Sallahdin v. Gibson

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
JAN 4 2002
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT

SHARIEFF IMANI SALLAHDIN,
also known as Michael Pennington,

Petitioner-Appellant,
No. 99-6361
v.

GARY GIBSON, Warden, Oklahoma
State Penitentiary,

Respondent-Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
(D.C. No. 97-CV-2051-A)

Fred L. Staggs, Oklahoma City, Oklahoma, for Petitioner-Appellant.

William L. Humes, Assistant Attorney General (W.A. Drew Edmondson, Attorney
General of Oklahoma, with him on the brief), Oklahoma City, Oklahoma, for
Respondent-Appellee.

Before EBEL , Circuit Judge, BRORBY , Senior Circuit Judge, and BRISCOE ,
Circuit Judge.

BRISCOE , Circuit Judge.
 Petitioner-Appellant Sharieff Imani Sallahdin, formerly Michael

Pennington, 1
appeals from the district court’s denial of his federal habeas corpus

petition brought pursuant to 28 U.S.C.§ 2254. In his petition, Sallahdin lodged

eleven challenges to his first degree murder conviction and death sentence. His

appeal contests the district court’s disposition of each challenge, raising the

following issues: (1) four challenges concerning the jury and whether Sallahdin

was deprived of due process of law and a fair and impartial jury; (2) whether the

information was constitutionally adequate; (3) whether the trial court’s failure to

define life without parole for the jury was constitutional error; (4) whether the

reference to post-arrest silence violated his constitutional rights; (5) whether the

two aggravators applied to his sentencing are supported by sufficient evidence;

(6) whether the continuing threat aggravator is unconstitutional because it is

vague and applied in a standardless manner; (7) whether the jury instructions

failed to inform the jury that it did not have to be unanimous to find and apply

mitigating circumstances to his sentence; and (8) whether Sallahdin was deprived

of admissible mitigation evidence concerning steroid-induced psychosis. This

court has jurisdiction pursuant to 28 U.S.C. § 1291.

Sallahdin’s most troubling challenge concerns whether trial counsel was

ineffective for failing to present mitigating evidence of the effects of Sallahdin’s

1
Sallahdin formally changed his name.

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steroid use on his behavior at the time of the crime. After carefully examining the

record, we are persuaded that, had this evidence been presented, there is a

reasonable probability the outcome of the sentencing phase would have been

different, i.e., that the jury would have imposed a sentence other than death.

Because, however, we are not privy to trial counsel’s reasons for not presenting

this evidence, and because we can envision circumstances where it would have

been constitutionally reasonable for counsel not to introduce this evidence despite

its potentially mitigative effect, we find it necessary to reverse and remand this

case to the district court for an evidentiary hearing solely on this specific issue

concerning trial counsel's performance. As regards all other issues raised by

Sallahdin, we affirm.

FACTS

The pertinent facts concerning the murder are undisputed as summarized by

the Oklahoma Court of Criminal Appeals in the opinion disposing of his direct

criminal appeal. Pennington v. State, 913 P.2d 1356 (Okla. Crim. App. 1995),

cert. denied , 519 U.S. 841 (1996). At approximately 5:00 a.m. on October 21,

1991, James Principe and Bradley Grooms were stocking shelves at the 7-Eleven

convenience store where they worked. Principe heard a loud bang and saw a

black man looking in Grooms’ direction. Principe ducked, made his way to the

back of the store and locked himself in the bathroom. After emerging from the

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bathroom, he contacted the police and then saw Grooms lying motionless on the

floor with a gunshot wound to the chest. Grooms died from his injuries. Principe

later identified Sallahdin as the man who shot Grooms.

That same morning, Lynn Smith stopped at the 7-Eleven to get some ice.

Sallahdin was behind the counter and gave her a cup of ice. She did not see

anyone else in the store. Upon leaving, she looked back and saw Sallahdin leave

the store and drive away in a car. The following day, Sallahdin was taken into

custody at his wife’s home in Akron, Ohio.

At trial, Sallahdin testified another man committed the murder. The jury

convicted Sallahdin of first degree malice murder, which is punishable by death in

Oklahoma. When the trial proceeded to the sentencing phase, the State sought the

death penalty based on three aggravators: (1) Sallahdin posed a continuing threat

to society; (2) he committed the murder to avoid arrest or prosecution; and (3) he

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

the guilt phase evidence about the crime, the State presented evidence of threats

Sallahdin made while incarcerated. The jury found all three aggravating

circumstances. After Sallahdin presented his own testimony in mitigation and

mitigating testimony from friends, family, commanders, peers and others who

knew him; the jury determined the aggravating factors outweighed the mitigating

evidence and fixed punishment at death.

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 On direct appeal, the Oklahoma Court of Criminal Appeals affirmed the

conviction and death sentence, after striking the great risk of death to more than

one person aggravator and reweighing the remaining aggravators against the

mitigating evidence. That court later denied post-conviction relief. Sallahdin v.

State , 947 P.2d 559 (Okla. Crim. App. 1997).

STANDARDS OF REVIEW

Because Sallahdin filed his federal habeas petition after the effective date

of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), that Act

governs this court’s review. See Penry v. Johnson , 121 S. Ct. 1910, 1918 (2001).

Under AEDPA, if a claim is adjudicated on its merits in state court, a petitioner is

entitled to federal habeas relief only if he can establish that the state court

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

established Federal law, as determined by the Supreme Court of the United

States” or “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)(1), (2).

Under § 2254(d)(1), a federal court may grant a writ of habeas
corpus only if the state court reached a conclusion opposite to that
reached by the Supreme Court on a question of law, decided the case
differently than the Supreme Court has decided a case with a
materially indistinguishable set of facts, or unreasonably applied the
governing legal principle to the facts of the petitioner’s case. “Under
§ 2254(d)(1)’s ‘unreasonable application’ clause . . ., a federal
habeas court may not issue the writ simply because that court
concludes in its independent judgment that the relevant state-court
decision applied clearly established federal law erroneously or

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 incorrectly. Rather that application must also be unreasonable.” “In
sum, § 2254(d)(1) places a new constraint on the power of a federal
habeas court to grant a state prisoner’s application for a writ of
habeas corpus with respect to claims adjudicated on the merits in
state court.” AEDPA also requires federal courts to presume state
court factual findings are correct, and places the burden on the
petitioner to rebut that presumption by clear and convincing
evidence. See 28 U.S.C. § 2254(e)(1).

Walker v. Gibson , 228 F.3d 1217, 1225 (10th Cir. 2000) (quoting and citing

Williams v. Taylor , 529 U.S. 362, 411-13 (2000)), cert. denied , 121 S. Ct. 2560

(2001).

When the state courts have not considered the claim on the merits and the

federal district court made its determination in the first instance, the district

court’s conclusions of law are subjected to de novo review and its findings of

fact, if any, are examined for clear error. LaFevers v. Gibson , 182 F.3d 705, 711

(10th Cir. 1999). However, if the state courts did not adjudicate the issue on the

merits and the district court did not hold an evidentiary hearing, basing its factual

findings only on a review of the state court record, this court does not give those

findings the benefit of the clearly erroneous standard, but instead conducts an

independent review. See Walker, 228 F.3d at 1225 (citing Smallwood v. Gibson ,

191 F.3d 1257, 1264 n.1 (10th Cir. 1999), cert. denied , 531 U.S. 833 (2000)).

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 DISCUSSION

Failure to Excuse Juror for Cause

Sallahdin argues he was deprived of a fair and impartial jury when the trial

court did not reopen voir dire after juror Lyle Kurtis Cable stated he could not be

a fair juror, and then refused to remove him for cause. The parties had passed

Juror Cable for cause. Later, during voir dire of other prospective jurors, he

stated “I can’t see myself being a fair juror in this particular case.” Tr. Vol. 3 at

10. Immediately thereafter, the court held a bench conference and indicated that

if both sides jointly moved to reopen voir dire , the motion would be granted. The

State did not move to reopen. Defense counsel stated “I think we should hear

what he has to say at least, Your Honor,” and the judge replied, “All right. Thank

you all very much.” Id. The trial court did not reopen voir dire and denied

Sallahdin’s later challenge for cause.

Refusal to Reopen Voir Dire – The Oklahoma Court of Criminal Appeals

rejected Sallahdin’s claim, stating “the manner and extent of voir dire

examination rests within the sound discretion of the trial judge.” Pennington , 913

P.2d at 1363. The court also noted Sallahdin did not use his peremptory

challenges to remove Juror Cable. Id. In his application for post-conviction

relief, the Oklahoma Court of Criminal Appeals declined to rule on the issue

based on the doctrine of res judicata . Sallahdin, 947 P.2d at 561.

