Duckett v. Mullin

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

ROBERT DON DUCKETT,

Petitioner - Appellant,

v. No. 00-6292

MIKE MULLIN, Warden, Oklahoma
State Penitentiary,

Respondent - Appellee.

Appeal from the United States District Court
for the Western District of Oklahoma
(No. CIV-98-26-L)

Mark L. Henricksen (Lanita Henricksen, with him on the briefs), Henricksen &
Henricksen, El Reno, Oklahoma, for Petitioner-Appellant.

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

Before KELLY , LUCERO , and MURPHY , Circuit Judges.

LUCERO, Circuit Judge.

Robert Don Duckett, an Oklahoma state prisoner convicted of first-degree
murder and sentenced to death, appeals the district court’s denial of his petition

for a writ of habeas corpus. This court granted Duckett a certificate of

appealability (“COA”) pursuant to 28 U.S.C. § 2253(c) with respect to five of his

claims of legal error: (1) that the conduct and comments of the state prosecutor

deprived him of a fair trial; (2) that trial counsel’s failure to investigate and

present mitigating evidence deprived him of effective assistance of counsel; (3)

that the federal district court erred by refusing to provide him funds with which to

retain an expert witness for the evidentiary hearing conducted by the court;

(4) that the admission into evidence of a videotape of the murder scene deprived

him of a fair and impartial jury; and (5) that the application of the “murder to

avoid arrest” aggravating circumstance deprived him of a fair trial. Having

studied this matter closely, we conclude that Duckett is not entitled to habeas

relief on any of these claims. Exercising jurisdiction under 28 U.S.C. §§ 1291

and 2253, we affirm.

I

On October 18, 1988, John Howard was found dead in his apartment in

Oklahoma City, having been severely beaten with a fireplace poker and the

wooden stand of an ashtray. His hands and feet were bound with a wire hanger,

and there were blood stains and spatters throughout the apartment. Howard’s

keys and car were missing, along with over $200 from the convenience store that

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he managed.

A few weeks prior to this incident, Howard picked up Duckett—an escapee

from prison who had been convicted of robbery by force—while Duckett was

hitchhiking on an interstate in Oklahoma City. Howard befriended Duckett,

helped him obtain employment at the State Fair and later at his convenience store,

and offered to let Duckett stay with him at his apartment.

On November 1, 1988, Duckett was arrested in Clear Creek, Arizona, while

driving Howard’s car. He had switched the license plates on Howard’s car with

those of another vehicle in the parking lot of Howard’s apartment complex.

Police found in the car a blood-stained jacket and jeans, along with bank bags

from Howard’s convenience store.

During questioning by Oklahoma authorities, Duckett admitted that he and

Howard had fought and exchanged five or six blows, but that when Duckett left,

Howard was on his feet and breathing. He had bound Howard’s hands, Duckett

explained, in order to keep Howard from coming after him. Duckett also told

authorities that he had been gang-raped in prison and that he and Howard had

been fighting over a homosexual pass that Howard had made toward him.

The Oklahoma Court of Criminal Appeals (“OCCA”), summarizing much

of the crime-scene evidence, noted that

[the victim’s] ankle was broken and he had been struck at least 19
separate times. Among various other head wounds, his skull was

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 fractured in numerous places and his left eye was ruptured and
punctured. There were blood spatters both high and low on the
walls, indicating that [Duckett] continued to beat him after he was on
the ground and incapable of running away. Blood smears on the
victim’s jeans indicate that he either was trying to crawl away or was
dragged through the blood. Blood spatters on the windows and the
closed curtains indicate that [Duckett] beat the victim with the
curtains open, and then continued to beat the victim after stopping to
close the curtains. The victim’s hands and feet were bound with
wire, and he had, at one point, been gagged with a rolled up sock and
a bandanna.

Duckett v. State, 919 P.2d 7, 13 (Okla. Crim. App. 1995).

In June 1989, Duckett was tried before a jury and convicted of first-degree

murder, larceny of an automobile after prior conviction of a felony, and

concealing stolen property after prior conviction of a felony. During the

sentencing phase of the trial, the jury found the existence of five aggravating

circumstances:

1) that Mr. Duckett was previously convicted of a violent felony;
2) that the murder was especially heinous, atrocious or cruel; 3) that
the murder was committed for the purpose of avoiding arrest or
prosecution; 4) that the murder was committed while Mr. Duckett
was serving a sentence of imprisonment; and 5) that Mr. Duckett
constituted a continuing threat to society.

Id. at 12–13. The jury recommended the death penalty for the murder conviction,

and in July 1989, the trial judge accepted this recommendation and sentenced

Duckett to death.

Duckett filed a direct appeal alleging thirty-two propositions of error.

Although the OCCA found several trial errors, it affirmed Duckett’s convictions

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and sentence. After the United States Supreme Court denied his petition for a

writ of certiorari, Duckett filed an application for post-conviction relief before the

OCCA, urging six propositions of error. That application was denied. In May

1998, Duckett filed a petition for a writ of habeas corpus in federal district court,

seeking relief on nearly forty grounds. After conducting an evidentiary hearing

on several of these claims, the district court denied the petition. Duckett

thereupon sought a COA in this court with respect to a number of issues, and we

granted his request with respect to the five claims noted above.

II

Because Duckett filed his petition for a writ of habeas corpus after the

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

(“AEDPA”), the provisions of AEDPA are applicable to his case. See Lindh v.

Murphy, 521 U.S. 320, 326–27 (1997). Pursuant to AEDPA, we may not grant

habeas relief on behalf of a person in custody pursuant to the judgment of a state

court with respect to any claim adjudicated on the merits in state court unless the

adjudication of the claim

(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or (2) 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). Under the “unreasonable application” clause, “a federal

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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 incorrectly. Rather that application must

also be unreasonable.” Williams v. Taylor, 529 U.S. 362, 411 (2000).

A

Duckett contends that the conduct and comments of the state prosecutors,

District Attorney Robert Macy and Assistant District Attorney (“ADA”) Brad

Miller, deprived him of his constitutional right to a fair trial and due process of

law. He points to over a dozen separate instances of alleged prosecutorial

misconduct whose “cumulative effect” was allegedly prejudicial, “even if the

single errors do not entitle the Petitioner to relief.” (Appellant’s Br. at 11.)

Alternatively, he suggests that the prosecutors “knowingly and egregiously”

infected his trial with such misconduct, destroying the integrity of the proceedings

and making this the “unusual case” in which a showing of prejudice is

unnecessary. (Id. at 11, 28.)

1. Prosecutorial Misconduct and Prejudice

Allegations of prosecutorial misconduct are mixed questions of fact and

law that we review de novo. Fero v. Kerby, 39 F.3d 1462, 1473 (10th Cir. 1994).

