Howell v. Trammell

FILED
United States Court of Appeals
Tenth Circuit

September 5, 2013
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

MICHAEL WAYNE HOWELL,

Petitioner - Appellant,
v. Nos. 02-6324 and 12-6014
ANITA TRAMMELL, * Warden,
Oklahoma State Penitentiary,

Respondent - Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
(D.C. Nos. CV-99-1803-A and 5:07-CV-01008-D)

Steven M. Presson, Presson Law Office, Norman, Oklahoma (Robert W. Jackson,
Jackson & Presson, P.C., Norman, Oklahoma, with him on the briefs in 02-6324),
and Paul R. Bottei (Amy D. Harwell and Kelley J. Henry, Office of the Federal
Public Defender, Middle District of Tennessee, Nashville, Tennessee, and Steven
M. Presson, Presson Law Office, Norman, Oklahoma, with him on the motion in
12-6014), Office of the Federal Public Defender, Middle District of Tennessee,
Nashville, Tennessee, for Appellant.

Jennifer J. Dickson, Assistant Attorney General (E. Scott Pruitt, Attorney General
of Oklahoma, with her on the supplemental brief, and W. A. Drew Edmondson,
Attorney General of Oklahoma, and Jennifer B. Miller, Assistant Attorney
General, on the opening brief), Office of the Oklahoma Attorney General,
Oklahoma City, Oklahoma, for Appellee.

*
Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Anita
Trammell is automatically substituted as the Respondent in this case.
Before LUCERO, TYMKOVICH, and GORSUCH, Circuit Judges.

TYMKOVICH, Circuit Judge.

This appeal considers two petitions for habeas relief arising from the

murder conviction and death sentence of Michael Wayne Howell. Howell’s first

petition came before us in 2002. After the Supreme Court ruled that states could

not impose capital punishment on persons with mental impairments, we abated

that petition and allowed Howell to pursue a mental-disability challenge to his

sentence in Oklahoma state court.

In 2005, a state court jury found that Howell was not mentally retarded. 1

Howell then filed a second petition, alleging seventeen grounds for relief from his

mental-disability trial, in addition to the five grounds remaining from his first

petition that were never considered by this court.

1
We acknowledge that “[i]n 2006, the American Association on Mental
Retardation [] changed its name to the American Association on Intellectual and
Developmental Disabilities []. ‘Intellectual disability,’ rather than ‘mental
retardation,’ is now the preferred terminology. [Citation omitted.] Also, recently
enacted federal legislation known as Rosa’s Law, Pub. L. No. 111–256, 124 Stat.
2643 (2010), mandates the use of the term ‘intellectual disability’ in place of
‘mental retardation’ in all federal enactments and regulations. Nonetheless,
throughout this opinion, we employ the old terminology because the legal sources
relevant to our analysis, including Oklahoma law, our own prior opinions, and the
opinions of the Supreme Court, use the terms ‘mental retardation’ and ‘mentally
retarded.’” Hooks v. Workman, 689 F.3d 1148, 1159 n.1 (10th Cir. 2012).

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 We now conclude that Howell is not entitled to habeas relief on either

petition. The state provided him a fundamentally fair mental retardation trial, and

both his guilt phase and second penalty phase were free from prejudicial error.

The one cognizable error from his first penalty phase—inappropriate contact

between sheriff’s deputies and a juror—was corrected when Oklahoma’s appellate

court reversed Howell’s first death sentence and remanded for a new penalty trial,

which also resulted in a sentence of death. In sum, there is no ground on which

we can disturb Howell’s conviction or sentence.

Therefore, exercising jurisdiction under 28 U.S.C. §§ 1291 and 2253(a), we

affirm the district court’s denial of Howell’s first habeas petition, and we deny a

certificate of appealability (COA) as to Howell’s second petition in case number

12-6014 and dismiss that appeal.

I. Background

Howell and his girlfriend, Mona Lisa Watson, commenced a crime spree on

November 2, 1987, that led to the deaths of two people. It began in a Shelby

County, Tennessee, 7-Eleven market. As Watson was on her way out of the store

with a six-pack of beer, Howell pulled out a silver .38 revolver and shot the store

clerk, Alvin Kennedy, in the head, killing him. Howell and Watson then left the

store and drove off.

The two traveled west to Oklahoma. While driving, they drank beer and

used cocaine. When they reached Del City, Oklahoma, Howell decided to exit the

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highway and stop at a convenience store, where he purchased lighter fluid.

According to Watson’s preliminary hearing testimony, their truck was low on gas,

so the two were looking for another vehicle. Driving around town, they spotted a

woman, later identified as United States Air Force Sergeant Charlene Calhoun,

standing outside of an apartment complex next to her 1987 Toyota Tercel.

Howell stopped his truck and approached her. He then shot Calhoun in the face. 2

Watson helped Howell load Calhoun’s body into the Tercel. The two then

poured the lighter fluid into the truck and set it on fire before driving off with the

body in Calhoun’s car. A few miles down the highway, in a deserted area, they

exited. After driving down a dirt road, they found what looked to be an

abandoned trailer, and there they dumped the body. Back in the Tercel, Howell

and Watson returned to Tennessee before continuing south to Florida.

The Del City police found the abandoned, burnt truck by the apartment

complex and learned that the truck, owned by the Lynn Whitsett Corporation of

2
Howell claims he was there to complete a drug deal with Calhoun on
behalf of an interstate drug ring, and that, after an argument broke out about the
terms of the deal, Calhoun brandished a knife. Thus, he claims he shot her in
self-defense. But at the preliminary hearing, Watson denied there was a drug deal
and testified that, in fact, Howell shot Calhoun without provocation so that they
could steal her car. Watson recanted at trial, but no evidence was presented, other
than Howell’s own testimony, showing that Howell was part of a drug ring or that
Calhoun dealt drugs. Ultimately, the jury found Howell guilty of first-degree
murder, and on habeas review of a jury verdict, we view the evidence in the light
most favorable to the government. Jackson v. Virginia, 443 U.S. 307, 318–19
(1979); see also Hooks v. Workman, 689 F.3d 1148, 1167 (10th Cir. 2012).

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Memphis, Tennessee (Howell’s former employer), had been reported stolen. The

police also found blood by the truck and began searching for Calhoun. Finally,

on November 17, they found her badly decomposed body where Howell had left

it—by a deserted trailer over four miles from the apartment complex.

About two weeks later, on November 29, police officers in Panama City,

Florida, spotted a 1987 Toyota Tercel with Tennessee plates that did not match

the vehicle. When the officers tried to stop the car, Howell—sitting in the

passenger seat—pulled out his revolver and fired at them. The police fired back,

and Watson, in the driver’s seat, sped off. The police gave chase until Watson

and Howell, who was shot in the leg and out of bullets, finally surrendered. The

police later confirmed that the revolver Howell used during the car chase was the

same silver .38 that he had used to kill Kennedy and Calhoun. The police also

confirmed that the Tercel belonged to Calhoun.

Howell and Watson stood trial in Oklahoma state court for the murder of

Charlene Calhoun in 1988. They both were convicted. Howell received a

sentence of death, and Watson received life in prison. Tennessee then tried

Howell for the murder of Alvin Kennedy in 1989; Howell was convicted and

again sentenced to death. This appeal concerns alleged errors in the Oklahoma

trial and in that case’s subsequent proceedings. 3

3
For Howell’s Tennessee trial and subsequent proceedings in that case, see
(continued...)

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 II. Procedural History

A. First Trial

Howell and Watson were tried together before a jury in Oklahoma state

court for the first-degree murder of Sgt. Calhoun. The guilt phase began on

November 28, 1988, and concluded on December 6, 1988, when the jury rendered

a guilty verdict as to both Howell and Watson. At that point, because the

prosecution was seeking a death sentence, the trial court sequestered the jury in a

local motel for the penalty phase. After two more days of hearing evidence and

argument, the jury recommended a sentence of death for Howell and life in prison

for Watson. The court followed both recommendations.

A few months after the trial, Howell’s defense attorneys learned that one of

the jurors, Diana Smith, claimed to have engaged in inappropriate conduct with

two sheriff’s deputies during the jury sequestration at the penalty phase. Juror

Smith alleged that she had visited the deputies’ motel room at night and discussed

the case with them. She also alleged intimate contact with one of the deputies.

Based on these allegations and other purported errors during both phases of

the trial, Howell appealed his conviction and sentence to the Oklahoma Court of

Criminal Appeals (OCCA).

3
(...continued)
generally State v. Howell, 868 S.W.2d 238 (Tenn. 1993), cert. denied, 510 U.S.
1215 (1994), and Howell v. State, No. W2009-02426-CCA-R3-PD, 2011 WL
2420378 (Tenn. Crim. App. June 14, 2011).

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 B. First OCCA Decision

Howell alleged numerous errors in this appeal, including juror misconduct;

the trial court’s admission of Watson’s preliminary hearing transcript; its

admission without a limiting instruction of testimony from Watson’s former

attorneys, whom the prosecution called to rebut Watson’s claim that the State had

coerced her preliminary hearing testimony; and the failure of one juror to reveal

his employment history with the CIA during his voir dire. We discuss these

allegations in more detail below.

The OCCA affirmed the guilty verdict, finding no prejudicial error. See

Howell v. State, 882 P.2d 1086 (Okla. Crim. App. 1994) (Howell I). First, the

OCCA concluded that the admission of Watson’s preliminary hearing transcript

did not violate the Confrontation Clause, in part because the preliminary hearing

testimony “was given in circumstances closely approximating those of a typical

trial,” thereby satisfying the criteria articulated in California v. Green, 399 U.S.

