Paxton v. Ward

F I L E D
United States Court of Appeals
Tenth Circuit

DEC 29 1999
PUBLISH
PATRICK FISHER
Clerk
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT

KENNETH WAYNE PAXTON,

Petitioner-Appellee/
Cross-Appellant,

v. No. 98-6236, 98-6238

RON WARD,

Respondent-Appellant/
Cross-Appellee.

Appeal from the United States District Court
for the Western District of Oklahoma
(D.C. No. CIV-96-1042-A)

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

Robert A. Nance of Riggs, Abney, Neal, Turpen, Orbison & Lewis, Oklahoma
City, Oklahoma (Gloyd L. McCoy, of Coyle & McCoy, Oklahoma City,
Oklahoma, with him on the brief), for Petitioner-Appellee/Cross-Appellant.

Before SEYMOUR, Chief Judge, TACHA and KELLY, Circuit Judges.

SEYMOUR, Chief Judge.
 Petitioner Kenneth Wayne Paxton was convicted of first degree murder by a

jury in Oklahoma state court and sentenced to death. After he unsuccessfully

brought a direct appeal and petitions for state post-conviction relief, he filed a

writ of habeas corpus in federal district court pursuant to 28 U.S.C. § 2254

asserting that numerous constitutional errors occurred during both his trial and his

sentencing proceeding. The district court upheld Mr. Paxton’s conviction, but

determined that the sentencing proceeding was constitutionally flawed by the

exclusion of mitigating evidence, the admission of hearsay evidence, and

prosecutorial misconduct. Accordingly, the court granted a conditional writ, and

allowed the state to elect whether to hold a new sentencing trial or to resentence

Mr. Paxton in accordance with state law.

Both parties appeal. The state contends that in holding the death penalty

invalid, the district court failed to properly apply the relevant provisions of the

Antiterrorism and Effective Death Penalty Act (AEDPA), Pub. L. No. 104-132,

110 Stat. 1214 (1996) (codified in relevant part at 28 U.S.C. § 2254), and failed

to defer to the state court’s interpretation of its own law. The state also asserts

that the district court abused its discretion in fashioning the remedy. Mr. Paxton

argues that he was improperly denied an instruction on a lesser included offense,

and that evidence of an invalid prior conviction was improperly admitted during

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the sentencing phase of his trial to support two of the three aggravating

circumstances found by the jury. 1

We agree with the district court’s decision to uphold Mr. Paxton’s

conviction. We also agree that Mr. Paxton’s death sentence is constitutionally

infirm and that he is therefore entitled to habeas corpus relief. Finally, we hold

that the district court did not abuse its discretion in remanding the matter to state

court for further sentencing proceedings.

I. Background

Prior to the crime, Mr. Paxton and the victim, Donna Kay Neal, maintained

a relationship that had at one point been intimate. Donna used cocaine, and Mr.

Paxton sometimes handled her money for her and occasionally gave her additional

money when she needed it. The night of the crime, Donna and her sister Linda

Neal played bingo and then went to Donna’s house, where they drank beer. They

later went to the house of Edward Peters, where they all smoked cocaine. They

purchased more cocaine several times during the late evening and early morning

hours.

1
We grant Mr. Paxton’s motion for a Certificate of Appealability on these
claims.

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 After they had spent all the money they had with them, the sisters drove to

Mr. Paxton’s house to borrow more. While her sister waited in the car, Donna

went into the house and came back with twenty dollars. They returned to Mr.

Peters’ house and Mr. Peters bought more cocaine. As they sat smoking it and

talking, Donna looked out the window repeatedly and said she had seen Mr.

Paxton’s car. When someone knocked on the door, Donna thought it was Mr.

Paxton and went to the door to open it.

The trial testimony as to the events that followed is in conflict. Linda Neal

testified that Donna did not have a weapon with her, and that Mr. Paxton had a

gun and shot Donna after she opened the door. Mr. Peters also testified that

Donna was unarmed, and that after she opened the door Mr. Paxton hit her in the

face. Mr. Peters testified he told Mr. Paxton to go outside, whereupon Mr. Paxton

pulled a gun from his coveralls and began shooting. Mr. Paxton, on the other

hand, testified that Donna took him by the hand and led him into the house,

kicked him in the thigh and in the crotch, and struck at him with a knife. He

stated that he then pulled out the gun to protect himself and fired toward the

doorway.

After Mr. Paxton began shooting, Linda ran out the front door and Mr.

Peters ran into the bathroom. Mr. Peters testified that Mr. Paxton followed him,

pushed the bathroom door open, pointed the gun at his head and fired, hitting him

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in the neck. After he recovered consciousness, he went out and saw Donna lying

on the floor. He did not see a knife lying beside her. Mr. Peters testified that he

ran outside and was pounding on the doors of neighboring houses when he saw

Mr. Paxton’s car return. He saw the driver get out and walk toward his house,

and then saw the driver come out and head back toward the car. Mr. Paxton

testified to the contrary, stating that Mr. Peters had a gun and had tried to shoot

him but the gun misfired, and that he shot back in self-defense. He denied

returning to the house after initially driving away.

Linda Neal testified that after Mr. Paxton began shooting, she ran out the

front door past the body of her sister and tried to get into the passenger side of

her car. She noticed no knife lying on the floor by her sister. As she tried to get

her car door open she saw Mr. Paxton standing by the front door, and she thought

he was reloading his gun. He chased her around her car and then rested the gun

on the hood and shot at her. She heard the bullet go past her head and ran to a

filling station, where she called the police. Mr. Paxton denied chasing Linda Neal

or shooting at her, stating that he only got into his car and left.

When the police arrived at Mr. Peters’ house, they found Donna Neal lying

dead inside. A knife was lying by her left hand and she had a small cut on her

left palm. She had been shot in the back of the head, and also had bruises and

scratches to her mouth and nose.

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 Mr. Paxton was tried on charges of first degree murder in the death of

Donna Neal, shooting with intent to kill Mr. Peters, discharging a firearm with

intent to kill Linda Neal, and possession of a loaded firearm. In addition to

giving an instruction on first degree murder, the trial court instructed the jury on

the lesser included offense of first degree manslaughter and on Mr. Paxton’s

claim of self-defense. The jury convicted Mr. Paxton of first degree murder as

well as the other three counts.

At sentencing, the state sought the death penalty on the basis of three

aggravating circumstances, arguing that Mr. Paxton had previously been

convicted of a felony involving the use of violence, that he knowingly created a

great risk of death to more than one person, and that he would constitute a

continuing threat to society. In addition to the evidence introduced during the

guilt phase of the trial, the state offered in support of these aggravating

circumstances evidence that Mr. Paxton had been convicted of first degree

manslaughter in 1965, and that he had been charged in the 1979 shooting death of

his wife. Over the objection of Mr. Paxton, the trial court concluded that hearsay

statements made by Mr. Paxton’s then-three-year-old daughter, Pamela,

implicating him in her mother’s death were admissible as excited utterances.

Mr. Paxton’s 1979 prosecution for the shooting of his wife had been

dismissed upon the state’s motion. The court order in that case recited the state’s

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assertion that dismissal would best meet the ends of justice because Mr. Paxton

had been cleared by a polygraph test. Although the jury was presented with a

stipulation that the proceeding had been dismissed, the trial court did not allow

the defense to tell the jury the reason for the dismissal, citing state law forbidding

admission of polygraph results in any circumstances. In closing argument at Mr.

Paxton’s capital sentencing proceeding, the prosecutor addressed the dismissal

and argued to the jury that the defense could have put on evidence, if it had any,

to show that Mr. Paxton had not shot his wife. The prosecutor further asserted

that the reason for the dismissal was unknown and implied it might have occurred

because Pamela was afraid to testify against her father. The jury found all three

aggravating circumstances established and fixed Mr. Paxton’s punishment at

death.

Mr. Paxton filed a direct criminal appeal contending, inter alia, that the

trial court erred in refusing to give his requested instruction on second degree

murder, in allowing the admission of Pamela’s statements as excited utterances,

and in refusing to allow admission of the results of the polygraph. Mr. Paxton

also contended that the prosecutor’s closing argument regarding the dismissal of

the 1979 prosecution rendered his sentencing proceeding fundamentally unfair.