Ordinarily, a prosecutor’s misconduct will require reversal of a state court

conviction only where the remark sufficiently infected the trial so as to make it

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

DeChristoforo, 416 U.S. 637, 643 (1974). Nonetheless, “when the impropriety

complained of effectively deprived the defendant of a specific constitutional

right, a habeas claim may be established without requiring proof that the entire

trial was thereby rendered fundamentally unfair.” Mahorney v. Wallman, 917

F.2d 469, 472 (10th Cir. 1990) (citing DeChristoforo, 416 U.S. at 643). Inquiry

into the fundamental fairness of a trial requires us to examine the effect of any

misconduct within the context of the entire proceedings. DeChristoforo, 416 U.S.

at 643. In order to view any prosecutorial misconduct in context, “we look first at

the strength of the evidence against the defendant and decide whether the

prosecutor’s statements plausibly could have tipped the scales in favor of the

prosecution. . . . Ultimately, we must consider the probable effect the prosecutor’s

[statements] would have on the jury’s ability to judge the evidence fairly.” Fero,

39 F.3d at 1474 (quotations omitted). We address each of Duckett’s claims of

prosecutorial misconduct in turn.

During voir dire, defense counsel asked a prospective juror, “Do you think

that it’s possible that there are other reasons [besides trying to hide something]

the Defendant might not want to take the stand?” (1 Tr. at 173.) District

Attorney Macy then said aloud, “like two prior convictions.” (1 id.) Although he

admitted making the remark, Macy claimed he said it in a low voice and that the

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jury could not have heard him. The trial court refused defense counsel’s request

to have the jury dismissed as tainted. Also during voir dire, defense counsel

asked another potential juror, “And, you think [an] insanity defense is a copout?”

(2 id. at 387.) Macy then allegedly said, “you bet.” (2 id.) Macy denied making

this statement, and because the court did not hear the comment it again overruled

a defense request to have the jury dismissed as tainted. The OCCA determined

that Duckett had not shown any prejudice in connection with these statements.

Duckett presents us with no evidence that the remarks were heard by the jury, and

offers us no legal argument as to why the OCCA’s ruling was unreasonable.

Duckett contends that ADA Miller made a series of inappropriate remarks

during closing arguments at the guilt phase of the trial. He notes that Miller

characterized a defense expert who testified that Duckett suffered from Post

Traumatic Stress Disorder (“PTSD”) as a “clinician, essentially a counselor. He

is not trained as a scholar or a statistician, apparently he’s not a very good test

interpreter.” (5 id. 1052.) The trial court overruled defense counsel’s objection

that Miller was impugning the witness based on his own opinion rather than

anything in the record. Proceeding with his critique of the witness and the

witness’s psychological evaluation of Duckett, Miller then asked the jury, “Is that

a thorough evaluation? Is that an impartial evaluation? Is that an evaluation by

someone for someone because they’re getting paid?” (5 id. at 1056.) On appeal,

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the OCCA held that these statements did not constitute error because prosecutors

“may comment on the veracity of [defense expert] witnesses and their testimony.”

Duckett, 919 P.2d at 19. We conclude that the OCCA’s ruling was not

unreasonable, particularly given the disputed nature of the expert’s testimony at

trial. Cf. McGregor v. Gibson, 219 F.3d 1245, 1256–57 (10th Cir. 2000) (denying

habeas relief on a claim that challenged the prosecutor’s remarks attacking

defense experts and petitioner’s insanity defense), overruled on other grounds by

248 F.3d 946 (10th Cir. 2001) (en banc).

Later, District Attorney Macy stated that “robberies are committed every

day for a lot less than a car, robberies in which killings are involved.” (5 Tr. at

1080.) Having earlier acknowledged defense counsel’s continuing objection to

such statements from the prosecution, the trial court never directly addressed the

propriety of this comment. On appeal, however, the OCCA determined that the

statement was proper because it was an appropriate comment on the evidence

made in response to Duckett’s argument that he would not have committed

murder just to steal a car. (See 5 id. at 1070 (“You don’t kill somebody like that

for a car [and] two hundred bucks.”).) Duckett argues that he was prejudiced by

Macy’s statement because it stressed to the jury its role as a protector of the

community. He does not explain, however, why the OCCA’s ruling was an

unreasonable application of federal law, and we conclude that it was not.

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 Later during closing argument Macy stated, “The evidence says he’s guilty.

Don’t you be a party to turning a cold-blooded murderer loose.” (5 id. at 1095.)

Defense counsel objected, but the objection was overruled by the trial court

because “it’s already done.” (5 id. 1052.) The OCCA found this remark to be

improper argument and refused to condone it, but stated that “in light of the

overwhelming evidence against [Duckett] and the fact that this was an isolated

comment, we do not find it to be prejudicial.” Duckett, 919 P.2d at 19. Before

this court, Duckett contends that “this statement stressed to the jury its role as

protector of the community, and created a sense of societal alarm, implying that

the jurors would violate their oaths if they did not convict the Petitioner.”

(Appellant’s Br. at 15.) We have stated, however, that even “[a]n improper

appeal to societal alarm typically does not amount to a denial of due process,”

Jones v. Gibson, 206 F.3d 946, 959 (10th Cir.), cert. denied, 531 U.S. 998 (2000),

and we conclude that Duckett has not demonstrated that he was denied due

process under the present circumstances.

During his closing argument Macy also stated, “Anytime I say or Mr. Miller

says ‘I think,’ it’s unintentional. We do not view our—we do not express our

opinions. Anything that I state, anything Mr. Miller states is the position of the

State of Oklahoma based on the evidence in this case.” (5 Tr. at 1079.) Duckett,

citing Viereck v. United States, 318 U.S. 236, 247–48 (1943), contends that by his

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comments Macy improperly aligned himself with the state to bolster his argument.

The OCCA found the comments to be harmless error. Although generally

“prosecutors should not . . . place their own integrity and credibility in issue,”

Moore v. Gibson, 195 F.3d 1152, 1173 (10th Cir. 1999), we conclude that the

OCCA’s ruling on this issue was not unreasonable.

Duckett complains that ADA Miller improperly attacked his insanity

defense by referring to it as “this Johnny-come-lately insanity defense” (5 Tr. at

1068) and by suggesting that Duckett was lying: “Now insanity. That’s his only

way out of here,” (id.). Miller also stated that “at the time they gave [Duckett]

enough evidence, enough hard evidence, to show that he didn’t have any choice

but to come up with something else, some other excuse. . . . He had only one

choice. He had to come up with an excuse, excuse was insanity.” (5 id. at 1049.)

