Turrentine v. Mullin

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
DEC 1 2004
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT

KENNETH EUGENE TURRENTINE,

Petitioner-Appellant,
v. No. 03-5028

MIKE MULLIN, Warden,

Respondent-Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OKLAHOMA
(D.C. No. 99-CV-055-K(M))

Stephen J. Greubel, Tulsa, Oklahoma, for Petitioner-Appellant.

Robert L. Whittaker, Assistant Attorney General, Criminal Division (W.A. Drew
Edmondson, Attorney General of Oklahoma, with him on the brief), for
Respondent-Appellee.

Before LUCERO, McCONNELL, and TYMKOVICH, Circuit Judges.

McCONNELL, Circuit Judge.
 Currently on death row in the State of Oklahoma, Petitioner Kenneth E.

Turrentine (“Mr. Turrentine” or “Petitioner”) appeals the final order of the United

States District Court for the Northern District of Oklahoma, which denied him a

writ of habeas corpus on his petition filed pursuant to 28 U.S.C. § 2254. Mr.

Turrentine was convicted in the Oklahoma courts on four counts of first degree

murder. On three of those counts, he was sentenced to death; on the remaining

count, he was sentenced to life in prison without the possibility of parole. He is

currently an inmate of the Oklahoma State Penitentiary under the custody of

Warden Mike Mullin. For the reasons set forth below, we reverse in part and

affirm in part the decision of the district court.

Background

The facts as found by the state court are, pursuant to 28 U.S.C. §

2254(e)(1), presumed correct. We recite them as adopted by the Oklahoma Court

of Criminal Appeals, although we present additional facts throughout this opinion

as they become pertinent to our analysis. See generally Turrentine v. State of

Oklahoma, 965 P.2d 955 (Okla. Crim. App. 1998) (“Turrentine I”).

The facts of this case are both sad and horrific. On June 4, 1994, Mr.

Turrentine killed his sister Avon Stevenson, his estranged girlfriend Anita

Richardson, and Ms. Richardson’s two children, thirteen year old Martise

Richardson (“Martise”) and twenty-two year old Tina Pennington, sometimes

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referred to in the briefs and record as Tina Richardson (“Tina”). See Turrentine I,

965 P.2d at 963. For three months leading up to the deadly events of that June,

Mr. Turrentine and Ms. Richardson had been experiencing such problems in their

relationship that Mr. Turrentine had moved out of the home they once shared. (T.

Tr. 531.) Mr. Turrentine moved in with his sister Ms. Stevenson. Id.

While separated from Ms. Richardson and living with his sister, Mr.

Turrentine began to believe that Ms. Richardson was having an affair with two

other men, and that his sister, Ms. Stevenson, knew of these affairs because she

was apparently a friend and confidant of Ms. Richardson’s. (T. Tr. 532); see also

Turrentine I, 965 P.2d at 963. Whether true or not, he also came to believe that

Ms. Richardson and Ms. Stevenson were cheating him out of money, to support

their drug habits. (T. Tr. 532-33); see also Turrentine I, 965 P.2d at 963.

On June 3, 1994, the day before the murders, Mr. Turrentine telephoned his

ex-wife, Catherine Turrentine, and told her that he was at Ms. Richardson’s house

and that things were “about to come to a head.” (T. Tr. 562). That same day, he

asked his ex-wife to return to him a .22 caliber pistol, but she refused. (T. Tr.

561); see also Turrentine I, 965 P.2d at 963. He returned to make the same

request the next morning, June 4, 1994, and this time his ex-wife gave Mr.

Turrentine the loaded pistol. (T. Tr. 562-63); see also Turrentine I, 965 P.2d at

963.

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 Later in the day on June 4, 1994, Mr. Turrentine confronted his sister about

Ms. Richardson’s supposed affairs, and an argument ensued. (T. Tr. 532); see

also Turrentine I, 965 P.2d at 963. Ms. Stevenson apparently laughed in Mr.

Turrentine’s face during this argument and called him a “punk.” (T. Tr. 532); see

also Turrentine I, 965 P.2d at 963. In response, Mr. Turrentine placed the .22

caliber pistol to Ms. Stevenson’s head and fired; she died at the scene. (T. Tr.

532); see also Turrentine I, 965 P.2d at 964.

Mr. Turrentine then drove to Ms. Richardson’s house, where the two began

to argue. (T. Tr. 532); see also Turrentine I, 965 P.2d at 963. As they argued,

they moved from the front to the back bedroom of the house and, after more

argument and struggle, Mr. Turrentine shot Ms. Richardson in the head. She died

at the scene. (Tr. 532); see also Turrentine I, 965 P.2d at 963. He subsequently

shot both Martise and Tina in the head, and they died at the scene as well. Id.

After this carnage, Mr. Turrentine talked to a 911 operator and declared

that he had shot his “ol lady,” his kids, and his sister. (State’s Ex. No. 17); see

also Turrentine I, 965 P.2d at 964. When officers arrived at the scene, they

immediately took Mr. Turrentine into custody and advised him of his rights under

Miranda v. Arizona, 384 U.S. 436, 444 (1966). Mr. Turrentine waived his rights

and told the officers that he had shot his sister, his estranged girlfriend, and his

girlfriend’s two children. (T. Tr. 531-33); see also Turrentine I, 965 P.2d at 964.

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A medical examiner later confirmed that Ms. Stevenson, Ms. Richardson, Martise,

and Tina had all died from gunshot wounds to the head.

Mr. Turrentine was tried before a jury in Tulsa County District Court and

was convicted of four counts of first degree murder for the killings of Ms.

Richardson (count one), Martise (count two), Tina (count three), and Ms.

Stevenson (count four). At the penalty phase of the trial, the jury found that three

aggravating circumstances existed beyond a reasonable doubt as to counts one,

two, and three: 1) that the murders were especially heinous, atrocious, or cruel; 2)

that Mr. Turrentine knowingly created a great risk of death to more than one

person; and 3) that there existed a probability that Mr. Turrentine would

constitute a continuing threat to society. As a result, the jury returned sentences

of death for each of the first three counts. As to count four, the jury found two

aggravating circumstances beyond a reasonable doubt and returned a verdict of

life without the possibility of parole.

The Oklahoma Court of Criminal Appeals (“OCCA”) affirmed all four of

Mr. Turrentine’s convictions and sentences. Turrentine I, 965 P.2d 955. The

United States Supreme Court denied Mr. Turrentine’s petition for writ of

certiorari on December 14, 1998, Turrentine v. Oklahoma, 525 U.S. 1057 (1998),

and the OCCA denied post-conviction relief on July 17, 1998. Turrentine v.

State, 965 P.2d 985 (Okla. Crim. App. 1998) (“Turrentine II”). Mr. Turrentine

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then filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 in the

District Court for the Northern District of Oklahoma on August 23, 1999. App.

Doc 20.

The district court ruled on Mr. Turrentine’s petition on January 21, 2003.

The court granted the petition in part, but only as to the application of an

aggravating circumstance to the charge of murder in count two. Because the

district court found that striking this aggravator would not alter the punishment of

death, it denied habeas relief on both the convictions and the sentences. Dist. Ct.

Op. at 88. Mr. Turrentine filed a notice of appeal on January 31, 2003. The

district court granted a certificate of appealability on eight grounds: 1) an

improper jury instruction regarding the doctrine of transferred intent; 2) an

improper instruction on second degree murder; 3) an improper instruction

regarding a heinous, atrocious, or cruel aggravating circumstance; 4) the

sufficiency of the evidence to support a finding of the “heinous, atrocious, or

cruel” aggravating circumstance; 5) the sufficiency of the evidence to support a

finding of the “great risk of death to more than one person” aggravating

circumstance; 6) the trial court’s improper admission of victim impact evidence;

7) the trial court’s refusal to allow expert opinion for purposes of mitigation; and

8) a claim that the mitigating evidence outweighed the aggravating evidence. We

granted a certificate of appealability on two additional grounds: 9) alleged

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ineffective assistance of trial counsel; and 10) alleged ineffective assistance of

appellate counsel. We consider each of these issues in turn.

Discussion

I. Standard of Review

If a claim was adjudicated on the merits in state court, we review the state

court ruling under the deferential standard of the Antiterrorism and Effective

Death Penalty Act of 1996 (AEDPA). Under AEDPA, a petitioner is entitled to

federal habeas relief only if he can establish that the state court decision was

“contrary to, or involved an unreasonable application of, clearly established

Federal law, as determined by the Supreme Court of the United States,” or was

“based on an unreasonable determination of the facts in light of the evidence

presented in the State court proceeding.” 28 U.S.C. § 2254(d)(1)–(2); see also

Hale v. Gibson, 227 F.3d 1298, 1309 (10th Cir. 2000). In conducting this inquiry,

we presume the factual findings of the state trial and appellate courts are correct,

and we place on the petitioner the burden of rebutting this presumption by clear

and convincing evidence. 28 U.S.C. § 2254(e)(1); Darks v. Mullin, 327 F.3d

1001, 1007 (10th Cir. 2003). We review de novo the district court’s legal

analysis of the state court decision. Valdez v. Ward, 219 F.3d 1222, 1230 (10th

Cir. 2000).

In applying 28 U.S.C. § 2254(d), we first ask whether the principle of

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federal law invoked by the petitioner was clearly established by the Supreme

Court at the time of the state court judgment. Id. at 1229. If so, we ask whether

the state court decision was contrary to or involved an unreasonable application of

that clearly established federal law. Id. A decision is “contrary to” federal law

“if the state court applied a rule different from the governing law set forth in

[Supreme Court] cases, or if it decides a case differently than [the Supreme Court

has] done on a set of materially indistinguishable facts. Bell v. Cone, 535 U.S.

