Mollett v. Mullin

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

PUBLISH NOV 5 2003

UNITED STATES COURT OF APPEALS PATRICK FISHER
Clerk
TENTH CIRCUIT

LLOYD EDWARD MOLLETT,

Petitioner-Appellee,

v. No. 01-6403

MIKE MULLIN, Warden,
Oklahoma State Penitentiary,

Respondent-Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
(D.C. No. CIV-98-539-M)

David M. Brockman, Assistant Attorney General, Criminal Division (W.A. Drew
Edmondson, Attorney General of Oklahoma, with him on the brief), Oklahoma City,
Oklahoma, for Respondent-Appellant.

John M. Stuart of Stuart, Frieda & Hammond, P.C., Duncan, Oklahoma, for
Petitioner-Appellee.

Before KELLY, HENRY, and MURPHY, Circuit Judges.

HENRY, Circuit Judge.
 Lloyd Edward Mollett was found guilty of first-degree murder and first-degree rape

by an Oklahoma jury. At the trial’s sentencing stage, the prosecution urged the jury to

impose the death penalty. During the jury deliberations that followed, the jury sent the

presiding judge a note asking the judge to “tell us if we find a sentence of [l]ife is the[re]

any possibility of Mr. Mollett ever leaving prison for any reason whatsoever.” The trial

judge replied that “[m]atters of parole are beyond the purvue [sic] of the jury or the court

to consider.” The judge did not advise defense counsel or the prosecution of the question

or his response. The jury later sentenced Mr. Mollett to death.

The Oklahoma Court of Criminal Appeals affirmed the convictions and sentences

and, later, denied post-conviction relief. Subsequently, the United States District Court for

the Western District of Oklahoma conditionally granted Mr. Mollett habeas relief, finding

that Mr. Mollett is entitled to a new sentencing hearing on the grounds that (1) the trial

court’s reply to the jury denied Mr. Mollett due process under Simmons v. South Carolina,

512 U.S. 154 (1994), and (2) Mr. Mollett’s trial counsel provided ineffective assistance of

counsel during the trial’s sentencing phase by failing to investigate and present mitigating

evidence. As detailed below, we affirm on the Simmons due process issue and therefore

do not reach the issue of ineffective assistance of counsel.

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 I. BACKGROUND

This tragic case arises out of Mr. Mollett’s rape and murder of Sri Sedjati Sugeng.

In 1993, Mr. Mollett and Ms. Sugeng lived in the same apartment complex in Stillwater,

Oklahoma. Mr. Mollett lived with his girlfriend and her son; although he suffered from

visual impairment, learning disability, and Attention Deficit Disorder, he was able to work

at a printing press. Ms. Sugeng lived alone in the apartment complex; she had moved to

the United States from Indonesia to attend Oklahoma State University, where she was

studying interior design. During this time, Mr. Mollett and Ms. Sugeng became somewhat

acquainted. The two owned Rottweiler dogs and would sometimes chat as they walked

their dogs.

On the evening of October 22, 1993, Ms. Sugeng had plans to meet two friends for

a movie. When Ms. Sugeng did not appear at the movie theater, her friends repeatedly

attempted to telephone her and then went to her apartment. There, Ms. Sugeng’s friends

found her face down in the bathtub, unconscious. The attempts to resuscitate Ms. Sugeng

were unsuccessful, and she died.

A subsequent investigation of Ms. Sugeng’s apartment revealed, among other

things, two blood stains on the living room floor. Near those blood stains was a baseball

cap in which hairs were subsequently found. A pair of torn pink undergarments was found

near Ms. Sugeng’s bed, and bloodstains were found on her bed.

The baseball cap found in Ms. Sugeng’s apartment was later traced to Mr. Mollett,

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who admitted that the cap was his. The bloodstains in the living room were identified as

Ms. Sugeng’s blood. The stain on the bed contained both Ms. Sugeng’s blood and Mr.

Mollett’s semen. Mr. Mollett’s semen was also detected on the vaginal swabs later taken

by the medical examiner. A medical examiner examined Ms. Sugeng’s body and found

contusions and bruises on her cheek and under her chin and inner lips, a contusion on her

chest, bruising on her hips, and lacerations both inside and just outside Ms. Sugeng’s

vagina. Injuries consistent with defensive wounds were found on Ms. Sugeng’s hands,

wrists, and forearms. Further, marks on Ms. Sugeng’s throat, in conjunction with

petechial hemorrhaging, indicated that she had been strangled. Ms. Sugeng’s lungs and

trachea were filled with fluid in a manner associated with drowning. The medical

examiner ultimately concluded the cause of death to be asphyxia from either drowning or

neck compression.

Mr. Mollett was arrested shortly thereafter and in 1995, he was tried by a Payne

County, Oklahoma jury. After the jury convicted Mr. Mollett of rape and first-degree

murder, the State sought the death penalty, arguing that three of the aggravating factors

that can trigger the imposition of the death penalty under Oklahoma law were present: (1)

that the murder was “especially heinous, atrocious or cruel;” (2) that Mr. Mollett

committed the murder “to avoid lawful arrest or prosecution;” and (3) that Mr. Mollett was

a “continuing threat to society.” Okla. Stat. tit. 21, § 701.12.

Oklahoma law provides for three possibilities when a defendant is charged with a

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crime for which the prosecution seeks the death penalty. First, if the prosecution proves

that a statutory aggravator is present, and the jury does not find that mitigating evidence

outweighs the aggravator, the death penalty may be imposed. See Okla. Stat. tit. 21, §

701.11. Second and third, the jury, or, absent agreement between among the jurors, the

trial judge, may “impose a sentence of [either] imprisonment for life without parole or

imprisonment for life.” Id. (emphasis supplied).

Approximately one month before Mr. Mollett’s trial, Mr. Mollett’s trial counsel

requested that the jury be instructed under Simmons v. South Carolina,

512 U.S. 154 (1994):

that [opinion] addresses life in prison without parole. . . . it stands for the
proposition that there is a chance that a jury may believe it does not really mean
life without parole. And we would request they be instructed on that issue. But
I would like to put the Court on notice by virtue of Simmons.

Tr. of Dec. 6, 1999 Proceedings, at 8. Mr. Mollett’s trial counsel followed that request

with a written request that the court instruct the jury that:

when considering punishment that life imprisonment means imprisonment for
life. You are further instructed that the death penalty means that the Defendant
will be put to death. You are also instructed that life without parole means that
the Defendant will be in the penitentiary for all of his life with no possibility of
parole. You should draw no other conclusions concerning punishment other
than what is stated in this instruction.

State Ct. Rec. vol. III, at 464 (Defendant’s Requested Second Stage Jury Instructions filed

Jan. 19, 1995).

The district court did not agree to the requested jury instruction. At the trial’s

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sentencing stage, the State introduced evidence of Mr. Mollett’s three prior felony

convictions. Additionally, the State incorporated all guilt-stage evidence and presented

victim-impact evidence from Ms. Sugeng’s family. At the sentencing hearing, Mr. Mollett

presented seven mitigation witnesses who testified to a variety of mitigating

circumstances, including his health problems and also to various qualities of Mr. Mollett,

such as that he is a good person who is loved, loving, helpful, thoughtful, generous,

hard-working, kind, an animal lover, and non-violent.

After the conclusion of the presentation of evidence in the trial’s sentencing stage,

the trial judge instructed the jury. Over the objection of Mr. Mollett’s counsel, the trial

judge instructed that “[t]he crime of Murder in the First Degree is punishable by death or

by imprisonment for life without parole, or by imprisonment for life.” Id. at 441. No

further definition of any of the sentencing options was given to the jury. See id. at 439-51.

During closing arguments, the prosecutor repeatedly stressed that the jury should

find that Mr. Mollett constituted a continuing threat to society:

The State has alleged that this defendant is a continuing threat to society.
He always will be [a continuing threat] is what the evidence establishes: . . . .
Look at the nature of the crime itself when determining whether continuing
threat exists, and the circumstances surrounding the entire picture of these
crimes.
He stalked her. This was not a crime of rage committed in a heat of the
moment. This was a crime of design, or premeditation, and of planning. The
evidence was revealed that Mr. Mollett had copies of the pass keys to Forty
North apartments. [Ms. Sugeng] would not have been safe from him even
behind locked doors. And [Ms. Sugeng] . . . is no different from the rest of us.
. . . Look at the severity of the injuries, the callous and brutal nature of the
crime itself.

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 We have a torn vagina and hymen which we know a knife did not cause.
We know there are two books of a sexual nature in that apartment. And
according to the friends who have discussed more with [Ms. Sugeng] than her
dog and the weather, they did not belong to her.
Because of the extent of the vaginal wounds one could reasonably infer
that her assault involved repeated acts of rape and penetration. This was a rape
of degradation, humiliation, and intense pain designed to punish her for
refusing his attentions and rejecting his offers.
Let’s examine more of the evidence to see the callousness of this crime
before you. All evidence from the first stage has been introduced into this
stage, including the testimony of the defendant himself. Usually in your
experience have you not found that even in a lie there are tidbits and moments
of truth, those things that reveal how a person’s mind works?
Examine the terms the defendant used when describing his relationship
and actions with [Ms. Sugeng.] I hit on her, we just got it on, I put her back and
her butt on the bed with her legs up in the air.
These are not terms of respect of another human being. They are not
describing a caring relationship. He had no regard for her as a person or her left
behind body. The defendant testified in cross examination that he knew [Ms.
Sugeng’s] family was coming to see her that weekend. He chose Friday to
murder her. He left her in a tub dumped. That is callous.
Look at the scenario of what happened in that apartment that evening.
We go from bedroom to living room to bathroom. She couldn’t get away from
him. She tried as she ran bleeding into the living room. When he took her into
the bathroom there might have been hope in her mind that maybe, maybe he’s
just trying to wash the evidence away and he’ll leave.
But hope was not there for [Ms. Sugeng]. He strangled her, he pushed
her mouth under the water, and water was all she could breathe until she could
breathe no more. And that’s where he left her. And that’s callous.
The defendant never would admit during his testimony on cross that he
was in the bathroom that evening. Obviously the evidence suggests otherwise.
And as [Ms. Sugeng] lay dead or dying in the tub the defendant picked up a
towel to clean his genitals, [Ms. Sugeng’s] blood from him, throws it onto the
floor, turns off the light, – remember it’s the only light in the apartment off –
goes home to wash the evidence way, discards his bloody jeans there, goes to
[a friend’s] house where he lays down on the couch and watches TV.
That’s callous. That’s disregard for human life. That’s disrespect for
the dead. That’s callous.
Even then he had a chance, an opportunity, a choice to prevent friends
from walking into that death scene and finding a person they loved. He could

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 have made anonymous calls to anybody, anyone but her family or friends so
they didn’t have to find that. He chose not to. He covers up his crime all the
way from setting it up beforehand to the thirteen pubic hairs he threw on the
floor, to going back to Ron’s house, to telling the police never the truth. And
that’s callous.
He has a criminal history that’s indicative of a progression of anti-social
behavior. Receiving stolen property, concealing stolen property, burglary in the
second degree. Those are felony offenses, Ladies and Gentlemen. They’re not
minor crimes. They weren’t all committed at the same time. He wasn’t a child
when he committed them.
He committed the first one and he was sentenced for it, and it did
nothing. He committed more crimes. He committed the second one, he was
sentenced for it, and that did nothing, and he went out and committed some
more crimes.
He committed the third one, was convicted for it, and that did nothing.
And now we’re here today in a rape and murder. It can’t get any more violent
than this man has become.

Trial trans. vol. VII, at 66-71 (emphasis supplied). After trial counsel for Mr. Mollett

completed his closing argument, the prosecution continued to argue, in rebuttal, that

Petitioner constituted a continuing threat to society:

They say prison is good enough, he can’t get out. The people he meets
there, the people he influences there, the people in contact with that mind there,
they’ll come out. Not everyone in prison’s [sic] in there forever. And the cycle
beings again.
The risk to society is too great. It’s said that locking up a person for the
rest of his life is more cruel than executing him. That’s not so. For as long as
an evilness in a mind survives it loves the wickedness. That’s what
wickedness is.
They say Lloyd Mollett is not Ted Bundy and not Roger Dale Stafford.
That they’re different. They’re killers. What made Bundy different than Lloyd
Mollett is he was allowed to kill again until he finally received the death
penalty.

Id. at 80-81 (emphasis supplied).

Following the closing arguments, the jury retired to deliberate concerning Mr.