The state court of criminal appeals affirmed his conviction and sentence. See

Paxton v. State, 867 P.2d 1309 (Okla. Crim. App. 1993).

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 Mr. Paxton then filed a petition for state post-conviction relief, seeking to

appeal out of time his 1965 manslaughter conviction on the ground that he was

denied the effective assistance of appellate counsel. The state court held that Mr.

Paxton had waited too long to make this claim and that consideration of the issue

was therefore barred by laches. See Paxton v. State, 903 P.2d 325 (Okla. Crim.

App. 1995). Mr. Paxton thereafter filed another application for state post-

conviction relief challenging his capital murder conviction and sentence, again

raising, among other issues, the invalidity of his 1965 manslaughter conviction.

The state appellate court concluded that Mr. Paxton had waived this issue by

failing to raise it on direct review, see Paxton v. State, 910 P.2d 1059, 1062 & n.3

(Okla. Crim. App. 1996), and affirmed the denial of relief.

II. AEDPA

Mr. Paxton filed his petition for federal habeas corpus relief on December

20, 1996. This court has held that the provisions of the AEDPA apply to cases

filed after its April 24, 1996, effective date even when the challenged state court

proceedings took place before that date. See Moore v. Gibson, Nos. 98-6004, 98-

6010, 1999 WL 765893, at *7 (10th Cir. Sept. 28, 1999) (citing Rogers v. Gibson,

173 F.3d 1278, 1282 n.1 (10th Cir. 1999), petition for cert. filed (U.S. Nov. 5,

1999) (No. 99-6954)). Accordingly, we apply the AEDPA here.

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 Our review of a federal district court’s ruling on a request for habeas

corpus relief depends on whether the claim was decided on the merits in state

court. “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, on the

other hand, the state courts adjudicated the merits, a petitioner is not entitled to

relief unless the state court ruling “was contrary to, or involved 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), 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).

The above-quoted language from section 2254(d)(1), which conditions the

availability of habeas relief on a determination that a state court adjudication is

“contrary to” or an “unreasonable application of” federal law, has generated

various interpretations and is currently under certiorari review by the United

States Supreme Court. See Williams v. Taylor, 163 F.3d 860 (4th Cir. 1998), cert.

granted, 119 S. Ct. 1355 (1999) (No. 98-8384); Moore, 1999 WL 765893, at *8.

Here as in Moore, however, we need not define the standards of review embodied

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in section 2254(d)(1) because the outcome of this appeal would be the same under

any possible interpretation of the language at issue.

III. Lesser Included Offense Instruction

We turn first to Mr. Paxton’s contention that his conviction and death

sentence are invalid because the trial court denied his request for a jury

instruction on the lesser included offense of second degree murder. Mr. Paxton

argues that in rejecting this claim, the state courts improperly usurped the

function of the jury by weighing conflicting evidence rather than assessing

whether the evidence, even though disputed, could have supported a finding of

second degree murder. In support of his claim Mr. Paxton relies on Beck v.

Alabama, 447 U.S. 625 (1980), in which the Supreme Court held that “a sentence

of death [may not] constitutionally be imposed after a jury verdict of guilt of a

capital offense, when the jury was not permitted to consider a verdict of guilt of a

lesser included non-capital offense, and when the evidence would have supported

such a verdict.” Id. at 627.

Beck, however, is distinguishable. Under the statutory scheme at issue in

that case, the trial judge was prohibited from instructing the jury on any lesser

included offense. See id. at 628 & n.3. Instead, the jury was given the choice of

either convicting the defendant of a capital offense, which mandated imposition

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of the death penalty, or acquitting him of any criminal liability. See id. at 628-29.

The Court stated that “the failure to give the jury the ‘third option’ of convicting

on a lesser included offense would seem inevitably to enhance the risk of an

unwarranted conviction.” Id. at 637. Accordingly, the Court held that the

resulting level of uncertainty and unreliability in the fact finding process was

constitutionally intolerable in a capital case. See id. at 643.

The Court revisited the issue in Schad v. Arizona, 501 U.S. 624 (1991).

There the trial court refused to give an instruction on one lesser included offense

but had instructed on another, giving the jury the choice of returning a verdict of

capital murder, second-degree murder, or not guilty. The defendant argued that

the “due process principles underlying Beck require that the jury in a capital case

be instructed on every lesser included non-capital offense supported by the

evidence . . . .” Id. at 646. The Supreme Court disagreed, holding instead that

the diminished reliability of the verdict in Beck caused by the “all-or-nothing”

nature of the decision presented to the jury is not implicated when the jury is

given a third option by way of one lesser included offense instruction. See id. at

646-48. Accordingly, the Court held that a defendant is not constitutionally

entitled “to instructions on all offenses that are lesser than, and included within, a

capital offense as charged.” Id. at 627. We have followed Schad, reiterating that

the Beck requirement is “satisfied so long as the jury had the option of at least one

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lesser included offense which was supported by the evidence.” Hooks v. Ward,

184 F.3d 1206, 1225 (10th Cir. 1999).

In the case before us, the trial court instructed the jury on the lesser

included offense of first degree manslaughter. Under Schad and Hooks, this

instruction was sufficient to satisfy the constitutional concerns at issue in Beck.

Mr. Paxton is not entitled to habeas relief on this claim.

IV. Use of Prior Conviction at Sentencing

Mr. Paxton asserts that his sentencing was rendered unreliable by the use of

his 1965 manslaughter conviction to support two of the aggravating circumstances

upon which the state sought the death penalty. Citing Penson v. Ohio, 488 U.S.

75 (1988), he contends that the 1965 conviction is invalid because his appellate

counsel in that case did not file a brief, thus constructively denying him an appeal

and triggering a presumption of prejudice. The state asserts that Mr. Paxton’s

challenge to the use of this conviction in his sentencing proceeding is

procedurally barred by Mr. Paxton’s failure to raise it in the direct appeal of his

capital case.

Our review of this issue is complicated by the fact that the parties, the state

courts, and the federal district court all failed to address the fact that Mr. Paxton

had presented two separate but related post-conviction proceedings. As set out

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above, Mr. Paxton filed an application for post-conviction relief challenging the

validity of the 1965 conviction, which the state court ruled was barred by laches.

See Paxton, 903 P.2d at 327-28. Mr. Paxton subsequently filed another

application in which he challenged the use of the 1965 conviction to support his

capital sentence. The court ruled that the claim was waived by Mr. Paxton’s

failure to raise it in the direct appeal of his murder conviction and death sentence.

See Paxton, 910 P.2d at 1062 & n.3. The court also rejected Mr. Paxton’s claim

that his appellate counsel was ineffective in failing to raise the issue on direct

appeal. Id. at 1062-63. 2

In his federal habeas petition, Mr. Paxton again asserted that his appellate

counsel was ineffective in failing to challenge the validity of his 1965 conviction

on direct appeal. However, this petition addressed only the merits of the first

post-conviction decision barring the challenge under laches. Mr. Paxton did not

refer to the state court ruling that the challenge to the use of his 1965 conviction

in sentencing was waived by counsel’s failure to raise it on direct appeal. The

state responded that the challenge was procedurally barred, relying exclusively on

2
We note that appeals in both post-conviction proceedings were before the
Court of Criminal Appeals at the same time. Indeed, Mr. Paxton’s counsel
requested that the second proceeding be held in abeyance until the first appeal
was decided. The decision applying laches and upholding the 1965 conviction
was handed down while the second appeal was under consideration. Neither
appellate decision refers to the other.

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the second post-conviction ruling. The federal district court, on the other hand,

determined that the state court’s first habeas decision barring the claim on the

basis of laches was not “an unreasonable determination of the facts” or “contrary

to clearly established federal law.” The court did not address the state’s argument

that the claim was procedurally barred by Mr. Paxton’s failure to raise it on direct

appeal, but instead held that Mr. Paxton’s appellate counsel was not ineffective

for failing to raise the matter on direct appeal.

