the preparing Drs. having the bottle been into Gar- provide inserted explanation, Berlin to such an vin’s while alive vagina Garvin was still trial could not specifically counsel have gun because Oken wielded a at the time instructed doctors to avoid characteriz- incurable, and could have therefore Garvin ing coerced sexual sadism as it since cooperating into with the improper insertion would have been in- to have bottle. specific structed the doctors as to the con- testimony. tent of their See Oken

D. alia, (citing, A.2d at 47 inter Earp, State v. (1990) 319 Md. A.2d argues that counsel his trial that, attorneys (cautioning preparing constitutionally failing ineffective in witnesses, they should suggesting “avoid adequately prepare wit expert two testimony to the witness what his or her nesses, Berlin, Payson Drs. who testi be”)). should And preju- Oken was not fied on sentenc direct examination at the diced, even if ignored because counsel had phase that ing Oken suffered from “sexual by Maryland’s highest this admonition sadism,” which, they a mental disorder for court, prosecution certainly almost testified, there is presently no cure. J.A. elicited, through cross-exami- 663, 672, prevent 759. Counsel’s failure to nation or direct examination of other ex- experts describing from him as an witnesses, pert description similar sadist, incurable sexual “fell argues, prospects for sad- treating current objective sexual below an standard of reasonable ism. prejudiced eyes ness” and him in jury, Strickland v. Washington, E; 688, 694,

L.Ed.2d 674 unpersuaded by We are also disagree, and confident We we are other claims ineffective assistance of that, claim, rejecting First, counsel advanced Oken. Appeals did not decision not constitutionally render a counsel was ineffective to,” to, “contrary object that was or “an unreason failing to move for a mistri of,” application on, able Trial Strickland. al certain based remarks made presentation prosecutors counsel’s of evidence of in their be closing argument Oken’s sexual sadism did not it have been fall below cause would futile for counsel so, objective given standard of be reasonableness to have done the “wide latitude” prove, cause it a reasonable attempt making closing argu- accorded counsel *11 substantially out value is probative given its ments, I, at and 612 A.2d Oken prejudice, unfair of danger remarks, weighed in con- read prosecutors’ that issues, misleading the of the com- confusion improper text, an not constitute did ]”). Further, show cannot Oken jury ... testify [ or other- failure to on Oken’s ment advice by counsel’s prejudiced was that he upon constitutional infringe Oken’s wise in because, pled guilty not had he even rights.7 certainly Maine, almost would have he Second, not con trial counsel was to his trial prior in Maine been convicted Oken advising in stitutionally ineffective Maryland, in see Oken murder for Garvin’s to Lori plea guilty enter a conditional (“[Oken]’s [post- own II, A.2d at 50 argues Oken in Maine. murder Ward’s case expert admitted conviction] coun because ineffective that counsel was overwhelm in Maine was against [him] him that the Maine incorrectly advised sel in of his arrest at the time ing.”), .since against admissible would not be plea guilty of Maine’s the commencement Maine and in and because counsel Maryland, in him him, Maryland had against proceedings that, In under the him correctly advised in him charges against formal yet not filed (“LAD”), Detainers Agreement terstate murder, see J.A. with Garvin’s connection him plea would shield guilty the Maine 851. by virtue of Maryland’s death from Third, not trial was consti counsel sen his Maine having to first serve his sentencing at tutionally ineffective any Ma imprisonment before tence of life present sufficient evi failing in phase Oken could be satisfied. ryland sentence parole ineligibility under this of Oken’s prejudiced by dence was contends ap jury adequately The because, ad Maine law. absent such advice erroneous parole ineligibility of Oken’s prised in vice, pled guilty he would of into evidence the introduction through Maine, eligible would have been and thus report, investigation presentence at mitigating factor potential for another had been sen tri “showed Oken which of his sentencing phase imprisonment with in Maine to life convic tenced prior of namely, absence al— opening counsel’s parole,” through violence, out see Md.Code for of tions crimes closing argument. See statement reject Oken’s 413(g)(1). § We Art. 41; see, II, 822- e.g., J.A. 681 A.2d as claim meritless. (“His was life punishment [in Maine] did performance Trial counsel’s already jail in The man is parole. without objective an standard not fall below days, life of his prison in a rest at the time because reasonableness life means without parole, without guilty plead counsel advised anywhere. you If parole. going He isn’t Maine, knowing the way no “there was [...], go guilty he would him not found enter two states would Governors spend the to the state Maine back trumping the agreement into” executive there.”). jail his life rest of IAD, proceeding they did after as Fourth, con counsel by any Maine, nor was it see J.A. failing to adduce ineffective in stitutionally plea “certain means substance of Oken’s sufficient evidence [Maryland] proceeding,” admissible the Garvin murder. see, at the time of 50; e.g., Md. R. abuse A.2d presented (“evidence if substantial Counsel may be excluded Evi. 5-403 evidence, upon and called prosecution's indirectly to Oken prosecutors referred 7. The ''monster,” personal upon de- "kind of to make same jury commented trial, during fighting ''[t]he stated that Per- meanor that U.S. soldiers sacrifice” through things his attor- making defendant said some time of the at the War were Gulf sian address,” wanted to ney opening 197, 245, that I J.A. trial. dispute any” "really doesn't noted “through abuse gating Oken’s substance the testi- evidence which was introduced at ex-wife, father, mother, mony of Oken’s trial and that which Oken now contends Berlin, acquaintances, and ... Dr. Dr. [ ] should have been introduced. *12 Dr.

