Jones v. Gibson

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
FEB 15 2000
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT

DORSIE LESLIE JONES, JR.,

Petitioner-Appellant,

v. No. 98-6370

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

Respondents-Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
(D.C. No. CIV-85-2789-T)

Vicki Ruth Adams Werneke, Assistant Federal Public Defender, Death Penalty
Federal Habeas Corpus Division, Oklahoma City, Oklahoma, for
Petitioner-Appellant.

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 Respondents-Appellees.

Before TACHA , BALDOCK , and EBEL , Circuit Judges.

TACHA , Circuit Judge.
 A jury found petitioner guilty of first degree murder and two counts of

assault and battery with a dangerous weapon and sentenced him to death for the

murder conviction and to twenty and fifteen years’ imprisonment for the other two

convictions. The Oklahoma Court of Criminal Appeals affirmed the convictions

and sentences. See Jones v. State , 648 P.2d 1251 (Okla. Crim. App. 1982), cert.

denied , 459 U.S. 1155 (1983). That court also affirmed the state trial court’s

denial of petitioner’s first application for post-conviction relief. See Jones v.

State , 704 P.2d 1138 (Okla. Crim. App. 1985).

On November 18, 1985, petitioner filed a petition for writ of habeas corpus

in federal district court. After directing petitioner to exhaust state court remedies

on various claims, the district court administratively closed the case without

prejudice to reopening. Petitioner filed a second state application for

post-conviction relief. The state trial court denied relief, and the Oklahoma Court

of Criminal Appeals affirmed, see Jones v. State , No. PC-91-0756 (Okla. Crim.

App. Mar. 28, 1995) (unpublished order). Thereafter, petitioner filed a revised

federal habeas petition, and the district court reopened the case. The court denied

habeas relief and granted a certificate of probable cause.

On appeal, petitioner asserts the following grounds for relief: (1) there is

insufficient evidence in the record to support the unconstitutionally applied

-2-
heinous, atrocious, or cruel aggravating circumstance; (2) his right to remain

silent and his right to confrontation were violated; (3) the prosecutor improperly

questioned him, leading the jury to believe he would be released if found not

guilty by reason of insanity; and (4) his appellate counsel provided ineffective

assistance. We affirm.

STANDARD OF REVIEW

Because petitioner filed his initial federal habeas petition long before the

effective date of the Antiterrorism and Effective Death Penalty Act of 1996

(AEDPA), AEDPA does not apply to this appeal. See Lindh v. Murphy , 521 U.S.

320, 322-23 (1997). Under pre-AEDPA law, this court affords a presumption of

correctness to state court factual determinations. See Williamson v. Ward ,

110 F.3d 1508, 1513 & n.7 (10th Cir. 1997); see also Demosthenes v. Baal ,

495 U.S. 731, 735 (1990) (per curiam) (holding federal courts may overturn state

court factual determinations only upon concluding they are not fairly supported by

record). This court reviews the district court’s conclusions of law de novo and its

factual findings for clear error. See Foster v. Ward , 182 F.3d 1177, 1183 (10th

Cir. 1999) . “When the district court’s findings are based merely on a review of

the state record, we do not give them the benefit of the clearly erroneous standard

but instead conduct an independent review.” Smallwood v. Gibson , 191 F.3d

1257, 1264 n.1 (10th Cir. 1999). “We may grant relief to a state prisoner only if

-3-
state court error deprived him of fundamental rights guaranteed by the

constitution of the United States.” Brown v. Shanks , 185 F.3d 1122, 1124 (10th

Cir. 1999) (quotations omitted).

FACTS

On August 14, 1979, petitioner was drinking beer with Betty Strain at the

Wichita Lounge in Lawton, Oklahoma. Royce Linker, who worked at the bar,

noticed a gun protruding from the top of petitioner’s boot. She asked him to

cover the gun with his pant leg. Petitioner told her to shut up or he would blow

her head off. See Tr. vol. 2 at 402. He also stated that he came to kill everyone

in the bar, and she would be first. See id. at 428, 432-33, 498. Immediately

thereafter, petitioner pointed the gun at Ms. Linker, who ducked and crawled

behind the bar to hide. Petitioner fired the gun, and the bullet hit Ms. Strain,

who fled from the bar. See id. at 404.

Petitioner then turned to Stanley Buck, Sr. and his son Stanley Buck, Jr.

and asked them what they were doing. See id. at 500. They indicated that they

were shooting pool. Petitioner shot both of them. 1
See id. at 440, 502-03.

1
There is inconsistency between the testimony of Mr. Buck, Jr. and
Ms. Linker regarding who was shot first. Like the federal district court, we
assume Mr. Buck, Sr. was shot first.