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 “In a petition for habeas, our inquiry into the conduct of voir dire is limited

to whether the trial court’s restriction on voir dire rendered the trial

fundamentally unfair.” Mayes v. Gibson , 210 F.3d 1284, 1292 (10th Cir.) (citing

Mu’ Min v. Virginia , 500 U.S. 415, 425-26 (1991)), cert. denied , 531 U.S. 1020

(2000). A defendant’s right to an impartial jury includes the right to an adequate

voir dire to identify unqualified jurors. Morgan v. Illinois , 504 U.S. 719, 729

(1992); Moore v. Gibson , 195 F.3d 1152, 1170 (10th Cir. 1999), cert. denied ,

530 U.S. 1208 (2000). The trial court, however, retains great latitude in

conducting voir dire , Mu’Min, 500 U.S. at 424, and the Constitution does not

require an additional opportunity to make a searching inquiry. See Moore , 195

F.3d at 1170.

Here, the parties examined Juror Cable thoroughly with specific questions

regarding the death penalty. While he was being questioned on voir dire , he

affirmatively stated he could be fair and impartial, would follow the court’s

instructions, and would consider all three possible punishments. Both parties then

passed Juror Cable for cause. Significantly, although he had four peremptory

challenges remaining, Sallahdin did not use a peremptory challenge to remove

Juror Cable. If Sallahdin believed he needed to make further inquiry to determine

whether Juror Cable was biased and could not follow the law, he could have used

one of his peremptory challenges to remove him from the panel. Based on these

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facts and our limited scope of review, we cannot say the trial court abused its

discretion when it decided to disallow further inquiry. Sallahdin was not denied

his right to a fair and impartial jury. See Morgan , 504 U.S. at 730 & n.5; Mayes ,

210 F.3d at 1292.

Denial of Request to Remove Juror Cable for Cause -- For similar reasons,

Sallahdin’s claim of error concerning the trial court’s refusal to remove Juror

Cable for cause must also fail.

It is a long settled principle of Oklahoma law that a defendant who
disagrees with the trial court’s ruling on a for-cause challenge must,
in order to preserve the claim that the ruling deprived him of a fair
trial, exercise a peremptory challenge to remove the juror. Even
then, the error is grounds for reversal only if the defendant exhausts
all peremptory challenges and an incompetent juror is forced upon
him.

Ross v. Oklahoma , 487 U.S. 81, 89 (1988). Sallahdin does not argue he was

forced to use his four remaining peremptory challenges to remove incompetent

jurors. Rather, he cites to post-trial affidavits of Jurors Marie Bryant and Ruth

McGee to support his assertion the jury was biased. Juror Bryant stated she did

not want the death penalty, but other jurors believed that if one life is taken

another should be given in return. Juror McGee indicated she believed, after

hearing the evidence, that the only possible punishments were the death penalty or

life without parole.

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 We agree with the district court that these affidavits merely represent brief,

conclusory perceptions and opinions of these jurors, which do not reflect any

misrepresentation by themselves or other jurors during voir dire . See United

States v. McVeigh , 118 F. Supp. 2d 1137, 1153 (D. Colo. 2000) (28 U.S.C. § 2255

proceeding) (“statements made by trial jurors after they experienced the entire

trial and sentence hearing and after deliberating on the verdicts are not reasonably

probative of . . . whether [jurors] could consider the evidence with open minds

and follow the court’s instructions on the law in both phases of trial”). Therefore,

Sallahdin has not shown the trial court abused its discretion or denied him the

right to a fair trial when it declined to remove Juror Cable for cause. We affirm

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

Excusing Two Jurors and Failing to Remove Another for Caus e

Sallahdin argues the trial court deprived him of a fair and impartial jury by

removing for cause two jurors who had reservations about the death penalty, but

who indicated they could still follow the court’s instructions and could consider

the death penalty as a sentencing option. He also argues the trial court deprived

him of a fair and impartial jury by failing to remove for cause another juror who

stated he would not consider any penalty other than death for intentional murder.

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Thus, Sallahdin contends the jury was not impartial, but instead was death-

positive. 2

It is well-settled that “‘a juror may not be challenged for cause based on his

views about capital punishment unless those views would prevent or substantially

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

and his oath.’” Wainwright v. Witt , 469 U.S. 412, 420 (1985) (quoting Adams v.

Texas , 448 U.S. 38, 45 (1980)) (emphasis omitted). “The crucial inquiry is

whether the venireman could follow the court’s instructions and obey his oath,

notwithstanding his views on capital punishment.” United States v. Chanthadara ,

230 F.3d 1237, 1270 (10th Cir. 2000) (further quotation omitted), cert. denied ,

122 S. Ct. 457 (2001). “A trial judge’s determination of a potential juror’s bias

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

Moore , 195 F.3d at 1168 (citations omitted).

Prospective Juror Brierton -- Sallahdin argues the trial court improperly

refused to excuse Darrel K. Brierton for cause, forcing him to exercise a

peremptory challenge to remove this juror. The Oklahoma appellate court

determined the trial court properly refused to excuse this juror for cause, because

2
Again, Sallahdin cites to the affidavit of Juror Bryant to support his belief
that the jurors who served were not entirely truthful about their attitude toward
the three possible punishments. We reject this affidavit for the reasons discussed
previously.

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he unequivocally stated he would follow the instructions, would consider all

punishments, and would base his decision on the evidence. Pennington , 913 P.2d

at 1364. Sallahdin has failed to rebut the presumption of correctness afforded the

state court’s finding by clear and convincing evidence. See 28 U.S.C.

§ 2254(e)(1).

Even if the trial court should have removed Juror Brierton for cause,

Sallahdin cured any constitutional error when he used a peremptory challenge to

achieve an impartial jury. United States v. Martinez-Salazar , 528 U.S. 304, 307

(2000); Ross , 487 U.S. at 88. Thus, this claim also fails because Sallahdin has

failed to show the jurors who sat were not fair and impartial. See Ross , 487 U.S.

at 86, 88.

Prospective Jurors Peck and Gerald -- Sallahdin argues the trial court

improperly excused two jurors for cause. Robert Pruitt Peck, Jr., indicated that,

although he believed he could be fair and impartial, he would not consider the

death penalty due to his personal beliefs. He did equivocate by saying that

maybe, in an extreme circumstance, he could consider the death penalty, and he

could base his decision on the judge’s instructions and not on his personal

opinion. Later, he indicated there must be multiple deaths for him to consider the

death penalty. Finally, he indicated he would set aside his personal beliefs and

follow the instructions.

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 Cora Elizabeth Gerald stated she did not believe in the death penalty for

any case; nor did she believe she could set aside her personal feelings.

Nonetheless, based on defense counsel’s questioning, she stated she could follow

the judge’s instructions.

Examining the entirety of their voir dire , the Oklahoma Court of Criminal

Appeals determined that even though both prospective jurors indicated they would

try to follow the instructions, the bulk of their voir dire indicated they could not

impose a death sentence. Pennington , 913 P.2d at 1364. Thus, the court relied on

the trial court’s ability to determine whether these jurors would carry out their

duties and found no abuse of discretion. Id.

We defer to a trial court’s finding a juror would be partial because such a

finding turns on the juror’s credibility and demeanor — matters which the trial

court is in the best position to assess. Witt , 469 U.S. at 424-26; Patton v. Yount ,

467 U.S. 1025, 1037 n.12, 1038 & n.14, 1039-40 (1984). Having the benefit of

observing demeanor, the trial judge may resolve any ambiguity in favor of the

State. Chanthadara , 230 F.3d at 1272; see also Witt , 469 U.S. at 424, 434

(rejecting idea that juror’s bias must be proved with unmistakable clarity to

excuse juror for cause).

Again, given the deference we must accord the trial court under the

applicable scope of review, it was reasonable for that court to conclude these

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prospective jurors’ beliefs would prevent or substantially impair their duties as

jurors. Sallahdin has failed to rebut the trial court’s finding by clear and

convincing evidence. See 28 U.S.C. § 2254(e)(1). Therefore, we affirm the

district court’s denial of his petition for habeas relief on these juror issues.

