Moore v. Gibson

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
SEP 28 1999
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT

DEWEY GEORGE MOORE,

Petitioner-Appellant and
Cross-Appellee,
v. No. 98-6004 & 98-6010
GARY E. GIBSON, Warden,
Oklahoma State Penitentiary,

Respondent-Appellee and
Cross-Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
(D.C. NO. CIV-95-2018-A)

Steven M. Presson (Robert Wade Jackson, with him on the briefs), Jackson &
Presson, P.C., Norman, Oklahoma, for Petitioner-Appellant and Cross-Appellee.

Sandra D. Howard (W.A. Drew Edmondson, Oklahoma Attorney General with her
on the brief), Assistant Attorney General, Chief, Criminal Appeals, Oklahoma
City, Oklahoma, for Respondent-Appellee and Cross-Appellant.

Before BRORBY, KELLY, and MURPHY, Circuit Judges.

MURPHY, Circuit Judge.
 Petitioner Dewey George Moore appeals the district court’s denial of

federal habeas relief from his Oklahoma first degree murder conviction and death

sentence. See 28 U.S.C. § 2254. Petitioner was convicted of first degree murder

and kidnaping for the abduction and murder of twelve-year-old Jenipher Gilbert.

Respondent cross appeals, challenging the district court’s determination that the

Antiterrorism and Effective Death Penalty Act of 1996 does not apply to

petitioner’s habeas petition.

As grounds for habeas relief, petitioner asserts: 1) he is entitled to

discovery and an evidentiary hearing on his allegations that police planted

evidence against him; 2) the State’s chief witness, a forensic chemist, falsely

testified at trial, depriving petitioner of due process and a fair trial; 3) the trial

court erred in dismissing a prospective juror for cause; 4) the prosecutor’s

misconduct deprived petitioner of a fair trial; 5) the application of Oklahoma’s

“especially heinous, atrocious or cruel” aggravating circumstance was

unconstitutional; 6) there was insufficient evidence to support the jury’s finding

that the murder was “especially heinous, atrocious or cruel;” 7) Oklahoma’s

continuing threat aggravating circumstance is unconstitutionally overbroad;

8) petitioner’s trial and direct appeal attorneys were constitutionally ineffective;

and 9) the cumulative effect of these errors deprived petitioner of a fair trial. The

district court granted petitioner a certificate of appealability as to all of these

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issues. See 28 U.S.C. § 2253(c); Fed. R. App. P. 22(b)(1). We affirm the district

court’s denial of habeas relief, with the exception of its treatment of petitioner’s

claim that police planted evidence against him, which we remand to the district

court for discovery.

I. FACTS

The victim was abducted on September 27, 1984, at approximately 9:30

P.M., following a junior high school football game. Two adults and a

fifteen-year-old student witnessed the abduction. All three indicated that the

victim had been forced into a yellow car. At trial, both adults identified

petitioner’s yellow car as looking like the car in which the victim was abducted.

The day after the abduction, the student witness, Paulo Gomes, identified

two men from a photo array, one of whom was petitioner, as similar to the man he

had seen abduct the victim. At trial, the student again identified petitioner as

looking like the man who forced the victim into the yellow car.

The victim’s partially clad body was found at 11:00 A.M. the morning after

the abduction in a field ten miles from the school. She had been strangled and

suffocated and had died several hours before her body was found. The pep club

uniform she had been wearing at the time of the abduction was never found.

There was duct tape in her hair and markings on her body indicating that she had

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been bound with tape around her wrists, arms, ankles, thighs, back, neck and face.

There were also tape marks indicating placement over her nose and mouth. She

had suffered bruising or abrasions to her face, neck, back and buttocks.

Petitioner lived near the junior high school. On the night of the abduction,

he had visited his brother’s family, who lived just three quarters of a mile from

the school. He left his brother’s home between 9:15 P.M. and 9:30 P.M.

The next morning, petitioner left his yellow car parked in front of his home

and walked an eighth of a mile to a grocery store. There, petitioner stole a car

and drove to the construction site where he worked. Petitioner told his boss that

he had suffered a “mild coronary” the previous night and had been treated at a

hospital. He further related that, as a result, he would have to quit his job. The

boss described petitioner that morning as wide-eyed and very nervous. Petitioner

collected his wages and left. Police arrested him later that morning for driving a

stolen vehicle.

On September 29, and again on October 4, 1984, police executed search

warrants for petitioner’s home, where he lived alone, and his car. During the first

search, officers found, among other things, a partially packed suitcase in

petitioner’s home and a used feminine napkin under petitioner’s bed. At the time

she was abducted, the victim had been menstruating. The used feminine napkin

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found in petitioner’s home, however, appeared to be of a different type than that

found at the victim’s home.

A week after the murder, a paper bag was found on the roof of the grocery

store located near petitioner’s home and near where he stole the car on the

morning following the abduction. Inside the bag was a used feminine napkin of

the same type found at the victim’s home, containing blood of the same type as

the victim. The bag also contained a knife, a belt matching markings made on the

victim’s arms, a fingernail that did not match either petitioner or the victim,

several pieces of duct tape, including a wad of tape with hair stuck to it, a

garment label, several cigarette butts, and an earring similar to that worn by the

victim on the night she was abducted.

At trial, the State presented the testimony of a forensic chemist, Janice

Davis. Her testimony linked the victim, the contents of the paper bag, petitioner,

his car, the stolen car, and petitioner’s home. Among other things, the chemist

identified hair similar to the victim’s found on and underneath a bed, on a couch,

and in the living room in petitioner’s home; in a glove found in the stolen car; in

petitioner’s yellow car; and on the duct tape in the paper bag. In addition, fibers

found on the victim’s body were similar to carpet fibers taken from petitioner’s

car, floor mats and his home, including those from an afghan in his living room.

Fibers found in petitioner’s living room, bedroom, and hair brush, and from the

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knife found in the paper bag on the grocery store roof, were similar to fibers

taken from pep club uniforms like the one worn by the victim on the night of the

abduction. A single limb hair found on the victim was similar to petitioner’s limb

hair. The chemist testified that, based upon the hair, fiber and serological

evidence, she was convinced that the victim had been in petitioner’s car and

home.

The jury convicted petitioner of first degree murder and kidnaping. During

the capital sentencing proceeding, the trial court incorporated all of the guilt

phase evidence. In addition, the State presented evidence of petitioner’s prior

felony convictions for attempted first degree rape, aggravated kidnaping,

indecency with a child, assault and battery with a dangerous weapon, child

beating, and robbery with a dangerous weapon.

A woman who had previously lived with petitioner also testified concerning

an incident when petitioner entered her home, tied her up and stared at her. The

woman’s daughter testified that petitioner sexually abused her. She also testified

concerning an incident during which petitioner awakened the witness, then five or

six years old, and her two brothers, then ages four and eight, in the middle of the

night, tied them up without clothes and then stared at them while they struggled to

get free.

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 One of petitioner’s former wives testified to petitioner’s abusive behavior

towards her and their children, including incidents when he would tie her up, rape

her and then attempt to choke or smother her.

In mitigation, petitioner presented evidence of his regular involvement with

his church, his generally polite and kind demeanor, his father’s abuse, other

incidents of petitioner’s abuse of women and children, his significant mental

health problems exacerbated by his drinking, and his good behavior while in

prison. A defense psychologist specifically testified that petitioner suffers from

an incurable borderline personality disorder, primarily due to his father’s abuse,

but that he could function well in a structured prison environment. The

psychologist indicated that petitioner would probably remain a threat if released

back into society, but that he did not present a threat to anyone in prison.

The jury found the existence of three aggravating circumstances: petitioner

had previously been convicted of a violent felony, he presented a continuing

threat to society, and the murder was especially heinous, atrocious or cruel. The

jury sentenced petitioner to death on the first degree murder conviction and to 999

years’ imprisonment on the kidnaping conviction.

The Oklahoma Court of Criminal Appeals affirmed petitioner’s convictions

and sentences. See Moore v. State , 788 P.2d 387 (Okla. Crim. App. 1990). The

United States Supreme Court denied certiorari. See Moore v. Oklahoma , 498 U.S.

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881 (1990). Petitioner then sought state post-conviction relief, which the

Oklahoma Court of Criminal Appeals denied. See Moore v. State , 889 P.2d 1253

(Okla. Crim. App. 1995). The United States Supreme Court again denied

certiorari. See Moore v. Oklahoma , 516 U.S. 881 (1995). Petitioner commenced

this proceeding seeking federal habeas relief from his murder conviction and

death sentence. See 28 U.S.C. § 2254.

II. APPLICABILITY OF THE ANTITERRORISM AND EFFECTIVE
DEATH PENALTY ACT OF 1996

A. Commencement of Habeas Proceeding

On cross-appeal, respondent argues that the district court erred in finding

that the date petitioner filed a request for the appointment of counsel determined

the date the habeas corpus action was filed and therefore concluding the

Antiterrorism and Effective Death Penalty Act of 1996 (effective April 24, 1996)

(AEDPA) did not govern. We agree and hold that the date of filing the petition,

not the date of appointment of counsel, was the correct date for determining

whether AEDPA governs.

Petitioner filed his request for appointment of counsel on December 22,

1995, pursuant to 21 U.S.C. § 848(q)(4)(B), which provides for the appointment

of counsel to indigent prisoners challenging a capital conviction or sentence “[i]n

any post-conviction proceeding under [§] 2254.” The district court granted the

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request on December 27. Petitioner filed his habeas petition on July 1, 1996.

The district court determined that although the habeas petition was filed after the

effective date of AEDPA, the request for appointment of counsel, filed

pre-AEDPA, actually commenced the proceedings thereby precluding AEDPA’s

application. 1
The district court relied on McFarland v. Scott , 512 U.S. 849

(1994).

In McFarland , the Supreme Court held that if a capital defendant invokes

his right to appointed counsel under § 848(q)(4), he has a post-conviction

proceeding pending and thus need not file a habeas corpus petition before a

federal court may enter a stay of execution. See McFarland , 512 U.S. at 858-59

(citing 28 U.S.C. § 2251, which permits a federal court to issue a stay “for any

matter involved in the habeas corpus proceeding”). McFarland , however,

recognized that neither the federal habeas corpus statute nor the rules governing

1
Citing 28 U.S.C. § 2263(a), the district court also determined that if
AEDPA applied, the 180-day statute of limitations would bar the habeas claims.
That determination was in error because the limitations period set forth in
§ 2263(a) applies only to capital cases in which a state has adopted certain
standards for appointment of counsel. See 28 U.S.C. § 2261. Oklahoma has not
qualified under these provisions. See Duvall v. Reynolds , 139 F.3d 768, 776 (10th
Cir.), cert. denied , 119 S. Ct. 345 (1998); Nguyen v. Reynolds , 131 F.3d 1340,
1345 (10th Cir. 1997), cert. denied , 119 S. Ct. 128 (1998). Therefore, the
applicable limitations period is set forth in 28 U.S.C. § 2244(d)(1), and the
petition was filed timely. See Miller v. Marr , 141 F.3d 976, 977 (10th Cir.), cert.
denied , 119 S. Ct. 210 (1998); United States v. Simmonds , 111 F.3d 737, 746
(10th Cir. 1997).

