Smallwood v. Gibson

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
SEP 10 1999
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT

DION A. SMALLWOOD,

Petitioner - Appellant,

v. No. 98-6397

GARY GIBSON, Warden, Oklahoma
State Penitentiary; ATTORNEY
GENERAL OF THE STATE OF
OKLAHOMA,

Respondents - Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
(D. Ct. No. 97-CV-1625)

K. Leslie Delk, Norman, Oklahoma, appearing for Petitioner-Appellant.

Seth S. Branham, Oklahoma Attorney General Office (W.A. Drew Edmondson,
Attorney General of Oklahoma, and William L. Humes, Assistant Attorney
General, on the brief), Oklahoma City, Oklahoma, appearing for Respondents-
Appellees.

Before PORFILIO , ANDERSON , and TACHA , Circuit Judges.

TACHA , Circuit Judge.
 Following a jury trial in the Oklahoma County District Court, petitioner

Dion A. Smallwood was convicted of First Degree Murder and Third Degree

Arson in May of 1993. Mr. Smallwood received a capital sentence for the murder

conviction and fifteen years imprisonment and a $10,000 fine for the arson

conviction. The Oklahoma Court of Criminal Appeals (“OCCA”) upheld both

convictions and sentences. See Smallwood v. State , 907 P.2d 217 (Okla. Crim.

App. 1995). On November 12, 1996, the United States Supreme Court denied

certiorari. See Smallwood v. Oklahoma , 519 U.S. 980 (1996). Mr. Smallwood

filed an application for post-conviction relief with the OCCA on December 9,

1996. The OCCA denied Mr. Smallwood’s application on April 15, 1997. See

Smallwood v. State , 937 P.2d 111 (Okla. Crim. App. 1997). On February 17,

1998, Mr. Smallwood filed a petition for a writ of habeas corpus in the United

States District Court for the Western District of Oklahoma pursuant to 28 U.S.C.

§ 2254, asserting twenty-six grounds for relief from his state convictions and

sentences. The district court denied Mr. Smallwood’s habeas petition on August

4, 1998, and it granted a certificate of appealability for all issues raised on appeal.

Petitioner asserts the following grounds for relief: (1) the state courts

erroneously denied Mr. Smallwood’s motion to suppress evidence acquired as the

result of an illegal detention; (2) the federal district court erred in denying Mr.

Smallwood an evidentiary hearing on his ineffective assistance of counsel claims;

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(3) petitioner’s counsel was constitutionally ineffective at the trial, sentencing,

appellate, and post-conviction stages; (4) the trial court violated petitioner’s

constitutional rights by failing to instruct the jury that mitigating factors need not

be found unanimously; (5) the jury instructions given by the trial court were

unconstitutional because they permitted the jury to ignore mitigating evidence; (6)

the jury instructions were constitutionally impermissible because they failed to

state that, to impose a capital sentence, the jury must find aggravating factors

outweigh mitigating factors beyond a reasonable doubt; (7) the trial court violated

petitioner’s constitutional rights by failing to instruct the jury that there is a

presumption of life in death penalty cases; (8) the jury instructions were

unconstitutional because they did not properly limit the jury’s consideration of

sympathy to the defendant, rather than the decedent; (9) the trial court violated

petitioner’s constitutional rights by failing to instruct the jury that it had the

option of imposing a life sentence even if it found aggravating factors outweighed

mitigating factors; (10) Oklahoma’s “heinous, atrocious, and cruel” aggravating

factor is unconstitutional, and the evidence did not support such a factor; (11)

prejudicial photographs of the decedent’s burned corpse admitted into evidence

rendered Mr. Smallwood’s trial fundamentally unfair; (12) prosecutorial

misconduct tainted petitioner’s trial; (13) Mr. Smallwood was denied a fair trial

because evidence of other crimes and bad acts was admitted at both the trial and

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sentencing stages; (14) Mr. Smallwood was found competent to stand trial under

an unconstitutional standard; and (15) petitioner’s constitutional rights were

violated because defense counsel was unaware of ex parte communications from

the jury to the trial court judge until after the fact. We affirm.

We do not attempt to present a full summary of the facts underlying this

case, for they are adequately set forth in the OCCA’s opinion on appeal. See

Smallwood , 907 P.2d at 222-23. Instead, we mention only those facts pertinent to

our analysis of the issues on appeal.

Standard of Review

When reviewing the denial of a habeas corpus petition, we are generally

subject to two different frameworks of review, depending upon whether the state

courts addressed the merits of the claim for relief. If the state courts have not

heard the claim on its merits, we review the district court’s legal conclusions de

novo and its factual findings, if any, for clear error. 1 See, e.g., Newsted v.

Gibson, 158 F.3d 1085, 1089 (10th Cir.), cert. denied, 119 S. Ct. 1509 (1999). If

the state courts have addressed the claim on its merits, we review the state court

ruling under the standard enunciated in 28 U.S.C. § 2254. Because Mr.

1
When the district court’s findings are based merely on a review of the
state record, we do not give them the benefit of the clearly erroneous standard but
instead conduct an independent review. See Cunningham v. Diesslin, 92 F.3d
1054, 1062 n.6 (10th Cir. 1996).

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Smallwood filed his habeas petition on February 18, 1998, after the effective date

of the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub.

L. No. 104-132, 110 Stat. 1214 (1996), we apply the provisions of 28 U.S.C. §

2254, as amended by AEDPA. See, e.g., Hooks v. Ward,__F.3d__, No. 98-6196,

1999 WL 502608, at *4 (10th Cir. July 16, 1999). Under these provisions, a

federal court is precluded from granting habeas relief on any claim adjudicated on

the merits by the state court, unless the state proceeding “resulted in a decision

that was contrary to, or involved an unreasonable application of, clearly

established Federal law, as determined by the Supreme Court,” 28 U.S.C. §

2254(d)(1), or “resulted in a decision that was based on an unreasonable

determination of the facts in light of the evidence presented in the State court

proceeding,” id. § 2254(d)(2). 2 In addition, we presume the factual findings of

2
The federal courts of appeals have adopted differing interpretations of the
standards of deference under § 2254(d)(1). See, e.g. , Matteo v. Superintendent,
SCI Albion , 171 F.3d 877, 885-887 (3d Cir. 1999) (citing cases), petition for cert.
filed , 67 U.S.L.W. 3008 (U.S. June 22, 1999) (No. 98-2050); Nevers v. Killinger ,
169 F.3d 352, 357-62 (6th Cir.) (citing cases), cert. denied , 119 S. Ct. 2340
(1999); O’Brien v. Dubois , 145 F.3d 16, 21-25 (1st Cir. 1998); Green v. French ,
143 F.3d 865, 870-73 (4th Cir. 1998), cert. denied , 119 S. Ct. 844 (1999). The
Supreme Court has granted certiorari to settle the differences in interpretation.
See Williams v. Taylor , 119 S. Ct. 1355 (1999). Despite the varied
interpretations, “[t]he disagreement is not about whether the AEDPA requires a
high degree of deference to the state court’s judgment; rather, it is about how to
gauge the degree of deference necessary.” Nevers , 169 F.3d at 361. Under any of
the deferential standards announced by the circuits, this appeal would reach the
same result. Therefore, we decline to adopt a specific interpretation of §
2254(d)(1) in this case.

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the state court are correct unless petitioner can rebut this presumption by clear

and convincing evidence. See id. § 2254(e)(1).

Discussion

I. Fourth Amendment Violation

Petitioner first argues that his conviction stemmed from evidence obtained

as the result of an unconstitutional detention. The district court found that the

Supreme Court’s decision in Stone v. Powell , 428 U.S. 465 (1976), barred

petitioner’s claim. Under Stone , habeas relief shall not be granted on the ground

that the trial court admitted evidence obtained in violation of the Fourth

Amendment despite the judicially-created exclusionary rule, provided that the

defendant had an opportunity for full and fair litigation of the Fourth Amendment

claim. See id. at 481-82. We review de novo whether a petitioner had an

opportunity for full and fair litigation of his or her Fourth Amendment claim in

state court. See Miranda v. Cooper , 967 F.2d 392, 401 (10th Cir. 1992). Nothing

in the record indicates that Mr. Smallwood was deprived of such an opportunity.