State Exercise of Peremptory Challenge Against Black Juror

Sallahdin argues the State improperly used a peremptory challenge to

remove Juror Claiborne Cecil Jones, Jr., a black man, without providing a

sufficiently race-neutral reason to support the challenge. The prosecutor may not

exercise a peremptory challenge on the basis of race. Batson v. Kentucky ,

476 U.S. 79 (1986) . Batson sets forth a three-step test for evaluating such claims

of racial bias: (1) the defendant must make a prima facie showing the prosecutor

exercised peremptory challenges on the basis of race; (2) if the defendant makes a

prima facie showing, the burden shifts to the prosecutor to articulate a race-

neutral explanation for striking the juror; and (3) the trial court must then

determine whether the defendant has carried his burden of proving purposeful

discrimination. Purkett v. Elem , 514 U.S. 765, 767 (1995).

The disposition of a Batson claim is a question of fact subjected to the

standard enunciated in 28 U.S.C. § 2254(d)(2). Weaver v. Bowersox , 241 F.3d

1024, 1029-30, 1031 (8th Cir. 2001). We presume the state court findings are

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correct unless they are rebutted by clear and convincing evidence. Id.; 28 U.S.C.

§ 2254(e)(1).

Here, the prosecutor indicated he based the peremptory challenge primarily

on Juror Jones’ reservations about imposing the death penalty. In addition, the

prosecutor noted Juror Jones had possible pending traffic violations and he had

been excused as a juror in another murder case after his brother had been

murdered. The Oklahoma Court of Criminal Appeals determined this explanation

was race-neutral. Pennington , 913 P.2d at 1365 (applying Batson ).

The record supports a finding that the prosecutor’s proffered reasons were

not pretextual. See, e.g., United States v. Barnette , 211 F.3d 803, 812 (4th Cir.

2000) (deciding that juror’s disfavor of death penalty was race-neutral

explanation and record supported conclusion that this justification was not

pretextual); United States v. Moore , 149 F.3d 773, 780 (8th Cir. 1998) (rejecting

Batson challenge where government struck four jurors due to their opposition to

death penalty). Sallahdin has failed to carry his burden of proving purposeful

discrimination. See Moore, 149 F.3d at 780. Because he has not rebutted the trial

court’s finding by clear and convincing evidence, we affirm the district court’s

denial of habeas relief on Sallahdin’s Batson claim.

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 Failure to Remove Sleeping Juror

Sallahdin argues the trial court should have removed Juror McGee, who

allegedly fell asleep during the defense presentation. Sallahdin first raised this

claim in state post-conviction proceedings. The Oklahoma Court of Criminal

Appeals deemed it waived. Sallahdin , 947 P.2d at 560-61 & 561 n.2. This state

procedural bar is an independent and adequate state procedural ground to preclude

habeas review of this claim. See Coleman v. Thompson , 501 U.S. 722, 750

(1991) ; Hale v. Gibson , 227 F.3d 1298, 1328 (10th Cir. 2000), cert. denied , 121

S. Ct. 2608 (2001).

In an attempt to overcome this procedural bar, Sallahdin asserts his

appellate counsel was ineffective in failing to raise this claim on direct appeal.

Sallahdin relies exclusively on a post-trial affidavit from the sleeping juror.

Although she stated she was “on a lot of medication” and had trouble staying alert

during the defense's case due to the defense attorney's “monotone voice,” she at

no time stated that she actually fell asleep during any portion of the trial.

Addendum to Appl. for Post-Conviction Relief, Exh. 12. To the contrary, she

stated: “I think that the judge noticed that I was having trouble staying alert. . . .

The judge would usually call a recess and I'd become more alert and take my

medication.” Id. In light of the obvious deficiencies in this affidavit, and in light

of the fact there is no indication in the trial transcript that the juror ever fell

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asleep, there is clearly no basis to the claim. See generally United States v.

Carter , 433 F.2d 874 (876) (10th Cir. 1970) (concluding duty lies with defendant

to promptly bring such matters as an allegedly sleeping juror to the attention of

the court). Appellate counsel was not ineffective for failing to raise the issue on

direct appeal.

Failure of Information to Allege Elements of First Degree Murder

Sufficiency of Information -- Sallahdin argues the State violated his due

process rights because the Information improperly failed to allege malice

aforethought, an element of first degree murder, as required under the law in

effect at the time of the crime. See Okla. Stat. tit. 21, § 701.7(A) (“A person

commits murder in the first degree when that person unlawfully and with malice

aforethought causes the death of another human being. Malice is that deliberate

intention unlawfully to take away the life of a human being, which is manifested

by external circumstances capable of proof.”). Sallahdin first raised this claim on

direct appeal, after the appeal had been fully briefed, in a motion to present an

additional issue based on an intervening change of law. Sallahdin argued that

Pickens v. State , 885 P.2d 678, 683 (Okla. Crim. App. 1994), 3
the intervening

3
Pickens was overruled by Parker v. State, 917 P.2d 980, 986 (Okla. Crim.
App. 1996) (failure of Information to allege all elements of crime is not
jurisdictional, rather, court must determine whether defendant was denied due
process; i.e., whether the Information provided defendant with adequate notice of
(continued...)

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change of law, required the Information to allege malice aforethought in order to

allege the elements of malice aforethought murder. The Oklahoma Court of

Criminal Appeals granted the motion, but did not address the issue in its opinion.

Sallahdin requested rehearing. Without explanation, the court denied rehearing.

Sallahdin again raised the issue in post-conviction proceedings, but the Oklahoma

Court of Criminal Appeals declined to consider it. Sallahdin , 947 P.2d at 560-61

& 561 n.2.

The Information provided:

[O]n or about the 21st day of October, 1991, MICHAEL L.
PENNINGTON then and there being, did then and there, willfully,
unlawfully, wrongfully, and feloniously commit the crime of:
MURDER FIRST DEGREE in the manner and form as follows,
to-wit: That the said MICHAEL L. PENNINGTON did unlawfully,
wilfully and feloniously, without authority of law, and with a
premeditated design to effect the death of one Bradley Thomas
Grooms, a human being, did then and there kill one Bradley Thomas
Grooms by means of a firearm loaded with powder and shot, held in
the hands of the said defendant and with which he fired shot into the
body of the said Bradley Thomas Grooms, causing mortal wounds in
the body of the said Bradley Thomas Grooms, from which mortal
wounds the said Bradley Thomas Grooms did languish and die.

D. Ct. Rec. Vol. 1 at 1.

In Oklahoma, an Information must contain “[a] statement of the acts

constituting the offense, in ordinary and concise language, and in such manner as

3
(...continued)
the charges against him and apprised him of what he must defend against at trial).

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to enable a person of common understanding to know what is intended.”

Okla. Stat. tit. 22, § 401(2). A challenge to the adequacy of the Information

under Oklahoma law, however, is a question of state law, which this court has no

power to address. Johnson v. Gibson , 169 F.3d 1239, 1252 (10th Cir.), cert.

denied , 528 U.S. 972 (1999). Rather, this court may grant habeas relief only if

the state court error deprived the defendant of fundamental rights guaranteed by

the Constitution. Id. An Information may violate the Sixth Amendment by

failing to provide adequate notice of the nature and cause of the accusations

against the defendant. Id. ; see also Hamling v. United States , 418 U.S. 87, 117

(1974) (providing indictment is sufficient if it contains elements of the charged

offense, fairly informs defendant of charge against which he must defend and

allows the defendant to bar future prosecutions for the same offense).

Considering the Information along with the material available at the

preliminary hearing and through discovery, we conclude Sallahdin received

sufficient notice of the charge against him. The specific intent element of first

degree murder was sufficiently alleged by use of the words “premeditated

design.” Cf. Van White v. State , 990 P.2d 253, 261 (Okla. Crim. App. 1999)

(citing Okla. Stat. tit. 21, § 701.7(A)); Toles v. State , 947 P.2d 180, 184 (Okla.

Crim. App. 1997). See generally Black’s Law Dictionary 969, 1199 (7th ed.

1999) (defining malice aforethought as the requisite mental state for common-law

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murder, including intent to kill; defining premeditated as a killing done with

willful deliberation and planning). The record is clear that Sallahdin knew he was

charged with malice aforethought murder. There was no confusion, as there was

in Pickens , that the State may have instead charged him with felony murder. Cf.

Toles , 947 P.2d at 184-85 (recognizing defect in Pickens was irreconcilable

confusion whether Information charged felony or malice aforethought murder).

Furthermore, in closing argument, the State acknowledged it must prove malice

aforethought. Finally, the trial court here instructed the jury on malice

aforethought murder. See generally Penry , 121 S. Ct. at 1922 (presuming jurors

follow instructions).