Although Duckett raised this claim in his brief before the OCCA on direct appeal,

that court obviously overlooked this particular claim in its denial of relief. We

therefore can accord no deference to the state court’s disposition of the matter. 1

1
Although “we owe deference to a state court’s result, even if its
reasoning is not expressly stated,” Aycox v. Lytle, 196 F.3d 1174, 1177 (10th Cir.
1999), with respect to this particular claim there is no “result” to which we can
defer. Unlike in Aycox, where there was “no evidence . . . that the state court did
not consider and reach the merits of [petitioner’s] claim,” id., in the present case
there is ample evidence that the OCCA, for whatever reason, failed to consider
this individual claim altogether. Duckett raised over thirty propositions of error
before the OCCA, and the court meticulously addressed each proposition
(continued...)

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Even assuming, however, that these remarks were improper under Oklahoma law,

see, e.g., Hoover v. State, 738 P.2d 943, 946 (Okla. Crim. App. 1987) (noting that

a reference to defendant’s theory as a “smoke screen” was improper, and listing

cases reaching a similar result), overruled on other grounds by Williams v. State,

794 P.2d 759 (Okla. Crim. App. 1990), and Lenion v. State, 763 P.2d 381 (Okla.

Crim. App. 1988), we conclude that they did not render Duckett’s trial

fundamentally unfair. Cf. McGregor, 219 F.3d at 1256–57 (denying habeas relief

on a claim challenging the prosecutor’s insinuations that petitioner’s insanity

defense was a fraud).

The jury was instructed by the trial court to consider the lesser included

offenses of murder in the second degree and manslaughter in the first degree.

Duckett contends, however, that Miller attempted to nullify the court’s

instructions by making the following comments to the jury: “Now, the Judge has

given you lesser-included instructions on homicide offenses. The law requires

this.” (5 Tr. at 1042); “[Y]ou’ll see that just one reading will allow their

summary dismissal from this case.” (5 id. at 1043); “Again, ladies and

1
(...continued)
individually except for this particular claim, which it did not resolve either
individually or generically. Under these circumstances, we can only conclude that
the OCCA did not render a decision on this claim. Unless we were prepared to
state that deference is owed to a state court’s failure to decide an issue, there is
no result to which we can defer.

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gentlemen, as I said, one reading of those Instructions, I submit to you, will allow

you to summarily dismiss these [lesser included] crimes.” (5 id. at 1044); and

“You have a lot [of] extra law, like I just said, that you have to look through

[w]hat the law requires.” (5 id. at 1046–47). The OCCA held that the

prosecution was “properly exercising its right to comment on the evidence and to

draw inferences from it, by pointing out how the evidence did not support the

lesser-included instructions, but did support first-degree murder.” Duckett, 919

P.2d at 20. Duckett contends that Miller’s remarks left the jury with “no option

to convict on a non-capital offense.” (Appellant’s Br. at 20.) We disagree with

Duckett’s characterization of the effect of the prosecution’s remarks and further

note that we ordinarily assume that jurors have followed a judge’s instructions.

See Walker v. Gibson, 228 F.3d 1217, 1243 (10th Cir. 2000), abrogated on other

grounds by Neill v. Gibson, 278 F.3d 1044 (10th Cir. 2001) (en banc), and cert.

denied, 533 U.S. 933 (2001). We conclude that Duckett has failed to show that

the OCCA’s decision was unreasonable.

Duckett’s final allegation of prosecutorial misconduct occurring at the guilt

phase concerns District Attorney Macy’s statement to the jury that Duckett was

“getting a fair shake. He is getting a fair trial. He’s getting every right granted

him due to the Constitution [of] the state of Oklahoma, Constitution [of] the

United States. You know who didn’t get his rights? John Howard. Somebody

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forgot about his rights. He had a right to live.” (5 Tr. at 1077.) Duckett, citing

Payne v. Tennessee, 501 U.S. 808 (1991), contends that Macy’s statements were,

in essence, victim-impact argument that is inappropriate at the guilt phase and

that they infringed his right to a fair trial. On appeal, the OCCA stated that such

comments “have been expressly condemned by this Court as being overly

prejudicial to a defendant.” Duckett, 919 P.2d at 19. Nonetheless, the OCCA

concluded that “in light of the overwhelming evidence against [Duckett] and the

fact that it was an isolated comment, we do not find it to be prejudicial.” Id. We

conclude that this determination was not unreasonable.

Duckett also alleges that the prosecution made improper comments during

the sentencing phase of the trial. The Eighth Amendment requires that sentencing

procedures in a capital case be evaluated under a heightened standard of

reliability. Woodson v. North Carolina, 428 U.S. 280, 305 (1976). We have

therefore held that “[t]he standard governing appellate review of closing

arguments during the sentencing stage of capital cases is whether the comments

might have affected the sentencing decision.” Coleman v. Brown, 802 F.2d 1227,

1238 (10th Cir. 1986).

During closing arguments at the sentencing phase Macy asked the jury,

“Ladies and gentlemen, is [Duckett] a threat to society? Don’t you bet your lives

on it.” (6 Tr. at 1279.) Macy also asked whether it would be

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 justice [to] send this man down to prison, let him have clean sheets
to sleep on every night, three good meals a day, visits by his friends
and family, while John Howard lies cold in his grave? Is that
justice? Is that your concept of justice? How do Jayme and Tom and
John’s son go visit him?

(6 id. at 1285.) The OCCA held that “[t]hese kinds of comments cannot be

condoned. There is no reason for them and counsel knows better and does not

need to go so far in the future. However, we cannot find that the comments

affected the verdict.” Duckett, 919 P.2d at 19. Once again, Duckett offers us no

reason to conclude that the OCCA was unreasonable in holding that these

statements alone did not deprive him of a fair trial or affect his sentencing

proceeding.

Having reviewed the entirety of the proceedings, we conclude that Duckett

has failed to demonstrate that any of the OCCA’s above determinations

concerning trial error were unreasonable. He has likewise failed to show any

error in the OCCA’s determination that not one of Macy’s improper statements

was prejudicial in and of itself. Finally, he has failed to convince us that any of

Macy’s misconduct deprived him of a specific constitutional right that might

merit habeas relief pursuant to Mahorney, 917 F.2d at 472.