685, 694 (2002). A state court decision involves an “unreasonable application” of

federal law “if the state court correctly identifies the governing legal principle

from [Supreme Court] decisions but unreasonably applies it to the facts of the

particular case.” Id.

Finally, even if the state court adjudication was contrary to or involved an

unreasonable application of clearly established federal law, our inquiry is not

complete. Unless the error is a “structural defect[] in the constitution of the trial

mechanism, which def[ies] analysis by harmless-error standards,” Brecht v.

Adamson, 507 U.S. 619, 629 (1993), we must apply the harmless error standard of

Brecht and O’Neal v. McAninch, 513 U.S. 432 (1995). See Herrera v. Lemaster,

301 F.3d 1192, 1200 (10th Cir. 2002). Under Brecht, habeas relief is not proper

unless the error had a “substantial and injurious effect or influence in determining

the jury’s verdict.” 507 U.S. at 623. O’Neal addresses the situation where the

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court is in “grave doubt” about the likely effect of the error on the jury’s

verdict—that is, where “the matter is so evenly balanced that [the court] feels

[itself] in virtual equipoise as to the harmlessness of the error.” 513 U.S. at 435.

In such a case, O’Neal instructs the Court to treat the error “as if it had a

substantial and injurious effect or influence in determining the jury’s verdict.”

Id. (quoting Brecht, 507 U.S. at 623).

On issues where the state court has not previously heard a habeas claim on

the merits, the framework of § 2254 does not apply. Instead, we review the

district court’s legal conclusions de novo and its factual findings for clear error.

Mitchell v. Gibson, 262 F.3d 1036, 1045 (10th Cir. 2001). If the district court’s

factual findings depend entirely on the state court record, we independently

review that record. Walker v. Gibson, 228 F.3d 1217, 1225 (10th Cir. 2000), cert.

denied, 533 U.S. 933 (2001).

II. Issues for Review

A. First Stage Jury Instruction Issues

1) Due Process Violation Due to Improper Instruction on
Transferred Intent (Counts II – Martise Richardson – and III –
Tina Richardson)

Mr. Turrentine first argues that his right to due process under the

Fourteenth Amendment to the United States Constitution was violated because

the trial court improperly instructed the jury on the doctrine of transferred intent

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in its instructions on first degree murder. This alleged error pertains to Mr.

Turrentine’s convictions on counts two and three of his indictment for the

murders of Martise and Tina. See O.R. Vol. II, at 342-43.

The jury instructions issued by the Oklahoma trial court provided that in

order to convict Mr. Turrentine of first degree murder, the jury must find that

“the death was caused with malice aforethought.” Inst. No. 19, O.R. Vol. III

464. The court then instructed the jury that it could find “malice aforethought”

in cases of transferred intent—that is, where the defendant had “a deliberate

intent to take away the life of a human being or any other person.” Inst. 20, O.R.

Vol. III 465 (emphasis added). Apparently through carelessness, this instruction

omitted three words: the jury instructions should have referred to “a deliberate

intention to take away the life of a human being, either the deceased or some

other person.” OUJI-CR-428 (First Edition). Omission of the words “either the

deceased” rendered the instruction incoherent, implying that there exist “other

person[s]” who are not comprehended within the category of “human beings” but

who may nonetheless be victims of first degree murder. Mr. Turrentine argues

that this instruction constitutes double error: first, because the trial court altered

the instruction so that the jury was given an instruction with no basis in law;

second, because the court never should have instructed the jury on transferred

intent in the first place, as that doctrine was not applicable to the facts of his

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case. We regard such sloppiness in the preparation of jury instructions, which

apparently passed unnoticed by prosecution, defense, and trial court, disgraceful,

especially in a capital case, where scrupulous exactitude can make the difference

between life and death. But the question now is whether the error was harmless.

On direct appeal, the OCCA agreed with Mr. Turrentine that the doctrine

of transferred intent was not applicable to his case but found the error harmless.

Turrentine I, 965 P.2d at 967. Specifically, it found that because the weight of

the evidence “supported the findings of first degree malice aforethought murder,”

“[a]ny error in instructing the jury on the law of transferred intent was harmless.”

Id. Thus, “[Mr. Turrentine] has failed to show any prejudice.” Id.

In so concluding, the OCCA applied the wrong harmless error standard.

The proper harmless error standard is that of Chapman v. California, 386 U.S.

18, 24 (1967), under which “the beneficiary of a constitutional error [must] prove

beyond a reasonable doubt that the error complained of [was harmless].” The

OCCA’s harmless error analysis, on the other hand, placed on the petitioner the

burden of demonstrating prejudice. Turrentine I, 965 P.2d at 967 (“Appellant

has failed to show any prejudice.”). This decision, therefore, was contrary to

clearly established federal law. Bell, 535 U.S. at 694 (habeas court “may issue

the writ under the ‘contrary to’ clause if the state court applies a rule different

from the governing law set forth in [Supreme Court] cases”).

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 That the OCCA decision was contrary to clearly established federal law,

however, is not a sufficient basis for granting habeas relief. We still must

conduct our own harmless error analysis under Brecht, asking whether the

underlying error in the trial court had a “substantial and injurious effect or

influence in determining the jury’s verdict.” 507 U.S. at 623. In other words,

when a state court fails to apply the proper harmless error standard under

Chapman (whether the error was harmless “beyond a reasonable doubt”), the

reviewing federal court must evaluate the trial court error under the Brecht

standard (whether the error had a “substantial and injurious effect or influence in

determining the jury’s verdict”). See Hale, 227 F.3d at 1324-25.

Furthermore, the Supreme Court has offered specific guidance on the issue

of incorrect jury instructions. In Estelle v. McGuire, 502 U.S. 62, 71-72 (1991),

the Court noted that “the fact that [a jury] instruction was allegedly incorrect

under state law is not a basis for habeas relief.” Instead, the appropriate question

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

trial that the resulting conviction violates due process.” Id. at 72; see also Hale,

227 F.3d at 1324. In making this determination, the court must view the

instruction “in the context of the instructions as a whole and the trial record.”

Id. Thus, our inquiry is not only whether the error had a “substantial and

injurious effect or influence in determining the jury’s verdict,” Brecht, 507 U.S.

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at 623, but also “whether the ailing instruction by itself so infected the entire

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

72.

The district court applied the harmless error analysis of Brecht and denied

habeas relief on counts two and three. After reviewing the evidence presented on

the issue of intent, the court found, under reasoning similar to the OCCA’s, that

ample evidence supported the conclusion that Mr. Turrentine intended to kill his

victims. Therefore, the court concluded, the incorrect instruction “did not

substantially influence the outcome of the trial, and certainly did not ‘so infect

the entire trial’ that the resulting convictions . . . violated [Mr. Turrentine’s] due

process rights.” Dist. Ct. Op. 21, citing McGuire, 502 U.S. at 71.

We agree. In spite of any confusion that might have been caused by the

instruction, the instruction does require the element of a deliberate intent to take

away the life of a human being. In addition to Mr. Turrentine’s own confession,

which the jury heard on the 911 tape, they also heard the testimony of three

officers who were with Mr. Turrentine at the scene immediately after the

murders, and who testified that Mr. Turrentine confessed to killing Martise and

Tina. (Tr. Tr. Vol. III, 534; Vol. VI, 1016; Vol. IV, 613.) The jury also heard

from a medical expert who testified that both of these victims died of a close

range gunshot wound to the head, thus negating a possible factual finding that

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Mr. Turrentine was attempting to kill someone else with each of his shots. (Id.

Vol. IV 696-707, 725.) Indeed, the most probable effect of the defective

instruction was to eliminate an alternate ground for conviction—transferred

intent—from the jury’s consideration by rendering it unintelligible. That could

only help, not hurt, the defendant—though on the facts of this case, as the

district court held, it almost certainly had no effect at all. Thus, when viewed in

the context of all of the instructions and the entire trial record, we cannot find

that Instruction 20 had a “substantial and injurious effect or influence in

determining the jury’s verdict,” Brecht, 507 U.S. at 623; nor did the instruction

result in a violation of Mr. Turrentine’s due process rights. McGuire, 502 U.S.

at 72. The district court was therefore correct to deny habeas relief on this issue.

2) Improper Instruction on Second Degree Murder (Counts II –
Martise Richardson – and III – Tina Pennington)

More serious is Mr. Turrentine’s argument that the Oklahoma trial court

violated his Fourteenth Amendment right to due process when it improperly

instructed the jury on second degree murder for counts two and three. Mr.

Turrentine requested and was granted an instruction on second degree murder.

As explained below, the trial court gave an incorrect instruction—indeed, an

instruction that meant the opposite of what it should have said. Defense counsel

did not object to the erroneous instruction. (T. Tr., Vol. V. at 900-01.) On

review, the state appellate court addressed the issue on the merits and found the

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alleged error harmless, Turrentine I, 965 P.2d at 967-68, as did the district court.

Dist. Ct. Op. 25.

The jury instruction in question, No. 23, reads:

A person may not be convicted of MURDER IN THE SECOND
DEGREE if he/she engages in conduct imminently dangerous to
another person that shows a depraved mind in extreme disregard of
human life, although the conduct is not done with the intention of
taking the life of or harming any particular individual.

(emphasis added). The italicized word “not” should not have been included. Mr.

