Hale v. Gibson

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
SEP 25 2000
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT

ALVIE JAMES HALE, also known as
Alvin J. Hale,

Petitioner-Appellant,
v.
No. 99-6083
GARY GIBSON, Warden, Oklahoma
State Penitentiary,

Respondent-Appellee.

Appeal from the United States District Court
for the Western District of Oklahoma
(D.C. No. CIV-96-1073-L)

Gloyd L. McCoy, Coyle & McCoy, Oklahoma City, Oklahoma, for Petitioner-
Appellant.

Jennifer B. Miller, Assistant Attorney General (W.A. Drew Edmondson, Attorney
General of Oklahoma, with him on the brief), State of Oklahoma, Oklahoma City,
Oklahoma, for Respondent-Appellee.

Before SEYMOUR, Chief Judge, PORFILIO and EBEL, Circuit Judges.

EBEL, Circuit Judge.

Petitioner Alvie James Hale was tried and convicted by jury in the District

Court of Pottawatomie County, Oklahoma on one count of Murder in the First
Degree and one count of Kidnapping for Extortion. The jury recommended death

for the crime of Murder in the First Degree and life imprisonment for the crime of

Kidnapping for Extortion. After unsuccessful direct and post-conviction appeals

in state court, Mr. Hale filed a petition for writ of habeas corpus pursuant to 28

U.S.C. § 2254. The district court denied the writ. Mr. Hale appeals, and we

AFFIRM.

BACKGROUND

Hale was charged with the murder and kidnapping of William Jeffrey Perry

(“Perry”) of Tecumseh, Oklahoma. Perry’s parents owned and managed a local

bank. When Perry failed to arrive for work Tuesday morning, October 11, 1983,

his sister, Veronica, went to his home to locate him. She found his automobile in

the driveway, the front door to his home open, his clothes laid out for work, and

Perry missing. The only sign of a struggle was an upset alarm clock. At 10:30

a.m. that day, Perry’s mother received the first of a series of telephone calls

concerning her son from an unidentified man. The second call came at 1:30 p.m.

and was received by Perry’s sister who was asked “Where is the money, where is

$350,000?” During each call, the family asked to speak with Perry and were told

that Perry was at a lake cabin and could not be brought to a phone, but that he

would be released after the caller received $350,000 from the family. The family

could not arrange to have the money until the following day.

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 Meanwhile, at approximately 7:00 a.m. on the morning of October 11,

1983, a man identified as Hale came to the bathroom window of the house where

Janet Miller lived. He asked her if he could use a telephone and she told him she

did not have a phone. As the man went back to his white station wagon in her

driveway, a second man dressed only in undershorts yelled for help from an

adjacent field. Hale hurried to the spot where the second man was located, who

was bent over with pain, and pulled him over the fence into the automobile.

The next day, Mrs. Perry received a phone call directing her to go to the

pay phone at a 7-11 store where she would receive further instructions. When

Mrs. Perry reached the 7-11 she received a phone call on the pay phone at the

store that directed her to another 7-11. During this phone call, Mrs. Perry spotted

Hale sitting in a red and white pickup across the street. Mrs. Perry then

proceeded to the second location, where she again received a phone call which

told her where to drop off the ransom money. Mrs. Perry followed the caller’s

instructions and deposited the money at the designated location. While Mrs.

Perry was dropping off the money, she observed Hale’s truck approaching her

location and was able to identify Hale as the driver of the vehicle. After Hale

retrieved the money, F.B.I. agents pursued Hale in a high speed chase through

Oklahoma City. The pursuit ended when Hale’s vehicle finally came to a stop

after he hit a drainage ditch, went airborne, and collided head on with an F.B.I.

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agent’s vehicle. All the money Mrs. Perry had delivered was found in the truck

and Hale was taken into custody at that time.

Hale’s father gave law enforcement officers consent to search his home and

property. During the search, officers found the victim’s body wrapped in a dark

colored trampoline tarp within a metal storage shed, one which fit a trampoline

frame found at Hale’s own home. Perry had been shot a number of times. Also

located at the house was a cream-colored station wagon Hale had used the

morning of October 11th. A blood-stained towel containing a hair identified as

Hale’s was found in the vehicle. In addition, blood was found on the shoulder

harness in the car which was consistent with Perry’s blood. A .38 caliber

revolver was also found in a kitchen cabinet. Two bullets found in Perry’s head

were determined by a ballistics expert to have come from that revolver to the

exclusion of all other weapons.

Hale was found guilty of Murder in the First Degree and Kidnapping for

Extortion. 1 During the second stage of Hale’s trial, the prosecutor sought the

death penalty on the kidnapping as well as the first degree murder charge. The

prosecutor argued three aggravating circumstances for the kidnapping charge 2 and

1
Hale was also convicted in a separate proceeding in federal court of the
charge of Affecting Interstate Commerce by Extortion based upon his action in
this case.
2
The aggravating circumstances for kidnapping included:
(continued...)

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four aggravating circumstances for the murder charge. 3 The jury found two

aggravating circumstances for kidnapping–that it was done for remuneration and

was heinous, atrocious, or cruel–and sentenced Hale to life imprisonment. The

jury found the existence of two aggravators on the murder charge–the murder was

heinous, atrocious, or cruel and the murder was committed to avoid lawful

arrest–and sentenced Hale to death. On March 22, 1984, the trial judge sentenced

Hale in accordance with the jury’s recommendation.

Hale appealed, raising twenty-two propositions of error. The Oklahoma

Court of Criminal Appeals (“OCCA”) affirmed Petitioner’s convictions and

sentences. Hale v. State, 750 P.2d 130 (Okla. Crim. App. 1988) (“Hale I”).

Certiorari review was subsequently denied. Hale v. Oklahoma, 488 U.S. 878, 109

S. Ct. 195, 102 L. Ed. 2d 164 (1988). Hale then pursued post-conviction relief

2
(...continued)
(1) the person committed the Kidnapping for Extortion for
remuneration or the promise of remuneration;
(2) the Kidnapping for Extortion was especially heinous, atrocious,
or cruel;
(3) the existence of a probability that the Defendant would commit
criminal acts of violence that would constitute a continuing threat to society.
3
The aggravating circumstances for murder included:
(1) the person committed the murder for remuneration or the promise
of remuneration;
(2) the murder was especially heinous, atrocious, or cruel;
(3) the murder was committed for the purpose of avoiding or
preventing a lawful arrest or prosecution;
(4) the existence of a probability that the Defendant would commit
criminal acts of violence that would constitute a continuing threat to society.

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which was denied by the District Court of Pottawatomie County following an

evidentiary hearing. Hale appealed to the OCCA raising thirteen grounds for

relief. The OCCA affirmed the trial court’s denial of post-conviction relief,

finding twelve of the allegations waived because they were either raised on direct

appeal or could have been. Hale v. State, 807 P.2d 264 (Okla. Crim. App. 1991)

(“Hale II”). The OCCA denied relief on the final claim. Certiorari review was

again denied. Hale v. Oklahoma, 502 U.S. 902, 112 S. Ct. 280, 116 L. Ed. 2d 231

(1991). On April 28, 1992, Hale filed a second application for post-conviction

relief in the District Court of Pottawatomie County. All relief was denied. On

appeal, the Court of Criminal Appeals again affirmed the denial of post-

conviction relief. Hale v. State, 934 P.2d 1100 (Okla. Crim. App. 1997) (“Hale

III”). Hale then filed a petition for writ of habeas corpus on February 28, 1997 in

the United States District Court for the Western District of Oklahoma, raising

twenty issues. That petition was denied on January 28, 1999 and Hale was

granted a certificate of appealability on all issues.

On appeal, Hale makes the following thirteen claims of constitutional error:

(1) he was (a) denied effective assistance of counsel through a conflict of interest

and (b) denied due process when his counsel’s motion to withdraw from

representation was denied outside of Hale’s presence, (2) he was denied effective

assistance of counsel during the punishment stage of his trial, (3) he was denied

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effective assistance of counsel during voir dire, (4) he was denied effective

assistance of counsel when counsel failed to object to the admission of other

crimes evidence, (5) he was denied effective assistance of counsel during

counsel’s second stage closing remarks, (6) he was denied effective assistance of

counsel during counsel’s first stage closing remarks, (7) he was denied a fair trial

due to an improper instruction to the jury that kidnapping was a death-eligible

offense and denied effective assistance of counsel for his counsel’s failure to

object to the improper jury instruction, (8) he was denied due process because of

the late filing of the Bill of Particulars and denied effective assistance of counsel

when his attorney failed to object to the late filing, (9) his convictions for murder

and kidnapping violated double jeopardy principles, (10) the government

committed a violation of Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10

L. Ed. 2d 215 (1963), (11) he was denied a fair trial due to the trial court’s failure

to grant a change of venue, (12) there was insufficient evidence to support the

aggravator that Hale committed murder to avoid lawful arrest, and (13) there was

insufficient evidence to support the “heinous, atrocious, or cruel” aggravator.

DISCUSSION

A. Standard of Review

When reviewing the denial of a habeas corpus petition, we are
generally subject to two different frameworks of review, depending
upon whether the state courts addressed the merits of the claim for
relief. If the state courts have not heard the claim on its merits, we

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 review the district court’s legal conclusions de novo and its factual
findings, if any, for clear error. If the state courts have addressed the
claim on its merits, we review the state court ruling under the
standard enunciated under 28 U.S.C. § 2254.

Smallwood v. Gibson, 191 F.3d 1257, 1264 (10th Cir. 1999) (footnote and

citation omitted). Because Mr. Hale filed his petition for habeas relief nearly one

year after the effective date of the Antiterrorism and Effective Death Penalty Act

of 1996 (“AEDPA”), AEDPA applies to his petition. See Lindh v. Murphy, 521

U.S. 320, 336, 117 S. Ct. 2059, 138 L. Ed. 2d 481 (1997).

Under AEDPA’s provisions, a federal court is precluded from granting

habeas relief on any claim adjudicated on the merits by the state court, unless the

state proceeding “resulted in a decision that was contrary to, or involved an

unreasonable application of, clearly established Federal law, as determined by the

Supreme Court,” 28 U.S.C. § 2254(d)(1), or “resulted in a decision that was based

on an unreasonable determination of the facts in light of the evidence presented in

the State court proceeding,” 28 U.S.C. § 2254(d)(2). “In addition, we presume

the factual findings of the state court are correct unless petitioner can rebut this

presumption by clear and convincing evidence.” Smallwood, 191 F.3d at 1265

(citing 28 U.S.C. § 2254(e)(1)).

The Supreme Court recently construed the review standard set forth in 28

U.S.C. § 2254(d)(1). See Williams v. Taylor, ___ U.S. ___, 120 S. Ct. 1495, 146

L. Ed. 2d 389 (2000). In order for Hale to secure a writ under section (d)(1) he

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must satisfy one of the following two conditions: “the state-court adjudication

resulted in a decision that (1) ‘was contrary to . . . clearly established Federal law,

as determined by the Supreme Court of the United States,’ or (2) ‘involved an

unreasonable application of . . . clearly established Federal law as, determined by

the Supreme Court of the United States.’” Williams, __ U.S. __, 120 S. Ct. at

1523 (omissions in original).

The Court determined that a state court decision is “contrary to” clearly

established federal law “if the state court arrives at a conclusion opposite to that

reached by this Court on a question of law or if the state court decides a case

differently than this Court has on a set of materially indistinguishable facts.” Id.

A state court decision is an unreasonable application of federal law “if the state

court identifies the correct governing legal principle from this Court’s decision

but unreasonably applies that principle to the facts of the prisoner’s case.” Id.

When a federal habeas court is making an “unreasonable application” inquiry, the

Court stated that it “should ask whether the state court’s application of clearly

established federal law was objectively unreasonable.” Id. at 1521. The Court

stopped short of defining the term “unreasonable” as it is used in AEDPA, but did

note that while it is “difficult to define,” it is “a common term in the legal world

and, accordingly, federal judges are familiar with its meaning.” Id. at 1522. The

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Court was careful to point out, however, that “an unreasonable application of

federal law is different from an incorrect application of federal law.” Id.

We now turn to our review of Mr. Hale’s claims in light of Williams.

I. Ineffective Assistance of Counsel and Related Claims

A. Motion to Withdraw

Hale first argues that he was denied the effective assistance of counsel

because of a conflict of interest. Hale contends that his trial counsel suffered

under a conflict of interest based on trial counsel’s assertions to the court in a

motion to withdraw. Hale’s trial counsel, Mr. Van Wagner, was appointed by the

trial court to represent Hale on November 30, 1983. Van Wagner testified at the

post-conviction hearing that the first thing he did after being appointed was to file

an Application to Withdraw with the trial judge. The written application stated in

pertinent part:

He [Van Wagner] knows said Defendant whose office was across the
hall from this applicant’s law office in 1982 and portions of 1983,
and this applicant believes that the Defendant attempted to burglarize
his law office in early 1983 along with other offices in the building,
although there was not sufficient evidence to press charges. Because
of this, this applicant has a personal dislike, distrust and animosity
toward the Defendant which will prevent the desirable
communication and trust that is necessary to an attorney-client
relationship.