-4-
Petitioner asked Mr. Buck, Sr., after the first shot, if he was dead and then shot

him again. He died as a result of the gunshot wounds.

Petitioner testified at trial that on the day of the murder he had probably

taken the prescription drug Ativan and had drunk two shots of whiskey and one

beer. His defense was that the interaction of the drug and alcohol rendered him

unconscious of his acts and therefore temporarily insane. He testified that he did

not know if he had done the things about which the other witnesses had testified.

See id. at 647.

The jury rejected petitioner’s insanity defense and found him guilty of

murder. At the sentencing stage, the jury found two aggravating circumstances:

the murder was especially heinous, atrocious, or cruel and petitioner knowingly

created a great risk of death to more than one person.

DISCUSSION

I. HEINOUS, ATROCIOUS, OR CRUEL AGGRAVATOR

Petitioner argues there is insufficient evidence to support the

unconstitutionally applied heinous, atrocious, or cruel aggravating circumstance.

The trial court instructed the jury as follows:

You are further instructed that the term “heinous”, as that term
is used in these instructions means extremely wicked or shockingly
evil, and that “atrocious” means outrageously wicked and vile; and
“cruel” means designed to inflict a high degree of pain, utter
indifference to, or enjoyment of, the suffering of others; pitiless.

-5-
O.R. at 173. After petitioner’s conviction, the Supreme Court held that this

instruction was unconstitutional as applied. See Maynard v. Cartwright , 486 U.S.

356, 360 (1988); see also Cartwright v. Maynard , 822 F.2d 1477, 1485-91 (10th

Cir. 1987). Subsequently, the Oklahoma Court of Criminal Appeals narrowed the

aggravator, holding that it only applies to those murders which are preceded by

torture or serious physical abuse. See Stouffer v. State , 742 P.2d 562, 563 (Okla.

Crim. App. 1987); see also Phillips v. State , 989 P.2d 1017, 1039 (Okla. Crim.

App. 1999). This narrowed construction is constitutionally permissible. See

Duvall v. Reynolds , 139 F.3d 768, 792-93 (10th Cir.), cert. denied , 119 S. Ct. 345

(1998).

The Oklahoma Court of Criminal Appeals, in reviewing the denial of

petitioner’s second post-conviction application, properly applied this narrowed

construction. See Walton v. Arizona , 497 U.S. 639, 653-54 (1990) (holding state

appellate court may properly determine whether evidence supports a properly

limited aggravator); see also Richmond v. Lewis , 506 U.S. 40, 47 (1992) (stating

state appellate court can rely on adequate narrowing construction in curing error

caused by unconstitutionally vague aggravating factor); Davis v. Executive Dir. of

Dep’t of Corrections , 100 F.3d 750, 767, 772 (10th Cir. 1996) (determining state

court may properly cure error by correctly applying narrowed construction).

Reweighing the evidence under the narrowed construction, the Oklahoma

-6-
appellate court determined the murder was especially heinous, atrocious, or cruel.

The court stated petitioner “was wholly indifferent to the pain inflicted upon the

victim” and “‘[t]he unarmed victim lay wounded and pleaded for his life, yet the

[petitioner] coldly and deliberately shot him at point blank range and then

continued to mock the victim as he bled to death.’” Jones , No. PC-91-0756, slip

op. at 4 (quoting Jones , 648 P.2d at 1259). The court concluded the deceased was

tortured and knew death was “eminent.” Id. On habeas, the federal district court

concluded there was sufficient evidence in the record to support finding this

aggravator under a narrowed construction of the instruction, even though no

evidence in the record supported the Oklahoma Court of Criminal Appeals’

finding the victim pleaded for his life.

Petitioner argues the evidence does not support the Oklahoma Court of

Criminal Appeals’ determination that the murder was especially heinous,

atrocious, or cruel, because no evidence supports that court’s finding “[t]he

unarmed victim lay wounded and pleaded for his life.” Id. On federal habeas

review of the state appellate court’s determinations, this court reviews the state

court’s application of the narrowed construction under the “rational factfinder”

standard of Jackson v. Virginia , 443 U.S. 307 (1979). See Davis , 100 F.3d at

767-68 (citing Richmond , 506 U.S. at 47); see also Lewis v. Jeffers , 497 U.S. 764,

-7-
783 (1990). 2
We will uphold the state appellate court’s determination “so long as

a rational factfinder could have found the elements identified by the

construction–here that the crime involved torture or physical abuse.” Hatch v.