We agree with the state’s position that the waiver holding raises a

procedural bar to our consideration of Mr. Paxton’s challenge to the use of the

1965 conviction in his capital sentencing. Mr. Paxton does not argue to this court

that the state waiver rule barring an issue not raised on direct appeal is not an

adequate and independent state ground. Accordingly, we may not hear this

defaulted claim unless Mr. Paxton establishes cause for the default and actual

prejudice, or a fundamental miscarriage of justice. See Jackson v. Shanks, 143

F.3d 1313, 1317 (10th Cir. 1998), cert. denied 119 S. Ct. 378 (1998). Mr. Paxton

does not assert on appeal that his capital appellate counsel was ineffective for

failing to raise the issue on direct appeal, nor does he argue that the default will

result in a fundamental miscarriage of justice. Indeed he simply does not address

the waiver holding in the second state post-conviction proceeding, focusing his

argument instead on the first post-conviction proceeding, which applied laches.

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We therefore conclude we are procedurally barred from considering Mr. Paxton’s

challenge to the use of the 1965 conviction in his capital sentencing.

Moreover, even if Mr. Paxton’s challenge to the validity of the 1965

conviction were properly before us, we agree with the district court that we

cannot grant habeas relief with respect to the first state court decision applying

laches. Under the AEDPA, habeas relief may not be granted with respect to a

claim adjudicated on the merits 3 in state court unless the resulting decision is

“contrary to” or involved “an unreasonable application of clearly established

federal law” as determined by the Supreme Court. 28 U.S.C. § 2254(d)(1). The

Supreme Court has expressly left open the issue of whether a state is

constitutionally required to provide a defendant an opportunity to collaterally

challenge a prior conviction once it is used for sentencing enhancement purposes.

See Parke v. Raley, 506 U.S. 20, 28 (1992). 4 We therefore cannot say that the

state court decision applying laches to Mr. Paxton’s challenge to his 1965

3
We note that dismissals on the basis of laches are considered decisions on
the merits. See, e.g., Smith v. City of Chicago, 820 F.2d 916, 918-19 (7th Cir.
1987); Cannon v. Loyola Univ. of Chicago, 784 F.2d 777, 781 (7th Cir. 1986).
4
Moreover, the circuits are split on whether a state may deny such review
on the basis of pre-enhancement delay. Compare Tredway v. Farley, 35 F.3d 288,
293-95 (7th Cir. 1994) (per curiam) (holding initial collateral challenge to
enhancement cannot be barred on basis of pre-enhancement delay); and Smith v.
Farley, 25 F.3d 1363, 1367-68 (7th Cir. 1994) (same), with Moore v. Roberts, 83
F.3d 699, 701-03 (5th Cir. 1996) (failure to challenge prior conviction within
statutory time limit for bringing post-conviction relief bars subsequent challenge
to use of that conviction for enhancement).

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conviction is contrary to clearly established federal law. 5 Accordingly, we affirm

the district court’s denial of habeas relief on this claim.

V. Sentencing Errors

We turn next to the district court’s decision that the sentencing proceeding

was constitutionally flawed. The court’s ruling was based on its conclusion that

three interrelated constitutional errors occurred when the state used the 1979

shooting death of Mr. Paxton’s wife Gloria as grounds for seeking the death

penalty. The court held that Mr. Paxton’s constitutional right to confront the

witnesses against him was violated by the admission of hearsay statements of Mr.

Paxton’s daughter Pamela, who was three years old at the time of her mother’s

death and had no present recollection of the event at the time of the trial in the

present case. The court further ruled that Mr. Paxton’s constitutional right to

present mitigating evidence was denied by the state court’s exclusion of evidence

that Mr. Paxton was cleared in the death of his wife by a polygraph examination.

5
Under federal law as set out in Rule 9(a) of the Rules Governing Section
2254 Cases, delay is not grounds for dismissal of a petition unless the state shows
that the delay has prejudiced its ability to respond. In contrast, Oklahoma law
does not require a showing of prejudice for the laches doctrine to apply to a
petition for state post-conviction relief. See Paxton, 903 P.2d at 327. This
divergence between state and federal law is not of moment here in view of the
fact that federal law is unsettled on whether due process requires a state to
provide any opportunity to challenge a state conviction once it is used for
enhancement purposes. See supra n.4.

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Finally, the district court held that the prosecutor, Robert Macy, deceived the jury

in closing argument by falsely stating that he did not know why the charges

against Mr. Paxton had been dismissed and by inviting the jury to be suspicious of

the reason for the dismissal. The court held that Mr. Macy’s prosecutorial

misconduct exacerbated both the erroneous admission of the hearsay and the

erroneous exclusion of the polygraph test. We address each of the district court’s

rulings in turn.

A. Admission of Hearsay

We begin with Mr. Paxton’s contention that the admission of Pamela’s

hearsay statements was constitutional error. “The Sixth Amendment’s

Confrontation Clause, made applicable to the States through the Fourteenth

Amendment provides: ‘In all criminal prosecutions, the accused shall enjoy the

right . . . to be confronted with the witnesses against him.’” Ohio v. Roberts, 448

U.S. 56, 62-63 (1980) (citations omitted). While the Confrontation Clause does

not bar the admission of all hearsay, it “reflects a preference for face-to-face

confrontation at trial.” Id. at 63. The Supreme Court has struck a balance

between the need to protect the integrity of the fact-finding process through cross-

examination and the needs of effective law enforcement, see id. at 63-65, by

holding that admission of a hearsay statement does not violate the Confrontation

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Clause “if it bears adequate ‘indicia of reliability,’” id. at 66. “Reliability can be

inferred without more in a case where the evidence falls within a firmly rooted

hearsay exception. In other cases, the evidence must be excluded, at least absent

a showing of particularized guarantees of trustworthiness.” Id.

In this case, the state trial judge allowed the admission of a hearsay

statement made by Pamela on the day of her mother’s death under Oklahoma’s

excited utterance exception to the hearsay rule. See Okla. Stat. tit. 12, § 2803(2)

(1991). This is a firmly rooted hearsay exception. See White v. Illinois, 502 U.S.

346, 355 n.8 (1992); Fed. R. Evid. 803(2); 2 McCormick on Evidence § 272 (John

W. Strong ed. 5th ed. 1999). On direct appeal, the Oklahoma Court of Criminal

Appeals affirmed the trial court’s ruling in a divided opinion. See Paxton, 867

P.2d at 1320-21 (majority opinion), 1331-32 (Lane, J., concurring in result but

disagreeing with majority on excited utterance issue), 1332 (Chapel, J.,

dissenting). The federal district court disagreed, holding that the admission of

Pamela’s statement violated Mr. Paxton’s Confrontation Clause rights because it

did not fall within the excited utterance exception and lacked reliability. In

addition, the court was persuaded that Mr. Macy’s speculation during closing

argument that the charges had been dismissed because Pamela was afraid to

testify against her father made the admission of her statement highly prejudicial.

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 Pamela was three years old at the time of her mother’s death and does not

remember the event. The state introduced statements she made on the day Gloria

died through the testimony of Lavern Smith, Gloria’s sister. The record reveals

that Gloria was shot shortly after her son left for school in the morning. Pamela

was sleeping on the couch when her brother left and Gloria was upstairs in bed.

After the shooting, Mr. Paxton’s sister, Zuemac Dunlap, took Pamela home with

her. Pamela stayed there with Mrs. Dunlap’s adult daughter and others until she

was picked up by Lavern Smith and taken to her home.

Ms. Smith testified that she went to Mrs. Dunlap’s house around noon with

her two sisters and her brother-in-law and stayed there quite some time. Mr.

Dunlap was also there, as well as someone from the union where Mr. Paxton

worked. Ms. Smith testified that they all discussed the shooting while at the

Dunlap home and that she did not know where Pamela was when these

discussions took place. Ms. Smith further testified that after she brought Pamela

to her home in the mid to late afternoon, she was crying uncontrollably. Ms.

Smith tried to quiet her down, talking to her and asking her why she was crying.

Pamela said “my daddy went upstairs and my daddy shot my mama and my mama

rolled her eyes back in her head.” Trial Tr., Rec., vol. VI, at 1248.

As noted, the federal district court concluded these statements were not

admissible as excited utterances and were not otherwise reliable. In so doing, the

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court rejected the state court decision to the contrary as based on an unreasonable

determination of the facts. On appeal, the state acknowledges that we examine de

novo Mr. Paxton’s claim that the admission of hearsay violated his constitutional

right to confront the witnesses against him. See Hatch v. Oklahoma, 58 F.3d

1447, 1467 (10th Cir. 1995). Nonetheless, the state contends the district court

erred in failing to defer to the state courts’ determination that because the hearsay

fell within the state’s excited utterance exception, no constitutional violation

occurred.