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After Van Wagner filed this application he had a meeting with the trial judge.

There is no transcript of the meeting between Mr. Van Wagner and the judge;

however, following the meeting, the judge denied the application to withdraw and

the following “court minute” was handwritten at the bottom of the application:

“Above application denied after consideration by the Court. The Court is of the

opinion that the attorney will not permit personalities to effect [sic] his

relationship or representation of defendant.” Hale argues on appeal that the

asserted animosity of Van Wagner towards Hale was a conflict of interest which

the judge failed to inquire into adequately and resolve properly. In addition, Hale

argues that his due process rights were violated because he was not present while

his attorney discussed the application to withdraw with the trial judge.

In Hale’s state direct appeal, he raised only the conflict of interest issue,

and he failed to raise the procedural due process claim. With regard to the

conflict of interest claim, the OCCA stated:

Trial counsel asked to withdraw from representing Hale because he
suspected appellant of attempting to burglarize his offices and
thought that his personal animosity might hinder communications
with Hale. The trial court held a hearing out of Hale’s presence and
declined the application. We find no abuse of the court’s discretion
in requiring counsel to overcome his personal feelings and to
represent Hale. There is no constitutional right to an attorney client
relationship free of animosity. Morris v. Slappy, 461 U.S. 1, 103
S. Ct. 1610, 75 L. Ed. 2d 610 (1983).

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Hale I, 750 P.2d at 135. In his state application for post-conviction relief, Hale,

for the first time, raised his procedural due process claim based on his absence

from the hearing on the motion to withdraw, in addition to his previously raised

conflict of interest claim. The OCCA denied consideration of the issue, stating

that the conflict of interest claim had been addressed on direct appeal and was

therefore barred from review on post-conviction. Hale II, 807 P.2d at 267. It

appears that the procedural due process claim has never been addressed by the

OCCA. Because the state does not raise procedural bar on appeal, we will

consider the procedural due process claim on the merits. See Hooks v. Ward, 184

F.3d 1206, 1223 (10th Cir. 1999).

1. Procedural Due Process Claim

Hale first argues that his constitutional rights were violated when he was

not notified of or permitted to attend the hearing or meeting at which his court-

appointed counsel discussed his motion to withdraw with the trial judge. Because

the OCCA did not address this claim on the merits, we apply pre-AEDPA

standards to this portion of Hale’s claim. See Hooks, 184 F.3d at 1223. The

district court below concluded that Hale’s due process rights were not violated by

his absence from the hearing on the motion to withdraw because it was not a stage

of the proceedings in which his presence was required. The question of whether a

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defendant has a constitutional right to be present at a particular stage of his trial

is a legal question that we review de novo. See United States v. Gomez, 67 F.3d

1515, 1528 (10th Cir. 1995).

The Supreme Court has held that a defendant “has a due process right to be

present in his own person whenever his presence has a relation, reasonably

substantial, to the fullness of his opportunity to defend against the charge.”

Kentucky v. Stincer, 482 U.S. 730, 745, 107 S. Ct. 2658, 96 L. Ed. 2d 631 (1987)

(internal quotation marks omitted). When a defendant’s presence, however,

would be “useless” or “the benefit but a shadow,” his presence is not

constitutionally required. Id. Due process requires a defendant’s presence only

whenever “a fair and just hearing would be thwarted by his absence.” Id. “Thus,

a defendant is guaranteed the right to be present at any stage of the criminal

proceeding that is critical to its outcome if his presence would contribute to the

fairness of the procedure.” Id. In Stincer, the Supreme Court found no due

process violation occurred as a result of the defendant’s exclusion from a hearing

to determine two young witnesses’ competency to testify. In reaching this

conclusion, the Court stressed the fact that no substantive testimony that the two

girls would give during trial was revealed during the hearing and the defendant

did not make a showing that his presence would have ensured a more reliable

determination of the competence of the two young witnesses to testify against

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him. Id. at 745-46. Therefore, the Court concluded that the defendant’s absence

from the hearing could not have affected his ability to defend himself at trial.

This court considered a similar legal issue as the one presented here in

United States v. Oles, 994 F.2d 1519 (10th Cir. 1993). In Oles, this court held

that the defendant’s absence from a preliminary hearing, in which the court

determined whether court appointed counsel would withdraw in favor of potential

retained counsel, did not violate the defendant’s due process rights. Id. at 1525.

In reaching this holding, we found that because no substantive matters relating to

the charges pending against the defendant were discussed at the hearing and

because the defendant did not establish that his presence would have contributed

to the fairness of the trial, the defendant’s absence did not “impinge on [the

defendants’] opportunity to defend against [the charges], or affect the fairness of

the entire trial.” Id.

Similarly, in Green v. Johnson, 116 F.3d 1115 (5th Cir. 1997), the Fifth

Circuit held that a defendant’s due process rights were not violated when the

defendant was absent during a meeting between the judge and one of his two

attorneys concerning the one attorney’s motion to withdraw. Id. at 1124. In the

meeting, the attorney argued that her relationship with her co-counsel had

deteriorated to the point that they did not communicate about the case directly,

and she felt this situation was hindering her ability to represent the defendant. Id.

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The Fifth Circuit held that the defendant’s exclusion from the meeting did not

thwart the fairness and just treatment of the issue during the meeting or the

fairness of the defendant’s overall representation. Id. Moreover, the court found

that although the defendant had stated that if he was present he could have

provided the court with important information about the conflict, the defendant

failed to provide the court with such information or explain how it would have

affected the ruling. Id.

Like the defendants in Stincer, Oles, and Green, Hale’s absence from the

conference between the trial judge and his counsel did not affect his ability to

defend against the charges he was facing nor did it thwart the fairness of that

conference or his overall representation. There is no allegation that the trial

judge and counsel, Mr. Van Wagner, discussed the substantive charges against

Hale. The conference discussed whether Van Wagner’s asserted subjective

feelings toward Hale would affect his representation. There is no suggestion that

the conference addressed, or attempted to resolve, the truth of the underlying

suspicions that gave rise to Van Wagner’s ill will nor was there an allegation of a

breakdown in communications. As in Green, Hale does not indicate what he

could have done had he been present that would have had an effect on the ruling

by the trial judge or affected the fairness of his trial or the presentation of his

defense. This court finds that Hale’s exclusion from the proceeding did not result

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in an unfair proceeding or trial. Rather, the trial judge, after being presented with

Van Wagner’s petition, specifically found that trial counsel’s relationship and

representation of the defendant would not be affected. Similarly, Van Wagner

testified at the post-conviction hearing that his “vague suspicion” that Hale had

attempted to burglarize his office did not affect his representation of Hale at all.

Hale has presented no evidence to refute the above findings and testimony. We

conclude that the meeting on the motion to withdraw did not impinge on Hale’s

opportunity to defend against the charges against him or affect the fairness of the

entire trial; thus we find no constitutional violation.

2. Conflict of Interest

The second part of Hale’s claim urges this court to find that an actual

conflict of interest existed between Hale and Mr. Van Wagner because Mr. Van

Wagner had a vague suspicion that Hale might have burglarized his offices.

Because the OCCA addressed this claim on the merits, we review under AEDPA

standards.

The Sixth Amendment guarantees the effective assistance of counsel to a

defendant in a criminal trial. See Selsor v. Kaiser, 81 F.3d 1492, 1496-97 (10th

Cir. 1996). “The Sixth Amendment right to effective assistance of counsel

encompasses the correlative right to representation that is free from conflicts of

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interest.” Id. at 1497 (internal quotation marks omitted). This court has

explained that the

[t]ypical conflict of interest case[] giving rise to [a] claim[] of
ineffective assistance of counsel involve[s] multiple representation of
co-defendants at a single trial. However, a defendant’s right to
counsel free from conflicts of interest is not limited to cases
involving joint representation of co-defendants but extends to any
situation in which a defendant’s counsel owes conflicting duties to
that defendant and some other third person.

United States v. Cook, 45 F.3d 388, 393 (10th Cir. 1995) (internal citations,

quotation marks, and alterations omitted). Implicit in the latter category of

conflicts noted in Cook is the notion that a conflict may also arise where a

lawyer’s self-interest is adverse to the interest of his client. See Smith v.

Lockhart, 923 F.2d 1314, 1320 (8th Cir. 1991) (“In general, a conflict exists when

an attorney is placed in a situation conducive to divided loyalties.”); see also

Beets v. Scott, 65 F.3d 1258 (5th Cir. 1995) (discussing conflict of interest when

attorney’s self-interest conflicts with duty of loyalty to defendant). Hale argues

that this situation exists in his case because his counsel informed the court that he

disliked and distrusted Hale because he suspected that Hale may have burglarized

his law offices approximately a year earlier. Hale suggests that this animosity

demonstrates that his interests and Van Wagner’s interests were in conflict.

Hale’s interpretation of the law is too broad. Under Hale’s view, any time that

counsel dislikes his or her client, the defendant could claim a conflict of interest.

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This is not the state of the law. A conflict does not arise any time defendant and

his counsel had prior dealings that may have been at odds; rather, the interests of

counsel and defendant must be divergent in the current litigation, such that the

attorney has an interest in the outcome of the particular case at issue that is

adverse to that of the defendant. See United States v. Soto Hernandez, 849 F.2d

1325, 1329 (10th Cir. 1988) (stating that to show conflict of interest, the

defendant must demonstrate that counsel “actively represented conflicting

interests” in the pending case); see also Beets, 65 F.3d at 1273 (condemning as a

conflict the execution of media and literary rights fee arrangements between the

attorney and his client during the pendency of a representation but declining to

award habeas relief because of a lack of a showing of prejudice). 4

In the present case, there is no evidence that Van Wagner had any interest

in the outcome of the current case that would conflict with Hale’s interest. The

fact that Van Wagner had a suspicion that Hale may have burglarized his office at

an earlier time is unrelated to the case for which he was currently representing

Hale. Although Van Wagner would have a conflict of interest if he were

4
As discussed below, the fact that the potential animosity between the
defendant and his counsel did not rise to the level of a conflict of interest does
not preclude defendant from showing that his counsel was ineffective as a result
of the animosity. It simply means that his claim is not evaluated under the
standard for conflicts of interest articulated by the Supreme Court in Culyer v.
Sullivan, 446 U.S. 335, 100 S. Ct. 1708, 64 L. Ed. 2d 333 (1980), and Holloway
v. Arkansas, 435 U.S. 475, 98 S. Ct. 1173, 55 L. Ed. 2d 426 (1978).

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representing Hale for the robbery of his law office because their interests in that

case would be adverse, representation of Hale in a wholly unrelated case does not

give rise to a conflict of interest. Cf. Church v. Sullivan, 942 F.2d 1501, 1511

n.8 (10th Cir. 1991) (finding conflict of interest where defense counsel may have

to cross-examine a witness who is a former client only when counsel’s previous

representation of the witness is “substantially related to the attorney’s later

representation of [the current client]” (alteration in original omitted)). The fact

that Van Wagner did not like Hale or did not trust him does not rise to the level of

a conflict of interest. Personality conflicts are not conflicts of interest. Morris v.

Slappy, 461 U.S. 1, 13, 103 S. Ct. 1610, 75 L. Ed. 2d 610 (1983). Thus, we

decline to find a conflict of interest in this situation.

Although there is no conflict of interest, we have recognized that “a

complete breakdown in communication between an attorney and client may give

rise to a presumption of ineffectiveness.” Romero v. Furlong, 215 F.3d 1107,

1111 (10th Cir. 2000) (alterations in original omitted). In this case, however,

there is no evidence that there was a breakdown in communication between Van

Wagner and Hale. The evidence, instead, supports the conclusion that client and

counsel maintained adequate communication. Van Wagner testified at the state

post-conviction hearing that he met with Hale many times prior to the trial and

discussed the case and the strategy they would follow at trial. In addition, Hale

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testified at the post-conviction hearing that he did not have any difficulty

communicating with Van Wagner. Thus, there is no evidence from which we

could presume ineffective assistance based on a total breakdown in

communication.

There being no conflict of interest and no evidence of a total breakdown in

communication, we can vacate Hale’s conviction on Sixth Amendment grounds

only if he can show ineffective assistance of counsel within the meaning of

Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674

(1984). However, given the concession by Hale’s counsel that he carried

animosity towards Hale due to his suspicion that Hale might have previously

burglarized his law office, we believe it is appropriate to scrutinize counsel’s

performance with a somewhat more critical eye. 5 We turn, then, to the specific

allegations of trial conduct that Hale argues constituted ineffective assistance of

counsel.

5
Following the hearing on Van Wagner’s application to withdraw as
counsel, the trial court determined that the personality issues would not affect the
relationship with the defendant or the representation. Although this finding as to
whether counsel should have been removed at the time the motion was made is
one we presume to be correct under AEDPA, it does not preclude a finding that
animosity may have infected the actions and decisions of counsel during trial and
after the court made its finding. The trial court has made no finding to which we
must give a presumption of correctness with regard to whether animosity existed
during trial. The court simply stated that it believed prior to trial that counsel
could overcome the animosity.