Payson, Spodak.” 45; see, 545-49, 557-59, e.g., A.2d at J.A. CONCLUSION 603-19, 640-43, 723-24, Any 780. further The judgment of deny- the district court evidence of his substance abuse would ing Steven petition Howard Oken’s for a nothing been more than cumulative.8 writ of corpus habeas is hereby affirmed. Finally, even were we to find one AFFIRMED or more purported of these instances of objectively performance by unreasonable MICHAEL, Circuit Judge, concurring: such, individually counsel to be either cumulatively, we still say could not I concur in the judgment and in all but that, a probability “there is reasonable but part II.A. of majority opinion. As for errors, unprofessional for counsel’s the re H.A., part I agree that proeedur Oken has sult of the proceeding would have been ally defaulted the claim he asserts under different,” Strickland, 466 U.S. at Illinois, Morgan v. 504 U.S. 112 S.Ct. 2052. expert Even Oken’s own testi 119 L.Ed.2d 492 I though fied on cross-examination during the sen come to that by conclusion a different tencing phase: . course than does the majority If we I was told Mr. ap- Oken that he could reach the Morgan merits of the proached the victim apart- outside the claim, I would grant vote to the writ so as ment, if phone, asked he could use the to allow Oken a new sentencing proceed way apartment, made his into her looked ing.