149 (1970), “to adequately safeguard [Howell]’s right of confrontation.” Howell

I, 882 P.2d at 1091 (citing Green, 399 U.S. at 165). Further, the court observed

that “cross examination at a preliminary hearing can . . . satisfy the confrontation

requirement.” Id. (citing Ohio v. Roberts, 448 U.S. 56, 72 (1980)).

Second, Howell claimed that the trial court had “an affirmative duty to

instruct the jury sua sponte that [the testimony of Watson’s former attorneys]

could be used only for impeachment purposes and not for substantive purposes.”

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Id. at 1094. The OCCA rejected that claim, saying the trial court’s failure to give

a limiting instruction sua sponte “does not automatically constitute reversible

error,” and that the failure did not rise to the level of “plain error” in Howell’s

case. Id.

Third, citing a prior OCCA decision, Tibbetts v. State, 698 P.2d 942 (Okla.

Crim. App. 1985), Howell argued that a juror’s “deliberate” withholding of his

full employment history was inconsistent with fundamental fairness. Howell I,

882 P.2d at 1089. The OCCA summarily rejected this argument, saying only,

“[Howell]’s reliance on Tibbetts is misplaced, and the proposition is denied.” Id.

But based on the alleged juror misconduct during the penalty phase, the

OCCA reversed Howell’s death sentence and remanded for resentencing. The

court described the alleged misconduct in some detail, including that the juror met

with the deputies in their motel room during the penalty phase, that they

discussed her guilt-stage deliberations, that they drank alcoholic beverages

together, and that, on at least one night, they engaged in “some form of sexual

activity.” Id. at 1094. Acknowledging the “impermissive, unauthorized and

improper contacts by the deputies with” the juror, the court concluded that it

“must remand this case for resentencing.” Id. at 1095 (emphasis in original).

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 C. Second Penalty Phase

A second penalty phase trial was held in 1996. 4 The jury found the

existence of three aggravating circumstances: (1) Howell was previously

convicted of a felony involving the use or threat of violence; (2) the murder was

committed for the purpose of avoiding or preventing a lawful arrest or

prosecution; and (3) Howell probably would commit future acts of violence and

thus posed a continuing threat to society. As a result, the jury recommended a

punishment of death, and the trial court sentenced accordingly.

D. Second OCCA Decision

Howell again appealed, raising sixteen alleged errors, including that the

court erred in not granting a new guilt phase trial in light of the outrageous juror

misconduct during the first penalty phase, and that Howell’s counsel from the

second penalty phase was constitutionally ineffective for telling the jury that

Howell was already on death row at the Oklahoma State Penitentiary.

The OCCA affirmed in full. See Howell v. State, 967 P.2d 1221 (Okla.

Crim. App. 1998), cert. denied, 528 U.S. 834 (1999) (Howell II). On Howell’s

request for a new guilt phase trial, the court noted that Howell was using the same

evidence in his second appeal as he used in his first. Id. at 1224. Therefore, the

4
Court proceedings in both Oklahoma and Tennessee caused the delay.

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OCCA concluded its prior decision to remand only for resentencing was “res

judicata,” and it would not revisit the issue. Id.

On Howell’s ineffective-assistance-of-counsel (IAC) claim, the court found

“it was counsel’s strategy to show that [Howell] had been a model prisoner while

on death row, thereby rebutting the continuing[-]threat aggravating

circumstance.” Id. at 1226. The court refused to “second guess trial strategy,”

and denied the claim. Id.

The OCCA also engaged in a full sentence review, as mandated by

Oklahoma law. See Okla. Stat. tit. 21, § 701.13(C) (1991). The court found

support for each of the three aggravating factors. For the first factor, the court

identified nine prior convictions against Howell involving the use of threat, force,

or violence, including two counts of attempted murder in the first degree and one

count of murder in the first degree during the commission of a robbery. Howell

II, 967 P.2d at 1229. For the second factor, the court observed that “[Howell]

sought to avoid arrest or prosecution for the theft of Sgt. Calhoun’s vehicle” by

removing her body from the scene of the murder and hiding it over four miles

away before absconding with her car. Id. at 1227. And for the third factor, the

court found that “the callous nature of the crime, [Howell]’s blatant disregard for

the importance of human life, and his demonstrated pattern of criminal conduct

render him a continuing threat to society.” Id. at 1229.

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 The court next reviewed Howell’s mitigation evidence. It listed eleven

different claims Howell offered in mitigation, including that “his childhood was

poor and violent,” that “he suffers from a brain dysfunction,” and that “he never

received any intervention to recognize and treat his deficiencies.” Id.

Acknowledging Howell’s mitigation case, the court nevertheless concluded that

the death sentence was “factually substantiated and appropriate.” Id. The court

also found that the penalty was imposed without the influence of juror “passion,

prejudice[,] or any other arbitrary factor.” Id. Thus, the death sentence was

affirmed.

E. First Habeas Petition

After exhausting Oklahoma’s post-conviction review, Howell filed a 28

U.S.C. § 2254 petition in federal court in 2000, raising ten grounds for relief. In

2002, the district court denied relief on all grounds, and Howell appealed only as

to five.

Also in 2002, the Supreme Court decided Atkins v. Virginia, 536 U.S. 304

(2002), holding that the Eighth Amendment barred the death penalty for persons

with severe mental disabilities. At the time, Howell’s appeal from the denial of

his first habeas petition was before us. Howell requested that we hold his appeal

in abeyance while he pursued relief from his death sentence in state court under

an Atkins theory. We abated the appeal.

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 F. Atkins Trial

The Oklahoma courts determined that a trial was necessary to decide

Howell’s mental capacity. A jury trial commenced for that purpose on May 23,

2005. Howell elected not to be present. Three witnesses—a psychologist (Dr.

Daniel Grant) and two of Howell’s siblings—testified on Howell’s behalf. Four

witnesses—a psychologist (Dr. John Hutson), Howell’s former prosecutor, a

police officer, and Howell’s former co-defendant and current wife (Watson)—

testified for the State. The judge instructed the jury to find Howell “mentally

retarded” under Oklahoma law if Howell proved by a preponderance of the

evidence (1) that he had significant subaverage intellectual functioning (i.e., an

IQ below 70), (2) which manifested itself before he was eighteen years of age,

and (3) that he had significant limitations in adaptive functions. On May 27,

2005, the jury unanimously decided that Howell was not mentally retarded.

G. Third OCCA Decision

Howell appealed the jury’s Atkins determination to the OCCA, raising

eleven propositions of error, including that the facts proven at trial demonstrated

his mental retardation as a matter of law, and that the trial court should have

placed the burden of proof on the government.

The OCCA affirmed the jury’s decision. See Howell v. State, 138 P.3d 549

(Okla. Crim. App. 2006) (Howell III). Reviewing the evidence “in a light most

favorable to the State,” the OCCA found the record supported the verdict. Id. at

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562. The court observed that Howell’s IQ scores ranged from 62 through

91—more than enough for a jury to conclude that Howell’s true IQ was not below

70. See id. at 562–63.

The court also noted, “Other evidence, besides the testing scores, suggested

that Howell was not limited in his abilities to understand and process information,

not limited in communications [sic] skills, was able to learn from experiences or

mistakes, was able to engage in logical reasoning, and was able to understand the

reactions of others.” Id. at 563. The court then highlighted Howell’s hand-

written letters to Watson, whom Howell married while both were in prison, and

Howell’s testimony at trial in 1988 and before a judge in 1996.

On Howell’s burden-of-proof argument, the OCCA re-affirmed its prior

decisions giving the defendant the burden to prove mental retardation by a

preponderance of the evidence. Id. at 562 (citing, inter alia, Myers v. State, 130

P.3d 262, 265 (Okla. Crim. App. 2005)). The court explained, “[That] a

defendant is not mentally retarded is not an aggravating circumstance which the

State must prove beyond a reasonable doubt. . . . Eligibility for the death penalty

is a different issue than proof of an aggravating circumstance.” Id. at 561 (citing

Okla. Stat. tit. 21, § 701.12 (2001)).

The court also correctly noted that several other states—including

Louisiana, New York, South Carolina, and Tennessee—likewise allocated the

burden of proof to the defendant. See State v. Anderson, 996 So. 2d 973, 984–85

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(La. 2008); People v. Smith, 751 N.Y.S.2d 356, 357 (N.Y. Sup. Ct. 2002); State v.

Laney, 627 S.E.2d 726, 730–32 (S.C. 2006); Howell v. State, 151 S.W.3d 450,

467 (Tenn. 2004); see also Howell, 151 S.W.3d at 467 (listing more states of

accord, including Georgia, Mississippi, New Mexico, Ohio, Texas, and Virginia). 5

Hence, the OCCA denied this ground for relief as well.

H. OCCA’s Post-Conviction Review of the Atkins Trial

After the appeal, Howell filed another petition for post-conviction relief in

state court, raising several claims of ineffective assistance of counsel during the

trial on mental retardation. As relevant here, Howell alleged that the prosecution

struck jurors based on their race, in violation of Batson v. Kentucky, 476 U.S. 79

(1986), and that his counsel was constitutionally ineffective for failing to object.