To the contrary, petitioner filed a motion to suppress the evidence resulting from

his alleged unlawful seizure and repeatedly objected to the admission of this

evidence before the Oklahoma County District Court. 3
Petitioner’s trial counsel

3
The OCCA summarized the specific pieces of evidence that were the
subject of petitioner’s motion to suppress and objections in Smallwood , 907 P.2d
at 224 n.6.

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adequately apprised the court of the factual basis for Mr. Smallwood’s Fourth

Amendment claim. Furthermore, petitioner’s appellate counsel presented the

issue to the OCCA on direct appeal. The state courts thoughtfully considered the

facts underlying petitioner’s Fourth Amendment claim and rejected the claim on

its merits, applying the appropriate Supreme Court precedent and finding no

unconstitutional detention. See Smallwood v. State , 907 P.2d 217, 224-26 (Okla.

Crim. App. 1995). Under these circumstances, we agree with the district court

that the rule announced in Stone bars habeas relief on this claim. See Miranda ,

967 F.2d at 401; cf. Gamble v. Oklahoma , 583 F.2d 1161, 1165 (10th Cir. 1978)

(finding Stone did not bar habeas review where state court refused to recognize or

apply Supreme Court precedent directly on point).

II. Failure to Grant an Evidentiary Hearing

Before the federal district court, Mr. Smallwood requested an evidentiary

hearing to develop an adequate factual record regarding his ineffective assistance

of counsel claims. Particularly, he wished to ferret out whether his counsel’s

decisions were tactical, whether his counsel failed to fully investigate and prepare

mental health issues that support his defense theory and provide mitigation

evidence, and whether his appellate counsel had a conflict of interest. Generally,

under the AEDPA, if a petitioner has failed to develop the factual basis of his

habeas claim in state court, he is not entitled to a federal evidentiary hearing

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unless he initially shows: (1) the claim relies on a “new rule of constitutional law,

made retroactive to cases on collateral review by the Supreme Court, that was

previously unavailable,” 28 U.S.C. § 2254(e)(2)(A)(I), or (2) “a factual predicate

that could not have been previously discovered through the exercise of due

diligence,” id. § 2254(e)(2)(A)(ii). The district court found that Mr. Smallwood

had not met the requirements of § 2254(e)(2) and denied petitioner’s request for

an evidentiary hearing.

We agree with the district court that Mr. Smallwood has failed to satisfy §

2254(e)(2)’s requirements. Petitioner’s ineffective assistance of counsel claims

are not based on a new rule of constitutional law, and the factual basis for the

claims could have been discovered with the exercise of due diligence in state

court. However, in Miller v. Champion , 161 F.3d 1249, 1253 (10th Cir. 1998),

we recently held that § 2254(e)(2)’s restrictions on an evidentiary hearing do not

apply when the petitioner “diligently sought to develop the factual basis

underlying his habeas petition, but a state court prevented him from doing so.” If

the Miller exception applies, petitioner is entitled to 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.” Id.

Mr. Smallwood does not fall within the Miller exception because he did not

diligently seek to develop the factual basis of his ineffective assistance of counsel

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claims in state court. With the exception of his conflict of interest allegation,

petitioner did not seek an evidentiary hearing in state court on the ineffective

assistance of counsel issues before us. Moreover, petitioner failed to properly

raise his conflict of interest claim before the state courts. See Smallwood v.

State , 937 P.2d 111, 117 (Okla. Crim. App. 1997) (refusing to suspend application

of state procedural rules for post-conviction relief to consider petitioner’s pro se

handwritten statement attached to his first application for post-conviction relief

asserting ineffective assistance of counsel claims). Although the OCCA invited

petitioner to assert his ineffective assistance of counsel claims so long as he

complied with the court’s procedural rules, see id. , he did not do so. Under these

circumstances, we cannot conclude that petitioner diligently sought to develop a

factual basis for his ineffective assistance of counsel claims in state court.

Accordingly, the district court did not err in denying Mr. Smallwood’s request for

an evidentiary hearing.

III. Ineffective Assistance of Counsel Claims

Mr. Smallwood claims that he received ineffective assistance of trial

counsel at both the guilt and sentencing stages and ineffective assistance of

appellate counsel. 4
Petitioner claims his trial counsel was ineffective at the guilt

To the extent that petitioner asserts that his counsel was ineffective at the
4

post-conviction stage, he is not entitled to relief on this claim. Petitioner cannot
successfully assert that his counsel was constitutionally ineffective at the post-

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stage because he failed to present mental health evidence to support the defense

theory that Mr. Smallwood lacked the capacity to commit malice aforethought

murder and failed to present evidence of provocation. Mr. Smallwood also claims

his trial counsel was ineffective at the penalty stage by failing to investigate and

prepare mitigating social history and mental health evidence. Petitioner’s

ineffective assistance of appellate counsel claim is based on his appellate

counsel’s failure to challenge his trial counsel’s performance due to an alleged

conflict of interest and failure to argue that Mr. Smallwood was found competent

to stand trial under an unconstitutional standard. Before addressing the merits of

these claims, we must first consider the respondent’s argument that they are

procedurally barred.

Petitioners generally must exhaust available state court remedies before

seeking redress via a federal habeas corpus petition. See 28 U.S.C. § 2254(b)(1);

Demarest v. Price, 130 F.3d 922, 932 (10th Cir. 1997). Although petitioner raised

an ineffective assistance of counsel claim on direct appeal, he based it on

different reasons than those expressed in his habeas petition. Indeed, petitioner

has not properly raised before the state courts any of the bases upon which his

current ineffective assistance of counsel claims rely. Thus, petitioner has failed

conviction stage because “[t]here is no constitutional right to an attorney in state
post-conviction proceedings.” Coleman v. Thompson , 501 U.S. 722, 752 (1991).

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to exhaust his ineffective assistance of counsel claims. See Lambert v. Blackwell,

134 F.3d 506, 517 (3d Cir. 1998) (finding ineffective assistance of counsel claim

unexhausted when petitioner asserted a different basis for the claim in the state

courts than presented in his habeas petition), petition for cert. filed, __ U.S.L.W.

__ (U.S. Apr. 23, 1999) (No. 97-8812); Lanigan v. Maloney, 853 F.2d 40, 45 (1st

Cir. 1988) (same); cf. Demarest, 130 F.3d at 938-39 (finding claims unexhausted

when petitioner made general allegations of ineffective assistance of counsel in

state court and more specific allegations in federal court on habeas). However,

dismissal without prejudice for failure to exhaust state remedies is not appropriate

if the state court would now find the claims procedurally barred on independent

and adequate state procedural grounds. See Coleman v. Thompson, 501 U.S. 722,

735 n.1 (1991); Demarest, 130 F.3d at 939. Such is the case here.