Turrentine argues that the mistaken inclusion of the word “not” negated the

instruction and thus deprived him of his right to be considered for a lesser

included offense. In effect, he argues, Jury Instruction No. 23 actually

commanded the jury to find him guilty of first degree murder or to acquit.

The OCCA agreed that the instruction on second degree murder was in

error, but found it harmless. The OCCA concluded:

In this case, the jury was instructed to consider the second degree
murder instructions only if it found a reasonable doubt as to the
defendant’s guilt of first degree murder. It is well established that
juries are presumed to follow their instructions. As the jury found
Appellant guilty of first degree murder in all counts, they did not
need to consider the charge of second degree murder and the
accompanying instructions. Therefore, any error in those second
degree murder instructions was harmless as it did not have a
substantial influence on the outcome of the trial.

Turrentine I, 965 P.2d at 968 (citations omitted). The district court reviewed this

claim de novo because the OCCA again failed to apply the Chapman standard;

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but, applying Brecht, the district court again denied relief. The district court

reasoned, as did the OCCA, that because the jury found Mr. Turrentine guilty of

first degree murder on all counts, it did not need to reach the issue of second

degree murder, and that therefore the error was harmless.

Because the OCCA applied a harmless error standard different from that of

Chapman, we must consider whether the ailing instruction had a “substantial and

injurious effect or influence in determining the jury’s verdict.” Brecht, 507 U.S.

at 623. We are also mindful that our review must consider the ailing instruction

“in the context of the instructions as a whole and the trial record” when deciding

whether the instruction so infected the trial that Mr. Turrentine’s conviction

violates due process. McGuire, 502 U.S. at 72. Instruction No. 22, which

preceded the erroneous second degree murder instruction, reads: “If you have a

reasonable doubt of the defendants’ [sic] guilt on the charge of MURDER IN

THE FIRST DEGREE, you must then consider the charge of SECOND DEGREE

MURDER.” (emphasis added). It may stand to reason that the erroneous

instruction, No. 23, is harmless because there was no indication that the jury

would have had any reason to move beyond Instruction 22 to No. 23. However, a

reading of the ailing instruction in the context of the proceedings as a whole

might also suggest that the jury, after reading all of the instructions, would have

concluded that it could not find Mr. Turrentine guilty of second degree murder

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even if it found that all of the elements of that offense were present in his case.

Mr. Turrentine had, after all, introduced evidence to the effect that he murdered

Martise and Tina in the heat of the moment, and that his capacity was diminished

at the time of the murders due to his consumption of a combination of anti-

depressant medication, anti-anxiety medication, and a large measure of

alcohol—including at least a half bottle of vodka. Juries are presumed to follow

their instructions. Zafiro v. United States, 506 U.S. 534, 540-41 (1993); United

States v. Carter, 973 F.2d 1509, 1513 (10th Cir. 1992). In this case, if the jury

followed Instruction 23, it would conclude that the defendant could “not” be

convicted of second degree murder even if all the legal prerequisites for such a

conviction were present. This is the equivalent of instructing the jury that no

second degree murder alternative was available—that it was first degree murder

or nothing.

The approach to this issue taken by the district court and the OCCA is

inconsistent with the logic of the Supreme Court cases requiring a lesser offense

instruction in cases where the facts so warrant. As the Court has explained:

True, if the prosecution has not established beyond a reasonable
doubt every element of the offense charged, and if no lesser offense
instruction is offered, the jury must, as a theoretical matter, return a
verdict of acquittal. But a defendant is entitled to a lesser offense
instruction—in this context or any other—precisely because he
should not be exposed to the substantial risk that the jury’s practice
will diverge from theory. Where one of the elements of the offense
charged remains in doubt, but the defendant is plainly guilty of some

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 offense, the jury is likely to resolve its doubts in favor of conviction.

Keeble v. United States, 412 U.S. 205, 212-13 (1973); see also United States v.

Chanthadara, 230 F.3d 1237, 1257 (10th Cir. 2000), citing Beck v. Alabama, 447

U.S. 625, 635 (1980) (“In the federal courts, it has long been beyond dispute that

the defendant is entitled to an instruction on a lesser included offense if the

evidence would permit a jury rationally to find him guilty of the lesser offense

and acquit him of the greater.”) (internal quotation omitted). This is especially

true when a defendant faces a capital sentence. As the Court stated in Beck:

[W]hen the evidence unquestionably establishes that the defendant is
guilty of a serious, violent offense—but leaves some doubt with
respect to an element that would justify conviction of a capital
offense—the failure to give the jury the “third option” of convicting
on a lesser included offense would seem inevitably to enhance the
risk of an unwarranted conviction.
Such a risk cannot be tolerated in a case in which the defendant’s
life is at stake. As we have often stated, there is a significant
constitutional difference between the death penalty and lesser
punishments:
“[D]eath is a different kind of punishment from any
other which may be imposed in this country . . . . From
the point of view of the defendant, it is different in both
its severity and its finality. From the point of view of
society, the action of the sovereign in taking the life of
one of its citizens also differs dramatically from any
other legitimate state action. It is of vital importance to
the defendant and to the community that any decision to
impose the death sentence be, and appear to be, based on
reason rather than caprice or emotion.” Gardner v.
Florida, 430 U.S. 349, 357-58 . . . (opinion of
STEVENS, J.).
To insure that the death penalty is indeed imposed on the basis of
“reason rather than caprice or emotion,” we have invalidated

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 procedural rules that tended to diminish the reliability of the
sentencing determination. The same reasoning must apply to rules
that diminish the reliability of the guilt determination. Thus, if the
unavailability of a lesser included offense instruction enhances the
risk of an unwarranted conviction, [the States are] constitutionally
prohibited from withdrawing that option from the jury in a capital
case.

447 U.S. at 637-38 (footnotes omitted). Beck thus holds that those facing capital

punishment are entitled to have the jury instructed on a lesser included offense

when the evidence so warrants. The second degree murder instruction was

warranted in this case because, as noted above, Mr. Turrentine presented

substantial evidence of his own diminished capacity at the time of the murders.

Inclusion of the word “not” in the instruction for second degree murder,

however, deprived Mr. Turrentine of the benefit of this instruction, just as surely

as if the motion for a lesser offense instruction had been denied. Under Beck,

this necessarily had a “substantial and injurious effect or influence in

determining the jury’s verdict,” Brecht, 507 U.S. at 623; and we conclude that it

“so infected the entire trial that the resulting conviction violates due process.”

McGuire, 502 U.S. at 72. 1

1
Although we rejected a similar Beck claim in Willingham v. Mullin, 296
F.3d 917 (10th Cir. 2002), there, the State of Oklahoma argued that, under
Oklahoma law, second degree murder was not a lesser included offense of first
degree murder and therefore Beck was inapplicable. See Hopkins v. Reeves, 524
U.S. 88 (1998) (Beck is not violated when a state court refuses to instruct on an
offense that, under state law, is not a lesser included offense of first degree
murder.). The State of Oklahoma has made no such argument here; any argument
(continued...)

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 It should not be necessary for this Court to point out the seriousness of

accurate jury instructions, especially in capital cases. When a man is on trial for

his life, dependent on a jury of his peers, it is not too much to ask that

prosecution, defense counsel, and most importantly, trial court be alert to errors

that could impede the jury in doing its duty. The mistake in this case, inclusion

of the word “not,” which turned the intended instruction into its opposite, was

undoubtedly inadvertent. Apparently, no one even noticed it at trial. But we

cannot presume, for purposes of harmless error review, that the jury disregarded

its instructions. Our system is based on the opposite presumption. If, as the

Supreme Court held in Beck, a defendant is entitled to a lesser offense

instruction, he is entitled to one without the distorting word “not.” The error

here is sufficiently plain and sufficiently egregious to necessitate habeas relief

even though it went unnoticed at trial and was held harmless on state court

review. We therefore reverse the district court’s decision on this challenge and

grant Mr. Turrentine’s petition for writ of habeas corpus on counts two and three.

Our ruling on this issue, however, does not disturb Mr. Turrentine’s capital

sentence for count one.

1
(...continued)
it might have had on this basis has therefore been waived. Abercrombie v. City of
Catoosa, Okl., 896 F.2d 1228, 1231 (10th Cir. 1990) (failure to argue issue in
appellate brief or at oral argument constitutes waiver).

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 B. Second Stage Trial Issues Regarding Aggravating Factors

Mr. Turrentine next challenges allegedly improper jury instructions at the

penalty phase of his trial. He also argues that the evidence at trial was

insufficient to support two of the three aggravating circumstances that formed

the basis of his capital sentences. Because we have already granted a writ of

habeas corpus on counts two and three, these charges of error are relevant only to

Mr. Turrentine’s remaining capital sentence for count one (Ms. Richardson). Mr.

Turrentine presented these claims to both the OCCA and the district court and

was denied relief.

Before the imposition of a death sentence in Oklahoma, the sentencing

court must find beyond a reasonable doubt the existence of at least one

statutorily defined aggravating factor, and then must further determine that the

applicable aggravating factors outweigh any mitigating circumstances. See Okla.

Stat. tit. 21, § 701.11. At the penalty phase of Mr. Turrentine’s proceedings, the

prosecution attempted to prove three aggravating circumstances in an effort to

secure a death sentence on each of the four murder verdicts. The alleged

aggravating circumstances were these: 1) that the murders of the victims were

especially heinous, atrocious, or cruel; 2) that Mr. Turrentine knowingly created

a great risk of death to more than one person; and 3) that there existed a

probability that Mr. Turrentine would commit acts of violence constituting a

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continuing threat to society. See T. Tr., Vol. VI 960-61. In response, Mr.