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habeas proceedings define a proceeding under § 2254 or state how such a

proceeding shall be commenced. See id. at 854. The Court also recognized that

§ 848(q)(4) “indicates that the right to appointed counsel adheres prior to the

filing of a formal, legally sufficient habeas corpus petition,” because “a ‘post

conviction proceeding’ within the meaning of § 848(q)(4)(B) is commenced by

the filing of a death row defendant’s motion requesting the appointment of

counsel for his federal habeas corpus proceeding.” McFarland , 512 U.S. at

854-55, 856-57; see also id. at 857 n.3 (“preapplication legal assistance”

included in § 848(q)(4)(B)). Indeed, the assistance of an attorney may be crucial

before the actual filing of the petition. See id. at 854-56. The Court then

determined that to give meaning to the right to appointed counsel, the district

court must be allowed to stay an execution under § 2251, regardless of whether

the petitioner had filed a habeas petition. See McFarland , 512 U.S. at 858.

Notably, McFarland does not hold that appointment of counsel also

commences a post-conviction proceeding within the meaning of § 2254. Cf.

Williams v. Cain , 125 F.3d 269, 274 (5th Cir. 1997) (stating McFarland does not

determine what date habeas petition is “pending” for applicability of substantive

statutes), cert. denied , 119 S. Ct. 144 (1998). McFarland merely ensured

indigent capital defendants the right to counsel established by § 848(q)(4). See

Williams , 125 F.3d at 274.

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 Respondent argues that Lindh v. Murphy , 521 U.S. 320 (1997), not

McFarland , defined AEDPA’s applicability. Respondent notes that Lindh ,

521 U.S. at 326, 327, stated that AEDPA applied to cases filed after its

enactment and that AEDPA referred to “‘an application for a writ of habeas

corpus.’” Br. of Appellee, Cross-Appellant at 7 (quoting 28 U.S.C.

§§ 2244(d)(1), 2254(a)). Thus, respondent maintains the date of the request for

appointment of counsel does not determine whether AEDPA applies. Lindh held

that AEDPA did not apply to habeas corpus applications pending when it was

passed. See Lindh , 521 U.S. at 322-23, 327, 336. Lindh did not expressly define

when a habeas case is pending for purposes of the applicability of AEDPA.

Although neither McFarland nor Lindh addressed what constitutes a

pending habeas corpus proceeding for purposes of determining the applicability

of AEDPA, the majority of circuits considering the issue have held that a case is

pending for purposes of AEDPA only when the habeas petition is filed. See, e.g. ,

Gosier v. Welborn , 175 F.3d 504, 506 (7th Cir. 1999), petition for cert. filed

(U.S. July 14, 1999) (No. 99-5282); Williams v. Coyle , 167 F.3d 1036, 1037,

1040 (6th Cir. 1999); Nobles v. Johnson , 127 F.3d 409, 414 (5th Cir. 1997), cert.

denied , 118 S. Ct. 1845 (1998). Those circuits recognized that Lindh and

McFarland did not address and did not resolve the issue before them and that

McFarland focused on the need to expand the ordinary meaning of a pending

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case to give effect to Congressional intent. 2
See Williams , 167 F.3d at 1038-39;

Holman v. Gilmore , 126 F.3d 876, 879-80 (7th Cir. 1997); Nobles , 127 F.3d at

413-14.

As support for its conclusion that a federal habeas corpus case is filed

upon the filing of the habeas petition, the Sixth Circuit looked at the language of

28 U.S.C. § 2254(e) which refers “to a proceeding instituted by an application for

a writ of habeas corpus”; 28 U.S.C. § 1914(a) which requires payment of a filing

fee upon the filing of an “application for a writ of habeas corpus”; and Rule 1 of

the Rules Governing § 2254 Cases which provides that the rules “govern the

procedure in the United States district courts on applications under 28 U.S.C.

§ 2254.” See Williams , 167 F.3d at 1038. The Seventh Circuit did not disagree

that an application for counsel under § 848(q)(4) is a case that may be reviewed

by an appellate court. See Gosier , 175 F.3d at 506. “But a request for counsel

under § 848(q)(4), part of Title 21, is not a case under Chapter 153 of Title 28 --

that is, the request is not a collateral attack on a criminal judgment.” Gosier ,

175 F.3d at 506. “[T]he motion for counsel is not itself a petition, because it

2
The Sixth Circuit also pointed out that McFarland addressed an
ongoing problem, whereas the case before the court presented a question of the
effective date of a statutory provision, a question which, in time, will become
irrelevant. See Williams , 167 F.3d at 1039.

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does not call for (or even permit) a decision on the merits. And it is ‘the merits’

that the amended § 2254(d)(1) is all about.” Holman , 126 F.3d at 880.

Unlike the other circuits, the Ninth Circuit defines a pending federal

habeas petition more broadly. See Nino v. Galaza , 183 F.3d 1003, 1005 (9th Cir.

1999). It has held that a habeas case begins with the appointment of counsel.

See Calderon v. United States Dist. Court for the Cent. Dist. of Cal. , 163 F.3d

530, 539-40 (9th Cir. 1998) (en banc), cert. denied , 119 S. Ct. 1377 (1999).

Calderon based its decision on Hohn v. United States , 524 U.S. 236 (1998). 3

Hohn held that an application for a certificate of appealability constituted a case

under 28 U.S.C. § 1254, 4
and therefore the Supreme Court had jurisdiction to

review a court of appeals’ denial of an application for a certificate of

appealability. See Hohn , 524 U.S. at 238-39, 241, 253. In reaching this

decision, Hohn looked to Ex parte Quirin , 317 U.S. 1, 24 (1942), which held that

a district court’s denial of a request for leave to file a petition for a writ of

habeas corpus was a reviewable case on appeal. See Hohn , 524 U.S. at 246.

Hohn is distinguishable. We agree with the Sixth Circuit that

3
Calderon concluded that Hohn overruled prior precedent, which had
held that a habeas case is pending only upon the filing of a petition for writ of
habeas corpus. See Calderon , 163 F.3d at 539-40.
4
Section 1254 sets forth the methods by which “[c]ases in the courts
of appeals may be reviewed by the Supreme Court.”

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 Hohn and Ex parte Quirin stand only for the proposition that
the denial by the district court of a motion for the issuance of a
[certificate of appealability], a motion for leave to file a petition for
the writ, or, as in our case, a motion for the appointment of counsel
. . . would constitute an appealable case. This does not imply,
however, that the petitioner’s habeas corpus case has been initiated
by the filing of such a preliminary motion. Although the Court in
Hohn rejected the contention that the filing of a preliminary motion
“should be regarded as a threshold inquiry separate from the merits,”
Hohn , [524 U.S. at 246], the holding and logic of the case were
limited to the determination that the rejection by the district court of
the preliminary motion constitutes an appealable case.

Williams , 167 F.3d at 1040; see also Calderon , 163 F.3d at 545 (Hall, J.,

dissenting) (distinguishing Hohn ’s use of word “case” to interpret whether

Supreme Court had jurisdiction from use of word “case” to interpret whether

statute of limitations had run under AEDPA).

Accordingly, this court joins the majority of circuits in holding that a case

is pending under AEDPA only upon the filing of a petition for writ of habeas

corpus. The filing of a request for counsel to prepare a habeas petition does not

govern the applicability of AEDPA as it is not a petition seeking substantive

relief.

B. Retroactivity

Petitioner argues that if this court holds that the case commenced at the

time he filed the habeas corpus petition, it is unconstitutional to retroactively

apply the new standards of review set forth in AEDPA to state court proceedings

completed before enactment or effectiveness of AEDPA. This court has held to

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the contrary, determining that AEDPA applies to cases filed after its effective

date, regardless of when state court proceedings occurred. See Rogers v. Gibson ,

173 F.3d 1278, 1282 n.1 (10th Cir. 1999); see also Berget v. Gibson ,

No. 98-6381, 1999 WL 586986 (10th Cir. Aug. 5, 1999) (unpublished order and

judgment citing Rogers and holding that application of AEDPA to cases filed

after its effective date is not impermissibly retroactive); Mueller v. Angelone , 181

F.3d 557, 565-73 (4th Cir.) (addressing argument similar to that raised here and

holding AEDPA does not have impermissible retroactive effect), cert. denied ,

1999 WL 720053 (U.S. Sept. 16, 1999) (No. 99-6143, 99A222).

C. Standards of Review

The review of a denial of habeas corpus relief is subject to two different

types of analysis depending on whether a claim was heard on its merits by the

state courts. “If the claim was not heard on the merits by the state courts, and the

federal district court made its own determination in the first instance, we review

the district court’s conclusions of law de novo and its findings of fact, if any, for

clear error.” LaFevers v. Gibson , 182 F.3d 705, 711 (10th Cir. 1999). If a claim

was adjudicated on its merits by the state courts, a petitioner will be entitled to

federal habeas relief only if he can establish that the state court decision “was

contrary to, or involved an unreasonable application of, clearly established

Federal law, as determined by the Supreme Court of the United States,” 28

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U.S.C. § 2254(d)(1), or “was based on an unreasonable determination of the facts

in light of the evidence presented in the State court proceeding,” id.

§ 2254(d)(2). AEDPA thereby increases the degree of deference afforded to state

court adjudications. See Boyd v. Ward , 179 F.3d 904, 912 (10th Cir. 1999)

(citing Houchin v. Zavaras , 107 F.3d 1465, 1470 (10th Cir. 1997)).

Petitioner argues that if AEDPA applies, this court must define the

standards of review set forth in § 2254(d)(1). We have applied these standards,

but have not defined them, beyond the precise wording of AEDPA. See Bryson

v. Ward , No. 97-6435, 1999 WL 590738, at n.3 (10th Cir. Aug. 6, 1999) (citing

Matteo v. Superintendent , 171 F.3d 877, 885-91 (3d Cir. 1999), petition for cert.

filed , 67 U.S.L.W. 3008 (U.S. June 22, 1999) (No. 98-2050), and Nevers v.

Killinger , 169 F.3d 352, 357-62 (6th Cir.), cert. denied , 119 S. Ct. 2340 (1999),

which set forth the various interpretations of the standards of deference afforded

state court adjudications under both § 2254(d)(1)’s “contrary to” and

“unreasonable application of” language by other federal courts of appeals). The

United States Supreme Court has granted certiorari to review the Fourth Circuit’s

interpretation of these standards. See Williams v. Taylor , 119 S. Ct. 1355 (1999);

see also 67 U.S.L.W. 3608 (Apr. 6, 1999) (listing issues presented). Under any

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possible interpretation of the standards, the outcome of this appeal would be the

same. Thus, we decline to interpret the standards in this case. 5

III. ALLEGATIONS OF PLANTED EVIDENCE

Petitioner first argues that the district court erred in denying discovery on

his claim that police officers planted evidence in his home and car, and did not

disclose this fact, in violation of Brady v. Maryland , 373 U.S. 83 (1963).