Howell also alleged that his trial counsel failed to exclude key parts of the state

expert Dr. Hutson’s testimony, and that counsel failed to include testimony from

Howell’s former high school teacher showing that Howell had been enrolled in

special education classes.

The OCCA denied post-conviction relief. See Howell v. State, No.

PCD-2006-712, slip op. (Okla. Crim. App. Sept. 10, 2007) (unpublished) (Howell

5
The OCCA acknowledged that, at the time of its decision, a New Jersey
court had placed the burden of proof on the prosecution. But following the
OCCA’s decision, the New Jersey Supreme Court reversed the lower court, and
now New Jersey also allocates the burden of proof to the defendant. See State v.
Jimenez, 908 A.2d 181, 190 (N.J. 2006).

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IV). The court rejected the Batson claim because “[Howell] failed to demonstrate

that the prosecutor lacked a race-neutral explanation for the strikes [Howell]

complains about.” Id. at 5. The court rejected the related IAC claim because it

“presume[d], in the absence of any information to the contrary, that counsel had a

sound strategic reason for not objecting to the removal of these panelists.” Id.

And the court rejected Howell’s IAC claim regarding the failure to object to Dr.

Hutson’s testimony because the court did not believe that the testimony was

inadmissible in the first place, and in the alternative, it concluded the error was

not prejudicial given all the other testimony from both sides about Howell’s IQ

and the uncertainty of IQ testing. Id. at 8–11.

Lastly, the OCCA rejected Howell’s IAC claim regarding the failure to

include the teacher’s testimony because, according to the court, the error was not

prejudicial. The court noted that Howell already presented his siblings’ testimony

that he was in special education classes with them in high school, and the

prosecution rebutted that testimony with Howell’s high school transcripts, which

do not show him in special education classes (while his siblings’ transcripts do

show that they were in such classes). Hence, reasoned the court, adding

additional testimony that Howell actually was in special education classes still did

not explain why his school records showed otherwise. The court concluded,

“Given [his siblings’ testimony], along with extensive testimony from the defense

expert, we fail to see how the very cursory information [Howell] provides from

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[the teacher] would have added materially to the defense case, or how it could

have altered the outcome of the trial.” Id. at 21.

I. Second Habeas Petition

After exhausting all state court remedies, Howell filed his second federal

habeas petition, alleging various errors in his Atkins trial. The district court

denied all relief. It also declined to grant a COA, meaning the court concluded

that no reasonable jurist could debate whether Howell’s petition should have been

resolved differently or deserved encouragement to proceed further. See, e.g.,

Slack v. McDaniel, 529 U.S. 473, 484 (2000).

Without a COA from the district court, Howell could not appeal the denial

of his second habeas petition unless he received a COA from this court, see 28

U.S.C. § 2253(c)(1)(A); see also Fed. R. App. P. 22(b)(1), which is what Howell

requested next. Specifically, he asked that we grant him a COA to appeal four of

the seventeen grounds for relief before the district court (although, in what he

labels a fifth ground, Howell also attempts to incorporate by reference every other

ground for relief presented to the district court).

As part of our case management, we reviewed Howell’s request for a COA.

Like the district court, we too denied the request, but we gave Howell fourteen

days to file a motion to reconsider. Howell timely moved for our reconsideration.

We then consolidated Howell’s pending motion with his appeal from the district

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court’s denial of his first habeas petition, which had been held in abeyance until

now.

We now address the merits of Howell’s first appeal before turning to his

motion to reconsider his COA request.

III. Discussion

Howell raises five challenges to his original guilt phase trial in 1988 and

subsequent retrial for sentencing in 1996. As to his guilt phase trial, Howell

argues that (1) the juror misconduct responsible for reversing his first death

sentence also required granting him a new trial on guilt; (2) the admission of

Watson’s preliminary hearing testimony at their joint trial violated his

Confrontation Clause rights; and (3) one juror’s failure to fully disclose his prior

employment history deprived Howell of a fair and impartial jury. He also claims

that (4) his Confrontation Clause rights were violated when Watson’s former

attorneys were allowed to testify about prior communications with Watson during

his and Watson’s joint trial, a claim which Howell says the OCCA failed to

address. As to his retrial for sentencing, Howell argues that (5) his counsel was

constitutionally ineffective in revealing to the jury that Howell was already on

death row.

Before reviewing each of these five challenges, we explain our standard of

review.

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 A. Standard of Review

Our review of the decisions in this case is governed by the Antiterrorism

and Effective Death Penalty Act of 1996 (AEDPA). Under AEDPA, when a state

court has reviewed a claim on its merits, federal habeas relief may be granted

only if the state court’s decision (1) was contrary to or involved an unreasonable

application of “clearly established Federal law,” or (2) was based upon an

unreasonable determination of the facts in light of the evidence presented at trial.

28 U.S.C. § 2254(d). “[C]learly established Federal law” is limited to Supreme

Court “holdings, as opposed to the dicta, . . . as of the time of the relevant

state-court decision.” Carey v. Musladin, 549 U.S. 70, 74 (2006) (quoting

Williams v. Taylor, 529 U.S. 362, 412 (2000)). Further, a state court’s

determination of a factual issue is “presumed to be correct,” and the petitioner has

“the burden of rebutting the presumption of correctness by clear and convincing

evidence.” 28 U.S.C. § 2254(e)(1).

“A state court’s determination that a claim lacks merit precludes federal

habeas relief so long as ‘fairminded jurists could disagree’ on the correctness of

the state court’s decision.” Harrington v. Richter, 131 S. Ct. 770, 786 (2011). In

other words, AEDPA review goes no further than “preserv[ing] authority to issue

the writ [of habeas corpus] in cases where there is no possibility fairminded

jurists could disagree that the state court’s decision conflicts with [the Supreme]

Court’s precedents.” Id. (emphasis added). Federal habeas is “not a substitute

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for ordinary error correction through appeal”; it only “guard[s] against extreme

malfunctions in the state criminal justice systems.” Id. (internal quotation marks

omitted).

With our standard of review in mind, we turn to Howell’s claims of error

from the guilt phase of his trial—including one claim, discussed last, that Howell

asserts is not governed by AEDPA—before turning to Howell’s claim of error

from his second penalty phase.

B. Guilt Phase

1. Juror Misconduct

a. Factual Background

At the conclusion of the guilt phase in 1988, the trial court ordered that the

jury be sequestered in a local motel for the duration of the penalty phase. After

the penalty phase concluded, the trial court entered a death sentence against

Howell pursuant to the jury’s recommendation. Months later, an investigation

began into alleged wrongdoing during the jury’s sequestration. From that

investigation, Howell learned the following:

[O]n the first night the jury was sequestered, both
[sheriff’s] deputies [charged with juror security]
informed one of the jurors[, Diana Smith,] that they
knew she was the only holdout for not guilty in the first
stage. According to [Smith’s] affidavit, Deputy Green
told her, “that if it made me feel any better that he didn’t
believe [Howell’s] story.” On the second night of
sequestration, after second stage evidence was presented
but before sentencing deliberations, both deputies asked

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 her if she felt better about voting for guilt after hearing
that [Howell] had committed a murder in Tennessee.
They assured her that she had “done the right thing.” As
to second stage defense witness, Dr. Jonathon Lipman,
Deputy Canon ridiculed his credentials and laughed at
his testimony which he considered boring. According to
both [Juror Smith] and Deputy Cannon, they drank
alcoholic beverages in the Deputies’ hotel room on two
successive nights and engaged in some form of sexual
activity. [Juror Smith] stated that she was “hung over”
during the punishment stage.

Howell I, 882 P.2d at 1094.

b. Legal Background

“In a criminal case, any private communication, contact, or tampering

directly or indirectly, with a juror during a trial about the matter pending before

the jury is, for obvious reasons, deemed presumptively prejudicial . . . .” Remmer

v. United States, 347 U.S. 227, 229 (1954) (emphasis added).

c. OCCA’s Decision

In light of the above allegations, the OCCA reversed Howell’s death

sentence and remanded for re-trial of the penalty phase only. Howell I, 882 P.2d

at 1095. Howell received the death penalty. After the second penalty phase,

Howell again raised Juror Smith and the deputies’ misconduct as grounds for

reversing his conviction. But the OCCA declined to revisit its earlier decision

because Howell presented no new evidence showing material contact with the

deputies during the guilt phase. See Howell II, 967 P.2d at 1224. The evidence

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Howell did cite—Juror Smith’s affidavit from 1989—had already been before the

OCCA during the first appeal, and the OCCA declined to revisit it. See id.

d. Analysis

The central issue here is whether Juror Smith communicated with sheriff’s

deputies about the case before finding Howell guilty. Any communication

between the deputies and jurors after the guilt phase—i.e., during the penalty

phase—is beside the point, since the OCCA already reversed the first penalty

phase and remanded for a new trial on Howell’s sentence.

Howell cites only one pre-guilty-verdict communication: After closing

arguments at the guilt phase, Juror Smith asked the two deputies whether they

were armed. The deputies answered that “one was armed and one was not” but

“would not say which one.” Supp. App., Diana Smith Aff. (Mar. 10, 1989) at 2.

“When asked why only one was armed, they replied that they had their reasons.”

Id. This evidence, which is from Juror Smith’s 1989 affidavit, was previously

before the OCCA both in Howell I and in Howell II.