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Mollett’s sentence. Sometime after deliberations began, the jury sent the judge a note

which telegraphed the key issue in this appeal: “Judge can you tell us if we find a sentence

of Life without parole is the[re] any possibility of Mr. Mollett ever leaving prison for any

reason whatsoever”? Tr. Trans. vol. VII (note stapled to back cover of transcript). The

parties agree that there is no indication of exactly when the note was sent. Unfortunately,

the trial judge did not inform either side’s counsel of the note, nor did the trial court

provide Mr. Mollett with an opportunity to demonstrate to the jury that he would be

ineligible for parole under Oklahoma law. The trial judge did, as indicated previously,

respond to the jury in writing that “[m]atters of parole are beyond the purvue [sic] of the

jury or the court to consider.” Id.

Sometime following the receipt of the trial judge’s answer, the jury returned its

verdict. The jury found the existence of two aggravating circumstances beyond a

reasonable doubt–that the murder was especially heinous, atrocious or cruel; and that

Mr. Mollett committed the murder to avoid lawful arrest or prosecution–but did not find

that the prosecution had shown beyond a reasonable doubt that Mr. Mollett would be a

continuing threat to society. The jury recommended that Mr. Mollett be sentenced to

death plus seventy-five years’ imprisonment. Tr. Trans. vol. VII, at 85-86.

Mr. Mollett filed a direct appeal in the Oklahoma Court of Criminal Appeals

raising fourteen propositions of error, including his claim that the trial judge’s answer to

the jury’s question regarding the meaning of life imprisonment without parole violated his

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due process rights. The Oklahoma Court of Criminal Appeals affirmed, holding on the

due process issue that “[a]lthough a jury may logically consider the possibility or absence

of parole in determining the sentence a capital murder defendant is to receive, there is no

requirement for a trial judge to explain the Oklahoma parole process to a jury,” Mollett v.

State, 939 P.2d 1, 11 (Okla. Crim. App. 1997) (internal citations and quotation marks

omitted), and stating that “[t]he concept of parole is sufficiently clear to enable any

rational juror to understand it without explaining it further. Consequently, we find no

error.” Id. (internal quotation marks omitted). Two of the Oklahoma Court of Criminal

Appeals judges disagreed, stating that they “believe [the trial judge] should provide a

meaningful answer to questions from the jury when they ask, as they often do, about the

meaning of life without parole.” Mollett, 939 P.2d at 15 (Chapel, J. and Strubhar, J.,

concurring).

Subsequently, after unsuccessfully petitioning for a writ of certiorari from both the

Oklahoma Supreme Court and the United States Supreme Court and unsuccessfully

seeking post-conviction relief in the Oklahoma Court of Criminal Appeals, Mr. Mollett

sought habeas relief in federal district court, where he again argued that the trial court’s

response to the jury’s question denied him due process.1 Relying on this court’s

1
Mr. Mollett argued in his habeas petition that his Eighth and Fourteenth
Amendment rights were violated. However, because Simmons only addressed the
Fourteenth Amendment, see Simmons, 512 U.S. at 162 n.4 (plurality), and because the
parties on appeal limited their arguments to that amendment, we limit our discussion to
the Fourteenth Amendment.

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application of Simmons in Johnson v. Gibson, 254 F.3d 1155, 1165-67 (10th Cir.), cert.

denied, 534 U.S. 1029, 534 U.S. 1036 (2001), the district court held in a detailed

memorandum opinion that the trial court’s response to the jury’s question violated

Mr. Mollett’s due process rights because it did not refer to the original instructions and,

instead, contradicted them by telling the jury that parole eligibility could not be considered

when it could and should be, as parole eligibility was the only difference between life and

life without parole. See Rec. vol. I, doc. 44 (Dist. Ct. Memorandum Op., dated Oct. 16,

2001). Thus, the district court found that the trial court’s answer to the jury’s question

created a “false dilemma,” thereby entitling Mr. Mollett to habeas relief under Simmons.

Id. at 12. The State appeals.

II. DISCUSSION

A. Standard of Review

Because Mr. Mollett’s habeas petition was filed on November 2, 1998, after the

effective date of the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA),

AEDPA governs whether Mr. Mollett may obtain relief from his death sentence. Under

AEDPA, because Mr. Mollett’s claim was adjudicated on the merits in state court, he 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.” 28 U.S.C. § 2254(d)(1). The

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Supreme Court recently stated that “[w]e have made clear that the ‘unreasonable

application’ prong of § 2254(d)(1) permits a federal habeas court to ‘grant the writ if the

state court identifies the correct governing legal principle from this Court’s decisions but

unreasonably applies that principle to the facts’ of petitioner’s case.” Wiggins v. Smith,

123 S. Ct. 2527, 2534-35 (2003) (quoting Williams v. Taylor, 529 U.S. 362, 413 (2000)).

“In other words,” the Court stated, “a federal court may grant relief when a state court has

misapplied a ‘governing legal principle’ to ‘a set of facts different from those of the case

in which the principle was announced.’” Id. at 2535 (quoting Lockyer v. Andrade, 123 S.

Ct. 1166, 1175 (2003)).

B. Analysis

The State advances two arguments as to why the Oklahoma trial court’s response to

the jury’s question concerning the meaning of life without parole was not contrary to

clearly established federal law as determined by the Supreme Court: (1) Simmons “does

not apply to triple-option sentencing schemes like Oklahoma’s,” Aplt’s Br. at 16; and (2)

even if Simmons applies to Oklahoma’s capital sentencing scheme, Simmons does not

apply to this case because “[n]o such false choice arose in the instant case.” Aplt’s Br. at

20. We address each contention in turn.

1. Does Simmons apply to Oklahoma’s capital sentencing scheme?

In Johnson, 254 F.3d 1155, this court analyzed whether the instructions by

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the trial court in that case regarding Oklahoma’s capital punishment sentencing scheme

violated Simmons or Simmons’ successor case, Shafer v. South Carolina, 532 U.S. 36

(2001). The trial court in Johnson had instructed the jury on the three Oklahoma

sentencing options. During deliberations, the jury asked whether life without parole meant

the defendant could never be paroled, and the trial court responded that “‘[i]t is

inappropriate for you to consider the question asked.’” Johnson, 254 F.3d at 1164.

We held in Johnson that the state trial court’s answer violated Simmons and

Shafer, and therefore reversed the federal district court’s dismissal of the habeas petition.

The majority opinion in Johnson recognized that Oklahoma law (permissibly) precludes

instruction on the inner workings of the parole system, but noted that this preclusion “does

not obviate the need for a correct instruction concerning the three options, including life

without parole.” Johnson, 254 F.3d at 1165 (citing Simmons, 512 U.S. at 166). “That a

state may limit the information given to juries about parole,” we noted, “does not eliminate

the need to inform the jury of parole ineligibility where future dangerousness is at issue.”

Id. (citing Simmons, 512 U.S. at 168-69) (emphasis supplied).

The Oklahoma instructions at issue in this case are the same as those that

were at issue in Johnson. See Johnson, 254 F.3d at 1165 (“In this case, the trial judge

instructed the jury on its three discrete sentencing options available under Oklahoma law –

death, life imprisonment[,] and life imprisonment without the possibility of parole.”).

Nonetheless, the State argues that “this Court has not addressed the State’s assertion that

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Simmons is inapplicable to Oklahoma’s triple-option sentencing scheme.” Aplt’s Br. at

17.

We disagree. We did not in Johnson reserve the issue of the applicability of

Simmons to Oklahoma’s sentencing scheme by assuming without deciding that Simmons

applied; rather, a necessary logical predicate to our holding was that the trial judge’s

instructions violated Simmons, and therefore, that Simmons applied. The State’s

argument is therefore foreclosed by Johnson.

Moreover, even if the issue were an open one, we do not see why Simmons’ “false

choice concern” should apply any less to Oklahoma’s sentencing scheme. As we

recognized in Johnson, “Simmons rests upon eliminating a jury’s misunderstanding so the

jury will not perceive a ‘false choice’ between sentencing to death or a limited period of

incarceration when future dangerousness is at issue.” Id. at 1166. We also note that the

Oklahoma Court of Criminal Appeals cited and distinguished Shafer and Johnson in

Williams v. State, 31 P.3d 1046, 1050 (Okla. Crim. App. 2001), noting that in Williams,

unlike in Shafer and Johnson, “the jury was not presented with a ‘false choice’ as to its

sentencing options.” (citing Johnson, 254 F.3d at 1167 (Henry, J., concurring)). As

evidenced by the facts of Johnson and those of this case, this concern is no less potentially

implicated by Oklahoma’s capital sentencing scheme than those of other states.

Accordingly, we reject the State’s argument that Simmons is inapplicable to Oklahoma’s

capital sentencing scheme.

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 2. Did the district court in this case create a “false choice” under
Simmons in violation of Mr. Mollett’s due process rights?

Next, argues the State, even if Simmons does apply to Oklahoma’s capital

sentencing scheme, Simmons does not apply because no “false choice” arose in this case.

The State argues that because the jury in Mr. Mollett’s case did not find that the

prosecution had proven that Mr. Mollett was a continuing threat to society, “Mr. Mollett is

[therefore] not entitled to relief because unlike the juries in Simmons, Shafer, and

Johnson, Mollett’s jury actually rejected a statutory aggravator requiring a finding that

[Mr.] Mollett was a continuing threat to society.” Aplt’s Br. at 17.2 The State’s view

reflects an unjustifiably narrow reading of those three cases, which we now turn to discuss

in some detail to illustrate this important point.

First, in Simmons, 512 U.S. 154, the Supreme Court reviewed South Carolina’s

capital sentencing scheme, which “ha[d] a life-without-parole sentencing alternative to

capital punishment for some or all convicted murderers but refuse[d] to inform sentencing

juries of th[at] fact.” Id. at 168 n.8. However, the defendant in Simmons was parole

ineligible under that scheme because of prior convictions for crimes of violence. See S.C.

Stat. Ann. § 24-21-640; Simmons, 512 U.S. at 156 (plurality opinion); id. at 176

2
We note that this argument is somewhat misleading, because the juries in Simmons and
Shafer could not have “rejected a statutory aggravator” finding that the defendant “was a
continuing threat to society,” Aplt’s Br. at 17, because South Carolina’s statutory
aggravators do not include the defendant’s potential future dangerousness. See S.C. Stat.
Ann. §16-2-20(C)(a)(1)-(11).

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(O’Connor, J., concurring). The jury, in a note to the judge during sentencing

deliberations, asked: “Does the imposition of a life sentence carry with it the possibility of

parole?” Id. at 160 (plurality opinion). Over defense counsel’s objection, the trial judge in

Simmons instructed: “Do not consider parole or parole eligibility [in reaching your

verdict]. That is not a proper issue for your consideration.” Id. After receiving this

response from the court, the jury in Mr. Simmons’ trial returned a sentence of death, which

Mr. Simmons unsuccessfully sought to overturn on appeal to the South Carolina Supreme

Court. Id. at 160-61.

A divided Supreme Court reversed the South Carolina Supreme Court. Justice

Blackmun’s plurality opinion, joined by Justices Souter and Ginsburg, explained that the

trial court had violated the defendant’s Fourteenth Amendment due process rights because

“[t]he State may not create a false dilemma by advancing generalized arguments regarding

the defendant’s future dangerousness, while, at the same time, preventing the jury from

learning that the defendant never will be released on parole.” Id. at 171 (emphasis

supplied). The plurality noted that “[w]hile juries ordinarily are presumed to follow the

court’s instructions, we have recognized that in some circumstances the risk that the jury

will not, or cannot, follow instructions is so great, and the consequences of failure so vital

to the defendant, that the practical and human limitations of the jury system cannot be

ignored.” Id. (internal quotations and citations omitted).

Similarly, Justice Souter, joined by Justice Stevens, concurred, stating that “juries

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in general are likely to misunderstand the meaning of the term ‘life imprisonment’ in a

given context,” and that therefore “the judge must tell the jury what the term means, when

the defendant so requests.” Id. at 174 (Souter, J., concurring) (emphasis supplied). “It is,

moreover, clear,” stated Justice Souter, “that at least one of these particular jurors did not

understand the meaning of the term, since the jury sent a note to the judge asking, ‘Does

the imposition of a life sentence carry with it the possibility of parole?’ The answer here

was easy and controlled by state statute. The judge should have said no.” Id.