about, door, shut the took out a gun and get asked that she undressed. He I. begin asked her to masturbating. He masturbated. At the same time then he objected Oken’s counsel to the trial get up perform asked her to oral court’s voir dire and requested additional sex on him. pushed He then her back. questions identifying jurors aimed at who her, got top He he tried to have impose penalty regardless intercourse, posi- he did this in different of mitigating evidence. The trial court tions, including anal got up sex. He overruled objection and refused to ask point, kitchen, some went into the questions tendered Oken’s counsel. bottle, brought back a Durkee’s hot appeal On direct represented by Oken was bottle, sauce which he said he inserted lawyer. lawyer different That failed to into vagina. her He made her take the appeal issue, the voir dire believing that bottle in and out. masturbating He was questions actually asked satisfied the at the same time. He became angry Witt, requirements Wainwright because couldn’t reach climax and 105 S.Ct. then he killed her. argument After oral on Oken’s I, 279; A.2d at see also appeal, J.A. 772- but before the Thus, jury 73. decision, had before it an Appeals over- Court of rendered its whelming amount of aggra- evidence of the Supreme United States Court decided vating circumstance of degree Morgan. the first In Morgan the Court held sexual outweigh defendant, offense to both miti- capital upon request, must claims, 2253(c)(2). 8. As to the § remainder of Oken’s deny We therefore a certificate agree claims, with the appealability district court that Oken has as to these as did the court, failed showing to make "a substantial appeal district and dismiss the as to right,” denial aof constitutional 28 U.S.C. these claims. it him leave granted when tance claim Witherspoon”1 “reverse to ask be allowed habeas of the state to deter merits appeal dire in order on voir The would al issue. jurors on the particular mine whether decision following a appellate death counsel impose ways vote ineffective assistance moot, capital according conviction. See therefore claim was appellate Although response in its argued state The Oken. decided, it was Morgan when read appeal counsel had counsel on direct that Oken’s “associate[ ] she did that Oken Morgan claim and waived result, did not seek As a she case.” his claim of ineffective now abandoned on the supplemental brief to file leave In his re- appellate counsel. *13 of assistance issue. voir dire to aban- any intent denied ply brief Oken claim, but Appeals assistance of don his ineffective Maryland the Court After support and in of that argument and his conviction sentence no affirmed offered (1) waiver, denied contended Supreme Oken the States Court As to United claim. certiorari, a filed for petition his claim had not been Morgan that Maryland in circuit petition waived, habeas state and intelligently and knowingly (1) that argued There Oken law; court. under was not waived thus in Morgan failing had violated trial court (2) circum- “special Maryland’s that Witherspoon” questions “reverse to ask be- exception applied to waiver stances” (2) appellate counsel and that on voir dire Morgan deci- Supreme Court’s cause the to raise the failing had ineffective been argument on his down after oral came sion the state contended Although issue. (3) Morgan was and appeal; direct by claim not Morgan his had waived case still on while his new rule decided the state habeas appeal, it on direct raising permitted so he should appeal, direct merits, directly to proceeded court collateral review. raise it on follow-up the trial court’s holding that (on habeas) reject- Appeals The Court ha- Morgan. The state satisfied that his ineffective argument ed Oken’s on to hold court then went beas counsel claim was appellate been con- assistance counsel had not appellate Oken’s discussion, held, that he failing to raise without stitutionally ineffective moot and II, appeal. that claim. See Oken Morgan claim on direct had abandoned Morgan claim at 36 n. 5. The 681 A.2d Maryland Court of petitioned the solely as presented thus was decision of appeal leave to Appeals for error, Appeals proceeded Court and petition In his habeas court. the state waived question whether Oken had to the claim and Morgan of his the merits argued it on by failing raise that claim of error on direct appellate his counsel argued that dissenting, judge one With appeal. direct failing had been ineffective appeal Appeals concluded the Court of Appeals claim. The Court raise that waived Morgan had been issue all raised appeal issues granted leave Maryland’s The court held appeal. in the In brief petition. opening his intelligent” requirement and “knowing merits of argued appeal, habeas circum- only in the same applied waiver claim, the inef- Morgan but mentioned his “knowing intelligent” and stances as only counsel issue appellate fectiveness Zerbst, v. of Johnson standard assert- In the footnote Oken in a footnote. (1938), 1019, 458, L.Ed. 1461 S.Ct. Appeals granted the Court of ed that 391, Noia, S.Ct. 372 U.S. Fay assis- sought on his ineffective the relief " 510, , dire intended Witherspoon voir 391 U.S. “Reverse Witherspoon v. Illinois 1. See 1770, (1968). part of a pro-death With bias on 20 L.Ed.2d 776 to determine S.Ct. Morgan, wheth erspoon permits juror. voir dire to determine 504 U.S. prospective See always refuse to potential juror er a upon conviction. impose the death (1963), see brief, Curtis v. counsel in reply his he would have State, (1978), 284 Md. A.2d preserved claim. that Morgan did not rights create The state had argued waiver before the subject