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B. Mitigation Evidence

Hale argues his trial counsel, Mr. Van Wagner, was ineffective during the

penalty phase of the trial. Specifically, Hale contends that his attorney failed

adequately to investigate, prepare, and present a second stage defense. Hale

focuses on the lack of any mitigation evidence during the sentencing phase, which

he asserts was readily available had Van Wagner done any amount of

investigation or preparation. According to Hale, there exists a reasonable

probability that had the jury heard the undiscovered mitigation evidence, it would

not have voted for death.

On direct criminal appeal, the OCCA rejected this claim, stating that

counsel’s decision with regard to witness testimony is a matter of trial tactics

which the court would not second guess. See Hale I, 750 P.2d at 142. On Hale’s

first state habeas petition, the lower court held an extensive evidentiary hearing.

Following the hearing, the court denied relief and the OCCA subsequently

rejected the claim a second time, reiterating that what witnesses should be used at

trial are a matter of trial strategy, and further stating that Hale had failed to meet

his burden to show that but for trial counsel’s decisions, the result of the trial

would have been different. The OCCA then pointed out that Hale had raised this

issue on direct appeal, and thus was barred from raising it again on post-

conviction. See Hale II, 807 P.2d at 267.

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

fact. See Wallace v. Ward, 191 F.3d 1235, 1247 (10th Cir. 1999) (applying

AEDPA). “To establish ineffective assistance of counsel, a petitioner must prove

that counsel’s performance was constitutionally deficient and that counsel’s

deficient performance prejudiced the defense.” Id. (citing Strickland, 466 U.S. at

687 (alteration in original omitted). With regard to the first prong, to prove

deficient performance Hale “must overcome the presumption that counsel’s

conduct was not constitutionally defective. Judicial scrutiny of counsel’s

performance is highly deferential.” Wallace, 191 F.3d at 1247 (citation omitted).

If constitutionally deficient performance is shown, then Hale must demonstrate

that “there is a ‘reasonable probability’ that the outcome would have been

different had those errors not occurred.” Brecheen v. Reynolds, 41 F.3d 1343,

1365 (10th Cir. 1994). However, when a petitioner is specifically challenging the

imposition of the death sentence during the punishment phase of the trial, the

prejudice prong of Strickland focuses on whether there is “a reasonable

probability that, absent the errors, the sentencer . . . would have concluded that

the balance of aggravating and mitigating circumstances did not warrant death.”

Stafford v. Saffle, 34 F.3d 1557, 1564 (10th Cir. 1994). Courts may address the

performance and prejudice components in any order and need not address both if

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a defendant fails to make a sufficient showing of one. See Strickland 466 U.S. at

697.

Hale’s trial counsel did not give an opening statement at the beginning of

the penalty phase and presented no mitigating evidence. Counsel addressed the

jury during the second stage only in his closing argument in which he urged the

jurors to bestow mercy on Hale and give him life in prison. Hale argues on

habeas that his counsel should have introduced the testimony of persons in the

community who knew him both as a youth and as an adult, in his capacity as a

father, businessman, and friend.

“[T]he failure to present available mitigating evidence is not per se

ineffective assistance of counsel.” Brecheen, 41 F.3d at 1368. Instead, it is

necessary to evaluate the reasons for counsel’s failure to present mitigating

evidence and then determine whether that failure, if due to deficient performance

by the attorney, prejudiced the defendant. Here, Hale contends that counsel’s

failure to present mitigating evidence resulted from his failure to investigate

possible sources of such evidence. “[A]n attorney has a duty to conduct a

reasonable investigation, including an investigation of the defendant’s

background, for possible mitigating evidence.” Brecheen, 41 F.3d at 1366.

The duty to investigate derives from counsel’s basic function, which
is to make the adversarial testing process work in the particular case.
Because that testing process generally will not function properly
unless defense counsel has done some investigation into the

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 prosecution’s case and into various defense strategies, the Supreme
Court has noted that counsel has a duty to make reasonable
investigations or to make a reasonable decision that makes particular
investigations unnecessary.

Stouffer v. Reynolds, 168 F.3d 1155, 1167 (10th Cir. 1999) (alterations in

original omitted). This duty is strictly observed in capital cases. See Nguyen v.

Reynolds, 131 F.3d 1340, 1347 (10th Cir. 1997). An attorney’s failure to conduct

a reasonable investigation “may fall outside the scope of reasonable professional

assistance, and thereby amount to deficient representation under the first prong

of Strickland.” Brecheen, 41 F.3d at 1366 (quotation marks omitted).

To determine whether Van Wagner’s performance was below the prevailing

standards, we review the evidence presented at the state habeas evidentiary

hearing. During the hearing, Van Wagner testified that he spent a considerable

amount of time reviewing the law and the charges, conferencing with Hale,

examining the FBI reports from the federal prosecution, talking with Hale’s father

and wife, and talking with other witnesses. Although Van Wagner testified that

he spoke with various potential witnesses, he could not recall any person with

whom he actually spoke other than Mr. Hale’s father and wife. Moreover, Hale

testified that he gave Van Wagner a list of friends that Van Wagner could contact

about possibly testifying on Hale’s behalf. Several people Hale named on this list

testified at the hearing that they were never contacted before or during the trial,

though they would have been willing to testify at trial on Hale’s behalf. Although

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Van Wagner testified that Hale was adamant that his wife and daughter not testify

during the mitigation stage, this did not preclude him from investigating other

potential witnesses or mitigating evidence. In addition, Van Wagner admitted

that he did not hire an investigator to track down any potential mitigation

witnesses. A defense investigator hired by Hale’s state habeas counsel testified at

the hearing that finding mitigation witnesses in this case was in fact easier than

most death penalty cases because Hale had been a long-time resident of the area

where the crime and trial took place. Thus, there were reasonable lines of

investigation open to Van Wagner which would have revealed readily available

mitigation witnesses; however, Van Wagner failed to pursue any of them.

Given this lack of investigation, Van Wagner’s decision not to put forth any

mitigation evidence at the sentencing phase cannot be justified as strategic. As

this court stated in Breechen, before an attorney can insulate his behavior from

review by claiming that a decision to forego mitigation evidence was strategic,

“an attorney must have chosen not to present mitigating evidence after having

investigated the defendant’s background, and that choice must have been

reasonable under the circumstances.” Brecheen, 41 F.3d at 1369. In this case,

Van Wagner testified that he “thought” one of the reasons he may have decided

not to present any mitigation testimony was because Hale had several prior felony

convictions which he feared would be brought out by the prosecution should he

- 25 -
put on character witnesses. However, none of the these prior felony convictions

involved violent crimes. Moreover, the witnesses that testified on behalf of Hale

at the post-conviction hearing stated that these prior convictions would not have

influenced their opinion of Hale. If Van Wagner had spoken with these

individuals he may have decided that the risks of revealing several prior, non-

violent convictions were outweighed by the benefit to be obtained from the

witnesses’ testimony. In any event, Hale’s criminal record could not justify a

failure to investigate possible mitigating evidence even if it might be a

justification not to introduce such evidence at trial. Because Van Wagner failed

to make any investigation, we believe it was unreasonable for the OCCA to

conclude that Van Wagner’s decision to present no mitigating witnesses was a

strategic decision. We conclude that Van Wagner functioned well below the level

of any competent attorney during the penalty phase in failing to investigate

mitigating evidence.

We must, however, still determine whether Hale has met his burden under

AEDPA of showing that Van Wagner’s deficient performance prejudiced him.

In assessing prejudice in the penalty phase, “we must keep in mind the strength of

the government’s case and the aggravating factors the jury found as well as the

mitigating factors that might have been presented” if Van Wagner’s performance

had not been deficient. Stafford v. Saffle, 34 F.3d 1557, 1564 (10th Cir. 1994).

- 26 -
 During the state post-conviction evidentiary hearing, Hale presented the

testimony of four family members and nine friends who all stated they would have

testified at the sentencing phase if asked. Two of these witnesses, however,

included Hale’s wife and daughter. Hale had insisted at trial that his wife and

daughter not be allowed to testify on his behalf, and affirmed this demand when

he testified at the post-conviction hearing. As the client, Hale had the right to

preclude this testimony. See Stafford, 34 F.3d at 1564-65 (recognizing client’s

right to preclude a line of defense). This left the potential testimony of two

family members, Hale’s sister and his uncle, and nine friends. Initially, we point

out that it is unclear whether Hale’s sister would have been able to testify on her

brother’s behalf. At the time of the trial, she was away in Italy and no one had

informed her that her brother was on trial. In addition, four of the people who

testified provided somewhat equivocal statements on behalf of Hale. For

example, one friend stated that he liked Mr. Hale, but he was also friends with the

victim’s family, and stated only that Hale “seemed to care,” or at least “I never

saw anything that would indicate that he didn’t.” Another friend stated in

response to the question “Would you have told the jury to ask them to spare his

life?”: “I don’t know what I would have told them.” Still another friend

responding to the same question testified that he would have simply stated that he

“knew him [Hale] socially to the extent that he and I talked together frequently

- 27 -
about baseball, and we were good friends. I–I didn’t know anything other than

that about him, really.” The remainder of the testimony from other witnesses was

limited to general statements that Hale was a good father and friend, a good

citizen, and had been a good student back in high school.

Against these testimonials from friends and family members, some of which

were equivocal, is the State’s strong case against Hale. The jury found two

aggravators: the murder was “heinous, atrocious, or cruel” and the murder was

committed to avoid lawful arrest. There was ample evidence to prove both of

these aggravators. 6 In addition, there was strong evidence connecting Hale to the

crime. The victim was wrapped in Hale’s trampoline tarp. The body was found

at Hale’s father’s home and the gun used to kill the victim was a gun Hale had

borrowed from his father. Furthermore, there was hair, blood, and fingerprint

evidence connecting Hale to the murder. There was also evidence presented at

trial that Hale had attempted to kidnap a woman just one day prior to the

kidnapping of the victim, and a former cellmate of Hale’s testified that Hale had

told him he knew how to get rid of witnesses. The cellmate further stated that

when Hale learned that the inmate was going to testify against him, the inmate

was beaten up by Hale and others.

6
See infra issues 12 & 13.

- 28 -
 Given the strength of the case against Hale, the aggravating factors found

by the jury, and the nature of the crime itself, we do not believe that the later-

identified testimony from family and friends, some of which was equivocal and

none of which was compelling, would have created a reasonable probability that

the jury would have sentenced Hale to life in prison. See Boyd v. Ward, 179 F.3d

904, 918 (10th Cir. 1999) (“Even if we assume the failure to present mitigating

evidence in the form of testimony from childhood acquaintances and family

members is deficient performance,” petitioner failed to establish prejudice in light

of minimal other mitigating evidence and overall strength of state’s case); Smith

v. Gibson, 197 F.3d 454, 463-64 (10th Cir. 1999) (finding testimony from family,

friends, bosses, and former coaches insufficient to show jury would have

sentenced defendant to life in prison in light of “brutal and senseless nature of

this crime and the strength of the State’s evidence supporting the three

aggravating circumstances”). Thus, we conclude the OCCA’s determination that

Hale’s counsel was not ineffective was not an unreasonable application of federal

law.

C. Voir Dire

Hale next argues that his trial counsel rendered ineffective assistance of

counsel during voir dire. Specifically, Hale argues that his trial attorney, Mr. Van

- 29 -
Wagner, was ineffective when he: (1) failed generally to question jurors about a

possible defense strategy; (2) failed to attempt to rehabilitate jurors challenged

for cause by the state based upon their views on the death penalty; and (3) failed

to challenge for cause or use peremptory challenges to exclude several jurors with

preconceived notions of Hale’s guilt.

Hale raised this claim on direct appeal, and the OCCA summarily dismissed

it, finding that defense counsel’s conduct during voir dire was not deficient. Hale

I, 750 P.2d at 139. The court further stated that “challenges to veniremen are a

matter of trial technique which should not be second guessed with the benefit of

hindsight.” Id. As discussed above, to show ineffective assistance of counsel,

Hale must show both constitutionally deficient performance by trial counsel and

prejudice.

1. General Questioning During Voir Dire

Hale argues that Mr. Van Wagner was ineffective because he failed to

educate the jury on any aspect of his second stage strategy. However, Hale has

failed to demonstrate how Mr. Van Wagner’s questioning during voir dire fell

below constitutional standards.

In Nguyen v. Reynolds, 131 F.3d 1340 (10th Cir. 1997), this Court held

that “[a]n attorney’s actions during voir dire are considered to be matters of trial

- 30 -
strategy. A strategic decision cannot be the basis for a claim of ineffective

assistance unless counsel’s decision is shown to be so ill chosen that it permeates

the entire trial with obvious unfairness.” Id. at 1349 (citation omitted). Hale has

failed to demonstrate that Mr. Van Wagner’s failure to question jurors about a

possible defense strategy permeated the trial with unfairness.