Oklahoma , 58 F.3d 1447, 1469 (10th Cir. 1995). A challenge to the sufficiency

of the evidence under Jackson presents a question of law. See Moore v. Gibson ,

195 F.3d 1152, 1176 (10th Cir. 1999).

Under Oklahoma law, the torture or serious physical abuse required by the

properly narrowed aggravator may include infliction of great physical anguish or

2
Before arguing insufficiency of the evidence, petitioner complains the
Oklahoma Court of Criminal Appeals did not conduct a proper reweighing
because it neither reweighed the valid aggravating circumstances against the
mitigating evidence nor determined if the effect of the invalid aggravator was
harmless beyond a reasonable doubt as required by Clemons v. Mississippi ,
494 U.S. 738 (1990). Instead, according to petitioner, the court reweighed using
a sufficiency of the evidence test, a test not approved by any court. Petitioner
also maintains the federal district court made these same mistakes. As
respondents properly point out, Clemons provides for reweighing of the remaining
valid aggravators and mitigators or harmless error analysis when an aggravator
has been invalidated or improperly defined, and, thus, eliminated from
consideration. See id. at 741, 745. Here, the Oklahoma Court of Criminal
Appeals recognized the heinous, atrocious, or cruel aggravator was improperly
defined, and cured the error by properly narrowing the aggravator and
determining whether the evidence supported a finding of that aggravator as
properly narrowed. See Richmond , 506 U.S. at 47. Thus, on federal habeas
corpus review, the issue is whether the Oklahoma Court of Criminal Appeals
correctly determined a “rational factfinder” could find sufficient evidence to
support the constitutionally narrowed aggravator. See id. (quotation omitted);
Walton , 497 U.S. at 653-54. If the evidence supports the properly narrowed
aggravator, Clemons reweighing or harmless error analysis would serve no
function and thus is not needed.

-8-
extreme mental cruelty. See Phillips , 989 P.2d at 1039; Cheney v. State , 909 P.2d

74, 80 (Okla. Crim. App. 1995). Conscious physical suffering of the victim must

occur before death and any extreme mental distress must result from the

petitioner’s intentional acts. See Cheney , 909 P.2d at 80.

Any mental torture must produce mental anguish in addition to that which

necessarily accompanies the underlying killing. See id. The analysis focuses on

the acts of the petitioner and the level of tension created. See Martinez v. State ,

984 P.2d 813, 830 (Okla. Crim. App. 1999); Cheney , 909 P.2d at 80 . Oklahoma

law, however, is unclear as to the length of time a victim must be terrorized

before there is mental torture. Compare Turrentine v. Oklahoma , 965 P.2d 955,

976 (Okla. Crim. App. 1998) (“The length of time which the victim suffers mental

anguish is irrelevant.”) (further quotation omitted), and Berget v. State , 824 P.2d

364, 373 (Okla. Crim. App. 1991) (same), with Washington v. State , 989 P.2d

960, 975 (Okla. Crim. App. 1999) (“The mental torture element is confined to

cases in which the victim is terrorized for a significant period of time before

death.”) (further quotation omitted), Turrentine , 965 P.2d at 976 (same), and

Cheney , 909 P.2d at 81 (same). There is no mental anguish, however, when death

probably occurs instantaneously. See Booker v. State , 851 P.2d 544, 548 (Okla.

Crim. App. 1993). Evidence that the victim was conscious and aware of the

attack supports a finding of torture. See Le v. State , 947 P.2d 535, 550 (Okla.

-9-
Crim. App. 1997); see also Hooks v. Ward , 184 F.3d 1206, 1240 (10th Cir. 1999)

(noting Oklahoma law requires murder victim to be conscious during at least part

of attack); Spears v. State , 900 P.2d 431, 443 (Okla. Crim. App. 1995)

(“conscious[ness] . . . is the critical inquiry in determining whether a murder was

especially heinous, atrocious or cruel”); Neill v. State , 896 P.2d 537, 556 (Okla.

Crim. App. 1994) (permitting finding of aggravator when mental torment occurred

before shooting).

We agree with both petitioner and the federal district court that the record

does not support the Oklahoma Court of Criminal Appeals’ finding that petitioner

pleaded for his life. Nonetheless, we conclude the evidence is sufficient to

support a finding of torture or extreme mental cruelty under the properly

narrowed aggravator. Several factors indicate mental cruelty.