were to the Johnson/Fay standard. state habeas court and lost because that special The exception circumstances did court first decided the Morgan claim on apply, according to the Ap rejected merits and then Oken’s claim peals, principle because the by announced of ineffective appellate assistance of coun- already clearly established II, (“The sel. See Oken 681 A.2d at 36 Supreme Oklahoma, Court in Ross v. State contended before [the state habeas 81, 108 2273, 101 L.Ed.2d 80 Court, court] and before this that because (1988), State, Bowie v. Oken did not raise this claim on direct 324 Md. 595 A.2d 457-59 appeal, waived.”); it is (Bell, J., id. at 54 State, Hunt v. 321 Md. 583 A.2d dissenting) (recognizing that the state ha- 231-34 See Oken 681 A.2d “found, beas court had if only implicitly, reason, 38. For the same the Court of ‘special sufficient circumstances’ to excuse Appeals rejected argument that he appellant’s failure to raise Morgan *14 was entitled to the benefit of Morgan as a issue on appeal”). Thus, when Oken new rule. filed his opening brief with Maryland Court of Appeals habeas, on he was enti- The Appeals proceeded Court of then to rely tled to on the state habeas court’s the merits Morgan claim and held implicit holding that his. substantive Mor- that “[although questions better could gan claim preserved. words, In other asked,” have been the voir dire conducted since the state habeas court had not found by the trial court was adequate to “life defaulted, the claim Oken had no reason to qualify” State, the jury. See Oken v. argue cause for default in opening his brief (1996) (Oken II). Md. 681 A.2d appeal. on One judge dissented. See id. at 53-59 (Bell, J., state, dissenting). however, The did argue default response

its brief. point, At that Oken was both entitled and obligated to contest II. default, the allegation by of either chal repeat, To the Maryland Ap- Court of lenging waiver itself or offering some peals found issue had record, cause supported by the such as been appeal. waived on direct I agree ineffective appellate assistance of counsel. with majority .that Maryland Baltimore, See Federal Bank Land Inc. of grounds finding Esham, for waiver were v. 43 Md.App. 406 A.2d independent (1979) (“The of federal law and were con- 936 function of a reply brief is stitutionally adequate. limited. appellant The opportuni has the claim is procedurally therefore ty defaulted. duty and to opening use the salvo of his I agree also the only cause for Oken’s original brief to state and argue clearly procedural default was the ineffectiveness point each appeal. his think We appellate of his proce- counsel and that he reply brief respond must be limited to durally defaulted that claim when he to ing points and issues raised in the failed to raise it Maryland (“Due before the appellee’s brief.”); id. at pro Appeals Court of appeal on from the state requires parties cess that all op However, habeas court. I agreé portunity do to new reply asserted issues that Oken required ”); (“The under against them .... reply id. brief law to raise his ineffective assistance claim must do what purports it it do: must opening his appeal brief on respond from the to the points appel raised in the state habeas court. Had actually which, turn, lee’s brief are addressed argued appellate ineffective assistance of originally the issues appel- raised Angelone, v. 2222. See also Yeatts waiv S.Ct.