The Supreme Court has rejected the argument that a state court

determination admitting hearsay under state law is dispositive of a petitioner’s

habeas claim that his constitutional confrontation rights were violated by the

admission. See Lee v. Illinois, 476 U.S. 530, 539 (1986) (admissibility of hearsay

evidence as a matter of state law does not resolve Confrontation Clause issue).

Circuit courts have elaborated on this proposition.

Plainly, the mere fact that a state court, in admitting evidence, tucks
it into a pigeonhole which bears the label of a time-honored hearsay
exception cannot be entirely dispositive. Our habeas powers are not
so blunted that we pay obeisance to the symbols of justice at the
expense of substance. Thus, the state court record must show a
sufficient factual predicate rationally to support the affixation of the
label.

Puleio v. Vose, 830 F.2d 1197, 1207 (1st Cir. 1987). See also Martinez v.

McCaughtry, 951 F.2d 130, 134 (7th Cir. 1991) (to decide Confrontation Clause

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issue, “we go beyond the inference of reliability, looking to the record to see if it

supports admission under [the excited utterance] exception”); Crespin v. New

Mexico, 144 F.3d 641, 648 n.4 (10th Cir. 1998) (“We are charged with examining

the [hearsay] statement in its entirety in the context of the trial record and ‘in

light of all the surrounding circumstances,’ to determine whether the state court’s

application of the legal test . . . is constitutionally sound.”) (citation omitted),

cert. denied 119 S. Ct. 378 (1998).

In considering a Confrontation Clause claim on habeas, therefore, we

review a state court decision by assessing whether it is reasonably supported by

the record and whether its legal analysis is constitutionally sound. This approach

is congruent with the standards of review imposed by the AEDPA, under which

we may grant habeas relief only when a state court decision on the merits involves

an unreasonable application of clearly established federal law as determined by

the Supreme Court, or is based on an unreasonable determination of the facts in

light of the evidence presented in state court. See 28 U.S.C.

§ 2254(d).

Under Oklahoma law, hearsay is admissible as an excited utterance if the

statement relates to a startling event or condition and was made while the

declarant was under the stress of excitement caused by the event or condition.

See Okla. Stat. tit. 12, § 2803(2) (1991). This is the standard recognized as the

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firmly rooted hearsay exception. See Fed. R. Evid. 803(2); McCormick § 272,

supra. Thus, if the evidence before the state trial court supports the applicability

of this exception, Mr. Paxton’s constitutional confrontation rights were not

violated.

As Oklahoma law recognizes, “[t]he critical question under this exception

is whether the statements by the declarant were spoken under the extreme stress

of a startling event so that there was no time to fabricate.” Johnson v. State, 665

P.2d 815, 820 (Okla. Crim. App. 1982). The Supreme Court has elaborated as

follows:

[t]he basis for the “excited utterance” exception . . . is that such
statements are given under circumstances that eliminate the
possibility of fabrication, coaching, or confabulation, and that
therefore the circumstances surrounding the making of the statement
provide sufficient assurance that the statement is trustworthy and that
cross-examination would be superfluous. See, e.g., 6 Wigmore,
supra, §§ 1745-1764; 4 J. Weinstein & M. Berger, Weinstein’s
Evidence ¶ 803(2)[01] (1988); Advisory Committee’s Note on Fed.
Rule Evid. 803(2), 28 U.S.C. App., p. 778.

Idaho v. Wright, 497 U.S. 805, 820 (1990) (emphasis added). The question, then,

is whether the circumstances under which Pamela made the statement were such

that the court could be assured there was no possibility that this three year old

child either was coached or overheard others state or speculate that her father shot

her mother.

-22-
 In ruling the hearsay admissible as an excited utterance, the state trial

court expressly relied on three Oklahoma cases, Moore v. State, 761 P.2d 866

(Okla. Crim. App. 1988), DeVooght v. State, 722 P.2d 705 (Okla. Crim. App.

1986), and Newbury v. State, 695 P.2d 531 (Okla. Crim. App. 1985) (holding

admissible as excited utterance statement made by four year old after sleeping all

night following the startling event). Of these cases, only Newbury

addressed the admissibility of hearsay under Oklahoma’s excited utterance

exception and that case had been previously overruled. 6 See McCalip v. State,

778 P.2d 488, 489-90 (Okla. Crim. App. 1989) (overruling Newbury; listing

articles describing Newbury as “highly questionable,” “difficult to defend,”

“stretch[ing] the excited utterance exception beyond its logical extreme,” and

“result-oriented”).

McCalip, 778 P.2d 488, addressed the admission of a hearsay statement as

an excited utterance that was made by a two year old child between ten and

twelve hours after the startling event. The court ruled the admission improper,

6
Moore, 761 P.2d 866, dealt with the admission of evidence under the state
of mind exception, id. at 870, the dying declaration exception, id. at 871-72, and
the exception for statements of medical history made for the purpose of medical
treatment, id. at 873. DeVooght, 722 P.2d 705, addressed the admission of the
hearsay statements of a four-year-old child under the residual exception to the
hearsay rule on the ground that the trustworthiness of the statements was borne
out by their consistency and by corroborating evidence. See id. at 712. Thus,
neither of these cases provides guidance on whether, given the facts presented,
Pamela’s statement falls within the recognized excited utterance exception.

-23-
pointing out the lack of evidence that the declarant was emotionally upset or

excited at the time of the statement, the length of time between the event and the

statement, the fact that during this time the declarant slept soundly, and, more

importantly, the lack of evidence that the statement was spontaneously

volunteered. See id. at 490. The court stated that “[t]he underlying justification

for the excited utterance exception ‘is that the spontaneity of the statement in

relation to the exciting event gives rise to trustworthiness,’” and held that the

statement at issue was not truly spontaneous because the child made it in response

to his mother asking him what was wrong several hours after the startling event.

Id. at 490 (citation omitted). The court overruled Newbury insofar as it was

inconsistent with its holding. See id.

In the present case, the Oklahoma Court of Criminal Appeals recognized

that Newbury had been overruled prior to trial but nonetheless was untroubled by

the trial court’s reliance on it because it had been overruled “on factual grounds

only.” Paxton, 867 P.2d at 1320. Whether a statement falls within the exception

for excited utterances is, however, clearly an intensely factual inquiry. Most

significantly, in affirming the trial court’s admission of Pamela’s statement as an

excited utterance despite that court’s reliance on Newbury, the state appellate

court clearly proceeded on an unreasonable determination of the facts in light of

the evidence presented at trial.

-24-
 The appellate court stated that evidence introduced by the state showed

“then three (3) year old Pam Paxton followed [her father] as he took a shotgun

from the back seat of his car into the house, up the stairs and shot his wife as she

lay in bed.” Id. The record reflects instead that during in camera questioning,

Ms. Smith stated she could not remember whether Pamela said she had seen the

shooting or said someone had told her about it. See Trial Tr., Rec., vol. VI, at

1173. There is no other admissible evidence on this significant point. The

evidence to which the state court referred was apparently hearsay proffered

through a police officer who questioned Pamela two days after the shooting,

asking her a series of questions about the event, all of which she responded to by

nodding her head. See id. at 1182-83. The trial court ruled this testimony

inadmissible as hearsay. See id. at 1304.

The state appellate court further stated that Pamela stayed at Ms. Dunlap’s

home for a “short time,” and that she “may have been around adults who may or

may not have been talking about the shooting.” Paxton, 867 P.2d at 1320. The

trial record establishes to the contrary that Pamela was at Mrs. Dunlap’s home

with relatives of the shooting victim for a considerable period of time during

which Ms. Smith testified that they did indeed discuss the shooting. See Trial Tr.,

Rec., vol. VI, at 1251-52. Finally, the appellate court distinguished both Newbury

and McCalip on the ground that in those cases the declarant had slept between the

-25-
event and the time the statement was made. See Paxton, 867 P.2d at 1320. Ms.

Smith testified, however, that she did not remember seeing or talking to Pamela

while at Mrs. Dunlap’s house, see Trial Tr., Rec., vol. VI, at 1252, and the state

presented no evidence as to what Pamela was doing during the time the adults

were gathered there. The discrepancies between the record evidence and the state

appellate court’s recitation of the facts concern circumstances critical to the

admission of the statement as an excited utterance.