Petitioner asserts that police officers obtained hair from the victim’s body and

fibers from a pep club uniform similar to the one worn by the victim on the night

of the abduction, planted those in his home and car between the first and second

searches, and then “discovered” this evidence during the execution of the second

search warrant.

To establish a Brady violation, petitioner bears the burden of showing that

the prosecution suppressed material evidence favorable to petitioner. See, e.g. ,

Moore v. Reynolds , 153 F.3d 1086, 1112 (10th Cir. 1998), cert. denied , 119 S. Ct.

1266 (1999). Knowledge of police officers or investigators will be imputed to the

prosecution. See Kyles v. Whitley , 514 U.S. 419, 421, 437 (1995); Smith v.

Secretary of N.M. Dep’t of Corrections , 50 F.3d 801, 824-25 (10th Cir. 1995).

5
Even under the review afforded pre-AEDPA, we conclude petitioner
would not be entitled to any further relief.

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 In support of this Brady claim, petitioner relies upon the statement of Bruce

Hawkins, the mortician who prepared the victim’s body for burial. The Oklahoma

Court of Criminal Appeals first considered this evidence in the state

post-conviction proceeding, determining Hawkins’ statement “could not have

been discovered with due diligence before trial, and is not cumulative of any

evidence presented at trial.” Moore , 889 P.2d at 1257-58. The court further

determined that this new evidence “certainly suggests that Midwest City police

followed a somewhat unusual investigative procedure in this case.” Id. at 1257.

Nonetheless, the Oklahoma appellate court declined to hold an evidentiary

hearing or conduct any further factual inquiry. That court, instead, assumed the

truth of petitioner’s factual allegations and denied relief, holding that “mere

evidence of unusual conduct on the detectives’ part, when evaluated in the

context of the entire record, is not material, and does not create a reasonable

probability that the trial’s outcome would be changed.” Id. at 1257-58.

The determination of whether undisclosed evidence is material is a mixed

question of law and fact reviewed de novo by this court prior to AEDPA. See

United States v. Trujillo , 136 F.3d 1388, 1393 (10th Cir.) (direct criminal appeal),

cert. denied , 119 S. Ct. 87 (1998); see also Newsted v. Gibson , 158 F.3d 1085,

1094 (10th Cir. 1998) (reviewing de novo Brady claim asserted in pre-AEDPA

habeas petition), cert. denied , 119 S. Ct. 1509 (1999). In this appeal governed by

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AEDPA, therefore, we consider whether the state appellate court’s materiality

determination amounts to an “unreasonable application” of clearly established

Supreme Court precedent. 28 U.S.C. § 2254(d)(1). We conclude it does.

Suppressed exculpatory evidence will be deemed material “only if there is a

reasonable probability that, had the evidence been disclosed to the defense, the

result of the proceeding would have been different. A ‘reasonable probability’ is a

probability sufficient to undermine confidence in the outcome.” Pennsylvania v.

Ritchie , 480 U.S. 39, 57 (1987) (further quotation omitted); see also Strickler v.

Greene , 119 S. Ct. 1936, 1948 (1999). “The question is not whether the

defendant would more likely than not have received a different verdict with the

evidence, but whether in its absence he received a fair trial, understood as a trial

resulting in a verdict worthy of confidence.” Kyles , 514 U.S. at 434.

The State’s case against petitioner was entirely circumstantial. The

existence and cross-transference of the fiber and hair evidence was crucial to the

State’s case against him. If proved, petitioner’s allegations that police officers

planted this evidence, therefore, would be material -- i.e., there is a reasonable

probability that the result of the proceeding would have been different.

Petitioner’s allegations, therefore, if proved would entitle him to habeas

relief. It remains for petitioner to prove the truth of those allegations. We,

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therefore, turn to the question of whether petitioner is entitled to discovery on this

claim. See Bracy v. Gramley , 520 U.S. 899, 905-06 (1997).

A federal habeas petitioner will be entitled to discovery only “if, and to the

extent that, the [district court] judge in the exercise of his discretion and for good

cause shown grants leave to do so, but not otherwise.” Rule 6(a), Rules

Governing Section 2254 Cases; see also LaFevers , 182 F.3d at 723. “‘[W]here

specific allegations before the court show reason to believe that the petitioner

may, if the facts are fully developed, be able to demonstrate that he is . . . entitled

to relief, it is the duty of the court to provide the necessary facilities and

procedures for an adequate inquiry.’” Bracy , 520 U.S. at 908-09 (quoting Harris

v. Nelson , 394 U.S. 286, 300 (1969)). Petitioner has met this burden here.

In his statement, Hawkins asserts that two detectives returned to the funeral

home on three separate occasions to obtain samples of the victim’s pubic, scalp

and limb hairs. They apparently returned the second time because, during the first

visit, they had cut the hairs, instead of plucking them. On the third occasion, the

detectives took up to two and one-half hours to obtain additional evidence.

The trial record corroborates part of Hawkins’ statement, indicating that

detectives did go to the funeral home several times to obtain additional samples of

the victim’s hair, after completion of the medical examiner’s examination.

Detective Marston testified that he and Detective Howard went to the funeral

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home on Monday, October 1, 1984, to obtain the victim’s fingerprints. Pursuant

to the forensic chemist’s request, Detective Ingle also went to the funeral home

on October 1 to obtain samples of the victim’s limb hair.

In his statement, Hawkins further asserts that another funeral home

employee, John Boeing, who is now deceased, followed the detectives after their

second visit to the funeral home. According to Hawkins, Boeing told him that the

detectives went directly from the funeral home to petitioner’s home, where one

entered through an open window, then unlocked the door from the inside.

Hawkins asserts that they had with them a red sweater and the victim’s hair

samples they had just collected at the funeral home. The detectives remained in

petitioner’s home for some time, and then subsequently “appeared to be doing

things” to petitioner’s yellow car, which was parked in front of his home. Later

that evening, Hawkins accompanied Boeing to petitioner’s home and confirmed

that a window remained open.

According to Hawkins, both he and Boeing followed the detectives to

petitioner’s home after the detectives’ third visit to the funeral home. Hawkins

asserts that the window to the home was still open at that time.

The record confirms that key hair evidence was not discovered until the

second search, on October 4, 1984. In addition, investigators did not discover the

red fibers, consistent with pep club uniforms similar to the victim’s, until the

-21-
second search. Even though no one had seen them during the first search, the

forensic chemist discovered these red fibers near the front door of petitioner’s

home, immediately upon her entry of the home to conduct the second search.

During the second search, investigators also discovered similar red fibers located

under petitioner’s bed, in the same location where, during the first search, a used

feminine napkin had been discovered.

At trial, detectives gave contradictory testimony concerning whether they

had obtained two or three pep club sweaters to compare with any fibers found.

Detectives Howard and Garner both testified that they had obtained three such

sweaters, two new and one used, as part of three complete pep club outfits to be

used for any necessary comparisons. Detective Garner later testified, however,

that he submitted only two sweaters to the forensic chemist for analysis. The

forensic chemist testified that she had only requested two sweaters for analysis,

one new and one used. No one could account for the whereabouts of the third

sweater.

There was also contradictory testimony at trial concerning whether, and in

what manner, police officers had secured petitioner’s home after the first search. 6

6
Petitioner’s brother testified that he entered petitioner’s home on
Sunday, September 30, to obtain petitioner’s medication. Jail records indicated
that petitioner first received his medication on that Sunday. The home appeared
to have been searched. There was no evidence tape sealing the trailer, however,
(continued...)

-22-
The trial record, therefore, lends some support and does not contravene

petitioner’s allegations which, if proved, would warrant habeas relief. In light of

those specific allegations, supported by Hawkins’s statement, the district court

abused its discretion in denying discovery. See Bracy , 520 U.S. at 909. We,

therefore, remand for limited discovery on this one ground for habeas relief. In

remanding, however, we note that “Rule 6(a) makes it clear that the scope and

extent of such discovery [remains] a matter confided to the discretion of the

District Court.” Bracy , 520 U.S. at 909.

IV. EXPERT TESTIMONY OF FORENSIC CHEMIST

Petitioner next argues that the trial court’s admission of the expert

testimony of the State’s forensic chemist, Janice Davis, concerning hair and fiber

evidence linking petitioner to the crime, deprived petitioner of due process and a

fair trial. On direct appeal, petitioner challenged Davis’ testimony only on state

law grounds. See Duncan v. Henry , 513 U.S. 364, 366 (1995) (per curiam) (“If a

(...continued)
6

and a window was open and the doors may or may not have been locked.

On the other hand, Detectives Howard and Garner both testified that
petitioner’s brother obtained medicine from petitioner’s home late afternoon on
Friday, September 28. The detectives further testified that they searched
petitioner’s home on Saturday, September 29, after which Garner secured the
home by locking the door and taping the trailer with evidence tape. The tape
remained undisturbed until the second search, on October 4.

-23-
habeas petitioner wishes to claim that an evidentiary ruling at a state court trial

denied him the due process of law guaranteed by the Fourteenth Amendment, he

must say so, not only in federal court, but in state court.”). Because respondent

does not argue that this claim is unexhausted or procedurally barred, however, we

address the merits of petitioner’s federal claim. See 28 U.S.C. § 2254(b)(2)

(federal habeas court may deny relief on merits of unexhausted claim); see also

Hooks v. Ward , No. 98-6196, 1999 WL 502608, at *9 (10th Cir. July 16, 1999) (to

be reported at 184 F.3d 1206) (State is obligated to raise procedural default as

affirmative defense or lose right to do so).

Because the state courts did not address the federal claim, however, the

district court addressed the merits of this issue in the first instance. This court,

therefore, reviews the legal conclusions underlying the district court’s decision de

novo, and any factual findings for clear error. See LaFevers , 182 F.3d at 711.

Petitioner is not entitled to federal habeas relief unless “the error, if any,

was so grossly prejudicial that it fatally infected the trial and denied the

fundamental fairness that is the essence of due process.” Williamson v. Ward ,

110 F.3d 1508, 1522 (10th Cir. 1997) (pre-AEDPA). The district court

determined that any question concerning the admission of Davis’ testimony did

not rise to the level of a due process violation. Petitioner argues this evidence

was unduly prejudicial because it was unreliable, inaccurate or false; the nature of

-24-
hair and fiber comparisons is inexact; Davis testified in a biased and subjective

manner; and she was “probably” unqualified to testify as an expert.