First, petitioner threatened to kill everyone in the bar. We can assume

Mr. Buck, Sr., heard petitioner’s threat. Petitioner raised his voice when making

the threat. See Tr. vol. 2, at 430. Mr. Buck, Jr., testified to hearing petitioner

arguing with Ms. Linker about the gun protruding from the boot. See id. at 495,

498. Mr. Buck, Sr. presumably witnessed the shooting of Ms. Strain. Cf. Neill ,

896 P.2d at 556 (finding extreme mental anguish where victims heard co-workers

savagely murdered and realized they could be next). According to Mr. Buck, Jr.

his father “looked awful scared” as petitioner put the gun to his father’s head and

-10-
neck and pushed him toward the back of the bar. Tr. vol. 2 at 500-03. At this

time, Mr. Buck, Sr. probably was anticipating, with some uncertainty, harm or

death to both his son and to himself. See Neill , 896 P.2d at 556 (“Mental anguish

includes the victim’s uncertainty as to his ultimate fate.”); cf. Turrentine ,

965 P.2d at 977 (finding evidence insufficient to support mental torture element,

but noting, in dicta, “[h]aving her mother killed in front of her, and possibly her

brother and then waiting her turn, seems sufficient to warrant a finding of mental

torture”).

Also, petitioner shot Mr. Buck, Sr. without provocation. Cf. Phillips , 989

P.2d at 1040 (considering unprovoked manner of killing as factor in finding

aggravator); Berget , 824 P.2d at 374 (same). Furthermore, between the first and

second bullets, petitioner mocked and taunted Mr. Buck, Sr. As Mr. Buck, Sr. lay

on the ground making sounds, 3
petitioner said “[a]ren’t you dead? You’re dead”

and shot Mr. Buck, Sr. again. Tr. vol. 2 at 440; cf. Phillips , 989 P.2d at 1040

(considering killer’s attitude as evidenced by taunts and verbal threats as factors

in finding aggravator).

3
It is possible the Oklahoma Court of Criminal Appeals construed these
noises as Mr. Buck, Sr.’s plea for his life. Nonetheless, the evidence does not
support this. See Tr. vol. 2 at 568 (testimony that after first shot Mr. Buck, Sr.
was gasping for breath and “blood and stuff” came out of his mouth); see also id.
at 617 (testimony of medical examiner that if victim was trying to get air he
would have made noises).

-11-
 We recognize that Mr. Buck, Sr. probably lost consciousness thirty seconds

to two minutes after the first gunshot. See Tr. vol. 2 at 614-15. In so

recognizing, we do not intend to suggest that anything other than instantaneous

death constitutes torture sufficient to prove this aggravator. Cf. McCarty v. State ,

977 P.2d 1116, 1134 (Okla. Crim. App. 1998) (finding death was not

instantaneous). This is not a case where the victim was rendered unconscious

prior to any physical injury or mental torture. The manner of killing involved

cruelty beyond the act of the killing itself due to the threats and taunts and

Mr. Buck, Sr.’s reasonable fear of harm to himself and to his son. Thus, we do

not need to “engage in pure speculation and guesswork” to conclude Mr. Buck,

Sr. experienced conscious mental torture before death. Perry v. State , 893 P.2d

521, 535 (Okla. Crim. App. 1995).

Considering the unprovoked killing of Mr. Buck, Sr., the likelihood that he

suffered both mental torture before the first shot and between the two shots,

petitioner’s attitude as evidenced by his taunts and verbal threats, and the pitiless

nature of the shootings, we conclude there was sufficient evidence to support the

heinous, atrocious, or cruel aggravator.

Petitioner believes the Oklahoma Court of Criminal Appeals did not have

the trial records when it performed its review of the properly narrowed

aggravator. The federal district court noted that it did not appear that the

-12-
Oklahoma appellate court had reviewed the trial transcript during its reweighing

and instead had looked only at the facts recited in the direct appeal opinion. This

appears to be correct, upon comparison of the direct appeal opinion, Jones ,

648 P.2d at 1259, and the second post-conviction opinion, Jones ,

No. PC–91-0756, slip op. at 4. Although it is unclear whether the Oklahoma

Court of Criminal Appeals considered the transcript, the court said it reweighed.

While it is preferable for the Oklahoma appellate court to reweigh based on a

fresh review of the record, we cannot say that constitutional error occurs when a

state appellate court reweighs based upon its direct criminal appeal opinion, as

that opinion presumably reflected the record before that court on direct criminal

appeal.

II. VIOLATION OF CONSTITUTIONAL RIGHTS

A. Fifth Amendment Violations

Petitioner argues the prosecutor violated his Fifth Amendment right to

silence by (1) cross-examining petitioner about his refusal to discuss the shooting

incident during his sanity evaluation and (2) presenting the psychiatrist who

examined petitioner to testify regarding his refusal to discuss the incident.

Respondents argue, as they did in the district court, that this claim is procedurally

barred. We agree.