The Supreme Court has held that in a capital trial, due process requires a

voir dire examination of a potential juror’s views on the death penalty, see

Morgan v. Illinois, 504 U.S. 719, 729, 112 S. Ct. 2222, 119 L. Ed. 2d 492 (1992);

however, it is clear from the transcript of the voir dire proceedings that such an

examination did take place in this case. Furthermore, after examining the

transcript, it is clear that Mr. Van Wagner did ask the jurors questions that

attempted to elicit potential biases which could be either helpful or damaging to

Hale’s case. These questions included whether the jurors held an opinion,

whether they knew anyone in law enforcement that would color their ability to be

impartial, and whether they were members of a church. Moreover, the court

thoroughly questioned the jurors as to their views on the death penalty. Thus,

Hale has failed to show that Mr. Van Wagner’s performance in questioning the

jurors during voir dire was constitutionally deficient or prejudicial.

2. Rehabilitation of Jurors Challenged for Cause

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 Hale next argues that trial counsel was ineffective because he failed to

attempt to rehabilitate four jurors after the state challenged them for cause and the

court dismissed them based upon their views regarding the death penalty.

The trial court asked the following question of all the jurors: “If selected as

a juror in a case where the law and the evidence warrant could you without doing

violence to your conscious [sic] recommend the death penalty?” The trial judge

then went on to question individually those jurors who responded negatively

about their views on the death penalty. These jurors included Jurors Fischer,

Zinn, Abel, and Myer. In individual questioning, three of these jurors, Fischer,

Zinn, and Meyer, stated unequivocally that they could not inflict the death penalty

in any case. The fourth juror, Abel, stated that she could not apply the death

penalty in this case regardless of the evidence because she knew Hale, his

daughter, and his wife. These responses were repeated upon questioning by the

state.

The Supreme Court in Wainwright v. Witt, 469 U.S. 412, 105 S. Ct. 844, 83

L. Ed. 2d 841 (1985), articulated the standard for determining whether a

prospective juror must be excluded for cause because of his or her view on capital

punishment as “whether the juror’s views would prevent or substantially impair

the performance of his duties as a juror in accordance with his instructions and

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his oath.” Id. at 424 (quotation marks omitted). A juror’s bias need not be proven

with “unmistakable clarity” because

determinations of juror bias cannot be reduced to question-and-
answer sessions which obtain results in the manner of a
catechism. . . . Despite this lack of clarity in the printed record,
however, there will be situations where the trial judge is left with the
definite impression that a prospective juror would be unable to
faithfully and impartially apply the law. . . . [T]his is why deference
must be paid to the trial judge who sees and hears the juror.

Id. at 424-26.

Thus, the state trial judge’s determination is statutorily accorded a

presumption of correctness which can only be rebutted by clear and convincing

evidence. See 28 U.S.C. 2254(e)(1); see also Williams v. Collins, 16 F.3d 626,

633 (5th Cir. 1994). A review of the responses of the four jurors in this case

indicates that the trial court did not improperly excuse them under Wainwright.

All four jurors in question in this case made it clear, by the time both the trial

judge and the prosecutor finished asking questions, that they could not impose the

death penalty in this case regardless of the evidence or the facts presented. Based

on their answers, the trial court could have been “left with the definite impression

that [Fischer, Abel, Meyer, and Zinn] would be unable to faithfully and

impartially apply the law.” See Wainwright, 469 U.S. at 426. Hale has produced

no evidence to rebut the trial court’s finding that the jurors should be removed for

cause, and he has advanced no evidence to suggest that further cross-examination

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of these witnesses would have been helpful. Hence, we cannot find that Hale’s

counsel acted unreasonably or unprofessionally in failing to attempt to rehabilitate

the four dismissed jurors. See Williams, 16 F.3d at 633 (holding that counsel was

not ineffective for failing to rehabilitate three jurors excused for cause when their

answers suggested they would not have been able to function properly as jurors in

a capital case); Foster v. Delo, 39 F.3d 873, 878 (8th Cir. 1994) (finding counsel

was not ineffective for failing to rehabilitate two jurors excused for cause when

they answered unequivocally that they could not consider the death penalty

regardless of the law or the evidence); see also Sawyer v. Butler, 848 F.2d 582,

589 (5th Cir. 1988) (denying an ineffective assistance claim and holding that

there was no prejudice from counsel’s failure to rehabilitate prospective jurors

who stated they could not impose the death penalty when defendant failed to

demonstrate rehabilitation was possible), aff’d on reh’g, 881 F.2d 1273 (5th Cir.

1989), aff’d sub nom. Sawyer v. Smith, 497 U.S. 227, 110 S. Ct. 2822, 111

L. Ed. 2d 193 (1990).

3. Failure to Challenge Jurors With Preconceived Notions of Guilt

Hale’s next argument is that his trial counsel was ineffective when he did

not challenge for cause or excuse by peremptory challenge six jurors who had

preconceived notions of Hale’s guilt. As support for this claim, Hale presents the

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testimony of Judge Frank McCarthy who testified as an expert witness during the

post-conviction evidentiary hearing. Judge McCarthy opined that

in a case where the defense knows going in that they’re not going to offer
any substantive testimony, and they know that they’ve got a good venue
issue, to allow six jurors to sit on your jury, who say they’ve already got
their minds made up or have opinions about your client’s guilt, is just
inappropriate and it’s ineffectively representing your client. There’s no
reason for you to do that.

As noted above, in order to show counsel was ineffective for failing to

object to the presence of certain persons on the jury, Hale must prove “counsel’s

representation fell below an objective standard of reasonableness.” Kimmelman

v. Morrison, 477 U.S. 365, 375, 106 S. Ct. 2574, 91 L. Ed. 2d 305 (1986)

(emphasis added). In addition, Hale must show counsel’s deficient performance

prejudiced the defense. “This requires showing that counsel’s errors were so

serious as to deprive the defendant of a fair trial, a trial whose result is reliable.”

Strickland, 466 U.S. at 687. Defense counsel’s failure to attempt to remove from

the jury a person who has been established on voir dire to be biased constitutes

prejudice under Strickland. See Johnson v. Armontrout, 961 F.2d 748, 755-56

(8th Cir. 1992). To show a juror was biased, a defendant must show that the juror

had such a fixed opinion that he or she could not judge impartially. See Patton v.

Yount, 467 U.S. 1025, 1035, 104 S. Ct. 2885, 81 L. Ed. 2d 847 (1984). Thus, a

juror is not shown to have been impartial simply because he or she had a

preconceived notion as to the guilt or innocence of the accused. See Murphy v.

- 35 -
Florida, 421 U.S. 794, 800, 95 S. Ct. 2031, 44 L. Ed. 2d 589 (1975). The

Supreme Court stated in Irwin v. Dowd, 366 U.S. 717, 81 S. Ct. 1639, 6 L. Ed. 2d

751 (1961):

It is not required . . . that the jurors be totally ignorant of the facts
and issues involved. . . .To hold that the mere existence of any
preconceived notion as to the guilt or innocence of an accused,
without more, is sufficient to rebut the presumption of a prospective
juror’s impartiality would be to establish an impossible standard. It
is sufficient if the juror can lay aside his impression or opinion and
render a verdict based on the evidence presented in court.

Id. at 722-23. Thus, to show a juror was biased, Hale must show more than that

the juror had a preconceived notion of guilt; he must show that the juror had such

a fixed opinion that he or she could not judge impartially.

In this case, Hale contends that counsel was deficient when he did not

attempt to remove six jurors whom he claims held opinions as to his guilt, and

that this failure prejudiced him because he was convicted by an impartial jury.

However, these jurors implicitly or explicitly all said that they held only mild or

slight opinions and all six said they could put their opinions aside and judge the

case impartially on the evidence.

One of these jurors, Juror McBee, was a member of the Oklahoma State

Bureau of Investigation Commission (“OSBIC”). The OSBIC had been involved

in the investigation of Hale’s case; however, there was no suggestion in the voir

dire transcript that Juror McBee had actually participated in the investigation. On

- 36 -
the other hand, there was testimony during voir dire that Juror McBee was a

friend of Hale’s counsel, Mr. Van Wagner, and knew the defendant and the

defendant’s family socially. In fact, Juror McBee stated during voir dire that he

had played golf with Hale on multiple occasions. Thus, it was objectively

reasonable for Van Wagner to have left McBee on the jury under the belief that he

would be favorable to the defendant, both because he was a friend of counsel and

because he knew Hale and his family socially.

Another of these jurors, Juror McLaughlin, also stated during voir dire that

he knew Hale. McLaughlin stated that he had done business with Hale and would

see him at Hale’s bakery where they would strike up conversations. Based on this

testimony, it was reasonable trial strategy to have left this person on the jury in

the hope that he would be favorable to Hale, or at the very least be reluctant to

give him the death penalty.

The judge asked the entire jury panel twice whether anyone felt they could

not give both sides a fair and impartial trial and no one responded. Further, Hale

never showed actual bias by any of these seated jurors. Cf. Smith v. Phillips, 455

U.S. 209, 215, 102 S. Ct. 940, 71 L. Ed. 2d 78 (1982); Irons. v. Lockhart, 741

F.2d 207; 208 (8th Cir. 1984).

This situation is in stark contrast to Johnson v. Armontrout, 961 F.2d 748

(8th Cir. 1992), in which the court found ineffective assistance of counsel when

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the defense attorney failed to remove two biased jurors for cause. In Johnson, ten

members of Mr. Johnson’s venire had previously served on a jury who had earlier

convicted another man of taking part in the same robbery. Mr. Johnson had

appeared at the earlier trial handcuffed and under guard. Id. at 751. The court

found actual prejudice because two of those ten jurors stated unequivocally that

they firmly believed that Johnson was guilty of the robbery. Id. The court found

that the failure to remove two biased jurors constituted actual prejudice. Id. at

755-56. In contrast, here there was no unequivocal statement by any juror that

they were firmly convinced Hale was guilty and could not set aside this opinion.

On the record before us, we conclude that Hale has not established a Strickland

violation because his counsel failed to challenge these jurors.

D. Admission of Other Crimes Evidence.

Hale next argues that his trial counsel was ineffective when he failed to

object to the admission of evidence of other crimes allegedly committed by Hale.

The other crimes evidence to which Hale argues counsel should have objected

included Mrs. Brenda Allison’s testimony that Hale, on the day before Jeff Perry

was abducted, drove up to Mrs. Allison’s home, informed her that her husband

had been in an auto accident, and offered to drive her to the hospital. Mrs.

Allison later learned that her husband was never in a car accident. The

Prosecutor argued that this evidence was admitted to show identity, motive, plan,

- 38 -
and intent on the part of Hale. Hale also claims that counsel should have objected

to the admission of the testimony of one of Hale’s former cellmates, Mark

Weaver, who testified that Hale and other inmate beat him after he agreed to

testify against Hale. 7

The Oklahoma Court of Criminal Appeals addressed this claim as part of

Hale’s ineffective assistance of counsel claim on direct appeal. In rejecting the

claim, the court held:

We find that the other crimes evidence which consisted of a possible
attempted kidnapping and an assault on a prison cellmate who gave
testimony on behalf of the State was admissible to show common
scheme and identity. As the evidence was properly admissible, we
find that there was no deficiency in failing to raise an objection to it.

Hale I, 750 P.2d at 140.

Hale’s claim can be resolved by addressing the prejudice prong under

Strickland. Hale has failed to demonstrate that if trial counsel had objected to the

admission of the above testimony, it would have been excluded.

The OCCA has repeatedly allowed the admission of evidence of other

crimes to prove motive, common scheme, identity, plan, knowledge, or absence of

7
Weaver testified that while he was a cellmate of Hale’s, Hale told him he
knew how to get rid of witnesses. After Hale learned that Weaver was going to
testify about this statement, Hale and several other inmates beat up Weaver. On
habeas, Hale does not argue that his attorney should have objected to Weaver’s
testimony that Hale told him he knew how to get rid of witnesses. He only argues
counsel should have objected to the testimony that Hale beat him up when he
learned Weaver was going to testify against him.

- 39 -
mistake or accident. See, e.g., Huskey v. State, 989 P.2d 1, 3 (Okla. Crim. App.

1999); Douglas v. State, 951 P.2d 651, 673 (Okla. Crim. App. 1997). In this case,

there was a question of identity. Hale denied that he was the one who kidnapped

and killed Jeff Perry. He argued that he was simply told to pick up the money.

The evidence by Brenda Allison of an attempted kidnapping just a day prior to the

victim’s abduction helped to establish identity and common scheme. The

testimony by Mark Weaver that Hale beat him up when he discovered that Weaver

was going to testify against him has been found by the OCCA to be admissible as

other crimes evidence “to infer a consciousness of guilt from an attempt to

improperly influence or cause the absence of a material witness at trial.” Powell

v. State, 995 P.2d 510, 527 (Okla. Crim. App. 2000). The OCCA has further

stated that this type of evidence “constitute[s] ‘admissions by conduct designed to

obstruct justice’ and [is] thus admissible to establish motive.” Id. (quoting

Gideon v. State, 721 P.2d 1336, 1338 (Okla. Crim. App. 1986)). Thus, the

testimony of both witnesses was properly admissible as other crimes evidence.