Justice O’Connor, joined by Chief Justice Rehnquist and Justice Kennedy, also

concurred, holding that “[w]here the State puts the defendant’s future dangerousness in

issue, and the only available alternative sentence to death is life imprisonment without

possibility of parole, due process entitles the defendant to inform the capital sentencing

jury–by either argument or instruction–that he is parole ineligible.” 512 U.S. at 178

(O’Connor, J., concurring) (emphasis supplied). In Simmons, “Justice O’Connor’s three

Justice concurrence represented the narrowest grounds for a holding and, as such,

represents the holding of the Court.” Smallwood v. Gibson, 191 F.3d 1257, 1280 n.15

(10th Cir. 1999).

The Court’s holding in Simmons via Justice O’Connor’s concurrence also relied in

part on the concern about the judge’s instructions creating a false choice articulated by the

plurality:

The prosecutor in this case put petitioner’s future dangerousness in issue, but
petitioner was not permitted to argue parole ineligibility to the capital

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 sentencing jury. Although the trial judge instructed the jurors that “the terms
life imprisonment and death sentence are to be understood in their pla[i]n and
ordinary meaning,” I cannot agree with the court below that this instruction
satisfied in substance petitioner’s request for a charge on parole ineligibility.
The rejection of parole by many States (and the Federal Government) is a recent
development that displaces the longstanding practice of parole availability, and
common sense tells us that many jurors might not know whether a life sentence
carries with it the possibility of parole. While it may come to pass that the
“plain and ordinary meaning” of a life sentence is life without parole, that the
jury in this case felt compelled to ask whether parole was available shows that
the jurors did not know whether or not a life-sentenced defendant will be
released from prison. Moreover, the prosecutor, by referring to a verdict of
death as an act of “self-defense,” strongly implied that petitioner would be let
out eventually if the jury did not recommend a death sentence.

Simmons, 512 U.S. at 177-78 (O’Connor, J., concurring) (emphasis supplied) (citations

and select internal quotation marks omitted).3

3
Justice Ginsburg concurred separately, emphasizing that due process requires that
“[w]hen the prosecution urges a defendant’s future dangerousness as cause for the death
sentence, the defendant’s right to be heard means that he must be afforded an opportunity
to rebut the argument.” Simmons, 512 U.S. at 174 (Ginsburg, J., concurring). “To be full
and fair,” Justice Ginsburg stated, “that opportunity must include the right to inform the
jury, if it is indeed the case, that the defendant is ineligible for parole.” Id. at 174.
There is considerable support for Judge Chapel’s and Judge Strubhar’s views that
the court “should provide a meaningful answer to questions from the jury when they ask,
as they often do, about the meaning of life without parole.” Mollett, 939 P.2d at 15
(Chapel, J. and Strubhar, J., concurring). In Simmons, Justice O’Connor observed the
logical confusion of the jurors, when she stated that “[t]he rejection of parole by many
States (and the Federal Government) is a recent development that displaces the
longstanding practice of parole availability, and common sense tells us that many jurors
might not know whether a life sentence carries with it the possibility of parole.” 512 U.S.
at 177-78 (O’Connor, J., concurring). Justice Thomas also noted in Kelly, that “[a]s a
matter of policy, it may be preferable for a trial court to give such a[] [clarifying]
instruction.” Kelly, 534 U.S. at 265 (Thomas, J., dissenting). And South Carolina, after
three losses before the United States Supreme Court, has finally amended its statute to
read as follows: “For purposes of this section, ‘life imprisonment’ means until death of
the offender without the possibility of parole, and when requested by the State or the

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 Second, in Shafer, 532 U.S. at 40, the Supreme Court clarified the

application of Simmons to South Carolina’s capital sentencing scheme as amended by the

South Carolina legislature in response to Simmons. Under the amended capital sentencing

scheme, the jury first considered whether the State proved any aggravators beyond a

reasonable doubt. See Shafer, 532 U.S. at 40. If the jury did not find an aggravator, it did

not make a sentencing recommendation, and the trial court would sentence the defendant

to either life imprisonment or a mandatory minimum sentence. Id. at 40-41. If the jury,

however, did find at least one aggravator, it would recommend a sentence of either death

or life without parole. Id. at 41. In Shafer, the jury had returned a death sentence after

first being instructed that life imprisonment meant imprisonment until the defendant’s

death and was later instructed by the court, in response to its questions, that it was not to

consider parole eligibility. The defendant, however, actually was parole ineligible.

Reaffirming its holding in Simmons, the Court held “that whenever future

dangerousness is at issue in a capital sentencing proceeding under South Carolina’s new

scheme, due process requires that the jury be informed that a life sentence carries no

possibility of parole.” Shafer, 532 U.S. at 51 (emphasis supplied). In doing so, the

majority emphasized that the jury’s comprehension was not aided by the trial court’s

response to the jury’s question, and instead, the response misled the jury about the

defendant, the judge must charge the jury in his instructions that life imprisonment means
until the death of the defendant without the possibility of parole.” S.C. Stat. Ann. § 16-3-
20(A) (emphasis supplied).

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availability of parole, creating the potential for a false choice:

[W]hen the jury determines the existence of a statutory aggravator, a tightly
circumscribed factual inquiry, none of Simmons’ due process concerns arise.
There are no “misunderstanding[s]” to avoid, no “false choice[s]” to guard
against. The jury, as aggravating circumstance factfinder, exercises no
sentencing discretion itself. . . . It is only when the jury endeavors the moral
judgment whether to impose the death penalty that parole eligibility may
become critical. Correspondingly, it is only at that stage that Simmons comes
into play, a stage at which South Carolina law provides no third choice, . . . just
death or life without parole.

Id. at 51 (quoting Simmons, 512 U.S. at 161) (emphasis supplied). The Court noted that

the jury should be informed of the defendant’s parole ineligibility regardless of whether

the jury or the trial court makes the ultimate sentencing decision. See id. at 51 n.5.

Third, this circuit’s decision in Johnson is relevant because, although not

controlling, on-point “federal case law inferior to Supreme Court precedent, may serve as

a guide in determining reasonableness of [a] state court’s application of Supreme Court

law.” Bryson v. Ward, 187 F.3d 1193, 1205 (10th Cir. 1999). In Johnson, both the

majority and concurring opinions noted that “Simmons rests upon eliminating a jury’s

misunderstanding so the jury will not perceive a ‘false choice’ between sentencing to death

or a limited period of incarceration when future dangerousness is at issue.” Johnson, 254

F.3d at 1166; id. at 1167 (Henry, J., concurring) (stating that “the key to understanding

Simmons–and therefore Shafer–is the concept of ‘false choice’, that is a choice that may

be misleading to the jury,” and collecting opinions from multiple jurisdictions to that

effect). Our holding relied in part on this concern about the potential for a false choice

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creating juror confusion:

[T]he trial court’s instruction that it was inappropriate for the jury to consider
parole eligibility did not refer the jury back to the instructions; rather, it plainly
contradicted those instructions. The trial court did more than give a non-
responsive answer–it told the jury that parole eligibility could not be considered
when plainly it could be. At best, the jury had a conflict between the court’s
instructions as to whether it was proper to consider parole eligibility in
imposing sentence. At worst, the jury may very well have thought that parole
was available, even with the life without parole option, but for some unknown
reason it could not consider that fact.

Johnson, 254 F.3d at 1166 (emphasis supplied).

Turning to the State’s argument here, with these binding precedents in mind, we

reject the State’s argument that no “false choice” under Simmons was created by the trial

court in Mr. Mollett’s case. Under Simmons, a defendant’s due process rights are violated

in cases like the instant one where: (1) the prosecution seeks the death penalty; (2) the

prosecution places the defendant’s “future dangerousness . . . at issue,” Shafer, 532 U.S. at

51; (3) the jury asks for clarification of the meaning of “life imprisonment,” or a

synonymous statutory term, Shafer, 532 U.S. at 45; and (4) the judge’s response threatens

to cause “a jury’s misunderstanding so the jury will . . . perceive a ‘false choice’ of

incarceration when future dangerousness is at issue.” Johnson, 254 F.3d at 1166; see also

Shafer, 532 U.S. at 51 (“Simmons’ due process concerns arise” if there are

“‘misunderstanding[s]’ to avoid, [or] ‘false choice[s]’ to guard against.”) (quoting

Simmons, 512 U.S. at 161).

Contrary to the State’s argument, nothing in these cases limits Simmons’

- 21 -
applicability to situations where the jury does not find a continuing threat aggravator to

apply after the prosecution places the defendant’s future dangerousness at issue. See, e.g.,

Kelly v. South Carolina, 534 U.S. 246, 254 n.4 (2002) (“The only questions in this case are

whether the evidence presented and the argument made at [the defendant’s] trial placed

future dangerousness at issue. The answer to each question is yes and we need go no

further than Simmons in our discussion.”); cf. Neill v. Gibson, 278 F.3d 1044, 1063 (10th

Cir. 2001) (“[The defendant] relies on Simmons v. South Carolina; that decision

concerned capital cases where a defendant’s future dangerousness is at issue. Here,

however, the State did not charge [the defendant] with the continuing threat aggravator.”)

(internal citation omitted).

Mr. Mollett satisfies each of the four elements. First, this is, of course, a capital

case.

Second, the State placed future dangerousness at issue. This is so in several senses.

Most obvious is that the State charged Mr. Mollett with the continuing threat aggravator.

See Tr. Trans. vol. VII, at 66-71 (prosecutor’s closing argument). Thus, the “argument

made at [Mr. Mollett’s] trial placed future dangerousness at issue.” Kelly, 534 U.S. at 254

n.4.

Further, and more significantly, the prosecution’s arguments to the jury placed Mr.

Mollett’s future dangerousness squarely at issue. The prosecution stated that “[t]he State

has alleged that this defendant is a continuing threat to society. He always will be [a

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continuing threat] is what the evidence establishes.” Tr. Trans. vol. VII, at 66-67. In

addition, the prosecution argued that Mr. Mollett “stalked” Ms. Sugeng. Id. at 67. The

prosecution stated that “[Ms. Sugeng] would not have been safe from [Mr. Mollett] even

behind locked doors. And [Ms. Sugeng] is no different from the rest of us.” Id.

Moreover, the prosecution argued that Mr. Mollett “has a criminal history that’s indicative

of a progression of anti-social behavior. Receiving stolen property, concealing stolen

property, burglary in the second degree. Those are felony offenses, Ladies and

Gentlemen. They’re not minor crimes.” Id. at 70. Finally, the prosecutor proclaimed,

speaking of Mr. Mollett, that “[i]t can’t get any more violent than this man has become.”

Id. at 71.

From all this, it is evident that, “the evidence presented at [Mr. Mollett’s] trial

placed future dangerousness at issue.” Kelly, 534 U.S. at 254 n.4. Indeed, in Kelly, the

Supreme Court rejected the South Carolina Supreme Court’s characterization of the

prosecutor’s closing argument, which discussed evidence that the defendant had been

involved in previous attempted escapes from prison and that the defendant carried a shank,

as merely “evidence as going only to Kelly’s likely behavior in prison, or to his proclivity

to escape from it.” 534 U.S. at 253. Specifically, the Court noted:

The state court to be sure considered the prosecutor’s comparison of Kelly to
a notorious serial killer, variously calling him a “dangerous” “bloody”
“butcher.” The court nonetheless thought it could somehow cordon off these
statements as raising nothing more than a call for retribution. But the import of
the argument simply cannot be compartmentalized this way. Characterizations
of butchery did go to retribution, but that did not make them any the less

- 23 -
 arguments that Kelly would be dangerous down the road. They complemented
the prosecutor’s submissions that Kelly was “more frightening than a serial
killer,”and that “murderers will be murderers.” Thus was Kelly’s jury, like its
predecessor in Simmons, invited to infer “that petitioner is a vicious predator
who would pose a continuing threat to the community.”

Id. at 255-56 (internal citations and footnotes omitted) (emphasis supplied). The Court

concluded that the prosecutor had indeed raised a “clear implication of future

dangerousness” to the jury, id. at 255, and criticized the South Carolina “Supreme Court’s

attempt to portray the thrust of the evidence as so unrealistically limited.” Id. at 254.

This case presents both the many references to evidence that Mr. Mollett was a

continuing threat and the charge of the continuing threat aggravator; the facts thus

demonstrate that the State placed Mr. Mollett’s future dangerousness at issue during his

trial’s sentencing phase. The second Simmons element is therefore satisfied.