Our review of the record confirms that this was the only communication

between Juror Smith and the deputies before the guilty verdict. Further, Juror

Smith also confirmed in a later interview to investigators that, “[o]ther than [the

part about whether or not the deputies were armed], everything else was said . . .

after the voting was in on the [guilt] stage . . . .” Supp. App., Report of

Investigation into Misconduct (Oct. 9, 1990) at 64 (emphasis added).

-21-
 Even if Juror Smith’s allegations are true, the comment about the deputies

being armed is not enough to grant habeas relief. No presumption of prejudice

exists because the communication was not “about the matter pending before the

jury.” Remmer, 347 U.S. at 229. And the decision to remand for resentencing

only—rather than for an entirely new trial on guilt—does not violate any clearly

established law where the only pre-guilty-verdict contact was about one deputy

being armed and the other unarmed.

The cases Howell cites do not support a different result. In Remmer, an

unknown person allegedly told a juror during the trial that the juror “could profit

by bringing in a verdict favorable to the petitioner.” Id. at 228. The comment

went to the heart of the trial’s integrity. In a second case Howell points to,

Turner v. Louisiana, 379 U.S. 466 (1965), the two principal witnesses for the

prosecution were the very sheriff’s deputies who “drove the jurors to a restaurant

for each meal, and to their lodgings each night,” and who ate with, conversed

with, and did errands for the jurors. Id. at 467–68. And in Parker v. Gladden,

385 U.S. 363 (1966), before rendering a verdict, several jurors overheard a bailiff

say the defendant was a “wicked fellow” and “guilty” and that the Supreme Court

“will correct it” if the defendant turns out to be innocent. Id. at 363–64.

In each of these cases, the Supreme Court reversed the guilty verdicts

because outsiders communicated with the jurors about the case before them or,

like the deputy-witnesses in Turner, fraternized with the jurors in a way that

-22-
could prejudice how the jury credited a witness’s testimony. In Howell’s guilt

phase, by contrast, we do not have a communication about the “matter pending

before the jury,” nor do we have officers in charge of the jury also serving as

witnesses for the prosecution. The OCCA contravened no clearly established

Supreme Court precedent in affirming the guilt phase verdict despite the one

pre-verdict comment.

Nor can we overturn the OCCA’s decision to deny Howell an evidentiary

hearing. The record directly contradicts any claim that comments about the case

were made before the guilty verdict. We see no basis for an evidentiary hearing.

See Littlejohn v. Trammell, 704 F.3d 817, 857–58 (10th Cir. 2013) (even where a

petitioner diligently developed the factual basis for his claim, he is not entitled to

an evidentiary hearing if his claim is contravened by the existing factual record).

Moreover, both Howell and the State had an opportunity to interview all of the

jurors back in 1989, and neither found any evidence of pre-guilt communication

other than the comment about the deputies carrying a weapon. And since 1989,

Howell has not “diligently sought to develop the factual basis underlying” this

claim further, so AEDPA deference applies to the OCCA’s decision to deny an

evidentiary hearing. Smallwood v. Gibson, 191 F.3d 1257, 1266 (10th Cir. 1999).

Under AEDPA deference, the decision cannot be overturned.

Accordingly, we affirm the district court’s denial of relief on this ground.

-23-
 2. Co-Defendant’s Preliminary Hearing Testimony

a. Factual Background

Howell next alleges the Oklahoma trial court violated his Confrontation

Clause rights when it admitted his co-defendant Watson’s preliminary hearing

transcript into evidence at their joint trial.

The record reveals that Ms. Watson, pursuant to a plea
bargain agreement, agreed to testify on behalf of the
State. She did so at the preliminary hearing. Her
testimony provided the evidence to support the malice
aforethought element of the first degree murder charge.
She admitted during the preliminary hearing that she and
[Howell] drove around the apartment complex looking
for a car to steal. She admitted that she spoke to Ms.
Calhoun for the purpose of diverting her attention while
[Howell] shot her. She testified that she burned the
truck they were driving and helped to load Sgt.
Calhoun’s body into her car.

Ms. Watson subsequently changed her mind about the
agreement, alleging that she was the target of coercion
and suggestion with respect to the substance of her
preliminary hearing testimony. Several pre-trial motions
and hearings were had on this issue as well as objections
at trial. The trial court overruled the motions and
objections to the admission of the preliminary hearing
testimony at trial.

Howell I, 882 P.2d at 1090.

b. Legal Background

The Sixth Amendment’s Confrontation Clause guarantees all criminal

defendants “the right . . . to be confronted with the witnesses against [them].”

U.S. Const. amend. VI. Howell’s Confrontation Clause claims are governed by

-24-
the Supreme Court’s decision in Ohio v. Roberts, 448 U.S. 56 (1980). 6 In

Roberts, the Supreme Court established two components for evaluating these

claims. First, “the prosecution must either produce, or demonstrate the

unavailability of, the declarant whose statement it wishes to use against the

defendant.” Id. at 65. Second, “once a witness is shown to be unavailable,” the

witness’s hearsay is permitted only if it is supported by “indicia of reliability.”

Id. at 65–66 (internal quotation marks omitted). Roberts recognized two indicia

of reliability: (1) “a firmly rooted hearsay exception,” or (2) “a showing of

particularized guarantees of trustworthiness.” Id. at 66.

c. OCCA’s Decision

The OCCA concluded that the admission of Watson’s preliminary hearing

transcript did not violate Howell’s confrontation right. The court reasoned that

Watson was unavailable at trial because she had changed her mind about a

previous plea agreement and refused to testify for the State or against Howell.

Under Oklahoma law, “a person charged with a crime is a privileged witness who

cannot be made to testify (except at his or her own request) in a trial where the

person or any co-defendant is being tried for the respective charge.” Howell I,

882 P.2d at 1090 (citing Okla. Stat. tit. 22, § 701). The OCCA explained, “[I]t

6
We cannot grant Howell relief based on the Supreme Court’s subsequent
decision in Crawford v. Washington, 541 U.S. 36 (2004), because Howell’s trial
and direct appeals concluded before the Supreme Court decided Crawford. See
Whorton v. Bockting, 549 U.S. 406, 409 (2007).

-25-
would have resulted in prejudicial error if the State had called co-defendant

Watson to the stand with knowledge that she would invoke her privilege against

self[-]incrimination.” Id. at 1091. In any event, noted the court, Watson’s

preliminary hearing testimony “was given in circumstances closely approximating

those of a typical trial.” Id. She testified “under oath in a truth-inducing

courtroom atmosphere,” and Howell “was represented by counsel, through whom

[he] had ample opportunity to cross examine Ms. Watson.” Id. Accordingly, the

court denied relief on this claim.

d. Analysis

Howell argues the admission of Watson’s preliminary hearing testimony

violated his Confrontation Clause rights because Watson was not “unavailable” as

required by the Roberts test. But the OCCA decided that Watson was

“unavailable” according to Oklahoma law and that, in any event, her preliminary

hearing testimony was sufficiently reliable to be admissible under Roberts and

another Supreme Court decision, California v. Green, 399 U.S. 149 (1970).

Howell cites no holding to the contrary of the OCCA’s decision, nor can

he. At the time of his trial and appeal, the Supreme Court had already affirmed

the use of preliminary hearing testimony where, as here, the defendant “had an

effective opportunity for confrontation at the subsequent trial” and the witness’s

preliminary hearing testimony “had already been given under circumstances

-26-
closely approximating those that surround the typical trial.” Id. at 165. Thus,

under AEDPA deference, we cannot disturb the OCCA’s decision.

What is more, Watson’s preliminary hearing transcript could have been

admitted at trial without violating Howell’s confrontation right regardless of

Watson’s availability at trial. In Green, the witness whose preliminary hearing

testimony was admitted against the defendant had been cross-examined by the

defendant at trial. See id. at 151–52. But the Supreme Court explained that the

witness’s preliminary hearing testimony would have been admissible even if he

had been unavailable at trial. Id. at 165 (emphasis added). This was so because,

at the preliminary hearing, the witness was “under oath”; the defendant was

“represented by counsel” and had “every opportunity to cross-examine” the

witness; and “the proceedings were conducted before a judicial tribunal, equipped

to provide a judicial record of the hearings.” Id. Under those circumstances,

explained the Court, preliminary hearing testimony is “admissible at trial even

. . . if [the witness] had been actually unavailable.” Id. Later, the Court

incorporated this analysis into its test in Roberts. See Roberts, 448 U.S. at 68–74.

Because all the circumstances listed in Green were present here as well,

Watson’s preliminary hearing transcript could have been admitted without

violating Howell’s confrontation right, whether Watson was “available” for cross-

examination or not. Hence, all of Howell’s arguments about Watson’s

availability are beside the point.

-27-
 The four arguments Howell makes to the contrary do not demand a

different result. He argues, first, that the Supreme Court’s decision in Barber v.

Page, 390 U.S. 719 (1968), requires more than just Howell’s cross-examination of

Watson at the preliminary hearing to admit that testimony against Howell at trial.

But the Supreme Court’s holding in Barber is not supportive. In Barber, the

prosecution presented as evidence against Barber a preliminary hearing transcript

of a co-defendant who was not present at trial. The Court reversed Barber’s

conviction because his Confrontation Clause right was violated where the

prosecution “ma[d]e no effort to produce [the co-defendant] at trial.” Id. at 725.