Hale has failed therefore to show that if his attorney had objected, the evidence

would have been excluded.

Hale attempts to show prejudice by asserting that the prosecutor failed to

give notice that he was introducing other crimes evidence as required under

Oklahoma law. See Burks v. State, 594 P.2d 771, 774 (Okla. Crim. App. 1979)

- 40 -
(requiring notice of other crimes evidence ten days prior to trial), overruled in

part on other grounds by Jones v. State, 772 P.2d 922, 925 (Okla. Crim. App.

1989). Hale argues that if counsel had objected to the admission on the basis of

insufficient notice, Oklahoma would have excluded the evidence. Again, we

disagree and therefore find no prejudice.

First, Hale has failed to support this assertion in his brief. Although Hale

had a full evidentiary hearing during post-conviction, he never asked Mr. Van

Wagner, his attorney, whether he received notice; therefore there is no conclusive

evidence that he did not receive notice. In addition, in Malicoat v. State, 992

P.2d 383 (Okla. Crim. App. 2000), the OCCA clarified that failure to provide

Burks notice does not automatically require the exclusion of other crimes

evidence. The court emphasized that the purpose of Burks notice is to ensure that

the defendant is not surprised by the admission of other crimes evidence, and to

allow the defendant time to be heard on the other crimes evidence before it is

presented to the jury. Malicoat, 992 P.2d at 402-03; see also Powell, 995 P.2d at

527 (no abuse of discretion on part of trial court in admitting other crimes

evidence without Burks notice when defendant not surprised); Bryan v. State, 935

P.2d 338, 357 (Okla. Crim. App. 1997).

Hale cannot argue here that he was surprised by the testimony of either

Brenda Allison or Mark Weaver. Brenda Allison testified at the preliminary

- 41 -
hearing, thus providing counsel notice of the testimony she had to offer. In

addition, her name was listed as a witness that would be called at trial. Moreover,

Hale’s trial counsel filed a motion in limine prior to trial attempting to suppress

the evidence of Brenda Allison that was later denied by the trial court prior to

trial. Mark Weaver testified at the preliminary hearing about Hale’s assault on

him. Moreover, Weaver was included on the list of trial witnesses. Therefore,

even if Van Wagner had objected to the evidence at trial, the lack of written

notice would not have kept the evidence out. Moreover, as discussed above,

because the evidence was proper other crimes evidence, it would not have been

excluded. Thus, Hale cannot show prejudice. We therefore find that the OCCA’s

determination that Hale was not denied effective assistance of counsel was not an

unreasonable application of federal law.

E. Second Stage Closing Remarks

Mr. Hale next asserts that he received ineffective assistance of trial counsel

during his counsel’s second stage closing remarks. Specifically, Hale contends

that his attorney’s false statement to the jury that Hale had been abandoned by his

wife and daughter constituted deficient performance that prejudiced his case. The

OCCA concluded that under Strickland, Hale had not been denied his Sixth

Amendment right to effective assistance of counsel. See Hale I, 750 P.2d at 142.

- 42 -
 The portion of trial counsel’s closing argument to which Hale objects reads

as follows:

And his wife Susan was here to testify earlier this week. She’s
abandoned him. He has a teenage daughter Jamie. She hasn’t been
here. She won’t be here. I know it’s easy to say that because of his
participation he’s earned it. I’m just asking you for mercy because
you are better.

On this point, Hale fails to overcome the presumption that these statements

"might be considered sound trial strategy." Strickland, 466 U.S. at 689. First, it

is not clear whether the statement that Hale’s wife had abandoned him at the time

of trial was false. Hale’s ex-wife testified during a post-conviction hearing that

she began divorce proceedings approximately six or seven months “after this all

happened.” Second, it is undisputed that Hale had instructed his attorney that he

did not want his wife or child to testify in his favor, in order to spare them any

undue trauma. Therefore, it seems clear that in closing argument counsel was

attempting to put the best spin on the fact that Hale’s wife and daughter had not

testified during the punishment phase, by attempting to garner sympathy. “For

counsel’s decision to rise to the level of constitutional ineffectiveness, the

decision must have been completely unreasonable, not merely wrong, so that it

bears no relationship to a possible defense strategy.” See Hoxsie v. Kerby, 108

F.3d 1239, 1246 (10th Cir. 1997) (alterations and quotation marks omitted).

Here, the attorney’s comments had a reasonable relationship to a defense strategy.

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 Moreover, even if counsel was deficient in making this statement, Hale has

failed to show any prejudice. There is no “reasonable probability that, but for

counsel’s [abandonment argument], the result of the proceeding would have been

different.” Strickland, 466 U.S. at 694. Thus, we find that the OCCA’s

determination that counsel was not ineffective was not an unreasonable

application of federal law.

F. First Stage Closing Statement

Hale next argues that during closing argument in the guilt phase of the trial,

his attorney conceded his guilt and thus denied him effective assistance of

counsel. The OCCA rejected this claim, finding no prejudice. Hale I, 750 P.2d at

142. The court further concluded that if counsel had claimed that Hale had not

been involved at all, in the face of overwhelming evidence of Hale’s involvement,

counsel would have lost all credibility with the jury. Id.

The relevant portion of counsel’s argument is as follows:

This is the FBI’s case. And after all they’re the best in the
country. At least that’s what they tell us. And they look pretty
sharp. Couple of the experts even spelled their names for you so you
wouldn’t miss out to know that. They’re slick. The State would
have you accept the FBI’s case without any questions. Don’t delve
into hypotheticals says the State. Don’t bother yourself with
unanswered questions because we have answered everything that you
could want to know. That’s not true. There are a lot of unanswered
questions, and you should ask every reasonable question that comes
to your mind when you are in that jury room. . . .There isn’t any

- 44 -
 doubt that Jim Hale was involved in this. No doubt whatsoever.
How much though? To what extent? And was he the only one?
How many voices were on the tapes? Susan Hale, Jim’s wife, was
able to say, “I can only identify my husband as on one of those
tapes.” What did it sound like to you?

We conclude that the OCCA reasonably applied Strickland in resolving this

issue. Although “an attorney who adopts and acts upon a belief that his client

should be convicted ‘fail[s] to function in any meaningful sense as the

Government’s adversary,’” Osborn v. Shillinger, 861 F.2d 612, 625 (10th Cir.

1988) (quoting United States v. Cronic, 466 U.S. 648, 666, 104 S. Ct. 2039, 80 L.

Ed. 2d. 657 (1984) (alteration in original)), Hale’s counsel did not act in such a

manner in this case. Instead, he made a reasonable strategic decision to concede

some involvement by Hale, given the overwhelming evidence presented at trial,

and focused on the extent of his involvement and whether others could have been

involved. See Trice v. Ward, 196 F.3d 1151, 1161-62 (10th Cir. 1999) (finding it

was neither unreasonable nor prejudicial to admit some involvement and focus

energy on other arguments, when evidence was overwhelming).

Moreover, given the overwhelming evidence linking Hale to the crime–i.e.,

F.B.I. identification of Hale as the man making at least some of the ransom calls

to Mrs. Perry; hair, gun, and blood evidence linking Hale to the crime; the body

wrapped in a trampoline tarp which fit Hale’s trampoline; and other eyewitness

accounts of Hale’s involvement–Hale cannot show a reasonable probability that

- 45 -
the outcome of the guilt phase of the trial would have been different absent the

concession made by his attorney during closing argument.

G. Improper Jury Instruction

Hale next argues that he is entitled to habeas relief because his jury was

improperly instructed under Oklahoma law that the death penalty could be

imposed for the kidnapping for extortion conviction. Hale presents this claim as

both a constitutional claim and as a separate ineffective assistance of counsel

claim. The OCCA addressed and rejected this claim on direct appeal, finding that

although the instruction on the kidnapping charge incorrectly stated under

Oklahoma law that kidnapping was a death-eligible offense, the error was not due

to any willful misconduct on the part of the attorney or the trial court. Moreover

the court stated that “[s]ince the jury in this case did not assess the death penalty

for the extortion conviction, appellant has not demonstrated prejudice resulting

from the improper instruction.” Hale I, 750 P.2d at 138 (citing Bumper v. North

Carolina, 391 U.S. 543, 545, 88 S. Ct. 1788, 20 L. Ed. 2d 797 (1968)). The

OCCA further concluded that counsel was not deficient for his failure to object to

the jury instruction. Id. at 142.

- 46 -
 It is not disputed that the second stage jury instruction regarding the

possible punishment for kidnapping was in error, because it stated that Hale could

be given the death penalty on the kidnapping charge. The instruction read:

The Defendant in this case has been found guilty by you, the
jury, of the offense of KIDNAPPING FOR EXTORTION as charged
in count II of the information. It is now your duty to determine the
penalty to be imposed for this offense.
Under the law of the State of Oklahoma, every person found
guilty of KIDNAPPING FOR EXTORTION shall be punished by
death or imprisonment in the penitentiary, not less than ten (10)
years.

In addition to the above instruction, the prosecutor argued during his second stage

closing argument that both counts–murder and kidnapping–carried the death

penalty and urged its imposition on both counts. The prosecutor also stated,

however, that if the jury rejected the death penalty, the jury could give Hale life

or “any range you want.”

Hale first argues that the kidnapping instruction that allowed for the

imposition of a death sentence resulted in constitutional error that cannot be

viewed as harmless. The Supreme Court has stated that the argument that a jury

instruction is incorrect under state law is not a basis for federal habeas relief. See

Estelle v. McGuire, 502 U.S. 62, 71-72, 112 S. Ct. 475, 116 L. Ed. 2d 385 (1991);

Esquibel v. Rice, 13 F.3d 1430, 1433 (10th Cir. 1994). The appropriate question

on habeas review is “whether the ailing instruction by itself so infected the entire

trial that the resulting conviction violates due process.” McGuire, 502 U.S. at 72.

- 47 -
The instruction must be viewed in the context of the instructions as a whole and

the trial record. Id. For this review, we apply a harmless error analysis. See

California v. Roy, 519 U.S. 2, 5, 117 S. Ct. 337, 136 L. Ed. 2d 266 (1996)

(reviewing jury instruction under harmless error analysis).

Prior to AEDPA, federal courts applied the Brecht v. Abrahamson, 507

U.S. 619, 637, 113 S. Ct. 1710, 123 L. Ed. 2d 353 (1993), harmless error analysis.

Under Brecht, a federal court on habeas review must determine whether the error

had a “substantial and injurious effect or influence in determining the jury’s

verdict.” Id. at 623. AEDPA now provides, however, that habeas relief shall not

be granted from state convictions “unless the adjudication of the claim . . .

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).

Chapman v. California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967), sets

forth the clearly established standard that state courts apply for evaluating

instances of constitutional error–whether an error was harmless beyond a

reasonable doubt. Oklahoma Court of Criminal Appeals reviewed this error for

prejudice, citing Bumper v. North Carolina, 391 U.S. 543, 545 (1968). That,

however, is the wrong constitutional standard. Bumper v. North Carolina, id.,

refers only to whether a Witherspoon challenge (Witherspoon v. Illinois, 391 U.S.

510, 88 S. Ct. 1770, 20 L. Ed. 2d 776 (1968)) can be applied to a case where the

- 48 -
jury recommends life imprisonment rather than death. Thus, we find that case

inapposite. The proper harmless error standard, that should have been applied, is

that expressed in Chapman v. California. Thus, we apply the standard of review

set forth in Brecht. See Williams v. Taylor, 120 S. Ct. 1495 (2000).

Here, the jury recommended a life sentence, not death for the kidnapping

conviction. The jury was given a full range of possible sentences and chose a

permissible sentence under Oklahoma law–life in prison. There is no evidence

that the jury was influenced to give a life sentence simply because they were

given the impermissible choice of giving a death sentence.

Moreover, there is no evidence that the jury imposed the death sentence for

the murder conviction because of the erroneous kidnapping instruction. Hale

attempts to show that the jury imposed a death sentence on the murder charge

because of the erroneous kidnapping charge by suggesting that the jury

impermissibly double-counted aggravators. Hale asserts that because the jury

found the “heinous, atrocious, or cruel” aggravator for the kidnapping charge and

also found the “heinous, atrocious, or cruel” aggravator for the murder charge, the

jury was allowed to double-count. Hale misconstrues double counting. Double-

counting occurs when one aggravating circumstance for a crime found by the jury

necessarily subsumes another aggravator found by the jury for the same crime.