The third element of a Simmons violation–whether the jury asks for clarification of

the meaning of “life imprisonment,” or a synonymous statutory term, Shafer, 532 U.S. at

45–is also satisfied here. The jury asked for a definition of “life imprisonment” as used in

Okla. Stat. tit. 21, § 711.11, by its written question to the trial judge: “Judge can you tell us

if we find a sentence of Life without parole is the[re] any possibility of Mr. Mollett ever

leaving prison for any reason whatsoever.” Tr. Trans. vol. VII (note stapled to back cover

of transcript). “[T]hat the jury . . . felt compelled to ask whether parole was available

shows that the jurors did not know whether . . . a life-sentenced defendant will be released

from prison.” Simmons, 512 U.S. at 178 (O’Connor, J., concurring); cf. Shafer, 532 U.S.

- 24 -
at 53 (stating that the “jury left no doubt about its failure to gain from defense counsel’s

closing argument or the judge’s instructions any clear understanding of what a life

sentence means”).

Fourth, the trial court’s supplemental instruction that “[m]atters of parole are

beyond the purvue [sic] of the jury or the court to consider” threatened to cause “a jury’s

misunderstanding” that the jury would “perceive a ‘false choice’ between sentencing to

death or a limited period of incarceration when future dangerousness is at issue.” Johnson,

254 F.3d at 1166. The trial judge thus “did nothing to ensure that the jury was not

misled,” and its response “may well have been taken to mean ‘that parole was available

but that the jury, for some unstated reason, should be blind to this fact.’” Shafer, 532 U.S.

at 53 (quoting Simmons, 512 U.S. at 170)(plurality)) (emphasis in original). Due to the

trial court’s response, the jury was “left to speculate about petitioner’s parole eligibility

when evaluating petitioner’s future dangerousness, and was denied a straight answer about

petitioner’s parole eligibility even when it was requested.” Simmons, 512 U.S. at 165-66

(plurality).

The trial court’s refusal to explain to the jury the distinguishing feature under

Oklahoma law between life imprisonment and life imprisonment without parole, and its

choice instead to affirmatively instruct the jury that parole was not to be considered,

created serious potential for jury confusion on that question. The Supreme Court has

warned that “accurate sentencing information is an indispensable prerequisite to a

- 25 -
reasoned determination of whether a defendant shall live or die.” Gregg v. Georgia, 428

U.S. 153, 190 (1976) (plurality). Simmons, Shafer, and Johnson all reflect the importance

of the jury being given access to accurate parole information when the prosecution places

future dangerousness at issue. The trial court’s instruction that the jury not consider parole

in this sense defeated the jury’s sentencing choice, which included the option of life

imprisonment without parole, see Simmons, 512 U.S. at 167 n.7 (plurality) (noting that

Oklahoma law allows a criminal jury in a first-degree murder “to specify whether the

defendant should or should not be eligible for parole”), and therefore created the “false

choice” prohibited by the Due Process Clause of the Constitution’s Fourteenth

Amendment as interpreted by Simmons and its progeny. Mr. Mollett has satisfied the

elements of a Simmons violation. We hold that the Oklahoma Court of Criminal Appeals’s

rejection of Mr. Mollett’s due process claim was “contrary to, or involved an unreasonable

application of, clearly established Federal law, as determined by the Supreme Court of the

United States.” 28 U.S.C. § 2254(d)(1).

3. The dissent’s application of Simmons

The dissent concludes that Simmons and Shafer do not apply to Oklahoma’s

weighing-based death penalty scheme when, as here, the jury did not find a continuing

threat aggravator. According to the dissent, Simmons and Shafer involve a non-weighing

scheme in which the jury properly “exercises its unfettered moral judgment in determining

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whether the defendant should be sentenced to life imprisonment or death.” Dissent at 5.

In contrast, under Oklahoma’s weighing-based scheme, if the jury finds the existence of

one or more aggravating circumstances, the jury’s task is then “narrowly circumscribed to

determining whether the aggravating circumstance(s) proved by the prosecution beyond a

reasonable doubt outweigh the defendant’s evidence in mitigation.” Dissent at 8 (citing

Okla. Stat. Ann. tit. 21, § 701.11; Irvin v. State, 617 P.2d 588, 598 (Okla. Crim. App.

1980)). The dissent implies that, because the jury here did not find the continuing threat

aggravator beyond a reasonable doubt, the prosecution’s allegations regarding Mr.

Mollett’s future dangerousness were not relevant to the jury’s decision whether to impose

the death penalty. As a result, the trial judge’s refusal to explain the sentencing option of

life without parole did not present the jury with the “false choice” prohibited by Simmons.

For several reasons, the dissent’s logic is flawed. First and foremost, as

emphasized above, there is no question that Simmons and its progeny apply to Oklahoma’s

scheme. See Johnson, 254 F.3d at 1166; Williams, 31 P.3d at 1050.

The dissent also ignores the clear language of the Simmons line of cases that it is the

prosecution’s placing the defendant’s future dangerousness at issue that potentially creates

the “false choice.” See Kelly, 534 U.S. at 248 (“Last Term, we reiterated the holding of

Simmons v. South Carolina, that when ‘a capital defendant’s future dangerousness is at

issue, and the only sentencing alternative to death available to the jury is life imprisonment

without possibility of parole, due process entitles the defendant to inform the jury of [his]

- 27 -
parole ineligibility, either by a jury instruction or in arguments by counsel.’” (quoting

Shafer, 532 U.S. at 39) (internal citations and quotation marks omitted); Johnson, 254

F.3d at 1166 (“Simmons rests upon eliminating a jury’s misunderstanding so the jury will

not perceive a ‘false choice’ between sentencing to death or a limited period of

incarceration when future dangerousness is at issue.”); Williams, 31 P.3d at 1050

(Oklahoma Court of Criminal Appeals’ recognizing that a “false choice” could be created

if additional “instructions by the trial court . . . conflict with the uniform instruction and

confuse the jury as to the meaning of the available sentencing options”) (citing Shafer and

Johnson). In Oklahoma, the Simmons protections are in play when false choices arise –

namely when the prosecution places the matter at issue by charging the continuing threat

aggravator and the trial court gives conflicting instructions in response to the jury’s inquiry

regarding parole.4 See Williams, 31 P.3d at 1050. Under South Carolina’s scheme, the

4
We disagree with the dissent’s contention that, under the majority’s theory, “a
defendant in Oklahoma would be entitled to a jury instruction about parole eligibility
even if the prosecution did not allege the continuing threat aggravating circumstances, so
long as any of the evidence adduced in support of any other aggravating circumstance
might also be relevant to future dangerousness.” Dissent at 10, n.4. We note that, as in
Kelly,
this is not an issue here, nor is there an issue about a defendant’s
entitlement to instruction on a parole ineligibility law when the
State’s evidence shows future dangerousness but the prosecutor
does not argue it. The only questions in this case are whether
the evidence presented and the argument made at [Mr.
Mollett’s] trial placed future dangerousness at issue. The
answer to each question is yes, and we need go no further than
Simmons in our discussion.
Kelly, 534 U.S. at 254 n.4.

- 28 -
Simmons protections are triggered when the prosecution places the matter at issue by

referring to evidence of future dangerousness during trial. See Kelly, 534 U.S. at 254 n.4.

Second, the dissent’s rigid division of the jury’s deliberations into an “eligibility

step” and an “imposition step” misreads Simmons and Shafer. Dissent at 6-7. Although

the jury here was required to determine the existence of the alleged aggravating factors

before proceeding to the question of whether to impose the death penalty, the trial judge

was neither required nor allowed to monitor those deliberations. Thus, when the jury

asked about the meaning of life without parole, the judge did not know whether the jury

was debating the existence of the continuing threat and other aggravators or whether it had

proceeded to weighing aggravating and mitigating circumstances to determine if the death

penalty was warranted. Regardless of the “step” of the jury’s deliberations, the judge’s

response must not create a false choice dilemma. See Johnson, 254 F.3d at 1166. The

dissent’s supposition that a Simmons violation can only occur during a discrete

“imposition step” of jury deliberations is unsupported by any case law, cf. Shafer, 532

U.S. at 51 n.5 (“If the jurors should be told life means no parole in the hypothesized

bifurcated sentencing proceeding, they should be equally well informed in the actual

uninterrupted proceeding.”), and precludes the jury from revisiting earlier findings or

beginning the deliberative process anew at any time. The judge’s response to the jury’s

inquiry, just like a juror’s change of heart, may shake views previously voiced. At all

times during the collective process, without violating the jury instructions, jurors remain

- 29 -
free to reconsider previous votes and express a change of mind. See United States v.

Rastelli, 870 F.2d 822, 834 (2d Cir. 1989) (“[I]t is well established that the jury’s verdict is

not final until the ‘deliberations are over, the result is announced in open court, and no

dissent by a juror is registered.’” (quoting United States v. Taylor, 507 F.2d 166, 168 (5th

Cir. 1975)); Taylor, 507 F.2d at 168 (“Jurors are not bound by votes in the jury room and

remain free to register dissent even after the verdict has been announced, though before

the verdict is recorded.”); see also United States v. Chinchic, 655 F.2d 547, 549-50 (4th

Cir. 1981) (“Votes taken in the jury room prior to being returned in open court are merely

preliminary and are not binding on the jury, any member of which is entitled to change his

or her mind up until the time of the trial court’s acceptance of the verdict.”).

Third, the dissent’s contrast between the broad discretion of South Carolina’s juries

and “the narrowly circumscribed” responsibilities of their Oklahoma counterparts “to

determin[e] whether the aggravating circumstance(s) proved by the prosecution beyond a

reasonable doubt outweigh the defendant’s evidence in mitigation,” is misguided. Dissent

at 8. If the dissent’s construction of Oklahoma law were correct, then a jury would be

compelled to impose the death penalty when it found that the aggravating circumstances

outweighed the mitigating circumstances. In fact, the Oklahoma Court of Criminal

Appeals and the Tenth Circuit have repeatedly held the opposite to be true. Under

Oklahoma law, “[a] life sentence may be given even if the jury finds aggravating

circumstances outweigh mitigating circumstances.” Le v. State, 947 P.2d 535, 554 n.61

- 30 -
(Okla. Crim. App. 1997); Bryan v. State, 935 P.2d 338, 364 (Okla. Crim. App. 1997) (“As

this Court has often held, a life sentence may be given notwithstanding a jury finding of

aggravating circumstances which outweigh mitigating circumstances.”) (citing cases); see

also LaFevers v. Gibson, 182 F.3d 705, 718 (10th Cir. 1999) (“Under Oklahoma law, a

jury is free to decline to impose the death penalty even if it finds that the aggravating

circumstances outweigh the mitigating circumstances.”); DuVall v. Reynolds, 139 F.3d

768, 789-90 (10th Cir. 1998) (same); Parks v. Brown, 860 F.2d 1545, 1563 (10th Cir.

1998) (en banc) (“In the sentencing process, the determination of the number and

seriousness of aggravating circumstances is merely a guideline for the jurors, a benchmark

for considering the death penalty. If the jury finds that aggravating circumstances

outweigh mitigating circumstances, imposition of the death penalty is constitutionally

permissible; however, under Oklahoma law, the jury may still exercise its discretion by

refusing to impose the death penalty.”) (emphasis added), rev’d on other grounds by

Saffle v. Parks, 494 U.S. 484 (1990).5 Thus, even though Oklahoma retains a weighing-

5
Oklahoma’s Uniform Jury Instructions also restate this proposition:

OUJI-CR 4-80. Death Penalty Proceedings--Weighing
Aggravating And Mitigating Circumstances
If you unanimously find that one or more of the aggravating
circumstances existed beyond a reasonable doubt, the death
penalty shall not be imposed unless you also unanimously find
that any such aggravating circumstance or circumstances
outweigh the finding of one or more mitigating circumstances.
Even if you find that the aggravating circumstance(s)
outweigh(s) the mitigating circumstance(s), you may impose a

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based death penalty scheme, the discretion vested in its juries regarding the imposition of

the death penalty is similar to that of the South Carolina juries whose deliberations were

directly at issue in Simmons and Shafer. See Johnson v. State, 731 P.2d 993, 1003 (Okla.

Crim. App. 1987) (interpreting instruction that stated the jury “‘could be authorized to

consider imposing a sentence of death’ if an aggravating circumstance were found” as

subsuming “[t]he idea that the idea that the jury may decline to impose the death penalty

even if aggravating circumstances are not outweighed by mitigating circumstances”),

overruled on other grounds by Green v. State, 862 P.2d 1271 (Okla. Crim. App. 1993).

Fourth, the dissent’s suggestion that, once rejected as an aggravator, the question

of future dangerousness “cannot affect the jury’s moral judgment during the weighing of

aggravating and mitigating circumstances,” Dissent at 12, unsoundly limits the evidence

that may be properly considered. In spite of the jury’s failure to find the continuing threat

aggravator beyond a reasonable doubt, the jury is entitled to “consider all evidence

presented throughout the trial in determining what sentence the defendant should receive.”