And Barber, moreover, did not cross-examine the witness at the preliminary

hearing either. Here, by contrast, Watson was present at Howell’s trial, and he

did confront her through cross-examination at the preliminary hearing and when

she testified on her own behalf. See Trial Tr., Vol. VI, at 161–67. The

prosecution’s error in Barber—not having the co-defendant available for cross-

examination at trial—is absent in this case.

Second, Howell asserts Roberts does not allow using prior testimony where,

as here, the prior testimony is not reliable because, as Howell puts it, Watson had

“every motive to fabricate” her prior testimony. Aplt. Br. at 36. It is true that

Roberts does not permit the use of unreliable hearsay testimony. 448 U.S. at 66.

But the determination of whether Watson’s prior testimony was reliable

belonged to the state court. And, as the record shows, Watson’s preliminary

-28-
hearing testimony bore sufficient indicia of reliability for the OCCA’s decision to

survive AEDPA deference. Watson was under oath, Howell was represented by

trial counsel who cross-examined Watson extensively, the hearing was before a

judicial tribunal, the hearing was recorded, and, at trial, both the direct and

cross-examinations were read to the jury (with only a few exceptions not relevant

here). More significantly, Watson later testified at Howell’s trial and was again

cross-examined by Howell’s counsel. As in Roberts, “[s]ince there was an

adequate opportunity to cross-examine [Watson], and counsel . . . availed himself

of that opportunity, the transcript . . . bore sufficient indicia of reliability and

afforded the trier of fact a satisfactory basis for evaluating the truth of the prior

statement.” Id. at 73 (internal quotation marks omitted).

Third, Howell suggests the OCCA’s decision violated the Supreme Court’s

holding in Bruton v. United States, 391 U.S. 123 (1968). In Bruton, the Court

held that the admission of one defendant’s confession implicating a second

defendant at a joint trial constituted prejudicial error even though the trial court

gave clear instructions that the confession could be used only against the first

defendant, not against the second. Id. at 126. But Bruton does not apply here,

because Watson’s testimony at her preliminary hearing could be used against both

defendants. The problem in Bruton was that the co-defendant, Evans, never took

the stand, so Bruton could never confront him through cross-examination. See id.

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at 127–28. By contrast, here, Howell was able to cross-examine Watson both at

her preliminary hearing and at their joint trial.

Fourth and finally, Howell argues that a Sixth Circuit case, Earhart v.

Konteh, 589 F.3d 337 (6th Cir. 2009) (granting habeas relief based on the

unconstitutional admission of hearsay), dictates granting habeas relief here. But

Earhart is not “clearly established Federal law” for purposes of AEDPA because

it is not a Supreme Court holding. See Carey, 549 U.S. at 74; see also House v.

Hatch, 527 F.3d 1010, 1018 (10th Cir. 2008). Besides, Earhart is distinguishable

from this case because it involved a minor victim who could have been available

at trial but was not—which does not apply here because Watson was at trial and

was cross-examined by Howell.

Accordingly, we affirm the district court’s denial of relief on this ground.

3. Juror Candor

a. Factual Background

During jury selection for Howell’s 1988 trial, one of the potential jurors,

Les Bays, who later served as the jury foreman, failed to reveal eight years of

prior employment with the CIA. (He did, however, reveal his over twenty years

of work for the Marine Corps, along with other past jobs.) Howell’s attorney

discovered this omission after trial. In subsequent proceedings, when Howell’s

counsel asked why Bays did not reveal this information, Bays responded, “You

didn’t ask the right questions.” Howell I, 882 P.2d at 1089. On direct appeal to

-30-
the OCCA, Howell claimed that, had he known Bays used to work for the CIA, he

would have excluded him on a peremptory challenge because “CIA activities are

akin to law enforcement connections.” Id.

b. Legal Background

“A trial represents an important investment of . . . resources, and it ill

serves the important end of finality to wipe the slate clean simply to recreate the

peremptory challenge process because counsel lacked an item of information

which objectively he should have obtained from a juror on voir dire

examination.” McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548, 555

(1984). Accordingly, to obtain a new trial on appeal, “a party must first

demonstrate that a juror failed to answer honestly a material question on voir

dire, and then further show that a correct response would have provided a valid

basis for a challenge for cause.” Id. at 556 (emphasis added).

c. OCCA’s Decision

The OCCA summarily rejected this claim, saying only, “[Howell], citing

Tibbetts v. State, 698 P.2d 942, 945 (Okla. Crim. App. 1985), argues that juror

Bays’ deliberate withholding of pertinent information was ‘not consistent with the

principles of fundamental fairness.’ [Howell]’s reliance on Tibbetts is misplaced,

and the proposition is denied.” Howell I, 882 P.2d at 1089.

-31-
 d. Analysis

Howell claims that, had Juror Bays revealed his work with the CIA, Howell

would have used a peremptory challenge. But even so, Howell is not entitled to

habeas relief. See McDonough, 464 U.S. at 555 (rejecting a request to grant a

new trial “simply to recreate the peremptory challenge process”).

Howell also claims that Juror Bays’s previous employment with the CIA

was a basis for finding juror bias and thus a valid challenge for cause. This claim

turns on the second prong of the McDonough test—whether Howell can show that

“a correct response would have provided a valid basis for a challenge for cause”

based on juror bias. We now turn to whether Howell has shown that Bays’s

omission demonstrates juror bias. We conclude that it does not.

“[E]ven where the issues were more closely related than they are in the

instant case, we have declined to infer juror bias.” United States v. McConnel,

464 F.3d 1152, 1157 (10th Cir. 2006).

In Gonzales v. Thomas, 99 F.3d 978 (10th Cir. 1996), no
bias, actual or implied, was found . . . [where] the juror
in question had been a rape victim 24 years earlier, and
the prosecution there was for rape and armed robbery.
Nevertheless, despite some similarities in the types of
cases, [we] held that the juror did not show actual bias,
nor had she deliberately concealed her experience during
voir dire. . . . [We] also found no implied bias.

Id. 1157–58. “If a rape victim can be an impartial juror in a rape prosecution,

then surely [a] juror . . . whose experience was having been charged with

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embezzlement and fraud and against whom the charges had been dismissed, could

be an impartial juror for the trial of [a] weapons case.” Id. at 1158.

And if a prior defendant for embezzlement and fraud could be an impartial

juror for a weapons case, then we see no reason Juror Bays could not serve as an

impartial juror for a murder case where his only undisclosed experience was eight

years of service in the CIA (compared to over twenty years of experience in the

Marine Corps, including exposure to court-martial proceedings, which Juror Bays

did disclose during the voir dire). Moreover, Howell has not shown that Juror

Bays answered any question dishonestly, only that Bays did not volunteer this

extra information. Thus, Howell has failed to show juror bias justifying a

challenge for cause, and—especially considering AEDPA deference to the

OCCA’s decision to deny relief—this claim cannot succeed.

Nor is Howell entitled to an evidentiary hearing for this claim. The district

court denied Howell’s request for an evidentiary hearing on this issue because

Howell had “done little more than allege possible bias.” Howell v. Mullin, No.

CIV-99-1803-A, slip op. at 33 (W.D. Okla. Sept. 5, 2002). And the district

court’s decision was not in error. Assuming Howell has diligently sought to

develop the factual basis for this claim, he “is entitled to receive an evidentiary

hearing so long as his allegations, if true and if not contravened by the existing

factual record, would entitle him to habeas relief.” Miller v. Champion, 161 F.3d

1249, 1253 (10th Cir. 1998). But the record contravenes Howell’s allegation that

-33-
Juror Bays intentionally withheld his prior employment with the CIA, and, as

explained above, that prior employment is not cause for challenge anyway. We

cannot grant Howell an evidentiary hearing on this claim.

Accordingly, we affirm the district court’s denial of relief on this ground.

4. Testimony of Co-Defendant’s Former Attorneys

a. Factual Background

At their joint preliminary hearing, Watson testified that Howell shot

Calhoun in order to steal Calhoun’s car. Howell was present and able to

cross-examine Watson.

At their joint trial, however, Watson recanted and claimed that, in fact,

Howell shot Calhoun in self-defense. She explained that the prosecution had

coerced her preliminary hearing testimony to the contrary. Again, Howell was

present and able to cross-examine Watson.

In response to Watson’s changed story, the prosecution called as rebuttal

witnesses two attorneys who had been Watson’s counsel at the time of the

preliminary hearing but were no longer representing her. The attorneys testified

that Watson’s preliminary hearing testimony was “consistent” with what she had

previously told them about the crimes, and that their conversations with her

occurred before any contact with the district attorney—negating her claim of

coercion. See Trial Tr., Vol. VI, at 215, 220–21. Further, they testified that they

had accompanied her to meetings with the prosecution, and that the prosecutors

-34-
only ever asked Watson to tell the truth. As was the case with Watson, Howell

was present and able to cross-examine the former attorneys. Watson was also

available to re-take the stand if the defense chose to call her again.

b. Legal Background

Howell alleges that his Sixth Amendment right to confrontation was

violated by the admission of the former attorneys’ testimony. As with Howell’s

other Confrontation Clause claim, we cannot grant Howell relief based on

Crawford v. Washington, 541 U.S. 36 (2004), and its progeny. Howell may

succeed with this Confrontation Clause claim only if, under pre-Crawford case

law, the former attorneys’ testimony violated Howell’s Confrontation Clause

rights. See Whorton v. Bockting, 549 U.S. 406, 409 (2007).