If petitioner returned to state court to file a second application for post-

conviction relief, he would be procedurally barred. Oklahoma law deems waived

any claims that could have been and were not raised in a first application for post-

conviction relief in a death penalty case. See Okla. Stat. Ann. tit. 22, §

1089(D)(2) (“All grounds for relief that were available to the applicant before the

last date on which an application could be timely filed not included in a timely

application shall be deemed waived”); see also id. § 1089(D)(8) (“[I]f a

subsequent application for post-conviction relief is filed after filing an original

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application, the Court of Criminal Appeals may not consider the merits of or grant

relief based on the subsequent . . . application unless the application contains

specific facts establishing that the current claims and issues . . . could not have

been presented previously in a timely original application . . . .”); id. § 1086

(stating, inter alia, that a second post-conviction relief application cannot be

based on claims that were not raised in an original, supplemental or amended

application). 5 Additionally, claims previously raised and rejected are barred by

res judicata. See id. §§ 1086, 1089(C)(1). Mr. Smallwood’s claims of ineffective

assistance of counsel would be barred in state court by either res judicata or

waiver. 6 Therefore, we treat his claims as if they were exhausted because they

would be procedurally barred. 7

We note that both § 1089 and § 1086 were effective prior to the date that
5

Mr. Smallwood filed his application for post-conviction relief in state court.
6
The OCCA has held that raising an ineffective assistance of counsel claim
on direct appeal, regardless of the basis for the claim, renders all subsequent
claims of ineffective assistance res judicata, even if the subsequent claims rest on
different bases. See Hooks v. State , 902 P.2d 1120, 1122 n.4 (Okla. Crim. App.
1995) (“we consider this issue – and all instances of trial counsel ineffectiveness
which could have been raised but were not – res judicata for purposes of . . . post-
conviction appeal.”). Therefore, petitioner’s current claims of ineffective
assistance of trial counsel would be barred because he raised trial counsel
ineffectiveness on direct appeal. See Smallwood , 937 P.2d at 115 n.3; id. at 118
(Lumpkin, J., concurring).
7
Although petitioner attempted to raise his ineffective assistance of
appellate counsel claim based on an alleged conflict of interest in a handwritten
statement attached to his first post-conviction relief application, the OCCA held
that the claim was not properly before them because it was not submitted by Mr.

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 We will not consider issues on habeas review “that have been defaulted in

state court on an independent and adequate state procedural ground, unless the

petitioner can demonstrate cause and prejudice or a fundamental miscarriage of

justice.” English v. Cody, 146 F.3d 1257, 1259 (10th Cir. 1998) (citing Coleman,

501 U.S. at 749-50). For a state procedural ground to be independent, it must rely

on state law, rather than federal law. See id. The procedural rules that would bar

Mr. Smallwood’s ineffective assistance of counsel claims are rooted solely in

Oklahoma state law and are thus independent. A state ground will be considered

adequate only if it is “‘strictly or regularly followed’ and applied ‘evenhandedly

to all similar claims.’” Duvall v. Reynolds, 139 F.3d 768, 797 (10th Cir.)

(quoting Hathorn v. Lovorn, 457 U.S. 255, 263 (1982)), cert. denied, 119 S. Ct.

345 (1998). Although the prosecution has the ultimate burden of proving the

adequacy of a state procedural bar, “[o]nce the state pleads the affirmative

defense of an independent and adequate state procedural bar, the burden to place

that defense in issue shifts to the petitioner.” Hooks v. Ward, __ F.3d __, No. 98-

6196, 1999 WL 502608, at *9 (10th Cir. July 16, 1999). To satisfy this burden,

petitioner is, at a minimum, required to set forth specific factual allegations as to

Smallwood’s counsel of record. See Smallwood v. State, 937 P.2d 111, 117
(Okla. Crim. App. 1997) (citing Okla. Stat. Ann. tit. 22, § 1089; Okla. Crim. App.
R. 1.16, 3.4(E), 9.7). Thus, as to this claim, multiple procedural rules acting in
concert would bar the claim. We will address this one claim separately below.

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the inadequacy of the state procedure. See id. As noted by the district court, Mr.

Smallwood has not challenged the adequacy of any of Oklahoma’s procedural

default rules. Consequently, under Hooks , petitioner has failed to carry his

burden, and we may presume that the state procedural rules at issue in this case

are adequate grounds for barring habeas review of his federal claims. However,

this court in Hooks excused the petitioner’s failure to place the adequacy of the

state procedural rule in issue due to the timing of the proceedings below. See id.

at *9-10. Applying the burden-shifting framework announced in Hooks likewise

would be unfair to Mr. Smallwood, given that his habeas petition and supporting

briefs were filed months before the Hooks decision. We will therefore consider

the adequacy of the procedural default rules at issue in this case.

Although we normally view state procedural rules that bar ineffective

assistance claims with a healthy degree of skepticism, see, e.g. , Hickman v.

Spears , 160 F.3d 1269, 1272 (10th Cir. 1998); Brecheen v. Reynolds , 41 F.3d

1343, 1363-64 (10th Cir. 1994), this does not preclude a finding that a state

procedural rule is adequate to bar federal review of ineffective assistance of

counsel claims. In a recent death penalty case, this court reviewed Oklahoma’s

procedural rule barring claims brought in a second application for post-conviction

relief that could have been and were not raised in a previous application and

found that the rule was adequate to bar habeas review of ineffective assistance of

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counsel claims. See Moore v. Reynolds , 153 F.3d 1086, 1097 (10th Cir. 1998),

cert. denied , 119 S. Ct. 1266 (1999). 8
With the exception of the appellate counsel

conflict of interest claim that petitioner sought to raise in a supplemental pro se

brief, petitioner did not raise the current ineffective assistance of counsel claims

in his first application for post-conviction relief. Consequently, we follow Moore

and find petitioner’s failure to raise the factual bases for his ineffective assistance

of counsel claims in his first application for state post-conviction relief precludes

habeas review of these claims unless he demonstrates cause and prejudice or a

fundamental miscarriage of justice.

Petitioner has failed to show cause for not raising his ineffective assistance

of counsel claims in his first application for post-conviction relief. Although

8
We based our decision in Moore on the Oklahoma procedural bar that
applies to general post-conviction relief applications, Okla. Stat. Ann. tit. 22, §
1086, rather than the later-enacted specific provisions that apply to post-
conviction relief from capital sentences, Okla. Stat. Ann. tit. 22, § 1089. See 153
F.3d at 1097. However, the procedural bars found in § 1086 “also apply to claims
raised under . . . Section 1089.” Fields v. State , 946 P.2d 266, 269 (Okla. Crim.
App. 1997). We therefore find Moore controlling here.

Additionally, our decision in Moore mentions both the res judicata bar to
claims previously rejected and the waiver rule for claims not previously raised.
Both procedural bars are included in Okla. Stat. Ann. tit. 22, §§1086 and 1089,
and both are regularly and even-handedly applied by the state courts. See, e.g. ,
Fields , 946 P.2d at 268-69; Neill v. State , 943 P.2d 145, 146 (Okla. Crim. App.
1997); Smallwood v. State , 937 P.2d 111, 114 (Okla. Crim. App. 1997); Ross v.
State , 872 P.2d 940, 941 (Okla. Crim. App. 1994). To the extent the Moore
opinion did not specifically clarify which procedural bar it addressed, we find
that both are adequate state grounds for procedural default.

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attorney error amounting to constitutionally ineffective assistance of counsel

constitutes “cause” for a procedural default, see Coleman, 501 U.S. at 754,

petitioner cannot make such a showing here because there is no constitutional

right to post-conviction counsel , see Demarest v. Price , 130 F.3d 922, 941 (10th

Cir. 1997). In addition, because petitioner has failed to supplement his habeas

claim with a colorable showing of factual innocence, he cannot demonstrate that

our failure to review his ineffective assistance of counsel claims will result in a

fundamental miscarriage of justice. See Hickman , 160 F.3d at 1275. Therefore,

we conclude that all but one of Mr. Smallwood’s ineffective assistance of counsel

claims are procedurally barred and not subject to habeas review.

We now turn to the conflict of interest claim. As we noted above,

petitioner did attempt to raise an ineffective assistance of appellate counsel claim

based on an alleged conflict of interest in his first application for state post-

conviction relief. However, instead of having his counsel of record address the

claim in the original application, Mr. Smallwood raised the claim in a pro se

handwritten statement which he attached to the application. The OCCA refused

to consider Mr. Smallwood’s pro se statement as part of the original application,

citing its procedural rules barring consideration of supplemental pro se statements

as part of a first post-conviction relief application filed by counsel. See

Smallwood v. State , 937 P.2d 111, 117 (Okla. Crim. App. 1997) (citing rules).

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Thus, these procedural rules, in conjunction with Okla. Stat. Ann. tit. 22, §§ 1086,

1089, prevent state court review of this ineffective assistance of appellate

counsel claim. The parties have not briefed the matter of whether the Oklahoma

rules that prevented the OCCA from considering Mr. Smallwood’s handwritten

statement are adequate for the purposes of procedural default. Given this fact, we

will, like the district court, assume the rules are inadequate to bar federal habeas

review of this claim. 9
Consequently, we will address the merits of this particular

ineffective assistance of appellate counsel claim.

