Spears v. Mullin

liability court, of the debt- note that neither personal bankruptcy affected the the the 32, 414 court, Rec. Where Cong. or.” district nor the parties have ad- clear, however, we text of a statute is the possible impact dressed of the auto- history. legislative need not consult Rat stay § matic under 11 U.S.C. 362. We States, 135, v. U.S. 147- United zlaf to proceed- decline consider whether the (1994) 126 L.Ed.2d 615 ings before the SBE were subject to the (“[W]e history resort to legislative do not effect, stay automatic if so if any, what clear.”). statutory to cloud a text is stay should ques- have. We leave this 505(a)(1) § The text authorizes plainly of tion, others, among bankruptcy bankruptcy court to determine a debt- court to consider on remand. liability previous tax “whether not” or’s REVERSED and REMANDED. adjudicated. ly therefore hold that We

bankruptcy required by is court preclusive give

§ 1738 to effect the state in this liability

tax determination case. bankruptcy power

The court maintains the 505(a)(1) §

under redetermine liability,

Mantzs’ tax but exercise power “Any such is discretionary. SPEARS, number Petitioner-Appellee/ Brian 505(a)(1) is of courts have observed that Cross-Appellant, permissive empowerment estab —as by operative ‘may.’ lished is verb It *, Warden, Mike MULLIN Oklahoma mandatory assump not a directive. Penitentiary, Respondent- State power discretionary tion is with the Appellant/ Cross-Appellee. Bankruptcy Court.” Northbrook Partners (In v. County LLP re Hennepin North Dudley Allen Petitioner- LLP), brook Partners B.R. Appellee/ Cross-Appellant, (Bankr.D.Minn.2000) (citation omitted). If purpose by allowing no would be served relitigate the debtor tax liability, Mullin, Warden, Mike Oklahoma State bankruptcy no obligation court under Penitentiary, Respondent-Appellant/ case, allow him or her to do In so. Cross-Appellee. bankruptcy may, in the exercise discretion, its decline to redetermine the 01-6267, 01-6258, 01-6349, Nos. 01-6354. liability indeed, tax it may Mantzs’ do so — Court of Appeals, United States or all based some of the reasons under Tenth Circuit. judicata lying res doctrine —but it is judicata not barred res consider Aug. ing the tax liability. Mantzs’ III. Conclusion reasons, foregoing

For the we reverse

and remand for further proceedings. We

* replaced Gary Mike Mullin Gibson Warden March Penitentiary of the State Oklahoma effective petition seeking relief from

U.S.C. After and sentences.1 their convictions introduced concluding photographs of trial rendered during stage the second unfair, stage fundamentally sentencing granted district court relief the federal sen- Powell’s death Spears’ from both and oth- tences, denied on numerous but relief con- defendants’ challenging er claims both appeals: nowWe consider four victions. grant court’s appeals the district State sentences, death of habeas relief from the cross-appeal Powell claims. Be- denial of relief the other appeals arise out of the same cause all four issues, present facts and similar we set of ju- disposition. Exercising for join them §§ 1291 pursuant to 28 U.S.C. risdiction Branham, Attorney Assistant Seth S. court’s we take the district view (W.A. Edmondson, Attorney Drew General of the issues affirm.2 him on the of Oklahoma with General OK, briefs), City, Respon- for Oklahoma I denG-Appellant/Cross-Appellee. 21, 1990, evening September On the Bauman, Federal Randy A. Assistant died, age day Thompson Thompson, OK, Defender, for City, Oklahoma Public twenty, twenty-two, age Brian Petitioner-Appellee/Cross-Appellant girlfriend, Hensley, Spears’ then Vickie Spears. cruising Valley, were around Pauls Okla- (Lanita Henricksen Henricksen Mark homa, Thompson’s Spears’ At truck. briefs) Henricksen & him on with alcohol and request, purchased Reno, OK, Inc., Lawyers, Henricksen El began During three the eve- drinking. Petitioner-Appellee/Cross-Appellant they drank cocktail of Kool Aid and ning, Allen Powell. Dudley a gallon jug, milk as well Everclear joined whiskey They and beer. were TACHA, LUCERO, Judge, Before Chief by eighteen, age times various HARTZ, Judges. and Circuit III, age twenty-two, Claiborne Johnson LUCERO, Circuit Judge. Daniels, Mickey none of whom had and Thompson evening. before met in the courts of the Convicted Oklahoma joined after the group, Sometime Powell DeWayne Jimmy murder first-degree of death, began driving the truck because Spears Brian and to Thompson sentenced Dudley During filed a 28 the Spears Thompson and Powell each intoxicated. and Effective 1. Another Claiborne Johnson 2. Under Antiterrorism co-defendant ("AEDPA”), Penalty peti- III, Act Death of 1996 guilty first-degree pled to murder and appeal tioners cannot the denial habeas possibility a received life sentence without under 28 U.S.C. 2254 unless a certifi- relief exchange testimony against parole in for his ("COA”). appealability granted cate of In Spears Powell. and case, granted a on the instant COA was all opinion. in issues discussed they evening, stopped Spears of the at turned to course the truck. told everyone places supply Johnson, to their several refresh listen to to who directed them Later, they decided beverages. alcoholic say not to about anything what had hap- Klondike imbibing to continue at the Cem- pened. Spears then told Hensley and etery, spot. a popular drinking if anyone Daniels that asked them if they had seen Thompson evening, they way cemetery, to Powell and

On say Thompson should had taken them beating Thompson and Spears discussed game to football dropped and them off taking cemetery, his truck. At all game. after the told Spears, exited the truck. Powell

Johnson, and he was going Daniels that to Upon leaving cemetery, group they “jump” Thompson and should first took Hensley home. The remaining 712.) (3 As the join beating. Tr. four then went to the home of Johnson’s road, group along cemetery walked Austin, girlfriend, Lashonda where John- hit the head Thompson in with his Powell they told son Austin that had man killed a blow, Thompson With the first fell fist. to night in self-defense and where ground, lay “moaning” where he and Spears killing. confirmed the After leav- 942.) (4 “hollering.” Johnson began id. house, ing Austin’s Powell and Johnson kicking Powell Thompson, while kicked dropped off and Daniels. Much jumped on Thompson’s and head and later, Johnson took Powell home and even- At point, chest. some Johnson and Powell tually parked Thompson’s truck at an with began hitting Thompson their fists. apartment building. following day, joined beating began also and Johnson was arrested a neighboring Thompson on jumping kicking on the town while in possession Thompson’s possibly head. The beating chest truck and wallet. and Powell were from three minutes. lasted to ten Neither arrested soon thereafter.3 Hensley Daniels nor participated; after trial, examiner, At the medical Lar- Dr. sometime, observing the they attack for ry Balding, that Thompson testified died returned to the truck. head, injury blunt-force result- grabbed After the beating, Spears Pow- ing in a bleeding skull fracture and into arms, produced ell and Johnson their According the brain. to Dr. Bald- knife, they and said that had to kill ing, single have blow could caused the Thompson testify against because he could injury head While he death. did not Each Thompson them. stabbed several know the actual number of blows during stabbing times. Sometime at- head, Thompson’s Thomp- was certain he tack, momentarily Powell returned to son sustained than one more blunt-force truck, Thompson’s Hensley where However, body. Balding blow the Dr. retreated, had told them Daniels John- any of the did believe that blows to the had son stabbed the throat. death, body would have either indi- caused Powell told them that Johnson intended vidually or combination. it, Thompson’s truck Tulsa and take sell Spears that with agreed plan. and Dr. Balding further testified that Powell then returned the crime to scene. Thompson fifty sixty to received knife neck, Powell, head, chest, abdomen, Spears, wounds to his and Johnson subse- body left of quently Thompson’s stabbing, and re- and back. As a result six Hensley held and Daniels were on a materi- lars. twenty-five al-witness bond of thousand dol- stopped attending grade school seventh Thompson’s small intes- of eight to inches his learning Parts of internal due to being other after held back protruded. tine through music, the chest. disabilities, visible and has organs were loved mechani- to as two Smith, were referred Apart ability. what who cal Rachel had known wounds, oth- knife all seven,.testified possible peri-mortem Powell since he was six or post-mor- were inflicted er wounds knife surrogate grandmother that she acted as a fatal wounds Any stab potentially tem.4 him, her when and he minded asked post-mortem. were delivered mitigating factors included do so. Other rehabilitation, youth, Powell’s likelihood of nor Powell testified Spears Neither of at the trial’s first and at the time the crime. any evidence intoxication presented evidence, the on the State’s stage. Based evidence,' jury Based all of the on mur- first-degree of jury guilty found both found, to both and respect with der. murder was Thompson’s espe- second-stage presentation The State’s heinous, atrocious, or cruel cially and incorporating all first- was After brief. murder the two committed the to avoid evidence, presented six stage the State however, jury, arrest or prosecution. Thompson’s body taken photographs be a did find that either would continu- presented Spears two the crime scene. weighing After ing society. threat sister, His Sharlene mitigation witnesses. aggravators mitigating evi- against two Spears dropped testified Flannery, dence, death sentences delivered grade, tenth that he out of in the school Spears for both and Powell. children, child, that he one babysat her has Ap The Oklahoma Court Criminal fight him saw or be so she never (“OCCA”) Spears’ peals affirmed convic someone, hurt or kill angry that he would appeal tion and on direct sentence regularly attended church. that he post-convic for application denied his first Stiger testified that he had John Reverend State, 900 tion relief. P.2d 431 and had Spears’ family ministered denied, (Okla.Crim.App.), cert. He grow up. stated watched 678, 133 L.Ed.2d 527 young man no Spears was a normal with State, (1995); 924 P.2d 778 convictions, influ- prior positively who had (Okla.Crim.App.1996). Spears then filed jail. people county enced the lives petition corpus for a writ of habeas mitigation emphasized Other Identifying at the federal court. several Spears’ youth and intoxication district unexhausted, time crime. of the issues district court proceedings abated federal directed mitigation two presented Powell also Spears to to state court exhaust return mother, Walls, Connie tes- witnesses. His so, did these issues. He the OCCA grew up a fa- tified that Powell without application a second for denied relief on ther, rejection family, from his experienced State, Spears v. No. post-conviction relief. step-siblings helped his three adored (Okla.Crim.App. PC-99-1099 Oct. them, generally caring care stopped 1999). proceedings habeas then twins’ kid- Federal step-sibling when father church, them, Granting Spears relief napped regularly attended resumed. habeas Likewise, was Balding large because there massive head Dr. was uncertain whether a Thompson’s Balding cut bleeding, chest where there was trauma Dr. was uncer- with peri-mortem, hemorrhage some because right tain wound to side whether the stab had received several blows to peri-mortem. Thompson’s head hemorrhage. region chest also caused which

1225 sentence, correct, court places the district are on from his death the burden the crime- petitioner introduction of the to rebut presumption by held scene the trial’s second photographs clear convincing evidence. 2254(e)(1). fundamentally § him of a fair stage deprived However, the dis sentencing proceeding. If the state court did decide a rejected second-stage

trict all other court merits, claim on the and it is not otherwise arguments Spears’ relief from and denied barred, procedurally we review district conviction. court’s novo legal conclusions de and its were Powell’s conviction sentence findings, factual if clear any, for error. OCCA, upheld by applica also and his Mullin, 1232, See Hooker v. 293 F.3d 1237 post-conviction similarly tion for relief was (10th Cir.2002), denied, 1165, cert. 537 U.S. State, P.2d 765 denied. Powell 906 975, (2003). 123 S.Ct. 903 L.Ed.2d denied, cert. (Okla.Crim.App.1995), When, however, “the district court’s find 1144, 1438, U.S. 134 L.Ed.2d 560 are ings merely of fact based on a review (Okla. (1996); State, Powell v. 935 P.2d 378 record, of the state give we do not them fed Crim.App.1997). Spears, As with on of the clearly benefit erroneous stan review, eral habeas court district independent dard but instead conduct an granted relief from sen Powell his death Burnett, review.” Morris v. tence due to the constitutional error aris (10th Cir.2003) (quotation and ing from of the but photographs, admission omitted). brackets We these stan apply rejected all second-stage arguments other dards to determine whether the district and denied relief Powell’s conviction. correctly court assessed each issue before stayed The district court enforcement Mullin, appeal. us on See Darks v. Spears’ judgments pending and Powell’s (10th Cir.2003). F.3d 1001 State, appeals. all and Powell Ill appeal. Appeals A. State’s II The federal district court held that the Because and Powell their filed penalty-phase State’s introduction petitions for relief April habeas after showing photographs Thomp- crime-scene AEDPA, date AED- effective body deprived Spears son’s mutilated provisions apply PA’s to both appeals. a fundamentally sentencing Powell of fair 320, 326-27, Murphy,

Lindh v. guaranteed as proceeding by Eighth (1997). 138 L.Ed.2d 481 appeal, and Fourteenth Amendments. On AEDPA, adjudicated Under if a claim argues admittedly State these court, grant the merits in state we will gruesome photographs were relevant petitioner only habeas relief to a if he can heinous, atrocious, or cruel both the establish that state court decision was continuing-threat aggravators, their to, “contrary involved an unreasonable outweighed danger of unfair any relevance of, application clearly established Federal and that prejudice, photographs were law, Supreme determined Court properly evidence. therefore admitted States,” on an the United or “was based “Federal review is not habeas unreasonable determination of the facts light evidentiary available to correct state law presented of the evidence State errors; court rather it is to violations of proceedings.” U.S.C. limited 2254(d)(1), rights.” requires AEDPA us to constitutional Smallwood Gib Cir.1999) son, presume findings state factual 1226 Duckett, 62, 306 F.3d at 988. We McGuire, stage. 67- 502 U.S. v.