Hair and fiber comparison evidence is not per se inadmissible. See id. at

1522-23 (addressing admissibility of hair analysis evidence). Davis did possess

expertise in hair and fiber analysis, having been trained in forensic science

generally and having attended several law enforcement training seminars

specifically addressing hair and fiber analysis. See Story v. Collins , 920 F.2d

1247, 1255 (5th Cir. 1991) (addressing admission of expert testimony concerning

sexually abused children). We cannot say that it was fundamentally unfair for the

trial court to allow her to testify as an expert. See Bennett v. Lockhart , 39 F.3d

848, 857 (8th Cir. 1994).

On cross-examination and in argument before the trial judge, defense

counsel ably challenged the hair and fiber evidence, Davis’ qualifications, and her

testing methods. See Little v. Johnson , 162 F.3d 855, 863 & n.11 (5th Cir. 1998)

(citing Barefoot v. Estelle , 463 U.S. 880, 898-99 (1983)), cert. denied , 119 S. Ct.

1768 (1999); see also Adams v. Leapley , 31 F.3d 713, 715 (8th Cir. 1994). He

also had a defense expert available to guide and inform his cross-examination.

Cf. Little , 162 F.3d at 863 (counsel could offer rebuttal expert evidence and

cross-examine purported state expert).

-25-
 Davis, herself, testified that a comparison of hairs could only establish

either that the known and unknown hairs were not from the same source, or that

the hairs were microscopically similar and, therefore, could have come from the

same source. She also stressed that hair comparison could not result in a positive

identification.

The trial court instructed the jury that it was to determine the weight to be

given any expert testimony. See Little , 162 F.3d at 863; Bachman v. Leapley , 953

F.2d 440, 442 (8th Cir. 1992). “Because this evidentiary issue was fully and

competently aired in the state courts,” petitioner has failed to show a “violation of

fundamental fairness under the due process clause.” Spence v. Johnson , 80 F.3d

989, 1000 (5th Cir. 1996).

In support of this federal habeas claim, petitioner submits the affidavit of

another hair and fiber expert who further challenges the credibility of Davis’

testimony and testing methods. Based upon the affidavit, petitioner asserts he is

entitled to discovery on this claim. This evidence, however, was available to

petitioner at trial. In addition, he had a defense expert at trial to inform his

challenge to this evidence. Cf. Siripongs v. Calderon , 167 F.3d 1225, 1227-28

(9th Cir. 1999) (rejecting habeas claims based upon opinion of newly hired

defense expert, where test results were available and reviewed by defense expert

prior to trial). Petitioner, therefore, has failed to establish good cause for

-26-
discovery on this issue. See Rule 6(a), Rules Governing Section 2254 Cases; see

also Bracy , 520 U.S. at 908-09.

V. REMOVAL OF VENIRE MEMBER

Petitioner argues the trial court violated his Sixth, Eighth, and Fourteenth

Amendment rights by improperly removing a venire member for cause without

allowing him an opportunity to rehabilitate the juror. 7
“‘[A] juror may not be

challenged for cause based on his views about capital punishment unless those

views would prevent or substantially impair the performance of his duties as a

juror in accordance with his instructions and his oath.’” Wainwright v. Witt ,

469 U.S. 412, 420 (1985) (quoting Adams v. Texas , 448 U.S. 38, 45 (1980))

(emphasis omitted). A trial judge’s determination of a potential juror’s bias

under this standard is a factual finding entitled to a presumption of correctness.

See id. at 428-29 (pre-AEDPA); Davis v. Executive Dir. of Dep’t of Corrections ,

100 F.3d 750, 777 (10th Cir. 1996) (same); see also Pitsonbarger v. Gramley ,

141 F.3d 728, 734 (7th Cir.) (applying AEDPA), cert. denied , 119 S. Ct. 448

(1998); Fuller v. Johnson , 114 F.3d 491, 500-01 (5th Cir. 1997) (same). In

making such a determination, the trial judge must assess the credibility of the

7
Contrary to the district court’s opinion, petitioner did assert in
district court a Sixth Amendment violation.

-27-
prospective juror, a task an appellate court cannot easily do based upon a record.

See Witt , 469 U.S. at 429; see also Castro v. Ward , 138 F.3d 810, 824 (10th Cir.)

(“Because issues of credibility and demeanor are crucial to the trial judge’s

determination, our review of that determination is quite deferential.”), cert.

denied , 119 S. Ct. 422 (1998).

Petitioner argues that a juror who opposes the death penalty may not be

excused for cause if he is able to follow the trial judge’s instructions and set

aside his own beliefs in deference to the law. Here, petitioner maintains the trial

judge did not properly question the prospective juror to determine whether he

could do so. The following colloquy occurred:

THE COURT: Mr. Parrish, I will ask you, the defendant in
this case is charged with murder in the first degree. It is your duty to
determine whether the defendant is not guilty or guilty of murder in
the first degree.

The law provides that the punishment for murder in the first
degree is life or death. If you find beyond a reasonable doubt that
the defendant is guilty of murder in the first degree, can you
consider both legal punishments, life or death?

MR. PARRISH: No.

THE COURT: Let me ask you this question, sir. If you found
beyond a reasonable doubt that the defendant was guilty of murder in
the first degree and if, under the evidence, facts and circumstances
of the case, the law would permit you to consider a sentence of
death, are your reservations about the death penalty such that
regardless of the law, the facts and circumstances of the case, you
would not consider inflicting the death penalty?

-28-
 MR. PARRISH: Yes.

Tr. vol. I at 60-61. After the prosecution moved to excuse the juror, defense

counsel asked for a bench conference, during which he requested an opportunity

to further question the juror.

MR. RAVITZ: Judge, we contend that two questions can not
properly determine a juror’s feelings, and if we’re not allowed to
explore, this Court can not make any type of factual judgment on it.

We would request that we be permitted to ask the juror --
explain to the juror the law, the fact that all he is required to do is
consider the death penalty, that this defendant is entitled to a
representative jury of his peers, that if the juror wants to consider it
and reject it, he has that right to do it as long as he’s willing to
consider it.

That as long as he is willing -- as long as it will not affect his
decision on guilt or innocence, he has a right to sit on it. If you
don’t let me inquire on this, we can’t make -- this record will be
totally insufficient for an appellate court to review whether this
Court was correct in excusing him.

When I finish, the Court may be entirely correct in excusing,
but I think I’m entitled to that opportunity.

Id. at 62-63. The trial court overruled defense counsel’s request and excused the

juror. 8

8
Thereafter, counsel made a record of the additional questions he
would have asked the prospective juror if the trial court had allowed him to do so.
The following is illustrative of the record trial counsel made.

Judge, . . . this juror has to at least be asked, can he set aside
his opinions and follow the law, because if he can, he can sit on this
(continued...)

-29-
 On direct criminal appeal, the Oklahoma Court of Criminal Appeals held

that the juror was properly excluded under Witt because the trial court’s

questioning established he would not consider imposing the death penalty in a

proper case. See Moore , 788 P.2d at 397. That court determined the trial court

did not err in disallowing further questioning by defense counsel, because further

questioning may have resulted in confusion and the relevant questions had been

asked and clearly answered. See id.

Petitioner contends that the second question asked by the trial court “is

virtually identical to a question this Court described as ‘confusing, and because

of its negative phrasing, invites ambiguous answers.’” Appellant’s Opening Br. at

44 (quoting Davis v. Maynard , 869 F.2d 1401, 1408 (10th Cir. 1989), vacated on

other grounds by Saffle v. Davis , 494 U.S. 1050 (1990), opinion reinstated in

part by Davis v. Maynard , 911 F.2d 415, 418 (10th Cir. 1990)). The following

question was at issue in Davis :

8
(...continued)
jury. And none of those questions ever asked that.

We contend that the Supreme Court’s standard in Witt and
Witherspoon is being totally violated by an excusal without giving
me an opportunity to ask these questions because we believe this
juror, if assured of his civic responsibility, would in fact say he could
sit on this jury and do what he thinks is proper in the case.

Tr. vol. I at 64-65.

-30-
 If you found beyond a reasonable doubt that the Defendant in this
case was guilty of Murder in the First Degree and if under the
evidence, facts and circumstances of the case the law would permit
you to consider a sentence of death, are your reservations about the
Death Penalty such that regardless of the law, the facts and the
circumstances of the case, you would not inflict the Death Penalty?

Davis , 869 F.2d at 1408. This court determined that a “no” answer to this

question could ambiguously mean either that the juror could not inflict the death

penalty despite the law and evidence or that any reservations the juror had would

not impair the juror’s ability to inflict the proper sentence. See id. at 1408-09. 9

Davis , however, refused to conclude that the exclusion of the juror for cause was

reversible error. See id. at 1409.

In so refusing, Davis looked to Witt where the Supreme “Court established

that prospective jurors’ bias towards the death penalty need not be proved with

‘unmistakable clarity’” in order to excuse a juror for cause. Id. (quoting Witt ,

469 U.S. at 424).

This is because determinations of juror bias cannot be reduced to
question-and-answer sessions which obtain results in the manner of a
catechism. What common sense should have realized experience has
proved: many veniremen simply cannot be asked enough questions
to reach the point where their bias has been made “unmistakably
clear”; these veniremen may not know how they will react when
faced with imposing the death sentence, or may be unable to
articulate, or may wish to hide their true feelings. Despite this lack

9
In Davis , defense counsel asked a follow-up question: “Do I hear
that to mean that you could possibly impose the Death Penalty in some particular
case?” Id. at 1408. The juror responded “yes.” Id.

-31-
 of clarity in the printed record, however, there will be situations
where the trial judge is left with the definite impression that a
prospective juror would be unable to faithfully and impartially apply
the law. . . .[T]his is why deference must be paid to the trial judge
who sees and hears the juror.

Witt , 469 U.S. at 424-26 (footnote omitted). Thus, even where there is

ambiguity, the trial court, aided by its assessment of the juror’s credibility, may

resolve the ambiguity in favor of the State. See id. at 434.

Nor do we believe the trial court was required to afford petitioner an

opportunity to further examine and rehabilitate the juror. “[P]art of the guarantee

of a defendant’s right to an impartial jury is an adequate voir dire to identify

unqualified jurors.” Morgan v. Illinois , 504 U.S. 719, 729 (1992). Here, the voir

dire was adequate to detect whether the prospective juror would have been

qualified to serve as a juror. See Yeatts v. Angelone , 166 F.3d 255, 265 (4th Cir.)

