Boltz v. Mullin

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
July 27, 2005
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT

JOHN ALBERT BOLTZ,

Petitioner - Appellant,

v. No. 04-6134

MIKE MULLIN, Warden, Oklahoma
State Penitentiary,

Respondent - Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
(D. Ct. No. CIV-99-156-M)

James L. Hankins, The Coyle Law Firm, Oklahoma City, Oklahoma, appearing for
Appellant.

Preston Saul Draper, Assistant Attorney General (W.A. Drew Edmondson,
Attorney General, with him on the brief), Office of the Attorney General for the
State of Oklahoma, Oklahoma City, Oklahoma, appearing for Appellee.

Before TACHA, Chief Circuit Judge, O’BRIEN, and TYMKOVICH, Circuit
Judges.

TACHA, Chief Circuit Judge.

A jury convicted Petitioner-Appellant John Albert Boltz of first-degree
murder in the stabbing and decapitation death of his stepson, Doug Kirby, and

sentenced him to death in 1984. In 1991, the Oklahoma Court of Criminal

Appeals (“OCCA”) affirmed his conviction and sentence on direct appeal. Mr.

Boltz then filed an application for post-conviction relief in the District Court of

Pottawatomie County, Oklahoma on July 2, 1992, which was denied and

subsequently affirmed by the OCCA. On September 9, 1999, Mr. Boltz filed a

petition for a writ of habeas corpus in the United States District Court for the

Western District of Oklahoma pursuant to 28 U.S.C. § 2254. Relief was denied

on all grounds on March 25, 2004. Mr. Boltz then sought a certificate of

appealability (“COA”) with the District Court, which granted the certificate as to

Mr. Boltz’s claim of ineffective assistance of counsel. This Court also granted a

COA with respect to two other claims raised by Mr. Boltz: that the evidence was

insufficient to establish the “continuing threat” aggravating factor found by the

jury, and that his right to due process was violated when the court failed to

instruct the jury on heat of passion manslaughter. We take jurisdiction under 28

U.S.C. §§ 1291 and 2253 and AFFIRM.

I. BACKGROUND

On April 18, 1984, Pat Kirby, who was then married to Mr. Boltz, left

work in Shawnee, Oklahoma and drove to Stroud to meet her friend and former

boss, Duane Morrison. Mr. Boltz was suspicious that his wife was having an

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affair with Mr. Morrison and followed her there dressed in combat fatigues and

dark glasses. When he saw that Ms. Kirby was meeting Mr. Morrison, he flew

into a rage, swearing at Mr. Morrison and telling him that he was going to cut his

head off. Mr. Boltz then exclaimed that he had killed men, women, and children

during the Korean War and killing “didn’t faze him,” and that he had cut off

people’s heads in the war for less serious infractions.

After this altercation, Ms. Kirby returned alone to the trailer home she and

Mr. Boltz shared in Shawnee. There, she wrote a note to her husband telling him

that their marriage was over. She then packed some clothes, called her twenty-

two-year-old son, Doug Kirby, to ask for help moving some of her things into his

home, and went to her mother’s house.

During this time, Mr. Boltz was drinking at the VFW hall. When he

returned to the trailer, he found the note and drove to his mother-in-law’s home

to see if his wife was there. Once there, he forced his way in and yelled and

swore at Ms. Kirby. Ms. Kirby then called the Shawnee Police Department and

asked them to remove Mr. Boltz from the premises. Mr. Boltz left shortly

thereafter, and Ms. Kirby went to her son’s house.

Mr. Boltz, who had returned to his trailer, then made the first of three

phone calls to Doug Kirby’s residence. In the first, Mr. Kirby answered the

phone and spoke with Mr. Boltz for a few minutes. A few minutes later, Mr.

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Boltz placed the second call. Again, Mr. Kirby answered and had a very short

conversation with Mr. Boltz. After these two calls, Mr. Kirby did not appear

upset, but he told his mother that he was going over to Mr. Boltz’s trailer to

speak with him. After he left, Mr. Boltz called Mr. Kirby’s residence a third

time. This time, Ms. Kirby answered. Mr. Boltz told her that he was “going to

cut [her] loving little boy’s head off.” He also said that he was going to kill Ms.

Kirby herself within the hour.

After hanging up with her husband, Ms. Kirby placed another call to the

Shawnee Police Department. This phone call was recorded and played to the jury

during the State’s case-in-chief:

DISPATCHER: Shawnee Police Department, Cheryl.
MS. KIRBY: Cheryl, this is Pat again. I hate—I hate to
keep calling, but John just now called and
said he was going to cut my son’s head off,
and my son is over there in the trailer park,
and John is over there at the trailer. That
was Lot 119.