(citing Estelle (1991)); photographs of the the relevance consider 475, 116 L.Ed.2d 385 68, 112 S.Ct. evi- Mullin, strength aggravating of the 296 F.3d and the v. Willingham see also com- Cir.2002). When, here, Powell as Spears and (10th against dence 917, 928 in their evidence mitigating the admission challenge pared to petitioners habeas of the of admission as violative favor and decide whether photographic of an Constitution, given “whether have the State court considers could photographs this ... infected consider Ultimately, so we advantage. of evidence unfair the admission unfairness judge with could the evidence sentencing proceeding jury whether of the jury’s imposition pho- of the light in of the admission fairly as to render process.” due denial of Applying at 989. penalty tographs. death See id. Oklahoma, 1, 12, 114 512 U.S. v. and mindful Romano standard fundamental-fairness (1994); also 2004, 1 see L.Ed.2d 129 forth of review set of the standards States, 123, 131 391 U.S. AEDPA, v. United dis- Bruton that the federal we conclude (1968) 1620, 476 6, 20 L.Ed.2d n. 88 S.Ct. habeas granted appropriately trict court (“An of a fair trial is element important relief. only relevant consider Oklahoma, espe a murder is In bearing on the issue competent evidence atrocious, heinous, cruel if it was cially Smallwood, 191 F.3d at [sentencing].”); physical or serious by torture “preceded the admission of (examining “whether 1275 infliction of includes the Torture abuse. proceedings rendered the the photographs or extreme great physical anguish either unfair”); Willingham, 296 fundamentally re cruelty, physical while abuse mental whether admission (addressing F.3d at 928 suf physical of conscious quires evidence grossly prejudicial “so photographs Gibson, F.3d v. 239 fering.” Romano trial and denied infected the fatally that it (10th Cir.2001) 1156, omit (quotation 1176 is the es- fairness the fundamental Powell, ted); 906 P.2d at 779-80 see also omitted)). (quotation process” of due sence it is critical for the State (recognizing that analysis a fundamental-fairness “[B]ecause physical the victim’s conscious prove legal subject clearly definable is not death); 900 P.2d suffering Spears, before elements, engaged in such an en- when (same). 443, gingerly court must tread deavor a federal State, because According to the self-restraint.” considerable

and exercise the stab Mullin, part was alive for Thompson 306 F.3d Duckett Cir.2002) omitted); depict photographs see also and three of the (quotations bing Carver, injuries, photo all six his extensive head Bullock v. (10th Cir.) only a narrow he suffered (recognizing prove were relevant to graphs fundamen- category prior of infractions violates to death. physical serious abuse cert, denied, fairness), tal rele photographs were OCCA decided (2002); L.Ed.2d 640 prove properly admitted vant Shanks, Jackson abuse physical suffered serious Thompson (10th Cir.1998) fundamental- (approaching death, testimony light prior to his “considerable self- analysis fairness with and suffered two Thompson moaned omitted)). (quotation restraint” stab wounds. peri-mortem 780; P.2d at 443. P.2d clearly there are no de Although physi- That suffered serious elements, the fundamental-fair legal fined term sense of the cal abuse the common at the requires us to look inquiry ness Rather, question un- is not doubt. photographs effect of the admission of the photo- law is whether der Oklahoma the context of the entire second within were relevant to show conscious nied and Powell graphs fundamentally Willingham, suffering. fair physical sentencing proceeding because the at 929 that when a “victim (noting prejudicial photographs’ effect outweighed in an early or loses consciousness on dies their probative value: assault, injuries of all of photographs [his] the None of stab wounds focused inon unduly might involve irrelevant and/or photographs the can be considered pro- penalty phase, material at the prejudicial question bative of the physi- of conscious [heinous, ag- cruel] the atrocious or since suffering, injuries cal the only arguably the gravator focuses on conscious suffer- being relevant to such a determination Powell, (citing of the victim” P.2d ing being beating. those from the While the 780)). ques- On the point, at OCCA jury was instructed it had to photographs the relevance of the tioned physical find “conscious suffering,” it heinous, atrocious, jury’s finding of the the was instructed it had to find the victim’s aggravator: cruel or preceded by death was torture or seri- These are not ... photographs proba- physical ous abuse.... Because none of Thompson tive of whether con- the stab wounds while occurred the vic- during beating which is the scious the death, tim conscious preceded or inquiry determining critical whether injuries such cannot be considered rele- heinous, especially a murder was atro- question vant to the jury. before the probative cious or cruel. The value of Gibson, CIV-96-1862-M, No. photographs very slight espe- these (W.D.Okla. slip 2001); at 44-45 op. Oct. cially light gruesome their na- Ward, CIV-97-516-M, Powell v. No. slip scarcely ture. Their value probative 2001). (W.D.Okla, op. Aug. at 63 This prejudicial exceeds their effect. We evidence, improper along with the lack of note the introduction of the six photo- physical suffering evidence conscious very causing a graphs came close to during beating, the the caused district sentencing hearing the given second to conclude that the second-stage paucity supporting ag- of evidence proceedings unconstitutionally were inf heinous, gravator especially atrocious or irm.5 photographs

cruel. Because were such stage, they not admitted in first were Having photographs viewed the and re shocking more for the seen first time record, we agree viewed the entire with punishment stage. court that introduction district into of the photographs depicting evidence added); (emphasis 900 P.2d at 448 Thompson’s post-mortem numerous stab (setting see 906 P.2d forth wounds, wounds, large gash exposed reasoning). Despite identical concerns intes however, photographs, about eye and swollen face and black ren tines them probative decided that value OCCA second un stage fundamentally dered the outweighed their effect. Pow- prejudicial heinous, atrocious, fair. Because the ell, 780; Spears, 906 P.2d at 900 P.2d at aggravator Thompson’s cruel focuses suffering, conscious OCCA, lost

Contrary showed died or conscious to the the federal dis- court held on in photographs early beating, photo trict de- ness However, during beating. federal district court did find exhibit scious even if showing Thompson's eye photograph black swollen this one did not render trial face, fundamentally unfair, probative to be of whether he endured we the others conclude death, physical abuse if con- before he was did. tively the first injuries unduly photographs innocuous were graphs all of deliberately await the stage, seeming to phase. the second See Will prejudicial at Powell, present grue- to the more stage 928-29 second (citing F.3d at ingham, 296 Instead, solely for their 780). some shock photographs gruesome the 906 P.2d photographs the as value. Because the were jury, misled the potentially photographs specifically evidence primary a strong impact aggravating had they necessarily they stage, consti- sug presented at the second Minimal evidence the minds. jurors’ a the State’s second- major part or even tute of was conscious gested Thompson most, stage case. stabbing.6 At two the during alive sixty peri- stab wounds were fifty of to the observed, the and as As set forth OCCA peri-mortem the stab mortem. Neither above, supported the paucity a of evidence suffering were con nor conscious

wounds heinous, atrocious, aggravator. or cruel The photographs. specific to the nected 780; Spears, P.2d at 900 See 906 any not show defensive do photographs P.2d at to the “avoid arrest or 443. As or wounds, they support, clarify, nor do by jury, found prosecution aggravator” the Thomp testimony indicating any illustrate evidence to support while there was some physical abuse be consciously son suffered aggravator, agree with the the we district Jackson, 143 F.3d at fore his death. not particu- court evidence was that such 1322; Kerby, Hoxsie v. 108 together larly viewed with strong.7 When Cir.1997). mitigation presented the evidence minimally Spears’ respective and Powell’s trial coun- photographs if were Even the sel, heinous, atrocious, Spears’ evidence of and Pow- including or cruel to the relevant youth, at the ell’s intoxication time of the aggravator, photographs’ prejudicial the probative prior value. crime and their lack of criminal his- outweighed their effect tory, we conclusion the fact conclude that such evidence was Important to this strong standing until not sufficiently that the second alone such the State waited By the that the would have returned a sen- stage photographs. introduce contrast, tence of compara- the State introduced death.8 Hensley testify Daniels did a the OCCA stated that there While We note that "plethora of evidence en- way was a occurred on the to the conversation anguish physical prior dured serious taking cemetery regarding the victim's 449; Powell, Spears, P.2d at truck, death." reading sup- full of the record also a however, sentence, In the next P.2d at 782. ports [Spear’s] theory that the motive for states, "Further, the there was evidence court anger killing the was Powell's towards beating,” during conscious Thompson was evening of the victim on the murder. Fur- previous suggesting was not sentence thermore, the evidence that Johnson describe the evidence of conscious meant to primary disposing interested in one Powell; 449; suffering. Spears, 900 P.2d at selling it after the truck and murder Earlier, at 782. the court stated P.2d [Spears'] support theory lends some as to “paucity support- of evidence that there was killing. the motive for the atrocious, [heinous, aggrava- ing cruel] Gibson, CIV-96-1862-M, slip No. 443; Powell, P.2d at tor.” (W.D.Okla. 2001); op. at Oct. 47-48 Pow- event, any had the OCCA P.2d at 780. In CIV-97-516-M, Ward, slip op. ell v. No. at 66 plethora was a determined there (W.D.Okla. 22, 2001). Aug. suffering, our the rec- conscious review of finding ord leads us to conclude such above, argues 8.As noted the State that the six agree We would be unreasonable. with photographs were relevant to both the hei- district court the evidence offered nous, atrocious, continuing- or cruel suffering was show conscious weak. OCCA did aggravators. threat not con- noted; photographs sider the of the to the As the relevance district highly inflammatory tinguishing This evidence fatal- unreasonable and incorrect ap- ly the trial and deprived infected law), plications of and we conclude that the their, rights and Powell of constitutional correctly district court decided that fundamentally sentencing proceed- fair photographs stage rendered the second photo- that the ing. The OCCA’s decision fundamentally trial unfair.9 To extent prejudice graphs’ relevance exceeded their implicitly OCCA determined that unreasonable, objectively see admission of did not photographs 2254(d); see U.S.C. also Woodford render stage fundamentally the second un- Visciotti, 357, 360, 537 U.S. 123 S.Ct. fair, we that an conclude this was unrea- (2002) a (requiring 154 L.Ed.2d 279 habeas application sonable of clearly established that applicant ap- to show the state See, Supreme precedent.10 e.g., Court Ro- plied Supreme Court law to the facts in an mano, 12, 2004; objectively unreasonable manner and dis- 512 114 U.S. S.Ct. aggravator. continuing-threat See receive suffering instruction the on conscious 779-80; (2) requirement; P.2d P.2d at 906 900 443. sup insufficient evidence heinous, atrocious, the that ported Our of record shows while the review finding a of the or primary prosecution's arguments of focus the (3) aggravator; cruel and insufficient evi during stage second relevance the was the supported aggravator. dence the avoid-arrest heinous, atrocious, photographs the to the grant Because we affirm the district court’s aggravator, prosecution implicit- cruel the did respect habeas with relief to the unconstitu ly photographs link the contents of the with photographs, tional of the admission we need argument aggra- continuing-threat its the argument. not reach the first As the sec However, assuming pho- vator. even that the arguments, ond and third we not need reach tographs continuing were relevant to the question the of whether there was sufficient aggravator, preju- that threat we conclude the support every aggravator. evidence to How photographs, the dicial effect of as described ever, allay any Jeopardy in order to Double above, outweighs probative the value of this concerns, we determine whether there must evidence. support was sufficient evidence to at least one Arizona, aggravator. Poland v. 476 See U.S. determining photographs 9. After that 147, 1749, 156, S.Ct. 106 90 L.Ed.2d 123 unfair, fundamentally to be caused the trial (1986) finding (holding only that a “that no proceeded the federal district court then aggravating present is is an ac circumstance analysis. conduct a harmless-error This was quittal barring pro a second death sentence prejudice unnecessary. The "substantive omitted)); ceeding” Cargle (quotation also see component! inherent in fundamental-fair 1” Mullin, 1196, (10th v. 1225 Cir. "essentially duplicate^] ness review the func 2003) (applying Poland to the Oklahoma Cargle, tion 317 of harmless-error review.” scheme). death-penalty Thus, showing F.3d at 1207. once a of funda claims, petitioners' reviewing In the OCCA made, petitioner is mental unfairness is concluded there was that sufficient entitled to habeas relief without an assess prosecution support avoid arrest or see, Id.; e.g., ment of error. harmless Wain aggravator. regard Spears, the In OCCA 284, 285, 289, Greenfield, wright 474 U.S. reasoned that 295, 634, (1986) 106 S.Ct. 88 L.Ed.2d 623 In the instant case the evidence showed (holding use of silence defendant’s Spears beating and Powell discussed fundamentally unfair warranted a trial); 1318, taking they before his truck Lytle, new 167 Gonzales 1999) cemetery. cemetery arrived at the At the (holding Cir. failure to Spears permit Powell he would initiate the juiy to told consider recanted testimo unfair, ny fundamentally beating Spears rendered trial and advised and Johnson to relief). warranting join habeas carried out in. Powell then Thompson. plan their and rob After to beat (1) beating, Spears administering the severe argue and Powell also 10. arm, atrocious, heinous, grabbed by the and Johnson aggravator or cruel is Powell valid, constitutionally jury produced they and said had to kill because the did not a knife 637, a. Bruton DeChristoforo, 416 U.S. Donnelly v. (1974); 1868, 643, 40 L.Ed.2d 431 94 S.Ct. Bruton, Supreme In Court 6,n.