-13-
 Petitioner raised this claim in his first post-conviction application, and the

Oklahoma Court of Criminal Appeals found it to be procedurally defaulted. See

Jones , 704 P.2d at 1140. Petitioner again raised this claim in his first federal

habeas petition and also intertwined it with an ineffective assistance of appellate

counsel claim. The federal district court directed petitioner to exhaust the

ineffective assistance claim. Petitioner, however, failed to raise this claim in the

second state post-conviction application either alone or specifically as part of his

ineffective assistance of appellate counsel claim. In his revised federal habeas

petition, petitioner again argued the claim should be heard on its merits because

appellate counsel was ineffective. The federal district court considered the claim

on the merits for that reason. Respondents, however, urge that this court not

consider the merits of the claim because petitioner has failed to assert in state

court his ineffective assistance of appellate counsel claim. See Murray v.

Carrier , 477 U.S. 478, 489 (1986) (deciding claim of ineffective assistance of

counsel should be presented to state courts as independent claim before it may be

asserted as cause for procedural default).

We conclude the merits of the ineffective assistance of appellate counsel

claim are unexhausted because petitioner did not argue ineffective assistance of

appellate counsel with respect to this claim in his second post-conviction

application. See O’Sullivan v. Boerckel , 526 U.S. 838, 119 S. Ct. 1728, 1731,

-14-
1732 (1999); see also Smallwood , 191 F.3d at 1267 (“Although petitioner raised

an ineffective assistance of counsel claim . . ., he based it on different reasons

than those expressed in his habeas petition[, and therefore] failed to exhaust his

ineffective assistance of counsel claim[].”); Demarest v. Price , 130 F.3d 922,

938-39 (10th Cir. 1997) (finding ineffective assistance claim unexhausted when

petitioner made general allegations in state court and specific allegations in

federal habeas petition). The state courts, however, would now find this

unexhausted claim procedurally barred on independent and adequate state

grounds. See Smallwood , 191 F.3d at 1267 (citing Coleman v. Thompson ,

501 U.S. 722, 735 n.* (1991)). This court, therefore, will consider this

procedurally defaulted claim only if petitioner can show cause for his default and

resulting prejudice or a fundamental miscarriage of justice if the federal courts

fail to consider the claim. See English v. Cody , 146 F.3d 1257, 1259 (10th Cir.

1998) (citing Coleman , 501 U.S. at 749-50).

Petitioner cannot show cause. He presents no reason for failing to raise

this ineffective assistance of appellate counsel claim in his second post-conviction

application, despite being directed to do so by the district court, and despite the

Oklahoma Court of Criminal Appeals’ consideration of other claims of ineffective

-15-
assistance of appellate counsel raised for the first time in that application. 4
Also,

this court’s failure to review this claim will not result in a fundamental

miscarriage of justice, because petitioner cannot show actual innocence in light of

his admitting the shootings. See Smallwood , 191 F.3d at 1269. Accordingly, we

conclude this claim is procedurally barred.

B. Right to Confront State’s Witness

Petitioner argues he should have been allowed to cross-examine Ms. Linker

about criminal charges pending against her, her mental health history, and her

relationship with the decedent in order to show her bias. On the morning of the

first day of trial, the trial court granted the State’s motion in limine preventing

petitioner from questioning Ms. Linker about (1) charges pending against her for

DUI, feloniously carrying a firearm after former conviction of a felony, and

burglary; (2) her mental health history, other than her mental capacity at the time

of the shootings; and (3) a previous sexual relationship with Mr. Buck, Sr. See

Tr. vol. 1 at 1-9. At that time, counsel objected. He indicated that the pending

charges were relevant because they suggested the district attorney had made a

4
Petitioner argues that respondents did not file a cross-appeal and therefore
any procedural bar argument has been waived. This court has never required a
respondent to file a cross-appeal in order to continue to assert that a claim is
procedurally barred. Rather, this court has even held that it may consider
procedural bar sua sponte. See Hatch , 58 F.3d at 1453.

-16-
promise of leniency to Ms. Linker. See id. At trial, during cross-examination of

Ms. Linker, petitioner’s counsel asked her if she had ever carried a firearm and if

she had carried one on the night of the murder. She asserted her Fifth

Amendment right against self-incrimination to the first question and answered

“no” to the second. See id. vol. 2 at 468-69. Counsel did not ask Ms. Linker

about any pending criminal charges or contest the ruling on the motion in limine

regarding these charges. Counsel attempted to ask Ms. Linker about her previous

mental history. The State objected, and the trial court reminded counsel about the

motion in limine. See id. at 470. Although Ms. Linker testified she had dated

Mr. Buck, Sr., counsel did not ask her about the nature of her relationship with

him. See id. at 490.