Parks v. State, 651 P.2d at 694 (citing Lockett v. Ohio, 438 U.S. 586, 606 (1978))

(emphasis supplied); see also Trial Trans. vol. VII, at 66-71 (prosecutor’s closing

sentence of imprisonment for life with the possibility of parole
or imprisonment for life without the possibility of parole.

OUJI-CR (2d) 4-80 (emphasis added); see McGregor v. State, 885 P.2d 1366, 1384
(Okla. Crim. App. 1994) (“A life sentence may be given notwithstanding a jury finding of
aggravating circumstances which outweigh mitigating circumstances, but an instruction
on this point is not required.”).

- 32 -
argument) (noting that “[a]ll evidence from the first stage has been introduced into this

stage”). “[T]he sentence imposed at the penalty stage should reflect a reasoned moral

response to the defendant’s background, character, and crime.” California v. Brown, 479

U.S. 538, 545 (1987) (O’Connor, J., concurring). “[T]o attempt to separate the sentencer’s

decision from his experiences would inevitably do precisely that. It is entirely fitting for

the moral, factual, and legal judgment of judges and juries to play a meaningful role in

sentencing.” Barclay v. Florida, 463 U.S. 939, 950 (1983).

Thus we cannot know the extent to which the prosecution’s evidence and argument

regarding Mr. Mollett’s future dangerousness influenced the jury’s conclusion that a

particular mitigating circumstance, such as the defendant’s generousness, gentle manner,

caring and loving nature, and other compassionate qualities, did not outweigh the other

aggravators. See Jury Instruction 51 (listing mitigating circumstances). Nor can we know

how the jury reached this conclusion, and for good reason. See Barclay, 463 U.S. at 950

(“It is neither possible nor desirable for a person to whom the state entrusts [such] an

important judgment to decide in a vacuum.”).

Finally, we are in no way suggesting that the jury may disregard the judge’s

instructions regarding aggravating and mitigating circumstances. We have not “effectively

converted Oklahoma into a nonweighing state.” Dissent at 22. Oklahoma retains a

weighing-based scheme that requires that the jury “unanimously find that one or more

aggravating circumstances existed beyond a reasonable doubt” before it is “authorized to

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consider imposing a sentence of death.” Jury Instruction 49; Okla. Stat. tit. 21, § 701.11.

On the contrary, we are merely recognizing that, at sentencing, juries are free to consider

all “constitutionally relevant evidence.” Boyde v. California, 494 U.S. 370, 380 (1990);

see also Parks, 651 P.2d at 694 (noting that the Supreme Court in Lockett v. Ohio, 438

U.S. at 606, “authorized the sentencer, in this case the jury, to consider not only the

defendant’s record and character, but any circumstances of the offense”).

4. Should this court sua sponte reach the issue of harmless error?

The State of Oklahoma wholly failed to argue on appeal that the trial court’s

instruction, if erroneous, should nonetheless be affirmed as harmless error. However,

“‘we may exercise our discretion to initiate harmless error review in an appropriate case.’”

United States v. Samaniego, 187 F.3d 1222, 1224 (10th Cir. 1999) (quoting United States

v. Torrez-Ortega, 184 F.3d 1128, 1136 (10th Cir. 1999)) (emphasis supplied). In

considering whether to do so, we have “cited with approval three factors suggested by the

Seventh Circuit in determining whether an appellate court should address harmlessness

when the government has failed to do so: (1) the length and complexity of the record; (2)

whether the harmlessness of the errors is certain or debatable; and (3) whether a reversal

would result in protracted, costly, and futile proceedings.” Samaniego, 187 F.3d at 1225

(citing Torrez-Ortega, 184 F.3d at 136, in turn citing United States v. Giovanneti, 928 F.2d

225, 227 (7th Cir. 1991)). However, “confusion about what the third factor contributes to

- 34 -
the analysis has caused this and other courts to merely reference [the third factor] but not

apply it.” Samaniego, 187 F.3d at 1225 n.2.

Applying the first two factors then, we do not consider this to be an appropriate

case for us to conduct a full-bore harmless error review “unassisted by briefing by the

parties or consideration by the district court,” which did not in this case perform a

harmless error analysis on the Simmons claim. Cook v. McKune, 323 F.3d 825, 840 n.9

(10th Cir. 2003). First, the record is lengthy and somewhat complex: the record is several

thousand pages and covers a seven-day trial, including the government’s case against Mr.

Mollett, which involved proving two crimes and then in a separate sentencing phase

attempting to prove three different mitigating factors to convince the jury to impose the

death penalty.

Second, and more importantly, the harmlessness of the Simmons error is “at best

debatable.” Torrez-Ortega, 184 F.3d at 1136. In harmless error analysis in a capital case,

we are mindful of the “need for heightened reliability in determining a capital sentence.”

Johnson, 254 F.3d at 1155. See also Gardner v. Florida, 430 U.S. 349, 357-58 (1977)

(“From the point of view of society, the action of the sovereign in taking the life of one of

its citizens . . . differs dramatically from any other legitimate state action”); Andres v.

United States, 333 U.S. 740, 752 (1948) (“In death cases, doubts with regard to the

prejudicial effect of trial error should be resolved in favor of the accused.”); Andrews v.

Shulsen, 802 F.3d 1256, 1263-64 (10th Cir. 1986) (“[B]ecause there is a qualitative

- 35 -
difference between death and any other permissible form of punishment, ‘there is a

corresponding difference in the need for reliability in the determination that death is the

appropriate punishment in a specific case.’”) (quoting Zant v. Stephens, 462 U.S. 862, 864

(1982), in turn quoting Woodson v. North Carolina, 428 U.S. 280, 305 (1976) (plurality

opinion of Stewart, Powell, and Stevens, JJ.)) (emphasis supplied). With that critical need

for reliability in mind, and assuming that harmless error analysis is applicable to a

Simmons violation,6 the question of whether the Simmons error in Mr. Mollett’s case was

harmful is “debatable” in two respects.

First, when the jury, having found the two aggravators proven beyond a reasonable

doubt, engaged in the required determination of whether to impose the death penalty based

on, for each of aggravators, whether the “aggravating circumstance is outweighed by the

finding of one or more mitigating circumstances,” Okla. Stat. tit. 21, § 701.11, the jury’s

confusion about parole could well have influenced its verdict of death. Justice O’Connor

in Simmons observed that the fact “that the jury in this case felt compelled to ask whether

6
It is not entirely clear whether a Simmons error is subject to harmless error analysis, nor
have the parties’ briefs addressed this issue. On the one hand, the Supreme Court has
stated that “[m]ost constitutional errors can be harmless,” Neder v. United States, 527
U.S. 1, 8 (1999) (internal quotation mark omitted), and that “[i]f the defendant had
counsel and was tried by an impartial adjudicator, there is a strong presumption that any
other [constitutional] errors that may have occurred are subject to harmless-error
analysis.” Id. (quotation marks omitted). On the other hand, the Supreme Court has
never performed a harmless error analysis in any of the three cases where the Court found
a Simmons violation: neither in Simmons nor Shafer, nor in Kelly v. South Carolina, 534
U.S. at 254 n.4, a more recent case in which the Supreme Court reversed a state court on
Simmons grounds, did the Court engage in harmless error analysis, let alone hold that the
error was harmless.

- 36 -
parole was available shows that the jurors did not know whether or not a life-sentenced

defendant will be released from prison.” Simmons, 512 U.S. at 177-78 (O’Connor, J.,

concurring). In holding that the defendant’s due process rights were violated, Justice

O’Connor stated that “the prosecutor, by referring to a verdict of death as an act of ‘self-

defense,’ strongly implied that petitioner would be let out eventually if the jury did not

recommend a death sentence.” Id. (emphasis in original).

Similarly, the combination in Mr. Mollett’s case of the prosecutor’s focus on Mr.

Mollett’s future dangerousness and the jury’s subsequent question to the trial judge

directly implicates, and leaves unresolved in this case, the concerns articulated in Justice

O’Connor’s opinion for the court in Simmons. In Mr. Mollett’s trial, the prosecutor, in

closing argument on rebuttal, stated that “[t]hey say prison is good enough, he can’t get

out,” Tr. Trans. vol. VII, at 80, that “[t]he people he meets there, the people he influences

there, the people in contact with that mind there, they’ll come out,” id., that “[n]ot

everyone in prison’s [sic] in there forever,” id. and, in his summation, warned the jury that

“the cycle beings again.” Id. In the wake of this closing argument, the trial judge

responded to the jury’s query by saying “[m]atters of parole are beyond the purvue [sic] of

the jury or the court to consider,” and by refusing to permit Mr. Mollett to introduce

evidence demonstrating that he was ineligible for parole. The trial judge’s responses,

which violated Mr. Mollett’s due process rights under Simmons, left the prosecutor’s

warning about the danger of Mr. Mollett emerging from prison front and center for the

- 37 -
jury to consider in its deliberations on whether to sentence Mr. Mollett to death.

Second, the trial court’s erroneous instruction may have made the jurors more likely

to find the two aggravators charged in addition to continuing threat satisfied if the jurors

were under the impression that both of the sentencing options involving life imprisonment

involved the possibility of future parole, a point of confusion reflected in the jury’s

question to the trial judge. Indeed, counsel for the State conceded at oral argument that at

least some of the continuing threat evidence was relevant to the two aggravators found by

the jury: that the murder was “especially heinous, atrocious or cruel,” and that Mr. Mollett

committed the murder “to avoid lawful arrest or prosecution.” Okla. Stat. tit. 21, § 701.12.

Neither in the State’s briefs, nor in its answers to our questions at oral argument, nor in our

independent record review, have we discovered any evidence indicating that the jury found

the two non-continuing threat aggravators prior to finding that the State had not proven the

continuing threat aggravator. Although the jury decided that the continuing threat

aggravator was not proved beyond a reasonable doubt, the jury may well have nonetheless

considered continuing threat evidence in the deliberations over to what ultimate penalty to

impose after it found the other two aggravators beyond a reasonable doubt: in capital

cases, “the consequences of failure [are] so vital . . . that the practical and human

limitations of the jury system cannot be ignored.” Bruton v. United States, 391 U.S. 123,

135 (1968), quoted in Simmons, 512 U.S. at 171 (plurality).

Given these two concerns about the potential harm of the Simmons error, given the

- 38 -
“need for heightened reliability in determining a capital sentence,” Johnson, 254 F.3d at

1166, and given that we are “loath,” Mayes v. Gibson, 210 F.3d 1284, 1291 (10th Cir.

2000), “to speculate on the deliberative process of a jury,” id., we do not find it

appropriate to relieve the government of the consequences of its failure to argue harmless

error. We therefore decline to sua sponte reach the merits of the harmless error issue.

III. CONCLUSION

In closing, we emphasize the narrowness of this holding: in a case where all of the

Simmons factors are aligned–that is, (1) a capital case where (2) the prosecution places

future dangerousness at issue through the charging of a continuing threat aggravator; and

(3) the jury requests an explanation of the definition of life imprisonment, and (4) the

judge’s response creates a false choice – and where, as here, there was no opportunity to

cure the confusion because counsel were not informed of the question, a defendant is

entitled to relief. For the reasons detailed above, we conclude that the Oklahoma trial

court “misapplied a governing legal principle to a set of facts different from those of the

case in which the principle was announced,” Wiggins, 123 S. Ct. at 2535 (internal

quotation marks omitted), and that the trial court’s error was “contrary to, or involved an

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

Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1). The federal district court

- 39 -
therefore correctly granted habeas relief on Mr. Mollett’s due process claim.

Consequently, we need not discuss the arguments concerning ineffective assistance of

counsel. See, e.g., Scott v. Mullin, 303 F.3d 1222, 1232 (10th Cir. 2002). The district

court’s conditional grant of Mr. Mollett’s 28 U.S.C. § 2254 petition for habeas corpus,

including its finding that Mr. Mollett is “entitled to a new sentencing hearing,” id., is

AFFIRMED.

- 40 -
No. 01-6403, Mollett v. Mullin

MURPHY, Circuit Judge, dissenting.

This case presents an important question: Do the Supreme Court’s decisions in

Simmons and Shafer apply in a state with a weighing-based death penalty scheme when the

jury has determined that the prosecution failed to prove beyond a reasonable doubt that the

defendant is a continuing threat to society? The answer to that question is “no.” The

majority erroneously concludes, however, that Mollett’s jury was presented with the same

due process problem at issue in Simmons. Majority Op. at 16-36. The majority’s opinion

is based on a faulty application of Simmons and Shafer and a concomitant failure to

consider key differences between the nonweighing-based death penalty scheme in South

Carolina and the weighing-based death penalty scheme in Oklahoma.