Bruton, at 131 S.Ct. U.S. held deprived rights defendant Cross-Appeals: Powell’s Spears’ B. under Clause when the Confrontation codefendant’s confes- nontestifying Bruton Error Failure to Sever participant him as a naming sion argue and Powell Both joint trial, at their crime is introduced admitted out-of- improperly trial court if even is instructed consider that each them made court statements only against that confession codefen- other, their violation of implicating dant. fair rights to a trial and to constitutional Marsh, U.S. 201- Bruton Richardson v. v. United confrontation. (1987); L.Ed.2d 176 States, 207, 1702; (1968). ar- see also 107 Additionally, both id. S.Ct. Cruz L.Ed.2d 476 186, 187-88, York, New gue of these 107 S.Ct. that introduction statements trial, 1714, constitutionally ap- unfair 95 L.Ed.2d 162 Bruton in a resulted and, however, therefore, only if the ex- plies, the trial court have statement should pressly Because the defendant. See Spears implicates trials.11 and severed their 208, Richardson, U.S. at Powell their severance claims on the 481 base court, errors, despite first address Bruton 1702. allows Bruton we “Richardson Clause, to admit then the severance claims. the Confrontation claims and selling Thompson’s pickup testify against he could sions Thompson because about stabbing Thompson, Spears, disposing Thompson's them. After Tulsa and of wallet Thompson's Johnson took truck Powell and evidence and the knife. From this a ration- plans dispose wallet and made to and jury al could find Powell had motive to rob along Spears' Spears knife. told them with Thompson, cemetery stopped at the com- Hensley story she better tell alibi he robbery, beating, mit the initiated killed they “get would all in trouble concocted Thompson for the to avoid arrest theft of From this a rational for all this.” truck, Thompson’s truck took and wal- Spears find had to rob could motive dispose helped incriminating let and evi- Thompson, stopped cemetery at the to com- dence. robbery, voluntarily joined in the mit the Powell, 906 P.2d at 781. stabbing beating Thompson to avoid and agree We the district that the with truck, Thompson's arrest for the theft OCCA's there determination that was suffi- Thompson's and di- took truck wallet and support cient evidence to avoid-arrest-or- disposal incriminating rected of the evi- prosecution aggravator was not an unreason- dence. Virginia, application able of Jackson Spears, regard P.2d at 447-48. In U.S. S.Ct. 61 L.Ed.2d 560 the OCCAreasoned (1979). Thus, we need not consider whether In case the the instant evidence showed support there was sufficient evidence beating and Powell discussed aggravators. remaining Cargle, two taking pickup and be- truck they cemetery. at the fore arrived At cemetery Powell told and Johnson the severance Bruton Powell raised beating initiate the Daniels he would issues, separate claims as whereas join they in. then should Powell then car- Nonetheless, single treated them as a issue. plan Thompson. ried out his struck claims, thereby making both make similar it “they” Powell confessed decided to steal appropriate argu- us to consider Thompson's pickup and to their kill him. After participated together. Powell in discus- ments murder non-testifying confession of a co-defendant drinking there for a little while. Then expressly does not implicate they proceeded [that the de- to walk up the road (i) The confession must be re- fendant]. which leads to the cemetery. After they any distance, dacted eliminate reference to the had traveled some he decided (ii) defendant, non-confessing accom- whip he would [Thompson’s] ass or panied by appropriate limiting an instruc- kick ... [Thompson’s] ass. that the

tion confession is be considered

only against the confessor.” Fowler v. (10th Cir.2000) Ward, 200 F.3d A At which time [Powell] then struck Richardson, (citing 481 U.S. at [Thompson] in the face. [Thomp- And 1702), grounds by overruled on other ground, son] went to the at which time Marr, Moore v. began he to kick stomp [Thompson] Cir.2001). clearly “This a two-pronged along with the others. They-they beat redaction, requirement; a no matter how him for sometime. I’m not sure of the perfect, requires nevertheless an appropri- time they were beating there limiting immediately ate instruction follow- him. ing the admission of the confession.” Id. they

Then away walked body. i. And said that it [Powell] was decided they would steal the pickup, and that Bruton, Under Spears first chal they were going to have to kill [Thomp- lenges Officer Wigley’s testimony concern son], They' body, returned to the at ing Wigley Powell’s statement. Officer which time knife had produced, been as testified follows: and that took [Johnson] the knife and A said that he had [Powell12] been rid- began stabbing [Thompson]. ing around Valley drinking Pauls with (4 1113-14.) Thus, Tr. at in paraphrasing some others. statement, Powell’s out-of-court Officer Q Did he name those others? Wigley general made reference to the group involved the murder but did not Yes,A he did. Spears by mention name. Q Okay. That’s fine. (1) Spears argues that given that: both A they And had been riding around Hensley and Daniels had testified and Valley Pauls drinking, they had identified Spears persons as one of those picked up various at riders different lo- participated who prior the crime to Offi- cations. And they up ended at the (2) Wigley’s testimony, cer Johnson Klondike Cemetery guard at the cattle immediately testified Wigley after Officer area, gate leading up at the road to part and named as group, of the cemetery. Officer Wigley’s references to “others” and

“they” transparent, making were it obvious Wigley referring Officer to him. that. A He they got said that out statement, of the Because present- Powell’s pickup at gate by stood around ed Officer Wigley, was not incrimina- testimony, Wigley In his Officer referred to names. Powell, Thompson, by and Johnson their first face, incriminating ering additional evidence. See Verduzco- and became ting on its Martinez, Thus, intro- 186 F.3d at 1214. Pow it linked to evidence only after was by modified Wigley’s properly ell’s statement was and after Officer duced before Richardson, Wigley. at 481 U.S. Officer testimony, see 1702, admitting Powell’s 208, 107 S.Ct. Despite proper modifica principles not violate Bruton did

statement tion, however, argues Spears correctly modified to properly if the statement proper trial court give that the failed and the any reference to eliminate admitting instruction Officer limiting after limiting appropriate an gave trial court paraphrase of Powell’s confes Wigley’s Fowler, F.3d at 1307 instruction. agree We that this failure resulted sion. Richardson, (citing Fowler, in constitutional error. See 1702). giv at 1307. The instruction general testimony charging at the end of the trial above-quoted As the en shows, each give separate Pow consideration to de Wigley paraphrased Officer satisfy any to eliminate reference fendant was insufficient to Rich ell’s statement by using pronouns the neutral ardson. Id. 1307. “The Richardson “they.” Although limiting given the Su instruction must be immedi “others” and opinion ately following no the introduction of the co- “expressed] Court has preme admissibility safeguard of a confession defendant’s confession on the has re against inappropriate the defendant’s name been use of the confession which a ... Rich co-defendant.” placed pronoun[,]” against non-confessing with neutral ardson, 481 at 211 Id. U.S. n. has pro this court held that neutral a Bruton er When faced with if proper, are incrimi

nouns a defendant’s ror, analysis applies harmless-error de other nation is reference to evidence cide entitlement to Harmless relief. error jury and the than the modified statement “in is assessed the context of the entire proper limiting receives a instruction. See 530, Illinois, 547, Verduzco-Martinez, case.” Lee v. 476 U.S. v. 186 United States 2056, (1986); 1208, Cir.1999); 90 514 106 S.Ct. L.Ed.2d 1214 United F.3d cf. Fowler, Green, F.3d 1479, (pre-AEDPA) 200 at 1307 v. 115 1484-85 States (10th Cir.1997); Mary (assessing under Brecht v. Gray see also v. harmless error 1151, Abrahamson, land, 185, 194-96, 619, 637, 523 U.S. 118 S.Ct. U.S. S.Ct. (1993)). (1998) (recognizing L.Ed.2d 294 123 L.Ed.2d 353 The OCCA any modification incriminates inferen error harml proper decided Bruton ess,13 point directly not to defen tially holding and does and we conclude that dant). contrary not Wigley Because Officer did was not to or an unreasonable Spears by description, Chapman California, application mention name 18, 24, inference any connecting Spears to U.S. 87 S.Ct. 17 L.Ed.2d 705 (1967).14 Spears, could only (ap- statement be made after consid See 900 P.2d at Although assuming incriminating, OCCA decided that Powell's the statement was statement, modified, proceeded the OCCA to consider harmless did not incriminate error. See id. Spears, it did not address whether the trial gave limiting appropriate an instruc- federal relied on 14. The district court Brecht Instead, tion. P.2d at assessing error. We have harmless held citing Chapman); without 28 was plying only evidence corroborating John- 2254(d)(1). § review of the U.S.C. Our testimony son’s concerning the stabbing. nothing reveals record would demon- Recognizing that Hensley’s and Daniels’ prejudice. strate actual Wigley Officer testimony statements, relating Powell’s restating made no reference to which inculpated Spears, should not have Powell’s confession. importantly, More admitted, been the OCCA nonetheless con- vitally impor- Powell’s statement was not any cluded that error was harmless be- tant to the against Spears. State’s case yond a reasonable doubt because “other Rather, other independent point- Spears’ evidence” showed participation in Spears’ ed to involvement in the murder. the crime. Spears, 900 P.2d at 444 (apply- eye-witnesses Hensley, Three Daniels — ing citing without Chapman). Assuming and Johnson —testified Spears’ par- about Bruton, these statements violated we con- ticipation beating Thompson. Johnson clude that the OCCA’s harmless-error de- Spears’ participation testified about in the termination was not contrary to or an un- Therefore, stabbing. later the erroneously application reasonable of Chapman.15 See merely admitted statement was cumulative 2254(d)(1). 28 U.S.C. to other uncontroverted evidence that was properly before the jury. See Brown v. Spears argues that admission of these States, 223, 231, United U.S. statements harmless error be- (1973). 1565, 36 L.Ed.2d 208 Further- cause the “other evidence” to which the more, this case was not so complex OCCA refers Hensley came from jury could not fairly evaluate the evi- Johnson, and was not credible. Specifical- dence against each co-defendant. Nor ly, Spears contends Johnson had a deal jury would the have found the State’s case with prosecutor and Hensley’s prelimi- significantly persuasive less had Officer nary-hearing testimony differed from her Wigley’s testimony been excluded. See testimony trial because prose- she and the Florida, Schneble 92 cutor reached a deal resulting in her re- 31 L.Ed.2d 340 jail. lease point, On this we note received sufficient information to argues also testimony that the credibility evaluate the Hensley’s of both Daniels, Hensley and implicating him in and Johnson’s testimony. Hensley in- murder, Specifically, violated Bruton. jury formed the that she had been re- objects he to Hensley’s testimony that quired bond, post material-witness Powell asked the group, including Spears, and that drastically the bond had been who was going Thompson, to hit and to reduced. She testified that testimony Daniels’ the State had concerning a conversa- given her stabbing testify tion about the that no incentive to and that Daniels had with Powell jail. while the two were in she had lied in her prior written state- testimony, Daniels’ according during ments and her preliminary-hearing that contrary federal courts do not review based on error was to or an unreasonable applied Brecht when the OCCAhas the harm- application Chapman. less-beyond-a-reasonable-doubt standard set Chapman. Willingham, forth in 296 F.3d Again, we note that the district court in- Here, state-court-Cfcap- at 927 n. 4. there ais correctly assessed harmless error under the man determination to defer to under 28 Brecht standard. Thus, 2254(d). § U.S.C. we must decide finding whether the state court’s of harmless of the individual Although each then-boy- her up for

testimony to cover harmless, “the yet could be errors was cumula knew she Bruton Spears. She friend giving individually false state- perjury two or more charged with tive effect of Moreover, at trial she admitted preju potential ments. harmless errors has the that just remembered had that she to the same extent as dice a defendant in the truck on the talked Powell had Duckett, error.” single reversible cemetery beating Thomp- about way omitted). to the “A cumu (quotation in- Lastly, truck. she taking his son and all analysis merely aggregates lative-error her confinement and jury of formed the individually have been the errors jail. Similarly, Johnson later release harmless, therefore not to be found plea about fully informed reversible, analyzes it whether their jury to evaluate enabling the agreement, on the outcome of the cumulative effect sum, testimony. In credibility his collectively they can no trial is such that in the context of the entire when taken Id. determined to be harmless.” longer be trial, any agreement Johnson omitted). that the (quotation We conclude prosecu- Hensley may have had with accumulated, errors, even when Bruton any assumed establish that tion does not sufficiently prejudicial effect did not have a Hensley, Dan- harmful. Bruton error was consis deny Spears Strong, a fair trial. consistently all testified iels and Johnson his conviction. supported tent evidence murder, testimony their about the uncontroverted. ii. Powell argument, Spears final con As a deprived that he was argues Powell of the the cumulative effect tends that right right to a fair trial and by the OCCA de Bruton errors identified introduc- confront witnesses the State’s a fair trial.16 did not prived him of out-of-court statement. See Spears’ tion of However, in state court. raise this claim Bruton, 391 U.S. at does not contend because State objects to Specifically, Powell Johnson’s barred, con procedurally we this claim is testimony told Johnson and on its merits. See Spears’ argument sider they had to kill Powell that Ward, 1206, 1216-17 Hooks v. testify against he could them.17 because (10th Cir.1999) that the State (recognizing should Concluding that statement asserting procedural bears the burden of have admitted as it violated Bru- been default). deny relief on the mer mayWe ton, the OCCA nevertheless held if that claim has not its of a claim even any beyond harmless a reason- error was court. See 28 been in state exhausted 2254(b)(2). properly able doubt because the admitted U.S.C. prosecution. Nor do we reach grant of habeas arrest and 16. Because we affirm sentence, argument that the failure to sever Spears' we not Powell's relief need from stage. also affected the trial's second Spears’ argument that failure to sever decide stage. trial’s second affected the testimony that 18.The OCCAnoted Johnson's they that had to Spears told him and Powell light 17. our affirmance of the district In of relief, Thompson that could not grant we need not kill so court's of habeas testify against atypical Bruton them was "an contention that the State im- address Powell’s problem the statement was made to challenged statement because properly relied on this po- than the prove avoid two other co-defendants rather he committed the murder to Cir.1998). overwhelming preju- and the “Evidence that probative evidence was of a insignifi- of the statement was dicial effect guilt technically defendant’s but admissible Powell, (citing, 906 P.2d at 772-73 cant. only against a codefendant ... might pres- 1714, Cruz, e.g., 481 U.S. prejudice.” ent a risk of v. United Zafiro 162). conclusion, reaching In L.Ed.2d States, 534, 539, 506 U.S. the court noted: (1993) Bruton). 122 L.Ed.2d 317 A (citing alone, however, Bruton problem is insuffi- he had to “kick Powell admitted decided require cient to severance. See United [Thompson’s] ass.” He admitted he (10th Hill, States v. 901 F.2d beat, stomped Thompson kicked and Cir.1990).