(corollary of right to impartial jury is requirement of voir dire sufficient to

identify unqualified jurors), cert. denied , 119 S. Ct. 1517 (1999). Thus, the trial

court was not constitutionally required to grant defense counsel an opportunity to

conduct a searching inquiry. Cf. Sellers v. Ward , 135 F.3d 1333, 1341 (10th

Cir.) (where defense attorney wanted to inquire whether prospective jurors would

find specific facts mitigating), cert. denied , 119 S. Ct. 557 (1998). The trial

court’s decision not to permit further questioning by defense counsel did not

exceed the bounds of that court’s considerable discretion. See Neely v. Newton ,

-32-
149 F.3d 1074, 1083-84 (10th Cir. 1998) (holding federal courts are deferential

to what questions should be asked), cert. denied , 119 S. Ct. 877 (1999). Even

assuming additional questions would have been helpful, the trial court’s failure to

allow defense counsel to ask the questions did not render the trial fundamentally

unfair. See id. at 1084.

Petitioner has failed to rebut the presumption the trial court was correct in

finding that the juror’s views would have prevented or substantially impaired his

performance of his duties as a juror. The Oklahoma Court of Criminal Appeals’

determination that the juror’s answers clearly indicated that he could not consider

imposing the death penalty regardless of the evidence and the instructions was

not contrary to or an unreasonable application of Witt .

VI. PROSECUTORIAL MISCONDUCT

Petitioner alleges the prosecution engaged in misconduct at both stages of

his trial by: 1) eliciting sympathy for the victim; 2) vouching for the credibility

of state witnesses; 3) stating personal opinion about petitioner’s guilt; and

4) undermining the jury’s sense of responsibility in selecting the appropriate

punishment. On direct criminal appeal, petitioner raised only the first claim and

did so only on state law grounds. The Oklahoma Court of Criminal Appeals

determined that state law was not violated. See Moore , 788 P.2d at 401. On

-33-
post-conviction, petitioner raised all four claims, doing so on state law grounds

with respect to the first three and on federal grounds with respect to the fourth.

Without citing state or federal law, the Oklahoma Court of Criminal Appeals

recognized that the prosecutor’s comments occasionally skirted the boundaries of

permissible argument, but considered in the context of the entire closing

arguments, did not require reversal or modification. The court determined the

prosecutor primarily made permissible comments based on the evidence or merely

responded to defense counsel’s closing arguments. See Moore , 889 P.2d at 1255

n.4.

Because respondent does not argue petitioner failed to exhaust the first

three claims on federal grounds and does not argue procedural bar with respect to

all four claims, we address the merits of all claims. See 28 U.S.C. § 2254(b)(2)

(permitting federal court to deny relief on merits of unexhausted claim); Hooks ,

1999 WL 502608, at *9 (holding State must raise procedural bar or it is waived).

The federal district court addressed the merits of the first three claims on

federal law grounds in the first instance. We review the district court’s legal

conclusions de novo and its factual findings for clear error. See LaFevers , 182

F.3d at 711. We assume the state appellate court reviewed the merits of the

fourth claim under federal law, as petitioner requested. Accordingly, we review

-34-
the Oklahoma Court of Criminal Appeals determinations on the fourth claim for

reasonableness. See 28 U.S.C. § 2254(d)(1).

Allegations of prosecutorial misconduct are mixed questions of law and

fact. See Fero v. Kerby , 39 F.3d 1462, 1473 (10th Cir. 1994). Not every

improper and unfair remark made by a prosecutor will amount to a federal

constitutional deprivation. See Caldwell v. Mississippi , 472 U.S. 320, 338 (1985).

A prosecutor’s improper comment or argument will require reversal of a state

conviction only where the remarks sufficiently infect the trial so as to make it

fundamentally unfair and, therefore, a denial of due process. See Donnelly v.

DeChristoforo , 416 U.S. 637, 643, 645 (1974); see also Darden v. Wainwright ,

477 U.S. 168, 181 (1986); Hoxsie v. Kerby , 108 F.3d 1239, 1243 (10th Cir. 1997).

Inquiry into the fundamental fairness of a trial can be made only after

examining the entire proceedings. See Donnelly , 416 U.S. at 643.

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 statements 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 defense argument. . . . Ultimately, we must
consider the probable effect the prosecutor’s [statements] would have
on the jury’s ability to judge the evidence fairly.

Fero , 39 F.3d at 1474 (quotations omitted). With these standards in mind, we

turn to petitioner’s individual claims of prosecutorial misconduct.

-35-
 A. Eliciting Sympathy for the Victim

Petitioner first argues that during closing arguments at both stages, the

prosecution sought to ensure a conviction and death sentence by appealing to the

emotions of the jury and attempting to elicit sympathy for the victim. During the

first stage closing arguments, the prosecutor referred to the victim by a nickname

not supported by the evidence. Also, the prosecutor asked the jury to speculate

about what may have happened to the victim, despite admitting that he did not

know exactly what happened to her, and commented on the suffering of the

victim’s family. 10
During the second stage, the prosecution continued with its

pleas for victim sympathy by speculating about what happened to the victim and

her responses, pointing out the loss to her family, stating petitioner gets the

benefit of the doubt but the victim did not despite her innocence, and stating that

10
The prosecutor made the following comments: 1) “Did he have this
knife in his hand then or did he pull it out when he got in the car?” 2) “[F]rom
th[e] time [he got her inside the car] until her bruised, battered and lifeless little
body was found the next morning beside the road, we don’t know exactly what he
did to her.” 3) “We have a pretty good idea of some of the things he did.” 4)
“She was probably scared to death and struggling.” 5) “She died in order for this
baby killer to satisfy his own sadistic sexual desires.” 6) “Can you imagine what
that baby was going through? Took her out to his trailer, taped her up with that
tape, took that knife right there and cut that uniform off of her and kept her there
for hours.” 7) “Jenipher will never be a teenager.” 8) “[Her mom] is never going
to drive her to school again.” 9) “[The victim’s family] will never be the same”.

-36-
a death verdict was proper out of love for the victim and her parents and the past

and the future victims of petitioner. 11

To the extent the prosecutor speculated about what petitioner did to the

victim, the federal district court determined the comments were a tenable

explanation based on evidence and logical inferences from the evidence. With

respect to the comments about the suffering of the victim’s mother and family,

the federal district court determined the comments were improper, but petitioner

failed to show the comments were so egregious as to render the trial

fundamentally unfair, especially in light of the overwhelming evidence of guilt

and the jury instructions regarding sympathy.

11
The prosecutor made the following comments: 1) “[W]e don’t really
know what he did to her that evening.” 2) “Can you imagine the terror, the fear
that baby girl had when he snatched her. She cried for help there in the parking
lot. And those may well have been the last words that ever came out of her
mouth.” 3) “What must have been going through that little girl’s mind when he
trussed her up with duct tape everywhere? . . . And cut the clothing off her body.”
4) “Nobody should have to go through the kind of terror he put that little girl
through[.]” 5) “She was alone and scared and helpless, and she died in silence
with his hands around her neck.” 6) “The sort of pain and fear she experienced
must be unimaginable.” 7) “Can [the victim’s parents] ever visit [her]?”
8) “We’re giving him every benefit of the doubt, every right our justice system
prevails. Jenipher didn’t get any of those.” 9) “She was totally innocent.”
10) “There’s no way little Jenipher could have been more innocent or less
deserving of what happened to her on that night.” 11) “[B]ring back a death
verdict out of love for the [victims and parents] of the world and the future and
the past victims of [petitioner].”

-37-
 This court does not condone prosecutorial remarks encouraging the jury to

allow sympathy to influence its decision. See Duvall , 139 F.3d at 795. After

reviewing the record, however, we cannot conclude the comments affected the

outcome at either stage of trial. The prosecution’s speculations about what

happened to the victim were reasonable possible inferences based on the

evidence. Cf. Hooks , 1999 WL 502608, at *15 (references not “so far off the

actual evidence nor so central to the prosecutor’s case that they were likely to

have affected the jury’s verdicts”). The State’s evidence makes it probable that

the murder of the young victim produced sympathy before the prosecution made

any closing remarks. See Duvall , 139 F.3d at 795. “Some emotion is inevitable

in capital sentencing[,]” and the prosecutor’s appeals to emotion in this case were

not sufficient to render the argument improper. Coleman v. Brown , 802 F.2d

1227, 1239 (10th Cir. 1986).

The trial court instructed the jury at both stages to consider the evidence

and testimony received at trial and not to allow sympathy to enter into its

deliberations. These instructions, which the jury presumably followed, helped to

mitigate the effect on the jury of any possible improper prosecutorial statements.

See Fero , 39 F.3d at 1474.

-38-
 In light of the evidence and the instructions, this court is not persuaded

that the prosecution’s remarks denied petitioner a fair trial or his right to due

process.

B. Vouching for the Credibility of State Witnesses

In responding to the petitioner’s claim that evidence had been planted, the

prosecutor apologized, on behalf of the State, to the officers who worked on the

case, “the men who go out and work the streets and try to make this society safe.”

According to petitioner, the prosecution was attempting to make the jurors feel a

debt of gratitude to these officers, who had been wronged by petitioner’s

challenge to their testimony. In addition, petitioner challenges the prosecutor’s

comment that petitioner’s attack on the searches was an attack on both himself

and another prosecutor. The federal district court determined that there had been

no improper vouching, as the first instance was grandstanding and the second

was merely skirting the boundaries, but did not warrant relief.

Generally, prosecutors should not personally vouch for the credibility of

state witnesses or place their own integrity and credibility in issue. See

Hopkinson v. Shillinger , 866 F.2d 1185, 1209 (10th Cir.), reh’g on other

grounds , 888 F.2d 1286 (10th Cir. 1989). Here, however, the statements were

made in response to comments of defense counsel. See Darden , 477 U.S. at 182;

see also Hopkinson , 866 F.2d at 1210 (recognizing that improper statement made

-39-
in response to defense counsel’s arguments does not make statement proper, but

it may affect context in which jury views improper statement). Also, the

statements were made in isolation. See Donnelly , 416 U.S. at 647 (determining

court should not lightly infer prosecutor intended isolated, ambiguous remark to

have most damaging meaning or that jury will draw that meaning from other less

damaging interpretations); see also United States v. Ludwig , 508 F.2d 140, 143

(10th Cir. 1974) (reversing conviction in direct criminal appeal where prosecutor

vouched for integrity of state police and vouching was not isolated incident).

Nor did the prosecutor cross the line from advocate to witness with these isolated

statements. Furthermore, the trial court instructed the jury to consider the

evidence in the case in making its decision. We conclude the remarks, viewed in

the context of the entire trial, did not prejudice petitioner by influencing the jury

to stray from its responsibility to be fair and unbiased. See United States v.

Young , 470 U.S. 1, 12, 18 (1985).

C. Expressing Personal Opinion About Petitioner’s Guilt

The prosecutor told the jury the odds that petitioner committed the crime

are a quarter of a million to one. Petitioner argues that this statement jeopardized

his right to be tried based on the evidence presented and instead indicated the

jury should trust the government’s judgment over its own view of the evidence.

See id. at 18-19.

-40-
 The federal district court determined this comment did not implicate any

due process violations. See Duvall , 139 F.3d at 794. Although the prosecutor

should not have expressed his personal opinion regarding guilt, there is no

suggestion that, in doing so, he relied on evidence beyond that presented at trial.