Turrentine presented mitigating evidence, seeking to avoid a sentence of death.

Nevertheless, the jury found the existence of all three aggravating circumstances

beyond a reasonable doubt for the first three murder counts, recommending a

sentence of death for each count. (T. Tr. Vol. VII 1247-50.) On count four, the

jury found the existence of two aggravating circumstances and recommended a

sentence of life without the possibility of parole. The Oklahoma trial court

sentenced Mr. Turrentine according to these recommendations.

Mr. Turrentine argues that because the trial court omitted relevant

language from the instruction on the “heinous, atrocious, or cruel” aggravating

circumstance, the instruction was constitutionally deficient. He also argues that

the evidence failed to support the jury’s finding of this aggravating factor and

the factor that he knowingly created a great risk of death to more than one

person.

1) Improper Jury Instruction on the “Especially Heinous,
Atrocious, or Cruel” Aggravating Circumstance (Count I –
Ms. Richardson)

Mr. Turrentine argues that the trial court violated his Eighth and

Fourteenth Amendment rights when it omitted the word “physical” from the last

sentence of the jury instruction on the “heinous, atrocious, or cruel” aggravating

circumstance. As presented to the jury, Instruction No. 35 stated the following:

-22-
 As used in these instructions, the term “heinous” means extremely
wicked or shockingly evil; “atrocious” means outrageously wicked
and vile; “cruel” means pitiless, or designed to inflict a high degree
of pain, utter indifference to, or enjoyment of, the sufferings of
others.

The phrase “especially heinous, atrocious, or cruel” is directed to
those crimes where the death of the victim was preceded by torture of
the victim or serious abuse.

(O.R. Vol. III at 430) (emphasis added). Under Oklahoma law, the word

“physical” should have appeared between the words “serious” and “abuse” in the

last sentence of the second paragraph of the instruction. See Turrentine I, 965

P.2d at 975. Omission of the word “physical” was an error of state law.

Disturbing though it may be that prosecution, defense counsel, and trial court all

overlooked yet another error in the jury instructions—for an astonishing total of

three such errors—a federal court under § 2254 may not grant relief unless there

was an error of federal law, in other words, unless this error amounted to a

violation of the federal constitution. Mr. Turrentine argues that this instruction,

as given, failed to sufficiently narrow the discretion of the sentencer and was

therefore unconstitutionally vague.

In order to comply with the dictates of the Eighth Amendment, an

aggravating factor must “minimiz[e] the risk of wholly arbitrary and capricious

action” by “channeling and limiting . . . the sentencer’s discretion in imposing

the death penalty.” Maynard v. Cartwright, 486 U.S. 356, 362 (1988); Romano

-23-
v. Gibson, 239 F.3d 1156, 1175 (10th Cir. 2001). “It must provide a principled

means by which a sentencer can distinguish between those murders warranting a

death sentence and those that do not.” Romano, 239 F.3d at 1175 (citing

Maynard, 486 U.S. at 363).

Both the OCCA and the district court concluded that the jury instruction at

issue satisfied this constitutional standard, and that any error in the omission of

the word “physical” was harmless. The OCCA held the error harmless because it

found that “[t]he term ‘serious abuse’ controls the standard of proof, and that

term was given to the jury.” See Turrentine I, 965 P.2d at 975. Furthermore, the

court noted, the evidence at trial focused more on the torture aspect of the

aggravating factor than the physical abuse aspect. Thus, the error was harmless

because it “did not lessen the standard of proof and . . . could have had no impact

on the sentencing decision.” Id. The district court denied relief for essentially

the same reasons, although it noted that the OCCA did not directly cite federal

law and, out of an abundance of caution, applied the harmless error standard of

Brecht. Dist. Ct. Op. 31-33.

We, too, apply the harmless error standard of Brecht—asking whether the

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

verdict—because the OCCA again conducted a harmless error analysis different

from that set forth by the Supreme Court in Chapman. Our inquiry is simpler,

-24-
however, because this Court has already addressed this precise issue. In Miller

v. Mullin, 354 F.3d 1288, 1299-1300 (10th Cir. 2004), we held that the phrase

“serious abuse,” without an additional modifier requiring that it be “physical,”

“still performed its required narrowing function and imposed restraint upon the

sentencer.” Moreover, in this case, given that Ms. Richardson struggled enough

to call 911, and that Mr. Turrentine told Ms. Richardson that he was going to kill

her children before he murdered her, there was ample evidence on the basis of

which a factfinder could conclude that the “torture” element was present, even

without considering whether there was “serious abuse,” physical or otherwise.

We therefore cannot conclude that the ailing instruction had a “substantial and

injurious effect or influence in determining the jury’s verdict,” Brecht, 507 U.S.

at 623, or that the instruction “so infected the entire trial that the resulting

conviction violates due process.” McGuire, 502 U.S. at 72. Habeas relief on this

issue is accordingly denied.

2) Insufficient Evidence on Aggravating Circumstance
Regarding “Especially Heinous, Atrocious, or Cruel” Conduct

Mr. Turrentine claims that there was insufficient evidence at trial to

support a finding of the “especially heinous, atrocious, or cruel” aggravating

circumstance. At trial, the jury found the aggravator applicable to the first three

murder counts—Ms. Richardson and her two children, Martise and Tina. Again,

because we have already granted habeas relief as to counts two and three, we

-25-
consider this issue only as it applies to the murder of Ms. Richardson, the basis

of count one.

When reviewing the sufficiency of the evidence on a habeas corpus

petition, the relevant question is “whether, after viewing the evidence in the light

most favorable to the prosecution, any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia,

443 U.S. 307, 319 (1979). This standard reflects our system’s longstanding

principle that it is the jury’s province to weigh the evidence and to draw

reasonable inferences from testimony presented at trial. Id. Our review under

this standard is “‘sharply limited[,]’ and a court ‘faced with a record of historical

facts that supports conflicting inferences must presume—even if it does not

affirmatively appear in the record—that the trier of fact resolved any such

conflicts in favor of the prosecution, and must defer to that resolution.’” Messer

v. Roberts, 74 F.3d 1009, 1013 (10th Cir. 1996), quoting Wright v. West, 505

U.S. 277, 296-97 (1992).

Because the Oklahoma courts rejected Mr. Turrentine’s claim on the

merits, we again look to AEDPA for the appropriate degree of deference to the

state court decision. This Court has not yet settled whether a challenge to the

sufficiency of the evidence on a habeas petition is a question of fact or a

question of law, and therefore whether 28 U.S.C. § 2254(d)(1) or § 2254(d)(2)

-26-
applies. See Moore v. Gibson, 195 F.3d 1152, 1176-77 (10th Cir. 1999)

(surveying a split in the case law); Torres v. Mullin, 317 F.3d 1145, 1151 (10th

Cir. 2003) (noting that the issue remains unsettled). Section 2254(d)(1) governs

questions of law and requires us to determine whether the state court decision

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

Federal law.” Section 2254(d)(2) applies to questions of fact and asks whether

the state court decision was “based on an unreasonable determination of the facts

in light of the evidence presented.” Once again, however, “we need not decide

this question here because [Mr. Turrentine] is not entitled to habeas relief under

either standard.” Dockins v. Hines, 374 F.3d 935, 939 (10th Cir. 2004).

When applying the Supreme Court’s standard in Jackson, we look to

Oklahoma law to determine the substantive elements of the “heinous, atrocious,

or cruel” aggravating circumstance. Valdez v. Bravo, 373 F.3d 1093, 1097 (10th

Cir. 2004). As noted above, under Oklahoma law this aggravating factor

“requires proof that the death was preceded by torture or serious physical abuse.”

Turrentine I, 965 P.2d at 976. The OCCA has determined that the “torture”

element of this aggravating factor “may take any of several forms”:

Torture may include the infliction of either great physical anguish or
extreme mental cruelty. . . . [It] must be the result of intentional acts
by the defendant . . . [and] must produce mental anguish in addition
to that which of necessity accompanies the underlying killing.
Analysis must focus on the acts of the defendant toward the victim
and the level of tension created. The length of time which the victim

-27-
 suffers mental anguish is irrelevant.

Berget v. State, 824 P.2d 364, 373 (Okla. Crim. App. 1991). The OCCA has also

stated that there are no “specific, uniform criteria, applicable to all murder cases,

which would make the application of the ‘heinous, atrocious or cruel’ aggravator

a mechanical procedure.” Robinson v. State, 900 P.2d 389, 401 (Okla. Crim.

App. 1995). “Rather, the examination of the facts of each and every case is

necessary in determining whether the aggravator was proved.” Id. This rule

necessarily makes the determination a case by case inquiry. See id.

The OCCA found sufficient evidence in Mr. Turrentine’s case to support

the “heinous, atrocious or cruel” aggravator. The court focused on the “torture

aspect” of the aggravator, noting that it “may include the infliction of either great

physical anguish or extreme mental cruelty.” Turrentine I, 965 P.2d at 976. It

then concluded that

[Mr. Turrentine’s] own statements provide the basis for a finding of
this aggravator as it pertains to Count I (Anita Richardson). [His]
statements indicate that he shot Anita first, then Martise and lastly
Tina. [He] stated an argument with Anita ensued at the front door,
they worked their way to the rear bedroom, where they struggled and
[he] told her she and her children were going to die. He then shot
her once in the head. . . . [W]e find Appellant’s conduct and threats
sufficient to cause in Anita the extreme mental anguish necessary to
support the mental torture aspect of this aggravator.