with the others. Powell admitted after it beating they was decided that Because, above, as discussed any Bruton kill Thompson. would have to Given harmless,' joint error was trial did not testimony Powell’s confession prejudice Powell Spears. Even if there witnesses, the other it is inconceivable were a of prejudice, risk the trial court Spears’ the admission of statement con- (1) properly jury instructed the that: tributed to the verdict. State had the burden of proving beyond a error, Assuming Id. at 773. Bruton we reasonable doubt Spears both conclude, in light of the substantial other (2) murder; first-degree Powell committed presented, evidence the OCCA’s give separate must consideration harmlessness determination was not con- (3) defendant; to each individual trary application to or an unreasonable jury should draw no inferences Pow- 2254(d)(1). § Chapman.19 See 28 U.S.C. Spears’ testify. ell’s and decision not to any “These instructions sufficed to cure

b. Severance possibility prejudice.” Zafiro, (considering 113 S.Ct. 933 sever- argue and Powell both 14). Thus, ance under Fed.R.Crim.P. nei- trial court violated their constitutional ther nor can prej- Powell establish fair trial right by failing to a to sever their they udice so severe that were denied then- prejudice trials. As evidence of the result sever, right Accordingly, to a fair trial. ing point from the failure to both In joint the Bruton errors discussed above. trial upholding OCCA’s decisions claims, reviewing Powell, these we are mindful were not unreasonable. See the trial court erred “[w]hether 773; 444; P.2d at 900 P.2d at see denying generally question severance is 2254(d)(1). also 28 U.S.C. cognizable

of state law that is not on feder appeal, al habeas ... for a criminal defen Guilty 2. Unanimous Verdict right dant has no constitutional to sever Sufficiency of the Evidence strong showing ance unless there is a argue they and Powell prejudice joint caused trial.” Cum Evans, mings v. right were denied their constitutional noted, directly implicate previously lice does Powell.” As the federal district Recognizing P.2d at assessing incorrectly relied on Brecht in is circumstantial of intent statement harmless error. murder, the court decided the statement parameters fell Id. at within of Bruton. 772-73. (2000), 2348, 147 L.Ed.2d In- The Bindover S.Ct. jury verdict. unanimous of a jury them with that a must find all elements alternatively charged formation 358, crime, 364, murder In first-degree Winship, malice or re U.S. two counts: (1970), 1068, Although felony murder. 25 L.Ed.2d 368 first-degree and jury beyond on the a reasonable instructed must be proof the trial court verdict, court did need for a unanimous doubt.20 jury that its verdict must not instruct contrary, Despite thinking wishful to the count or the other. unanimous on one be court has ex- controlling. Schad is This Furthermore, form did not dis- the verdict long have plained that “Oklahoma statutes the two alternative

tinguish between of ‘murder’ or ‘first defined the offense did not indicate and therefore counts mal- degree encompassing murder’ as both and jury Spears believed whether felony mur- aforethought ice murder and first-degree-malice or Powell committed therewith, the has der. Consistent OCCA Thus, Spears and felony murder or both. murder aforethought characterized malice there was no Powell both contend felony and murder as different theories for verdict on either malice or felo- unanimous degree of first general the same offense murder, insufficient evi- ny and because Gibson, 1224, Hain v. 287 F.3d murder.” theories, both murder supported dence (10th Cir.2002) (recognizing 1232 & n. 5 problem re- lack-of-a-unanimous-verdict Schad) (footnote this is consistent with mained. cert, denied, omitted), 537 U.S. and citation 1173, 993, 123 S.Ct. 154 L.Ed.2d 916 Guilty Verdict a. Unanimous (2003); Ward, see Williamson v. 110 F.3d (10th Cir.1997) 1508, (citing Schad Spears acknowledge and Powell While no holding deprivation that there was that a Supreme that the Court has held fac- right of a constitutional under similar first-degree-murder ver- non-unanimous circumstances). tual we Accordingly, con- circumstances does not dict under similar reasonably clude that the OCCA decided Arizona, Constitution, violate the Schad although jury “the was not instructed 2491, 624, 627, 645, 111 S.Ct. 501 U.S. com- (1991) unanimously [they] to find had opinion), they (plurality L.Ed.2d 555 murder either with degree mitted first present that their argue nonetheless cases aforethought during malice the course not examples extreme covered Schad. Further, robbery,” of armed 906 P.2d at they contend Schad does not 775; 441, holdings 900 P.2d square Supreme with the Court’s process.21 Powell were not denied due Apprendi Jersey, v. New 530 U.S. jury, proved Spears’ must be submitted to a be 20. We need not consider and Powell's changes yond argument Apprendi this result a reasonable doubt.” 530 U.S. at Here, charged Apprendi apply retroactively. 120 S.Ct. 2348. the State because does not with, Mora, and Powell found See United States v. of, murder, denied, Cir.), guilty first-degree them after find cert. ing proved beyond that the State that crime 154 L.Ed.2d-315 Even Apprendi reasonable doubt. does not indicate argument were we consider its merits, any way that it overrules Schad. Apprendi we would conclude that does change Apprendi the result. held that conviction, prior than the fact of a 21. The OCCAdecided that and Powell ‘‘[o]ther any penalty plain-error that increases the for a crime had waived all but review fact process prop- beyond prescribed statutory maximum therefore the due issue was not challenge charged Powell next he must be underlying and with an that determination the instruc- felony OCCA’s in order to be charged with or found actually required proof of both first- tions guilty felony Although murder. Powell, alternatives. degree-murder Bindover Information did not charge Pow- 11; Spears, 775 n. 900 P.2d at 441 P.2d at ell with an in underlying felony, charging 11; State, n. see also Romano 909 P.2d murder, felony it did clearly allege robbery (presuming 121 (Okla.Crim.App.1995) (See provided relevant facts. O.R. at jury that the found evidence sufficient to 1.) Specifically, it alleged that Powell was support felony both malice and murder “engaged committing the crime of Rob- charged alternatively where defendant bery by “by wrongfully taking Force” murder and there felony with malice and carrying away” the victim’s truck and bill- each separate were no verdict forms for fold, which were in the possession victim’s murder). need type of We not address presence, immediate “without [the vic- instructions, challenge jury this to the be- against tim’s] consent and “by will” below, cause, as discussed sufficient evi- means of force and violence” at the time supported finding type dence of each Powell, Spears and Johnson killed the vic- first-degree murder. (Id.; tim. see also id. at (indicating Lastly, argument Powell adds to this underlying felony is “Robbery charged claim that he was never with an Dangerous With A Weapon” stage first underlying felony and therefore there is no 15)). Instructions We conclude proof guilty robbery he was with a gave this Powell sufficient notice of Powell, dangerous weapon.22 According to underlying felony. a conviction for mur- precludes felony Powell did Although der. not raise this Sufficiency b. of the Evidence appeal, issue on direct we consider and reject this claim on its merits. See argue and Powell 2254(b)(2) (permitting U.S.C. denial of support insufficient evidence existed to claim); relief merits of unexhausted finding of either malice murder or felony Hooks, (requiring 184 F.3d at 1216-17 petition murder. It is settled that habeas bar). to argue procedural State may challenge sufficiency ers of the corpus proceed federal habeas

Powell fails to cite Oklahoma au none, Mullin, thority, and we establishing ings. find Torres v. Powell, erly preserved for review. 906 P.2d AEDPA due to this "form of merits review.” 775; Spears, 900 P.2d at 441. Even if the Id. properly preserved, had issue been the court process held that there was no due violation argues 22. Powell death sentence was when the verdict did not indicate whether the constitutionally impermissible because the

jury first-degree found malice murder or first- felony could have convicted him of mur- degree felony murder because the indictment merely accomplice robbery der as an charged single first-degree crime of murder dangerous weapon, citing awith Tison v. Ari- proved and also because the State both mal- zona, 481 U.S. 107 S.Ct. felony ice and murder. 906 P.2d at Florida, (1987), L.Ed.2d 127 Enmund 775-76; Spears, 900 P.2d at 442. Because 782, 797, 73 L.Ed.2d the state court denied relief on the merits of Because we affirm the district review, plain-error pro- the federal claim on grant court’s of habeas relief from Powell’s principles apply. cedural-bar do not See Car- sentence, argument. we need not address this Thus, gle, 317 F.3d at 1206. the state-court disposition is entitled to deference under 1238 (10th Cir.2003); person Jackson v. A commits murder in the first see also

1151 307, 322, degree person unlawfully when that Virginia, 443 U.S. (1979) (“A challenge to a aforethought 61 L.Ed.2d 560 with malice causes the brought ground being. conviction death of another human Malice state fairly that the evidence cannot be deemed unlawfully is deliberate intention guilt beyond to have established sufficient take human away being, life of a states a federal consti- a reasonable doubt by which manifested circum- is external claim.”). “[V]iewing tutional the evidence capable proof. stances of [State],” light in most favorable to the A also commits the crime of mur- person only if grant we will habeas relief “no degree, der in the regardless first of of fact could have found rational trier malice, person any when that or other beyond a reasonable proof guilt of doubt.” person being takes the life of a human Jackson, 319, 324, 443 99 U.S. S.Ct. if during, being the death of a human “gives full Jackson standard from, the ... results commission of rob- responsibility the trier play to the bery dangerous weapon.... with a fairly fact to resolve conflicts the testi- evidence, § Okla. Stat. tit. 701.7A B. mony, weigh the & and to draw reasonable inferences from basic facts to Additionally, desig Oklahoma ultimate facts.” Id. principals persons nates as who aid and abet the commission of a murder. Id. sufficiency of We review the evi § 172. question dence as a of law. See Griffin States, 46, 58-59, United U.S. Ap- The Oklahoma Court of Criminal (1991) (indicat L.Ed.2d 371 peals specified has order to con- ing insufficiency proof legal er vict an aider and abetter as a principal ror); Torres, also 317 F.3d at 1151-52 see degree in a prosecution, first murder case, (viewing, of that (1) under circumstances prosecution prove: must sufficiency legal of evidence as a question). personally defendant intended the death AEDPA, Under our review is limited to (2) victim; of the that the defendant deciding whether the OCCA’s decisions aided and with full knowledge abetted that there sufficient sup evidence to perpetrator’s intent. [A]iding and jury’s port finding of both malice murder acts, abetting gestures involves words or felony murder for both encouraging the commission of the of- contrary Powell were to or an unreason fense, either before or at the time of the application able of Jackson. See 28 U.S.C. [M]ere offense. mental assent to or ac- 2254(d)(1); 773-75; 906 P.2d at in the quiescence commission of a crime P.2d at 438-40. procure one who did not or advise its therein, perpetration, part who takes no provides Oklahoma law the substantive gives no counsel and utters no word of elements of malice felony ap- murder encouragement perpetrator, to the how- plicable sufficiency to the of the evidence wrong morally, ever does not in law Torres, 1152; standard. 317 F.3d at see person participant constitute such Jackson, also 443 U.S. at 324 n. the crime. part, S.Ct. 2781. In relevant the Okla- Massie, first-degree homa pro- Wingfield murder statute (10th Cir.1997) vides: (quotations and citations omitted); Torres, beating, concluded that see also OCCA cases OCCA have on could found that still assessing In intent F.3d at 1152-53. review, at the entered the alive time attack sufficiency of the evidence Spears’ and therefore blows contributed to recognizes, court Thompson’s Spears, 900 death. P.2d at [f]irst, to infer- jury permitted a is draw 438-39. that The OCCA stated intent a defen- subjective from ences Thus, Spears there was knew objective acts. even when evidence Powell dant’s going Thompson was and having requi- ... denies the to beat was a defendant intent, may present the when Powell told Johnson and jury a disbelieve site join and Daniels in after he landed if words to the [the defendant’s] defendant According Hensley, the initial to fight in the of all circumstances blow. acts Johnson, explanation Spears Daniels willingly defendant’s] seem and [the make Second, in joined Thompson attack on permitted is the and improbable. beat, him those and kicked stomped to find that a defendant intends with Spears’ which he announces a de- Johnson Powell. actions be- consequences and lie his did aid assertion that he not and accomplish. sire to Thompson. abet murder of the As we (quotation 122 F.3d at 1333 and Wingfield, State, said 758 P.2d Dumire Torres, omitted); also see citations 1988), [(Okla.Crim.App.] 830-31 “[fit F.3d at 1153. may irrelevant the defendant not fatal blow. actually have struck the His Spears i. and Malice Murder voluntary cooperation and participation in was Spears argues there guilt [his] the attack established anas support a malice- sufficient evidence equally principal.” culpable because all the direct murder conviction at Id. kill intent came after evidence of his already