We next address whether the cumulative effect of the prosecutorial

misconduct identified by the OCCA deprived Duckett of a fair trial. Although

each of the trial errors found by the OCCA was determined to be individually

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harmless, the “cumulative effect of two or more individually harmless errors has

the potential to prejudice a defendant to the same extent as a single reversible

error.” United States v. Rivera, 900 F.2d 1462, 1469 (10th Cir. 1990); see also

Brecheen v. Reynolds, 41 F.3d 1343, 1355–56 (10th Cir. 1994). “A cumulative-

error analysis merely aggregates all the errors that individually have been found

to be harmless, and therefore not reversible, and it analyzes whether their

cumulative effect on the outcome of the trial is such that collectively they can no

longer be determined to be harmless.” Rivera, 900 F.2d at 1470. The OCCA

determined that the cumulative effect of the prosecutorial misconduct did not

deprive Duckett of a fair trial. Duckett, 919 P.2d at 19. Having reviewed the

transcripts from the voir dire, trial, and sentencing proceedings, we conclude that

the improper prosecutorial statements identified by the OCCA did not, even when

accumulated, have a sufficient prejudicial effect to deny Duckett a fair trial or to

have affected his sentencing proceeding. Evidence supporting his guilt was

strong, as was evidence supporting the jury’s finding of those aggravating

circumstances that were properly before it for consideration. 2

2. Integrity of the Proceedings

In order to be entitled to habeas relief, a petitioner must ordinarily

2
Our conclusion is not affected by the fact that the “avoid arrest”
aggravating circumstance was found by the district court to have been erroneously
submitted to the jury for lack of sufficient evidence.

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demonstrate that any constitutional error “had substantial and injurious effect or

influence in determining the jury’s verdict,” and that the error resulted in “actual

prejudice.” Brecht v. Abrahamson, 507 U.S. 619, 637 (1993) (quotations

omitted). Nonetheless, the Court in Brecht noted that its holding

does not foreclose the possibility that in an unusual case, a deliberate
and especially egregious error of the trial type, or one that is
combined with a pattern of prosecutorial misconduct, might so infect
the integrity of the proceeding as to warrant the grant of habeas
relief, even if it did not substantially influence the jury’s verdict.

Id. at 638 n.9. Duckett contends that the prosecutorial misconduct engaged in by

the prosecution was deliberate and egregious, making this the “unusual case”

entitled to Brecht’s “footnote-nine exception.” 3

As evidence that the prosecutorial misconduct in the present case was

deliberate, Duckett notes that District Attorney Macy has been chastised for

participating in the same type of improper argumentation in other cases. For

instance, just one year before trial in the instant case, the OCCA reversed a

3
Because we conclude below that Macy’s conduct does not make this the
type of unusual case described in footnote nine and because the parties do not
raise the issue, we do not address whether the “footnote-nine exception” to the
harmless error standard of Brecht would ease a petitioner’s burden under the
AEDPA standard of review when the conditions of footnote nine have been met.
See Hale v. Gibson, 227 F.3d 1298, 1324 (10th Cir. 2000) (holding that this court
will apply the AEDPA standard of review where the state appellate court applied
the correct constitutional standard, but that we will apply the Brecht harmless-
error standard when the state appellate court applied an incorrect standard), cert.
denied, 533 U.S. 957 (2001).

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murder conviction prosecuted by Macy, soundly condemning his often

underhanded trial tactics in the process. See McCarty v. State, 765 P.2d 1215,

1220–21 (Okla. Crim. App. 1988) (noting, inter alia, that Macy improperly

expressed his personal opinion of the guilt of the accused; informed the jury it

had a responsibility to convict on the basis of his own sense of justice; requested

sympathy for the defendant’s victims; and expressed his personal opinion as to the

appropriateness of the death penalty). The OCCA concluded that the cumulative

effect of this misconduct warranted vacation of defendant’s death sentence,

stating that it would “not stand idly by wringing its hands, expressing nothing

more than a ritualistic verbal spanking and an attitude of helpless piety in

denouncing the deplorable conduct of prosecutors such as we have found in this

case.” 765 P.2d at 1221 (quotations omitted). 4

4
It is clear that Macy’s conduct did not improve over time. As Judge
Chapel noted lasted year in Hooks v. State, the OCCA has

repeatedly condemned the Oklahoma County District Attorney’s
reliance on improper argument. In addition to our warnings, federal
reviewing courts have also repeatedly condemned Mr. Macy and
prosecutors from his office for their habitual misconduct in
argument. This court has let this flagrant disregard of our rulings
pass too long. The second stage argument here contained several
comments the prosecutors knew to be error, included for the purpose
of inflaming the jury’s passions and encouraging a sentencing verdict
based on passion or prejudice rather than the evidence.

19 P.3d 294, 314 n.51 (Okla. Crim. App.) (citations omitted), cert. denied, 122 S.
(continued...)

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 In the present case, District Attorney Macy’s behavior, which the district

court found to be “inappropriate and juvenile” (1 R. Doc. 62 at 22), is

emphatically not condoned by this court. To the contrary, our past experiences

with this prosecutor leave us convinced that his “inappropriate” commentary at

trial was intentional and calculated. See, e.g., Paxton v. Ward, 199 F.3d 1197,

1216–18 (10th Cir. 1999) (reversing conviction after noting that Macy acted

“deceitfully” and “crossed the [constitutional] line between a hard blow and a

foul one” when he invited the jury to draw an adverse inference from defendant’s

failure to counter the state’s case); Trice v. Ward, 196 F.3d 1151, 1167 (10th Cir.

1999) (concluding that similar misconduct by Macy did not require reversal, but

noting that “[o]ur conclusion that the comments at issue did not render the trial

fundamentally unfair does not, however, amount to an endorsement of the

comments, nor to a holding that they could never rise to the level of a due process

violation absent the overwhelming evidence of guilt and aggravating

circumstances present in this case”).

Our nation’s confidence in the fair and just administration of the death

penalty is disserved by prosecutors who cynically test the bounds of the harmless-

error doctrine. During his career, Macy would have done well to heed the

4
(...continued)
Ct. 371 (2001).

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hortatory words of Justice Sutherland, who explained in Berger v. United States

that a government prosecutor

is the representative not of an ordinary party to a controversy, but of
a sovereignty whose obligation to govern impartially is as compelling
as its obligation to govern at all; and whose interest, therefore, in a
criminal prosecution is not that it shall win a case, but that justice
shall be done. As such, he is in a peculiar and very definite sense the
servant of the law, the twofold aim of which is that guilt shall not
escape or innocence suffer. He may prosecute with earnestness and
vigor—indeed, he should do so. But, while he may strike hard
blows, he is not at liberty to strike foul ones. It is as much his duty
to refrain from improper methods calculated to produce a wrongful
conviction as it is to use every legitimate means to bring about a just
one.