In light of the state appellate court’s factually incorrect description of the

evidence, we cannot conclude its determination that Pamela’s statement

constituted an excited utterance was supported by the record. While there is no

doubt that the shooting death of Pamela’s mother was a startling event, several

hours passed between that event and the making of the statement. The evidence

does not reveal anything about Pamela’s activities or state of mind during that

intervening period. We simply do not know whether she was present when the

shooting was discussed, what form that discussion took, what if anything she was

told about it, whether she was continuously upset, or whether she fell asleep. Any

number of intervening events could have occurred that would have influenced or

indeed brought about the statement at issue, such as speculation by the adults that

her dad had shot her mom. And while it is true that Pamela was crying when the

statement was made, there is no evidence that she had been crying or was upset

-26-
during the entire period up to that time or whether something she overheard

caused her to be upset. In addition, her statement was not spontaneously

volunteered, but rather was offered in response to questioning from Ms. Smith.

See Trial Tr., Rec., vol. VI, at 1173 (“I kept asking [Pamela] why she was

upset.”).

It is the state’s burden to establish that the statement was sufficiently

reliable to meet the constitutional standard. See Wright, 497 U.S. at 816. If the

hearsay statements do not fall within a firmly rooted hearsay exception, “they are

‘presumptively unreliable and inadmissible for Confrontation Clause purposes,’

and ‘must be excluded, at least absent a showing of particularized guarantees of

trustworthiness.’” Id. at 818 (citations omitted). Such guarantees of

trustworthiness must come from “the totality of circumstances that surround the

making of the statement and that render the declarant particularly worthy of

belief,” id. at 820, and “must be at least as reliable as evidence admitted under a

firmly rooted hearsay exception,” id. at 821 (citations omitted).

Thus, unless an affirmative reason, arising from the circumstances in
which the statement was made, provides a basis for rebutting the
presumption that a hearsay statement is not worthy of reliance at
trial, the Confrontation Clause requires exclusion of the out-of-court
statement.

Id. Under this standard, we hold that on the record before us the state has not met

its burden to rebut the presumption that Pamela’s statement was unreliable for

-27-
Confrontation Clause purposes. The admission of her statement therefore

violated Mr. Paxton’s right to confront the witness and to test her statement

through cross-examination.

B. Exclusion of Mitigating Evidence

We next consider Mr. Paxton’s argument that he was denied the right to

present mitigating evidence. This claim arises from the trial court’s refusal to

admit a court order stating that Mr. Paxton had been cleared in his wife’s death by

a polygraph examination. In ruling the polygraph results inadmissible, the state

courts relied on settled state law holding that the results of a polygraph test may

not be admitted for any purpose. See Paxton, 867 P.2d at 1323. The federal

district court concluded that in relying on this rule the state courts violated clearly

established federal law, which holds that state evidentiary rules may not be used

to deny a capital defendant’s rights under the Eighth and Fourteenth Amendments

to present mitigating evidence as a basis for a sentence less than death. On

appeal, the state argues that no constitutional violation resulted from the

exclusion of this evidence because the Supreme Court has recognized that

polygraph results are unreliable. In so doing, the state relies on a Supreme Court

-28-
case not relevant to a capital sentencing proceeding and disregards or attempts to

distinguish controlling cases. 7

During the sentencing proceeding, the bulk of the state’s evidence was

directed to the circumstances surrounding the death of Gloria Paxton. In addition

to presenting Lavern Smith’s testimony on Pamela’s hearsay statements, the state

presented testimony from Gloria’s son describing events on the day of the

shooting, testimony from the medical examiner who had examined Gloria’s body

and who described the shotgun wound, testimony from the police officer who had

gathered evidence at the scene and taken pictures of Gloria’s body, the pictures

themselves, testimony from a ballistics expert who examined the shotgun that

7
The state appellate court also concluded that the Supreme Court authority
relied on by Mr. Paxton and cited by the federal district court was distinguishable
because here “[t]he court’s ruling did not prevent [Mr. Paxton] from presenting
other evidence concerning the dismissal of the prior charge, such as the testimony
of the polygraph examiner or any of the attorneys involved in the dismissal.”
Paxton, 867 P.2d at 1324. We reject this contention out of hand as contrary to the
trial record. In refusing to admit the order dismissing the criminal proceedings
against Mr. Paxton, the trial court stated:
It is clear to this Court that the results of a polygraph test is [sic] not
admissible for any purpose. . . .[T]he credibility of the evidence in
this case must not be determined by the admissibility of the results of
the polygraph test . . . and the Court excludes and directs all the
witnesses and the attorneys and the parties to refrain from making
any statements or references in the presence of the jury that, quote,
defendant cleared by polygraph test, close quote.
Trial Tr., Rec., vol. VI, at 1356-57. This emphatic and unambiguous ruling did
not leave Mr. Paxton’s defense the option of introducing the test results through
the polygraph examiner, the attorneys involved, or indeed from any other source
whatsoever.

-29-
killed Gloria and stated his opinion that it would not have discharged

accidentally, 8 and testimony from a homicide detective who did the follow up

investigation of the shooting and who testified that after his reports were turned

over to the district attorney’s office, the case was dismissed.

In order to counter the possibility that the jury would conclude from this

evidence that Mr. Paxton had deliberately killed Gloria with a shotgun, defense

counsel sought to admit an order entered by a state court judge dismissing the

prosecution of Mr. Paxton for the shooting at the request of the then-district

attorney. The order itself recited that the district attorney moved the court to

dismiss the proceeding “for the following reasons, to wit: TO BEST MEET THE

ENDS OF JUSTICE. . . DEFENDANT CLEARED BY POLYGRAPH TEST.”

Def’s. Ex. 5 (admitted during in camera proceedings, see Trial Tr., Rec., vol. VI,

at 1357). The state objected to the language stating that Mr. Paxton had been

cleared by a polygraph test. The trial judge sustained the objection and directed

all parties to refrain from referring to the polygraph results. See supra note 7.

Thereafter the parties stipulated to the fact that after review of the investigation

into Gloria’s death, criminal proceedings against Mr. Paxton were dismissed at

the request of the district attorney.

8
On cross examination, the expert also testified that tests administered to
Mr. Paxton’s hands revealed no trace of gunshot residue.

-30-
 In closing argument on behalf of the state, Mr. Macy made the following

remarks:

I’ll tell you what, ladies and gentlemen, he had the same opportunity
to put evidence on that witness stand about that killing that we did.
Everything – if he had any evidence – if the defense had any
evidence to show that that crime didn’t happen exactly the way that
our witnesses told you it did he could have put a witness on the
witness stand. You didn’t hear from anybody.
. . . And there could be a lot of reasons as to why it [was
dismissed] – one of them may have been the fact that Pam Paxton
wouldn’t talk about it and she was the only eyewitness that witnessed
it and who knows. We don’t know why it was dismissed.

Trial Tr., Rec., vol. VI, at 1392. In so doing, Mr. Macy clearly and deliberately

made two critical misrepresentations to the jury: he told the jury that Mr. Paxton

had been given the opportunity to present any evidence showing that he had not

killed his wife, and he told the jury that the reason for the dismissal was

unknown. In fact, as Mr. Macy well knew, his objections had prevented Mr.

Paxton from presenting evidence that he had passed a polygraph test in

connection with the shooting, and that those test results were the reason for the

dismissal. It is against this factual background that we assess whether Mr.

Paxton’s inability to present mitigating evidence rendered his sentencing

proceeding constitutionally invalid.

In Skipper v. South Carolina, 476 U.S. 1 (1986), the defendant was

prevented during the sentencing phase of his capital trial from presenting

disinterested witnesses who would have testified he had made a good adjustment

-31-
to jail during his pretrial incarceration. The state trial judge ruled that this

evidence was irrelevant under state law and therefore inadmissible. The

prosecutor in closing argument contended the defendant would be a discipline

problem in prison and would likely rape other prisoners. The defendant argued on

appeal that evidence of his good behavior in jail was both relevant and mitigating

and that its exclusion was constitutional error under Lockett v. Ohio, 438 U.S. 586

(1978), and Eddings v. Oklahoma, 455 U.S. 104 (1982).