See Young , 470 U.S. at 19. Moreover, the prosecutor also remarked that the jury

should find petitioner guilty based on the evidence and not because the

prosecution said he was guilty.

D. Undermining Jury’s Responsibility in Selecting Punishment

The prosecutor stated in his second stage closing argument that when he

files a bill of particulars and asks for the death penalty, it is a proper case for the

death penalty. 12
Also, he informed the jury it is “only one piece, one little cog in

the community.” Additionally, the prosecutor told the jury that

before any case can be presented to you for your consideration in
terms of what sentence is appropriate in that sentence, a number of
things have to happen.

The decision--the evidence has to be brought before you upon
which you can base that decision. It would be improper for you to
go in that jury room and bring back a decision without having the
proper evidence before you, as Mr. Deason and I have done.

12
“[Petitioner’s counsel] says in 40 capital cases you hear that this is a
proper case for the death penalty 40 times. That’s right. That’s what a capital
case is. That’s when I file the bill of particulars and ask for the death penalty.
That’s not in every first degree murder case.”

-41-
 Prior to that time, decision has to be made as to what penalty
will be sought in that case. That decision is then made.

Prior to that time, before that kind of decision can be made, an
investigation has to be made by the police department--

...

--in this case. And the evidence has to be brought forth. That
evidence has to be gathered. It was done in this case.

Before that. Before that evidence can be gathered, the one person
who voluntarily enters into this whole scene is [petitioner] . . . .

Tr. vol. VII at 1626-27. Petitioner believes that these statements violated

Caldwell and were designed to make the jury surrender its judgment to the

judgment of the prosecution and law enforcement, rather than to make a decision

based on the strength of the evidence.

On post-conviction review, the Oklahoma Court of Criminal Appeals,

apparently deciding petitioner’s Caldwell argument, determined that these

comments merely responded to petitioner’s counsel’s second stage closing

argument. See Moore , 889 P.2d at 1255 n.4. The federal district court

determined that defense counsel invited these comments by his own comments

regarding petitioner’s continuing threat to society, 13
petitioner’s disease, 14
the

13
“If we were going to let [petitioner] out tomorrow, he would be a
threat.”
14
“[D]o you really want to kill [petitioner] or do you really want to kill
the disease.”

-42-
social and personal consequences of the jury’s decision, 15
and the types of cases

appropriate for the death penalty. 16
Further, the district court determined the

remarks did not place the ultimate sentencing decision on anyone other than the

jury. See Caldwell , 472 U.S. at 328-29. The court believed that the comments

merely underscored the jury’s part in the system of justice. See Dutton v. Brown ,

812 F.2d 593, 597 (10th Cir. 1987).

The prosecutor’s statements viewed in the context of the entire trial did not

affirmatively mislead the jury regarding its responsibility for determining

punishment, and thus did not violate Caldwell . See Romano v. Oklahoma ,

512 U.S. 1, 8-9 (1994). Furthermore, the trial court’s instructions informed the

jury that it had the duty to determine the penalty to be imposed. We conclude the

prosecutor’s statements did not render the death penalty verdict unreliable. See

Sellers , 135 F.3d at 1343 (prosecutor’s suggestion that he personally approved of

death penalty and statements that “many hurdles had to be jumped before a

capital murder trial could ever occur” were insufficient to suggest that anyone

other than jury had burden to make ultimate sentencing decision); see also

Moore , 153 F.3d at 1113 (prosecutor’s comments that jury was small part of

15
“Taking someone’s life . . . has the greatest personal and social
consequences in one’s lifetime.”
16
Defense counsel stated “if you sat on 40 capital juries, you would
hear it 40 times” and gave examples of what he believed were proper cases for the
death penalty.

-43-
machinery to put petitioner on death row and prosecutor made decision to seek

death penalty, even if improper, were not significant enough to influence jury’s

sentencing decision); Parks v. Brown , 840 F.2d 1496, 1503-04 (10th Cir. 1987)

(prosecutor’s comments did not minimize importance of jury’s role in fixing

sentence), rev’d on other grounds by Saffle v. Parks , 494 U.S. 484 (1990).

Petitioner has failed to show the Oklahoma Court of Criminal Appeals’ decision

was contrary to or an unreasonable application of Caldwell . See 28 U.S.C.

§ 2254(d)(1).

E. Combined Impact of Comments

Even if the prosecutor’s comments viewed in isolation do not warrant

relief, petitioner maintains that their combined impact does. “‘Cumulative-error

analysis applies where there are two or more actual errors. It does not apply,

however, to the cumulative effect of non-errors.’” Castro , 138 F.3d at 832

(quoting Hoxsie , 108 F.3d at 1245); see Newsted , 158 F.3d at 1097 (“A non-error

and a non-prejudicial error do not cumulatively amount to prejudicial error.”).

This court has considered, in context, each of the alleged instances of

prosecutorial misconduct identified by petitioner and concludes that, even when

taken together, the comments did not render petitioner’s trial fundamentally

unfair.

-44-
VII. ESPECIALLY HEINOUS, ATROCIOUS OR CRUEL AGGRAVATING
CIRCUMSTANCE

In his fifth ground for habeas relief, petitioner challenges the

constitutionality of Oklahoma’s “especially heinous, atrocious or cruel”

aggravating circumstance. In his sixth argument, petitioner asserts that there was

insufficient evidence to support the jury’s finding the existence of this aggravator.

A. Constitutionality

The constitutionality of an aggravating circumstance is a question of law.

See, e.g. , Hooks , 1999 WL 502608, at *32. The Oklahoma Court of Criminal

Appeals’ rejection of this claim was neither contrary to, nor an unreasonable

application of, clearly established Supreme Court precedent. See 28 U.S.C.

§ 2254(d)(1).

The language of Oklahoma’s “especially heinous, atrocious or cruel”

aggravating circumstance is unconstitutionally vague without further narrowing.

See Maynard v. Cartwright , 486 U.S. 356, 363-64 (1988). The trial court,

however, did further narrow the application of this aggravator by instructing the

jury that

[t]he term “heinous” . . . means extremely wicked or shockingly evil.
“Atrocious” means outrageously wicked and vile. “Cruel” means
pitiless or designed to inflict a high degree of pain, utter indifference
to or enjoyment of the suffering of others. You are further instructed
that the phrase “especially heinous, atrocious or cruel” is direct[ed]

-45-
 to those crimes where the death of the victim was preceded by torture
of the victim or serious physical abuse.

Post-Conviction R. vol. II at 252.

The first part of this instruction, by itself, insufficiently narrowed the

application of this aggravator. See Shell v. Mississippi , 498 U.S. 1, 1 (1990) (per

curiam); id. at 2 (Marshall, J., concurring) (setting forth language of challenged

instruction). Nonetheless, the last sentence did constitutionally narrow this

aggravating circumstance. See Walton v. Arizona , 497 U.S. 639, 652-55 (1990)

(plurality) (upholding limiting application of “especially heinous, cruel, or

depraved” aggravating factor to murders involving mental anguish or physical

abuse occurring prior to death); see also, e.g. , Hooks , 1999 WL 502608, at

*33-*34 (upholding constitutionality of jury instruction identical to instruction

challenged here); LaFevers , 182 F.3d at 720-21 (same); Cooks v. Ward , 165 F.3d

1283, 1290 & n.3 (10th Cir. 1998) (same), petition for cert. filed (U.S. May 14,

1999) (No. 98-9420). Further, the instruction’s use of the “direct[ed] to”

language does not result in any ambiguity.

Petitioner next argues that the Oklahoma Court of Criminal Appeals has

interpreted this aggravating circumstance inconsistently and that this

inconsistency deprived petitioner of adequate notice. Federal habeas review of

the consistency with which state courts have applied an aggravating circumstance,

however, is inappropriate. See Arave v. Creech , 507 U.S. 463, 477 (1993); see

-46-
also Walton , 497 U.S. at 655-56. In any event, Oklahoma courts have

consistently applied this aggravator. See, e.g. , LaFevers , 182 F.3d at 721; Cooks ,

165 F.3d at 1290.

Petitioner argues that, although the Oklahoma Court of Criminal Appeals

further limits the application of this aggravating circumstance to crimes in which

the victim consciously suffered “serious physical abuse,” the jury was never

instructed on the need to find conscious suffering. Petitioner also asserts that the

trial court failed to instruct that, under Oklahoma law, jurors were first to

determine whether the victim suffered torture or serious physical abuse and then,

if so, whether the crime was “especially heinous, atrocious or cruel.”

These arguments primarily implicate only state law errors. See Lewis v.

Jeffers , 497 U.S. 764, 783 (1990). “[F]ederal habeas review of a state court’s

application of a constitutionally narrowed aggravating circumstance is limited, at

most, to determining whether the state court’s finding was so arbitrary or

capricious as to constitute an independent due process or Eighth Amendment

violation.” Id. at 780 (pre-AEDPA). “A state court’s finding of an aggravating

circumstance in a particular case . . . is arbitrary or capricious if and only if no

reasonable sentencer could have so concluded.” Id. at 783; see also Creech , 507

U.S. at 478. As discussed more fully below, that is not the case here.

B. Sufficiency of Supporting Evidence

-47-
 Petitioner asserts that there was insufficient evidence to support the jury’s

finding the existence of this aggravating circumstance. The Oklahoma Court of

Criminal Appeals rejected this claim as well. See Moore , 788 P.2d at 401-02.

The appropriate standard of review of this claim “is the ‘rational factfinder’

standard established in Jackson v. Virginia , 443 U.S. 307 . . . (1979) . . . whether,

‘after viewing the evidence in the light most favorable to the prosecution, any

rational trier of fact could have found the [aggravating circumstance] beyond a

reasonable doubt.’ [ Id. ] at 319.” LaFevers , 182 F.3d at 723. Prior to AEDPA, a

habeas claim challenging the sufficiency of evidence under Jackson presented a

question of law. See, e.g. , Romero v. Tansy , 46 F.3d 1024, 1032 (10th Cir. 1995).

But cf. Bryson , 1999 WL 590738 (post-AEDPA habeas claim raising question of

whether there was sufficient evidence to instruct jury on lesser included offense

in capital case presented factual issue). Under AEDPA, if the sufficiency of

evidence is treated as a question of law, then under § 2254(d)(1), the question is

whether the Oklahoma Court of Criminal Appeals unreasonably applied this

standard.