1. Procedural Bar/Waiver

Respondents argue this claim is procedurally barred. Petitioner first raised

this claim in his first state post-conviction application. The Oklahoma Court of

Criminal Appeals found it to be barred. See Jones , 704 P.2d at 1140. Petitioner

also raised the claim in his second post-conviction application. The Oklahoma

appellate court discussed the merits of the claim under the ineffective assistance

of appellate counsel argument, determining (1) the trial court erred in not

allowing defense counsel to cross-examine Ms. Linker on the pending charges in

order to show her possible bias; (2) counsel failed to preserve the issue during

-17-
cross-examination of Ms. Linker; and (3) any error in not allowing petitioner to

impeach Ms. Linker was harmless because her testimony was cumulative to

Mr. Buck, Jr.’s testimony. See Jones , No. PC-91-0756, slip op. at 6-7.

On federal habeas corpus review, the district court concluded that (1) any

error concerning pending charges or Ms. Linker’s relationship with Mr. Buck, Sr.

was waived, because counsel should have contested the ruling on the motion in

limine during cross-examination of Ms. Linker; and (2) any error regarding any of

the three areas was harmless because trial counsel effectively and thoroughly

cross-examined Ms. Linker and because the excluded material was not relevant to

petitioner’s defense.

Petitioner did waive any claims with respect to Ms. Linker’s pending

charges and her relationship with the decedent. Under Oklahoma law, a motion in

limine is advisory. See Cheatham v. State , 900 P.2d 414, 427 (Okla. Crim. App.

1995). To preserve an issue, a defendant must make an offer of proof during trial

or attempt to introduce evidence at trial. See Mitchell v. State , 884 P.2d 1186,

1197-98 (Okla. Crim. App. 1994). Petitioner did not make an offer of proof

during trial, and his attempt to introduce evidence was limited to only the mental

health issue.

Despite the waiver, the Oklahoma Court of Criminal Appeals decided this

claim on its merits when it addressed the claim of ineffective assistance of

-18-
appellate counsel raised in the second post-conviction application. Thus, state

procedural bar does not preclude federal habeas review. Cf. Crease v. McKune ,

189 F.3d 1188, 1192 (10th Cir. 1999); Hooks , 184 F.3d at 1215 (citing Ylst v.

Nunnemaker , 501 U.S. 797, 801-03 (1991)).

2. Merits

The Sixth Amendment right to confrontation includes the right to

cross-examination. See Davis v. Alaska , 415 U.S. 308, 315 (1974). “[T]he

exposure of a witness’ motivation in testifying is a proper and important function

of the constitutionally protected right of cross-examination.” Id. at 316-17; see

also Delaware v. Van Arsdall , 475 U.S. 673, 678 (1986). Whether the jury would

have been influenced by any possible bias of Ms. Linker is pure speculation.

Nonetheless, the jury was entitled to have the benefit of a full cross-examination

as to her possible bias in order to determine what weight to give her testimony.

See Davis , 415 U.S. at 317; Alford v. United States , 282 U.S. 687, 693 (1931)

(holding that where witness was in prosecutor’s custody due to pending charges,

petitioner was “entitled to show by cross-examination that his testimony was

affected by fear or favor”); see also Davis , 415 U.S. at 318 n.6 (recognizing

Alford involved federal criminal trial, but noting constitutional dimension of

holding applies to state criminal conviction); Bui v. DiPaolo , 170 F.3d 232,

241-42 (1st Cir. 1999) (stating petitioner’s entitlement to cross-examine witnesses

-19-
“increases in sensitivity in direct proportion to witness’s importance” to state’s

case), petition for cert. filed (U.S. June 14, 1999) (No. 98-9840). Thus, reviewing

de novo, see Hatch , 58 F.3d at 1467, we conclude the trial court improperly

curtailed cross-examination in violation of petitioner’s right to confrontation.

Our analysis does not end here. Harmless error analysis applies to

Confrontation Clause cases. See Van Arsdall, 475 U.S. at 680, 684. When a

federal court considers a Confrontation Clause violation in a habeas proceeding,

the relevant harmless error analysis is “whether, assuming that the damaging

potential of the cross-examination were fully realized, a reviewing court might

nonetheless say that the error,” id. at 684, “had substantial and injurious effect or

influence in determining the jury’s verdict,” Brecht v. Abrahamson , 507 U.S. 619,

623, 637-38 (1993) (quotation omitted). This court’s harmless error review is de

novo. See Tuttle v. Utah , 57 F.3d 879, 884 (10th Cir. 1995).