Thompson Applying was dead. supports Our of the trial record review standard, the conclud OCCA Jackson Spears anticipated the OCCA’s decision. sup ed the evidence was sufficient to in a sustained attack participated aided port jury’s finding Spears victim, who did not against helpless pro- in the Powell commission of abetted Powell and Spears, voke fatal attack. murder. 900 P.2d at 438- malice repeatedly jumped on kicked Johnson Jackson); citing see but not (applying body Thompson’s least head (presum Woodford, also minutes, Thompson’s body leaving three know ing that state courts and follow cemetery. next to the at the Johnson road giving that, they law and the state-court decision although testified did start AEDPA); kill, the doubt under Tor the intent to beating benefit of with Thompson res, (assuming point developed at 1152 n. 3 the intent to they at some applied though they doing. Jackson even kill and were OCCA knew what it). Moreover, they In was aware that fight Spears did not cite and Daniels Thompson, believed risked testi- killing evidence that he, point Thomp- thought he fied that he at some was at the time said that alive beating. would from See Thomp needed kill son die and Johnson (Okla. State, 1273, 1280 son, Hooks v. P.2d Powell and Daniels heard and both that where the Crim.App.1993) (holding Thompson during coming noises target was a sustained and tion of was objectively victim Jackson unreason- Torres, attack, 1156; victim able.23 and the received F.3d at see relentless 2254(d)(1). injuries, 28 U.S.C. multiple circumstantial evidence defendant, sufficient that the prove attack, point during at some formed Felony ii. Murder victim).- intent to kill the that, argues because the place, Spears’ beating After the took felony supporting underlying kill yet apparent. became more intent of robbery dangerous weapon with a kill they said that had to Spears Thomp- weak, the mur supporting felony evidence son, testify against because he could them. necessarily der was weak as The well. to Spears provided Thomp- the knife stab jury viewing OCCA held that “a rational son, Thomp- and there was evidence that light in evidence most favorable to time son was alive at the the stabbing the State find the proved could State be began. Johnson testified that when he yond a par reasonable doubt that Spears squirted first stabbed blood Thompson, ticipated taking in Thompson’s pickup.” and hit him in the eye, suggesting the Spears, at (applying 900 P.2d without presence of pressure. blood Powell veri- Jackson). citing pointed The OCCA to that Thompson breathing fied right to following support Spears’ evidence Spears, before Johnson and Powell taking of the truck: Furthermore, him. stabbed the medical During evening of September examiner two testified that of the stab 1990, Spears proposed the drive group may peri-mortem. wounds have been Ad- out Hensley to the Klondike Cemetery. Spears ditional evidence showed that pro- they and Johnson testified out drove Hensley vided and Daniels with an alibi to the cemetery Spears Powell and dis- story, Spears expressed and never re- beating Thompson taking cussed and his killing. after the See Wingfield, morse pickup. they When arrived at the ceme- tery, Spears, Powell told Johnson and in Viewing the evidence its totality, we Daniels he would strike Thompson as conclude there was considerable evi- they cemetery walked towards the and of Spears’ dence in Thomp- join involvement advised the others to in. group evidence, murder. son’s Given we started the cemetery towards and Pow- cannot applica- conclude that the OCCA’s ell Thompson struck in the head. John- asserts that the OCCA altered the of the crime. While we have held mere requirements liability presence aider-and-abetter acquiescence, partic- or without Spears' appeal, case. At the time crime, Okla- ipation, only does not constitute a required law homa that the aider and abettor slight participation change needed to (1) personally intended the death of the vic- person's spectator status from mere an into tim; (2) and aided and abetted with full aider and abettor. knowledge perpetrator. of the of the intent (citations omitted); 900 P.2d relief, denying Spears post-conviction In Wingfield, 122 F.3d at 1332. We not are cf. provided following OCCA definition of convinced that the OCCA altered the aider- aiding abetting: and requirements, and-abetter and a state court may interpret Aiding its own laws. abetting requires a crime See Gamer Louisiana, 157, 166, procured State to show that the accused done, aided, assisted, (1961); Willingham, crime to be L.Ed.2d 207 see abet- also ted, encouraged advised or the commission F.3d at 923. Felony Powell Spears joined then iii. Powell Murder son and Thomp- beating stomping kicking, argues Powell that there was in Powell, Spears and Johnson son. When robbery sufficient evidence to show that they took pickup, returned to the the motive for the murder or that he Thompson’s wallet. pickup robbery had the intent to commit with a to truck to take the directed Johnson weapon. dangerous According may it. and sell While Tulsa the evidence that he intended showed from the Thompson’s pickup have driven Thompson, beat but did not intend kill Tulsa, it we find cemetery or taken him or steal his truck or wallet. As suc certainly consti- disposition its directing cor, points that Thomp Powell to evidence evi- abetting.... aiding [This] tutes permitted pickup son others to drive his sufficiently proves Spears wrong- dence night of the and that murder Johnson him Thompson’s pickup took fully had bought beer because no feet as using hands and force money. points Powell also weapons. dangerous that, indicating beating, after the Daniels (footnote omitted). Id. wallet, suggested taking Thompson’s and may precede, Recognizing “killing any proceeds Powell did not want of the robbery follow and coincide with or the truck after it. Finally, the Johnson sold robbery still done in the commission of be Powell asserts he was not informed of weapon,” dangerous with the OCCA meeting between the prosecutor and was sufficient evidence found that there Hensley preliminary held after the hear during Spears Thompson killed prove that during Hensley, which for the ing, first robbery the of a with a dan- commission time, on-the-way-to-the- remembered the gerous weapon: cemetery discussion between Powell and they taking Thompson’s about Spears pickup, Johnson testified Hensley and talking jail. and about and after which she was released heard Powell pick- his beating Thompson taking and Considering testimony the of Hensley up. and Powell then carried out Johnson, that Powell they and heard and beating stabbing plan by their and later beating Thompson Spears talking about taking Thompson and his truck. attack, taking his truck the the and before Thompson’s directed Johnson take found that there was sufficient evi- OCCA evi- to Tulsa sell it. This pickup intended to rob dence to show Powell sufficiently plan dence established Powell, 906 P.2d at 773-74. Thompson. Thompson then rob and beat which was evidence, in agree that this viewed We Clearly, was Thompson carried out. State, is most to the suffi- light favorable robbery. during the of the killed course robbery to show that was motive cient in Spears clearly participated Id. at 440. homicide, conclude that in beating stabbing plan an decision therefore was not un- OCCA’s dispose though Spears the truck. Even application reasonable of Jackson. See 28 truck, par- did take the his personally 2254(d)(1). § U.S.C. ticipation Okla- guilt established under Further, that there argues Powell was homa law. This leads to our conclusion that the mur- insufficient evidence to show not an that the determination was OCCA’s during occurred the commission of a application of See der unreasonable Jackson. 2254(d)(1). robbery weapon, because dangerous § with a U.S.C. group permission Thomp- had drive cause two of the stab wounds peri- were Thompson son’s truck and was killed be- mortem establishing Thompson was not anyone suggested taking fore his wallet. dead when stabbing began, Powell’s that, argues Thomp- Powell also because they admission decided to kill Thompson the robbery, son was dead before there and steal his pickup is sufficient to show relationship no between killing they Thompson killed during their rob- robbery. and the bery plan. upon totality evidence, Id. Based of the

Recognizing “killing that Oklahoma a we conclude that the may precede, OCCA’s determina- coincide with or follow the tion was a reasonable application of robbery and still Jack- be done the commis- 2254(d)(1). son. See 28 U.S.C. robbery sion of dangerous weapon,” with a OCCA decided that “a rational Finally, argues Powell that there was no viewing light the evidence in the most was killed with favorable to the could find State the State Powell’s tennis shoes or a knife. Notably, proved beyond a reasonable doubt all of on appeal direct petition, habeas the essential elements of Degree First Fel- argued Powell solely that there was no ony Murder with underlying felony evidence that a knife dangerous was the Robbery Dangerous with a Weapon.” Indeed, weapon. appeal, direct Powell Powell, 906 P.2d at 774 (applying without argued that it “arguably supportable” Jackson). citing pointed to evi- that the shoes were a dangerous weapon. dence establishing plan to rob and beat (Powell’s 34.) Direct Appeal Br. at Thompson, which was then carried out: The OCCA’s conclusion that Powell took Hensley and Johnson testified that as the pickup by of dangerous use weapon, they cemetery drove out to the Powell by either feet, Powell’s hands or or the and Spears talked about beating Thomp- knife, Powell, was reasonable.24 See taking son and pickup. Hensley tes- 774-75; 2254(d)(1). P.2d at § 28 U.S.C. tified she heard ask Powell “[w]ho Evidence at trial showed Thompson going to hit him first” as the group was alive when the stabbing began, as two Powell, walked towards the cemetery. of the stab wounds peri-mortem, were and and Johnson then attacked Johnson stab, testified that with his first Thompson. When and blood squirted into eyes. Even if Johnson returned to the pickup, they Thompson was not alive at the time of the Thompson’s took pickup and retrieved stabbing, it is undisputed that Powell used his wallet.... his hands and feet to inflict a beating.

Additionally, struck, Powell admitted he stomped and kicked Thompson. He iv. Powell and Malice Murder confessed that after the initial beating he, Spears and Johnson decided to steal argues Powell the evidence Thompson’s pickup and kill Thompson. was insufficient to show that he killed They went back to Thompson where Thompson was with malice aforethought. lying all Rather, and three stabbed him. Be- he contends that the evidence assuming Even he had the intent to rob conviction therefore should be modified to Thompson, argues Powell robbery second-degree felony murder. The record merely robbery by was fear force and his support does not this assertion. evidence of Powell’s intent to com- intent to beat stantial only that he had the shows compelling probative mit murder is him. was to stab but forced Thompson, —most intent is the duration and violence of of his undisput- argues that it was further Powell hit, forcefully jumped beating. Powell when already was dead Thompson ed that Thompson’s body and kicked head and on any intent Thompson he stabbed minutes, beating ten con- for three to not be kill could Thompson had to Thompson helpless, tinued after Powell asserts Lastly, to Powell. imputed body attackers left the at the remote intent specific could not form the that he cemetery beating site. After the and be- the influence he was under to kill because he stabbed Powell checked Thompson, fore at the time of the incident. alcohol Thompson’s and heartbeat. breathing design decided, that a to commit Recognizing a reasonable As the district of this is that Pow- instantly, interpretation can be formed murder kill during formed an intent ell decid- rejected argument, Powell’s OCCA and, beating impression when under find Powell that a rational could ing alive, Powell and Thompson still malice murder: guilty of Thompson his co-defendants stabbed he Hensley and Daniels Powell told his death. Stat. tit. ensure See Okla. Thompson. assault Powell wanted to (“A design § 702 to effect death is inferred beat, stomped he repeatedly admitted the fact of unless the circum- killing, Thompson. After the initial kicked raise a doubt whether stances reasonable Powell, Spears de- beating, and Johnson (“A existed.”); design de- such id. truck and Thompson’s cided to steal to effect death sufficient to constitute sign They Thompson’s went kill him. back instantly may be formed before murder him. body repeatedly stabbed act it is carried committing which initially did not they testified execution.”). Johnson Regardless whether into kill but at some Thompson, intend to voluntarily Powell stabbed in- changed minds and time they by their dead point whether was him, reasonably and kill him. Daniels Powell stabbed Both tended beat- infer an intent to kill from this could instigated testified Powell Johnson Furthermore, below, see discussed ing. as ad- Thompson. own beating of Powell’s III.B.3., suffi- Powell was not Section for First support his conviction missions infra him from ciently preclude intoxicated to Malice Degree Murder. the intent to murder. forming Powell, 906 P.2d at 775. Voluntary on 3. Failure Instruct conclude that this determination We Manslaughter and Intoxication of application

constituted reasonable 2254(d)(1). In § 28 See U.S.C. Jackson. the trial court Powell contends that Oklahoma, are evi- external circumstances jury on volun- have instructed the should intent to murder. See of an commit dence first-degree diminish- tary intoxication 21, 701.7(A); also tit. see Stat. Okla. the evi- manslaughter- ed-capacity —that 118, (indicating 13 at Instruction No. O.R. about his raises a reasonable doubt dence motive, demeanor, “words, conduct, intent to com- ability specific to form all other circumstances” of quantity [external] murder to the mit malice due determining evening considered whether he consumed on the may be alcohol kill). had Circum- homicide. intent to a defendant

1244 allegation, the held

As to this OCCA defendant had the intent commit first- See, State, insufficient to sup- degree e.g., that there was evidence murder. Bland v. 4 702, intoxication 715 port voluntary (Okla.Crim.App.2000); and first-de- P.3d Fitz State, (Okla. 1157, v. gerald gree manslaughter instructions because P.2d State, Crim.App.1998); Lamb v. there no evidence Powell was so 767 P.2d was 887, (Okla.Crim.App.1988). he was form 889-90 “[A] intoxicated that unable to of voluntary defense requires intoxication necessary first-degree intent to commit defendant, first, and, that a be intoxicated malice murder. 906 P.2d second, intoxicated, utterly be so that his contrary, To the court found overcome, powers mental are it rendering that “Powell con- showed impossible for a defendant to form the trol of not in an his mental faculties and specific special criminal intent or mental advanced Id. In state intoxication.” so Gibson, element the crime.” Toles v. deciding, following noted the court evi- (10th Cir.2001) (quot dence: State, ing Jackson 964 P.2d Hensley, Daniels and Johnson described — denied, (Okla.Crim.App.1998)), cert. drunk, “feeling good” Powell but -, U.S. 155 L.Ed.2d sober, half half having drunk and “pretty good buzz on.” testi- Johnson fied what he he knew doing review, On federal habeas we re risks of conduct and that some alleged failing view the error in to instruct he, point Powell intended to voluntary intoxication the context of Further, kill Thompson. Powell never trial, only entire for the denial of fun Wigley told during Officer his confession process. damental fairness and due drunk he was and did not intend to Kibbe, 145, 156-57, Henderson kill Thompson. (1977) L.Ed.2d 203 (pre AEDPA) (addressing the omission of a Id. causation); jury instruction on Foster v. Voluntary a. Intoxication Ward, 1193-94 Cir. 1999) (post-AEDPA) (addressing the omis Supreme There no Court sion an accomplice instruction on testi precedent establishing a constitutional mony, which was required under state law right regarding to instructions defen Constitution). but not mandated federal dant’s at intoxication the time of the crime. omission, “An instruction, or an incomplete See generally Egelhoff, Montana v. 518 likely prejudicial less to be than a mis 37, 43, 51, 39-40, 56, 2013, U.S. 116 S.Ct. Henderson, of statement the law.” 431 (1996) 135 L.Ed.2d (holding 361 that a 155, 97 U.S. at S.Ct. 1730. Montana precluding statute consideration of voluntary intoxication in determining by Illuminated high standards of existence a mental of state that is an ele imposed AEDPA, review the trial ment of the criminal offense does not vio failure give voluntary-intoxi- court’s Clause). late the Process Due Under cation instructions render did not Powell’s however, law, juries Oklahoma may consid fundamentally trial unfair.25 As the OCCA er voluntary noted, intoxication to if determine a little supported a volun- suggests 25. voluntary Powell further that failure to in- on away struct took intoxication murder, second-degree Powell’s state- instruct on Okla- tary-intoxication defense. requires homa on all lesser law instruction recounting de- Wigley ment to Officer homicide, degrees of even when in- such belies his claim of the murder further tails expressly requested, was not see struction Toles, 269 intoxication. See voluntary (10th Gibson, 543, James v. Although evidence indi- at 1177. F.3d Cir.2000). may not issue writ of We alcohol consumed before cated Powell however, corpus, on the of a habeas basis murder, evidence established that no law, perceived error of a state “absent at the time judgment impaired was so his determination that law the state violation impossible such that it was murder fundamentally the trial rendered unfair.” aforethought. him to malice Ac- form (citations omitted). Id. Evidence present- that there cordingly, the OCCA’s decision ed at trial did not Powell establish that support a vol- was insufficient evidence was so intoxicated that his mental abilities untary-intoxication instruction reason- were overcome the intoxication 2254(d)(1). See 28 U.S.C. able. him prevented acting from with malice. Powell, 906 See P.2d at Under Diminished-Capacity Manslaugh- b. case, of this it was not fun- circumstances ter trial damentally unfair for the court to conclude that an instruction on first-de- maintains that trial Powell gree manslaughter diminished-capacity first-degree to instruct on court’s failure was unwarranted. id. See diminished-capacity manslaughter violated Alabama, Beck the mandates 4. Prosecutorial Comments 2382, 65 L.Ed.2d 392 U.S. 100 S.Ct. OCCA, challenges Powell several com recognized by the Pow As prosecutor during ments that the made his first-degree a request