The Supreme Court agreed and reversed the death penalty, reiterating its

holding in Lockett and Eddings.

There is no disputing that this Court’s decision in Eddings
requires that in capital cases “‘the sentencer . . . not be precluded
from considering, as a mitigating factor, any aspect of a defendant’s
character or record and any of the circumstances of the offense that
the defendant proffers as a basis for a sentence less than death.’”

Skipper, 476 U.S. at 4 (quoting Eddings, 455 U.S. at 110 (quoting Lockett, 438

U.S. at 604)) (emphasis in original). Accordingly, the Court held that the

defendant was deprived of his right to place relevant evidence in mitigation

before the jury. See id. at 8. The Court noted that the relevance of the evidence

was underscored in that case

by the prosecutor’s closing argument, which urged the jury to return
a sentence of death in part because petitioner could not be trusted to
behave if he were simply returned to prison. Where the prosecution
specifically relies on a prediction of future dangerousness in asking
for the death penalty, it is not only the rule of Lockett and Eddings
that requires that the defendant be afforded an opportunity to

-32-
 introduce evidence on this point; it is also the elemental due process
requirement that a defendant not be sentenced to death “on the basis
of information which he had no opportunity to deny or explain.”

Id. at 5 n.1 (quoting Gardner v. Florida, 430 U.S. 349, 362 (1977)). The

concurrence in Skipper agreed with the result reached by the majority but would

have reversed on the ground that the defendant was not allowed to rebut evidence

and argument used against him, citing Gardner. See id. at 9 (Powell, J.

concurring). As did the majority, the concurrence pointed out that the

constitutional error was aggravated by the prosecutor’s closing argument, which

emphasized the very evidence the excluded testimony would have rebutted. See

id. at 11. Significant for our purposes here, the Court held that the prosecutor’s

argument both underscored the relevance of the evidence and aggravated the error

arising from its exclusion, and found reversible error notwithstanding the fact that

the excluded evidence was inadmissible under state law.

Also relevant to our inquiry is the Supreme Court’s treatment in Green v.

Georgia, 442 U.S. 95 (1979) (per curiam), of facts analogous to those before us.

There the trial court had denied the introduction of evidence that was

inadmissible hearsay under state law. Citing Lockett, the Court held the exclusion

constitutional error, stating that “[r]egardless of whether the proffered testimony

comes within Georgia’s hearsay rule, under the facts of this case its exclusion

constituted a violation of the Due Process Clause of the Fourteenth Amendment”

-33-
because it “was highly relevant to a critical issue in the punishment phase of the

trial.” Id. at 97. Moreover, in holding the evidence sufficiently reliable despite

its hearsay status, the Court pointed out that “the State considered the testimony

sufficiently reliable to use it against [a codefendant], and to base a sentence of

death upon it.” Id. Accordingly, the Court held that in such circumstances “‘the

hearsay rule may not be applied mechanistically to defeat the ends of justice.’”

Id. (quoting Chambers v. Mississippi, 410 U.S. 284, 302 (1973)). Here, as in

Green, the excluded evidence was highly relevant to punishment, and the state

had considered it sufficiently reliable to warrant the dismissal of the earlier

charges against Mr. Paxton.

Finally, in Rock v. Arkansas, 483 U.S. 44 (1987), the Supreme Court

addressed the applicability of state evidentiary rules when they interfere with a

defendant’s constitutional right to testify in his own defense. At issue there was a

per se rule excluding a witness’ hypnotically refreshed testimony. The Court held

that application of a state per se rule of inadmissibility designed to ensure reliable

testimony “does not extend to per se exclusions that may be reliable in an

individual case. Wholesale inadmissibility of a defendant’s testimony is an

arbitrary restriction on the right to testify in the absence of clear evidence by the

State repudiating the validity of all posthypnosis recollections.” Id. at 61. The

Court ruled the exclusion there infringed on the defendant’s right to testify,

-34-
pointing out that the challenged testimony was corroborated by other evidence.

See id. at 62. In the instant case, the reliability of the excluded polygraph test

was corroborated by the fact that the state relied upon it in dismissing the earlier

charges against Mr. Paxton.

This Supreme Court authority makes clear that a state court may not apply a

state rule of evidence in a per se or mechanistic manner so as to infringe upon a

defendant’s constitutional right to a fundamentally fair trial and to present

mitigating evidence in a capital proceeding. Indeed this court and others have

viewed the above cases as controlling on the issue in similar circumstances. In

Dutton v. Brown, 812 F.2d 593 (10th Cir. 1987), for example, after reviewing the

holdings in Lockett, Eddings, Green, and Skipper, we held that constitutional

error occurred when mitigating evidence was excluded in the sentencing phase of

a capital case on the basis of a state witness sequestration rule. We pointed out

that “[t]he Supreme Court has been exceedingly cautious to ensure that a person

found guilty of a capital offense is given every opportunity to present potentially

mitigating evidence that might form the basis for a sentence less than death.” Id.

at 602. See also Gonzales v. Lytle, 167 F.3d 1318 (10th Cir. 1999) (admission of

witness’ inculpatory statements and exclusion of exculpatory recantation rendered

trial fundamentally unfair and required grant of habeas relief).

-35-
 The Ninth Circuit has also held under very similar circumstances that the

exclusion of polygraph evidence under state evidence rules violated a defendant’s

right to present relevant mitigating evidence in a capital case. See Rupe v. Wood,

93 F.3d 1434, 1439-41 (9th Cir. 1996). There the state courts, citing Lockett, had

recognized that “under controlling United States Supreme Court authority, relaxed

standards govern the admission of mitigating evidence during the penalty phase of

a death penalty trial.” Id. at 1439. Nonetheless the state court summarily

affirmed the exclusion of polygraph evidence as unreliable. The Ninth Circuit

affirmed the grant of habeas corpus relief, holding that the refusal to admit the

polygraph evidence at sentencing “violated the principle of Lockett and Eddings

by interfering with the jury’s ability to weigh the mitigating factors.” Id. at 1440.

In holding the polygraph results relevant, the court pointed out that the evidence

not only bore on the defendant’s role in the crimes, it was also relevant to the

state’s case because it would have refuted assertions made by the prosecutor in

closing argument. See id. at 1441.

Notwithstanding the compelling authority discussed above, the state argues

on appeal that no constitutional violation occurred here, relying heavily on United

States v. Scheffer, 523 U.S. 303 (1998). There the defendant in a court-martial

proceeding sought admission of polygraph results to support his testimony that he

had not knowingly used drugs. The military judge excluded the results in reliance

-36-
upon a military rule of evidence making polygraph evidence inadmissible. The

Supreme Court held that application of the rule did not abridge the defendant’s

right to present a defense. Scheffer is distinguishable in at least one dispositive

respect: it did not involve a capital defendant’s constitutional right to present

mitigating evidence. Indeed the Court there was careful to distinguish its facts

from those in which the exclusion of evidence “has infringed upon a weighty

interest of the accused,” id. at 308, or “implicate[s] a sufficiently weighty interest

of the defendant to raise a constitutional concern under our precedents,” id. at

309.