Petitioner’s ineffective assistance of appellate counsel claim is governed by

the familiar standards of Strickland v. Washington , 466 U.S. 668 (1984). Under

the two-part Strickland test, to establish a successful ineffective assistance of

counsel claim, petitioner must show: “(1) that his counsel’s performance fell

below an objective standard of reasonableness and (2) that the deficient

performance was prejudicial to his defense.” Hickman, 160 F.3d at 1273 (citing

Strickland, 466 U.S. at 688, 694)). The first prong requires petitioner to

overcome the “strong presumption that counsel’s conduct falls within the wide

9
Our holding of inadequacy is limited to the unique circumstances of this
case. If the issue had been briefed, we may have handled this matter differently.
We therefore leave open the question of whether the Oklahoma procedural rules
which prevented consideration of petitioner’s pro se statement as part of his first
application for state post-conviction relief are adequate, i.e., whether they are
regularly followed and evenhandedly applied to similar cases.

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range of reasonable professional assistance.” Strickland, 466 U.S. at 689; see

also Duvall v. Reynolds, 139 F.3d 768, 777 (10th Cir.), cert. denied, 119 S. Ct.

345 (1998). Moreover, “in considering counsel’s performance, we focus on ‘not

what is prudent or appropriate, but only what is constitutionally compelled.’”

Hickman, 160 F.3d at 1273 (quoting United States v. Chronic, 466 U.S. 648, 665

n.38 (1984)). To meet the second prong, petitioner must establish that “there is a

reasonable probability that, but for counsel’s unprofessional errors, the result of

the proceeding would have been different.” Strickland, 466 U.S. at 694.

At trial, Mr. Barry Albert represented petitioner. During his direct appeal,

different counsel, Mr. James Dennis, represented Mr. Smallwood. Both attorneys,

however, worked for the Oklahoma City Public Defender’s Office. According to

petitioner, Mr. Dennis’ performance was constitutionally deficient because he

lacked the independence to objectively review Mr. Albert’s performance. To this

end, petitioner alleges that the Oklahoma City Public Defender’s Office had a

policy prohibiting its attorneys from pursuing ineffective assistance of counsel

claims against other members of the office. The record contains no evidence that

such a policy existed or that petitioner’s counsel was unable to objectively review

his trial counsel’s performance. Indeed, the record indicates that petitioner’s

appellate counsel aggressively raised over twenty issues on direct appeal,

including an ineffective assistance of counsel claim. See Smallwood v. State , 907

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P.2d 217, 238-39 (Okla. Crim. App. 1995). This belies petitioner’s contention

that office policy prevented his appellate counsel from bringing ineffective

assistance of trial counsel claims. We therefore refuse to give any weight to this

naked allegation. Accordingly, petitioner has failed to show that his appellate

counsel’s performance fell below an objective standard of reasonableness, and

this claim has no merit.

IV. Instructional Errors

A. Failure to inform jury that mitigating circumstances need not be found

unanimously

Petitioner next claims that the trial court violated his constitutional rights

under the Eighth and Fourteenth Amendments because it failed to specifically

instruct the jurors that they did not have to agree unanimously as to mitigating

circumstances before considering such evidence. The relevant jury instructions

provided:

Mitigating circumstances are those which, in fairness and
mercy, may be considered as extenuating or reducing the degree of
moral culpability or blame. The determination of what are mitigating
circumstances is for you as jurors to resolve under the facts and
circumstances of this case.

Second Stage Jury Instruction No. 8, R., Vol. III at 597.

If you unanimously find that one or more of the aggravating
circumstances existed beyond a reasonable doubt, unless you also
unanimously find that such aggravating circumstance or
circumstances outweigh the finding of one or more mitigating

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 circumstances, the death penalty shall not be imposed.

Second Stage Jury Instruction No. 9, R., Vol. III at 599.

If you unanimously find that one or more aggravating
circumstances exist beyond a reasonable doubt, the law requires that
you reduce such findings to writing by stating specifically which
aggravating circumstances existed, if any. This finding must be
made a part of your verdict.

You must indicate this finding by checking the box next to
such aggravating circumstance or circumstances on the appropriate
verdict form furnished you, and such verdict must be signed by your
foreman.

The law does not require you to reduce to writing the
mitigating circumstances you find, if any.

Second Stage Jury Instruction No. 10, R., Vol. III at 600.

This court has repeatedly upheld almost identical jury instructions against

the same constitutional challenge raised by petitioner. See Lafevers v. Gibson ,

__F.3d__, No. 98-6302, 1999 WL 394508, at *12-13 (10th Cir. June 16, 1999);

Newsted v. Gibson , 158 F.3d 1085, 1093 (10th Cir. 1998), cert. denied , 119 S. Ct.

1509 (1999); Duvall v. Reynolds , 139 F.3d 768, 791 (10th Cir.), cert. denied , 119

S. Ct. 345 (1998). We are bound by the decisions of prior panels, see Newsted,

158 F.3d at 1093, and circuit precedent therefore forecloses this claim.

B. Instructions permitted jury to ignore mitigating evidence

Petitioner also claims that the jury instructions given by the district court

were unconstitutional because they permitted the jury to ignore mitigating

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evidence. The challenged jury instruction states:

Mitigating circumstances are those which, in fairness and
mercy, may be considered as extenuating or reducing the degree of
moral culpability or blame. The determination of what are mitigating
circumstances is for you as jurors to resolve under the facts and
circumstances of this case.

Second Stage Jury Instruction No. 8, R., Vol. III at 597. We rejected petitioner’s

argument with respect to virtually identical instructions in Boyd v. Ward , 179

F.3d 904, 924 (10th Cir. 1999) (“The use of the word ‘may’ does not alone

compel the conclusion that the jury was empowered to ignore mitigating evidence.

. . . There is no reasonable likelihood that the jury applied the instructions in such

a way that it was prevented from considering mitigating evidence.”).

Consequently, petitioner is not entitled to relief on this claim.

C. Burden of proof

Petitioner further claims that the sentencing stage instructions were

unconstitutional because the trial court failed to inform the jury of the standard to

be used when balancing aggravating and mitigating factors. Mr. Smallwood

contends that the jury instructions must expressly state that aggravating factors

must outweigh mitigating factors beyond a reasonable doubt in order for the jury

to impose the death penalty. We disagree. In Zant v. Stephens , 462 U.S. 862,

875 n.13 (1983), the Supreme Court stated that “specific standards for balancing

aggravating against mitigating circumstances are not constitutionally required.”

-21-
Thus, petitioner’s argument is without merit.

D. Presumption of life

Petitioner claims that the jury instructions given by the trial court were

unconstitutional under the Eighth and Fourteenth Amendments because the court

refused petitioner’s request for a separate “presumption of life” instruction. We

are not persuaded by petitioner’s argument. First, petitioner has failed to cite any

judicial authority, and our independent research revealed none, that the

Constitution mandates a “presumption of life” instruction. In addition, we find

that even if the Constitution requires a jury to be informed that a criminal

defendant is entitled to a presumption of life unless the state satisfies its burden

of showing that death is the appropriate penalty, the instructions given at Mr.

Smallwood’s trial adequately informed the jury of this fact. The trial court

instructed the jury:

The defendant, Dion A. Smallwood, has entered a plea of not
guilty to the allegations of this Bill of Particulars, which casts on the
State the burden of proving the material allegations in this Bill of
Particulars beyond a reasonable doubt. This Bill of Particulars
simply states the grounds upon which the State seeks imposition of
the death penalty. It sets forth in a formal way the aggravating
circumstance of which the defendant is accused. It is, in itself, not
evidence that any aggravating circumstance exist[s], and you must
not allow yourselves to be influenced against defendant by reason of
the filing of this Bill of Particulars.