Nonetheless, it appears that this court has, at times, treated the question of

whether there was sufficient evidence to support the sentencer’s finding the

existence of an aggravating circumstance as a factual determination. See, e.g. ,

Hooks , 1999 WL 502608, at *32, *34 (noting Oklahoma Court of Criminal

-48-
Appeals “found” there was sufficient evidence to support sentencer’s finding of

aggravating circumstances and affirming district court’s “finding” that especially

heinous aggravator’s “serious physical abuse” standard had been met; although

also noting Oklahoma Court of Criminal Appeals “concluded” evidence was

sufficient); Ross v. Ward , 165 F.3d 793, 800-01 (10th Cir. 1999) (“find[ing]”

record contained sufficient evidence to support jury’s finding of aggravating

circumstances), petition for cert. filed (U.S. July 6, 1999) (No. 99-5138); Nguyen ,

131 F.3d at 1344 (noting Oklahoma Court of Criminal Appeals “found” evidence

was insufficient to support especially heinous aggravator). At other times, this

court has treated the resolution of this issue as a legal conclusion. See, e.g. ,

Foster v. Ward , 182 F.3d 1177, 1194-95 (10th Cir. 1999) (“conclud[ing]” record

supported jury’s finding of conscious physical suffering sufficient to establish

Oklahoma’s especially heinous aggravator); LaFevers , 182 F.3d at 723 (affirming

district court’s conclusion that there was sufficient evidence for rational trier of

fact to have found aggravating circumstance beyond reasonable doubt); Cooks ,

165 F.3d at 1290 (“conclud[ing]” record supported jury’s finding of aggravating

circumstance).

If we treat the issue of the sufficiency of the evidence supporting the

sentencer’s finding of the “especially heinous, atrocious or cruel” aggravating

circumstance as a legal determination, the question for our consideration, under

-49-
28 U.S.C. § 2254(d)(1), would be whether the state court’s rejection of this claim

was contrary to or an unreasonable application of clearly established Supreme

Court precedent. On the other hand, if we treat this issue as one of fact, the

applicable inquiry under § 2254(d)(2) would be whether the state court’s rejection

of this claim represented an unreasonable determination of the facts in light of the

evidence. Further, § 2254(e)(1) requires this court to afford a presumption of

correctness to a state court’s factual findings, unless petitioner can rebut that

presumption with clear and convincing evidence. In this case, however, we need

not determine which is the more appropriate analysis because petitioner’s claim

lacks merit under either line of reasoning.

At the time of the abduction, petitioner held his hand across the victim’s

mouth and hit her across the face, knocking her back into the car. At the time her

body was found, at 11:00 A.M. the next morning, she had been dead only a few

hours. In the interim, she had been bound with duct tape around her wrists, arms,

ankles, thighs, back, neck and face, and tape had been placed over her nose and

mouth. Her clothes had been removed, her underwear pulled down on her thighs,

and her bra pulled up above her breasts. On several prior occasions, petitioner

had bound children in order to watch them struggle to get free.

Further, the victim had suffered bruising or abrasions to her face, neck,

back and buttocks, and had been strangled and suffocated. The medical examiner

-50-
testified that her face was puffy and smeared with pinkish foam coming mainly

from her mouth while she was still alive. Her face and eyes exhibited numerous

small hemorrhages as a result of the compression of the veins in her neck. This

evidence was sufficient to support the jury’s finding that this murder was

“especially heinous, atrocious or cruel.” See, e.g. , Cooks , 165 F.3d at 1290.

VIII. CONTINUING THREAT AGGRAVATING CIRCUMSTANCE

Petitioner next argues that Oklahoma’s continuing threat aggravating

circumstance is unconstitutionally vague and overbroad. Petitioner asserted this

claim to the Oklahoma Court of Criminal Appeals only in a petition for rehearing

following his direct criminal appeal. The Oklahoma Court of Criminal Appeals

denied rehearing without comment. Although respondent argues that this claim is

unexhausted and procedurally barred, because this issue is so easily resolved, we

address its merits. We have previously rejected this same argument challenging

the constitutionality of Oklahoma’s continuing threat aggravating circumstance.

See Castro , 138 F.3d at 815-17; see also Hooks , 1999 WL 502608, at *32; Foster ,

182 F.3d at 1194; LaFevers , 182 F.3d at 720; Boyd , 179 F.3d at 922.

Petitioner further contends that Oklahoma has not consistently applied this

aggravator. A federal habeas court, however, may not address the consistency of

-51-
the state courts’ application of an aggravating factor. See, e.g. , Creech , 507 U.S.

at 477.

IX. INEFFECTIVE ASSISTANCE OF COUNSEL

Petitioner argues that the district court erred in denying relief on his four

claims of ineffective assistance of trial counsel and two claims of ineffective

assistance of appellate counsel. The Oklahoma Court of Criminal Appeals,

deciding one claim of ineffective assistance of trial counsel on its merits, and the

federal district court, deciding all other claims of ineffective assistance of trial

and appellate counsel on their merits in the first instance, held that neither trial

nor appellate counsel rendered constitutionally ineffective assistance of counsel.

Because respondent does not argue petitioner failed to exhaust any claims

or that any claims are procedurally barred, see 28 U.S.C. § 2254(b)(1)

(exhaustion); Hooks , 1999 WL 502608, at *9 (procedural bar), we review the

claim decided by the Oklahoma Court of Criminal Appeals under the standards

set forth in 28 U.S.C. § 2254(d) and the remainder of the claims de novo, see

LaFevers , 182 F.3d at 711.

A. Ineffective Assistance of Trial Counsel

Claims of ineffective assistance of counsel are mixed questions of law and

fact, reviewed de novo. See Miller v. Champion , 161 F.3d 1249, 1252, 1254

-52-
(10th Cir. 1998) (applying AEDPA). To establish ineffective assistance of

counsel, a petitioner must prove 1) counsel’s performance was deficient, such

that counsel made errors so serious that counsel was not acting as the counsel

guaranteed by the Sixth Amendment and 2) counsel’s deficient performance

prejudiced the defense, depriving the petitioner of a fair trial with a reliable

result. See Strickland v. Washington , 466 U.S. 668, 687 (1984). To succeed

under the first prong, a petitioner must overcome the presumption that counsel’s

conduct was constitutionally effective. See Boyd , 179 F.3d at 914. Specifically,

a petitioner “must overcome the presumption that, under the circumstances, the

challenged action might be considered sound trial strategy.” Strickland , 466 U.S.

at 689 (quotation omitted). For counsel’s performance to be constitutionally

ineffective, it must have been completely unreasonable, not merely wrong. See

Hoxsie , 108 F.3d at 1246.

Under the second prong, a petitioner must show that, but for counsel’s

errors, the result of the proceedings would have been different. See Strickland ,

466 U.S. at 694. If the alleged ineffective assistance occurred during the guilt

stage, the question is whether there is a reasonable probability the jury would

have had reasonable doubt regarding guilt. See id. at 695. In assessing

prejudice, this court looks at the totality of the evidence, not just the evidence

helpful to the petitioner. See Boyd , 179 F.3d at 914. If the alleged ineffective

-53-
assistance of counsel occurred during the sentencing phase, this court considers

whether there is a “reasonable probability that, absent the errors, the sentencer

. . . would have concluded that the balance of aggravating and mitigating

circumstances did not warrant death.” Strickland , 466 U.S. at 695.

“This court may address the performance and prejudice components in any

order, but need not address both if [petitioner] fails to make a sufficient showing

of one.” Cooks , 165 F.3d at 1292-93; see also Davis , 100 F.3d at 760.

Petitioner alleges four instances of ineffective assistance of trial counsel.

First, he argues that counsel did little to demonstrate Janice Davis’ lack of

training or experience in hair and fiber analysis. If counsel had done so,

petitioner believes that the jury likely would have disregarded her testimony.

Petitioner, however, recognizes that “counsel did a commendable job

cross-examining Davis on the accuracy of her opinions, and of the general

validity of hair and fiber analysis.” Appellant’s Opening Br. at 88. The federal

district court found that counsel’s cross-examination of Davis satisfied

Strickland . Reviewing de novo, we agree. Contrary to petitioner’s

argument, the record shows that counsel did cross-examine Davis about her

background and training. During his first stage closing argument, defense

counsel questioned Davis’ credentials and reminded the jury of how little

education and training she had in hair and fiber comparison. Even if counsel had

-54-
not challenged Davis’ credentials, we have concluded that Davis was qualified to

serve as an expert. Petitioner has not suggested how further cross-examination

would have shown that she lacked expertise to testify as an expert. Thus, we

conclude counsel’s cross-examination was not deficient and petitioner cannot

show prejudice.

Petitioner next argues that counsel failed to conduct sufficient pre-trial

investigation concerning Paulo Gomes’ identification of petitioner in a

photographic line-up. If counsel had interviewed Gomes before trial, petitioner

believes that counsel would have learned that Gomes had selected another person

before selecting petitioner and that the magistrate judge who issued the search

warrants was not informed of that fact. According to petitioner, this evidence

would have created doubt as to his guilt and would have bolstered the

suppression motion filed prior to trial.

On direct criminal appeal, the Oklahoma Court of Criminal Appeals, citing

Strickland , determined petitioner failed to meet his burden of proving deficient

performance or resulting prejudice with respect to his argument that counsel

failed to conduct a proper investigation. See Moore , 788 P.2d at 401. Likewise,

on post-conviction review, that court again cited Strickland and determined that

“counsel ably brought out Gomes’s inconsistencies and weak identification at

trial. [Petitioner] cannot show that counsel’s failure to contact Gomes pretrial

-55-
constituted a deficient performance which prejudiced his client.” Moore , 889

P.2d at 1257 n.14.

Although counsel did not interview Gomes before trial, counsel established

through cross-examination and later reminded the jury during first stage closing

argument that Gomes had picked out someone else from the photo line-up.

Counsel’s performance was not deficient. Even assuming deficient performance,

petitioner has failed to show that if defense counsel had interviewed Gomes

before trial his cross-examination would have yielded any more and the result of

the trial would have been different. Considering the evidence in total, we

conclude there is no reasonable probability the jury would have reached a

different result. The Oklahoma Court of Criminal Appeals’ decision was not an

unreasonable application of Strickland . See 28 U.S.C. § 2254(d)(1).

Third, petitioner argues that counsel should have objected to admission of

the evidence found in the sack on top of the grocery store because many of the

items in the sack were never conclusively linked to petitioner. Petitioner,

however, has failed to even attempt to show that absent the evidence in the sack

the result of the trial would have been different. Thus, petitioner has failed to

prove prejudice.

Petitioner’s final ineffective trial assistance argument is that counsel did

not act as his advocate during second stage closing arguments. During argument,

-56-
counsel conceded 1) the State had proved all three aggravating circumstances

beyond a reasonable doubt; 2) petitioner would be a threat if he is not

incarcerated for life; 3) petitioner should be killed if he always acted as he did at

the time of the murder; 4) the Oklahoma Department of Corrections realizes

petitioner is dangerous; and 5) if petitioner is a threat to other prisoners, he

should be executed. Without elaboration, petitioner maintains, contrary to the

federal district court’s determination, that confessing the heinous, atrocious or

cruel aggravating circumstance and suggesting execution if a danger to other

prisoners cannot be considered strategy.