The majority sets out at great length the Supreme Court’s holdings in Simmons v.

South Carolina, 512 U.S. 154 (1994) and Shafer v. South Carolina, 532 U.S. 36 (2001).

Majority Op. 16-23. I do not quibble with the rule of law the majority draws from these

cases: “Reaffirming its holding in Simmons, the Court held [in Shafer] ‘that whenever

future dangerousness is at issue in a capital sentencing proceeding under South Carolina’s

new scheme, due process requires that the jury be informed that a life sentence carries no

possibility of parole.’” Majority Op. at 21 (quoting Shafer, 532 U.S. at 51 (emphasis

added in Majority Op.)). The majority fails to acknowledge, however, that the Supreme

Court’s ruling was specifically in response to South Carolina’s nonweighing-based death
penalty scheme.1 An understanding of the way in which the South Carolina death penalty

scheme operates is essential to understanding the exact parameters of the rule announced

in Simmons.

South Carolina is what is commonly referred to as a “nonweighing state.” See S.C.

Code Ann. § 16-3-20; Jones v. State, 504 S.E.2d 822, 824 n.1 (S.C. 1998); see also Smith

v. Moore, 137 F.3d 808, 815 (4th Cir. 1998). See generally Stringer v. Black, 503 U.S.

222, 229-30 (1992) (describing, by reference to Mississippi’s and Georgia’s death penalty

schemes, differences between weighing and nonweighing states). In South Carolina, the

jury must find the existence of at least one statutory aggravating circumstance before a

defendant is eligible for a sentence of death. S.C. Code Ann. § 16-3-20(B). If the jury

finds the existence of a statutory aggravating circumstance, it must move on to determine

whether to impose the death sentence. Id. In so doing, the jury is not limited to a

“weighing” of the aggravating circumstances proved by the state against any mitigating

circumstances proved by the defendant. Id. Instead, the jury’s prerogatives are much

broader: it is entitled to consider “additional evidence in extenuation, mitigation, or

aggravation of the punishment.” Id. A South Carolina jury is not inhibited by a

requirement that it limit its deliberations to weighing of statutory aggravators and

mitigating circumstances, as is the jury in a weighing state like Oklahoma.

1
It must be noted that the only material quoted from Shafer that the majority did not
emphasize is the language indicating that the Court was announcing its rule with regard to
“‘South Carolina’s new scheme.’” Majority Op. at 21 (quoting Shafer, 532 U.S. at 51).

-2-
 Under South Carolina’s death penalty scheme, future dangerousness is not a

statutory aggravating circumstance to be considered in the death eligibility step of jury

deliberations. Kelly v. South Carolina, 534 U.S. 246, 259 n.* (2002) (Rehnquist, C.J.,

dissenting). Nevertheless, once a jury finds the existence of at least one of the requisite

statutory aggravators and proceeds to the imposition step of its deliberations, “it may

consider future dangerousness in determining what sentence to impose.” Id. at 260

(Rehnquist, C.J., dissenting). This is so because under the South Carolina scheme the

decision whether to impose a sentence of death is made after a consideration of the

specific circumstances of the crime and all of the characteristics of the offender; the

universe of appropriate considerations at this stage of the sentencing determination is

unconstrained by the enumerated statutory aggravating circumstances. See State v. Owens,

552 S.E.2d 745, 760 (S.C. 2001); Jones, 504 S.E.2d at 824 n.1; see also Simmons, 512

U.S. at 162-63 (plurality opinion) (noting that under South Carolina’s death penalty

scheme “[o]nce the jury finds that the defendant falls within the legislatively defined

category of persons eligible for the death penalty . . . the jury is then free to consider a

myriad of factors to determine whether death is the appropriate punishment” (quotation

omitted) (alteration in original)). At this stage of the proceedings, a South Carolina jury is

free to reject the death penalty “for any reason or no reason at all.” Shafer, 532 U.S. at 50-

51.

-3-
 The Court’s decisions in Simmons and Shafer cannot be unhinged from this specific

state statutory backdrop. Shafer makes this clear. In that case, South Carolina argued that

Simmons no longer applied because it had adopted a new tripartite sentencing option in

capital cases. Shafer, 532 U.S. at 49-50. In rejecting this argument, the Court concluded

as follows:

At the time the trial judge instructed the jury in Shafer’s case, it was indeed
possible that Shafer would receive a sentence other than death or life without
the possibility of parole. That is so because South Carolina, in line with
other States, gives capital juries, at the penalty phase, discrete and sequential
functions. Initially, capital juries serve as factfinders in determining whether
an alleged aggravating circumstance exists. Once that factual threshold is
passed, the jurors exercise discretion in determining the punishment that
ought to be imposed. The trial judge in Shafer’s case recognized the critical
difference in the two functions. He charged that “[a] statutory aggravating
circumstance is a fact, an incident, a detail or an occurrence,” the existence
of which must be found beyond a reasonable doubt. Turning to the
sentencing choice, he referred to considerations of “fairness and mercy,” and
the defendant’s “moral culpability.” He also instructed that the jury was free
to decide “whether . . . for any reason or no reason at all Mr. Shafer should
be sentenced to life imprisonment rather than to death.”
In sum, when the jury determines the existence of a statutory
aggravator, a tightly circumscribed factual inquiry, none of Simmons’ due
process concerns arise. There are no “misunderstanding[s]” to avoid, no
“false choice[s]” to guard against. See Simmons, 512 U.S. at 161 (plurality
opinion). The jury, as aggravating circumstance factfinder, exercises no
sentencing discretion itself. If no aggravator is found, the judge takes over
and has sole authority to impose the mandatory minimum so heavily relied
upon by the South Carolina Supreme Court. It is only when the jury
endeavors the moral judgment whether to impose the death penalty that
parole eligibility may become critical. Correspondingly, it is only at that
stage that Simmons comes into play, a stage at which South Carolina law
provides no third choice, no 30-year mandatory minimum, just death or life
without parole. We therefore hold that whenever future dangerousness is at
issue in a capital sentencing proceeding under South Carolina’s new scheme,

-4-
 due process requires that the jury be informed that a life sentence carries no
possibility of parole.

Id. at 50-51 (citations and footnote omitted) (emphasis added) (alterations in original).

Accordingly, what was at issue in Simmons and Shafer was that step in jury

deliberations on sentencing in South Carolina at which the jury exercises its unfettered

moral judgment to determine whether the defendant should be sentenced to either life

imprisonment or death. The Court was unequivocal that South Carolina could not skew

that particular process by preventing a capital defendant from presenting truthful

information, either through argument or instruction, of parole ineligibility when the state

raises the issue of future dangerousness. See Simmons, 512 U.S. at 175 (O’Connor, J.,

concurring in the judgment) (“Capital sentencing proceedings must of course satisfy the

dictates of the Due Process Clause, and one of the hallmarks of due process in our

adversary system is the defendant’s ability to meet the State’s case against him.” (citation

and quotation omitted)); id. at 177 (O’Connor, J., concurring in the judgment) (“When the

State seeks to show the defendant’s future dangerousness, however, the fact that he will

never be released from prison will often be the only way that a violent criminal can

successfully rebut the State’s case.”).2

2
In a portion of the majority opinion purportedly declining to address the issue of
harmless error, the majority notes that the Supreme Court has never performed a harmless
error analysis after having found a Simmons error. See Majority Op. at 39 n.6. Because,
as set out below, a Simmons error did not occur in this case, it is unnecessary to address
the question whether a Simmons error is subject to harmless error review. In light of the
nature of the due process problem identified in Simmons, however, it is not surprising that
the Court has never subjected such an error to a harmless-error analysis. As noted above,

-5-
 The rule announced in Simmons and Shafer, however, is not applicable to

Oklahoma’s death penalty scheme unless the jury specifically finds during the eligibility

step in deliberations that a defendant is a continuing threat to society, a statutory

aggravating circumstance to be weighed against any mitigating circumstances during the

imposition step of deliberations. Unlike South Carolina, Oklahoma is a weighing state.

See Duckett v. Mullin, 306 F.3d 982, 1001 n.9 (10th Cir. 2002). The eligibility step of jury

deliberations in Oklahoma is much like the eligibility step in South Carolina. Oklahoma

juries have three sentencing options upon finding a defendant guilty of first degree

Simmons and Shafer are narrowly focused on the presentation of a “false choice” to the
jury during that step in deliberations when the jury is to exercise its unfettered moral
judgment in deciding whether to impose a death sentence. Furthermore, the Court has
recognized that truthful information regarding parole ineligibility is often “the only way
that a violent criminal can successfully rebut the State’s” assertion of future
dangerousness. Simmons v. South Carolina, 512 U.S. 154, 177 (1994) (O’Connor, J.,
concurring in the judgment). In these circumstances, it is hard to see how a true Simmons
error could ever be harmless.
The problem in this case, as explicated below, is that the majority has expanded
what constitutes a Simmons error well beyond the context of the decisions in Simmons
and Shafer. As a consequence, in this circuit, Simmons errors will now comprise not only
a false choice regarding future dangerousness during the unfettered moral-judgment stage
of a nonweighing death penalty proceeding, but also a false choice during the imposition
step in a death penalty proceeding in a weighing state like Oklahoma, despite a jury
finding that the defendant was not a continuing threat to society. Simmons and Shafer
simply do not speak to the particular circumstances of this case. Nor do Simmons and
Shafer speak to the question whether the error that occurred in this case is harmless. See
infra.

-6-
murder: death, life imprisonment without the possibility of parole, or life imprisonment.

Okla. Stat. Ann. tit. 21, § 701.9(A).3 A death sentence is not appropriate, however, unless

the jury finds that the prosecution proved beyond a reasonable doubt the existence of at

least one statutory aggravating circumstance. Id. § 701.11. Unlike in South Carolina,

however, future dangerousness is a statutory aggravating circumstance in Oklahoma. Id. §

701.12(7).

If the jury finds the existence of a statutory aggravating circumstance, it moves on

to the actual sentencing decision, the imposition step. The process an Oklahoma jury

utilizes to arrive at its ultimate sentencing determination is vastly different from the system

employed in South Carolina. In Oklahoma, the jury’s task at this stage is more limited

than in South Carolina. An Oklahoma jury is to determine whether all of the statutory

aggravating circumstances proved by the prosecution beyond a reasonable doubt outweigh

any mitigating circumstances proved by the defendant. Id. § 701.11 (“Unless at least one

of the statutory aggravating circumstances enumerated in this act is [found beyond a

reasonable doubt] or if it is found that any such aggravating circumstance is outweighed

by the finding of one or more mitigating circumstances, the death penalty shall not be

imposed.” (emphasis added)). Mollett’s jury was so instructed. See Jury Instruction 52

3
This court has held that instructing on these three options, without elaboration, satisfies
Simmons. Johnson v. Gibson, 254 F.3d 1155, 1165 (10th Cir. 2001). Furthermore, in
response to an inquiry by the jury as to the meaning of life imprisonment without the
possibility of parole, the trial court may simply refer the jury back to the instructions
given. Id.

-7-
(“If you unanimously find that one or more of the aggravating circumstances existed

beyond a reasonable doubt, unless you also unanimously find that any such aggravating

circumstance or circumstances outweigh the finding of one or more mitigating

circumstances, the death penalty shall not be imposed.” (emphasis added)). Accordingly,

unlike the open-ended imposition step in deliberations in South Carolina, where the jury is

free to consider matters in aggravation not set out in the list of statutory aggravating

circumstances, the jury’s task in Oklahoma is narrowly circumscribed to determining

whether the aggravating circumstance(s) proved by the prosecution beyond a reasonable

doubt outweigh the defendant’s evidence in mitigation. Okla. Stat. Ann. tit. 21, § 701.11;

Irvin v. State, 617 P.2d 588, 598 (Okla. Crim. App. 1980).