See Smith v. Gibson, 197 F.3d 454, 464 (10th Cir. 1999). Here, the jury looked

- 49 -
at a similar aggravator for two separate crimes. There is no evidence that the jury

relied on the aggravating circumstances it found arising from the kidnapping in

assessing the penalty for the murder charge. Moreover, such an assumption

would ignore the jury instructions, which the jury is presumed to follow, see

Shannon v. United States, 512 U.S. 573, 585, 114 S. Ct. 2419, L. Ed. 2d 459

(1994), that provided the jury with separate aggravating circumstances for each

crime. Thus, Hale’s argument that double counting allowed the jury to use the

erroneous kidnapping charge to assess death for the murder charge fails. We

therefore conclude that any constitutional error in the instruction did not have a

substantial and injurious effect on the jury.

Hale further argues that he was denied effective assistance of counsel due

to his counsel’s failure to object to the improper jury instruction on the

kidnapping charge. Even if we were to assume that this constituted deficient

performance, Hale has failed to show prejudice. Hale has not shown that had

counsel objected, there is a reasonable probability that the jury would have

returned a sentence other than life in prison. The jury’s actual sentence did not

reflect an error of law. Cf. Kennedy v. Maggio, 725 F.2d 269 (5th Cir. 1984)

(finding counsel ineffective when it counseled client to plead guilty to rape under

erroneous belief that if defendant went to trial he would be eligible for the death

penalty). Here, the jury was allowed under the law to return a sentence of life

- 50 -
imprisonment. Mere speculation that the jury might have returned a lesser prison

sentence if death had not been a possibility is not sufficient to show prejudice.

Thus, Hale has not established that the OCCA’s determination that counsel was

not ineffective was unreasonable.

H. Amended Bill of Particulars

Hale next argues that his due process rights were violated when the State

waited until the first day of trial to file an amended Bill of Particulars which

added the “avoiding arrest” aggravating circumstance to the three already alleged

in the original Bill of Particulars. 8 Hale also argues that his counsel’s failure to

object to this addition resulted in ineffective assistance of counsel.

1. Due Process

The OCCA rejected this claim, finding that it bordered on the “frivolous.”

See Hale I, 750 P.2d at 139. The court went on to state that at the time the Bill of

Particulars was amended, Hale was “already aware of all of the evidence to be

8
The original Bill of Particulars alleged three aggravating circumstances:
(1) The defendant committed the murder for remuneration or the
promise of remuneration. (2) The murder was especially heinous,
atrocious, and cruel. (3) There exists the probability that the
defendant would commit criminal acts of violence that would
constitute a continuing threat to society.

- 51 -
used by the State to prove [the aggravator];” thus defense counsel was not

surprised. Id.

The Supreme Court has held that the Due Process Clause requires that a

defendant receive adequate notice that he could receive the death penalty.

Lankford v. Idaho, 500 U.S. 110, 127, 111 S. Ct. 1723, 114 L. Ed. 2d 173 (1991).

In addition, “a defendant must have a meaningful opportunity to deny or explain

the State’s evidence used to procure a death sentence.” Duvall v. Reynolds, 139

F.3d 768, 797 (10th Cir. 1998) (citing Gardner v. Florida, 430 U.S. 349, 362, 97

S. Ct. 1197, 51 L. Ed. 2d 393 (1977)).

In this case, Hale argues that the amendment to the Bill of Particulars on

the day of trial, February 27, 1984, deprived him of due process. However, Hale

knew from the prior Bill of Particulars that he was subject to the death penalty on

the basis of three aggravators. In addition, the State had previously submitted its

list of witnesses and did not include any new witnesses when it added the new

aggravator, nor did it add any witnesses in the punishment phase. Hale was aware

of all of the evidence and witnesses that were going to be presented against him at

trial and in the punishment phase prior to the addition of the “avoid arrest”

aggravator. Moreover, Hale’s counsel announced that he was ready on the first

day of trial, and testified at the state post-conviction hearing that he was not

surprised by any evidence presented at trial and was ready when the trial began.

- 52 -
Thus, Hale was not subjected to “trial by ambush.” See Duvall, 139 F.3d at 797.

Therefore, Hale has not carried his burden of showing that the OCCA’s

determination that there was no error was an unreasonable application of federal

law.

2. Ineffective Assistance of Counsel

Hale further argues that under Oklahoma law, if Hale’s trial counsel had

objected to the addition of the “avoid arrest” aggravator on the morning of the

first day of trial, the court would have excluded it. Because the jury found the

“avoiding arrest” aggravator when it reached its decision to impose the death

penalty, Hale argues that he suffered prejudice from the failure to object and have

the aggravator quashed. The OCCA addressed and rejected this claim, finding

that the trial court properly could have admitted the additional aggravator under

Oklahoma law, and thus trial counsel was not deficient. See Hale I, 750 P.2d at

141.

At the time Hale was tried, Oklahoma had no set time by which the State

had to have filed a Bill of Particulars. See Hunter v. State, 829 P.2d 64, 65

(Okla. Crim. App. 1992). 9 Oklahoma courts, however, required that the Bill of

9
In Hunter, the OCCA announced a new rule of procedure requiring the
State to file the Bill of Particulars prior to or at the time of arraignment. Hunter,
(continued...)

- 53 -
Particulars be filed within a reasonable amount of time so that the defense could

prepare for trial. See id.; Carpenter v. State, 929 P.2d 988, 994-95 (Okla. Crim.

App. 1996). In this case, Hale was not surprised by the fact that the State was

seeking the death penalty when the State introduced a fourth aggravator the day of

trial, because an original Bill of Particulars had already been filed. In addition, as

noted above, Hale was aware of all of the evidence and witnesses that the state

was going to use against him prior to the amendment and had time to prepare a

defense. 10

Because Hale was not surprised by any new evidence or witnesses, or by

the fact that the State was seeking the death penalty, and no new evidence was

introduced at the sentencing phase, the trial court would not have been required to

quash the additional aggravator even if counsel had objected. Hale has failed to

show that he was prejudiced under Strickland. Therefore, we cannot find that the

9
(...continued)
829 P.2d at 65. However, in Thomas v. State, 888 P.2d 522, 527 (Okla. Crim.
App. 1994), the OCCA clarified that Hunter does not apply retroactively to cases
that are on collateral review at the time the rule was laid down. Because the rule
in Hunter was announced after Hale’s direct appeals were completed, the rule
does not apply in his case.
10
The OCCA found that the amendment to the Bill of Particulars was made
prior to the commencement of trial. See Hale I, 750 P.2d at 140. This is a factual
finding that is presumed to be correct, absent clear and convincing evidence to the
contrary. Our review of the record indicates that the amendment was filed prior
to the start of trial and was addressed by the court with the parties prior to the
beginning of any proceedings in the trial.

- 54 -
OCCA’s determination that counsel was not ineffective was an unreasonable

application of federal law.

II. Double Jeopardy and Liberty Interest

Hale next argues that his constitutional rights were violated when the State

of Oklahoma prosecuted him for first-degree murder and kidnapping for purposes

of extortion following his conviction in federal court for extortion under the

Hobbs Act, 18 U.S.C. § 1951. Specifically, Hale argues the state prosecutions

were barred by Okla. Stat. tit. 21, § 25 (repealed 1986), and that Oklahoma’s

failure to enforce that statute amounted to a deprivation of his liberty interest. 11

Appellee contends that Hale failed to exhaust this claim fully with regard to the

murder conviction and thus habeas relief should be denied pursuant to 28 U.S.C.

§ 2254(b)(1).

On direct appeal Hale argued (1) that he could not be tried for the crime of

kidnapping under the Oklahoma Constitution, because he had already been

convicted of extortion in federal court under the Hobbs Act, and (2) that the state

prosecutions for kidnapping and first degree murder violated the Oklahoma

11
Hale does not argue, nor could he, that the federal prosecution and state
prosecutions violated the Double Jeopardy clause of the Fifth Amendment. See
Abbate v. United States, 359 U.S. 187, 79 S. Ct. 666, 3 L. Ed. 2d 729 (1959)
(holding that prior state conviction did not bar subsequent federal prosecution
under the Double Jeopardy Clause).

- 55 -
Double Jeopardy Clause. Thus, Hale did not raise a federal constitutional claim

on direct appeal. In Hale’s second application for post-conviction relief, Hale

did raise a federal constitutional claim; however, the claim raised in the second

application challenged only the kidnapping conviction and did not challenge the

murder conviction. The OCCA did not address this claim on post-conviction

review finding that it had been raised on direct appeal and was therefore barred.

See Hale III, 934 P.2d at 1102. Thus, the issue as it concerns the murder charge

has not been exhausted. 12 See Anderson v. Harless, 459 U.S. 4, 6-7, 103 S. Ct.

276, 74 L. Ed. 2d 3 (1982) (per curiam) (petitioner failed fairly to present federal

habeas claim to state courts where, in state court proceedings, he relied only upon

state law authority to challenge jury instruction).

Nevertheless, the Supreme Court has held that if a petitioner ‘failed
to exhaust state remedies and the court to which the petitioner would
be required to present his claims in order to meet the exhaustion
requirement would now find the claims procedurally barred’ the
claims are considered exhausted and procedurally defaulted for
purposes of habeas relief.

12
Hale seems to argue in the reply brief that the Appellee has waived the
exhaustion argument because it did not raise it before the district court. This
argument fails under 28 U.S.C. § 2254(b)(3), which states, “A State shall not be
deemed to have waived the exhaustion requirement or be estopped from reliance
upon the requirement unless the State, through counsel, expressly waives the
requirement.” The record does not reveal that Appellee has ever expressly waived
the exhaustion requirement on this claim; thus it is free to raise this issue on
appeal to this court.

- 56 -
Thomas v. Gibson, No. 99-5030, 2000 WL 986587, at *5 (10th Cir. July 18, 2000)

(quoting Coleman v. Thompson, 501 U.S. 722, 735 n.1, 111 S. Ct. 2546, 115 L.

Ed. 2d. 640 (1991)). Oklahoma bars collateral review of claims actually raised on

direct appeal or those that could have been raised on direct appeal but were not.

See Brecheen, 41 F.3d at 1349 n.4 (citing Okla. Stat. tit. 22, § 1086).

Accordingly, Hale has defaulted his claim with regard to the murder conviction.

We cannot consider issues raised in a habeas petition “that have been

defaulted in a state court on an independent and adequate procedural ground

unless the petitioner can demonstrate cause and prejudice or a fundamental

miscarriage of justice.” Thomas, 2000 WL 986587, at *6 (alteration omitted).

This court has held that Oklahoma’s procedural bar to most claims not raised on

direct appeal (other than ineffective counsel claims) is independent and adequate.

See Brecheen, 41 F.3d at 1356. Because Hale has not shown cause and prejudice

or that a fundamental miscarriage of justice will occur if we do not address the

claim with regard to the murder conviction, this part of his claim is barred.

Although Hale also failed to raise his federal claim with regard to the

kidnapping conviction on direct appeal, and thus it would seem this part of the

claim is also procedurally barred, Appellee has not raised procedural bar with

respect to this aspect of Hale’s claim. As such, we will consider Hale’s

kidnapping claim on the merits, see Hooks, 184 F.3d at 1223 (proceeding to

- 57 -
merits of claim when state did not raise procedural bar), as did the federal district

court, which denied the claim and found that even if section 25 creates a liberty

interest, Oklahoma would not find that Hale was entitled to have the state charges

dismissed under that statute. Because, as noted above, the Oklahoma courts never

addressed Hale’s claim that Okla. Stat. tit. 21, § 25 created a federally protected

liberty interest preventing the state prosecution of Hale for kidnapping, the claim

was not “adjudicated on the merits in State court proceedings,” as contemplated

by 28 U.S.C. § 2254(d). Thus, we must review the claim under pre-AEDPA

standards. Prior to AEDPA we reviewed questions of law on habeas de novo.

Hooks, 184 F.3d at 1223.

“Whether an interest created by state law rises to the level of a ‘liberty

interest’ protected by the Due Process Clause of the Fourteenth Amendment is a

matter of federal law.” Montero v. Meyer, 13 F.3d 1444, 1447 (10th Cir. 1994).

It is unnecessary for this court to determine whether section 25 creates a liberty

interest cognizable under the United States Constitution, because whether it does

or not, Oklahoma would not find that Hale’s claim falls within the scope of

section 25.

Section 25 states:

Whenever it appears upon the trial that the accused has already been
acquitted or convicted upon any criminal prosecution under the laws
of another state, government or country, founded upon the act or

- 58 -
 omission in respect to which he is upon trial, this is a sufficient
defense.

Russell v. State, 654 P.2d 1058, 1061 (Okla. Crim. App. 1982) (quoting Okla.