lant.”). state’s did contest the (4th Cir.1999); Mackall F.3d reply time in his the first for argument er (4th 442, 450-51 F.3d Appeals Angelone, Maryland Court brief, and the Cir.1997). defendant to In order point arguments considered effectively, the voir dire right See abandoned. exercise finding them without not, enough “are questions did at 36. Oken must include 681 A.2d automatical ap venire who that his those however, any argument detect make penalty.” ineffective. vote for death ly counsel been pellate assis at Thus, Morgan, his ineffective he abandoned be the law’ claim not and ‘follow counsel appellate fairness “[G]eneral tance in his the first time Id. See also enough. it for questions” cause he raised are (“As it to raise brief, general but because failed reply id. [ju impartiality, and then.2 fairness even questions on the death views dogmatic rors candor re in all truth and penalty] III. could confident affirmatively, personally spond trial, Morgan issue raised the im fair and views are dogmatic that such court, petition for in his the state habeas partial.”). of the state the decision appeal leave brief, court, opening in his habeas third, second, voir dire fourth The brief, before argument oral reply fair “general unquestionably are habeas. Appeals on law' See questions.” and ‘follow the ness court, court, the habeas The trial im More (listing questions). at 266 ante Appeals each consid- Maryland Court *15 focus on the essen they do not portantly, the merits. claim on ered the ju Morgan: the mandated inquiry tial Nonetheless, de- proeedurally claim is give due consideration to ability to rors’ counsel failed appellate his faulted because sentencing. at The mitigating evidence appeal. And because it to raise however, concludes, that the first majority abandoned default for that the cause any have you “Do question, voir dire mistook habeas counsel when Oken’s other, with way one or strong feelings, for a of review Appeals’ grant Court was suffi penalty?” to death regard de- relief, procedural the rule of grant bias any unconstitutional cient to root out of Oken’s all federal review precludes fault As Oken has disagree. I toward death. majority’s treatment The Morgan claim. questions voir dire the trial court’s argued, there- Morgan claim of the merits venire members who identify failed dictum, that I it is dictum but fore is pen the death automatically impose the voir dire I believe that join. cannot crimes, mur as a such alty particular for insufficient this case was conducted in jurors might be Prospective der-rape. automatically jurors who would identify candor” “in all truth able to answer conviction, penalty upon impose the death views on strong have they not that do time believe penalty, yet at same death right capital A defendant has imposed invariably should be death any juror who “would cause challenge for is committed the murder finding a when after impose death unwaveringly jurors will 733, a offense.3 course of sex Such Morgan, guilt.” instance, brief, might the trial juror answer 3. For reply foot- did in his 2. Oken state not by saying that he does question note, claim for waived penalty, be- strong views on death have appellate counsel. In assistance ineffective in some circum- lieving warranted it is appeal, howev- preserve an issue on order to er, See, e.g., others. not in JA stances while claim; enough simply to assert the it is not (statement K.: “I believe of venire member supporting argument. provide party must used penalty] when should death [the Bank, 406 A.2d at 935-36. Land See Federal (statement of venire necessary.”); JA it's impose a solely vote to sentence based on consider mitigating evidence was never proof the offense itself. “But such mentioned during voir dire. But “[m]em jurors obviously mitigating deem evidence bers of the venire expected cannot be impose to be irrelevant to their decision to divine what attitudes and animosities the penalty: They only the death refuse to court parties and the want to know ’ give any weight such evidence but are also about.... If voir dire is yield helpful plainly saying mitigating evidence is information, themselves not worth their consideration that they must be framed so concrete, as to elicit will not it.” consider Id. at responses.” candid United States v. Tor 2222. The court was unequivocal. res, (7th Cir.1999) (Rov 191 F.3d juror A who would “automatically vote for ner, J., concurring). Stripped of any con the death penalty regard without to the text, the trial court’s unfocused inquiry mitigating announcing an in- into venire members’ feelings about the tention not to follow instructions to death penalty could not reliably identify consider mitigating evidence.” Id. at jurors whose bias in favor of the death juror 2222. Such a is not penalty prevented them from considering just merciless, he is “lawless.” Id. mitigating evidence as required by the question suggested by