Turrentine I, 965 P.2d at 976. The district court denied habeas relief for

essentially the same reasons.

-28-
 Our own review of the evidence confirms the conclusions of the OCCA

and the district court. Before the jury were facts of a struggle and a direct

statement by Mr. Turrentine that, prior to shooting Ms. Richardson in the head,

he told her that he would kill her children. Furthermore, the evidence at trial

demonstrated that Ms. Richardson pleaded with Mr. Turrentine, “Kenneth, no, no

. . . ,” right before he shot her. (State’s Exhibit #17; T. Tr., Vol. V 838.) In

light of these facts, and “after viewing the evidence in the light most favorable to

the prosecution,” we conclude that “[a] rational trier of fact could have found the

[presence of the aggravating factor] beyond a reasonable doubt.” Jackson, 443

U.S. at 319. The OCCA’s decision, therefore, was neither contrary to nor an

unreasonable application of Jackson; nor was it based on an unreasonable

determination of the facts in light of the evidence presented. 28 U.S.C. §

2254(d)(1)–(2). Habeas relief on this ground is accordingly denied.

3) Insufficient Evidence on Aggravating Circumstance
Regarding “Knowingly Created a Great Risk of Death to More
than One Person”

Mr. Turrentine next argues that the evidence adduced at trial was

insufficient to support the jury’s finding of the “great risk of death to more than

one person” aggravator. Doc. 22, 137-39. Again, we consider this claim only as

it applies to count one, the murder of Ms. Richardson; and again we ask

“whether, after viewing the evidence in the light most favorable to the

-29-
prosecution, any rational trier of fact could have found the [presence of the

aggravating factor] beyond a reasonable doubt.” Jackson, 443 U.S. at 319.

Oklahoma law furnishes the substantive elements of the “great risk of

death to more than one person” aggravator, see Valdez, 373 F.3d at 1097, and

makes clear that “killing more than one person is sufficient to support this

aggravating circumstance.” Hooker v. State, 887 P.2d 1351, 1364 (Okla. Crim.

App. 1994). This principle is well settled under Oklahoma law. See Torres v.

State, 962 P.2d 3, 25 (Okla. Crim. App. 1998); Hain v. State, 919 P.2d 1130,

1147 (Okla. Crim. App. 1996); Cargle v. State, 909 P.2d 806, 831 (Okla. Crim.

App. 1995); Stafford v. State, 853 P.2d 223, 225 (Okla. Crim. App. 1993);

Sellers v. State, 809 P.2d 676, 691 (Okla. Crim. App. 1991).

Accordingly, the OCCA found that the aggravator was sufficiently

supported by the “evidence of [Mr. Turrentine] shooting and killing three people

in the same home.” Turrentine I, 965 P.2d at 978. The district court denied

habeas relief on the same grounds, and we agree. If the “great risk of death”

aggravator is satisfied where the defendant has killed more than one person, then

it is obvious in Mr. Turrentine’s case that “[a] rational trier of fact could have

found the [presence of the aggravating factor] beyond a reasonable doubt.”

Jackson, 443 U.S. at 319.

In response, Mr. Turrentine argues that the “great risk of death” aggravator

-30-
requires “[s]omething more” than a showing that the defendant intentionally

murdered several victims. Appellant’s Br. at 91. In fact, he argues, unless this

aggravator requires something more—Mr. Turrentine makes no attempt to define

what “something more” might be—it is unconstitutional as applied to his case

because it fails to adequately narrow the discretion of the sentencer. “Otherwise,

every defendant charged with two or more homicides immediately becomes

eligible for the death penalty for each offense in violation of the Eighth and

Fourteenth Amendments.” Id.

We have rejected this argument before. In Cartwright v. Maynard, 802

F.2d 1203, 1221-22 (10th Cir. 1986), we held that there was “no constitutional

infirmity” in Oklahoma’s application of the “great risk of death” aggravator,

citing a string of Oklahoma cases that upheld the aggravator based on the mere

fact that the defendant killed more than one victim. Id.; see also Brecheen v.

Reynolds, 41 F.3d 1343, 1360-61 (10th Cir. 1994); Ross v. Ward, 165 F.3d 793,

800-01 (10th Cir. 1999). In Brecheen, we further explained that the aggravator

sufficiently narrows the discretion of the sentencer because it “cannot reasonably

be said to apply to every defendant convicted of murder”—on the contrary, it

“only applies to a defined and limited subclass of murderers, namely, those

where the defendant’s conduct not only resulted in murder, but also posed a

significant risk of death to other individuals.” Brecheen, 41 F.3d at 1360. We

-31-
are bound by these precedents and therefore reject Mr. Turrentine’s assertion of

the same constitutional argument here.

In sum, we find that the “great risk of death” aggravator, as applied to Mr.

Turrentine, complies with the Constitution. We also find sufficient evidence to

support the aggravator under Jackson. We therefore refuse to grant habeas relief

under either 28 U.S.C. § 2254(d)(1) or 28 U.S.C. § 2254(d)(2).

C. Other Evidentiary Issues

1) Improper Admission of Victim Impact Evidence

Mr. Turrentine claims that the testimony of Jerry Richardson, Ms.

Richardson’s husband and the father of Martise and Tina, which was offered as

victim impact testimony during the second stage of the trial, violated his right to

due process under the Fourteenth Amendment. The OCCA denied this claim of

error on direct appeal, Turrentine I, 965 P.2d at 980-82, and the district court

denied habeas relief on the same claim. Dist. Ct. Op. 51-55.

Mr. Richardson read his victim impact statement to the jury toward the end

of the State’s case in the second stage proceeding. He began: “I’m Jerry

Richardson, Martise’s father, Tina’s father, and Anita’s husband. I, Jerry

Richardson, am here today to represent my family, Anita, Tina and Martise, who

met with an untimely death on June 4th, 1994. They were shot in the head.” (T.

Tr., Vol. VI, 1005.) At this point, Mr. Turrentine’s counsel objected that the

-32-
statement was characterizing the crime, in violation of Payne v. Tennessee, 501

U.S. 808 (1991). The trial court overruled the objection, and Mr. Richardson

continued: “They were shot in the head, a tragic and wrongful death. Anita

Richardson, my wife, was shot in the back of the head, while on the phone with

911. Martise Richardson, age 13, was shot in the forehead while protecting his

mother. This was a brutal murder for no reason.” (T. Tr., Vol. VI, 1006.)

Defense counsel again objected to the testimony as a violation of Payne, and the

court again overruled. Mr. Richardson then described each victim and the effect

of their death on him and other family members, concluding with a request that

the jury “let justice be done.” (T. Tr., Vol. VI, 1008.) The following then

transpired:

MR. RICHARDSON: Please let justice be done –

MR. ROWAN: [defense counsel] Your Honor, objection. May I
approach the bench?

THE COURT: All right. (The following proceedings were conducted
at the bench, out of the hearing of the jury.)

MR. PRIDDY: [prosecutor] Judge, this is his statement, just that
justice be - -

MR. ROWAN: Your Honor, the comment let justice be done is
nothing but a blatant request for the death penalty, nothing but a
blatant request for the death penalty, and I object and move for a
mistrial.

THE COURT: What’s your response?

-33-
 MR. PRIDDY: Judge, it’s no request for any form of punishment.
It’s just a request that justice be done.

THE COURT: All right. I’ll overrule it. (The following proceedings
were conducted within the hearing of the jury.)

MR. PRIDDY: Please continue Mr. Richardson.

MR. RICHARDSON: Thank you. Please let justice be done in the
murders of my family, the murders of our family, Anita, Tina and
Martise. I only dream and hope today is [sic] that the truth will come
out and that justice will prevail, then maybe our family can rest in
peace.

Id. at 1008-09.

Mr. Turrentine asserts three basic flaws in Mr. Richardson’s victim impact

testimony: 1) the statement improperly characterized the murders, 2) the call to

“let justice be done” should have been excluded as “a thinly veiled

recommendation of the death sentence,” and 3) the trial court should have

instructed the jury on how it could use the victim impact statement in its

sentencing decision. Appellant’s Br. at 99-100. These flaws, he argues,

rendered the sentencing hearing so fundamentally unfair that the resulting

sentence violates due process. This argument is based on Payne, where the

Supreme Court overruled portions of its decisions in Booth and South Carolina v.

Gathers, 490 U.S. 805 (1989), and held that the Eighth Amendment erects no per

se bar to victim impact evidence. 501 U.S. at 827. The Court acknowledged that

“[a] State may legitimately conclude,” as Oklahoma has, see Okla. Stat. tit. 21, §

-34-
701.10(c) (1992), “that evidence about the victim and about the impact of the

murder on the victim’s family is relevant to the jury’s decision as to whether or

not the death penalty should be imposed.” Id. In most cases, such evidence

“serves entirely legitimate purposes.” Id. at 825. But in some cases, victim

impact evidence is “so unduly prejudicial that it renders the trial fundamentally

unfair” in violation of the due process clause of the Fourteenth Amendment. Id.

Mr. Turrentine argues that this is “exactly what transpired in his case.”