Stat. tit. 21, 21 O.S. § 25). Hale’s conviction in federal court under the Hobbs

Act constituted a conviction under the laws of another government for purposes

of section 25. See Russell, 654 P.2d at 1061. Under the decisions of Oklahoma

courts addressing the interpretation of this statute, the question then becomes

“whether the federal and subsequent State prosecutions were founded upon the

same offense or ‘acts’ as provided in the statute.” Id. 13 To make this

determination, the Oklahoma courts look to the language of the different statutes

13
Hale argues in his brief that this court has already held that the state and
federal convictions in this case are based on the same acts and thus, under the
“law of the case” doctrine, we are bound. Hale cites to this court’s opinion in
Hale v. United States Department of Justice, 99 F.3d 1025 (10th Cir. 1996). In
that case, this court stated “[i]n 1983 Hale was convicted in the United States
District Court for the Western District of Oklahoma under the Hobbs Act, 18
U.S.C. § 1951, for his action in connection with the kidnapping and murder of
William Jeffrey Perry. Hale was sentenced to twenty years imprisonment. The
following year, Hale was convicted and sentenced to death by the State of
Oklahoma for his role in the same crime.” Id. at 1027-28 (citations omitted).
Hale misconstrues the “law of the case” doctrine. As explained in Jeffries v.
Wood, 114 F.3d 1484 (9th Cir. 1997), the law of the case is a doctrine under
which an appellate court will not reconsider a matter resolved on a prior appeal.
Id. at 1488-89. The rule prevents questions already considered and decided once
in the case from being reargued at every subsequent stage of the case. Id. at
1489. The statement made by this court in Hale was not an issue that was
“resolved” or “considered and decided” by this court. Instead, this court was
simply reciting the history of the case, thus there is no “law of the case” on this
point.

- 59 -
under which the defendant was convicted. If “evidence necessary to prove the

federal charges would not be sufficient to prove the state charges, and vice

versa,” then section 25 has not been violated. Russell, 654 P.2d at 1062-63;

Hubbell v. State, 585 P.2d 369, 374 (Okla. Crim. App. 1978) (same). Thus, if the

evidence used to prove the federal crime is insufficient to prove the state crime

and vice versa, the trial in the federal court would not bar a subsequent

prosecution in state court, even though the underlying facts are the same. Russell,

654 P.2d at 1063.

In the federal prosecution, Hale was charged with violating the Hobbs Act,

18 U.S.C. § 1951. That statute provides that:

(a) Whoever in any way or degree obstructs, delays, or affects
commerce or the movement of any article or commodity in
commerce, by robbery or extortion or attempts or conspires so to do,
or commits or threatens physical violence to any person or property
in furtherance of a plan or purpose to do anything in violation of this
section shall be fined not more than $10,000 or imprisoned not more
than twenty years, or both.

The Supreme Court has found that there are two essential elements of a Hobbs

Act crime: “interference with commerce, and extortion.” Stirone v. United States,

361 U.S. 212, 218, 80 S. Ct. 270, 4 L. Ed. 2d 252 (1960).

Hale was prosecuted in state court in Oklahoma for kidnapping for

extortion, Okla. Stat. tit. 21, § 745. The kidnapping statute reads as follows:

A. Every person who, without lawful authority, forcibly seizes and
confines another, or inveigles or kidnaps another, for the purpose of

- 60 -
 extorting any money, property or thing of value or advantage from
the person so seized, confined, inveigled or kidnapped, or from any
other person, or in any manner threatens either by written instrument,
word of mouth, message, telegraph, telephone, by placing an ad in a
newspaper, or by messenger, demands money or other thing of value,
shall be guilty of a felony, and upon conviction shall suffer death or
imprisonment in the penitentiary, not less than ten (10) years.

Oklahoma has stated that this statute requires that a jury find four essential

elements: “(1) an unlawful, (2) forcible seizure and confinement (3) of another

(4) with the intent to extort a valuable thing or advantage from any person.”

Turner v. State, 786 P.2d 1251, 1254 (Okla. Crim. App. 1990).

Upon looking at the elements that need to be proven by the State, it

becomes clear that under each statute the state or federal government must prove

an element not necessary to any other charge. In the Hobbs Act case, the federal

prosecutor had to show that Hale’s actions interfered with commerce. This

evidence was not necessary to prove the state crime of kidnapping. Likewise, in

the kidnapping charge the state prosecutor had to prove forcible seizure and

confinement of another. This was not an element of the Hobbs Act. As the

Oklahoma court stated in Hubbell:

[A]lthough it appears that the same exhibits . . . were introduced in
both federal and state courts, it does not follow that [Hale] was being
tried twice for the same offense. . . . The evidence necessary to
prove the federal offense would be insufficient to prove the state
offense and vice versa. Therefore, the trial in federal court did not
bar a subsequent prosecution in state court.

Hubbell, 585 P.2d at 374.

- 61 -
 Therefore, it is clear that Oklahoma did not violate Okla. Stat. tit. 21, § 25

when it prosecuted Hale for kidnapping following the federal prosecution under

the Hobbs Act. Since there was no violation of section 25, there can be no denial

of a liberty interest predicated upon section 25. Thus, we deny relief under this

claim.

III. Brady claim

Hale next argues that he is entitled to habeas relief because the F.B.I. has

continued to suppress evidence in its possession after Hale requested it pursuant

to the Freedom of Information Act (“FOIA”), in violation of Brady v. Maryland,

373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d. 215 (1963). Appellee counters that this

claim is procedurally barred.

Hale did not raise this Brady claim on direct appeal. On post-conviction

review, the OCCA rejected this claim, finding that it could have been raised on

direct appeal and was not; thus it was barred from being raised on post-

conviction. Hale II, 807 P.2d at 268-69 (citing Okla. Stat. tit. 22, § 1086). “We

may not consider issues raised in a habeas petition ‘that have been defaulted in

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

petitioner can demonstrate cause and prejudice or a fundamental miscarriage of

justice.’” Medlock v. Ward, 200 F.3d 1314, 1323 (10th Cir. 2000) (quoting

- 62 -
English v. Cody, 146 F.3d 1257, 1259 (10th Cir. 1998) (citing Coleman v.

Thompson, 501 U.S. 722, 749-50, 111 S. Ct. 2546, 115 L. Ed. 2d 640 (1991))).

We have recently recognized that Oklahoma’s bar on raising claims on post-

conviction that could have been raised on direct appeal is an independent and

adequate state bar with regard to Brady claims. See Clayton v. Gibson, 199 F.3d

1162, 1175 (10th Cir. 1999); see also Okla. Stat. tit. 22, § 1086. 14 As we stated in

Brecheen v. Reynolds, 41 F.3d 1343 (10th Cir. 1994), section 1086 “precludes

state collateral review of . . . issues that could have been raised on direct appeal

but were not.” Id. at 1349 n.4. 15 Furthermore, Hale has failed to show cause and

14
“All grounds for relief available to an applicant under this act must be
raised in his original, supplemental or amended application. Any ground finally
adjudicated or not so raised, or knowingly, voluntarily and intelligently waived in
the proceeding that resulted in the conviction or sentence or in any other
proceeding the application has taken to secure relief may not be the basis for a
subsequent application, unless the court finds a ground for relief asserted which
for sufficient reason was not asserted or was inadequately raised in the prior
application.” Okla. Stat. tit. 22, § 1086.
15
The federal district court determined that Oklahoma’s procedural bar was
not independent and adequate with regard to Brady claims. In reaching this
conclusion, the district court looked to two Oklahoma cases in which the Court of
Criminal Appeals did not apply the bar on Brady claims. See Rojem v. State , 925
P.2d 70 (Okla. Crim. App. 1996); Castleberry v. State , 590 P.2d 697 (Okla. Crim.
App. 1979). In Rojem , the court addressed the Brady claim on post-conviction
because new evidence, not previously discoverable, was presented to the court.
See Rojem , 925 P.2d at 73-74. In Castleberry , the court addressed the Brady
claim because it was inadequately raised on direct appeal. See Castleberry , 590
P.2d at 701. Both of these cases fall within the stated exception contained within
§ 1086. See Okla. Stat. tit 22, § 1086 (barring claims not raised on direct appeal
unless the court “finds a ground for relief asserted which for sufficient reason
(continued...)

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prejudice, or that a fundamental miscarriage of justice will occur if we do not

address this claim. Thus, we conclude Hale is barred from raising this claim.

IV. Change of Venue

Hale next argues that he was denied a fair trial when the trial judge failed

to grant defense counsel’s motion for a change of venue. On direct appeal, the

OCCA, in a 2-1 decision, rejected this claim. Relying on the Supreme Court’s

decisions in Irwin v. Dowd, 366 U.S. 717, 81 S. Ct. 1639, 6 L. Ed. 2d 751 (1961),

and Murphy v. Florida, 421 U.S. 794, 95 S. Ct. 2031, 44 L. Ed. 2d 589 (1975), the

court found that Hale had failed to show that the pretrial publicity created actual

15
(...continued)
was not asserted or was inadequately raised in the prior application”).
This Court has recognized that a state court finding of procedural default is
adequate “if it is strictly or regularly followed.” Maes v. Thomas , 46 F.3d 979,
986 (10th Cir. 1995) (quotation marks omitted). Adequacy requires “application
of the rule ‘evenhandedly to all similar claims.’” Id. (emphasis added). “The test
. . . is whether the state courts’ actual application of the particular procedural
default rule to all similar claims has been evenhanded in the vast majority of
cases.” Id. (alterations and quotation marks omitted) (emphasis added). The two
cases cited by the district court were not similar to the case in Hale because they
fell within the statutory exception. Moreover, we have repeatedly found that
Oklahoma has applied section 1086 consistently to preclude claims on post-
conviction review which could have been raised on direct appeal. See Brecheen,
41 F.3d at 1356, Steele v. Young, 11 F.3d 1518, 1522 (10th Cir. 1993); see also
Smith v. State, 878 P.2d 375, 377 n.2 (Okla. Crim. App. 1994) (applying section
1086 to preclude Brady claim not raised on direct appeal); Banks v. State, 810
P.2d 1286, 1289 n.2 (Okla. Crim. App. 1991) (same). Thus, we again conclude
that section 1086 is an adequate state bar to Brady claims raised on post-
conviction review that could have been raised on direct appeal.

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or presumed prejudice. See Hale I, 750 P.2d at 134-35. The court noted that each

of the jurors finally seated stated that he or she could set aside any opinion held

and could be impartial. Id. In addition, every juror challenged for cause was

dismissed. Under these circumstances, the court found that the trial court’s

decision to deny the motion for a change of venue was not an abuse of discretion.

Id. at 135. The State argues that this determination was not an unreasonable

application of Supreme Court precedent.

On February 22, 1984, Hale filed a petition for change of venue. On

February, 24, 1984 a hearing was held on Hale’s motion, during which time

Hale’s counsel presented the testimony of two county residents who testified that,

in their opinion, based upon pre-trial publicity and conversations with citizens in

the area, Hale would not be able to receive a fair trial because people had already

decided Hale was guilty. Hale also introduced numerous articles published in the

two newspapers with local circulation. At the conclusion of the hearing, the trial

judge took the motion under advisement until after voir dire.

Prior to Hale’s trial, the news coverage of Perry’s abduction and murder, as

well as the arrest and indictment and federal prosecution, was considerable. The

newspaper accounts revealed details of the murder, kidnapping, ransom demand,

and Hale’s arrest and arraignment on federal charges, and further detailed the cost

to the county associated with escorting Hale to court by federal marshals. The

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articles included pictures of Hale and of the crime scene where Perry’s body was

eventually found. The paper also reported the impact on the community and the

Perry family. One article discussed the fact that Hale had previous dealings with

the bank in which he owed money, and also discussed related civil and criminal

charges against Hale. The newspapers also reported the incident involving

Brenda Allison, who claimed that Hale had told her that her husband was hurt in a

car accident and offered her a ride just a day prior to Perry’s abduction. When

Perry was found guilty on the federal extortion charges, there were more articles

in the newspaper. Several papers also reported the testimony of witnesses in the

federal extortion case.

During voir dire, thirty-seven jurors were called and examined by the trial

judge and the attorneys. Of those thirty-seven, only three stated they had no prior

knowledge of the case. Twelve potential jurors admitted that they had held some

opinion at some point about Hale’s guilt. Six of these twelve were seated on

Hale’s jury. In addition, four potential jurors knew Hale or his family and eight

knew the victim or his family. Furthermore, one of the jurors finally seated had

discussed the case with one of the key witnesses at trial, Ms. Miller, but stated

that she could be impartial. At the conclusion of voir dire, the judge asked the

jurors if anyone seated could not be fair and impartial. No one responded. The

judge then overruled the motion for a change of venue. This ruling, following the

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inquiry by the court as to whether the jurors could be impartial, serves as a

general finding by the court that the panel selected for the trial was impartial.

See Church v. Sullivan, 942 F.2d 1501, 1518 (10th Cir. 1991) (holding that a trial

judge’s denial of a change of venue in connection with his statement that the

court had found twelve impartial jurors and one alternate in two hours, served as

a general finding of impartiality).