Under pre-Crawford case law, “the Confrontation Clause is not violated by

admitting a declarant’s out-of-court statements, as long as the declarant is

testifying as a witness [at trial] and subject to full and effective cross-

examination.” Green, 399 U.S. at 158 (emphasis added). “The Constitution . . .

is violated only where the out-of-court hearsay statement is that of a declarant

who is unavailable at the trial for ‘full and effective’ cross-examination.” Nelson

v. O’Neil, 402 U.S. 622, 626–27 (1971) (emphasis added).

c. Standard of Review

If the OCCA addressed this claim, as it did the others, we would be

reviewing its determination under AEPDA deference. But Howell contends the

-35-
OCCA failed to address this claim, see Aplt. Br. at 41–42, and the State agrees,

see Aple. Br. at 27–28. The district court concluded the same. Howell v. Mullin,

No. CIV-99-1803-A, slip. op. at 20 (“It does not appear [Howell]’s claim was

addressed directly by the OCCA.”). And because, according to the district court,

Howell “raised this issue on direct appeal,” the court considered the claim to have

been “exhausted in state court” and proceeded to review the claim on its merits.

Id.

But since the parties briefed this issue, the Supreme Court has clarified

that, even when a state court does not explicitly address a claim, we must presume

the court adjudicated the claim on its merits unless that presumption is rebutted.

Johnson v. Williams, 133 S. Ct. 1088, 1091–92 (2013).

And, in fact, it appears the state court did address this claim, at least in

part. In Howell I, the OCCA states,

In his proposition XII, [Howell] refers . . . to the
testimony of Ms. Watson’s two former attorneys, who
testified that Ms. Watson’s preliminary hearing
testimony was consistent with her statements to them.
[Howell] holds that under these circumstances, the trial
court had an affirmative duty to instruct the jury sua
sponte that this evidence could be used only for
impeachment purposes and not for substantive purposes.

We do not agree. . . . [T]he failure of a trial court to
give a limiting instruction sua sponte does not
automatically constitute reversible error. On the record
before us, we cannot say that the failure of the trial court
to give a limiting instruction sua sponte deprived

-36-
 [Howell] of a substantial right rising to the level of plain
error.

Howell I, 882 P.2d at 1094 (emphasis added). In sum, according to the OCCA,

Howell was challenging the lack of a limiting instruction for the attorneys’

testimony, and, without a proposed limiting instruction from Howell, the trial

court did not plainly err in failing to offer its own. 7

Because the OCCA decided whether the omission of a limiting instruction

violated Howell’s rights, we review that decision under AEDPA. But what about

the admission of the former attorneys’ testimony in the first place? The district

court is correct that the OCCA did not mention whether or not admitting such

evidence violated Howell’s Confrontation Clause rights, yet the Supreme Court

has established a rebuttable presumption that the state court did decide the issue.

In the end, we need not decide whether AEDPA deference applies, because

even if it does not, we cannot grant Howell habeas relief on this claim. At trial,

Howell did not object to the testimony of Watson’s former attorneys, so review of

the trial court’s admission of this testimony would be for plain error under state

or federal law. See United States v. Hinson, 585 F.3d 1328, 1335–38 (10th Cir.

7
Howell claims he proposed a limiting instruction, but the instruction he
cites is not on point. His proposed instruction does not address whether the
testimony could be used substantively or for impeachment purposes only. See
O.R. (1989), Vol. II, at 551 (“a confession or admission may not be considered
. . . against any defendant other than the person who made the confession or
admission”).

-37-
2009); McGregor v. State, 885 P.2d 1366, 1375 (Okla. Crim. App. 1994). And

under plain error review—let alone under AEDPA deference—this claim fails.

d. Analysis

We turn first to plain error review of whether admitting the former

attorneys’ testimony violated Howell’s confrontation right. Then we address

under AEDPA deference whether the trial court erred in omitting a limiting

instruction.

The relevant out-of-court statements admitted against Howell are Watson’s

private conversations with her former attorneys and Watson’s testimony at the

preliminary hearing. While testifying at Howell’s trial—under oath and subject to

Howell’s cross-examination—Watson’s former attorneys said only that whatever

Watson told them before her preliminary hearing was “consistent” with what she

later said at the preliminary hearing. Trial Tr., Vol. VI, at 215, 220–21. The

former attorneys never actually quoted Watson or even paraphrased what she had

said. To the extent their testimony was still hearsay, 8 the out-of-court declarant

was Watson. And Watson “testif[ied] as a witness” and was “subject to full and

effective cross-examination” at her and Howell’s joint trial. 9 See Green, 399 U.S.

8
Arguably, the testimony was not hearsay under the Oklahoma equivalent
of Federal Rule of Evidence 801(d)(1)(B) for prior consistent statements. But we
need not decide this question of state law. See Estelle v. McGuire, 502 U.S. 62,
67–68 (1991).
9
Howell and Watson were represented by separate counsel at the joint
(continued...)

-38-
at 158. Moreover, as we mentioned above, her preliminary hearing testimony,

like that in Green, “had already been given under circumstances closely

approximating those that surround the typical trial.” Id. at 165. Thus, under

pre-Crawford precedent, there is no Confrontation Clause violation.

To be sure, the former attorneys’ testimony may have violated Watson’s

attorney-client privilege. On that basis, Watson’s trial counsel made an objection,

which the judge overruled because he believed that Watson had waived the

privilege. And it is true that Watson may in fact have waived her privilege when

she testified about some of her communications with the former attorneys.

9
(...continued)
trial, and Howell’s attorney cross-examined Watson after Watson took the stand
in her own defense. Watson was therefore both legally unavailable and physically
available to testify, an odd situation not apparently contemplated by either
Roberts or Green. Two cases after Roberts relaxed the strict unavailability
requirement, making Watson’s physical availability more important to the
pre-Crawford Confrontation Clause analysis. See White v. Illinois, 502 U.S. 346,
357 (1992) (“We therefore see no basis in Roberts or Inadi for excluding from
trial, under the aegis of the Confrontation Clause, evidence embraced within such
exceptions to the hearsay rule as those for spontaneous declarations and
statements made for medical treatment.”); United States v. Inadi, 475 U.S. 387,
400 (1986) (“[W]e continue to affirm the validity of the use of co-conspirator
statements, and we decline to require a showing of the declarant’s unavailability
as a prerequisite to their admission.”). Moreover, although Watson’s statements
to her attorneys likely lacked the “indicia of reliability” required by Roberts, the
state did not introduce those statements but rather elicited testimony about their
“consistency” with the admissible statements she made in the pretrial hearing.
The combination of Watson’s actual availability and the fact that her inadmissible
statements were never introduced leads to the conclusion that Howell’s
Confrontation Clause rights were not violated.

-39-
 But we need not decide whether the privilege was violated, because

“standing alone, the attorney-client privilege is merely a rule of evidence; it has

not yet been held a constitutional right.” Partington v. Gedan, 961 F.2d 852, 863

(9th Cir. 1992) (quoting Clutchette v. Rushen, 770 F.2d 1469, 1471 (9th Cir.

1985), cert. denied, 475 U.S. 1088 (1986)) (alteration incorporated; internal

quotation marks omitted); see also Sanborn v. Parker, 629 F.3d 554, 575 (6th Cir.

2010) (“a violation of the attorney-client privilege is not itself a ‘violation [] of

the United States Constitution or its law and treaties’” (emphasis in original)).

But see Note, The Attorney-Client Privilege: Fixed Rules, Balancing, and

Constitutional Entitlement, 91 Harv. L. Rev. 464, 485 (1977) (“[W]hen the [F]ifth

and [S]ixth [A]mendments are considered together, the individual accused of

crime does seem to have a right to attorney-client privilege.”). “A violation of

the attorney-client privilege implicates the Sixth Amendment right to counsel only

. . . when the government interferes with the relationship between a criminal

defendant and his attorney.” Partington, 961 F.2d at 863 (emphasis added).

Here, assuming no waiver, the only attorney-client privilege violated was

that between Watson and her former counsel. The relationship with her trial

counsel was unimpaired, so her Sixth Amendment right to counsel was not

violated under plain error review. 10

10
We also need not decide whether Howell is able to bring a claim based
(continued...)

-40-
 Howell also argues that the Sixth Amendment requires a limiting

instruction here. As discussed above, we review this claim under AEDPA

deference. The OCCA concluded the lack of a limiting instruction did not plainly

violate any substantive right. Howell disagrees, relying on the Supreme Court’s

decision in Tennessee v. Street, 471 U.S. 409 (1985). In Street, the Court noted

that “[i]f the jury had been asked to infer that [the co-defendant’s] confession

proved that [Street] participated in the murder, then the evidence would have been

hearsay; and because [the co-defendant] was not available for cross-examination,

Confrontation Clause concerns would have been implicated.” Id. at 414

(emphasis added). Here, by contrast, Watson was available for cross-

examination, so even if hearsay had been elicited, there was no Confrontation

Clause violation. And in any event, even if there were error, it was harmless

since the evidence overwhelmingly supported the jury’s finding of Howell’s guilt.

Hence, the OCCA’s resolution is not contrary to clearly established law, and we

cannot disturb the decision.

We affirm the district court’s denial of relief on this ground.

10
(...continued)
on a privilege belonging to Watson, not him.

-41-
 C. Second Penalty Phase Trial

1. Ineffective Assistance of Counsel

a. Factual Background

According to Howell, his trial counsel made a “serious error” during the

sentencing retrial in 1996: “Counsel called as a witness for Mr. Howell his prison

case manager to inform the jury about Mr. Howell’s good conduct in prison. . . .