In reviewing for harmless error, this court examines “the entire record to

determine the error’s possible effect on the jury.” Crespin v. New Mexico ,

144 F.3d 641, 649 (10th Cir.), cert. denied , 119 S. Ct. 378 (1998). Whether an

error is harmless depends on (1) the importance of the witness’s testimony in the

prosecution’s case; (2) whether the testimony was cumulative; (3) the presence or

absence of evidence corroborating or contradicting the testimony of the witness

-20-
on material points; (4) the extent of the actual cross-examination; and (5) the

overall strength of the State’s case. See Van Arsdall , 475 U.S. at 684.

Ms. Linker was an important witness, see Tr. vol. 1 at 6 (both parties

agreed that Ms. Linker was one of two main witnesses), whose testimony was not

merely cumulative. Her testimony and the testimony of the other main witness,

Mr. Buck, Jr., were inconsistent at times. Thus, the first two areas of inquiry

suggest the error was not harmless.

The remaining areas of inquiry, however, suggest the error was harmless.

Defense counsel carefully cross-examined Ms. Linker regarding the events

occurring at the shooting. The jury was able to observe her demeanor and assess

her credibility with respect to her description of these events. As the federal

district court noted, defense counsel pointed out inconsistencies between

petitioner’s testimony at the preliminary hearing and her testimony at trial, and

inconsistencies between her testimony and the testimony of other witnesses in an

attempt to impeach her. Cf. Tapia v. Tansy , 926 F.2d 1554, 1557 (10th Cir. 1991)

(determining defense counsel thoroughly examined witness and impeached him

with prior inconsistent statements). Certainly her credibility could have been

scrutinized more closely if the jury had heard testimony that she hoped for a

favorable disposition of her pending charges. See Wright v. Dallman , 999 F.2d

174, 180 (6th Cir. 1993). Nothing in the record indicates, beyond mere

-21-
speculation, however, that a promise for favorable disposition of pending charges

actually had been made. See Tr. vol. 1 at 2 (defense counsel’s suggestion jury

had right to draw conclusions regarding promises State made or intended to make

where carrying a firearm after former conviction of a felony had not gone to

preliminary hearing in nine months and State had requested two continuances of

that preliminary hearing after petitioner’s preliminary hearing).

Also, the jury had some impeachment evidence before it. The State

presented evidence that Ms. Linker had a previous first degree manslaughter

conviction. See Tr. vol. 2 at 420; see also Davis , 415 U.S. at 316 (determining

evidence of prior criminal conviction is general way to discredit witness).

Ms. Linker testified that she had dated Mr. Buck, Sr. See Tr. vol. 2 at 490.

Finally, the evidence of petitioner’s guilt was strong. By contrast, the

evidence of his insanity was not. Petitioner’s expert witnesses merely testified

that it was reasonable to infer petitioner was temporarily insane and not aware of

what he was doing at the time of the shootings. Other witnesses testified

petitioner was calm and rational. The evidence excluded by the limitation on

cross-examination was not material to the presentation of petitioner’s defense.

Considering the evidence as a whole, we conclude the error in limiting

cross-examination was harmless. It is unlikely the restriction on

cross-examination had a substantial effect or influence on the jury’s verdicts.

-22-
 C. Cumulative Error

Petitioner argues the federal district court erred in failing to consider the

combined effect of the right to confrontation and Fifth Amendment errors after it

found the errors to be harmless individually. Petitioner did not make this

argument in his revised habeas petition. Thus, this court need not consider it.

See Oyler v. Allenbrand , 23 F.3d 292, 299 n.8 (10th Cir. 1994). In any event, this

argument is without merit because petitioner procedurally defaulted his Fifth

Amendment claim and the right to confrontation violation was harmless.

III. PROSECUTORIAL MISCONDUCT

Petitioner asserts the prosecutor violated his right to a fair trial by

questioning him about the consequences if the jury were to find him not guilty by

reason of insanity. Specifically, the prosecutor asked petitioner if he knew that he

would go free if the jury found him temporarily insane. See Tr. vol. 2 at 676-78;

see also id. vol. 3 at 770-71 (prosecutor’s questioning of petitioner’s mental

health expert witness whether petitioner goes free if witness gives insanity

opinion). Petitioner maintains the prosecutor was trying to insert societal alarm

into the jury’s deliberations.

Petitioner first raised this claim in his first application for post-conviction

relief. The Oklahoma Court of Criminal Appeals determined petitioner waived

the claim because he did not raise it on direct appeal. Petitioner also raised this

-23-
claim in his second application for post-conviction relief. The Oklahoma Court

of Criminal Appeals discussed the issue on its merits when considering

ineffective assistance of appellate counsel. The court determined any error was

harmless, pointing to the overwhelming evidence of guilt and the lack of

persuasive evidence concerning the defense of insanity. See Jones ,

No. PC-91-0756, slip op. at 8-9. The federal district court determined the state

trial court erred in allowing these questions, but any error did not violate

petitioner’s constitutional rights.