295 U.S. 78, 88 (1935), overruled on other grounds by Stirone v. United States,

361 U.S. 212 (1960). As amply—but not exhaustively—demonstrated above, in

his career Macy has struck hard blows and he has struck foul ones. Under the

harmless-error doctrine we cannot afford relief to all defendants who have been

subjected to his foul blows. This fact speaks only to our limited role in the

federal system of justice and affords no ethical absolution for the prosecutor who

repeatedly engages in such misconduct. Nor can the harmless-error doctrine

check the erosion, engendered by such misbehavior, in the public’s perception of

the fairness of our nation’s death-penalty proceedings. Macy’s persistent

misconduct, though it has not legally harmed the defendant in the present case,

has without doubt harmed the reputation of Oklahoma’s criminal justice system

and left the unenviable legacy of an indelibly tarnished legal career.

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 In this case, for lack of a showing of prejudice, we deny habeas relief. The

due process concerns flagged by footnote nine of Brecht will manifest themselves

only in very limited circumstances. We agree with the Ninth Circuit that “the key

consideration” to whether the footnote’s exemption will be applicable “is whether

the integrity of the proceeding was so infected that the entire trial was unfair.”

Hardnett v. Marshall, 25 F.3d 875, 879 (9th Cir. 1994). Brecht itself involved a

prosecutor’s repeated improper and egregious remarks to the jury, in violation of

Doyle v. Ohio, 426 U.S. 610 (1976), concerning the defendant’s pretrial silence.

See Brecht, 507 U.S. at 625–26. Nevertheless, the Supreme Court analyzed the

prosecutorial misconduct under a harmless-error standard, finding that the facts in

the case did not involve a “deliberate and especially egregious error of the trial

type, or one that is combined with a pattern of prosecutorial misconduct.” Id. at

637 n.9. We conclude that Duckett has likewise failed to show that the

prosecutorial misconduct in the present case so infected the trial as to make the

proceeding fundamentally unfair and thus immune from harmless-error review.

B

Duckett argues that his trial counsel was ineffective for failing to

investigate mitigation evidence for the sentencing phase. An ineffective-

assistance-of-counsel claim is a mixed question of fact and law that, having been

presented to the state court, is subject to the standards of review set forth in 28

-21-
U.S.C. § 2254. Gonzales v. McKune, 247 F.3d 1066, 1072 (10th Cir. 2001).

Duckett specifically contends that trial counsel was ineffective because he

unreasonably failed to uncover facts indicating that Duckett had been sexually

abused by a family member 5 and that Duckett was substantially impaired at the

time of the murder due to his addiction to marijuana, methamphetamine, and

cocaine. 6 Because Duckett did not assert this claim on direct appeal, under

Oklahoma’s Post-Conviction Procedure Act, Okla. Stat. tit. 22, § 1089(C), he

was procedurally barred from raising the claim before the OCCA on post-

conviction review. In an attempt to clear the procedural-bar hurdle, Duckett

argued before the OCCA that his appellate counsel was ineffective for failing to

raise the claim on direct review. The OCCA considered Duckett’s argument and

rejected it. In doing so, it explained that Rust Eddy, an investigator hired by

Duckett’s trial counsel, had stated in an affidavit submitted to that court that

while it would have been typical for [Eddy] to ask the defendant and
those who knew him about the use of illegal drugs, he has no
recollection of information concerning Petitioner’s history of drug
use or the specific facts concerning Petitioner’s drug abuse in the
weeks and days before the offense. Mr. Eddy next states:

5
After the conclusion of the trial, Duckett’s appellate counsel learned of
evidence indicating that as a child Duckett may have suffered an incident of
sexual abuse by a cousin. As evidence of this abuse, counsel submitted a series of
affidavits to the OCCA as part of Duckett’s application for post-conviction relief.
6
According to affidavits in the record, Duckett apparently smoked three to
five marijuana cigarettes a day since age eleven, injected methamphetamine daily
since his escape from prison, and abused cocaine and alcohol.

-22-
 During the course of preparation for trial, Mr. Duckett’s
defense team discovered that Mr. Duckett may have been
suffering from Post Traumatic Stress Disorder stemming
from a prison rape during his incarceration [at] the
Joseph Harp Correctional Center. After we discovered
this fact, the defense team abandoned the development of
any other defense theories and focused on the Post
Traumatic Stress Disorder. As a result, I do not recall
whether we continued an investigation into Mr. Duckett’s
drug use.

It is clear that defense counsel’s decision not to pursue other possible
defenses was a tactical one. We must apply a “heavy measure of
deference” to trial counsel’s strategic decision to raise the defense of
temporary insanity associated with Post Traumatic Stress Disorder
rather than a defense or mitigation based upon diminished capacity or
drug intoxication at the time [of] the offense as propounded by
Petitioner. See Strickland v. Washington, 466 U.S. 648, 691 (1984).
To conclude that trial counsel’s defense strategy and resulting
decisions concerning further exploration of other defenses were
unreasonable would be to second guess trial counsel’s performance
by hindsight. Strickland does not require this degree of judicial
scrutiny. Id. at 689. We find that trial counsel’s strategic defense
decisions were neither deficient nor prejudicial and that [he]
provided Petitioner reasonably effective assistance. Accordingly,
appellate counsel was not ineffective in failing to attack trial
counsel’s performance. An attack after the fact is so easy. Trial
counsel here acted properly. This proposition is denied.

(3 R. Doc. 26 App. 10 at 5–6 (emphasis in original, parallel citations omitted).)

Because the OCCA determined that Duckett had waived his claim of

ineffective assistance of trial counsel, habeas review is precluded in this court

unless Duckett can either establish that cause and prejudice excused his default,

or show that our refusal to consider his claims will result in a fundamental

miscarriage of justice. See Coleman v. Thompson, 501 U.S. 722, 750 (1991).

-23-
Duckett does not assert a fundamental miscarriage of justice, instead reurging

before this court that we should find cause for the default in the ineffectiveness of

his appellate counsel. See id. at 752–54 (holding that constitutionally ineffective

assistance can establish cause to excuse a procedural default). Because, as noted

above, the OCCA considered Duckett’s claim of ineffective assistance of

appellate counsel, we review its determination pursuant to the standards set forth

in AEDPA.

In order to succeed on his claim that appellate counsel was ineffective,

Duckett must first demonstrate that he would have been entitled under Strickland

v. Washington, 466 U.S. 668 (1984), to relief for the ineffectiveness of trial

counsel. See Hooks v. Ward, 184 F.3d 1206, 1221 (10th Cir. 1999) (“When

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

raise an issue, we look to the merits of the omitted issue.”). Strickland, of course,

requires a showing that counsel’s performance was both deficient and prejudicial

to the defense. 466 U.S. at 692, 694. The relevant question is “whether appellate

counsel was ‘objectively unreasonable’ in failing to raise [this claim] on direct

appeal and, if so, whether there is a ‘reasonable probability that, but for his

counsel’s unreasonable failure’ to raise these claims, [petitioner] ‘would have

prevailed on his appeal.’” Neill v. Gibson, 278 F.3d 1044, 1057 (10th Cir. 2001)

(quoting Smith v. Robbins, 528 U.S. 259, 285–86 (2000)), petition for cert. filed,

-24-
__ U.S.L.W. __ (U.S. May 6, 2002) (No. 01-10121).