The witness did not mention ‘death row,’ but counsel did. Several times.” Aplt.

Br. at 47 (emphasis in original).

b. Legal Background

To make out an IAC claim under Strickland v. Washington, 466 U.S. 668

(1984), Howell must show both (1) that his counsel provided deficient assistance

and (2) that there was prejudice as a result. “To establish deficient performance,

[Howell] must show . . . that counsel made errors so serious that counsel was not

functioning as the ‘counsel’ guaranteed [Howell] by the Sixth Amendment.”

Richter, 131 S. Ct. at 787 (internal quotation marks omitted). To establish

prejudice, Howell “must demonstrate a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would have been

different.” Id. (internal quotation marks omitted).

“Surmounting Strickland’s high bar is never an easy task.” Id. at 788

(internal quotation marks omitted). “Even under de novo review, the standard for

judging counsel’s representation is a most deferential one.” Id. “Establishing

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that a state court’s application of Strickland was unreasonable under § 2254(d) is

all the more difficult. The standards created by Strickland and § 2254(d) are both

highly deferential, and when the two apply in tandem, review is doubly so.” Id.

(citations and internal quotation marks omitted).

c. OCCA’s Decision

The OCCA rejected this IAC claim, reasoning, “[I]t was counsel’s strategy

to show that [Howell] had been a model prisoner while on death row, thereby

rebutting the continuing[-]threat aggravating circumstance. Evidence was

presented that [Howell] had not been in solitary confinement twenty-four hours a

day, but had been outside of his cell with other prisoners. This Court will not

second guess trial strategy.” Howell II, 967 P.2d at 1226.

d. Analysis

Under our “doubly” deferential standard of review, Howell’s claim cannot

prevail. First, Howell argues that “telling the jury that a different, prior jury, had

sentenced someone to death is a terrible mistake, predisposing the instant jury to

follow the earlier jury’s recommendation.” Aplt. Br. at 47. But he cites no

clearly established law saying as much, nor can we find any. Therefore, under

AEDPA deference, we cannot overturn the OCCA’s decision.

Admittedly, Howell’s counsel could have demonstrated Howell’s good

behavior in prison without mentioning death row specifically. But that mistake

alone is not enough to overcome Strickland and AEDPA deference. And in fact,

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“evidence of a prior death sentence may not produce a unidirectional bias toward

death.” Romano v. Oklahoma, 512 U.S. 1, 20 (1994) (Ginsburg, J., dissenting).

Here, because the jurors were being asked to give Howell a new sentence, they

could have deduced that the prior sentence was handed down in error—i.e., it was

wrong. So when they learned from defense counsel that Howell’s first sentence

was death (implied from Howell being on death row), that revelation could have

weighed against giving Howell a death sentence again.

Second, Howell argues that by informing the jury of his presence on death

row, his counsel relieved the jury from making a new, independent, reasoned

moral judgment about whether Howell should live or die, thereby violating

Caldwell v. Mississippi, 472 U.S. 320 (1985).

The district court correctly rejected this argument—the OCCA’s decision

did not violate the holding in Caldwell. “To establish a Caldwell violation,

[Howell] necessarily must show that the remarks to the jury improperly described

the role assigned to the jury by local law.” Dugger v. Adams, 489 U.S. 401, 407

(1989). Following its review of the record, the district court noted that “no

statements or insinuations were made that anyone other than the jury had the duty

and responsibility to determine [Howell’s] sentence,” so no attorney committed a

Caldwell violation. Howell v. Mullin, No. CIV-99-1803-A, slip op. at 48. Howell

does not demonstrate otherwise. His sole allegation—that counsel told the jury

Howell was on death row—is not an “improper[] descri[ption] [of] the role

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assigned to the jury.” In fact, it is not a reference to the jury’s role at all, and for

that reason alone, this argument fails.

Accordingly, we affirm the district court’s denial of relief on this ground.

D. Motion To Reconsider COA Request

Having found no ground to grant federal habeas relief from either the guilt

phase or second penalty phase, we turn to the alleged errors in Howell’s trial on

mental retardation. Because the district court denied a COA, we cannot review

Howell’s claims on their merits unless we first grant Howell a COA. We have

already denied his request for a COA, but he timely moved for our

reconsideration. He asked us to grant COA on four issues: (1) the applicable

burden of proof in Atkins proceedings; (2) prosecutorial misconduct at jury

selection; (3) ineffective assistance of counsel; and (4) insufficient evidence to

support the jury’s mental retardation finding.

We grant a COA only if an applicant makes a “substantial showing of the

denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). An applicant must

show “that reasonable jurists could debate whether . . . the petition should have

been resolved in a different manner or that the issues presented were adequate to

deserve encouragement to proceed further.” United States v. Taylor, 454 F.3d

1075, 1078 (10th Cir. 2006) (internal quotation marks omitted).

Howell’s claims already have been adjudicated on the merits in state court,

so he can obtain federal habeas relief only if he can overcome AEDPA deference

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—i.e., only if he can establish that the state court’s decision was either (1)

contrary to or involved an unreasonable application of “clearly established

Federal law,” or (2) was based upon an unreasonable determination of the facts in

light of the evidence presented at trial. 28 U.S.C. § 2254(d). Thus, the decision

whether to grant Howell’s COA request rests on whether “reasonable jurists

would find the district court’s assessment of the constitutional claims debatable or

wrong” in light of the deference owed to the OCCA’s adjudication of Howell’s

claims. Miller-El v. Cockrell, 537 U.S. 322, 338 (2003); see also id. at 336 (“We

look to the District Court’s application of AEDPA to petitioner’s constitutional

claims and ask whether that resolution was debatable amongst jurists of reason.”).

Based on these principles, we find no persuasive reason to reconsider our

previous decision denying COA.

1. Burden of Proof

Howell first claims the Supreme Court’s decisions in Apprendi v. New

Jersey, 530 U.S. 466 (2000), and Ring v. Arizona, 536 U.S. 584 (2002), require

the prosecution to bear the burden of proving Howell is not mentally retarded.

After analyzing both Supreme Court cases, the OCCA disagreed and denied this

claim. The district court concluded the OCCA’s interpretation and application of

Apprendi and Ring were reasonable and therefore entitled to AEDPA deference.

Consequently, the district court denied this ground for relief.

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 The district court’s decision is not debatable—Howell cannot overcome

AEDPA deference. In Apprendi, the Supreme Court held that any fact (other than

prior conviction) that increases the maximum penalty for a crime must be

submitted to a jury and proven beyond a reasonable doubt. Apprendi, 530 U.S. at

476. In Ring, the Supreme Court extended Apprendi to capital defendants,

thereby requiring prosecutors to prove beyond a reasonable doubt statutory

aggravating circumstances to impose the death penalty. See Ring, 536 U.S. at

589. Neither holding applies directly to the circumstances of our case, so under

AEDPA deference, the OCCA’s decision cannot be challenged.

Nevertheless, Howell argues this question “remains open and debatable,”

and therefore a proper ground for a COA. Aplt. COA Br. at 33. But the problem

for Howell is that this question’s lack of firm resolution precludes any relief,

given that the OCCA has already taken a reasonable position. The OCCA’s

determination here is not contrary to a Supreme Court holding, so none could

debate the district court’s decision that AEDPA deference precludes relief.

Moreover, we have already held that Oklahoma law on this burden-of-proof

question was not contrary to Supreme Court precedent. See Ochoa v. Workman,

669 F.3d 1130, 1133 n.1 (10th Cir. 2012). And other courts agree. See, e.g.,

United States v. Webster, 421 F.3d 308, 311–12 (5th Cir. 2005) (rejecting that

Apprendi and Ring require placing the burden on the prosecution to prove beyond

a reasonable doubt that a defendant is not mentally retarded); State v. Were, 890

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N.E.2d 263, 478–79 (Ohio 2008) (same, and listing other state courts of accord,

including those of Arizona, Georgia, Indiana, Kentucky, Mississippi, and

Pennsylvania); supra Part II.F. (listing still other state courts holding the same,

including those of Louisiana, New Jersey, New Mexico, New York, South

Carolina, Tennessee, Texas, and Virginia); see also Bowling v. Commonwealth,

163 S.W.3d 361, 381–82 (Ky. 2005) (“Every state statute providing a mental

retardation exemption from the death penalty places the burden on the defendant

to prove that he is mentally retarded, as has every court that has addressed the

issue, usually in the context of holding that the absence of mental retardation is

not an element of the offense.” (footnotes omitted)).

Accordingly, we deny Howell’s request for a COA on this issue. 11

2. Prosecutorial Misconduct

Howell claims the prosecution used two peremptory challenges on the basis

of race, thereby violating the Supreme Court’s decision in Batson v. Kentucky,

476 U.S. 79 (1986). Reviewing for plain error (since Howell did not raise a

11
Howell also argues that “[b]ecause a finding of retardation precludes the
death sentence, the absence of retardation is a necessary finding for imposition of
death within the meaning of Ring.” Aplt. COA Br. at 34. But that logic does not
mandate placing the burden of proof on the prosecution. Just because finding a
defendant incompetent to stand trial precludes sentencing him to death does not
mean the prosecution must prove a defendant’s competence. See Medina v.
California, 505 U.S. 437, 449–51 (1992). It is the same with mental retardation.
Until the Supreme Court holds otherwise, no reasonable jurist could debate the
district court’s decision to deny relief.