Although South Carolina is a nonweighing state and Oklahoma is a weighing state,

both require the jury to exercise its moral judgment to determine what is the appropriate

penalty. The information the jury can consider in the two states in reaching that moral

judgment is, however, vastly different. Mollett’s jury was instructed to undertake a

weighing of the aggravating circumstances proved by the prosecution against the

mitigating circumstances proved by Mollett; it was not allowed to utilize any other

aggravating circumstances in arriving at its sentence. Having previously concluded that

the prosecution failed to prove that Mollett was a continuing threat to society, future

dangerousness was not at issue at the imposition step in the jury deliberations in Mollett’s

-8-
sentencing proceeding.4 Because, as noted above, Simmons was clearly focused on the

4
In the process of declining to decide whether the purported Simmons violation in this
case was harmless, the majority asserts as follows: (1) the trial judge’s response to the
jury’s question about parole eligibility “left the prosecutor’s warning about the danger of
Mr. Mollett emerging from prison front and center for the jury to consider in its
deliberations on whether to sentence Mr. Mollett to death,” Majority Op. at 40; and (2)
the trial court’s erroneous instruction made it more likely that the jury found the existence
of the other two aggravating circumstances alleged by the prosecution in this case, id. at
41. These assertions demonstrate a fundamental misapplication of Oklahoma’s death
penalty system.
The prosecutor’s warnings about the danger of Mollett emerging from prison
simply do not relate in any way to the questions whether the murder was “especially
heinous, atrocious, or cruel,” or whether the murder was committed “to avoid lawful
arrest or prosecution.” Instead, the prosecutor’s arguments are relevant only to the factual
question whether Mollett was likely to be a continuing threat to society at large. The jury
concluded, as a matter of fact, that the prosecution had not proved Mollett would be a
future danger to society at large. Having so concluded, the jury was instructed that the
question of future dangerousness was to play no further role in its deliberations. See Jury
Instruction 52 (“If you unanimously find that one or more of the aggravating
circumstances existed beyond a reasonable doubt, unless you also unanimously find that
any such aggravating circumstance or circumstances outweighs the finding of one or
more mitigating circumstances, the death penalty shall not be imposed.” (emphasis
added)). The majority’s assertion that the jury continued to consider the issue at the
imposition step of its deliberations ignores the strong presumption that juries act in accord
with their instructions. Weeks v. Angelone, 528 U.S. 225, 234 (2000).
More importantly, the majority’s musings about potential harm in this case
threaten to convert Simmons into an almost limitless truth-in-sentencing case. The
majority seems to assert that Simmons is implicated in this case because “at least some of
the continuing threat evidence was relevant to the two aggravators found by the jury.”
Majority Op. at 41. It is certainly true that evidence relating to the brutal nature of a
murder is potentially relevant to both the heinous, atrocious, or cruel and continuing
threat aggravating circumstances. See Murphy v. State, 47 P.3d 876, 887-88 (Okla. Crim.
App. 2002) (relying in part on brutal nature of the crime in concluding that sufficient
evidence supported the continuing threat aggravating circumstance). Under the
majority’s theory, however, a defendant in Oklahoma would be entitled to a jury
instruction about parole eligibility even if the prosecution did not allege the continuing
threat aggravating circumstances, so long as any of the evidence adduced in support of
any other aggravating circumstance might also be relevant to future dangerousness.
Unlike the majority, the Supreme Court does not read its opinion in Simmons as

-9-
presentation of a false choice to the jury at the imposition step, thereby skewing the jury’s

moral judgment, Simmons simply does not speak to the circumstances of this case. See

Shafer, 532 U.S. at 51 (“[W]hen the jury determines the existence of a statutory

aggravator, a tightly circumscribed factual inquiry, none of Simmons’ due process

concerns arise. . . . The jury, as aggravating circumstance factfinder, exercises no

sentencing discretion itself. . . . It is only when the jury endeavors the moral judgment

whether to impose the death penalty that parole eligibility may become critical.”

(emphasis added)).5

Although no Simmons violation occurred in this case because the matter of future

dangerousness was not considered during the weighing or imposition step in the jury

deliberations, the jury was nevertheless presented with an incomplete picture when the

establishing such a broad rule. See Kelly v. South Carolina, 534 U.S. 246, 254 n.4 (2002)
(noting that the Court had not yet decided this question). Thus, the majority appears to be
creating a new, substantive rule of criminal procedure, rather than simply applying
Simmons. In such a circumstance, a Teague v. Lane, 489 U.S. 288 (1989), analysis is
necessary.
5
This court’s decision in Johnson is not to the contrary. In Johnson, the jury was
improperly instructed about parole eligibility and thereafter found that the continuing
threat aggravator was proved beyond a reasonable doubt. 254 F.3d at 1164-65, 1159.
Accordingly, at the imposition step in deliberations, the jury considered the fact that the
defendant was a future danger to society, including its misconception about the
defendant’s parole eligibility, in exercising its moral judgment as to whether the
aggravating circumstances outweighed the mitigating circumstances. I certainly agree
that a Simmons violation occurred under those circumstances. In this case, on the other
hand, when the jury concluded that Mollett was not a continuing threat to society, the
matter dropped out of consideration, leaving the jury to weigh only the heinous nature of
the crime and the murder-committed-to-avoid-prosecution aggravator against Mollett’s
evidence in mitigation.

-10-
trial court instructed it that the matter of parole eligibility was beyond its purview. As a

consequence, in deciding the factual question of whether Mollett was a continuing threat

to society, the jury was denied key information regarding the possibility of Mollett’s future

release from prison. This independent due process violation, however, occurred at the

eligibility step, rather than the imposition step in deliberations. This distinction is not

academic. A Simmons violation occurs, if at all, only at the imposition step in jury

deliberations, a step when the jury is exercising its unfettered moral judgment as to an

appropriate punishment.6 See id. For those reasons set out above, see supra note 2, it is

virtually impossible to determine whether such an error is harmless. When a due process

error involving false choice occurs at the eligibility step in deliberations in Oklahoma,

however, the error is necessarily harmless if the jury ultimately rejects the continuing

threat aggravator. At that point, it is clear that the error did not affect the jury’s eligibility

determination. Because Oklahoma is a weighing state, the matter then drops out of

consideration, and cannot affect the jury’s moral judgment during the weighing of

aggravating and mitigating circumstances, the imposition step in Oklahoma.

6
In both a weighing state and nonweighing state, the jury is necessarily exercising its
moral judgment during the imposition step of deliberations, the only difference being how
or if the jury’s discretion is channeled or limited. As set out above, at the imposition step
in South Carolina, the jury is free to consider all evidence bearing on the circumstances of
the murder and the defendant’s character. In Oklahoma, however, the jury is to weigh
only those aggravating circumstances proved by the prosecution beyond a reasonable
doubt against the defendant’s evidence in mitigation.

-11-
 The majority asserts that this dissent is built on faulty logic. In particular, the

majority asserts as follows: (1) the dissent fails to recognize that Simmons and its progeny

apply to Oklahoma’s death penalty scheme and “ignores the clear language of the

Simmons line of cases that it is the prosecution’s placing the defendant’s future

dangerousness at issue that potentially creates the ‘false choice,’” Majority Op. at 30-31;

(2) the dissent unduly compartmentalizes the eligibility and imposition steps of jury

deliberation in analyzing whether a Simmons violation occurred in this case, id. at 31-33;

(3) the Oklahoma and South Carolina death penalty scheme are more alike than the dissent

recognizes, id. at 32-34; and (4) the approach adopted by the dissent “unsoundly limits the

evidence that may be properly considered” by the jury, id. at 34-36. As set out below,

none of the majority’s criticisms of this dissenting opinion are convincing.

Citing to the Oklahoma Court of Criminal Appeals’ opinion in Williams v. State, 31

P.3d 1046, 1050 (Okla. Crim. App. 2001) (“Williams I”), the majority simply asserts that

“there is no question that Simmons and its progeny apply to Oklahoma’s [death penalty]

scheme.” Majority Op. at 30. Williams I, however, does not speak to the circumstances of

this case. As was the case in this court’s decision in Johnson, 254 F.3d at 1164-66, the

Williams I jury specifically found that the defendant was a continuing threat to society.

Williams v. State, 22 P.3d 702, 732 (Okla. Crim. App. 2002). For exactly those reasons set

out above in discussing Johnson, see supra note 5, Williams I does not compel the

conclusion that Simmons and its progeny are implicated by the circumstances of this case.

-12-
 The majority further asserts that this dissent “ignores the clear language of every

Simmons case that it is the prosecution’s placing the defendant’s future dangerousness at

issue that potentially creates the ‘false choice.’” Majority Op. at 30. As set out above,

however, each of the cases in the Simmons line deals with the nonweighing death penalty

system in South Carolina. Unlike the situation in Simmons, Shafer, and Kelly, the jury

here specifically found that the prosecution had failed to prove, under the requisite

standard, that Mollett was a continuing threat to society. The jury was thus precluded

from considering the matter during its deliberations on whether to impose the death

penalty. For just this reason, the majority is wrong in asserting that Simmons applies in

exactly the same way to both South Carolina’s nonweighing death penalty scheme and

Oklahoma’s weighing death penalty scheme. See Majority Op. at 31.

The majority next complains that “the dissent’s rigid division of the jury’s

deliberations into an ‘eligibility step’ and an ‘imposition step’ misreads Simmons and

Shafer.” Majority Op. at 31.7 According to the majority, when the jury asked about the

meaning of life without parole, it was possible that the jury “had proceeded to weighing

7
This dissent assumes that the majority does not take issue with the two-step process in
jury deliberations: the eligibility step and the imposition step. These steps are real and
were specifically acknowledged in Shafer:
South Carolina, in line with other States, gives capital juries, at the penalty
phase, discrete and sequential functions. Initially, capital juries serve as
factfinders in determining whether an alleged aggravating circumstance
exists. Once that factual threshold is passed, the jurors exercise discretion
in determining the punishment that ought to be imposed. The trial judge in
Shafer’s case recognized the critical difference in the two functions.
532 U.S. at 50.

-13-
aggravating and mitigating circumstances to determine if the death penalty was

warranted.” Id. Such a state of affairs is possible, however, only if the jury disregarded its

instructions. In Instruction 47, the jury was told that its first task during sentencing

deliberations “was to determine whether at the time this crime was committed any one or

more of the [specifically alleged] aggravating circumstances existed beyond a reasonable

doubt.” Instruction 49 informed the jury that “[a]ggravating circumstances are those

which increase the guilt or enormity of the offense. In determining which sentence to

impose in this case, you may only consider those aggravating circumstances set forth in

these instructions.” Instruction 49 further informed the jury that it was not empowered to

consider a death sentence unless it unanimously found the existence beyond a reasonable

doubt of at least one aggravating circumstance. Instructions 50 and 51 defined mitigating

circumstances for the jury and set out a list of fourteen mitigating circumstances supported

by Mollett’s evidentiary submissions. Finally, Instruction 52 instructed the jury that if it

found beyond a reasonable doubt the existence of at least one specifically charged

aggravating circumstances, it must weigh only those particular aggravating circumstances

proved beyond a reasonable doubt against any mitigating circumstances proved by Mollett;

only if those aggravating circumstances outweighed Mollett’s evidence in mitigation was

the jury empowered to impose a death sentence.

As should be clear from this recitation, it is the jury instructions given in this case,

rather than some artificial construct from this dissenting opinion, that delineated the steps

-14-
the jury was required to take during its sentencing deliberations and restricted the matters

it could consider at each step of those deliberations. See Majority Op. at 31-32

(recognizing that “the jury here was required to determine the existence of the alleged

aggravating factors before proceeding to the question of whether to impose the death

penalty”). Despite these clear instructions, however, the majority posits that the jury may

have sent out its question when it was undertaking the weighing process. Id. at 32 (“Thus,

when the jury asked about the meaning of life without parole, the judge did not know

whether the jury was still debating the existence of the continuing threat and other

aggravators or whether it had proceeded to weighing aggravating and mitigating

circumstances to determine if the death penalty was warranted.” (emphasis added)).

Because the jury found the prosecution had not proved beyond a reasonable doubt that

Mollett was a continuing threat to society, the only way the majority’s supposition could

be true is if the jury ignored the specific instruction that during the weighing process it was

confined to matters in aggravation that the prosecution had proved beyond a reasonable

doubt. As noted above, such a hypothesis flies in the face of the strong presumption that

juries act in accord with their instructions. Weeks v. Angelone, 528 U.S. 225, 234 (2000).8

8
Recognition that the jury instructions in this case, pursuant to Oklahoma law, directed the
jury to analyze the propriety of imposing a death sentence by undertaking both an
eligibility step and an imposition step during deliberations does not, as asserted by the
majority, “preclude[] the jury from revisiting earlier findings or beginning the deliberative
process anew at any time.” Majority Op. at 32. If, at any point, the jury was dissatisfied
with its deliberations, it could begin deliberations anew, as long as it did so within the
confines of the jury instructions; there is nothing in this dissent that would lead to a
contrary conclusion. In actuality, it is the majority that does damage to the Oklahoma

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 Next, the majority criticizes this dissent for failing to recognize that a jury in

Oklahoma can decline to impose a death sentence even if it determines that the

aggravating circumstances outweigh the mitigating circumstances. Majority Op. at 33-35.