We have noted that counsel “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 (quotation omitted).

This duty to conduct a reasonable investigation is particularly important with

respect to the sentencing phase of a capital trial, and we have thus “recognized a

need to apply even closer scrutiny when reviewing attorney performance during

the sentencing phase of a capital case.” Battenfield v. Gibson, 236 F.3d 1215,

1226 (10th Cir. 2001) (quotation omitted). As we explained in Romano v.

Gibson,

The sentencing stage is the most critical phase of a death
penalty case. Any competent counsel knows the importance of
thoroughly investigating and presenting mitigating evidence. As a
practical matter, the defendant probably has little or no chance of
avoiding the death sentence unless the defense counsel gives the jury
something to counter both the horror of the crime and the limited
information the prosecution has introduced about the defendant.
Mitigating evidence plays an overwhelmingly important role in the
just imposition of the death penalty. It affords an opportunity to
humanize and explain—to individualize a defendant outside the
constraints of the normal rules of evidence.

239 F.3d 1156, 1180 (10th Cir.) (quotations omitted), cert. denied, Woodruff v.

Gibson, 122 S. Ct. 624 (2001). We are, moreover, “mindful of the Supreme

Court’s observation that our duty to search for constitutional error with

painstaking care is never more exacting than it is in a capital case,” in which

-25-
“counsel’s duty to investigate all reasonable lines of defense is strictly observed.”

Williamson v. Ward, 110 F.3d 1508, 1514 (10th Cir. 1997).

Nonetheless, “[t]he failure to present available mitigating evidence is not

per se ineffective assistance of counsel,” Hale v. Gibson, 227 F.3d 1298, 1315

(10th Cir. 2000), cert. denied, 533 U.S. 957 (2001), and “a particular decision not

to investigate must be directly assessed for reasonableness in all the

circumstances, applying a heavy measure of deference to counsel’s judgments,”

Strickland, 466 U.S. at 691. In this regard, we have noted that “counsel

frequently will ‘winnow out’ weaker claims in order to focus effectively on those

more likely to prevail.” Banks v. Reynolds, 54 F.3d 1508, 1515 (10th Cir. 1995)

(quoting Smith v. Murray, 477 U.S. 527, 536 (1986)). Not all decisions to

abandon potential lines of defense are, of course, reasonable. “[S]trategic choices

made after less than complete investigation are reasonable precisely to the extent

that reasonable professional judgments support the limitations on investigation.

In other words, counsel has a duty to make reasonable investigations or to make a

reasonable decision that makes particular investigations unnecessary.” Strickland,

466 U.S. at 690.

We easily conclude that the decision of Duckett’s trial counsel to focus its

efforts on Duckett’s PTSD defense was, under the circumstances, a reasonable

tactical decision and that Duckett’s trial counsel was not ineffective in this

-26-
regard. According to Eddy’s affidavit, the defense team did, in fact, attempt to

investigate Duckett’s sexual abuse, and presumably investigated Duckett’s history

of drug abuse as well. Although Eddy stated in his affidavit that “I currently have

no recollection of information concerning Mr. Duckett’s history of drug use or the

specific facts concerning Mr. Duckett’s drug abuse in the weeks and days before

the offense” (3 R. Doc. 26 App. 6 at 2), he also noted that “it would have been

typical for me to ask the defendant and those who knew the defendant about the

defendant’s use of illegal drugs and abuse of legal drugs. I have no reason to

believe I would have done things any differently in Mr. Duckett’s case,” (3 id. at

1–2). With respect to the incident of childhood sexual abuse that Duckett may

have suffered at the hands of a cousin, Eddy acknowledged that he interviewed

Duckett’s parents and specifically asked whether either of them had any

information that Duckett had been physically or sexually abused as a child; he

was answered in the negative.

It would be unreasonable to deem trial counsel ineffective for failing to

discover potential mitigating evidence when counsel conducted a reasonable

investigation but was stymied by potential witnesses who were not forthcoming.

We have in similar circumstances noted that “counsel cannot be faulted for failing

to raise claims as to which the client has neglected to supply the essential

underlying facts . . . [because] clairvoyance is not required of effective trial

-27-
counsel.” United States v. Miller, 907 F.2d 994, 999 (10th Cir. 1990) (quotations

omitted). Given trial counsel’s good-faith investigation, it was a reasonable

tactical decision to abandon further inquiry into the drug-and-sexual-abuse line of

potential mitigating evidence and instead focus on developing a PTSD defense.

We therefore conclude that trial counsel’s performance did not fall “below an

objective standard of reasonableness,” measured “under prevailing professional

norms.” Strickland, 466 U.S. at 688. 7 Having determined that Duckett’s claim

fails the first prong of the Strickland standard, we need not address whether he

was prejudiced by counsel’s performance. See Romano, 239 F.3d at 1181 (“This

court can affirm the denial of habeas relief on whichever Strickland prong is the

easier to resolve.”). Because trial counsel was not ineffective, appellate counsel

correlatively cannot be ineffective for failing to raise a dependent ineffectiveness

claim. The conclusion reached by the OCCA on this matter was not, perforce,

contrary to clearly established Supreme Court precedent. Because Duckett has

failed to demonstrate either cause and prejudice for the procedural default of his

claim of ineffective assistance of trial counsel, or that our refusal to consider his

claim would result in a fundamental miscarriage of justice, we conclude that we

7
We thus also conclude that Duckett’s trial counsel was not ineffective for
failing to request funds, pursuant to Ake v. Oklahoma, 470 U.S. 68, 83 (1985), to
hire a psychiatrist to evaluate Duckett’s mental health and potentially testify at
the sentencing phase of the trial.

-28-
are precluded from addressing the merits of the claim.

C

Duckett further contends that the federal district court erred by not granting

his request for funds to employ an expert witness who would testify at the

evidentiary hearing in which the district court considered the ineffective-

assistance-of-counsel claim discussed above. Duckett argued before the district

court that it was necessary to present expert testimony from a lawyer experienced

in conducting capital cases to “opine[] that no legitimate reason existed why trial

counsel would not have learned or presented [evidence of sexual molestation and

chronic drug abuse] to the jury.” (6 R. Doc. at 59.) The district court is, of

course, authorized to appoint necessary investigative assistance to a defendant:

In any post conviction proceeding under [28 U.S.C. § 2254] seeking
to vacate or set aside a death sentence, any defendant who is or
becomes financially unable to obtain adequate representation or
investigative, expert, or other reasonably necessary services shall be
entitled to the appointment of one or more attorneys and the
furnishing of such other services . . . .