Appellant’s Br. at 101. 2

This argument requires us to determine whether Mr. Richardson’s

testimony was “so unduly prejudicial that it render[ed] the [sentencing hearing]

fundamentally unfair.” Payne, 501 U.S. at 825. Because the OCCA rejected this

claim on the merits, however, our review is limited to the question of whether its

decision was contrary to or involved an unreasonable application of Payne. 28

2
Mr. Turrentine does not argue that the victim impact statement violates the
Eighth Amendment as interpreted by the Supreme Court in Booth v. Maryland,
482 U.S. 496 (1987). Booth held—and the Supreme Court’s subsequent decision
in Payne left undisturbed, see Hain v. Gibson, 287 F.3d 1224, 1238-39 (10th Cir.
2002)—that “the admission of a victim’s family members’ characterizations and
opinions about the crime, the defendant, and the appropriate sentence violates the
Eighth Amendment.” Payne, 501 U.S. at 830 n. 2. Had Mr. Turrentine argued
that Mr. Richardson’s testimony violated Booth in addition to Payne, we would
need to determine whether the OCCA’s decision was contrary to or involved an
unreasonable application of Booth and, if so, whether the error was harmless. See
Hooper v. Mullin, 314 F.3d 1162, 1174 (10th Cir. 2002). But since Mr.
Turrentine has not advanced this argument, we need not address it. Abercrombie,
896 F.2d at 1231.

-35-
U.S.C. § 2254(d)(1). We conclude, as did the district court, Dist. Ct. Op. 51-55,

that it was not.

Particularly instructive on this issue is our decision in United States v.

Chanthadara, 230 F.3d 1237, 1274 (10th Cir. 2000). There, the jury heard

victim impact statements from the victim’s husband and two children, ages seven

and ten. Id. at 1274. The husband supplied the jury with numerous color photos

of the victim while she was alive, and the two children ended their testimony in

tears. Id. After the sentencing hearing, in the jury room, the jury viewed letters

the children had written to their dead mother and a daily journal describing one

child’s loss. Id. In spite of the inflammatory nature of this evidence, we

concluded that the evidence was not so prejudicial as to render the proceeding

fundamentally unfair. Id. In this case, compared to Chanthadara, the jury heard

substantially less victim impact evidence, and the evidence it did hear was less

emotionally charged. Mr. Richardson’s isolated comment that the murder of

Martise was “brutal,” while likely improper, was not so inflammatory as to

render the sentencing proceeding fundamentally unfair. Nor was the enigmatic

request to “let justice be done” or the lack of a special instruction on victim

impact evidence enough to tip the scales. We therefore conclude that the

OCCA’s decision was neither contrary to nor involved an unreasonable

application of Payne and, accordingly, deny habeas relief on this issue.

-36-
 2) Improper Refusal to Allow Mitigating Evidence Regarding
State of Mind

Mr. Turrentine next argues that the trial court violated his Fifth, Sixth,

Eighth, and Fourteenth Amendment rights by excluding certain mitigating

evidence from the sentencing stage of his trial. Specifically, Mr. Turrentine

sought to introduce the expert testimony of one Dr. Smith, who would have

testified to Mr. Turrentine’s diminished capacity at the time of the murders.

Although the trial court admitted similar evidence at the guilt stage of the trial, it

excluded Mr. Smith’s testimony from the sentencing stage. Mr. Turrentine now

claims that the exclusion of this mitigating evidence was improper under Eddings

v. Oklahoma, 455 U.S. 104, 113-14 (1982), which held that sentencing courts

may not “refuse to consider, as a matter of law, . . . relevant mitigating

evidence.” (emphasis omitted)

As Mr. Turrentine concedes, however, Reply Br. at 16-18, this claim is

procedurally barred because it was not raised on direct appeal. We may consider

it only if Mr. Turrentine can demonstrate either “cause for the default and actual

prejudice resulting from the alleged violation of federal law,” or, alternatively,

“that failure to consider the claim[] will result in a fundamental miscarriage of

justice.” Coleman v. Thompson, 501 U.S. 722, 750 (1991).

Mr. Turrentine argues that the “cause for the default” was his appellate

counsel’s ineffective assistance in failing to appeal the evidentiary issue. See

-37-
Ellis v. Hargett, 302 F.3d 1182, 1186 (10th Cir. 2002) (“A showing that a

defendant received ineffective assistance of counsel will establish cause excusing

a procedural default.”). Ineffective assistance claims are governed by the

familiar two-part test of Strickland v. Washington, 466 U.S. 668 (1984), under

which the petitioner “must establish that (1) counsel’s performance fell below an

objective standard of reasonableness and (2) there is a reasonable probability

that, but for counsel’s errors, the outcome of the proceedings would have been

different.” Hain, 287 F.3d at 1231. Application of Strickland requires us to

“look to the merits of the omitted issue.” Id. But before we look to the merits,

we note that the OCCA has already addressed Mr. Turrentine’s claim of

ineffective assistance of appellate counsel. Turrentine II, 965 P.2d at 990.

AEDPA therefore confines our review to the question of whether the OCCA’s

decision was contrary to or involved an unreasonable application of Strickland.

28 U.S.C. § 2254(d)(1); see Hain, 287 F.3d at 1231.

With regard to the first prong of Strickland—whether counsel’s

performance was objectively unreasonable—the OCCA pointed out that

“[a]ppellate counsel filed a well written, thoroughly researched brief raising

numerous claims at least equally meritorious to those which were omitted and are

at issue here.” Turrentine II, 965 P.2d at 990. Moreover, Mr. Turrentine failed

to show “that appellate counsel’s judgment was unreasonable under the

-38-
circumstances or did not fall within the wide range of professional assistance

owed to a client by an attorney.” Id. (internal quotation omitted). Thus, having

concluded that appellate counsel’s performance satisfied an objective standard of

reasonableness, the OCCA rejected Mr. Turrentine’s ineffectiveness claim. We

would also add that under the second prong of Strickland, Mr. Turrentine must

demonstrate a reasonable probability that, but for his appellate counsel’s failure

to appeal the evidentiary issue, the outcome of the proceedings would have been

different. The record demonstrates that during the initial stage of the trial,

counsel introduced considerable evidence on Mr. Turrentine’s diminished

capacity at the time of the murders. The jury considered the evidence and

refused to reduce the offenses from first degree murder to a lesser degree of

homicide. We fail to see how the introduction of expert testimony covering the

same ground—“[Mr.] Turrentine’s inability to formulate specific intent at the

time he shot and killed his family members,” as Mr. Turrentine’s brief puts it,

Br. at 107—would have had a significant impact on the jury’s sentence. An

appeal of this issue, therefore, would have been unlikely to result in a reversal of

Mr. Turrentine’s sentence. With this in mind, and in light of Strickland’s

mandate that “[j]udicial scrutiny of counsel’s performance . . . be highly

deferential,” 466 U.S. at 689, we cannot say that appellate counsel’s decision to

focus on other, presumably more promising, issues was constitutionally deficient.

-39-
The OCCA’s decision, therefore, was neither contrary to nor involved an

unreasonable application of Strickland. Because the ineffective assistance claim

fails, Mr. Turrentine has also failed to demonstrate adequate cause for his

procedural default. The underlying claim is therefore procedurally barred, and

we deny habeas relief on that ground.

3) Evidence of Mitigation Outweighed Evidence of Aggravation

Mr. Turrentine next contends that his death sentence violates the Eighth

and Fourteenth Amendments for two reasons: first, because the mitigating

evidence outweighed the aggravating evidence; and second, because the OCCA

failed adequately to reweigh the aggravating and mitigating factors on appeal.

As for the first argument, the parties agree that the relevant question on

review is whether, after viewing the evidence in the light most favorable to the

prosecution, any rational trier of fact could have found that the aggravating

evidence outweighed the mitigating evidence. Jackson, 443 U.S. at 319.

Although the OCCA did not directly cite Jackson, it applied an analogous state

standard, asking “whether there was sufficient evidence from which a rational

sentencer could find that the balance of aggravating and mitigating circumstances

warranted a death sentence.” Turrentine I, 965 P.2d at 979 (citing Spuehler v.

State, 709 P.2d 202, 203-04 (Okla. Crim. App. 1985), which relied on Jackson).

We therefore ask whether the OCCA’s decision was contrary to or involved an

-40-
unreasonable application of Jackson, or whether it was based on an unreasonable

determination of the facts in light of the evidence presented. 28 U.S.C. §

2254(d)(1)–(2).

Mr. Turrentine has failed to demonstrate that the OCCA’s decision was

lacking in either respect. He simply lists the relevant aggravating and mitigating

evidence and asserts, without argument, that “the mitigation evidence in this . . .

case so outweighs the evidence of aggravation that the OCCA’s adjudication of

this issue resulted in a decision based on an unreasonable determination of the

facts in light of the evidence presented.” Appellant’s Br. at 114-15. This is not

enough for us to conclude that the OCCA’s decision fails the deferential standard

of review under AEDPA, especially in light of the substantial evidence before

the court that the murders were especially heinous, atrocious, or cruel, that Mr.

Turrentine knowingly created a great risk of death to more than one person, and

that there existed a probability that Mr. Turrentine would commit acts of

violence constituting a continuing threat to society. The OCCA’s decision was

based on a reasonable determination of the facts and application of Jackson, and

we therefore deny habeas relief on this ground.

Mr. Turrentine also argues that the OCCA failed to adequately reweigh the

aggravating and mitigating factors on appeal. When a state appellate court finds

that a death sentence has been based in part on an improper aggravating

-41-
circumstance, it may still uphold the death sentence if it finds, after reweighing

the evidence, that the remaining aggravating circumstances outweigh the

mitigating circumstances. Clemons v. Mississippi, 494 U.S. 738, 741 (1990).