From this fact the majority makes the illogical leap to the conclusion that there are no

legally significant differences between the Oklahoma and South Carolina death penalty

schemes for purposes of Simmons and Shafer. Id. at 33-34. The problem with the

majority’s assertion, of course, is that it is not supported by a single citation to authority

supporting the proposition that once an Oklahoma jury completes the weighing process it

is thereafter free to consider the universe of possible aggravating circumstances in

deciding whether to impose a death sentence. Certainly the majority cannot cite to any

such instruction given to the jury in this case.9 In fact, Mollett’s jury was specifically

death penalty scheme by continuing to assert that the jury in this case, in direct derogation
of its instructions, was free to consider continuing threat evidence during the weighing
process, despite having found that the prosecution had not proved the existence beyond a
reasonable doubt of the continuing threat aggravator. Majority Op. at 32, 35-37.
What makes the majority’s assertion particularly puzzling, however, is that
Mollett’s jury did not change its mind about the continuing threat aggravator. As clearly
reflected in the special verdict form, the jury specifically found, upon its oath, that the
prosecution had not proved that Mollett was a continuing threat to society. Unless the
majority is implying that the special verdict form is not an accurate account of the jury’s
findings, an assertion utterly lacking in record support, it is unclear how the majority’s
arguments are even remotely implicated in this case.
9
The current Oklahoma uniform jury instruction cited in the majority opinion, see
Majority Op. at 34 n.5, certainly does not support this proposition. It does not indicate
that the jury is free to consider any matter it wants in arriving at an appropriate sentence.
Instead, it simply indicates that the jury is free to impose a life sentence even if it finds
that the aggravating circumstances outweigh the mitigating circumstances. In any event,
the uniform jury instruction referenced by the majority was not given to the jury in this

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informed, in Instruction 49, that it was to “consider only those aggravating circumstances

set forth in these instructions.” Furthermore, as set out above, the jury was specifically

instructed, in Instruction 52, that in deciding whether a death sentence is appropriate, it

was to consider only those aggravating circumstances proved by the prosecution beyond a

reasonable doubt. Accordingly, although the jury in this case had the power to decline to

impose a death sentence even after finding the aggravating circumstances outweighed the

mitigating circumstances, it could not have, acting consistently with its instructions,

imposed the death penalty for the reason that Mollett was a continuing threat to society.

Finally, the majority asserts that the approach advocated in this dissent “unsoundly

limits the evidence that may properly be considered” by the jury. Majority Op. at 35.

According to the majority, the jury is entitled to consider, apparently without limitation, all

evidence presented at trial in determining what sentence a defendant should receive. Id. at

35-37. This would include, according to the majority, continuing threat evidence despite

the jury’s determination that the prosecution did not prove beyond a reasonable doubt the

existence of that aggravator. Id. In support of this assertion, the majority relies on Parks

v. State, 651 P.2d 686, 694 (Okla. Crim. App. 1982), Lockett v. Ohio, 438 U.S. 586, 606

(1978), and Justice O’Connor’s concurring opinion in California v. Brown, 479 U.S. 538,

545 (1987). None of these cases support the majority’s broad assertion that Mollett’s jury

case.

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was empowered to consider continuing threat evidence during the imposition step of

deliberations, after having rejected that aggravator at the eligibility step.

In Parks, the Oklahoma Court of Criminal Appeals rejected a challenge to a jury

instruction which specifically incorporated into the sentencing stage of the trial all

evidence presented during the guilt stage of the trial. 651 P.2d at 694. The court simply

cited to Lockett and noted that in arriving at a sentence the jury was free to consider “not

only the defendant’s record and character, but any circumstances of the offense.” Id.

There is nothing in Parks to indicate, however, that the jury is free to consider this

evidence outside of the context provided in the jury instructions on sentencing. As noted

above, in this case the jury was specifically instructed not to consider Mollett’s future

dangerousness during the weighing stage of deliberations unless it first found the

prosecution had proved the existence of the aggravator beyond a reasonable doubt.

Because the jury ultimately found that the prosecution had not proved Mollett was a

continuing threat, this court must presume that the jury followed its instructions and did

not consider continuing threat evidence during its weighing process. Angelone, 528 U.S.

at 234. Parks merely stands for the proposition that incorporation of guilt stage evidence

into the sentencing stage, and the use of that evidence by both the prosecution and defense

to make their case within the confines of the jury instructions, is in accord with the United

States Constitution. Parks does not support the majority’s view that the case somehow

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withdraws jury instructions which prohibit the consideration of some of the incorporated

evidence.

This view of Parks is confirmed by the Oklahoma Court of Criminal Appeals’

exclusive reliance on Lockett in setting out this rule. In Lockett, the Supreme Court

addressed the constitutionality of an Ohio death penalty scheme which seriously restricted

the mitigating circumstances that a capital defendant could present at trial. 438 U.S. at

597 (plurality opinion). In striking down Ohio’s system as unconstitutional, the court

repeatedly noted that the fatal flaw in the system was that it limited the matters in

mitigation which could be considered by the sentencer.10 Because the Ohio system did not

allow the jury to consider the characteristics of the defendant and the circumstances of the

10
Lockett v. Ohio, 438 U.S. 586, 597 (1978) (“We find it necessary to consider only her
contention that her death sentence is invalid because the statute under which it was
imposed did not permit the sentencing judge to consider, as mitigating factors, her
character, prior record, age, lack of specific intent to cause death, and her relatively minor
part in the crime.”); id. at 604 (“[W]e conclude that the Eighth and Fourteenth
Amendments require that the sentencer, in all but the rarest kind of capital case, 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.” (footnote omitted) (emphasis in original)); id. at 605
(“There is no perfect procedure for deciding in which cases governmental authority
should be used to impose death. But a statute that prevents the sentencer in all capital
cases from giving independent mitigating weight to aspects of the defendant’s character
and record and to circumstances of the offense proffered in mitigation creates the risk that
the death penalty will be imposed in spite of factors which may call for a less severe
penalty.”); id. at 608 (“The limited range of mitigating circumstances which may be
considered by the sentencer under the Ohio statute is incompatible with the Eighth and
Fourteenth Amendments. To meet constitutional requirements, a death penalty statute
must not preclude consideration of relevant mitigating factors.”).

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crime that were potentially mitigating, the Supreme Court concluded Ohio’s system

violated the Eighth and Fourteenth Amendments. Id. at 607-09.

Likewise, the question in Brown was whether an instruction informing the jury that

it must not be swayed by sympathy for the defendant violated a capital defendant’s Eighth

Amendment right to present all “relevant mitigating evidence regarding his character or

record and any of the circumstances of the offense.” Id. at 541 (quotation omitted)

(emphasis added); see also id. at 544 (O’Connor, J., concurring) (“The issue in this case is

whether an instruction designed to satisfy the principle that capital sentencing decisions

must not be made on the mere whim, but instead on clear and objective standards, violates

the principle that the sentencing body is to consider any relevant mitigating evidence.”).

Accordingly, when both the Brown majority and Justice O’Connor discuss the need for the

jury’s sentencing decision to be a reasoned moral response to the defendant’s background,

character, and crime, they are only discussing the defendant’s Eighth Amendment right to

present mitigation evidence.

Nothing in Brown or Lockett supports the notion that a state is precluded from

designing its death penalty scheme to restrict the matters in aggravation that a jury can

consider in deciding whether to impose a sentence of death. As demonstrated above,

Oklahoma has done just that, mandating that juries not consider matters in aggravation in

arriving at a sentencing decision unless the prosecution has proved the existence of those

aggravating factors beyond a reasonable doubt. Okla. Stat. Ann. tit. 21, § 701.11. The

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jury in this case was so instructed. The majority is simply wrong in asserting that system

is in conflict with the Supreme Court’s decision in Lockett or Brown.

The majority has effectively converted Oklahoma into a nonweighing state, thereby

wiping away significant protections for capital defendants in Oklahoma. The majority has

rewritten Oklahoma law so that juries are now free to consider, in arriving at an ultimate

sentence, matters in aggravation not proved beyond a reasonable doubt by the prosecution.

See Majority Op. at 34-36.

Moreover, the majority’s assertions in this regard fundamentally misapply

Simmons. As is made clear in Justice O’Connor’s opinion concurring in the judgment in

Simmons,11 the rationale underlying the decision is narrowly directed to allowing a capital

defendant to utilize the most powerful evidence available to overcome the prosecution’s

assertion that he is a continuing threat to society. See 512 U.S. at 177 (O’Connor, J.,

concurring in the judgment). According to Justice O’Connor,

When the State seeks to show the defendant’s future dangerousness .
. . the fact that he will never be released from prison will often be the only
way that a violent criminal can successfully rebut the State’s case. I agree
with the Court that in such a case the defendant should be allowed to bring
his parole ineligibility to the jury’s attention—by way of argument by
defense counsel or an instruction from the court—as a means of responding
to the State’s showing of future dangerousness.

“Justice O’Connor’s three Justice concurrence [in Simmons] represented the narrowest
11

grounds for a holding and, as such, represents the holding of the Court.” Smallwood v.
Gibson, 191 F.3d 1257, 1280 n.15 (10th Cir. 1999).

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Id. (O’Connor, J., concurring in the judgment). As cogently noted by Justice O’Connor, a

defendant’s future parole status is clearly relevant to the question whether he is likely to be

a future danger to society at large. The majority is misguided in asserting that there is a

similar link between Mollett’s future parole status and any of the mitigating circumstances

submitted by Mollett to the jury. Majority Op. at 36. Mollett submitted the following

fourteen mitigating circumstances to the jury:

1. Defendant loves and is thoughtful of his parents and his other
relatives.
2. Defendant is helpful to his parents and other relatives.
3. Defendant is a hard worker.
4. Defendant is kind to animals.
5. Defendant loves people.
6. Defendant is a good big brother.
7. Defendant is compassionate to his family.
8. Defendant is gentle and caring to his sister’s children.
9. Defendant has been helpful in apprehending a person who broke the
law.
10. He is generous and kind to his friends.
11. Defendant has a family that loves and cares for him.
12. Defendant attempted to help a motorist hurt in an accident.
13. Defendant is industrious and has always been employed.
14. He struggled to succeed and graduate from high school despite
attending school for the blind.

I fail to see how Mollett’s parole status is even remotely relevant to the existence of any of

these proposed mitigating factors.

In arguing that a Simmons violation occurred in this case because this court “cannot

know the extent to which the prosecution’s evidence and argument regarding Mr.

Mollett’s future dangerousness influenced the jury’s conclusion that a particular mitigating

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circumstance . . . did not outweigh the other aggravators,” the majority improperly

disconnects the rule announced in Simmons from the due process underpinnings Justice

O’Connor set out as supporting the rule in her separate opinion. The reason that a

defendant’s future parole status is relevant at the imposition step of jury deliberations is

because it is the most powerful evidence to rebut the prosecution’s case that the defendant

will constitute a future threat to society at large. Simmons, 512 U.S. at 177 (O’Connor, J.,

concurring in the judgment). That is, even if the defendant is utterly vile and lacking in

compassion, it is unlikely that he will ever be a danger to society at large if there is no

chance that he will be released from prison. Accordingly, evidence regarding future parole

status is relevant and admissible under Simmons not because it has any power to rebut the

prosecution’s argument that the defendant is a vile and dangerous individual, but because

it strongly rebuts any prosecution argument that the defendant will ever be able to bring

his dangerous tendencies to bear on society at large. Id. Once again, it appears more

likely the majority is announcing a limitless right to present the question of parole status to

the jury in every case, rather than applying the rule set forth by the Supreme Court in

Simmons. See supra note 4.

In sum, no Simmons violation occurred in this case. In addition, the due process

violation that occurred during the eligibility step in deliberations is necessarily harmless

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because the jury concluded Mollett was not a continuing threat to society. Because the

majority concludes to the contrary, I respectfully dissent.12

12
In granting the writ, the district court also concluded that Mollett’s counsel had provided
constitutionally ineffective assistance. Because the majority affirms the district court
solely on the basis of Simmons, it would be waste of judicial resources for this dissent to
proceed to the question whether Mollett is entitled to relief on the alternative ground of
ineffective assistance. Accordingly, like the majority, I offer no opinion on the propriety
of the district court’s conclusion that counsel was constitutionally ineffective.

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