We disagree. De novo review reveals that it was counsel’s strategy to ask

that petitioner’s life be spared because he would not be a threat to society if

imprisoned and he might contribute to society. In light of the strong evidence

supporting the aggravating factors, and the psychological evidence indicating

petitioner would not be a threat if he remained incarcerated for the remainder of

his life, and the deferential scrutiny given counsel’s performance, see Strickland ,

466 U.S. at 689, counsel’s strategy was not deficient performance. Petitioner has

failed to overcome the presumption that under the circumstances trial counsel’s

argument was sound trial strategy. See id.

B. Ineffective Assistance of Appellate Counsel

-57-
 A claim of ineffective assistance of appellate counsel presents a mixed

question of law and fact. See Newsted , 158 F.3d at 1090. When claiming

ineffective assistance of appellate counsel, a petitioner must show both

constitutionally deficient performance and prejudice as required by Strickland .

See Newsted , 158 F.3d at 1090. This court’s review of counsel’s decision to omit

an issue on appeal is highly deferential. See United States v. Cook , 45 F.3d 388,

394 (10th Cir. 1995). An appellate counsel’s performance may be deficient and

may prejudice the defendant only if counsel fails to argue a “dead-bang winner.”

Id. at 395 (defining “dead-bang winner” as “an issue which was obvious from the

trial record, . . . and one which would have resulted in reversal on appeal”).

Petitioner argues that appellate counsel should have attacked the

continuing threat aggravating circumstance on direct criminal appeal and should

not have first raised the issue on rehearing. 17
The federal district court found no

merit because petitioner conceded he had raised an issue of sufficiency of the

evidence to support the aggravator on rehearing. We agree the claim has no

merit, but for another reason. Because, as discussed above, there is no merit to

17
Petitioner suggests without further argument or support that appellate
counsel should have attacked each of the other aggravators. We do not consider
unsupported and undeveloped issues. See United States v. Kunzman , 54 F.3d
1522, 1534 (10th Cir. 1995).

-58-
an attack on the continuing threat aggravator, this argument is not a “dead-bang”

winner, and appellate counsel was not ineffective.

Petitioner argues that if any claims of ineffective assistance of trial counsel

should have been raised on direct appeal, appellate counsel was ineffective for

failing to raise them. The federal district court determined it had considered

petitioner’s claims of ineffective assistance of trial counsel and had found them

to be without merit. Accordingly, the federal district court determined this claim

of ineffective assistance of appellate counsel was without merit. Because we too

reject petitioner’s claims on their merits, we conclude appellate counsel was not

ineffective for failing to raise the claims on direct appeal.

C. Cumulative Ineffective Assistance of Counsel

Petitioner believes that the district court should have considered the entire

scope of counsel’s representation, rather than looking at each item in isolation.

Petitioner, however, failed to make this assertion in the district court. Thus, the

district court’s failure to consider the entire scope of counsel’s representation

was not error. We decline to address this argument raised for the first time on

appeal. See Oyler v. Allenbrand , 23 F.3d 292, 299 n.8 (10th Cir. 1994).

X. CUMULATIVE ERROR

-59-
 If this court fails to grant relief on any one issue, petitioner argues that this

court should consider the cumulative effect of two or more seemingly harmless

errors. Considering all of petitioner’s claims, except his Brady claim for which

we are remanding, we conclude petitioner has not met his burden of

demonstrating that either his conviction or death sentence is constitutionally

infirm.

XI. CONCLUSION

In conclusion, we agree with respondent’s position argued in his cross

appeal and, therefore, we review petitioner’s habeas claims under AEDPA. We

REVERSE the district court’s denial of habeas relief on petitioner’s claim that

police officers planted evidence against him, and REMAND that claim to the

district court to permit discovery and, if necessary, an evidentiary hearing. In all

other respects, we AFFIRM the district court’s denial of habeas relief.

-60-
Nos. 98-6004, 98-6010 – Moore v. Ward

BRORBY, Circuit Judge, dissenting.

I respectfully dissent from that portion of the majority opinion that holds

the Oklahoma Court of Criminal Appeals’ “materiality determination” concerning

allegations of planted evidence represents an unreasonable application of clearly

established Supreme Court precedent. My difference of opinion is twofold. First,

I believe the majority fails to honor the deferential standard of review mandated

under the AEDPA. Second, even if we venture beyond the AEDPA standard and

substitute our best guess as to the probable impact of the undisclosed evidence on

the outcome of Petitioner’s trial, Mr. Hawkins’ statements concerning multiple

hair sample collections, and his recollection of a deceased co-workers’ comments

concerning the detectives’ unusual entry into the Petitioner’s home following

those collections, in no way undermine my confidence in the jury’s verdict.

Accordingly, I am unable to conclude the Oklahoma Court of Criminal Appeals

was unreasonable in reaching the same conclusion.

I have no quarrel with the substantive law underlying Petitioner’s Brady

claim or the standard of review we apply to that claim. It is well settled (1) “the

government has the obligation to turn over evidence in its possession that is both

favorable to the accused and material to guilt or punishment”; (2) “evidence is
material only if there is a reasonable probability that, had the evidence been

disclosed to the defense, the result of the proceeding would have been different”;

and (3) “[a] reasonable probability is a probability sufficient to undermine

confidence in the outcome.” Pennsylvania v. Ritchie, 480 U.S. 39, 1001 (1987)

(quotation marks and citations omitted). Because the Oklahoma Court of

Criminal Appeals considered Petitioner’s evidence in support of his planted

evidence claim, and rejected that claim on the merits, it is further settled under

the AEDPA that we may disturb the Oklahoma court’s ruling only if it is

“contrary to,” or involves “an unreasonable application of, clearly established

Federal law, as determined by the Supreme Court of the United States.” 28

U.S.C. § 2254(d)(1). As the majority acknowledges, the AEDPA mandates that

we increase the degree of deference afforded state court adjudications. See Boyd

v. Ward, 179 F.3d 904, 912 (10th Cir. 1999). My quarrel lies with what I deem to

be the majority’s misapplication of the AEDPA standard.

The majority recites the appropriate standard, but then concludes, without

further reference to or analysis of the Oklahoma Court of Criminal Appeals’

ruling, that because the “State’s case against petitioner was entirely

circumstantial,” and the “existence and cross-transference of the fiber and hair

evidence was crucial to the State’s case,” the Petitioner’s allegations that police

-2-
officers planted hair and fiber evidence, if proved, “would be material,” thus

creating a reasonable probability that the result of Petitioner’s trial would have

been different. 1 As I understand our role under the federal habeas statutes, this

court is not to reevaluate the evidence or second-guess the Oklahoma court’s

conclusion, but rather, must simply determine whether the Oklahoma court

reasonably applied the appropriate federal constitutional standard to the facts or

evidence presented.

It is clear the Oklahoma Court of Criminal Appeals applied precisely the

same legal standard to evaluate the materiality of the Petitioner’s proffered

evidence of planted hair and fiber samples as that applied by the United States

Supreme Court. After considering Mr. Hawkins’ affidavits, the Oklahoma Court

of Criminal Appeals concluded that, when “evaluated in the context of the entire

record,” Mr. Hawkins’ statements were “not material,” and did not “create a

1
In my experience, most habeas petitioners make allegations which, if
proved, would change the outcome of their conviction and sentence, and thus
could be considered “material.” Few, however, present the quality and/or
quantity of evidence sufficient to warrant habeas relief. It is for this reason a
federal habeas petitioner is entitled to discovery only “if, and to the extent that,
the [district court] judge in the exercise of his discretion and for good cause
shown grants leave to do so, but not otherwise.” Rule 6(a), Rules Governing
Section 2254 Cases; see also LaFevers v. Gibson , 182 F.3d 705, 722 (10th Cir.
1999).

-3-
reasonable probability that the trial’s outcome would be changed.” Moore v.

State, 889 P.2d 1253, 1258 (Okla. Crim. App.), cert. denied, 516 U.S. 881 (1995).

Although we might have benefited from a more extensive discussion of the

relative weight of that evidence compared to the rest of the evidence, in my view,

the Oklahoma Court of Criminal Appeals unquestionably applied the correct rule

of law and did not unquestionably err in its characterization of Mr. Hawkins’

statements or its ultimate disposition of this fact-dependent issue. To delve

beyond this analysis is to substitute this court’s speculation as to the outcome of

Petitioner’s trial for the considered opinion of the Oklahoma Court of Criminal

Appeals. I do not believe the AEDPA sanctions such interference. See 28

U.S.C. § 2254(d)(1); see also Kyles v. Whitley, 514 U.S. 419, 456-58 (1995)

(Scalia, J. dissenting) (recognition, even prior to AEDPA-mandated deference,

“that responsibility for factual accuracy, in capital cases as in other cases, rests

elsewhere – with trial judges and juries, state appellate courts, and the lower

federal courts”).

Notwithstanding my hesitation to delve further, I simply do not believe

there exists a reasonable probability the disclosure of Mr. Hawkins’ statements to

the defense would have changed the outcome of Petitioner’s trial. The materiality

of undisclosed favorable evidence “must be evaluated in the context of the entire

-4-
record.” United States v. Agurs, 427 U.S. 97, 112 (1979). “It is simply not

enough to show that the undisclosed evidence would have allowed the defense to

weaken, or even to destroy the particular prosecution witnesses or items of

prosecution evidence to which the undisclosed evidence relates.” Kyles, 514 U.S.

at 460 (Scalia, J. dissenting). The Petitioner must demonstrate that “in light of all

the evidence, including that untainted by the Brady violation, it is reasonably

probable that a jury would have entertained a reasonable doubt regarding

petitioner’s guilt.” Id. (citing United States v. Bagley, 473 U.S. 667, 682 (1985);

Agurs, 427 U.S. at 112-13).

To the extent Mr. Hawkins’ statements reflect his personal knowledge of

the integrity of the detectives’ investigation of Ms. Gilbert’s death, he states only

that the detectives returned to the funeral home on three separate occasions to

obtain samples of the victim’s pubic, scalp and limb hairs, that they should have

plucked instead of cut the hairs the first time, and that they took up to two and

one-half hours to obtain additional evidence on the third visit. He further claims

the hair samples were undoubtedly affected by the embalming process, and he

witnessed an open window at the Petitioner’s home on two occasions after the

detectives’ second and third visits to the funeral home. These facts, even

accepted as true, simply do not constitute material evidence to support

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Petitioner’s claim the police planted evidence. As the majority points out, the

remainder of Mr. Hawkins’ statements reflect his recollection of a now deceased

co-worker’s comments concerning the co-worker’s alleged surveillance of the

detectives’ activity following their second visit to the funeral home. Here again,

even accepting this obvious hearsay evidence as true, it simply does not

undermine my confidence in the outcome of Petitioner’s trial.

For all these reasons, I would affirm the district court’s denial of habeas

relief on Petitioner’s Brady claim.

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