The defendant is presumed to be innocent of the charge made
against him in the Bill of Particulars, and innocent of each and every
material element of said charge, and this presumption of innocence

-22-
 continues unless his guilt is established beyond a reasonable doubt.
If upon consideration of the evidence, facts, and circumstances in the
case, you entertain a reasonable doubt of the guilt of the defendant of
the charge made against him in the Bill of Particulars, you must give
him the benefit of that doubt and return a sentence of life
imprisonment without parole or life.

Second Stage Jury Instruction No. 3, R., Vol. III, at 592 (emphasis added).

Should you unanimously find that an aggravating circumstance
exists beyond a reasonable doubt, you would be authorized to
consider imposing a sentence of death.

If you do not unanimously find beyond a reasonable doubt that
an aggravating circumstance exists, you are prohibited from
considering the penalty of death. In that event, the sentence must be
imprisonment for life or imprisonment for life without parole.

Second Stage Jury Instruction No. 4, R., Vol. III, at 594 (emphasis added).

If you unanimously find that one or more of the aggravating
circumstances existed beyond a reasonable doubt, unless you also
unanimously find that any such aggravating circumstance or
circumstances outweigh the finding of one or more mitigating
circumstances, the death penalty shall not be imposed.

Second Stage Jury Instruction No. 9, R., Vol. III, at 599 (emphasis added).

These instructions, in the context of the second stage jury instructions as a

whole, fairly and adequately informed the jury that petitioner was entitled to a life

sentence unless the jury unanimously found: (1) the state had proven the existence

of one or more aggravating circumstances beyond a reasonable doubt ; and (2)

that the aggravating circumstance(s) outweighed any mitigating circumstances.

We therefore hold that the trial court’s refusal to give a separate “presumption of

-23-
life” instruction in this case did not violate petitioner’s constitutional rights under

the Eighth and Fourteenth Amendments. Cf. Turner v. Williams , 812 F. Supp.

1400, 1436 (E.D. Va. 1993) (concluding that jury instructions providing that the

state had the burden of proving beyond a reasonable doubt the appropriateness of

the death penalty is “essentially the same thing” as an instruction that a life

sentence is presumed), aff’d , 35 F.3d 872 (4th Cir. 1994).

E. Sympathy instruction

During the guilt phase of petitioner’s trial, the court instructed the jury that

it could not consider sympathy for either the defendant or the victim in reaching

its verdict. Mr. Smallwood does not challenge that instruction. At the sentencing

phase of Mr. Smallwood’s trial, the court explicitly told the jury that it was no

longer bound by the anti-sympathy instruction. The court did so by means of the

following instruction:

All the previous instructions given you in the first part of this
trial apply where appropriate and must be considered together with
these additional instructions. The only exception is that, unlike what
you were instructed in the first stage of this trial, you may, in your
discretion, consider sympathy as a factor in your deliberations and
then determine whether or not you should give any weight to such
factor under all the evidence you have heard in both the first and
second stages.

Second Stage Jury Instruction No. 11, R., Vol. III, at 601. Petitioner claims that

the jury instruction violated his Eighth and Fourteenth Amendment rights because

the court failed to “properly limit the jury’s consideration and application of

-24-
sympathy to the defendant,” Appellant’s Br. at 52, rather than to the victim. We

disagree.

We are not convinced that sympathy for victims and/or their families cannot

be appropriately considered at the penalty phase to counteract defendant’s

mitigating evidence, provided it is based on evidence adduced at trial and the

evidence produced is not so unduly prejudicial as to render the defendant’s trial

fundamentally unfair. Petitioner relies solely on Williams v. State , 658 P.2d 499,

501 (Okla. Crim. App. 1983), for his assertion that a sentence based on sympathy

for the victim is per se unconstitutional. Williams , however, is inapposite

because it does not clearly deal with the penalty phase of a bifurcated trial. In

Payne v. Tennessee , 501 U.S. 808, 827 (1991), the Supreme Court stated:

[I]f the State chooses to permit the admission of victim impact
evidence and prosecutory argument on that subject [during the
penalty phase], the Eighth Amendment erects no per se bar. A State
may legitimately conclude that evidence about the victim and about
the impact of the murder on the victim’s family is relevant to the
jury’s decision as to whether or not the death penalty should be
imposed. There is no reason to treat such evidence differently than
other relevant evidence is treated.

See also Booth v. Maryland , 482 U.S. 496, 517 (1987) (White, J., dissenting)

(“the State has a legitimate interest in counteracting the mitigating evidence

which the defendant is entitled to put in, by reminding the sentencer that just as

the murderer should be considered an individual, so too the victim is an

individual whose death represents a unique loss to society and in particular to his

-25-
family.” (internal citation omitted)). “ Payne allows the introduction of victim

impact testimony to aid the jury in making a ‘reasoned moral response’ when

imposing sentence upon a defendant convicted of a capital offense.” United

States v. McVeigh , 153 F.3d 1166, 1217 (10th Cir. 1998) (quoting Penry v.

Lynaugh , 492 U.S. 302, 319 (1989)), cert. denied , 119 S. Ct. 1148 (1999). At the

same time, Payne does not permit the introduction of evidence so prejudicial as to

violate defendant’s due process rights. See Payne , 501 U.S. at 825; McVeigh ,

153 F.3d at 1217.

Here, the trial court’s instructions informed the jury that the weight given

to the sympathy factor must be based on the evidence presented at trial.

Petitioner does not direct us to any victim-impact testimony that rendered the trial

fundamentally unfair. Therefore, the instruction allowing the jury to consider

sympathy for the victim and/or his family did not violate Mr. Smallwood’s Eighth

and Fourteenth Amendment rights.

We also reject petitioner’s claim that the sympathy instruction prevented

the jury from considering sympathy for him. The trial court’s instruction did not

limit the jury’s consideration of sympathy for Mr. Smallwood. Moreover, the

court told the jury that it alone determined proper mitigating evidence and

specifically listed information about Mr. Smallwood’s background, family, and

the love his family has for him as potential mitigating evidence.

-26-
F. Life option

Petitioner claims that the jury instructions were unconstitutional because

the trial court failed to instruct the jurors that they had the option of imposing a

life sentence, rather than death, even if they found that the aggravating factors

outweighed mitigating factors. We have, on several previous occasions, rejected

this identical argument based on the same jury instruction given at petitioner’s

trial. See Lafevers v. Gibson , __F.3d__, No. 98-6302, 1999 WL 394508, at *11-

12 (10th Cir. June 16, 1999); Johnson v. Gibson , 169 F.3d 1239, 1254 (10th Cir.

1999); Duvall v. Reynolds , 139 F.3d 768, 790-91 (10th Cir.), cert. denied , 119 S.

Ct. 345 (1998). Our circuit precedent therefore precludes us from granting relief

on this claim.

G. Heinous, Atrocious, and Cruel Aggravator

Petitioner’s final challenge to the jury instructions involves Oklahoma’s

“heinous, atrocious, and cruel” aggravating factor. Mr. Smallwood asserts that

the factor is unconstitutionally vague, and that even if it is constitutional, there

was insufficient evidence presented at his trial to warrant the aggravator. We

have repeatedly upheld Oklahoma’s “heinous, atrocious, and cruel” aggravating

factor against vagueness challenges. See, e.g. , Hooks v. Ward , __ F.3d __, No.

98-6196, 1999 WL 502608, at *33-34 (10th Cir. July 16, 1999); Lafevers , 1999

WL 394508, at *14-15; Duvall , 139 F.3d at 792-93.

-27-
 In addition, we agree with the district court and the OCCA that there was

sufficient evidence presented at petitioner’s trial to support a “heinous, atrocious,

and cruel” aggravator. The record contains numerous pieces of evidence upon

which a reasonable juror could conclude beyond a reasonable doubt that the

victim’s death was preceded by “torture of the victim or serious physical abuse,”

Duvall , 139 F.3d at 793 (quoting Stouffer v. State , 742 P.2d 562, 563 (Okla.