Ex Post Facto -- Sallahdin also argues that application of Parker violates

ex post facto prohibitions because, in his view, Parker's overruling of Miller v.

State , 827 P.2d 875, 879 (Okla. Crim. App. 1992), was unforeseeable and

indefensible. Whether an ex post facto violation has occurred presents a question

of law. Cf. Lustgarden v. Gunter, 966 F.2d 552, 553 (10th Cir.1992). “To fall

within the ex post facto prohibition, a law must be retrospective–that is, it must

apply to events occurring before its enactment–and it must disadvantage the

offender affected by it, by altering the definition of criminal conduct or increasing

the punishment for the crime.” Lynce v. Mathis, 519 U.S. 433, 441 (1997)

(quotations and citations omitted). Although “[t]he Ex Post Facto Clause is a

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limitation upon the powers of the Legislature and does not of its own force apply

to the Judicial Branch of government,” Marks v. United States, 430 U.S. 188, 191

(1977) (citation omitted), the Supreme Court has recognized that “limitations on

ex post facto judicial decisionmaking are inherent in the notion of due process.”

Rogers v. Tennessee, 121 S. Ct. 1693, 1697 (2001). We therefore proceed to

analyze Sallahdin’s claim in the context of the Due Process Clause.

We fail to see any due process problem arising out of the application of

Parker to Sallahdin’s case. To begin with, we note that the decision in Parker

had nothing “to do with the definition of crimes, defenses, or punishments.”

Collins v. Youngblood, 497 U.S. 37, 51 (1990). Instead, it addressed an issue of

state criminal procedure, announcing that an information need not allege each

element of a charged crime, and that a trial court’s subject matter jurisdiction is

not dependent upon an information containing each element of the charged crime.

Thus, Parker does not fall within the scope of what could even remotely be

described as ex post facto judicial decisionmaking. See Collins, 497 U.S. at 45.

Even if we were to conclude otherwise, it is apparent after reviewing

Oklahoma case law that the decision in Parker was foreseeable and defensible.

See Fultz v. Embry, 158 F.3d 1101, 1103 (10th Cir. 1998) (discussing the test for

determining whether the retroactive application of a judicial decision violates due

process). Since the early 1900s, Oklahoma statutes have required that an

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information “contain a statement of the acts constituting the offense, in ordinary

and concise language, and in such manner as to enable a person of common

understanding to know what is intended.” Parker, 917 P.2d at 985; see Miller,

827 P.2d at 880 (Lumpkin, Vice-Presiding J., concurring in part and dissenting in

part). Although the language of these statutes has remained constant, judicial

interpretation of them by the Oklahoma Court of Criminal Appeals has

“continually changed and show[n] at least two distinct paths.” Miles v. State, 922

P.2d 629, 631 (Okla. Crim. App. 1996); see Miller, 827 P.2d at 880 (Lumpkin,

Vice-Presiding J., concurring in part and dissenting in part) (noting “diametric

opposing lines of caselaw authority” in Oklahoma concerning the sufficiency of

an indictment). On one side of the ledger were cases, such as Miller and Pickens,

which construed the Oklahoma statutes as requiring an information to “allege all

elements of the crime charged.” Parker, 917 P.2d at 985. On the other side of

the ledger were cases which, consistent with the statutory language, simply

required that an information place a defendant on notice of the facts constituting

the charge against him. See Miller, 827 P.2d at 880 ((Lumpkin, Vice-Presiding J.,

concurring in part and dissenting in part) (citing cases). In light of this history, as

well as the divergence of opinion on the issue among members of the Oklahoma

Court of Criminal Appeals, it was not at all unforeseeable that the court attempt

to reconcile its case law in Parker. Moreover, we believe that the decision in

-22-
Parker is entirely consistent with the language of the Oklahoma statutes

governing the requirements for an information. See Miles, 922 P.2d at 631

(rejecting identical ex post facto attack on Parker).

Failure to Define Life Without Parole

Sallahdin argues the jury instructions should have defined life without

parole further, because post-conviction juror interviews revealed that if jurors had

known he would spend the rest of his life in prison with a sentence of life without

parole, some jurors would have selected that sentence. He maintains the trial

court’s failure to instruct, and counsel’s failure to request an instruction,

regarding parole ineligibility violates Skipper v. South Carolina , 476 U.S. 1, 4-5

& 5 n.1 (1986), and Simmons v. South Carolina , 512 U.S. 154, 156, 171 (1994)

(plurality).

Sallahdin first raised this claim in post-conviction proceedings. The

Oklahoma Court of Criminal Appeals therefore deemed it waived because

Sallahdin could have, but did not, raise it on direct appeal. Sallahdin , 947 P.2d at

560-61 & 561 n.2. Although the State continues to assert this claim is

procedurally barred, we instead address this claim’s merits, because the denial of

relief can be “more easily and succinctly affirmed” on that basis. Romero v.

Furlong , 215 F.3d 1107, 1111 (10th Cir. 2000), cert. denied , 531 U.S. 982 (2000).

Indeed, this court has previously rejected this claim. Mayes , 210 F.3d at 1294.

-23-
Further, defense counsel, in his sentencing phase closing argument, explained that

life without parole meant that Sallahdin would die in prison. Tr. Vol. 9 at 37.

Neither the trial court’s failure to instruct on parole nor counsel’s failure to

request an instruction violated Sallahdin’s constitutional rights.

Prosecutor’s References to Sallahdin’s Post-Arrest Silence

Sallahdin argues the prosecutor’s improper comments on his post-arrest

silence denied him a fair trial. In Doyle v. Ohio , the Supreme Court held a

prosecutor deprives a criminal defendant of due process by making improper

comments about the defendant’s post- Miranda 4 silence. 426 U.S. 610, 611, 619

(1976). Such impeachment is “fundamentally unfair because Miranda warnings

inform a person of his right to remain silent and assure him, at least implicitly,

that his silence will not be used against him.” Anderson v. Charles , 447 U.S. 404,

407-08 (1980). Doyle , however, does not bar cross-examination concerning a

defendant’s prior inconsistent statements. See, e.g., Anderson , 447 U.S. at 408;

Earnest v. Dorsey , 87 F.3d 1123, 1135 (10th Cir. 1996). “Such questioning

makes no unfair use of silence because a defendant who voluntarily speaks after

receiving Miranda warnings has not been induced to remain silent. As to the

subject matter of his statements, the defendant has not remained silent at all.”

Anderson , 447 U.S. at 408.

4
Miranda v. Arizona, 384 U.S. 436 (1966).

-24-
 According to Sallahdin, the prosecutor improperly asked Lieutenant Pfahl

on direct examination if Sallahdin had invoked his right to an attorney during

interrogation. Sallahdin first challenged this questioning in his petition for a writ

of habeas corpus. Because the State does not raise any exhaustion or procedural

bar concerns, we consider this portion of the claim on its merits, reviewing de

novo . See Moore , 195 F.3d at 1178.

Sallahdin fails to indicate how asking this question violated his right to

remain silent. The right to an attorney is separate and distinct from the right to

remain silent. See generally Michigan v. Mosley , 423 U.S. 96, 101 n.7 (1975).

Even if the question was tantamount to asking if Sallahdin invoked his right to

silence, the record shows he had waived that right.

Sallahdin further argues the prosecutor improperly asked Detective

Mahamed when he first heard about Sallahdin’s involvement in gun-running and

exchange of weapons. The record shows the Oklahoma Court of Criminal

Appeals reasonably determined Sallahdin expressly waived his right to remain

silent during his initial contact with police in Oklahoma. Pennington , 913 P.2d at

1366.

Sallahdin also argues the prosecutor improperly cross-examined him by

asking him if he ever told the Akron police that another man shot the victim and

that man’s fingerprints would be on the shotgun, which was at Sallahdin’s home.

-25-
He maintains the prosecutor improperly asked him if it was accurate that he

remained silent when Detective Mahamed asked him why this death occurred.

Viewed in context, these questions were designed to elicit an explanation for a

prior inconsistent statement, not to infer guilt from Sallahdin’s post-arrest silence.

Anderson , 447 U.S. at 409; cf. United States v. Canterbury , 985 F.2d 483, 486

(10th Cir. 1993) (reaching opposite conclusion under different set of facts).

Citing Anderson , 447 U.S. at 408-09, the state appellate court reasonably held the

prosecutor’s cross-examination of Sallahdin was within permissible limits because

he presented a new story at trial that was materially different from the information

he provided to the police. Pennington , 913 P.2d at 1366.