ell did not man closing first-stage argument.26 Because slaughter instruction. 906 P.2d at none challenged impli of these remarks precedent, our this failure Under right, cates a constitutional specific pros prevailing Powell precludes require ecutor’s misconduct will reversal Gibson, Hogan claim. Beck only court conviction where the state Cir.1999); n. F.3d remark infected the trial with unfair “so Hooks, 184 at 1234. F.3d resulting ness to make the conviction Furthermore, the State cor Donnelly, process.” denial 416 U.S. of due Duckett, rectly 1868; the trial court asserts because also at see jury on lesser included instructed the 988. We address each of the murder, second-degree in turn. challenged offense of Beck is comments Beck, Although, satisfied. under trial Evoking Sympathy a. for the Victim in only court need instruct on one lesser offense, Schad, During argument, opening cluded see 647- jury that one prosecutor and the trial court did told the “[t]he Schad, jury's non-capital sentencing option. See ability to consider a third a third 647-48, supported 501 U.S. at 111 S.Ct. option by was the law and the that Schad, 501 evidence. U.S. 555; Alabama, challenges Beck v. 115 L.Ed.2d also several second- Powell stage L.Ed.2d those U.S. remarks. We need not address However, grant light did to instruct of our decision trial comments murder, second-degree thereby giving his death sentence. on Powell habeas relief from Jimmy you will not hear is that ... a kid bad.... [T]here’s voice that ain’t A Thompson. week from next Dewayne get wanted to was sus- along. [H]e He Monday, Jimmy Dewayne by went ceptible peer pressure, to he did —he years have old. been Dewayne drinking guys. this number with these —would just man these two young a as He was part But wasn’t of their group. he 486.) (3 young.” Tr. at are [defendants] (5 1390-91.) prosecutor empha- id. at us, statement, improperly This Powell tells was, “good a sized what kid” the victim the victim. sought sympathy to evoke for defendants, with compared noting challenges pres- Powell also the State’s agreed to “riding the victim take the group testimony victim-impact during entation But I got go by hospital around.... stage, specifically first the vic- when my grandmother. you to see That a tells son. tim’s mother testified about her Ju- kid, there,” 1338; right lot about the at id. son dith testified that her was a trying paint good a a picture “[w]e’re graduate; high school had started voca- kid,” 1391-92; “[y]ou id. can’t tell training; tional was a learner and slow good looking whether he was a kid from special education in high attended classes road,” laying him dead on the side of the school; every Sunday went to church id. at 1393.

Wednesday, special as well as func- church Holding prosecutor’s remarks friends; tions; many did not have and had error, were in the OCCA stated that “it is recently broken with In up girlfriend. improper prosecution jurors to ask addition, Mrs. Thompson testified that her sympathy to have for victims” and “it is neat, obedient, very son was well man- error introduce impact victim nered, never in trouble with the law. He guilVinnocence phase.” easily, did make not friends and was bash- Nonetheless, P.2d at 777. the court deter- withdrawn, ful, easily led others. this mined that error did Powell deny not first-stage closing argument, In his fundamentally fair trial. id. See We prosecutor argued further victim conclude that the OCCA’s decision this application issue was reasonable of es- young shy.... man.... was He was Supreme tablished precedent. Court belong. He wanted 2254(d). 28 U.S.C. We note that Mrs. pressure. was susceptible peer He Thompson’s personal remarks about her good, He was a decent He out kid. son constituted but a of her portion brief of his element with [the defendants] otherwise relevant testimony, during which group. represented He no threat she clothing identified the her had son socially physically or to these two [de- murdered, night worn the he was per- fendants], He put up no when the fight effects, truck, sonal and his stolen as well occurred, incident couldn’t defend him- detailing her son’s preceding activities self. murder, her search for him he when did not return home night, and her awkward, Perhaps, socially he was but discovering his stolen truck the morn- he not deviant or next delinquent any ing. comments, gave Any improper He inter- way. no evidence of a de- evidence, spersed mind. praved He was the one that used with relevant did jury’s his vehicle to take everybody riding verdict Powell deny affect See, Duckett, around. e.g., a fair trial. F.3d at opt in the challenge Degree. to for Murder Second (rejecting habeas 991-92 out, first-stage victim-impact argu- easy way can an if that’s You take State’s Mullin, 658, ment); you in you Hawkins do. But have told us what (10th Cir.2002) a habeas (rejecting your you that are voir dire examination first-stage ev- challenging the State’s claim to the willing tough make decisions. concerning personal the victim’s idence said, like “If Kennedy It’s Robert once mother), history her as a attributes us, now, If not who? not when?” cert, 1173, denied, 537 U.S. Somebody got tough has to make these L.Ed.2d 916 you decisions. And we ask that that. do Powell also contends (5 1340-41.) lines, Tr. at Along same Pow improperly dehumanized prosecutor prosecutor argued later that, to while the by indicating ell kid, good Powell and victim was a you [Spears ask find [w]e Powell] us to people. points bad Powell were Degree. of Murder in guilty the First allegedly improper these statements made tiptoe up We don’t the rail and ask prosecutor: daintily. justice We think that cries out things they think These are I of when If it. extremism in the defense of a three-and-a-half five administer vice, Barry no liberty is Goldwater a who beating minute of man is brutal said, jus- pursuit “Moderation Now, already he defenseless. dead? virtue; tice is no let not moderate.” us you that Why Mickey does Daniels tell crime, is not a moderate and these This screaming? Why was he there was guilty. They people moderately aren’t saying He wasn’t words screaming? of the crime of Murder guilty are Stop Help like: me. Save me. this. Degree. simply And First we ask screaming. gurgling He’s His voice is sentiment, you let sympathy, not man in misery. a little bit. This quite that. Let not prejudice, interfere with gruesome, painful, a dying This man is you might have to the consideration lengthy death. penalty keep you confront the death 1398-99.) (5 atTr. rounds, and find your appointed these specifically addressing re- Without in the guilty defendants of Murder marks, the OCCA denied Powell relief. Degree. First Powell, at 776. concur. 906 P.2d We See prosecutor’s appropri- were remarks (5 1404-05.) id. at commentary presented on the evidence ate deny that the OCCA’s decision We hold Mullin, Hooper trial. claim, this see ing relief on Powell Cir.2002). Prosecution an 906 P.2d at was not unreasonable brutality the beat- comments as to the Supreme of established Court application arguably response were de- ing 2254(d). Al see 28 precedent, U.S.C. argument fense incident was prosecutor “it is for a though error beating. than a fight, rather sadistic jury” guilty to reach a verdict exhort They Telling b. Jurors Had Moral duty,” of civic Vier grounds based “on Duty to Convict Powell States, 247-48, eck v. U.S. United (1943), we can 87 L.Ed. 734 challenges prosecutor’s Powell re say challenged that these remarks telling following jury, statements fundamentally unfair trial. See in a they sulted them that could 1248 Mullin, 1002,

Le v. 311 F.3d 1022 In denying Spears relief Cir.2002). claims, ineffective-assistance the OCCA Strickland,

applied but as further restrict Fretwell, 364, ed Lockhart v. 506 U.S. Challenged Effect of c. Cumulative 838, (1993): 122 113 L.Ed.2d “A Prosecutorial Comments a showing mere would conviction have argues, Cumulatively, Powell the effect been different but for counsel’s errors challenged prosecutorial remarks these would not suffice to a sustain Sixth fundamentally in a resulted unfair trial. claim,” Amendment without an additional Because OCCA never considered these inquiry into the fairness of proceeding. cumulatively, we remarks consider this ar- Spears, 900 P.2d 445. Application of Hooker, gument de novo. 293 F.3d at more onerous standard contrary considering 1237. Even these remarks in Supreme to the clearly Court’s established we cannot aggregate, conclude precedent Williams, in Strickland. they a unfair fundamentally resulted 391-95, 529 U.S. at 120 S.Ct. 1495. Under Le, proceeding. See F.3d at 1023-24. AEDPA, we therefore do afford any

deference to the OCCA’s determination Representation Ineffective Trial and, instead, Spears’ review ineffective-as sistance-of-counsel claims de novo. See Spears and Powell assert that their at- Gibson, 1203, Revilla 1220 n. torneys’ first-stage trial representation cert, (10th Cir.), denied, 1021, 537 U.S. was ineffective.27 To establish ineffective (2002). 123 S.Ct. L.Ed.2d counsel, they assistance must establish attorneys’ performance both that their contrast, By in reviewing Powell’s constitutionally deficient that this defi- claims, the properly OCCA applied Strick- cient performance prejudiced their de- land. See 906 P.2d We Washington, fense. Strickland v. 466 U.S. proceed therefore to review the OCCA’s 687, 104 S.Ct. 80 L.Ed.2d 674 decision Powell’s case to determine (1984). performance Counsel’s is deficient whether or applied not it Strickland an if objective it falls below an standard of objectively reasonable manner. See 28 687-88, reasonableness. Id. at 104 S.Ct. § 2254(d); Cone, U.S.C. see also Bell prejudice 2052. The prong is established 1843, 1852, if that, is a probability there reasonable L.Ed.2d 914 errors, but unprofessional for counsel’s jury would have had reasonable doubt Object a. Trial Counsel Failed to concerning 694-95, guilt. their Id. at First-Stage Victim-Impact Testi- “A probability S.Ct. 2052. reasonable ais mony probability sufficient to undermine confi- dence in the outcome.” Id. at Spears and Powell challenge their S.Ct. 2052. attorneys’ object failure to to both the 27. Because we failing affirm district court's ineffective for obtain mental- grant Spears’ of habeas expert relief from and Pow- sentencing health purposes sentences, capital ell's we need not address attorney Powell's claim that his should have challenging their claims attorneys' their trial requested second-stage requir- instruction second-stage representation, including ing culpa- determine his individual Spears' attorneys bility. assertion that his trial were expressed ject prosecutor presented during when evidence victim-impact guilt by personal opinion Spears’ about prosecutor’s and the stage trial’s first “justice out” jurors that cries for throughout telling this evidence on comments convicting Spears guilty and that of Assuming attor- verdict argument.28 first-stage basis,29 however, only be second-degree murder would tak- deficiency on this ney ing easy way assuming out. Even can establish nor Powell Spears neither in failing counsel was deficient to to that defense unable conclude prejudice. We are that, objections, Spears again make can- had these probability exists a reasonable that, the prosecutor and suc- not establish had not timely counsel respective their comments, testimony made these there is a reason- this objected to cessfully would probability jury able that have going thus it from commentary, precluding acquitted first-degree him of murder. acquitted jury would have jury, to the murder. first-degree defendants of above, the victim’s mother’s As discussed Object c. Failed to Trial Counsel to personal her son’s at- testimony relating Flight Instruction only portion of her was a small tributes Spears argues that his counsel testimony. first-stage relevant otherwise failing object was deficient for over- Additionally, evidence State’s jury. to the flight given instruction Jurors Spears whelmingly establishes both that, if they beyond were instructed found beating were in the and Powell involved had taken Spears reasonable doubt the victim’s death that resulted crime, they after flight soon then could comments and tes- challenged none of the determining that fact in whether consider contested is- timony primary went to the first-degree murder. Spears guilty was trial, intent to kill. sue “flight” The instruction defined as a review, conclude our de novo we Under guilt, with departure, consciousness prongs both Spears has not satisfied avoid arrest. Id. first order to Strickland, and thus he not entitled to attorney ob that his should have asserts basis, habeas On this same we relief. this jected to instruction because there deny decision to conclude that OCCA’s he evidence that took insufficient claim a reason- Powell relief on this OCCA, how flight after murder. See application able Strickland. ever, reasonably that the determined State at 780-81. 906 P.2d to sup had presented sufficient flight

port giving the instruction. counsel, Object 446. Spears’ 900 P.2d at Failed to b. Trial Counsel therefore, in failing was not deficient Instances of Prosecutorial Other object basis. Misconduct argues that trial counsel that his tri further Spears further asserts to this instruction failing objected to ob- have attorney al was deficient should prosecutor's recognize that some of the we affirm district court's We Because granting relief explaining and Powell habeas to be how the victim came remarks sentences, were, fact, death we need fur- their group’s company rele- in arguments prej- petitioners’ ther address proper case comment vant to the State's first-stage victim-im- udice from the State’s on admitted evidence. pact their evidence and comment also tainted capital sentences. State, Therefore, 682 guilt.”). Mitchell 876 P.2d trial counsel’s failure upon based corrected foresee the OCCA’s Mitchell decision (Okla.Crim.App.1993), Mitchell, objective an did not fall below standard of (Okla.Crim.App.1994). P.2d 335 Nguyen, See 131 trial, reasonableness. F.3d at Spears’ decided after held that the 1357; also, e.g., Hargett, see Ellis v. 302 give flight trial court should instruc 1182, 1187-89 (10th Cir.2002) (holding is only flight] tion “where evidence [of appellate objectively counsel was not un Id. at 685. On Spears’ controverted.” in failing reasonable to raise a claim where acknowledged appeal, direct the OCCA cases “on the books” at the time of direct did testify “[b]ecause not appeal indicated that the not OCCA would any explanation depar trial or offer of his receptive contrary argument), have been to a ture, giving flight instruction under the — denied, -, rt. U.S. ce rule appear Mitchell would to be error.” (2003); L.Ed.2d Bull Nonetheless, P.2d ock, (rejecting 297 F.3d at 1051-52 a claim OCCA denied relief on this claim object trial attorney that the should have Mitchell, law, because interpreting state hearsay ed to testimony, the victims’ based only applies prospectively. v. See Rivers on a appellate case state court decided State, (Okla.Crim. 889 P.2d 291-92 petitioner’s after the noting trial and App.1995). representation effective not require does clairvoyance). reasons, For foregoing Spears asserts that trial coun not is entitled to on habeas relief failing sel was for ineffective to make the this claim. objection same flight instruction that later succeeded Mitchell. “Gener [however,]