Crim. App. 1987)). The state court characterized the evidence as follows:

The evidence presented, much of it in the form of Appellant’s
direct testimony, indicated that he arrived, uninvited, at the victim’s
house at approximately 4:00 p.m., ostensibly to look for his
girlfriend. A quick search of the house and garage revealed that she
was not there, yet Appellant did not leave until almost 2 1/2 hours
later. During that time he admitted pushing the decedent backward
over two tables, causing her to fall and injure herself; to destroying
her telephone so she could not call the police; to punching her in the
face and making her nose bleed; and to hitting her hard enough with
a croquet mallet to knock her dentures from her mouth. Although
Appellant claimed Frederick did not move after he hit her, and that
he hit her only once, physical evidence at the scene indicated the
victim bled profusely at numerous locations throughout the
residence. Blood spatter evidence, and expert testimony to the same,
indicated there was more than one blow with the croquet mallet.
Cups located in the living room and bedroom showed bloody lip
prints, suggesting the victim had been conscious enough to drink
from containers at least twice before being beaten and/or bludgeoned
into a state of unconsciousness, if indeed she ever reached that point.
Appellant further claimed he had placed the victim in her car with
her head facing the driver’s side of the vehicle, and that she did not
move after being placed in the car. However, photos of the crime
scene showed the victim’s burned body with her head and torso
facing the passenger’s side of the vehicle, and at least one witness to
the burning testified he saw her leg move as he tried to extinguish the
fire. Overall, we find there was more than sufficient evidence for the

-28-
 jury to find the murder was heinous, atrocious or cruel.

Smallwood , 907 P.2d at 234-35. The OCCA’s evidentiary findings have support

in the record and are not clearly erroneous, and its conclusions are not a n

unreasonable application of clearly established federal law. Mr. Smallwood is not

entitled to habeas relief on this ground.

V. Prejudicial Photographs

During the guilt phase of petitioner’s trial, the prosecution moved to admit

four color photographs of the victim’s charred corpse. Defense counsel objected

to the admission of the photographs, arguing that they had little or no probative

value and were highly prejudicial and inflammatory. The trial court admitted

three of the photographs over defense objection but sustained the objection to the

fourth and most graphic photo. The court later admitted the fourth photo over a

similar defense objection during the sentencing stage. The OCCA upheld the trial

court’s evidentiary rulings regarding the admission of the photographs. See

Smallwood , 907 P.2d at 228.

Federal habeas review is not available to correct state law evidentiary

errors; rather it is limited to violations of constitutional rights. See, e.g. , Estelle

v. McGuire , 502 U.S. 62, 67-68 (1991). Accordingly, petitioner asserts that the

admission of three of the photographs at the guilt phase violated his rights to due

process and a fair trial under the Fifth, Sixth and Fourteenth Amendments and the

-29-
use of the fourth photo during sentencing violated his Eighth and Fourteenth

Amendment rights.

The essence of our inquiry under the Fifth, Sixth, and Eighth Amendments,

as applied to the states under the Fourteenth Amendment, is whether the

admission of the photographs rendered the proceedings fundamentally unfair. See

Jackson v. Shanks , 143 F.3d 1313, 1322 (10th Cir.) (“[D]ue process arguments

relating to the admissibility of the victims’ . . . autopsy photos . . . will not

support habeas relief ‘absent fundamental unfairness so as to constitute a denial

of due process of law.’” (quoting Martin v. Kaiser , 907 F.2d 931, 934 (10th Cir.

1990)), cert. denied , 119 S. Ct. 378 (1998); Woods v. Johnson , 75 F.3d 1017,

1038-39 (5th Cir. 1996) (stating admission of photographs of deceased’s body

does not violate Eighth Amendment unless it renders the trial fundamentally

unfair). “[W]e approach the fundamental fairness analysis with ‘considerable

self-restraint.’” Jackson , 143 F.3d at 1322 (quoting United States v. Rivera , 900

F.2d 1462, 1477 (10th Cir. 1990) (en banc)). The OCCA and the district court

found that the photographs were probative as to various issues at the guilt and

sentencing phases. See Smallwood , 907 P.2d at 227; Dist. Ct. Mem. Op. & Order

at 45-46. We do not find the OCCA ruling contrary to or an unreasonable

application of Supreme Court precedent. Given the probative nature of the

photographs, the gruesome character of the crime itself, and the wealth of

-30-
additional evidence supporting defendant’s convictions, the admission of the

photographs was not so unduly prejudicial as to render the proceedings against

petitioner fundamentally unfair. See Jackson , 143 F.3d at 1322. Consequently,

petitioner is not entitled to relief on this ground.

VI. Prosecutorial Misconduct

Petitioner next claims that prosecutorial misconduct at both the guilt and

penalty phases of his trial violated his constitutional rights under the Fifth, Sixth,

Eighth and Fourteenth Amendments. The particular instances of alleged

misconduct by the prosecution include:

(1) the prosecution improperly attacked the credibility of defense
counsel and presented arguments calculated to inflame the passions
of the jury; (2) the prosecution combined an attack on defense
counsel with a grossly improper appeal to societal alarm; (3) the
prosecution improperly attacked and denigrated Mr. Smallwood; (4)
the prosecution commented on acts not in evidence and improperly
appealed for sympathy for the victim; and (5) the prosecution also
improperly stated personal opinions, asked jurors to consider the
rights of the victim, and engaged in name calling.

Appellant’s Br. at 38.

Prosecutorial misconduct does not warrant federal habeas relief unless the

conduct complained of is so egregious as to render the entire proceedings against

the defendant fundamentally unfair. See, e.g. , Donnelly v. DeChristoforo , 416

U.S. 637, 642-48 (1974); Cummings v. Evans , 161 F.3d 610, 618 (10th Cir.

1998), cert. denied , 119 S. Ct. 1360 (1999). The fundamental unfairness test

-31-
governs petitioner’s claims under the Fifth and Sixth as well as the Eighth

Amendments. See, e.g. , Boyd v. Ward , 179 F.3d 904, 919-20 (10th Cir. 1999)

(applying test to allegation that prosecutorial misconduct occurred during

sentencing stage); Cummings , 161 F.3d at 618 (applying test to claim

prosecutorial misconduct deprived defendant of a fair trial); Duvall , 139 F.3d at

794 (applying test to claim prosecutorial misconduct deprived defendant of due

process). In making our determination, “we consider the totality of the

circumstances, evaluating the prosecutor’s conduct in the context of the whole

trial.” Cummings , 161 F.3d at 618 (internal quotation marks and citation

omitted). We have previously enunciated the contours of this inquiry:

To view the prosecutor’s statements in context, we look first at the
strength of the evidence against the defendant and decide whether the
prosecutor’s statement plausibly could have tipped the scales in favor
of the prosecution. We also ascertain whether curative instructions
by the trial judge, if given, might have mitigated the effect on the
jury of the improper statements. When a prosecutor responds to an
attack made by defense counsel, we evaluate that response in light of
the defendant’s argument. Ultimately, we must consider the probable
effect the prosecutor’s [conduct] would have on the jury’s ability to
judge the evidence fairly.

Id. (quoting Hopkinson v. Shillinger , 866 F.2d 1185, 1210 (10th Cir. 1989)

(internal quotation marks and citations omitted)).

On direct appeal, the OCCA carefully considered the alleged instances of

prosecutorial misconduct and concluded that none warranted post-conviction

relief, finding most of the comments were proper and the remainder of them did

-32-
not prejudice Mr. Smallwood. See Smallwood , 907 P.2d at 228-29, 232-33. The

federal district court reached similar conclusions.

We do not find the OCCA’s rulings to be an unreasonable application of

constitutional law. Even assuming that the specific instances of alleged

misconduct were improper, we find, based on our careful review of the record of

the entire proceedings, that none of the prosecutor’s comments were of sufficient

magnitude to influence the jury’s decision. In light of the considerable evidence

establishing defendant’s guilt and supporting the heinous, atrocious, and cruel

aggravator, there is no reasonable probability that the guilt or penalty phase

verdicts in this case would have been different without the alleged misconduct.

Therefore, we hold that the proceedings against petitioner were not rendered

fundamentally unfair by prosecutorial misconduct. See Boyd , 179 F.3d at 920

(finding, in a death penalty case, that prosecutorial misconduct did not render

proceeding fundamentally unfair in light of strong evidence of guilt and

aggravating circumstances).