21 U.S.C. § 848(q)(4)(B). Moreover, contrary to the state’s contention in its

briefs, expert legal witnesses have not been barred from testifying in this circuit

about claims of ineffective assistance of counsel. See, e.g., Smith v. Massey, 235

F.3d 1259, 1269 (10th Cir. 2000) (taking into consideration legal expert testimony

with respect to an ineffectiveness claim), abrogated on other grounds by Neill,

278 F.3d at 1057 n.5 (en banc), and cert. denied, 122 S. Ct. 235 (2001); Demarest

-29-
v. Price, 130 F.3d 922, 936 (10th Cir. 1997) (same).

We review a district court’s denial of a motion to appoint an expert for

abuse of discretion. Matthews v. Price, 83 F.3d 328, 335 (10th Cir. 1996); United

States v. Nichols, 21 F.3d 1016, 1017 (10th Cir. 1994). An indigent defendant

requesting appointment of an investigator or expert bears the burden of

demonstrating with particularity that “such services are necessary to an adequate

defense.” United States v. Grechner, 802 F.2d 373, 376 (10th Cir. 1986).

The district court in the present case was eminently suited to determine the

essentially legal question of whether defense counsel’s adoption of its legal

strategy was or was not deficient. Duckett has brought forward no compelling

arguments that would lead us to conclude that the district court abused its

discretion in deciding that the testimony of a legal expert was not “reasonably

necessary.”

D

Duckett contends that the admission into evidence, during the guilt phase of

his trial, of a disturbing police-made videotape of the crime scene deprived him of

a fundamentally fair trial. The OCCA addressed this evidentiary issue on direct

review, concluding that the videotape—which pictured the bloody murder scene

as well as the victim’s body—was neither cumulative of other crime scene

photographs nor more prejudicial than probative:

-30-
 While the videotape is graphic, it is not so gruesome as to be
considered prejudicial. The victim is in the background and his head
is turned away so the major injuries inflicted upon the victim are not
being constantly shown to the jury. The videotape does have
probative value since no pictures were admitted that showed the
deceased’s head or shoulders, where the majority of the injuries were
sustained. The videotape also corroborates the medical examiner’s
testimony and refutes [Duckett’s] theory that the crime was
committed without malice.

Duckett, 919 P.2d at 16. We may not provide habeas corpus relief on the basis of

state court evidentiary rulings “unless they rendered the trial so fundamentally

unfair that a denial of constitutional rights results.” Mayes v. Gibson, 210 F.3d

1284, 1293 (10th Cir.), cert. denied, 531 U.S. 1020 (2000). “[B]ecause a

fundamental-fairness analysis is not subject to clearly definable legal elements,”

when engaged in such an endeavor a federal court must “tread gingerly” and

exercise “considerable self-restraint.” United States v. Rivera, 900 F.2d 1462,

1477 (10th Cir. 1990). Acknowledging these standards, the district court

determined that admission of the videotape “was not so unduly prejudicial as to

render the proceedings against petitioner fundamentally unfair.” (1 R. Doc. 62 at

62 (quotation omitted).)

Having ourselves reviewed the videotape and the record as a whole, we

agree with the district court that Duckett’s trial was not rendered fundamentally

unfair by the videotape’s introduction into evidence. We do not accept Duckett’s

argument that the only purpose the videotape could have served at trial was to

-31-
prove the applicability of the “heinous, atrocious, or cruel” aggravating

circumstance and that, because the videotape failed to prove that the victim

consciously suffered, its probative value was nil. (Appellant’s Br. Expanded

COA at 4–5, 8–9.) To the contrary, the videotape was admitted during the guilt

phase of the trial, and the OCCA, as noted above, identified several ways in

which the videotape was probative of guilt-stage issues. We agree with the

district court and the OCCA that the videotape was not so gruesome as to have

prejudiced the jury to such an extent that Duckett’s trial was rendered

fundamentally unfair, and we therefore decline to grant habeas corpus relief to

Duckett on this ground. 8

E

After hearing evidence at the sentencing stage of Duckett’s trial, the jury

indicated on a special verdict form that it had unanimously found, beyond a

reasonable doubt, the existence of five aggravating circumstances—that the

8
Duckett makes a passing reference at the close of his brief to the hearsay
nature of the audio portion of the videotape, which is narrated by both on- and
off-screen police investigators discussing the evidence at the crime scene. The
investigators comment on blood splatter and smears, discuss the position of the
body, and on one occasion stage a re-enactment of a portion of the crime.
Duckett does not contend, however, that any of the unsworn statements were not
also presented to the jury as sworn testimony at trial. Even assuming that it was
error for the trial court to have allowed into evidence the audio portion of the
videotape, we conclude, upon a review of the entire record, that Duckett has not
demonstrated that the trial court’s allegedly improper evidentiary ruling rendered
his trial fundamentally unfair.

-32-
murder was especially heinous, atrocious, or cruel; that Duckett was previously

convicted of a felony involving the use or threatened use of force or violence

against a person; that the murder was committed for the purpose of avoiding or

preventing a lawful arrest or prosecution; that the murder was committed while

Duckett was serving a sentence of imprisonment; and that Duckett would

probably commit acts of violence which would constitute a continuing threat to

society. The jury also unanimously found that these aggravating circumstances

outweighed the mitigation evidence that Duckett had presented at trial. In his

petition for a writ of habeas corpus, Duckett alleged before the district court that

the “avoid arrest” aggravating circumstance was unsupported by sufficient

evidence and that it therefore should not have been presented to the jury.

Although the court agreed, it concluded that Duckett was not entitled to habeas

relief because the erroneous submission of this aggravating circumstance was

harmless error that did not have a substantial and injurious effect or influence on

the jury’s verdict.

Duckett contends that the district court erroneously performed its harmless-

error analysis with respect to the invalid aggravating circumstance, offering three

rationales in support of his argument. He suggests first that the federal courts

have no authority to perform a harmless-error analysis when the district court,

rather than a state appellate court, has determined that an aggravating

-33-
circumstance is invalid. Alternatively, he argues that a federal court must

“reweigh” a defendant’s mitigation evidence against the remaining valid

aggravating circumstances when performing its harmless-error analysis.