The Oklahoma Court of Criminal Appeals also determined that even if the

prosecutor’s isolated remarks were erroneous, they were harmless. Pennington ,

913 P.2d at 1366. Because the state appellate court did not rely on Supreme

Court authority in assessing harmlessness, we assess whether the challenged

comments had “substantial and injurious effect or influence in determining the

jury’s verdict.” Brecht v. Abrahamson , 507 U.S. 619, 637 (1993) (quotation

omitted); see also Hale , 227 F.3d at 1324-25 ; Bryson v. Ward , 187 F.3d 1193,

1204-06 (10th Cir. 1999), cert. denied , 529 U.S. 1058 (2000).

We may consider the following factors in assessing harmless error: (1) the

prosecutor’s use of the post-arrest silence; (2) whether the defense or prosecution

-26-
pursued this line of questioning; (3) the amount of evidence indicating guilt;

(4) the frequency and force of the reference; and (5) if the defense requested a

mistrial or curative instructions. See Canterbury , 985 F.2d at 486-87. The first

and third inquiries are the most important. Id. at 487.

The evidence of Sallahdin’s guilt was overwhelming. The prosecutor did

not attempt to use this information to establish guilt, nor did he pursue further

questioning after the trial court sustained defense objections. In addition, on

cross-examination of Mahamed, defense counsel emphasized that Sallahdin

remained silent when asked certain questions. Tr. Vol. 5 at 63-66. Thus, any

error was harmless. 5

Sufficiency of the Evidence to Support the Aggravating Factors

Sallahdin argues insufficient evidence exists to support the jury’s findings

that he intended to kill the victim to avoid arrest or prosecution and that he poses

a continuing threat to society. In assessing sufficiency of the evidence, the

relevant question is whether, after viewing all of the evidence in the light most

5
Sallahdin attempts to show any error was not harmless by the
post-conviction affidavit of Juror Barbara Bowen, which indicated she was
bothered by Sallahdin’s failure to tell law enforcement initially that there was
another shooter. His failure to do so apparently influenced her perception of his
truthfulness. We agree with the district court that this affidavit does not indicate
whether the remarks elicited by defense counsel or the prosecutor concerned her.
It therefore fails to establish error.

-27-
favorable to the State, a rational factfinder could have found the existence of the

aggravating factor beyond a reasonable doubt. Lewis v. Jeffers , 497 U.S. 764,

780-82 (1990).

Avoid Arrest or Prosecution Aggravator – Sallahdin asserts, without

discussion, that insufficient evidence exists to support this aggravator. We need

not consider this undeveloped argument. See Walker , 228 F.3d at 1240. Because

this is a capital case, however, we will consider this claim. The Oklahoma Court

of Criminal Appeals’ determined there was sufficient evidence to support this

aggravator. 6

[Sallahdin] shot Grooms almost immediately upon entering the store.
No evidence was presented that the victim posed any threat to
[Sallahdin] or that he even attempted to defend himself. Once
Grooms had been shot several times, [Sallahdin] did not go near him,
but rather, attempted to rob the store by repeatedly shooting the cash
register. Because he was unable to open the cash register,
[Sallahdin] was forced to leave empty-handed.
Additional evidence to consider is that [Sallahdin] wore no
disguise, nor made any attempt to conceal his identity, other than
killing the only person he saw in the store. Furthermore, by the time
the witness Lynn Smith entered the store for a cup of ice, [Sallahdin]
had no means to shoot her as he had run out of ammunition.

6
This circuit has not resolved whether sufficiency of the evidence is a
factual or legal question. Hale, 227 F.3d at 1335 n.17. We need not resolve this
question in this case. In either event, the Oklahoma appellate court’s
determination is reasonable. See 28 U.S.C. § 2254(d)(1), (2); see also Hale,
227 F.3d at 1335 n.17.

-28-
Pennington , 913 P.2d at 1371. We conclude that determination was not

unreasonable.

Continuing Threat Aggravtor -- Sallahdin also contends that commission of

the crime, by itself, is insufficient evidence to show he would be a continuing

threat to society. In Oklahoma, however, the continuing threat aggravator’s

existence, as the Oklahoma Court of Criminal Appeals noted, may be based solely

on the evidence of the calloused nature of the crime. Pennington , 913 P.2d at

1371; accord Cooks v. Ward , 165 F.3d 1283, 1289 (10th Cir. 1998), cert. denied ,

528 U.S. 834 (1999); Snow v. State , 876 P.2d 291, 298 (Okla. Crim. App. 1994).

In determining there was sufficient evidence, the state appellate court did not rely

solely on the underlying crime, however.

[Sallahdin] immediately shot the victim upon entering the store.
Grooms was shot as a matter of course in [Sallahdin’s] attempted
robbery. Grooms was never given an opportunity to cooperate in any
way to save his life. In addition to this evidence, other evidence was
presented that [Sallahdin] had made threats of violence while in
custody.

Pennington , 913 P.2d at 1371. This determination was not unreasonable under

either 28 U.S.C. § 2254(d)(1) or (2). See Hale , 227 F.3d at 1335 n.17.

Constitutionality of Continuing Threat Aggravator

Tenth Circuit precedent forecloses Sallahdin’s argument that Oklahoma’s

application of the continuing threat aggravator is unconstitutional. See, e.g. ,

-29-
Medlock v. Ward , 200 F.3d 1314, 1319 (10th Cir.), cert. denied , 531 U.S. 882

(2000).

Mitigating Evidence Instruction

Sallahdin argues the mitigating instructions suggested the jury must find

the mitigating factors unanimously, because they were “sandwiched” among the

instructions requiring unanimity in finding the aggravating factors. However, he

recognizes this court has rejected similar arguments. See, e.g. , Fox v. Ward ,

200 F.3d 1286, 1302 (10th Cir.), cert. denied , 531 U.S. 938 (2000); Smallwood ,

191 F.3d at 1270-71; Duvall v. Reynolds , 139 F.3d 768, 791-92 (10th Cir.1998).

Because we are bound by circuit precedent, this claim is foreclosed. See, e.g. ,

Smallwood , 191 F.3d at 1271.

Steroid-Use Evidence

Sallahdin argues the trial court erroneously denied him an opportunity to

present mitigating evidence that he was experiencing psychiatric effects from

anabolic steroid use at the time of the crime. According to Sallahdin, the

steroids, taken to enhance his weight lifting and body building regimen, altered

his normal behavior and therefore the trial court wrongly prevented him from

explaining what transformed him from a disciplined soldier into a fleeing killer.

He contends that if this steroid evidence had been admitted, he probably would

not have received a death sentence. He also argues his conviction and death

-30-
sentence are constitutionally infirm because counsel rendered ineffective

assistance in failing to investigate and present evidence of the effects of his

anabolic steroid use on his behavior at the time of the crime. Apt. Reply Br. at

19-20.

Preclusion of Steroid Evidence by Trial Court -- Prior to trial, Sallahdin

disclosed that he intended to present the testimony of Dr. Harrison Pope, a

psychiatrist and steroid expert. The State filed a motion in limine requesting that

the trial court enter an order prohibiting any testimony concerning “Steroid Rage

Syndrome.” At the hearing on the motion, Dr. John A. Call, a psychologist,

testified for the State that “Steroid Rage Syndrome” is not generally accepted as a

bona fide diagnosable syndrome. Tr. of Hear’g of May 4, 1993 at 4-6, 14.

During the hearing, Sallahdin’s counsel stated the defense intended to call

Dr. Pope only at the sentencing phase to introduce expert testimony that steroid

use may explain the change in Sallahdin’s personality, and did not necessarily

intend to refer to “Steroid Rage Syndrome.” See id. at 18-19. The trial court

granted the State’s motion in limine, limiting its decision to finding only that the

State showed there is no scientific theory called “Steroid Rage Syndrome.” Id. at

19-20. The court acknowledged there may be other reasons steroid-use evidence

could be admissible and ordered written notice of Dr. Pope’s testimony. Id. at 20,

30; D. Ct. Rec. Vol. 3 at 77. In sum, contrary to Sallahdin’s contention the trial

-31-
court denied him the opportunity to present any steroid use testimony during

either stage of the trial, the trial court precluded only expert testimony concerning

“Steroid Rage Syndrome,” not all testimony, be it expert or otherwise, concerning

the effects of steroid use on Sallahdin.