The Court pointed out that state evidentiary rules “do not abridge an

accused’s right to present a defense so long as they are not ‘arbitrary’ or

‘disproportionate to the purposes they are designed to serve.’” Id. at 308 (citing

Rock). Significantly, the Court specifically distinguished Rock, which involved a

state evidentiary rule that infringed on the right to testify on one’s own behalf;

Chambers, 410 U.S. 284, which involved state evidentiary rules that infringed on

the right to present witnesses in one’s own defense and to confront and cross-

examine the witnesses; and Washington v. Texas, 388 U.S. 14 (1967), which

involved a state evidentiary rule that denied the right to compulsory process for

obtaining favorable witnesses. See id. at 316. After pointing out that “[t]he

exclusions of evidence that we declared unconstitutional in those cases

-37-
significantly undermined fundamental elements of the defendant’s defense,” id.

at 315, the Court upheld the evidentiary rule barring the admission of polygraph

results because as applied in the case before it the rule “did not implicate any

significant interest of the accused,” id. at 316-17, or significantly impair the

defense, id. at 317. 9

Here, the mechanistic application of a per se evidentiary rule operated to

exclude evidence that proceedings against Mr. Paxton in the death of his wife

were dismissed because in the district attorney’s view he had been cleared by a

polygraph examination. Under our view of controlling Supreme Court authority,

this exclusion denied Mr. Paxton his right to present mitigating evidence as a

basis for a sentence less than death. Moreover, in view of the prosecutor’s

mendacious closing argument that Mr. Paxton had failed to refute the state’s

version of his wife’s death, that the reason for the dismissal of charges against

him was unknown, and implying that his daughter had not testified against him

9
The Court also pointed out that unlike the circumstances in Rock,
Washington, and Chambers, the evidentiary rule as applied in Scheffer did not
prevent the defendant from presenting the relevant details of the defense from the
defendant’s prospective. See Scheffer, 523 U.S. at 317. Here, to the contrary,
application of the per se rule barring polygraph results prevented Mr. Paxton from
telling the jury the reason why the prior criminal proceedings had been dismissed,
thus significantly impairing his ability to defend against the death penalty. As we
discuss infra in text, the effect on Mr. Paxton’s defense was exacerbated by Mr.
Macy’s closing argument misrepresenting the circumstances of the dismissal and
inviting the jury to speculate as to the reason.

-38-
out of fear, Mr. Paxton was denied his due process right to explain or deny the

evidence against him. Because Scheffer specifically limited its holding to cases in

which exclusion did not undermine the accused’s defense or implicate other

significant interests, it is inapposite here. We thus conclude that the state court

decision affirming Mr. Paxton’s death penalty despite the exclusion is contrary to

clearly established federal law as determined by the Supreme Court.

C. Prosecutorial Misconduct

Finally, we address directly Mr. Paxton’s claim that Mr. Macy’s closing

argument resulted in constitutional error requiring habeas relief. As we have

mentioned, the state presented copious evidence on the circumstances surrounding

the shooting of Gloria Paxton from which the jury would likely infer that Mr.

Paxton was responsible for her death. In addition, the state successfully

prevented Mr. Paxton from telling the jury that the former district attorney had

dismissed the case upon concluding that Mr. Paxton had been cleared by

polygraph results. In closing argument, Mr. Macy took advantage of Mr. Paxton’s

inability to present the reason for the dismissal, deceitfully telling the jury that

Mr. Paxton had failed to avail himself of the opportunity to counter the state’s

case and inviting the jury to draw an adverse inference from that failure.

I’ll tell you what, ladies and gentlemen, he had the same opportunity
to put evidence on that witness stand about that killing that we did. .

-39-
 . . [I]f the defense had any evidence to show that that crime didn’t
happen exactly the way that our witnesses told you it did he could
have put a witness on the witness stand. You didn’t hear from
anybody.

Trial Tr., Rec., vol. VI, at 1392.

Mr. Macy then invited the jury to speculate on the reasons for the dismissal,

implying that it was somehow improper or that it was because Pamela was afraid

or reluctant to testify against her father:

Andy Coats [the former district attorney] didn’t dismiss that
case. The Assistant District Attorney did named Robert Mildfelt
dismissed it. We have no . . . way of knowing whether Mr. Coats
even knew about it or not. And there could be a lot of reasons as to
why it wasn’t – one of them may have been the fact that Pam Paxton
wouldn’t talk about it and she was the only eyewitness that witnessed
it and who knows. We don’t know why it was dismissed.

Id.

The state court held that the above comments did not deny Mr. Paxton his

constitutional right to a fair sentencing proceeding, without acknowledging the

fact that the comments contained material misrepresentations designed to mislead

the jury. Instead, the state appellate court held that the reference to Mr. Paxton’s

failure to present evidence rebutting the state’s version of events was “a

legitimate matter for comment during the State’s argument.” Paxton, 867 P.2d at

1330. The court likewise had no problem with Mr. Macy’s statement on the

reason for the dismissal, stating that “comments that ‘we don’t know why it (the

-40-
prior murder charge) was dismissed’ were properly based upon the record as no

evidence concerning the basis for the dismissal was introduced.” Id.

The federal district court considered Mr. Macy’s remarks in combination

with the erroneous exclusion of the evidence that the state had dismissed the

criminal proceedings on the basis of polygraph results and the erroneous

admission of Pamela’s hearsay statements. After holding that the exclusion of the

polygraph evidence was constitutional error, the district court stated that

the prosecution made the results to the polygraph test relevant by
stating [the state] did not know why the prior charge had been
dismissed and by speculating that the lack of witness testimony was
based upon the daughter’s fear. Although the jury was notified that
the prior charge was dismissed by the State, it was simultaneously
asked to be suspicious of the reason for the dismissal. This argument
by the prosecution misrepresented the facts and made rebuttal
necessary, but unavailable.

Rec., vol. I, doc. 29 at 36-37 (citations omitted). The district court determined

that Mr. Macy’s argument in this regard struck a foul blow and constituted

prosecutorial misconduct.

The district court then determined that the admission of Pamela’s hearsay

statement was improper and prejudicial because it “had a substantial and injurious

[e]ffect on the jury’s determination whether [Mr. Paxton] was a continuing threat

to society. More specifically, the prosecutor’s speculation during closing

argument that the charge was dismissed because Ms. Paxton was afraid to testify

-41-
against her father made the admission of her testimony highly prejudicial.” Id. at

41.

On appeal, the state contends that in characterizing Mr. Macy’s comments as

prosecutorial misconduct, the federal district court failed to give deference to the

state court’s determination that the challenged remarks were proper comments on

the evidence. The state also argues that the remarks were in fact not improper, and

that they did not deprive Mr. Paxton of a fundamentally fair sentencing hearing in

any event. These arguments misstate the inquiry and border on the specious.

We begin by rejecting summarily the state’s invitation to parse the

prosecutor’s argument word by word in a vacuum and justify it on the ground that

there was in fact no evidence in the record as to why the charge had been

dismissed. The argument was clearly meant to be understood as inviting the jury to

infer that Mr. Paxton had no evidence to rebut the state’s assertion that he killed

his wife and to speculate at Mr. Paxton’s expense on the reasons for dismissal.

While it may be true that Mr. Macy could not have commented on facts not in the

record, rather than saying nothing he chose to misrepresent the reason for the

absence of those facts.

We also disagree with the state’s contention that the appropriate inquiry is

whether the prosecutor’s argument denied Mr. Paxton his right to a fundamentally

fair sentencing proceeding under the analysis of prosecutorial misconduct set forth

-42-
in Darden v. Wainwright, 477 U.S. 168 (1986). “When specific guarantees of the

Bill of Rights are involved, [the Supreme Court] has taken special care to assure

that prosecutorial conduct in no way impermissibly infringes them.” Donnelly v.

DeChristoforo, 416 U.S. 637, 643 (1974). Accordingly, this court has drawn an

important distinction between an ordinary claim of prosecutorial misconduct, which

warrants habeas relief only when the entire proceeding is rendered fundamentally

unfair, and a claim that the misconduct effectively deprived the defendant of a

specific constitutional right, which may be the basis for habeas relief without proof

that the entire proceeding was unfair. See Mahorney v. Wallman, 917 F.2d 469,

472 (10th Cir. 1990); see also Brecheen v. Reynolds, 41 F.3d 1343, 1355 (10th Cir.

1994); Yarrington v. Davies, 992 F.2d 1077, 1079-80 (10th Cir. 1993).

We agree with the district court that the misconduct which undisputedly

occurred here was an integral part of the deprivation of Mr. Paxton’s constitutional

rights to present mitigating evidence, to rebut evidence and argument used against

him, and to confront and cross-examine the state’s witnesses. Because Mr. Macy’s

remarks infringed upon specific constitutional rights, Mr. Paxton may establish his

entitlement to habeas relief without showing that the comments rendered his

sentencing fundamentally unfair. 10

We also note the Court in Darden indicated that prosecutorial misconduct
10

may be grounds for habeas relief when it “manipulate[s] or misstate[s] the
(continued...)

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 We further conclude that Mr. Macy’s comments had a substantial prejudicial

effect on those rights by implying to the jury that Mr. Paxton had no evidence in

mitigation, that the reason for the dismissal of the charges was suspect, and that his

daughter was afraid to testify against him. These remarks cannot be characterized

as an invited response, nor did the defense have any means for effectively rebutting

them. See Darden, 477 U.S. at 182. We thus have no doubt that Mr. Macy’s

conduct crossed the line between a hard blow and a foul one, consequently giving

rise to a valid constitutional claim.