“We review the trial court’s decision denying a transfer of venue for an

abuse of discretion. We give great deference to the trial court’s exercise of its

discretion, and its decision is entitled to a presumption of correctness and will not

be overturned unless there is manifest error.” Stafford, 34 F.3d at 1565 (internal

quotation marks and citations omitted); see also Mayes v. Gibson, 210 F.3d 1284,

1291 (10th Cir. 2000) (post-AEDPA). Our review of state court findings is

limited in part because the “state trial judge had the benefit of observing the

general demeanor of the jurors as the basis for his general finding [of

impartiality].” Brecheen, 41 F.3d at 1350. Thus, a habeas petitioner attempting

to show a due process violation because of a state trial judge’s failure to grant a

change of venue motion “must demonstrate either that the trial resulted in actual

prejudice or that it gave rise to a presumption of prejudice because it involved

‘such a probability that prejudice will result that it is deemed inherently lacking in

due process.’” Id. at 1350 (quoting Estes v. Texas, 381 U.S. 532, 542-43, 85 S.

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Ct. 1628, 1633, 14 L. Ed. 2d 543 (1065)); see also Murphy, 421 U.S. at 798-99

(discussing cases in which Supreme Court held due process violations had

occurred after finding either actual prejudice or presumed prejudice).

1. Presumed Prejudice

The defendant bears the burden of establishing that prejudice should be

presumed. See Stafford v. Saffle, 34 F.3d 1557, 1566 (10th Cir. 1994). In order

to demonstrate that prejudice should be presumed, the defendant must “establish

that an irrepressibly hostile attitude pervaded the community.” Id. at 1567.

“Simply showing that all the potential jurors knew about the case and that there

was extensive pretrial publicity will not suffice to demonstrate that an

irrepressibly hostile attitude pervaded the community.” Id. Presumed prejudice is

“rarely invoked and only in extreme circumstances.” Id.

The Supreme Court has presumed prejudice in only a small number of

cases. In those cases where the Court has presumed prejudice, however, “the

influence of the news media, either in the community at large or in the courtroom

itself, pervaded the proceedings,” Murphy, 421 U.S. at 799, and created either a

circus atmosphere in the court room or a lynch mob mentality such that it would

be impossible to receive a fair trial. See Sheppard v. Maxwell, 384 U.S. 333, 86

S. Ct. 1507, 16 L. Ed. 2d 600 (1966) (finding a due process violation from five

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volumes of news clippings, accommodation for the press in the courthouse and

courtroom, publication of potential juror’s names and addresses allowing the

public to contact potential jurors pretrial); Rideau v. Louisiana, 373 U.S. 723, 83

S. Ct. 1417, 10 L. Ed. 2d 663 (1963) (finding due process violation after

defendant’s filmed confession was repeatedly broadcast on the local television

news of the small town); Estes 381 U.S. at 545-51 (presuming prejudice based on

pretrial and trial media coverage that resulted in a disruptive circus atmosphere

that deprived the defendant of the solemnity and sobriety to which a defendant is

entitled).

The facts of this case do not rise to the level of those in Rideau, Sheppard,

or Estes. Although Hale presented evidence of approximately thirty newspaper

articles written about the case, these articles alone are not sufficient to show that

prejudice should be presumed, particularly given the fact that they were written

over a five month period with the largest volume dating from several months

before Hale’s trial. As the Supreme Court stated in Murphy, a jury’s exposure to

a “defendant’s prior convictions or to news accounts of the crime with which he

is charged” cannot alone demonstrate that the defendant was denied due process.

421 U.S. at 799. The evidence does not demonstrate that the pre-trial publicity

had created such a media frenzy or circus atmosphere that Hale could not possibly

have received a fair trial. Thus, Hale has failed to meet his burden of showing

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that an irrepressibly hostile attitude pervaded the community such that prejudice

could be presumed.

2. Actual Prejudice

Hale also seems to suggest that the voir dire proceedings showed actual

prejudice based on responses of actual and potential jurors, almost all of whom

had heard about the case and some of whom had formed opinions based on

pretrial publicity. “We review actual prejudice by examining the totality of the

circumstances.” Stafford, 34 F.3d at 1567. “Due process requires that the

accused receive a fair trial by an impartial jury free from outside influences.”

United States v. Abello-Silva, 948 F.2d 1168, 1177 (10th Cir. 1991) (quoting

Sheppard, 384 U.S. at 362). “The trial court has broad discretion in gauging the

effects of allegedly prejudicial publicity and in taking measures to insure a fair

trial.” Id. (quotation marks omitted). The trial court in this case made a general

finding that the jury was impartial. The Supreme Court has stressed that partiality

does not mean:

that the jurors be totally ignorant of the facts and issues involved. In
these days of swift, widespread and diverse methods of
communication, an important case can be expected to arouse the
interest of the public in the vicinity, and scarcely any of those best
qualified to serve as jurors will not have formed some impression or
opinion as to the merits of the case. This is particularly true in
criminal cases. To hold that the mere existence of any preconceived
notion as to the guilt or innocence of an accused, without more, is

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 sufficient to rebut the presumption of a prospective juror’s
impartiality would be to establish an impossible standard. It is
sufficient if the juror can lay aside his impression or opinion and
render a verdict based on the evidence presented in court.

Irwin, 366 U.S. at 722-23.

In this case, twelve out of thirty-seven jurors questioned had opinions. Six

out of those twelve were dismissed and six were seated on the jury. These six all

testified that they could put aside their opinions and judge the case on the facts.

Moreover, the trial judge asked twice whether there were any jurors who felt they

could not be impartial. No juror responded. See Yount, 467 U.S. at 1035

(stating that the relevant inquiry is whether the jurors at the defendant’s trial “had

such fixed opinions that they could not judge impartially the guilt of the

defendant”); see also Stafford, 34 F.3d at 1567 (finding petitioner had failed to

show jury was not impartial despite fact that one juror stated that “I will do my

best” when asked whether he could keep the knowledge of one set of murders for

which the defendant had previously been tried and convicted, separate from the

current set of murder charges). Furthermore, after reviewing the voir dire

proceedings, there is no indication from the jurors’ responses that there was an

atmosphere of hostility toward the defendant, nor did the trial court have a

difficult time in seating the jury.

As the OCCA explained, the facts of this case are in contrast to Irwin v.

Dowd, in which the Supreme Court found actual prejudice. In Irwin, over ninety

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percent of the 430 prospective jurors interviewed entertained some opinion as to

guilt, 268 were dismissed for cause, and eight out of the twelve jurors actually

seated stated they believed the defendant was guilty. Irwin, 366 U.S. at 727.

Based on these facts and the obvious hostility towards the defendant revealed

during voir dire, the Court determined the defendant could not have received a

fair trial. The totality of the circumstances of this case do not compare to the

situation presented in Irwin. Here, none of the seated jurors stated unequivocally

that they believed Hale was guilty, nor was there a showing that any of the seated

jurors had such fixed opinions that they could not judge the case impartially.

Moreover, out of 37 jurors called only eight jurors were dismissed for cause.

Thus, the trial court did not encounter the same difficulty in seating a jury that the

court in Irwin confronted. It is also clear from reading the voir dire in this case,

that there was not the vehement hostility present in the jurors’ responses that the

Supreme Court found important in Irwin. Id. at 726-27. Therefore, viewing the

totality of the circumstances present during voir dire, we cannot conclude that the

trial court’s finding that the jury was impartial was in error. Thus, the OCCA’s

determination that the trial court did not abuse its discretion in denying the

motion to change venue was not an unreasonable application of federal law as

interpreted by the Supreme Court.

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V. “Avoid Arrest or Prosecution” Aggravator

Hale argues there was such a lack of evidence to support the aggravator

that the murder was committed to avoid arrest or prosecution that his federal

constitutional rights were violated. Jackson v. Virginia, 443 U.S. 307, 99 S. Ct.

2781, 61 L. Ed. 2d 560 (1979). Hale did not raise this claim on direct appeal. On

post-conviction review, the OCCA determined that this issue was barred because

it could have been raised on direct appeal, but was not. Hale II, 807 P.2d at

269. 16 Because Hale’s claim of insufficient evidence was not adjudicated on the

merits in state court proceedings, the new standard articulated in § 2254(d) does

not govern our review. See Hooks v. Ward, 184 F.3d 1206, 1223 (10th Cir.

1999).

On a constitutional claim that there was insufficient evidence, we must

determine whether “after viewing the evidence in the light most favorable to the

prosecution, any rational trier of fact could have found the essential elements of

the crime beyond a reasonable doubt.” Foster v. Ward, 182 F.3d 1177, 1194 (10th

Cir. 1999). To support a finding of the “avoid arrest or prosecution” aggravator,

“the focus is on the defendant’s intent, whether proved by the defendant’s own

Because Appellee has not raised procedural bar on this appeal, we
16

decline to raise the issue sue sponte where Hale has not had an opportunity to
show cause and prejudice. We therefore proceed to the merits of the claim. See
Duvall v. Reynolds, 139 F.3d 768, 796 n.11 (10th Cir. 1998).

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statement or through circumstantial evidence.” Fox v. Ward, 200 F.3d 1286, 1301

(10th Cir. 2000). In addition, Oklahoma courts require the existence of a

predicate crime apart from the murder from which the defendant sought to avoid

arrest or prosecution. McGregor v. State, 885 P.2d 1366, 1385 (Okla. Crim. App.

1994). In the instant case, there was ample evidence from which a rational fact

finder could conclude beyond a reasonable doubt that the aggravating

circumstance was present. First, the Oklahoma Court of Criminal Appeals

concluded that there was evidence that Hale knew or was familiar with the victim

and his family. We agree, and Hale has presented no evidence to dispute this

fact. In addition, there was testimony from a witness at trial that she saw Hale

grab the victim, haul him over a fence, and shove him into his car, with no

attempt by the defendant to conceal his identity. See Fox, 200 F.3d at 1301

(finding sufficient evidence to support avoid arrest aggravator and noting that

defendants failed to conceal their identity to their victims). There was also

testimony that Hale stated to a cellmate that he knew how to get rid of witnesses.

Furthermore, there was clearly a predicate crime–kidnapping for extortion–apart

from the murder itself from which Hale sought to avoid arrest or prosecution.

Based on all of the foregoing circumstantial evidence, we find a rational trier of

fact could find the aggravator was present beyond a reasonable doubt. Hale’s

claim for relief on this ground fails.

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VI.“Heinous, atrocious, or cruel” aggravator

Hale’s final argument is that his death sentence should be set aside because

the evidence was constitutionally insufficient to prove that he was personally

responsible for inflicting the wounds Perry suffered prior to death. The OCCA

reviewed the evidence on direct appeal and found that there was sufficient

evidence to support the aggravator.

The appropriate standard for reviewing this claim is the rational factfinder

standard established in Jackson v. Virginia, 443 U.S. 307 (1979). 17 The

“especially heinous, atrocious, or cruel” aggravator is properly found when the

murder was “preceded by torture or serious physical abuse.” Medlock v. Ward,

200 F.3d 1314, 1321 (10th Cir. 2000) (per curiam). Torture includes “the

infliction of either great physical anguish or extreme mental cruelty,” while

17
Prior to AEDPA, we reviewed sufficiency of the evidence challenges de
novo. See Moore v. Gibson, 195 F.3d 1152, 1176 (10th Cir. 1999). Under
AEDPA, however, our standard of review is not as clear. There is precedent in
the Tenth Circuit that a sufficiency of the evidence challenge is a legal question
and other precedent suggesting it is a question of fact. See Moore, 195 F.3d at
1176-77 (collecting cases on both sides). If we treat the issue as a legal
determination, we look to 28 U.S.C. § 2254(d)(1) and determine whether the state
court decision was contrary to or an unreasonable application of clearly
established federal law. If, on the other hand, it is a factual question, we look to
§ 2254(d)(2) and decide whether the state court decision was an unreasonable
determination of the facts in light of the evidence presented to the state court.
Further, § 2254(e)(1) requires us to afford a presumption of correctness to a state
court’s factual findings. In this case, however, we do not determine which is the
more appropriate analysis because Hale’s claim lacks merit under either standard
of review.

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physical abuse requires evidence of conscious physical suffering. Id.; Clayton v.

Gibson, 199 F.3d 1162, 1177 (10th Cir. 1999).

In this case, there is evidence in the record that Perry received at least five

gunshot wounds, only two or three of which were fatal–two shots to the head, and

possibly one shot to the abdomen. In addition, on the morning Perry was

abducted, Ms. Miller testified that she saw a man, who appeared to be Perry, bent

over holding his side and bleeding in the field crying for help. She then

witnessed Hale run towards Perry, pull him over a fence, and push him into his

car. The testimony of Ms. Miller was later corroborated by the finding of blood

in the location where she saw Perry. This evidence is consistent with conscious

physical suffering.

Hale argues, however, that there was no evidence that he was the one to

inflict the wounds on Perry. First, this assertion flies in the face of the jury

verdict of guilty on the first-degree murder charge. The jury found Hale guilty for

the murder of Perry. There was more than sufficient evidence for the jury to find

that Hale was guilty of Perry’s murder. We therefore find that a rational trier of

fact could have found the “heinous, atrocious, or cruel” aggravator beyond a

reasonable doubt.

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 CONCLUSION

For the above-stated reasons, we DENY habeas relief and AFFIRM the

decision of the district court.

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