VII. Unadjudicated Crimes and Bad Acts Evidence

Mr. Smallwood argues that the introduction of other unadjudicated crimes

and bad acts evidence at both the guilt and penalty phases of his trial violated his

constitutional rights. Under our circuit precedent, the introduction of

unadjudicated offenses at sentencing does not violate a criminal defendant’s

-33-
constitutional rights. See, e.g. , Boyd , 179 F.3d at 922; Johnson v. Gibson , 169

F.3d 1239, 1252 (10th Cir. 1999); Hatch v. Oklahoma , 58 F.3d 1447, 1465 (10th

Cir. 1995). Consequently, petitioner’s argument as it relates to the penalty phase

is foreclosed, and we need only address his claim with respect to the guilt phase.

The subject of petitioner’s claim at the guilt stage involves two pieces of

evidence detailing other crimes and bad acts, the admission of which he claims

deprived him of his right to due process. The first piece of evidence was

testimony by the victim’s daughter, Terry Jo Frederick, that Mr. Smallwood had

“put knives up to her.” The second piece of evidence was a letter purportedly

written by the victim in which she described Mr. Smallwood as “mean and

dangerous” and stated that he had pawned her TV and VCR, stolen her daughter’s

car, and destroyed her furniture with a knife. Attached to the letter was a

document from the Department of Public Safety showing that Mr. Smallwood had

his driver’s license revoked for refusing to submit to sobriety tests. Petitioner’s

counsel objected to the admission of both pieces of evidence, but the trial court

overruled the objection.

On habeas review, we will not disturb evidentiary findings regarding the

admission of prior offenses, crimes, or bad acts evidence unless the prejudice

flowing from such evidence is so great as to constitute a denial of federal

constitutional rights by rendering the trial fundamentally unfair. See Duvall , 139

-34-
F.3d at 787 . “Mistakenly admitted evidence of prior crimes or convictions can, in

some instances, ‘imping[e] upon the fundamental fairness of the trial itself.’” Id.

at 788 (quoting United States v. Parker , 604 F.2d 1327, 1329 (10th Cir. 1979),

overruled on other grounds by United States v. Pennon , 816 F.2d 527, 528 (10th

Cir. 1987)). A proper instruction by the court may cure the error. See id. In this

case, the trial court failed to instruct the jury to disregard the evidence. We must

therefore consider the record as a whole to determine whether the admission of

the prior unadjudicated bad acts evidence resulted in fundamental unfairness.

We conclude that the admission of the unsolicited comment by the victim’s

daughter concerning prior abuse at the hands of Mr. Smallwood and the admission

of the victim’s letter did not render petitioner’s trial fundamentally unfair. Mr.

Smallwood’s own testimony established that he was abusive to the victim’s

daughter. The petitioner also testified on direct examination regarding

information in the victim’s letter and admitted to taking her daughter’s car. Most

importantly, petitioner’s own testimony leaves no room for doubt that his actions

in striking the victim with a croquet mallet, placing her in a car, and setting the

car on fire caused the victim’s death. In light of these admissions, we find that

the evidence, even if inappropriately admitted, was not so prejudicial as to render

Mr. Smallwood’s trial fundamentally unfair. This is particularly true given the

great disparity in seriousness between the unadjudicated bad acts, which involved

-35-
assault and theft, and the charged crime, a brutal homicide. Therefore, we

conclude that, in this case, the admission of the prior bad acts evidence did not

rise to the level of a constitutional violation.

VIII. Unconstitutional Competency Standard

Mr. Smallwood’s next ground for relief is that the trial court violated his

due process rights by finding him competent to stand trial under an

unconstitutional standard of proof. Prior to trial, petitioner’s counsel filed an

application for determination of competency. 10
The trial court held a hearing,

ordered petitioner evaluated by a mental health professional, and, based on the

psychologist’s evaluation, found the petitioner incompetent to stand trial because

of concerns over his ability to adequately assist his counsel. The court committed

petitioner to Eastern State Hospital, where he received evaluation and treatment.

After two months, a hospital doctor determined petitioner was competent to stand

trial. At a hearing, petitioner and his counsel both agreed with this assessment,

and the trial court adjudged Mr. Smallwood competent. Petitioner claims that the

trial court violated his constitutional rights during his resumption of competency

10
“A defendant is competent to stand trial if he ‘has sufficient present
ability to consult with his lawyer with a reasonable degree of rational
understanding [and if] he has a rational as well as a factual understanding of the
proceedings against him.’” Walker v. Attorney Gen. for the State of Okla. , 167
F.3d 1339, 1343 (10th Cir. 1999) (quoting Dusky v. United States , 362 U.S. 402,
402 (1960)).

-36-
hearing by requiring him to demonstrate his incompetency by a clear and

convincing standard of proof, a standard later declared unconstitutional by the

Supreme Court in Cooper v. Oklahoma , 517 U.S. 348, 369 (1996) (finding

Oklahoma’s clear and convincing standard governing post-examination

competency hearings “incompatible with the dictates of due process”). 11

This court has, on several occasions, characterized similar Cooper claims as

challenging procedural, rather than substantive, due process rights. See Barnett v.

Hargett , 174 F.3d 1128, 1133-34 (10th Cir. 1999); Rogers v. Gibson , 173 F.3d

1278, 1289 (10th Cir. 1999); Walker v. Attorney Gen. for the State of Okla. , 167

F.3d 1339, 1344-45 (10th Cir. 1999). “Unlike a substantive competency claim,

one based upon procedural due process is subject to procedural bar.” Barnett , 174

F.3d at 1134. Therefore, before addressing the merits of petitioner’s Cooper

claim, we turn to respondent’s contention that it is procedurally barred.

As with many of his ineffective assistance of counsel claims, Mr.

Smallwood failed to raise his Cooper claim in state proceedings, either on direct

appeal or in his first application for post-conviction relief. Consequently, he has

failed to exhaust this claim. Like the ineffective assistance of counsel claims

11
Petitioner asserts both a Cooper claim and an ineffective assistance of
appellate counsel claim based on counsel’s failure to argue the issue on appeal.
We previously found the ineffective assistance claim procedurally barred. See
supra Part III.

-37-
analyzed in Part III above, though, we excuse petitioner’s failure to exhaust

because state courts would deny the Cooper claim on procedural grounds were

petitioner required to return to the state courts to raise the issue in a second

application for post-conviction relief. See Okla. Stat. Ann. tit. 22, § 1089(D)(2),

(8). Similarly, for the same reasons discussed above, we find Mr. Smallwood’s

Cooper claim procedurally defaulted because petitioner cannot show cause and

prejudice for failing to raise the claim in his first application for state post-

conviction relief, nor can he show that a fundamental miscarriage of justice would

result from our refusal to address the merits of this claim. 12

Even if we were to treat Mr. Smallwood’s claim as properly raised before

us, it has no merit. To obtain habeas relief on a procedural competency claim,

petitioner must show that “the state trial court ignored evidence that, viewed

objectively, raised a bona fide doubt as to the petitioner’s competency to stand

trial.” Walker , 167 F.3d at 1345. In conducting this inquiry, we consider

12
In Barnett v. Hargett , we noted that “we have declined to apply
Oklahoma’s statutory procedural bar to Cooper claims not raised on direct appeal
where the direct appeal predated the Supreme Court’s 1996 Cooper decision.”
174 F.3d at 1135 (citing Rogers , 173 F.3d at 1289-90; Walker , 167 F.3d at 1345).
This case differs procedurally from those cases because petitioner filed his first
application for post-conviction relief after the Supreme Court decided Cooper and
after Oklahoma amended its post-conviction statute, Okla. Stat. Ann. tit. 22, §
1089, in 1995. Therefore, petitioner could have argued Cooper in his first post-
conviction application and should have known he would be procedurally barred in
the future if he failed to do so.