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Batson objection at trial), the OCCA found no merit to this claim, concluding

Howell failed to show that the prosecutor lacked a race-neutral explanation for

the two strikes in question. Thus, Howell would have to overcome AEDPA

deference if granted a COA.

The district court also rejected this claim, but for a different reason.

According to the district court, Howell failed to make a prima facie case that the

two jurors were removed due to their race. It explained, “the race of these jurors

is not borne out by the record.” Howell v. Workman, No. CIV-07-1008-D, 2011

WL 5143069, at *24 (W.D. Okla. Oct. 28, 2011). For that reason, the district

court concluded Howell failed to meet his burden under step one of Batson, and it

dismissed the claim accordingly.

Batson provides

a three-step process for a trial court to use in
adjudicating a claim that a peremptory challenge was
based on race:

First, a defendant must make a prima facie showing that
a peremptory challenge has been exercised on the basis
of race; second, if that showing has been made, the
prosecution must offer a race-neutral basis for striking
the juror in question; and third, in light of the parties’
submissions, the trial court must determine whether the
defendant has shown purposeful discrimination.

Snyder v. Louisiana, 552 U.S. 472, 476–77 (2008) (alterations incorporated)

(citations and internal quotation marks omitted).

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 The district court’s decision to reject this claim is not “debatable or

wrong.” As the district court explained, nowhere in the record is there any

reference to a juror’s race. Howell does not point to one, and we cannot find one.

Nor has Howell attempted to supplement the record with an affidavit from any

juror or other person present at trial to establish a juror’s race. And in the

alternative, the record amply supports the State’s contention that the prosecutor

had race-neutral reasons for excusing the jurors—namely, their experiences with

mentally disabled people in their personal lives.

The district court also denied Howell’s motion for an evidentiary hearing as

untimely, and that decision also is not open to debate. After granting several

extensions, the court gave Howell until April 7, 2008, to file an additional

motion. But Howell did not submit his motion for an evidentiary hearing until

July 2009—fifteen months after the deadline. And Howell offered no reason for

the untimeliness of his motion. No reasonable jurist could debate whether this

issue should have been resolved differently. See Slack, 529 U.S. at 484 (“Where

a plain procedural bar is present and the district court is correct to invoke it to

dispose of the case, a reasonable jurist could not conclude either that the district

court erred in dismissing the petition or that the petitioner should be allowed to

proceed further. In such a circumstance, no appeal would be warranted.”).

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 Accordingly, we deny Howell’s request for a COA on this ground. 12

3. Ineffective Assistance of Counsel

Howell raised three claims of ineffective assistance at his Atkins trial: (1)

trial counsel’s failure to object to the alleged Batson violations, (2) his failure to

exclude the state mental health expert’s testimony, and (3) his failure to present

an additional witness to show that Howell was in special education classes as a

youth. The OCCA denied all three IAC claims, so Howell would have to

overcome AEDPA deference if we granted a COA. And under AEDPA deference,

the OCCA violated no clearly established federal law in denying relief for

Howell’s IAC claims because Howell is unable to show prejudice from any of

these alleged mistakes. Accordingly, no reasonable jurist could disagree with the

district court’s decision to deny relief for these claims as well.

We turn first to defense counsel’s failure to object to the alleged Batson

violations. Because Howell has not shown any Batson violations, he cannot show

counsel erred in failing to object. Thus, he is not entitled to habeas relief.

12
We agree with Howell that the OCCA misstated clearly established law
when it said Howell bore the burden of showing the prosecution lacked a race-
neutral explanation for the strikes. As Howell correctly notes, the prosecution
bears that burden. See Snyder, 552 U.S. at 477. But we do not get to the
prosecution’s burden of providing a race-neutral explanation—step two of a
Batson claim—unless Howell first gets us past step one. See, e.g., id. at 477–78.
And as the district court concluded, Howell has not made the requisite prima facie
case. No reasonable jurist could debate that conclusion.

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 The other two IAC claims merit additional discussion. Howell argues that

his counsel was constitutionally ineffective for failing to challenge or exclude Dr.

Hutson (the State mental health expert)’s conclusions. And he claims his counsel

was constitutionally ineffective for failing to present at trial the testimony of a

former high school teacher who says she taught Howell and his brother in a

special education class in high school.

The OCCA rejected Howell’s first claim for lack of prejudice because

“[b]oth experts used their professional knowledge and experience to ‘estimate’

what they believed [Howell’s] true IQ to be,” and “both experts used a wide array

of information, well beyond raw IQ scores, to arrive at their respective

conclusions about [Howell’s] mental abilities.” Howell IV, No. PCD-2006-712,

slip op. at 9, 11. More, both experts were exposed to vigorous and effective

examination regarding their testimony, further mitigating any potential prejudice.

Given AEDPA deference to the OCCA—not to mention the plethora of evidence

supporting the OCCA’s and jury’s conclusions—the district court’s decision to

deny relief for this IAC claim is not open to debate.

The OCCA rejected Howell’s other IAC claim because, even if the high

school teacher had testified at Howell’s Oklahoma trial, a reasonable jury could

have concluded that Howell failed to prove by a preponderance of evidence that

he manifested mental retardation before the age of eighteen. In light of AEDPA

deference, the district court denied relief.

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 No reasonable jurist could debate this decision, either. Howell’s brother

testified at the Atkins trial, and he said—as the teacher also would have said—that

Howell was in special education classes in high school. But the school records

belied that claim: Howell’s brother and sister were both listed in special

education, while Howell was not. Having one more voice (the teacher’s) saying

that Howell was in fact in a special education class could have helped Howell’s

case, but it is not enough to show prejudice given the deference owed to the

OCCA’s decision to deny relief. Besides, IQ tests administered to Howell when

he was younger showed an IQ closer to 80, not one below 70. In sum, the district

court’s decision is not open to debate.

Accordingly, we deny Howell’s request for a COA on his IAC claims.

4. Sufficiency of the Evidence

Howell also challenges the sufficiency of the evidence at the Atkins trial.

He faces an uphill battle to show the district court’s assessment of this issue was

“debatable or wrong.” As the district court correctly noted, “[r]eview of this

claim requires layers of deference.” Howell v. Workman, 2011 WL 5143069, at

*5. First, AEDPA deference applies to the OCCA’s review—and rejection—of

this claim. Thus, the OCCA’s factual determinations are presumed correct absent

clear and convincing evidence to the contrary. See 28 U.S.C. § 2254(e)(1).

Second, a jury concluded Howell was not mentally retarded, and our review of

jury verdicts is “‘sharply limited.’” Boltz v. Mullin, 415 F.3d 1215, 1232 (10th

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Cir. 2005). We cannot overturn a jury verdict “as long as it is within the bounds

of reason.” Id. Given these layers of deference, Howell would have to present a

very convincing case that he is, in fact, mentally retarded—i.e., that the OCCA’s

and Oklahoma jury’s decisions to the contrary were unreasonable—in order to

show that the district court’s assessment of this claim was “debatable or wrong.”

Howell falls far short of meeting that standard. First, he argues that Atkins

requires a level of scientific certainty that the Oklahoma trial court fell below.

But as the district court correctly noted, under Atkins, the states have “the task of

developing appropriate ways to enforce the constitutional restriction [against

executing the mentally retarded].” 536 U.S. at 317 (internal quotation marks

omitted). The Atkins Court did not mandate any particular methodologies for

determining mental retardation, instead leaving that question to the states. The

district court’s rejection of this argument is not open to reasonable debate.

Second, Howell argues that the OCCA’s decision to affirm the jury’s

verdict was an unreasonable determination of the facts and thus should be

overturned on federal habeas. But the district court disagreed, finding that,

contrary to Howell’s claims, “the evidence presented was not conclusive but

disputed.” Howell v. Workman, 2011 WL 5143069, at *8. And under AEDPA

deference and the deference owed to jury verdicts, no reasonable jurist could

debate the district court’s conclusion. See Jackson v. Virginia, 443 U.S. 307,

318–19 (1979).

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 Accordingly, we deny Howell’s request for a COA on this ground.

5. Other Errors

For his last ground, Howell incorporates by reference briefing and

arguments for “all remaining issues not already briefed in this application,

including Claims 1, 3, 4, 5, 6, 7, 8, 9, 13, 14, 18, and 19.” Aplt. COA Br. at 34.

But “incorporation by reference is not permitted in appellate materials in this

circuit.” Young v. Addison, 490 F. App’x 960, 964 (10th Cir. 2012) (citing 10th

Cir. R. 28.4). “Thus we should not consider arguments [Howell] made in state

and district court that he attempts to incorporate into his appellate brief.” Id.; see

also Gaines-Tabb v. ICI Explosives, USA, Inc., 160 F.3d 613, 624 (10th Cir.

1998) (“arguments not set forth fully in the opening brief are waived”); cf. Fed.

R. App. P. 28(a)(9)(A) (“The appellant’s brief must contain . . . the argument,

which must contain: appellant’s contentions and the reasons for them . . . .”).

Accordingly, these arguments will not be addressed, and we deny Howell’s

request for a COA on these claims.

IV. Conclusion

For the foregoing reasons, we AFFIRM the district court’s denial of habeas

relief for Howell’s conviction and sentence, and we DENY Howell’s motion to

reconsider our denial of a COA on issues arising from his Atkins trial in case

number 12-6014 and DISMISS that appeal.

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