The Oken and law. rejected by the trial court was directed A review of the voir dire reveals as precisely identifying ju- toward “lawless” response much. In to the question, “Do rors who would not consider mitigating you any strong feelings, way one evidence: any “Are there or any murders other, regarding the death penalty,” type of murders where no what matter many venire gave members the same am- offered, explanations excuses or you are biguous response: See, really?’ “Not e.g., person responsible would feel 330, 356, 385, 386, JA get penalty? should What are When venire responded members they?” with an Compare Morgan, JA 28. '“Yes,” (trial unqualified or even expres- S.Ct. 2222 sions of support committed the death penalty, reversible error refusing proposed ask voir the trial court question: you frequently dire “If did no more *16 found Derrick than guilty, you would continue with its three “follow the automatically impose vote to the death law” questions, none of which concerned are?”). penalty no matter what the Thus, facts sentencing. persons venire who strong admitted feelings about the death The trial question, court’s first in con- penalty, 375-76, 395-96, 406, see JA trast, vague, was a query unfocused about the death penalty,” “favor[ed] JA be- “feelings” the venire members’ about the enforced,” lieved “it should be JA or penalty. death The inherent ambiguity' of it,” 389-90, were “for JA were no asked question only that was worsened questions about feelings how those would explain pro- court’s failure to to the ability affect their mitigating consider spective jurors they that would be re- evidence at sentencing. Given the num- quired to mitigating consider and aggrava- ber of ting Indeed, ambiguous responses and the evidence at iden- sentencing. answers, tical treatment many yes the venire. and no it members were un- aware that the trial is difficult to believe would be bifurcated that the voir dire separate guilt into penalty phases. conducted here purpose served the re- See, e.g., is, JA 329-30. The obligation quired by Morgan, identifying ju- depends

member B.: "it what the easily might uncompromising crime is es conceal an (statement ..JA of venire member S. invariably -belief that' death is warranted for "maybe” strong feelings she has about infanticides, patricides, murder-rapes, penalty; depends upon the death "it the situa- example. tion"). seemingly respons- These evenhanded informa- no such given trial were feelings the Oken’s strong about whose rors tion. prevent them from penalty would death law. with the in accordance

sentencing in this case dire conducted voir The identify jurors who reliably could dire the voir neither Because penalty invariably impose they would in which nor the context themselves for which the the crimes solely upon based members’ the venire directed' were asked result, I As a was convicted. defendant obligation consider to their attention possibility that such discount evidence, only has cannot this case mitigating jury and voted on Oken’s v. in fact sat States jurors similarity to United superficial unfocused, and Cir.1996). Ambiguous, (4th death. In for his Tipton, 90 F.3d that would any context devoid of the context Tipton emphasized ability to consider to examine their conducted, jurors particu- voir which the dire the voir mitigation, offered jurors were in which the way larly the the central trial violated dire for Oken’s need to consider of the reminded Morgan. The requirement evidence: weigh mitigating conclusion Appeals’ Court explained to first district court [T]he “contrary to” clear thus was was satisfied of- capital if of a guilt juror each precedent. Supreme Court ly established of the stage in a first fense was found were of that decision before If the merits trial, then consider jury would us, the writ of habe grant vote to I would impose the death whether State of corpus and allow the stage which Government a second proceeding. sentencing a second to conduct ag- jury try to convince death while factors warranted gravating try to convince

the defense would mitigation, death that because

jury that this was appropriate, jurors on

then to be decided the court’s of that evidence

basis Against the law.

instructions then asked each background, the BAKER, Wesley Eugene Petitioner- you have juror: “[D]o prospective Appellant, death in favor of the feelings strong juror answered with If penalty?” “No,” on. the court moved unqualified CORCORAN, Warden Thomas R. concluded F.3d at 878. We Tipton, Adjustment Maryland Correctional circumstances,” the all of “[u]nder Jr., Curran, Center; Joseph Attor- J. *17 did not violate dire court’s voir district Maryland, ney of the State General “the (emphasizing Morgan. Id. at 879 Respondents-Appellees. to address logical adequacy question’s No. 99-24. death-penalty impartiali- issue ultimate put, [and] it was context which ty, the Appeals, States Court United un- admonitions that repeated the court’s Fourth Circuit. mitigating the law consideration der 5, 2000 Argued April required”). Whereas factors ex- Tipton were made members in venire 19, 2000 July Decided context particular plicitly aware feelings which their obligation

were deemed relevant—Their mitigating

weigh aggravating members venire sentencing- —the