ally, Object d. Trial Counsel Failed to counsel not ineffective Spears’ Out-of-Court Statement anticipate arguments for failing ap Implicating Powell pellate only issues that blossomed after ” defendant’s trial.... v. Hargett, Sherrill Given our conclusion above that Cir.1999). 184 F.3d This reasonably any OCCA determined principle applies in the instant case as harmless, Bruton error was we hold that well. Nguyen Reynolds, denying OCCA’s decision Powell relief (10th Cir.1997) 1340, 1356-57 (holding trial attorney on contention that his trial and appellate counsel were not ineffective objected should have to the intro State’s failing raise a Mitchell claim before Spears’ duction of out-of-court statement Mitchell). the OCCA decided Mitchell implicating him ap was also a reasonable ju had reversed “decades [Oklahoma] plication of established federal law. See risprudence dealing with the flight instruc supra III.B.1.a; Section 906 P.2d State, tion.” Pickens 910 P.2d at 780. 1070 (Okla.Crim.App.1996); see also id. that, (noting out,” points “[a]s Mitchell e. Request Trial Counsel Failed to OCCA upheld flight “had instruction Jury Voluntary on Instructions In- against prior numerous attacks” to Mitch Diminished-Capac- toxication and ell); State, Paxton v. P.2d ity Manslaughter (“Evidence (Okla.Crim.App.1993) of a de flight fendant’s has long been held admis upon This same fate falls Powell’s claim sible as tending show consciousness that his trial counsel should request have allegedly performance deficient warrants voluntary-intoxication instructions ed relief. habeas diminish the lesser offense of defense have al manslaughter. We

ed-capacity appellate the state ready concluded 6. Powell’s Ineffective-Assistance reasonably held that the evidence did Defaulted in Claims State Court these instructions. See support giving Powell raised additional ineffec For the same rea supra III.B.3. Section tive-trial-counsel claims in his first state sons, reasonably relief denied OCCA post-conviction application, claiming that ineffective-assistance claims. See on these (1) attorney his ad inadequately defense Powell, 780; id. P.2d see also at 906 at offer, vised him the concerning plea State’s (hold Le, 777-78; at 311 F.3d 1026-27 cf. (2) object victim-impact to failed to evi not ineffec ing that defense counsel was (3) dence, impeach Wig failed to Officer failing request to a self-defense tive testimony ley’s that Powell admitted to instruction, did the evidence not where group, including him that the had instruction Oklahoma permit such under truck intended to steal victim’s law). why they Thompson, to kill had

(4) expert should have obtained an who Prejudice f. Cumulative to could have testified Powell’s level of at time of the intoxication murder.30 zeroes re- the sum of various Because partic Powell failed to these Because raise zero, prejudicial mains the claimed effect however, appeal, ular on claims direct attorneys’ their cumulative errors trial OCCA, relying 1995 on amendments to See, e.g., does not warrant habeas relief. statute, post-conviction Oklahoma’s Hannigan, F.3d Hawkins v. procedurally deemed the claims defaulted. (10th Cir.1999) (considering prejudice Powell, 935 at 381 n. 7. P.2d 381-82 & instances of defi- resulting several As we performance). cient to To re preclude federal habeas trial attor- have concluded above his view, procedural bar must be ade a state object in to to ney failing was not deficient quate, independent well from federal as Moreover, even flight instruction. as- See, Kemna, e.g., law. Lee U.S. suming attorney that his was deficient 375, 122 151 L.Ed.2d 820 objecting victim-impact to testimo- not bar, at In the case district ny prosecutor’s argument gen- and to procedural bar court held Oklahoma’s those erally, pre- the cumulative effect of applied inadequate because OCCA insufficient to create a sumed errors was amendments, post-conviction the 1995 that, for those probability reasonable but at yet were not effect though they even errors, not convicted would have oc purported default time Powell’s Similarly, first-degree murder. determining “In whether state curred. Powell has failed to establish that cu- adequate bar is an inde procedural any prejudice may effect of he bar review of a pendent ground mulative to federal claim, a habeas constitutional federal attorney’s have suffered as a result pro- capital sentencing preparation for the we affirm the district court’s deci- Because mitigat- ceeding, present additional granting from his failure sion Powell habeas relief sentence, ing proceeding, at and failure capital here we need not consider object second-stage evidence. challenging attorney's victim his trial claims 1214-15, (10th Hooks, apply Cir.1998); the state’s rule in [instead] must 184 F.3d at 1216-17; also, purported proce James, at the time e.g., effect see 211 F.3d Hargett, Barnett v. represented dural default.” 556. Powell was appeal Cir.1999). all, by attorney, After different and the as State that, expected fact, be comply “a defendant cannot serts Powell could have ade rule that procedural quately expanded with does exist developed the di the purported the time of default.” rect-appeal sufficiently permit record Gibson, Rogers v. him to raise these ineffective-trial-counsel omitted). (10th Cir.1999) (quotation Romano, appeal. Be claims on direct Cf. the relevant fore Oklahoma enacted 1995 F.3d at 1180 (holding proce that the same however, amendments, inadequate Oklahoma courts rule dural-bar without ad consistently regularly barred claims a dressing petitioner whether the could have raised, criminal defendant could have adequately expanded but the direct-appeal rec ord). assert, See, to appeal. failed on direct While we are mindful e.g., that the State Gibson, 1044, 1054, v. 278 bears proving Neill F.3d the ultimate burden of 1057 that cert, (10th Cir.2001), denied, 835, procedural its adequate, 537 U.S. mechanism was the 145, (2002); petitioner habeas allege 123 S.Ct. 154 L.Ed.2d 54 must also with Gibson, 970, specificity why procedural the v. 268 F.3d state rules McCracken 976 cert, (10th inadequate were Cir.2001), denied, permitted to him 841, have to 537 U.S. (2002). raise the omitted 165, appeal. claim on direct 123 154 L.Ed.2d 64 Smallwood, amendments, therefore, 1268; Hooks, See 191 F.3d at 1995 did not However, F.3d 1216-17. change aspect proce of Oklahoma’s because Powell does not alleged proce address his Gargle, dural-default rule. See 317 F.3d default, dural let challenge alone the ade at 1201. rules, quacy of procedural Oklahoma’s we Nonetheless, proce Oklahoma’s conclude that procedural Oklahoma’s bar is dural rules a requiring criminal adequate preclude defendant to our habeas review of to raise particular ineffective-trial-counsel claims on these ineffective-trial-represen appeal not adequate Furthermore, direct are unless that tation claims.31 Powell fails represented defendant is at trial and on to allege either excusing cause this default appeal by attorneys, different and either and prejudice, or that this court’s refusal the defendant’s ineffective-trial-counsel to the consider defaulted claims will result claim could solely be resolved on the trial a miscarriage justice. fundamental See, record before direct-appeal court or e.g., v. Thompson, Coleman 501 U.S. 722, 750, defendant could have expanded the 111 S.Ct. 115 L.Ed.2d 640 direct-appeal present record to his ineffec We therefore decline to address claim adequately. See, tive-assistance See En the merits of these barred claims. 1257, 1263, 1264-65 glish Cody, F.3d Gibson, e.g., Cannon 259 F.3d petitioner’s 31. Hooks set Although, petitioner forth habeas bur- like the Small- challenge adequacy pro- den to wood, state petition § prior Powell filed his 2254 to Smallwood, cedural bar. In we declined to Hoolcs, Powell has to failed assert before this presume unchallenged procedural an state any challenge court adequacy to the of Okla- adequate preclude to bar was habeas review procedural-default homa’s rule. Under these petitioner § where habeas filed his circumstances, we conclude that he has decision, petition prior this court’s Hoolcs a challenge. waived such Smallwood, July 1999. See 191 F.3d at Cir.2001) rights. See (declining re constitutional id. 1265-66 2254(b)(1)(B). claim, § complied Because Spears defaulted habeas procedurally view with, had appeal, court ad and did not the district though district even claim), cert. de directive the merits of court’s to exhaust state-court dressed nied, remedies, however, argument this is moot (2002). Even were we to all previously L.Ed.2d 1026 unexhausted claims are Boone, defaulted address the merits of Powell’s now exhausted. Odum v. (10th Cir.1995). claims, they confident do not war we are 332-33 We have previously rejected rant relief. argument— habeas similar

that it futile require petitioner present claims in a post-con- unexhausted Procedurally Spears’ Defaulted In- petition routinely viction when the OCCA effective-Trial-Counsel Claims procedurally such if deems claims barred petition, Spears asserted In presented appeal first on direct —on time additional ineffec- first several already upheld basis this claims, claiming tive-trial-counsel adequacy particular pro- Oklahoma (1) attorney adequate- him failed to advise Cargle, cedural bar. See offer, (2) plea concerning State’s ly n. 15. testify an expert failed to obtain witness contends, however, the time was so intoxicated at declined review OCCA these ineffective- occurred that he could not the murder claims, trial-counsel not because it deemed required formed the intent for first- have barred, mistakenly but because it them (3) murder, failed degree to introduce Spears previously had believed raised any did have evidence that not in his post- these same claims first state on after the murder.32 blood his clothes reviewing In application. conviction permit Spears to exhaust his state- To decision, apparent OCCA’s it is particular court remedies to those inef- “clearly expressly” applied OCCA claims, 28 fective-assistance see U.S.C. rule, v. procedural-default state Harris 2254(b)(1), the district court abated Reed, 1038, 489 U.S. petition. Accord- Spears’ federal habeas (1989) (quotation 103 L.Ed.2d omit- 308 asserted these claims to the ingly, Spears ted), Spears’ additional ineffective-trial- post-conviction in OCCA a second state claims. contention is with- Spears’ counsel application. Determining de- out merit. had failed faulted these claims because he post-conviction in them his first raise procedural In challenging Oklahoma’s Spears re- application, the OCCA denied first post- rule claims not raised in a lief. defaulted, Spears are petition conviction post-conviction contends that Oklahoma’s

Spears now the district argues re- provide do not sufficient proceedings him requiring to exhaust his erred claims. view of his ineffective-trial-counsel remedies on these claims be- state-court be inade- procedural state bar will post-conviction state While a cause Oklahoma’s any deprives it a defendant safeguard quate are if procedures ineffective claim, sentencing proceeding. capital We not an need address additional attorney’s challenging Spears’ preparation for claims, see, e.g., review of his meaningful Hawkins, conviction application. See No. 96-1271, Reynolds, 1, 3-4; slip op. Brecheen PC Steele cf. (10th Cir.1994), 1518, 1521-22, previously upheld Young, we have 11 F.3d 1222 n. 5 (10th Cir.1993) that, particular of this Oklahoma adequacy (recognizing while Cannon, See, procedural e.g., rule. 259 OMahoma courts have made clear that fun cases). (citing F.3d at 1266 other damental-error review is available on di appeal

rect to review claims raised Despite authority, ar this court, the trial such re fundamental-error gues particular procedural-default view is not available where the defendant inadequate rule preclude federal ha has not raised the issue until his state has, beas review because OCCA on Brown, post-conviction application). In occasion, chosen to of a review merits stay the OCCA did petitioner’s execu any defaulted claim to prevent miscarriage tion and hearing remand on claims justice. A procedural-default state rule raised for the first time in a post- second adequate will if apply be the state it courts Brown, however, conviction application. See, regularly consistently. e.g., John appears to have been primarily based 578, 587, Mississippi, son v. Brown, newly discovered evidence. See Pivot L.Ed.2d PCD-2002-781, 2-3, No. slip op. at 4.n. al analysis to our whether [state] “is We thus conclude that two unpub these application of particular courts’ actual lished are not sufficiently decisions analo procedural to all default rule similar claims gous to our inform determination has majority been evenhanded in the vast whether the regularly OCCA and consis Thomas, of cases.” Maes v. tently applies specific procedural bar it (10th Cir.1995) omitted). (quotation applied Spears’ case. To support argument, Spears relies on Valdez, however, In the OCCA did “ex- State, 703, 704-05, Valdez v. 46 P.3d 710- ercise power grant its to relief when an 11 (Okla.Crim.App.2002), unpublished complained error of has in resulted a mis- State, decisions in Hawkins v. No. PC 96-1271 carriage justice, or constitutes a sub- (Ok la.Crim.App. 1998), Mar. stantial violation of a constitutional or stat- Clayton (Okla State, v. No. PCD-2000-1618 utory right” and did review the a merits of 28, 2000), Dec. .Crim.App. Brown procedurally defaulted claim asserted for State, (Okla.Crim.App. No. PCD-2002-781 the first time in a second post-conviction 22, 2002); Revilla, Aug. generally see 283 704-05, application. 46 P.3d at 710-11. (noting F.3d at 1210 n. 3 that Hawkins Similarly, reviewed, Clayton, in the OCCA and Clayton, unpublished opinions that for fundamental miscarriage justice, may binding authority, not very be “at the procedurally barred claim raised for the least ... reflect that not OMahoma does in first time post-conviction second appli- now invariably apply its default rules to PCD-2000-1618, cation. See Clayton, No. issues”). bar death-ineligibility Nonetheless, slip op. at 2-5. these cases