(Appellant’s Br. at 39.) Finally, he contends that even if it is proper for the

federal court to perform a harmless-error analysis itself without actually

reweighing the mitigation and aggravation evidence, the district court nonetheless

erred by failing to take into consideration the mitigation evidence that Duckett

presented at trial. Because these three arguments are interrelated, we address

them together.

The decision of a district court whether to apply a harmless-error analysis is

a legal question which we review de novo. Because the district court’s harmless-

error analysis itself is a mixed question of law and fact, Hunt v. Oklahoma, 683

F.2d 1305, 1309 (10th Cir. 1982), we review the court’s conclusions of law de

novo and its findings of fact, if any, for clear error, Walker, 228 F.3d at 1225.

In Clemons v. Mississippi, 494 U.S. 738 (1990), the Supreme Court

sanctioned the practice of a state appellate court’s reweighing of aggravation and

mitigation evidence after the state court’s determination that an aggravating

circumstance was improperly submitted to the jury. “Nothing in the Sixth

Amendment,” the Court explained, “indicates that a defendant’s right to a jury

trial would be infringed where [a state] appellate court invalidates one of two or

-34-
more aggravating circumstances found by the jury, but affirms the death sentence

after itself finding that the one or more valid remaining aggravating factors

outweigh the mitigating evidence.” Id. at 745. 9 In addition, the Court approved

the practice of a state appellate court reviewing for harmlessness the submission

to the jury of an invalid aggravating circumstance, stating that “it [is] open to the

[state appellate court] to find that the error which occurred during the sentencing

proceeding was harmless.” 10 Id. at 752. Clemons therefore stands for the

proposition that state appellate courts, rather than having to remand the

sentencing determination to the jury when errors have occurred in a capital

sentencing proceeding, may first engage in either a harmless-error or a reweighing

9
The Court’s discussion in Clemons is premised on the assumption that the
capital sentencing scheme is that of a “weighing state.” In a weighing state,
“after a jury has found a defendant guilty of capital murder and found the
existence of at least one statutory aggravating factor, it must weigh the
aggravating factor or factors against the mitigating evidence.” Stringer v. Black,
503 U.S. 222, 229 (1992). Oklahoma, like Florida, is a “weighing state.” Castro
v. Ward, 138 F.3d 810, 816 (10th Cir. 1998).
10
The Court identified two ways in which the state court could properly
find such error to be harmless—either by balancing the remaining valid
aggravating circumstances against the mitigating circumstances and determining
whether beyond a reasonable doubt the jury would have reached the same result,
or by asking whether it was beyond a reasonable doubt that the jury would have
found the presence of the invalidated aggravating circumstance if the improperly
defined aggravating circumstance had been properly presented to the jury.
Clemons, 494 U.S. at 754–55.

-35-
analysis to determine whether such a remand is necessary. 11 Contrary to

Duckett’s suggestion, Clemons does not mandate that any court—state or

federal—engage in a reweighing process once it determines that an aggravating

circumstance has been improperly submitted to a jury.

The duty of a federal habeas court when it finds constitutional trial error

that was not addressed by the state court is clear. Pursuant to Brecht, a federal

court may not afford a petitioner habeas relief before determining whether the

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

verdict.” 507 U.S. at 623 (quotation omitted). Although we have acknowledged a

circuit split on the issue, we have specifically held that harmless-error analysis “is

available to us on federal habeas review where the error involves the submission

to the jury of an unconstitutionally vague aggravating circumstance.” Davis v.

Exec. Dir. Dep’t of Corr., 100 F.3d 750, 768 n.18 (10th Cir. 1996).

Providing some guidance to the federal courts faced with deciding whether

11
We offer no opinion whether the Court’s holding in Clemons will
survive in light of the recent decision in Ring v. Arizona, that “[c]apital
defendants . . . are entitled to a jury determination of any fact on which the
legislature conditions an increase in their maximum punishment.” 122 S. Ct.
2428, 2432 (2002). After oral argument had taken place in the instant case,
Duckett moved this court to abate the proceedings in order to allow him to
exhaust a Ring claim in state court. The substance of Duckett’s claim was not
raised before the district court. Because we generally do not consider issues
raised for the first time on appeal, Lyons v. Jefferson Bank & Trust, 994 F.2d
716, 720 (10th Cir. 1993), we conclude that holding this matter in abeyance
would be pointless. We therefore deny Duckett’s motion.

-36-
a trial error had substantial and injurious effect or influence in determining the

jury’s verdict, the Supreme Court has indicated that “where the record is so

evenly balanced that a conscientious judge is in grave doubt as to the

harmlessness of an error,” the error is not harmless. O’Neal v. McAninch, 513

U.S. 432, 437 (1995). We have similarly stated that our task is to “determine, in

light of the entire record, whether [the error] so influenced the jury that we cannot

conclude that it did not substantially affect the verdict, or whether we have grave

doubt as to the harmlessness of the errors alleged.” Tuttle v. Utah, 57 F.3d 879,

884 (10th Cir. 1995).

Applying the Brecht standard, we conclude that the improper submission to

the jury of the “avoid arrest” aggravating circumstance in the present case was

harmless error. As the district court noted, four aggravating circumstances were

properly submitted to the jury and found to exist beyond a reasonable doubt, the

“avoid arrest” aggravating circumstance was not “emphasized disproportionately”

during closing argument, Davis, 100 F.3d at 773, and the prosecution did not

“allude to any evidence or facts not already properly before the jury,” id.

Although the district court did not explicitly state that it took into consideration

the weight of the mitigation evidence presented by Duckett in reaching its

determination that the improper submission of the aggravating circumstance was

harmless, the court did note that “in light of the entire record” it found the error

-37-
to be harmless. (1 R. Doc. 62 at 51.) We, too, have reviewed this error in light

of the entire record—including all of the mitigation evidence submitted by

Duckett—and conclude, without doubt, that the jury would have reached the same

sentencing decision. 12

III

The district court’s dismissal of Duckett’s petition for a writ of habeas

corpus is AFFIRMED.

12
Because under our harmless-error analysis we do not reweigh mitigation
and aggravation evidence, it is unnecessary for us to provide Duckett with “notice
and an opportunity to be heard” concerning the enduring validity of the
“continuing threat to society” aggravating circumstance found by the jury.
(Appellant’s Br. at 41.) Contrary to Duckett’s contention, by performing our
harmless-error review we do not “sit as sentencer,” and our determination that the
constitutional trial error was harmless is not a “sentencing.” (Id.) Though in
some circumstances harmless-error review may superficially resemble the
reweighing of mitigation and aggravation evidence, our role on habeas review is
not that of factfinder. That Duckett was found by the jury to be a continuing
threat to society is a factual determination that we as a habeas court will not
reconsider.

-38-