We are mindful that we may not grant habeas relief on this claim unless the

state court’s ruling was contrary to or involved an unreasonable application of

clearly established Supreme Court authority, or was based on an unreasonable

determination of the facts in light of the evidence presented at trial. See 28 U.S.C.

§ 2254(d). In our view, both grounds of the AEDPA compel us to conclude that the

state court’s resolution of this claim is not entitled to deference. First, in

considering whether the closing argument denied Mr. Paxton fundamental fairness,

the state appellate court did not assess the remarks under the appropriate

constitutional standard; indeed, the state court simply did not refer to controlling

10
(...continued)
evidence,” as well as when it “implicate[s] other specific rights of the accused
such as the right to counsel or the right to remain silent.” 477 U.S. at 182. Fairly
read in context, Mr. Macy’s statements fall squarely within the category of
misstatement and manipulation condemned by the Court in Darden.

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Supreme Court authority for guidance either directly or indirectly. In our view that

authority compels the conclusion that the argument here prejudicially infringed on

Mr. Paxton’s constitutional rights. Second, in upholding the statements as properly

based on the record, the state court disregarded the fact that the statements

deliberately misrepresented the reason for the record’s condition. We thus

conclude that the state court ruling was both contrary to governing Supreme Court

authority and based on an unreasonable view of the state court proceedings.

In sum, we hold that Mr. Paxton was denied his right to confront the

witnesses against him, his right to present mitigating evidence in support of a

sentence less than death, and his due process rights to explain or deny the evidence

against him. We further hold that the prosecutorial misconduct at issue was an

integral and prejudicial part of that denial. We therefore turn to the propriety of

the remedy ordered by the district court.

VI. Habeas Remedy

The state sought the death penalty on the basis of three aggravating

circumstances, asserting Mr. Paxton had been convicted of a prior violent felony,

had knowingly created a great risk of death to more than one person, and would

constitute a continuing threat to society. As support for its claim that Mr. Paxton

would pose a continuing threat to society, the state introduced evidence concerning

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the shooting death of his wife that generated the constitutional errors described

above. The federal district court ruled that these errors had a substantial and

injurious effect on the jury’s determination that this aggravating factor supported

imposition of the death penalty and granted a conditional writ requiring the state to

hold a new sentencing hearing.

The state moved to alter or amend the judgment, contending the district court

erred in ordering a new sentencing proceeding rather than reweighing the remaining

aggravating and the mitigating evidence or allowing the state appellate court to do

so. The district court denied the motion, observing that it had not struck down the

aggravator itself as invalid but had only found constitutional error in the

presentation of evidence to support it. Accordingly, the court pointed out that its

ruling did not preclude the state from again relying on the continuing threat

aggravator at resentencing so long as it did so in a constitutional manner.

On appeal, the state has apparently decided to forego the opportunity

provided by the district court to pursue resentencing on the basis of all three

aggravating circumstances. Instead, the state argues that the district court erred in

failing to preface its grant of habeas relief with a harmless error analysis to

determine whether the errors with respect to the continuing threat aggravator had a

substantial and injurious effect not only on the jury’s consideration of that

aggravator, but on the outcome of the sentencing proceeding as a whole. The state

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also argues that the district court failed to follow state law, which provides that the

state appellate court may conduct a reweighing when an aggravating factor has

been struck down. See, e.g., Stouffer v. State, 742 P.2d 562 (Okla. Crim. App.

1987). Although these arguments are interrelated, they appear to make two

separate assertions: habeas relief is not warranted because any constitutional errors

were harmless; and if relief is warranted, the district court abused its discretion in

formulating that relief.

In arguing on appeal that the district court erred in awarding habeas relief

without first performing a harmless error analysis, the state does not address the

effect of the district court’s ruling that the prosecutorial misconduct here

prejudiced specific constitutional rights, or Mr. Paxton’s argument on appeal that

he therefore need not demonstrate the entire proceeding was rendered unfair to be

entitled to habeas relief. Assuming that habeas relief is nonetheless only

appropriate when grave doubt exists as to whether the errors had a substantial and

injurious effect on the sentencing proceeding as a whole, see O’Neal v. McAninch,

513 U.S. 432, 435-36 (1995), we harbor such a doubt.

The record reflects that the circumstances surrounding the shooting of Mrs.

Paxton were the primary focus of the state’s argument and evidence at sentencing.

Indeed the proceedings can fairly be characterized as effectively putting Mr. Paxton

on trial in that death. The prejudicial nature of the improperly admitted hearsay of

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Mr. Paxton’s daughter, the significance of the improperly excluded state court

order dismissing the case against Mr. Paxton, and the aggravating role played by

the prosecutorial misconduct together so permeated the proceedings that we cannot

separate the effect they had on the jury’s finding of the continuing threat

aggravator from its decision to impose the death penalty. Because we have grave

doubt as to whether the constitutional errors had a substantial and injurious effect

on the sentencing jury, habeas relief is appropriate.

We next turn to the state’s argument that in formulating habeas relief, the

district court abused its discretion by requiring a new sentencing proceeding rather

than reweighing evidence or allowing the state appellate court to do so. “In issuing

a writ of habeas corpus, a federal court has the power and authority to dispose of

habeas corpus matters ‘as law and justice require.’” Burton v. Johnson, 975 F.2d

690, 693 (10th Cir. 1992) (quoting 28 U.S.C. § 2243). “The statute vests the

federal courts with ‘the largest power to control and direct the form of judgment to

be entered in cases brought . . . on habeas corpus.’” Capps v. Sullivan, 13 F.3d

350, 352 (10th Cir. 1993) (quoting Hilton v. Braunskill, 481 U.S. 770, 775 (1987)).

See also Carafas v. LaVallee, 391 U.S. 234, 239 (1968) (habeas statute’s mandate

is broad with respect to relief that may be granted); Osborn v. Shillinger, 861 F.2d

612, 630 (10th Cir. 1988).

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 The district court did not rule that the continuing threat aggravator was itself

invalid, but rather determined that the state had not presented it to the jury in a

constitutional manner. The state indicates that it does not wish to pursue that

aggravator, and instead argues that either this court or the district court should

reweigh the remaining aggravating circumstances against the mitigating evidence,

or allow the state court to do so. This argument misperceives the nature of the

constitutional errors requiring redress.

The continuing threat aggravator was featured prominently in the state’s case

at sentencing. Given the magnitude of the constitutional errors arising from the

presentation of that aggravator, the prejudicial nature of the evidence improperly

excluded and admitted, and the nature of the prosecutorial misconduct that

occurred, we are not confident that the resulting prejudice can be neatly excised

from the sentencing process. See, e.g., Stout v. State, 817 P.2d 737, 739 (Okla.

Crim. App. 1991) (remanding for new sentencing hearing in capital case).

Moreover, unlike the reweighing cases cited by the state, the sentencing

process here was rendered unreliable not because the jury weighed an invalid or

unsupported aggravating circumstance, but because in reaching its result the jury

was denied consideration of relevant mitigating evidence, see Skipper, 476 U.S. at

8 (remanding for new sentencing proceeding at which petitioner could present

previously excluded mitigating evidence), and was exposed to prejudicial evidence

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and argument, see Gardner, 430 U.S. at 362 (remanding for new sentencing hearing

when appellate review “could not fully correct” error in denying petitioner

opportunity to rebut evidence and argument used against him). 11 Under these

circumstances, reweighing does not address the nature of the constitutional

violations or fully correct the errors. See id. Accordingly, we affirm the district

court’s ruling that Mr. Paxton be given a new sentencing proceeding.

AFFIRMED.

11
Indeed, in holding that reweighing was appropriate after invalidating an
aggravating circumstance, the court in Stouffer v. State, 742 P.2d 562 (Okla.
Crim. App. 1987), “note[d] specially that the jury, in evaluating the existence of
[the invalid] aggravating circumstance, was not presented with any
constitutionally infirm or otherwise improper evidence,” id. at 564 (citing Zant v.
Stephens, 462 U.S. 862 (1983), and Barclay v. Florida, 463 U.S. 939 (1983)).

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