Allegations of prosecutorial misconduct are mixed questions of law and

fact. See Fero v. Kerby , 39 F.3d 1462, 1473 (10th Cir. 1994). A prosecutor’s

improper remark will require reversal of a state conviction only where the remark

sufficiently infected 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). Inquiry into

the fundamental fairness of a trial can be made only after examining the entire

proceedings. See Donnelly , 416 U.S. at 643. An improper appeal to societal

alarm typically does not amount to a denial of due process. See Brecheen v.

Reynolds , 41 F.3d 1343, 1356 (10th Cir. 1994).

Under Oklahoma law, if a defendant is found guilty by reason of insanity,

he will remain in custody until the court determines that he is not presently

-24-
mentally ill or dangerous to the public peace or safety. See Okla. Stat. tit. 21,

§ 152(4); id. tit. 22, § 1161. Thus, the prosecutor’s questions and comments were

improper under state law. Federal habeas relief is not available for state law

errors, however; rather, it is limited to violations of federal constitutional rights.

See, e.g. , Estelle v. McGuire , 502 U.S. 62, 67-68 (1991). A review of the entire

proceedings does not support petitioner’s argument that the prosecutor’s conduct

so infected the trial with unfairness that the resulting convictions and sentences

were a denial of due process. In light of the strong evidence of guilt, and the

weakness of petitioner’s defense, there is not a reasonable probability that the

outcome would have been different without the alleged misconduct. See

Smallwood, 191 F.3d at 1276; cf. United States ex rel. Alerte v. Lane , 725

F. Supp. 936, 943-44 (N.D. Ill. 1989) (concluding petitioner was denied a fair

trial where prosecutor repeatedly exploited fear petitioner would go free if found

not guilty by reason of insanity, where petitioner’s insanity defense was not based

on temporary insanity, where evidence of sanity was not overwhelming, and

where judge did not intervene or give curative instructions), appeal dismissed ,

898 F.2d 69 (7th Cir. 1990). 5

5
Contrary to petitioner’s suggestion, Munn v. State , 658 P.2d 482, 488
(Okla. Crim. App. 1983), does not establish constitutional error. The court in
Munn vacated the death sentence and remanded for modification of the sentence
to life imprisonment where (1) improper cross-examination by the prosecutor
(continued...)

-25-
IV. INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL

Petitioner argues his appellate counsel was ineffective for failing to raise

the Fifth Amendment and right to confrontation claims. Petitioner’s ineffective

assistance of appellate counsel claim is governed by Strickland v. Washington ,

466 U.S. 668 (1984). To establish constitutionally ineffective assistance of

counsel, petitioner must show both that his counsel’s performance was deficient

and that the deficient performance prejudiced his defense. See id. at 687. “When

considering a claim of ineffective assistance of appellate counsel for failure to

raise an issue, we look to the merits of the omitted issue. If the omitted issue is

without merit, counsel’s failure to raise it does not constitute constitutionally

ineffective assistance of counsel.” Hooks , 184 F.3d at 1221 (quotation and

citation omitted).

As discussed above, the ineffective assistance of appellate counsel claim

with respect to the Fifth Amendment claim is procedurally barred. Because, also

5
(...continued)
inferred that if the defendant was found not guilty by reason of insanity he would
be released from commitment and (2) the death penalty was disproportionate.
The court considered both factors in vacating the death sentence. Also, the court
expressly noted the improper cross-examination was not fundamental error
regarding guilt, but may have affected the sentence. See id.

-26-
as discussed above, there is no merit to the confrontation claim, appellate counsel

was not ineffective. 6

We AFFIRM the district court’s denial of habeas corpus relief.

6
As a last thought, petitioner suggests that his twenty-year incarceration
alone may be violative of the Eighth Amendment. This is the first time petitioner
has made this argument, and this court need not address it. See Oyler , 23 F.3d at
299 n.8. Even if we were to address the claim, we conclude it is without merit
because delays occurred in part due to petitioner’s failure to exhaust state court
remedies. Cf. Stafford v. Ward , 59 F.3d 1025, 1028 (10th Cir. 1995) (concluding
lengthy delays were caused largely by petitioner who sought repeated stays to
pursue legal remedies; recognizing Supreme Court has not endorsed this legal
theory). See generally Knight v. Florida , 120 S. Ct. 459, 459 (1999) (denying
certiorari on similar issue; opinion of Stevens, J., pointing out denial is not ruling
on merits).

-27-