Sallahdin filed a discovery supplement withdrawing Dr. Pope as a possible

first-stage witness and, in response to the trial court’s order, delineating

Dr. Pope’s anticipated sentencing phase testimony. The supplement anticipated

Dr. Pope would testify: (1) steroids caused manic symptoms while Sallahdin took

them and depressive symptoms and impulse control disorder during his

withdrawal from them; and (2) to a reasonable medical certainty, the change in

Sallahdin’s behavior was attributable to steroid use. D. Ct. Rec. Vol. 3 at 70-73.

The supplement also represented Dr. Pope would not testify that “Steroid Rage

Syndrome” is a mental illness or that it was identified as such in the medical or

scientific communities. Id. at 73.

Approximately one month before trial, in a motion to prohibit the State’s

expert from examining Sallahdin, counsel again set forth his purpose for

presenting expert testimony on the effect of steroids on Sallahdin. D. Ct. Rec.

Vol. 3 at 92-96. The motion indicated steroid use was comparable to problems

caused by alcohol consumption, was not a mental illness, and the steroid evidence

would only be used as mitigating evidence during the sentencing phase of the trial

-32-
to show the effects of steroid use on Sallahdin — not to show steroids caused him

to commit the murder, or to lower the degree of homicide, or as a defense. Id. at

92, 93-94. Despite the court-ordered supplementation of Dr. Pope’s testimony

and the motion delineating the intended use of the testimony, counsel failed to

call on Dr. Pope to testify or to present any steroid evidence to the jury at either

stage of the trial.

Sallahdin now argues on federal habeas that the trial court erred in

precluding evidence concerning the effects of steroid use during the trial.

Neither the trial court nor the state appellate court addressed this specific issue on

the merits. See Pennington , 913 P.2d at 1370. The federal district court did not

hold an evidentiary hearing on the matter and relied solely on the state court

record. Accordingly, we review the federal district court’s conclusions of law de

novo and perform an independent review of its factual findings. See LaFevers ,

182 F.3d at 711; Walker , 228 F.3d at 1225.

The federal district court determined the trial court did not err in refusing

to admit steroid-use evidence because: (1) “Steroid Rage Syndrome” was not

shown to be a reliable theory at the time of the hearing, under either Frye or

Daubert; 7 (2) counsel specifically denied any intent to use the testimony during

7
Frye v. United States, 293 F.1013 (App. D.C. 1923); Daubert v. Merrell
Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).

-33-
the guilt phase; and (3) counsel did not request permission to present the evidence

at the sentencing proceeding. ROA, Vol. 1, Doc 27 at 5-6; 8-11. Although we

agree with the district court’s determinations, the dispositive fact is that the trial

court did not actually preclude presentation of evidence about the effects of

steroid use on Sallahdin.

The trial court’s ruling precluded only evidence of “Steroid Rage

Syndrome.” The court expressly left open the possibility of introducing other

steroid evidence and ordered counsel to provide the State with clarification of the

steroid expert’s probable testimony. Counsel subsequently provided a detailed

discovery supplement containing the steroid expert’s anticipated testimony. D.

Ct. Rec. Vol. 3 at 70-73. Counsel, however, did not attempt to present such

evidence to the jury and did not ask the trial court for a ruling on its admissibility.

Consequently, the trial court never ruled on the admissibility of the steroid use

evidence and did not preclude Sallahdin from introducing such evidence at either

stage of the trial. Accordingly, the trial court did not err as Sallahdin claims. See

Romano v. Gibson , 239 F.3d 1156, 1167 (10th Cir.), cert. denied, 122 S. Ct. 628

(2001). The constitutional error, if any, stems from defense counsel’s actions.

Ineffective Assistance of Counsel -- We now turn to Sallahdin’s claim that

his trial counsel was ineffective because counsel failed to investigate and present

evidence concerning the effects of steroid use to the jury. Sallahdin first

-34-
presented this argument in post-conviction proceedings. The Oklahoma Court of

Criminal Appeals determined the claim was barred because it did not turn on facts

unavailable at the time of the direct appeal. Sallahdin , 947 P.2d at 562. When

Sallahdin again asserted the claim in his federal habeas petition, the State, relying

on our decision in Brecheen v. Reynolds , 41 F.3d 1343, 1363 (10th Cir. 1994),

conceded that the Oklahoma Court of Criminal Appeal’s procedural bar ruling

was not binding for purposes of federal habeas review. Dist. Ct. R., Doc. 21 at

10. Accordingly, the federal district court resolved the claim on the merits.

Although the State now makes a conclusory suggestion that the claim is

procedurally barred, Response to Apt. Br. at 13 n.1., this assertion is insufficient

to preclude consideration of the merits. See Walker , 228 F.3d at 1240 (refusing to

consider conclusory, unsupported and undeveloped arguments).

Even if the State had adequately addressed the procedural bar issue, we

would not be bound by the Oklahoma Court of Criminal Appeal’s ruling. In order

to prevail on a procedural bar claim, the State must demonstrate that the

Oklahoma Court of Criminal Appeals could have resolved Sallahdin’s claim of

ineffective assistance of counsel on direct appeal on the basis of the trial record

alone. See, e.g., McGregor v. Gibson, 219 F.3d 1245, 1252 (10th Cir. 2000).

Although the trial record indicates that trial counsel made preparations to present

the expert testimony of Dr. Pope, it is silent regarding why trial counsel

-35-
ultimately failed to present that testimony. Further, Sallahdin’s claim depends, to

some extent, on post-conviction affidavits that are not part of the trial record.

Therefore, the State’s procedural bar is inadequate to preclude habeas review.

See Romano , 239 F.3d at 1180 (citing English v. Cody , 146 F.3d 1257, 1264 (10th

Cir. 1998)).

Because the state courts did not address the merits of this ineffective

assistance of counsel claim, we review the district court’s conclusions of law de

novo . LaFevers , 182 F.3d at 711. Claims of ineffective assistance of counsel are

mixed questions of law and fact. See Strickland v. Washington , 466 U.S. 668,

698 (1984). To establish ineffective assistance of counsel, Sallahdin must meet

both prongs of the Strickland analysis. First, he must prove counsel’s

performance was constitutionally deficient. Second, he must show counsel’s

deficient performance prejudiced his defense, depriving him of a fair trial with a

reliable result. Id. at 687.

To prove deficient performance, Sallahdin must show “counsel’s

representation fell below an objective standard of reasonableness.” Id. at 687-88.

Reviewing courts “‘indulge a strong presumption that counsel’s conduct falls

within the wide range of reasonable professional assistance’ and that counsel’s

conduct was not the result of error or omission but derived instead from trial

-36-
strategy.” Elliott v. Williams , 248 F.3d 1205, 1208 (10th Cir.) (quoting

Strickland , 466 U.S. at 689), cert. denied, 122 S. Ct. 286 (2001).

To establish prejudice, Sallahdin must show that, but for counsel’s errors,

there is a reasonable probability the result of the proceeding would have been

different. Strickland , 466 U.S. at 694. A reasonable probability is a probability

sufficient to undermine confidence in the outcome. Id. If the alleged ineffective

assistance occurred during the guilt phase, the question is whether there is a

reasonable probability the jury would have had reasonable doubt regarding guilt.

Id. at 695. In answering this question, we review the totality of the evidence, not

just the evidence helpful to Sallahdin. Cooks , 165 F.3d at 1293.

If the alleged ineffectiveness occurred during the sentencing phase, this

court considers “whether there is a reasonable probability that, absent the errors,

the sentencer . . . would have concluded that the balance of aggravating and

mitigating circumstances did not warrant death.” Strickland , 466 U.S. at 695. In

answering this question, we keep in mind the strength of the government’s case

and the aggravating factors the jury found, as well as the totality of the mitigating

factors that might have been presented if counsel’s performance had not been

deficient. Walker , 228 F.3d at 1234 (citing Strickland , 466 U.S. at 695).

Guilt Phase -- In light of the overwhelming evidence of guilt and his

present admission of guilt, Apt. Br. at 31-32, Sallahdin argues counsel’s

-37-
presentation of an innocence defense was not a reasonable strategy. Rather,

Sallahdin believes counsel should have learned about the impact of steroids on

Sallahdin’s mental state at the time of the crime and defended based on steroid

usage. If counsel had done so, Sallahdin believes the jury would have learned he

was in an abnormal psychotic state at the time of the crime due to anabolic steroid

use. Next, Sallahdin criticizes counsel for being unprepared at the motion in

limine hearing and at trial, because he failed to establish the effects of steroid use.

Sallahdin argues trial counsel should have presented testimony from Dr. Pope,

questioned the State’s expert, Dr. Call, more vigorously, and presented more of

the scientific evidence available at the time of the hearing. Id. at 32-40.