But the state appellate court must, at a minimum, “actually reweigh[]” the

evidence. Richmond v. Lewis, 506 U.S. 40, 48 (1992). Mr. Turrentine claims

that the OCCA failed to actually reweigh the evidence for count three after it

invalidated the “heinous, atrocious, or cruel” aggravating circumstance as

applied to that count. However, because we have already granted habeas relief

on count three, we need not address this issue.

D. Ineffective Assistance of Trial Counsel

Mr. Turrentine has argued seven grounds for ineffective assistance of trial

counsel: 1) Trial counsel failed to present expert testimony concerning Mr.

Turrentine’s mental health, as he promised to do in opening argument; 2) Trial

counsel conceded an aggravating circumstance; 3) Trial counsel failed to present

evidence of diminished capacity and failed to obtain instructions on lesser

included offenses; 4) Trial counsel failed to respond to the State’s motion in

limine to exclude evidence of Mr. Turrentine’s mental state; 5) Trial counsel

conceded Mr. Turrentine’s guilt; 6) Trial counsel failed to obtain from the county

jail medical records pertinent to Mr. Turrentine’s competence to stand trial; 7)

Trial counsel failed to investigate and present mitigating evidence on Mr.

-42-
Turrentine’s history of childhood abuse.

The OCCA found against Mr. Turrentine on the first two claims, which

Mr. Turrentine had raised on direct appeal, and the district court agreed with that

disposition. The OCCA found that Mr. Turrentine had defaulted on his

remaining ineffectiveness claims by failing to directly appeal them; the district

court nevertheless reviewed those claims de novo and found them to be meritless.

1) Ineffective Assistance Standard

Claims of ineffective assistance of counsel are mixed questions of law

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

AEDPA). As noted above, these claims are governed by the two-part Strickland

test, under which the petitioner “must establish [1] that counsel’s performance

was constitutionally deficient and [2] that counsel’s performance prejudiced the

defense, depriving the petitioner of a fair trial with a reliable result.” Boyd v.

Ward, 179 F.3d 904, 913 (10th Cir. 1999), citing Strickland, 466 U.S. at 687. To

prove deficient performance, Mr. Turrentine “must overcome the presumption

that counsel’s conduct was not constitutionally defective.” Wallace, 191 F.3d at

1247. “Judicial scrutiny of counsel’s performance is highly deferential.” Id.

Mr. Turrentine must demonstrate that counsel’s performance was not merely

wrong, but fell below “an objective standard of reasonableness.” Strickland, 466

U.S. at 688.

-43-
 If Mr. Turrentine demonstrates that counsel’s performance was deficient,

he still must show prejudice before a reviewing court may rule in his favor. In

order to show prejudice, Mr. Turrentine must demonstrate “a reasonable

probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different.” Id. at 694. When a petitioner challenges

conduct during the sentencing stage of the trial, he must demonstrate “a

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

concluded that the balance of aggravating and mitigating circumstances did not

warrant death.” Stafford v. Saffle, 34 F.3d 1557, 1564 (10th Cir. 1994) (quoting

Strickland, 466 U.S. at 695).

When addressing a claim of ineffective assistance of counsel, the

reviewing court must make every effort to “eliminate the distorting effects of

hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and

to evaluate the conduct from counsel’s perspective at the time.” Strickland, 466

U.S. at 689. This is especially true when we examine counsel’s decision to

investigate—or not to investigate—matters that materially affect a defendant’s

case. As the Supreme Court has observed:

[S]trategic choices made after thorough investigation of law and
facts relevant to plausible options are virtually unchallengeable; and
strategic choices made after less than complete investigation are
reasonable precisely to the extent that reasonable professional
judgments support the limitations on investigation. In other words,
counsel has a duty to make reasonable investigations or to make a

-44-
 reasonable decision that makes particular investigations unnecessary.
In any ineffectiveness case, a particular decision not to investigate
must be directly assessed for reasonableness in all the circumstances,
applying a heavy measure of deference to counsel’s judgments.

Strickland, 466 U.S. at 690-91.

2) Claims Raised on Direct Appeal

a. In contravention of his promise to do so in opening
argument, trial counsel failed to present expert
testimony concerning Mr. Turrentine’s mental health.

Mr. Turrentine’s counsel declared in his opening argument that he would

present a mental health expert, which he ultimately failed to do. According to

Mr. Turrentine, this failure constituted ineffective assistance of counsel. The

OCCA applied Strickland and rejected this argument on the merits. We therefore

ask whether its decision was contrary to, or an unreasonable application of,

Strickland; or whether it was based on an unreasonable determination of the facts

in light of the evidence presented. 28 U.S.C. § 2254(d)(1)–(2).

The OCCA concluded that Mr. Turrentine had failed to establish either

deficiency or prejudice under Strickland. With respect to deficiency, the OCCA

observed:

Based upon this record, counsel’s decision not to call the mental
health professionals during first stage appears to have been a
strategic decision. After hearing all of the State’s evidence, counsel
seemed to focus the defense on intoxication and not insanity.
Focusing and narrowing the defense based upon the State’s evidence
is a valid strategy. This Court has declined to second guess trial
strategy on appeal. That the strategy proved unsuccessful is not

-45-
 grounds for branding counsel ineffective. Absent a showing of
incompetence, the appellant is bound by the decisions of his counsel
and mistakes in tactic and trial strategy do not provide grounds for
subsequent attack.

Turrentine I, 965 P.2d at 971 (internal citations omitted). And with respect

to prejudice:

[T]he record does not support a claim that counsel’s decision
rendered the trial fundamentally unfair or the verdict unreliable.
Evidence of premeditation and that the Appellant was in control of
his mental faculties at the time of the murders was substantial.
Testimony of Appellant’s depressed state was presented by Appellant
himself, by his sister and through a physician’s assistant at the
Veteran’s Administration Hospital who had seen Appellant the day of
the murders and prescribed anti-depressant medication. The absence
of the mental health professionals did not deny Appellant the ability
to present his defense.

Id.

We cannot conclude that this analysis fails the deferential standard of

review under AEDPA. Mr. Turrentine must show more than that his counsel’s

action had “some conceivable effect on the outcome of the proceeding,” because

“[v]irtually every act or omission of counsel would meet that test.” Strickland,

466 U.S. at 693. Instead, he must demonstrate that trial counsel’s “omission”

amounted to objectively unreasonable representation or deprived him of a fair

trial with a reliable result. This, Mr. Turrentine has not done; habeas relief is

accordingly denied.

-46-
 b. Trial counsel conceded an aggravating circumstance.

Mr. Turrentine contends that trial counsel conceded an aggravating

circumstance in the second phase of the trial and that this concession constitutes

ineffective assistance of counsel. Trial counsel made the following statement to

the jury at the sentencing hearing: “You know, I concede, I concede that maybe

the aggravating circumstance of great risk of death to more than one person is

there. . . . You will be authorized to determine the death sentence in this case.”

T. Tr., Vol. VII, 1220 (emphasis added). However, trial counsel continued: “And

that’s the operative word there is authorized, not require, not shall.” Id. After

this, trial counsel proceeded to argue the mitigating factors. Given the qualifying

language that counsel emphasized in his follow-up, we cannot say that his first

statement amounts to objectively unreasonable representation. It could easily be

viewed as a strategic choice in which trial counsel sought to garner respect for his

honesty, which would bolster his credibility during his subsequent discussion of

the mitigating factors. The OCCA found this to be the case, Turrentine I, 965

P.2d at 980, and we cannot conclude that this finding was an unreasonable

application of Strickland. We therefore deny habeas relief.

3) The Procedural Bar to Claims Not Raised on Appeal.

The State argued, and the OCCA found, that claims three through seven

were procedurally barred from review. The district court held that they were not.

-47-
Turrentine II, 965 P.2d at 987-88.

Generally, where “a state prisoner has defaulted his federal claims in state

court pursuant to an independent and adequate state procedural rule, federal

habeas review of the claims is barred unless the prisoner” can show either “cause

for the default and actual prejudice,” or, alternatively, “that failure to consider the

claims will result in a fundamental miscarriage of justice.” Coleman, 501 U.S. at

750. We have recognized an exception to this general rule, however, when the

underlying claim is ineffective assistance of counsel. See Osborn v. Shillinger,

861 F.2d 612, 622-23 (10th Cir. 1988). This is because ineffective assistance

claims often require a petitioner to consult with separate counsel on appeal or

develop facts that do not appear in the trial record. Brecheen, 41 F.3d at 1363-64.

Restricting the litigation of ineffective assistance claims to trial and direct

review, then, “would seriously interfere with an accused’s right to effective

representation.” Kimmelman v. Morrison, 477 U.S. 365, 378 (1986). We

therefore have recognized exceptions to the Oklahoma procedural bar where a

petitioner had the same counsel at trial and on appeal, or where the

ineffectiveness claim cannot be resolved solely on the basis of the trial record.

See English v. Cody, 146 F.3d 1257, 1264 (10th Cir. 1998).

In this case, the district court found that trial and appellate counsel differed

and that therefore the first English exception to the Oklahoma procedural bar was

-48-
inapplicable. It also noted, however, that trial and appellate counsel worked for

the same defense organization, the Oklahoma Indigent Defense System; and one

might question whether close colleagues could provide the “objective assessment

[of] trial counsel’s performance” that a petitioner needs in order to pursue an

ineffective assistance claim on direct appeal. Brecheen, 41 F.3d at 1364; see also

Cannon v. Mullin, 383 F.3d 1152 (10th Cir. 2004) (“[W]hether trial and appellate

attorneys from the same ‘office’ should be deemed ‘separate’ counsel will turn on

the specific circumstances.”). We need not address this question, however,

because we agree with the district court that the claims are based on affidavits

and evidence gathered after trial and cannot be resolved on the trial record alone.