-38-
“‘evidence of a defendant’s irrational behavior, his demeanor at trial, and any

prior medical opinion on competence to stand trial.’” Id. at 1346 (quoting Drope

v. Missouri , 420 U.S. 162, 180 (1975)). The trial court initially adjudged

petitioner incompetent based on the report of Dr. Edith King, who examined

petitioner and determined he was able to appreciate the nature of the charges

against him but was unable to consult with his attorney or rationally assist in the

preparation of his defense. Dr. King had “serious doubts about [petitioner’s]

ability to organize and control his thinking in a realistic manner.” R., Vol. II at

263. She also reported that petitioner might be able to achieve competency with

further evaluation and treatment. After two months at Eastern State Hospital, Dr.

Warren Smith evaluated Mr. Smallwood and concluded he was competent to stand

trial, able to trust his attorney, and prepared to return to court to face the charges

against him.

While a prior adjudication of incompetence “gives rise to a rebuttable

presumption of continued incompetence . . . . [the presumption] may be overcome

by competent evidence.” Sena v. New Mexico State Prison , 109 F.3d 652, 655

(10th Cir. 1997) (internal citations omitted). At petitioner’s resumption of

competency hearing, Dr. Smith’s report rebutted the presumption of incompetence

created by Dr. King’s initial assessment. Additionally, neither petitioner nor his

counsel challenged Dr. Smith’s opinion as to his competency or ever again raised

-39-
the issue of competency at trial. In fact, petitioner voluntarily waived a jury trial

on the issue of competency and testified that he was competent to stand trial,

understood the proceeding against him, and was not on any medications.

Petitioner’s counsel, who had requested the initial competency evaluation,

reinforced these conclusions by also testifying as to petitioner’s competency.

After considering this evidence and carefully reviewing petitioner’s lengthy trial

testimony, we find nothing that raises a bona fide doubt regarding whether, at the

time of his trial, Mr. Smallwood was able to understand the proceedings against

him or was able to assist his counsel in preparing a defense. See Rogers , 173

F.3d at 1290-91 (finding no evidence of petitioner’s incompetency); Walker , 167

F.3d at 1345-46 (finding no bona fide doubt regarding competence when expert

testimony determined petitioner to be competent and petitioner provided no

evidence to the contrary). Therefore, we find that Mr. Smallwood is not entitled

to habeas relief on his Cooper claim. 13

13
To the extent petitioner asserted a substantive due process claim that he
was actually tried while incompetent, this claim also fails. While substantive
mental incompetency claims are not subject to procedural bar, see, e.g. , Rogers ,
173 F.3d at 1289, petitioner cannot meet the requisite evidentiary standard. “[T]o
succeed in stating a substantive incompetency claim, a petitioner must present
evidence that creates a real, substantial and legitimate doubt as to his competency
to stand trial.” Walker , 167 F.3d at 1347 (internal quotation marks and citations
omitted); accord Rogers , 173 F.3d at 1291 n.13. Petitioner’s inability to meet the
bona fide doubt standard mandates that he likewise cannot meet this more
demanding standard. See Walker , 167 F.3d at 1347.

-40-
 IX. Ex Parte Communications

Petitioner’s final ground for relief is that his Sixth, Eighth and Fourteenth

Amendment rights were violated because unrecorded ex parte communications

occurred between the jury and the judge during the jury’s penalty phase

deliberations. Although petitioner admits that the judge ultimately advised the

attorneys of the communications in open court, he claims that the communications

were nonetheless improper and cannot be considered harmless error.

An accused has a constitutional right to be present during all critical stages

of his or her trial. See Rushen v. Spain , 464 U.S. 114, 117 (1983) (per curiam).

Thus, “[a] question from the jury must be answered in open court and only after

providing counsel an opportunity to be heard.” United States v. Carter , 973 F.2d

1509, 1515 (10th Cir. 1992). Furthermore, if the ex parte communication between

a juror and judge is improper, we will presume prejudice unless the prosecution

can rebut the presumption by showing that the communication did not prejudice

the substantial rights of the defendant. See, e.g. , id. ; United States v. McDonald ,

933 F.2d 1519, 1524 (10th Cir. 1991). We find that no improper ex parte

communications occurred in this case. There is only one ex parte communication

between the jury and the judge for which there is a record sufficient for us to

review. It consisted of a note the jury sent to the judge during its sentencing

deliberations just before a dinner recess indicating that it was having some

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difficulty reaching a verdict and posing the question, “What will happen if we

cannot reach a unanimous decision?” 14
The judge did not answer the jury’s note.

The prosecution and defense attorney were made aware of the note, but neither

requested further clarification, suggested a response, or objected to the judge’s

failure to respond to the note. Under these circumstances, we fail to see how the

jury’s unanswered note violated petitioner’s constitutional rights under the Sixth

or Eighth Amendments, for there is nothing inherently disturbing or prejudicial in

a juror submitting a question or request to the court.

Finally, in the district court, petitioner made a reference to Simmons v.

South Carolina , 512 U.S. 154 (1994), arguing that it had a bearing on the trial

court’s handling of the jury contacts. In Simmons , the Supreme Court held that

“[w]here the State puts the defendant’s future dangerousness in issue, and the

only available alternative sentence to death is life imprisonment without

14
The record reflects that another question may have been asked by the jury
regarding the meaning of “life without parole.” The record on this question is
scant, but the OCCA held “[f]rom the record before us, we can safely surmise
only that an unknown question was asked, and, whether answered or unanswered,
defense counsel was aware of the question and did not object to it, thereby
waiving any error.” Smallwood , 907 P.2d at 236-37. The court then found no
plain error. See id. at 238. We are not persuaded that this ruling is contrary to
federal law or based on an unreasonable determination of the facts. See 28
U.S.C. § 2254(d). To the extent that petitioner argues that the lack of a record is
itself indicative that improper ex parte communications occurred between the
judge and jury, we find his argument devoid of merit. Petitioner’s pure
speculation about what did or did not occur between the judge and jury cannot
form the basis of habeas relief.

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possibility of parole, due process entitles the defendant to inform the capital

sentencing jury – by either argument or instruction – that he is parole ineligible.”

512 U.S. at 178 (O’Connor, J., concurring). 15
While petitioner made a vague

argument to the district court involving Simmons and the trial judge’s obligation

to answer the jury’s question about the meaning of a sentence of “life without

parole,” he has utterly failed to mention or raise any due process claim involving

Simmons before us. Failure to raise an argument on appeal results in waiver of

that argument. See King of the Mountain Sports, Inc. v. Chrysler Corp. ,

__F.3d__, No. 97-1290, 1999 WL 527486, at *6 n.2 (10th Cir. July 8, 1999); State

Farm Fire and Casualty Co. v. Mhoon , 31 F.3d 979, 984 n.7, (10th Cir. 1994);

Ambus v. Granite Bd. of Educ. , 975 F.2d 1555, 1558 n.1 (10th Cir. 1992).

Therefore, we may not consider petitioner’s Simmons claim.

Conclusion

For the reasons discussed above, we conclude that Mr. Smallwood’s habeas

petition does not establish any instance where the state proceedings “resulted in a

decision that was contrary to, or involved an unreasonable application of, clearly

15
While Justice Blackmun delivered a broader holding for a four Justice
plurality, Justice O’Connor’s three Justice concurrence represented the
narrowest grounds for a holding and, as such, represents the holding of the Court.
See Marks v. United States , 430 U.S. 188, 193 (1977) (noting that the holding in
a plurality decision is the position taken by Justices who concur on the narrowest
grounds); Townes v. Murray , 68 F.3d 840, 849 (4th Cir. 1995) (recognizing
Justice O’Connor’s concurrence in Simmons as the holding of the Court).

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established Federal law, as determined by the Supreme Court,” 28 U.S.C. §

2254(d)(1), or “resulted in a decision that was based on an unreasonable

determination of the facts in light of the evidence presented in the State court

proceeding,” id. § 2254(d)(2). Moreover, petitioner presents to us no other

grounds upon which habeas relief is warranted. Accordingly, we AFFIRM the

district court’s denial of Mr. Smallwood’s habeas corpus petition.

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