In addition, Sallahdin appears to argue he did not know how his steroid use

would affect his behavior, a sort of involuntary intoxication defense. Id. at 36.

To invoke the defense of involuntary intoxication, the defendant must produce

sufficient evidence to raise a reasonable doubt as to the voluntariness of his

intoxication. Involuntary intoxication results from fraud, trickery or duress of

another, accident or mistake on defendant’s part, pathological condition, or

ignorance as to the effects of prescribed medication. Wooldridge v. State , 801

P.2d 729, 734 (Okla. Crim. App. 1990) (citing Okla. Stat. tit. 21, § 153) (citation

omitted). “‘[I]nvoluntary intoxication is a complete defense,’” but only “‘where

the defendant is so intoxicated that he is unable to distinguish between right and

-38-
wrong, the same standard as applied in an insanity defense.’” Id. (quoting Jones

v. State , 648 P.2d 1251, 1258 (Okla. Crim. App. 1982)). Nothing presented at

trial or in the post-conviction affidavits indicates Sallahdin could not understand

the nature or consequences of his acts or differentiate between right and wrong. 8

When counsel declines to present a defense for which there is no arguable basis,

in law or in fact, counsel’s performance is not deficient.

In addition, during the motion in limine hearing, trial counsel made a

strategic decision not to present the steroid use evidence during the guilt phase of

the trial. Sallahdin has not shown “counsel’s representation fell below an

objective standard of reasonableness.” Strickland , 466 U.S. at 687-88. He has

8
Because the trial court was not given the opportunity to rule on the
admissibility of the evidence concerning the effects of steroid use on Sallahdin,
for the purpose of this ineffective assistance of counsel claim, we will assume,
without deciding, the steroid-use evidence was admissible during the guilt phase.
Although some courts have allowed presentation of steroid-use evidence by a
defendant, the defense has met with limited success. See, e.g., United States v.
Palumbo, 735 F.2d 1095, 1097-98 (8th Cir. 1984) (rejecting diminished
responsibility defense despite expert evidence showing defendant had taken heavy
doses of steroids to treat medical condition); United States v. Warren, 447 F.2d
278, 280 (2d Cir. 1971) (taking steroid prednisone to relieve asthma in part
forming basis for legal insanity defense theory, rejected by jury); State v.
Knowles, 598 So.2d 430, 433-35 (La. Ct. App. 1992) (defense presented through
expert testimony that nine-month abuse of anabolic steroids by avid weight lifter
precluded specific intent for murder and removed ability to distinguish between
right and wrong rejected by jury); Boblett v. Commonwealth, 396 S.E.2d 131,
136-37 (Va. Ct. App. 1990) (jury rejected insanity defense based on use of
anabolic steroids; court instructed jury on voluntary intoxication defense based on
use of steroids).

-39-
not rebutted the presumption “‘that counsel’s conduct falls within the wide range

of reasonable professional assistance’ and that counsel’s conduct was not the

result of error or omission but derived instead from trial strategy.” Elliott , 248

F.3d at 1208 (quoting Strickland , 466 U.S. at 689).

Even if counsel’s performance had been deficient, the federal district court

determined Sallahdin was not prejudiced because, among other things: (1) counsel

thoroughly cross-examined Dr. Call; (2) Dr. Pope’s post-conviction affidavit did

not indicate Sallahdin did not know the difference between right and wrong at the

time of the murder; and (3) Dr. Pope’s affidavit did not establish steroid use alone

caused Sallahdin to commit the murder. Rather, Dr. Pope merely indicated

Sallahdin may have been affected by steroid use. ROA, Vol. 1, Doc. 27 at 16-17.

Our independent review of the record verifies the district court’s factual

findings. The cases cited by Sallahdin concerning ineffective assistance of

counsel during the guilt phase are inapposite in light of these facts. Reviewing

the district court’s conclusions of law de novo , LaFevers , 182 F.3d at 711, we

agree with its reasoning. The steroid-use evidence would not have excused

Sallahdin’s commission of murder, or lessened his culpability. Therefore,

Sallahdin’s defense in the guilt phase of trial was not prejudiced by counsel’s

failure to present steroid-use evidence and nothing undermines our confidence in

the jury’s first-stage verdict. Strickland , 466 U.S. at 694.

-40-
 Sentencing Phase -- In reviewing whether trial counsel’s representation in

the sentencing phase of trial was constitutionally deficient, we must first

determine whether the evidence was admissible during the sentencing phase.

Lockett v. Ohio , 438 U.S. 586 (1978) (plurality), and Eddings v. Oklahoma ,

455 U.S. 104, 110 (1982), set the standards for admission of mitigating evidence

during the sentencing phase of a capital case. Those cases require “that a capital

sentencer not be precluded from considering, as a mitigating factor , any aspect of

a defendant’s character or record, and any of the circumstances of the offense that

the defendant proffers as a basis for a sentence less than death.” Boyd v. Ward ,

179 F.3d 904, 921 (10th Cir. 1999) (quotation marks omitted), cert. denied , 528

U.S. 1167 (2000). Thus, the jury cannot be precluded from considering any

“constitutionally relevant mitigating evidence.” Buchanan v. Angelone , 522 U.S.

269, 276 (1998) (citations omitted).

Consistent with these holdings, the Supreme Court has indicated “that a

state court may not apply a state rule of evidence in a per se or mechanistic

manner so as to infringe upon a defendant’s constitutional right . . . to present

mitigating evidence in a capital proceeding.” Paxton v. Ward, 199 F.3d 1197,

1214 (10th Cir. 1999) (discussing Supreme Court cases on the issue). Thus, for

example, in Green v. Georgia, 442 U.S. 95 (1979), the Court concluded it was

constitutional error for a trial court in a capital case to mechanistically exclude

-41-
proffered mitigation evidence under a state hearsay rule, particularly when the

proffered evidence bore sufficient indicia of reliability. Id. at 97. Likewise, this

circuit and others have found constitutional errors arising out of the wholesale

exclusion of proffered mitigating evidence pursuant to state evidentiary rules.

See, e.g., Rupe v. Wood, 93 F.3d 1434, 1439-41 (9th Cir. 1996) (concluding that

the exclusion of polygraph evidence pursuant to state evidentiary rules violated a

capital defendant’s right to present mitigating evidence); Dutton v. Brown, 812

F.2d 593, 602 (10th Cir. 1987) (en banc) (concluding that constitutional error

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

capital case on the basis of a state witness sequestration rule).

This is not to say, however, that a trial court must admit any and all

mitigation evidence proffered by a capital defendant. Review of the above-cited

cases indicates that proffered mitigation evidence must be reliable and relevant to

be admitted. See, e.g., Green, 442 U.S. at 96 (emphasizing that “substantial

reasons existed to assume” the reliability of the proffered mitigation evidence);

Paxton, 199 F.3d at 1214 (noting that “the reliability of the excluded polygraph

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

earlier charges against” the defendant); see also Crane v. Kentucky, 476 U.S. 683,

690 (1986) (“[W]e have never questioned the power of States to exclude evidence

through the application of evidentiary rules that themselves serve the interests of

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fairness and reliability-even if the defendant would prefer to see that evidence

admitted.”); Chambers v. Mississippi, 410 U.S. 284, 302 (1973) (noting that a

defendant “must comply with established rules of procedure and evidence

designed to assure both fairness and reliability in the ascertainment of guilt and

innocence”).

In his January 13, 1997, affidavit, Dr. Pope stated that, “[a]t the time of

[Sallahdin’s] trial in 1993, a substantial and consistent scientific literature had

already accumulated, showing that anabolic steroids could cause severe

psychiatric effects . . . in some individuals.” Post-Conviction Addendum, App.

20 at 2. Although Pope conceded that the term “steroid rage syndrome” was “a

popular term with no scientific acceptance,” he stated “it was [nevertheless] well

recognized in the scientific community that anabolic steroids could cause severe

psychiatric effects in some individuals.” Id.

With respect to Sallahdin in particular, Dr. Pope recognized he had no

significant history of serious psychological disorders, criminal behavior or

violence before using steroids. Dr. Pope further stated:

Since 1987, when he started using [steroids], he has displayed
characteristic psychiatric symptoms which are sometimes seen in
individuals who are sensitive to the psychiatric effects of these
drugs. Among specific symptoms he displayed during steroid
exposure were manic symptoms (euphoria, irritability, grandiosity of
delusional proportions, impaired judgment, and reckless behavior)
and depressive symptoms during steroid withdrawal (depressed
mood, loss of interest in usual activities, sleep and appetite

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 disturbance, feelings of guilt, psychomotor retardation, and
pronounced suicidal impulses). It is clear from his psychiatric
history that [Sallahdin] was one of those individuals who are
unusually vulnerable to the psychiatric effects of steroids, and hence
liable to experience severe behavioral changes as a result.