Hawkins, however, is sufficiently appear only to be the instances where the analogous Spears’ to case because procedural OCCA overlooked an analogous OCCA in that case reviewed the merits default in a second or successive state asserting Hawkins’ claim and, he was le post-conviction application, standing gally sentence, ineligible alone, for a death raised these cases are insufficient to over- for the time in post- first his state come regular Oklahoma’s and consistent first 752-53, 2546; Smallwood, in S.Ct. rule procedural-bar of this application Maes, Spears F.3d at is unable to cases.” 1269. Just majority of “vast omitted); his excusing see also establish de- (quotation procedural cause at 986 F.3d Deland, fault, F.2d precluded reviewing we are Andrews Cir.1991). Spears’ ineffective-assistance defaulted

claims. bar, there procedural

Oklahoma’s fore, federal adequate preclude to remains Evidentiary Hearing 8. can Spears establish review unless habeas Spears district court asserts default, and excusing resulting cause his evidentiary an should have conducted to or that this court’s refusal prejudice, hearing prior denying relief on his inef- in a result funda these claims will review fective-trial-representation re- claims. We miscarriage justice.33 See Cole mental above, ject this As argument. discussed man, Spears’ four of ineffective-trial-counsel excusing a default must procedural Cause defaulted, and never Spears claims were objective factor external to the some be evidentiary fairly requested hearing an state petitioner, not attributable habeas him, comply remaining court on four ineffective- impeded his efforts his question. Having claims. defaulted these procedural rule assistance with the claims, 753, 111 now U.S.C. S.Ct. 2546. he must meet 28 id. 2254(e)(2) requirements before he will default, Spears cause his As for evidentiary hearing. be an entitled to argument his Oklahoma’s reprises how Spears to assert he meets those fails are procedures insuf post-conviction state deny requirements, and we relief fashion, Further, conclusory ficient. See, Torres, e.g., on this claim. conflicted defender asserts that “a at 1161. an paid inade selected and

organization post- for Spears’s [first] sum Mr. quate Spears’ Appellate Representation Br. at (Spears counsel.” Second conviction coun- appellate contends 70.) how explain better Spears fails for raise his failing sel was ineffective attorney would have compensation claims on result, and, event, defaulted ineffective-trial-counsel any a different led to ap- direct He asserts ineffective appeal.34 representation post- in state ineffective both as a substan- inadequate pellate representation proceedings is to ex conviction excusing claim additional cause 28 tive and as procedural default. See U.S.C. cuse Coleman, ineffective-trial-counsel 2254(i); 501 at his default of those see also U.S. plies first-stage to ineffective- court's his defaulted Spears does that this refusal assert claims, his defaulted claims he is to consider merits of he has not shown assistance murder, miscarriage result in fundamental actually will first-degree as innocent apparently only to justice, but as his death require. Schlup v. exception would See we affirm district sentence. Because 321, 851, Delo, 298, 130 U.S. 115 S.Ct. granting Spears decision habeas relief court's (1995). L.Ed.2d 808 sentence, not fur- from his we need address his a fundamental miscar- ther assertion of to Again, this claim we need not address justice riage of relates to sentence. as it sentencing capital the extent it concerns Spears allege that the were funda- Even proceeding. exception ap- mental-miscarriage-of-justice claim, failed to To on a Spears challenge Brady claims. Because succeed until his Powell appellate representation his sec- must establish that the evidence at him; post-conviction proceeding, ond state how- issue is favorable that the State ever, suppressed evidence, court also appellate the state deemed this favorable either procedurally willfully inadvertently; to have defaulted preju and that Greene, these For the reasons in dice claims. discussed ensued. See Strickler above, 263, 281-82, precluded 1936, Section III.B.7. we are U.S. from reviewing his substantive ineffective- L.Ed.2d 286 By acknowledging claim. appellate-counsel See that his generally defense counsel was aware of and Gibson, Thomas v. 218 F.3d 1221 had audiotaped listened to this statement (10th Cir.2000) (recognizing prior trial, procedur- Powell defeats his own claim. Furthermore, al adequacy). bar’s We have held that there can sup “be no rely procedurally pression cannot on his by defaulted the state of evidence already claim ineffective-appellate-counsel pro- known to [the available defendant] excusing prior vide cause barred ineffective- to trial.” States v. United Hernan claims, dez-Muniz, unless trial-counsel he can also es- Cir. 1999) omitted). excusing tablish cause (quotation Furthermore, default of the ineffective-appellate-counsel government claim. while “[t]he violates a defen rights Edwards v. dant’s due Carpenter, process U.S. 451- when it fails to (2000). provide information, him exculpatory L.Ed.2d 518 with ... process due necessarily has to do that does failed here.35 re

quire in specific disclosure form or man ner.” Brady Id. Powell’s claim does not 10. State’s Failure to Turn Ex- Over warrant habeas relief. culpatory Required Material Brady Maryland36 Under IV

Finally, Powell contends that the State failed to turn over to his defense counsel a reasons, For the foregoing we AFFIRM typewritten summary of an audio taped grant district court’s of habeas relief custodial Powell statement made to au- as to both death sentences and AFFIRM that, responds thorities. The State be- the denial any further habeas relief. cause Powell did not raise this Brady claim until applied post-convic- he state HARTZ, Judge, Circuit concurring. relief, tion the OCCA deemed him to have procedurally defaulted this claim. For I ef- concur in join the result and all of ficiency, we address the Judge merits opinion except 111(A), Powell’s Lucero’s part See, Brady e.g., claim. Romero v. Fur- which relates State’s appeals. long, Cir.2000) Rather grant than relief because of the (declining to address Colorado’s procedur- photographs admitted into evidence during al bar petitioner’s claims penalty “because the phase, I would set aside the may case easily be more succinctly death penalties because no state decision- merits”). affirmed on the jury judge or found that the maker — —has Further, because has defaulted this 36. 373 U.S. 10 L.Ed.2d 215 claim, ineffective-appellate-assistance an evi- dentiary hearing is not warranted. indicat- from the defendant being statements while consciously suffered victim seri- ing consciously the victim suffered law the Oklahoma murdered. Under abuse or extreme mental physical in ous imposed not be should penalty death death; witness testimo- cruelty prior consciously suf- victim unless the this ease the victim was alive and con- ny that matter was on the The evidence fered. indeed, physical the time the abuse uncontroverted; scious at one of hardly inflicted; medical evidence that was or testified witnesses principal government’s during the in- the victim was conscious unconscious was rendered that the victim injury. Yet, physical fliction of serious remarkably, first blows. by the find that it had to not instructed jury was State, 900 P.2d 448-49 any did court suffering, nor conscious (citations omitted; (Okla.Crim.App.1995) finding. necessary make the added). emphasis second First, clear that con- law is Oklahoma Second, dispute a real there was factual proved. The had to be suffering scious whether the victim had con- concerning Appeals of Criminal Court Oklahoma Johnson, a sciously suffered. Claiborne (OCCA) in its decision recognized as much murder who reached a participant Spears’s appeal. Mr. resolving testi- prosecution, with the plea agreement wrote: victim, Dewayne Thompson, that the fied af- immediately knocked unconscious proving was the burden State bears

[T]he the first blows: ter Mr. Powell struck aggrava- a reasonable doubt beyond charge. it elects to circumstances ting see, Now, you Q: right. All did ever there whether must now determine We you first saw [Mr. the time when support competent evidence any was down, you did ever see Thompson] go espe- finding the murder jury’s kind of defensive any him assume heinous, or cruel. atrocious cially arms say, put That is to posture? (indicating) to de- to find that a fashion up for a this In order heinous, atrocious himself? especially fend murder cruel, com- must introduce or the State No, A: I didn’t. indicating the victim’s petent time, him, any Q: you ever see Did by torture or seri- preceded death was standing up laying or it be whether abuse, include may physical which ous pos- any take defensive ground, physical suf- great infliction of either at all? ture cruelty. Seri- or extreme mental fering evidence of requires abuse physical ous Because the time A: No I didn’t. we suffering. As physical conscious was knocked ground, he he hit the State, [521,] 893 P.2d Perry [v. stated out. it is critical [Okla.Crim.App.1995]], supposi- your that is Okay. xvii. Now consciously prove the victim the State a medical doctor. You’re not tion. death. Prosecutors prior suffered he was out whether You don’t know other aggravator [in proved have not, you? do the vic- introducing evidence cases] for No, whether or not I don’t know A: defensive wounds numerous tim suffered like or not. It looked he was out sure was conscious indicating that the victim attacker; it. her fight to off attempted Q: right. All prosecution presented enough evidence. They go jail juries, to because their after I way looking A: The from how was at evidence, reviewing the guilt find beyond a him, it like he looked was out. Likewise, reasonable doubt. people are

not simply executed because the prosecu put tion enough evidence justify to the Q: you Let me Okay. question ask death penalty. They can only be executed here, okay? thought You guy if appropriate the decisionmaker the finds out; is that correct? necessary predicates factual for the death Yes, A: moving. he wasn’t penalty. only The significant difference this regard between the determination of Tr., Trial Vol. 1165-66. Another guilt that, and the decision to execute is eyewitness, Hensley, similarly Vickie testi- prior Arizona, least Ring 536 U.S. directly fied Mr. fell to the 153 L.Ed.2d 556 ground suffering after the first blows. (2002), there right was no jury have a Additionally, no evidence indicated that make death-penalty finding, so the Mr. Thompson resisted the beating: He finding by could be made the trial judge or wounds, had no defensive and none of the appellate even an court. See Clemons v. witnesses testified that protect he tried to Mississippi, 747-50, himself or that he called for assistance 1441, 108 L.Ed.2d 725 Moreover, bystanders. the medical examiner testified that the cause of death Here, say we cannot jury that the found was trauma to the brain that could have conscious suffering. The term “conscious single resulted from a blow to the head. suffering” appears nowhere in jury Indeed, spoke paucity OCCA of “the instructions. respect With to the “espe- supporting aggravator espe- heinous, cially atrocious, or aggrava- cruel” heinous, cially atrocious or cruel.” Spears, tor, jury only instructed that the 900 P.2d at 443. “phrase heinous, especially atrocious, or cruel is directed to those crimes where sure, To be there was contrary also evi- death of the preceded victim was by tor- dence; and I do not dispute the determina- ture or physical serious abuse.” If we by tion the OCCA that there was “testimo- knew jury had found that ny sufficient to allow a rational jury victim subjected torture, had been we conclude Thompson was during conscious readily could finding infer a of conscious the beating preceded which his death.” suffering. But jury was instructed it concern, rather, Id. at My is that no only need find either torture or serious actually one made finding that Thomp- physical abuse. And jury might well experienced son physical conscious suffer- have found physical serious yet abuse ing. found conscious suffering. The evidence The function of a criminal trial is not at trial readily could support the conclu- simply prosecution for the to put on sion that the victim suffered serious physi- enough jury evidence that a could find the (a cal abuse beating severe and possibly defendant guilty. jury The has a role to wounds) (as some stab before death re- play. prosecution’s evidence counts instruction) quired by the but having after naught unless convinced Thus, lost consciousness. in light of the it. People go jail do not here, given instructions a verdict that the because atrocious, in Moore v. heinous, This circuit’s decision Gib- “especially crime (10th Cir.1999), son, upon 195 F.3d 1152 a find- necessarily imply does or cruel” relies, nothing more the State does which suffering. conscious ing of in Lewis that proposition follow the than “ jury on con- instruct the The failure to a court’s habeas review of state ‘federal not, however, end the suffering does scious constitutionally narrowed application of it was not law pre-Ring matter. Under limited, is at circumstance aggravating aggrava- find the jury necessary for most, whether the state determining imposition necessary for circumstance ting arbitrary or finding capri- was so court’s even an judge, A penalty. death of the independent an due cious as to constitute ” court, finding. could make the appellate violation.’ Eighth or Amendment process 747-50, Lewis, Clemons, S.Ct. (quoting at 1176 U.S. 3092) added). 780, (emphasis here. As not done 110 S.Ct. But that was proposition Lewis for the quotes It further noted, Spears’s the OCCA previously “ finding aggra- of an that state court’s ‘[a] suffi- only that there was determined case in a case vating particular circumstance jury to find conscious for a cient evidence if only if and arbitrary capricious ... It did not P.2d at 449. suffering. 900 could have so con- reasonable sentencer no would be— finding own fact what its state ” Lewis, cluded,’ (quoting id. at 1176 convinced that court itself was whether the 3092), then U.S. at S.Ct. consciously had suffered. continues, fully be- discussed more “[a]s determination made a similar OCCA here,” low, In is not the case id. State, 906 Powell v. appeal, see Powell’s words, from the as- other Moore started (Okla.Crim.App.1995), P.2d 781-82 had found that the state court sumption finding a fact similarly to make failed aggravating for the predicates the factual own. its circumstance, thereby limiting the circuit Jeffers, 497 whether determining that in Lewis v. recognize I court’s role to was rational. factfinding 111 L.Ed.2d U.S. (1990), affirmed an Supreme Court State, Likewise, 909 P.2d 92 Romano v. ground on the penalty

Arizona death support (Okla.Crim.App.1995), cannot have found that factfinder could “a rational view, that case the court because in State’s the crime and both relished respondent instructed on had been noted that on the vic- violence gratuitous inflicted n. at 121 18. suffering, id. conscious of re- the same standard apparently tim”— technicality. not a here is The issue in the by the OCCA applied view system to our more central Nothing is But there is critical appeals. and Powell a factfinder decide justice having than and the cases between Lewis difference this court to decide It is not for facts. In the Court was appeal. Lewis now Powell deserve Spears and whether Supreme Arizona Court’s reviewing “the reverse their But we must penalty. death had relished finding respondent made the find- no one has sentences when in- had respondent .... killing [and] law. required by Oklahoma ings 783-84, Id. at gratuitous violence.” flicted added). Thus, an (emphasis case had appropriate decisionmaker findings, fact requisite made the

already not done here.

something

Case Details

Case Name: Spears v. Mullin

Court Name: Court of Appeals for the Tenth Circuit

Date Published: Aug 12, 2003

Citation: 343 F.3d 1215

Docket Number: 01-6258, 01-6267, 01-6349, 01-6354

Court Abbreviation: 10th Cir.