The Oklahoma procedural bar is therefore inapplicable.

4) Claims Not Raised on Direct Appeal

a. Trial counsel failed to present evidence of diminished
capacity and failed to obtain instructions on first degree
manslaughter.

As discussed in Section II.D.2.a. above, Mr. Turrentine argues that trial

counsel rendered constitutionally deficient assistance by failing to present

adequate evidence of Mr. Turrentine’s diminished capacity. We have already

rejected this argument, and we deny habeas relief for the reasons stated above.

Mr. Turrentine also argues that his trial counsel was deficient for failing to

request an instruction on first degree manslaughter. A first degree manslaughter

-49-
instruction is warranted only when the defendant presents evidence supporting a

conclusion that “the homicide was perpetrated without a design to effect death by

means of a dangerous weapon.” Turrentine I, 965 P.2d at 969-70. The OCCA

found that no evidence supported such an instruction, id., and we cannot say that

this finding is an unreasonable determination of facts in light of the evidence. 28

U.S.C. § 2254(d)(2); see Boyd, 179 F.3d at 917. Thus, because the evidence did

not support a first degree manslaughter instruction, trial counsel was not deficient

for failing to request one. Boyd, 179 F.3d at 917. Habeas relief is denied.

b. Trial counsel failed to respond to the State’s motion in
limine to exclude evidence of Mr. Turrentine’s mental
state.

Mr. Turrentine asserts that his trial counsel was ineffective for failing to

respond to the State’s motion in limine, which sought to exclude from the

sentencing hearing expert testimony about Mr. Turrentine’s mental state. We

have already rejected the argument that Mr. Turrentine was prejudiced by his

appellate counsel’s failure to appeal the exclusion of this evidence. See supra

Section II.C.2. For the same reasons, we reject the argument that he was

prejudiced by his counsel’s failure to respond to the motion in limine.

Accordingly, habeas relief on this claim is denied.

c. Trial counsel conceded defendant’s guilt.

Mr. Turrentine next argues that several statements by trial counsel

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amounted to a concession that Mr. Turrentine was guilty of the crimes for which

he was charged. For example, during voir dire, trial counsel referred to “these

intentional homicides,” and in his closing argument he told the jury: “You are

going to have a second stage of this trial because only Counts 2 and Counts 3 talk

about second degree murder, so there will be a first degree murder conviction in

this case.” Appellant’s Br. at 164. He also stated: “Had [the State] filed two

Informations, one for first degree murder as to the two people and one for second

degree murder as to the other, it would have been a plea of guilty all the way

around.” Id. According to Mr. Turrentine, “[s]uch remarks constituted absolute

surrender” and, therefore, ineffective assistance of counsel. Id. at 165.

As noted above, Strickland requires a showing of both deficient

representation and prejudice. In a narrow class of cases, however, including

when “counsel entirely fails to subject the prosecution’s case to meaningful

adversarial testing,” United States v. Cronic, 466 U.S. 648, 659 (1984), prejudice

is presumed. In order to presume prejudice under Cronic, “the attorney’s failure

to test the prosecutor’s case must be complete.” Bell, 535 U.S. at 686. This

Court has repeatedly found the Cronic presumption inapplicable where “counsel

actively participated in all phases of the trial proceedings.” Snyder v. Addison, 89

Fed.Appx. 675, 680 (10th Cir. 2004); see also Cooks v. Ward, 165 F.3d 1283,

1296 (10th Cir. 1998) (Cronic inapplicable where “[counsel] was present in the

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courtroom[,] . . . conducted limited cross-examination, made evidentiary

objections, and gave a closing argument”); Hooper v. Mullin, 314 F.3d 1162,

1175 (10th Cir. 2002) (Cronic inapplicable where “[d]efense counsel cross-

examined the State’s guilt-stage witnesses, made objections to the State’s

evidence, presented some evidence in Petitioner’s defense, and made opening and

closing arguments”). In fact, we have found a complete absence of meaningful

adversarial testing only where the evidence “overwhelmingly established that

[the] attorney abandoned the required duty of loyalty to his client,” and where

counsel “acted with reckless disregard for his client’s best interests and, at times,

apparently with the intention to weaken his client’s case.” Osborn, 861 F.2d at

629. 3

This is not such a case. The statements of which Mr. Turrentine complains

fell within the context of a lengthy and persuasive closing argument, in which

counsel contended that first degree murder was inappropriate for counts two and

three. Faced with overwhelming evidence of his client’s guilt, including multiple

confessions by Mr. Turrentine himself—first on a 911 recording, then to several

police officers at separate times, and finally at trial—counsel essentially conceded

guilt on two counts in order to more persuasively argue the remaining counts and

The Supreme Court has recently heard argument in a case that may affect the
3

analysis on this point, Florida v. Nixon, No. 03-931. We decide this case under
precedents at this time.

-52-
retain credibility for the sentencing phase of trial. We have upheld such strategic

decisions before. See, e.g., Trice v. Ward, 196 F.3d 1151, 1162 (10th Cir. 1999)

(finding, in light of overwhelming evidence of guilt, that “it was an entirely

reasonable strategy for [defendant’s] trial counsel to concede [that defendant

raped the victim] and focus his efforts on persuading the jury that [the defendant]

did not have the intent to commit first-degree murder, and/or persuading the jury

to spare [his] life”); Charm v. Mullin, 37 Fed. Appx. 475, 480 (10th Cir. 2002)

(holding that trial counsel’s concession of guilt did not trigger a presumption of

prejudice where “counsel was faced with overwhelming evidence establishing

[defendant’s] guilt,” and where counsel’s “apparent strategy was to maintain

credibility with the jury during the first stage so that he could strongly pursue a

sentence less than death during the penalty phase”). We therefore cannot

conclude that Mr. Turrentine’s counsel “entirely fail[ed] to subject the

prosecution’s case to meaningful adversarial testing.” Cronic, 466 U.S. at 659. A

presumption of prejudice is accordingly inappropriate.

Mr. Turrentine has also failed to demonstrate prejudice under Strickland.

The required showing is a reasonable probability that, absent trial counsel’s

comments, the outcome of the trial would have been different. Strickland, 466

U.S. at 694. But as we explained above, and as the district court found, “the trial

transcript and original record . . . reveal overwhelming evidence of [Mr.

-53-
Turrentine’s] guilt on all four counts of first degree murder.” Dist. Ct. Op. at 80.

Trial counsel’s remarks, therefore, “did not alter the likely outcome of the first

stage of the trial.” Id. Because Mr. Turrentine has failed to show prejudice, we

deny habeas relief on this ground.

d. Trial counsel failed to obtain from the county jail
medical records pertinent to Mr. Turrentine’s
competence to stand trial.

Mr. Turrentine claims that his trial counsel was constitutionally deficient

for not gathering from the Tulsa County Jail medical records disclosing the

amount of medication he took during his incarceration and subsequent trial.

According to Mr. Turrentine, the medical records, which indicated that he was

taking a high dosage of the antidepressant Elavil, would have cast doubt on his

competency to stand trial. However, as Mr. Turrentine concedes in his brief,

“[his] response to the medication was never documented.” Br. at 174. In fact, as

the district court found, the record amply demonstrates that he was competent to

stand trial. He understood the charges against him, and the evidence shows that

he was able to communicate with counsel and testify competently on his own

behalf. Dist. Ct. Op. at 82; see Hatch v. Oklahoma, 58 F.3d 1447, 1456-58 (10th

Cir. 1995) (evidence of a petitioner’s lucid and intelligible testimony at trial

refutes claim of trial counsel’s failure to argue competency). Mr. Turrentine has

thus failed to demonstrate prejudice, and habeas relief is accordingly denied.

-54-
 e. Trial counsel failed to investigate and present
mitigating evidence on Mr. Turrentine’s history of
childhood abuse.

Finally, Mr. Turrentine argues that his trial counsel was constitutionally

deficient for failing to investigate and present evidence of Mr. Turrentine’s

history of childhood abuse. According to Mr. Turrentine, the outcome of the

sentencing hearing would have been different if counsel had presented this

evidence, because “the jury would have learned of the physical and psychological

abuse [Mr.] Turrentine suffered as a child, and come closer to understanding

[Mr.] Turrentine himself.” Appellant’s Br. at 179.

Counsel called nine witnesses during the second phase of the trial, and each

one testified to mitigating circumstances on Mr. Turrentine’s behalf. As is always

the case, trial counsel could have done more. But the question under Strickland is

not whether counsel could have done more, but whether counsel’s decision not to

do more was “[objectively unreasonable] in all the circumstances, applying a

heavy measure of deference to counsel’s judgments.” Strickland, 466 U.S. at 691.

We agree with the district court that counsel’s conduct was not so unreasonable

that it “render[ed] [Mr. Turrentine’s] trial fundamentally unfair.” Dist. Ct. Op. at

83. To conclude otherwise would be to indulge the very “distorting effects of

hindsight” that Strickland is designed to eliminate. 466 U.S. at 689. Counsel’s

-55-
conduct was reasonable under the circumstances, and habeas relief on this ground

is therefore denied.

Conclusion

For the reasons set forth above, we GRANT Mr. Turrentine’s Petition for

Writ of Habeas Corpus on counts two and three, and VACATE his conviction and

sentence on counts two and three accordingly. However, we DENY his Petition

for Writ of Habeas Corpus on count one, and AFFIRM his conviction and capital

sentence on count one.

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