Id. at 1-2. Dr. Pope believed Sallahdin used anabolic steroids until only a few

weeks, if not a few days, before the crime, and therefore “was suffering from the

acute effects of steroids, or at the very minimum from the acute withdrawal

effects of steroids, at the time of the crime.” Id. at 2. It was Dr. Pope’s opinion:

to a reasonable medical certainty, that [Sallahdin] had used anabolic
steroids, and was experiencing prominent psychiatric effects from
anabolic steroids at the time of the crime. As a result [his] behavior
and judgement were markedly altered from those of his normal
baseline personality at the time of the crime.

Id. at 3.

Applying the above-outlined standards to Dr. Pope’s proposed testimony,

we conclude that the proposed testimony was admissible during the sentencing

phase of the trial. In short, we are persuaded that Dr. Pope’s conclusions

regarding the effects of anabolic steroids were based upon scientific knowledge

(for purposes of Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579

(1993)) and thus were sufficiently reliable. Further, the record indicates that Dr.

Pope previously had been admitted to testify as an expert witness on the precise

topic in three criminal trials in the states of Florida, Massachusetts, and

Wisconsin.

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 Having concluded that Dr. Pope’s testimony was admissible, we now turn

to application of the Strickland test. The federal district court found it

unnecessary to decide whether trial counsel’s performance was constitutionally

deficient because, in its view, Sallahdin was not prejudiced by the absence of Dr.

Pope’s testimony:

First, the trial court properly excluded expert testimony regarding
steroid use. Second, the steroid effects could have been viewed as an
aggravating circumstance, rather than as mitigating evidence.
(Citation omitted.) Use of steroids could have been viewed as an
attempt by petitioner to become tough, powerful and macho, all of
which support petitioner’s cold-hearted domination over a weaker
store clerk solely for money. This portrayal of petitioner would not
evoke sympathy from a jury sufficient to overcome the aggravating
circumstances. Trial counsel fully advised the jury of the difference
in petitioner’s personality, i.e., that he was under tremendous stress
and that typically he was well-liked by his family, friends and peers.
The jury merely found this insufficient to overcome the crime.

ROA, Vol. 1, Doc. 27 at 18-19. Further, the federal district court noted Sallahdin

could have personally testified at the sentencing phase about the effects of steroid

use, but did not. Id. at 19. Finally, the federal district court found that the

strength of the evidence against Sallahdin, the brutality of the crime, and evidence

of additional threats he made during a period of pretrial detention would have

overwhelmed any mitigating effect that the steroid evidence might have brought

to the deliberations. Id.

We are persuaded that Dr. Pope’s proposed testimony is considerably

stronger than the district court determined it to be. During the sentencing phase,

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Sallahdin presented testimony from family members, friends, his Army

commander, and correctional officers at the jail where he was confined prior to

trial. Generally speaking, this evidence indicated that Sallahdin (a) had a normal

upbringing, (b) experienced success academically, athletically and (at least

initially) with the military, (c) did not have a prior criminal record, (d) was non-

violent, (e) was perhaps undergoing marital-related stress, and (f) was a good,

quiet prisoner who did not cause any problems. In our view, evidence from Dr.

Pope regarding the potential of steroid use to cause severe personality changes in

the user could have explained how Sallahdin could have been transformed from

an allegedly mild-mannered, law-abiding individual into a person capable of

committing the brutal murder with which he was found guilty. 9
In addition to

mitigating Sallahdin’s culpability in the crime, Dr. Pope’s testimony could have

specifically helped to rebut one of the two remaining aggravators found by the

jury: that there was a probability Sallahdin “would commit criminal acts of

violence that would constitute a continuing threat to society.” Okla. Stat. tit. 21,

§ 701.12. If the jury believed Dr. Pope, it could well have rejected the future

threat argument by concluding that Sallahdin’s crimes were an aberration in the

9
We disagree with the district court that Sallahdin’s own testimony would
have sufficed in this regard. In our view, it would have taken an expert witness
such as Dr. Pope to adequately explain for the jury the psychological effects of
steroid use and to further explain Sallahdin's alleged personality changes as
described in Sallahdin’s other anecdotal evidence.

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overall context of his life that could be explained by his use of or withdrawal

from steroids. Once the effects of the steroids passed from Sallahdin’s system, he

arguably would no longer have represented a threat to his community. Assuming

the jury determined that Sallahdin did not represent a continuing threat, the

overall balance of aggravating and mitigating factors would have been

substantially altered, leaving the jury to weigh Sallahdin’s mitigating evidence

against a single aggravating factor.

Although we conclude there is a reasonable probability that the presentation

of Dr. Pope’s testimony could have altered the outcome of the sentencing phase,

we are unable at this point to conclude that Sallahdin was denied his right to

effective assistance of counsel and, in turn, his right to a fair trial. Instead,

Sallahdin must also demonstrate that his trial counsel’s performance was

constitutionally deficient, i.e., “that counsel’s representation fell below an

objective standard of reasonableness.” Strickland , 466 U.S. at 688. As the

Supreme Court noted in Strickland , “[t]here are countless ways to provide

effective assistance in any given case,” and “[e]ven the best criminal attorneys

would not defend a particular client in the same way.” Id. at 689. Thus, as

previously noted, we must “indulge a strong presumption . . . that counsel’s

conduct was not the result of error or omission but derived instead from trial

strategy.” Elliott , 248 F.3d at 1208 (internal quotations omitted).

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 Notwithstanding our conclusions regarding the relative strength of Dr.

Pope’s proposed testimony, we cannot say that presentation of a steroid-use

defense was without risk of negative consequences, or was the only reasonable

second-stage strategy that trial counsel could have adopted. 10
It is thus imperative

to determine trial counsel’s reasons, or lack thereof, for presenting Dr. Pope’s

testimony during the second-stage proceedings. See Strickland , 466 U.S. at 689

(“A fair assessment of attorney performance requires that every effort be made to

eliminate the distorting effects of hindsight, to reconstruct the circumstances of

counsel’s challenged conduct, and to evaluate the conduct from counsel’s

perspective at the time.”).

Because the record on appeal is inadequate to allow us to properly conduct

this inquiry, 11
we conclude it is necessary to remand this case to the district court

to conduct an evidentiary hearing on the issue of trial counsel’s performance.

10
For example, it may have been reasonable for trial counsel, having asserted
a defense of actual innocence during the first stage of trial, to have adopted a
residual doubt strategy during the sentencing phase. Indeed, we note that the
mitigating evidence actually presented by Sallahdin’s trial counsel during the
sentencing phase (e.g., Sallahdin’s lack of a criminal record and his non-violent
nature) was largely consistent with such a strategy.
11
The trial record is silent regarding trial counsel’s reasons, or lack thereof,
for not presenting Dr. Pope. The only evidence we have on this issue is an
affidavit from trial counsel that was attached to the reply brief Sallahdin filed in
support of his federal habeas petition. The affidavit is extremely vague
concerning counsel’s reasons for not presenting Pope’s testimony during the
sentencing phase.

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More specifically, the purpose of the evidentiary hearing will be to determine trial

counsel’s reasons, or lack thereof, for foregoing the use of Dr. Pope’s testimony

during the sentencing phase. If trial counsel made a strategic decision not to use

Dr. Pope’s testimony, the district court will then need to assess whether that was a

constitutionally reasonable decision under the circumstances. If, however, it is

established that trial counsel was neglectful, or otherwise erred, in failing to call

Dr. Pope as a second-stage witness, then trial counsel’s performance cannot be

deemed constitutionally reasonable. In turn, Sallahdin would be entitled to

federal habeas relief in the form of a new sentencing proceeding.

CONCLUSION

After considering Sallahdin’s arguments on appeal, we are not persuaded

that constitutional error infected the first stage of his trial. Likewise, we reject

the majority of his arguments concerning his sentence. We do, however, have

concerns regarding his claim that trial counsel was ineffective for failing to

present steroid-use evidence during the second stage of trial. We AFFIRM in

part, and REVERSE in part, and REMAND the case to the district court for an

evidentiary hearing and further proceedings consistent with this opinion.

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