Ms. Kirby then drove to Mr. Boltz’s trailer searching for her son. When

she arrived, she found her son’s body laying outside his car. He had suffered

eight stab wounds to the neck, chest and abdomen, and his neck had been cut

three times. His neck was injured so severely that both carotid arteries had been

severed, the voice box and esophagus were cut, and the spinal column was

damaged. One of the stab wounds pierced through his back. Blood stains were

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discovered leading from the front porch to the driver’s side door of Mr. Kirby’s

car as well as inside the vehicle. A .22 caliber revolver was recovered from the

passenger seat; the gun had no blood on it although the seat was splattered with

blood.

After the killing, Mr. Boltz drove to the American Legion in Midwest City,

where he told some friends that he had killed Mr. Kirby and that he had

“probably cut his head off.” The police were called and Mr. Boltz was arrested

without incident. Thereafter, he confessed to the killing but did not elaborate on

the circumstances leading up to it.

Mr. Boltz was charged with first-degree murder. After refusing to plead

guilty to voluntary manslaughter, Mr. Boltz went to trial. At trial, Mr. Boltz did

not dispute the State’s contention that he stabbed Mr. Kirby to death. Rather, his

strategy was to present a self-defense theory. He testified that Mr. Kirby had

called him that evening and threatened to kill him. Mr. Boltz claimed that when

Mr. Kirby arrived at his trailer, he kicked in the front door and as he went for a

gun, Mr. Boltz stabbed him twice, but did not remember anything after that point.

The jury convicted Mr. Boltz of first-degree murder.

During the penalty phase, the State contended that two aggravating

circumstances—that the crime was especially heinous, atrocious or cruel, and that

Mr. Boltz constituted a continuing criminal threat to society—warranted a

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sentence of death. In his defense, Mr. Boltz argued that he had no prior criminal

record and referenced the testimony of three character witnesses who had

testified on his behalf in the guilt phase. The jury imposed the death penalty.

Over the course of several years, Mr. Boltz filed a direct appeal, an

application for state post-conviction relief, and a federal petition for habeas relief

under 28 U.S.C. § 2254, all of which were denied. Most recently, the District

Court rendered an exhaustive eighty-page opinion thoroughly reviewing each of

Mr. Boltz’s habeas claims. He now timely appeals the District Court’s denial of

his federal habeas petition on the three grounds for which a COA has been

issued. See 28 U.S.C. § 2253(c). Mr. Boltz argues on appeal: (1) that he

received ineffective assistance of counsel; (2) that the evidence was insufficient

to support the continuing threat aggravating circumstance; and (3) that the jury

should have been instructed on heat of passion voluntary manslaughter.

II. INEFFECTIVE ASSISTANCE OF COUNSEL

A. Standard of Review

Mr. Boltz first argued to the OCCA in his direct appeal that his trial

counsel, Duane Miller, had been ineffective; the OCCA, however, refused Mr.

Boltz’s request for an evidentiary hearing on the matter and dismissed Mr. Boltz’s

claim. Mr. Boltz similarly requested permission to conduct discovery in his

application for post-conviction relief filed in the District Court of Pottawatomie

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County, Oklahoma, which was also denied and then affirmed by the OCCA. The

United States District Court for the Western District of Oklahoma subsequently

held its own evidentiary hearing, see § 2254(e)(2), while reviewing Mr. Boltz’s

§ 2254 petition and thereafter refused to grant relief. 1

Because the OCCA made no substantive determination on Mr. Boltz’s

ineffective assistance claim, this Court does not apply the deferential standard of

review mandated by the Antiterrorism and Effective Death Penalty Act of 1996

(“AEDPA”). See 28 U.S.C. § 2254(d); Bryan v. Mullin, 335 F.3d 1207, 1215-16

(10th Cir. 2003). Instead, we review the District Court’s determination under the

standard laid out in Miller v. Champion, 161 F.3d 1249, 1254 (10th Cir. 1998). In

Miller, we stated that

[I]neffective assistance claim[s] present[ ] a mixed question of law and
fact. Because our analysis of this claim primarily involves consideration of
legal principles, we review this claim de novo. Further, we note that
because the state court did not hold any evidentiary hearing, we are in the
same position to evaluate the factual record as it was. Accordingly, to the
extent the state court’s dismissal of [petitioner’s ineffective assistance
claim] was based on its own factual findings, we need not afford those
findings any deference.

Miller, 161 F.3d at 1254 (internal citations omitted). In other words, this Court

1
Neither Mr. Boltz nor the respondent question the propriety of the District
Court’s decision to hold an evidentiary hearing regarding Mr. Boltz’s claim of
ineffective assistance of counsel; therefore, we do not address that question and
will assume the District Court’s decision was appropriate. As a result, we will not
address the standard preliminary issues of exhaustion and procedural bar.

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accepts the District Court’s factual findings so long as they are not clearly

erroneous and reviews de novo whether Mr. Miller’s assistance was ineffective as

a matter of law. See Bryan, 335 F.3d at 1216.

B. Merits

Claims of ineffective assistance of counsel are reviewed under the standard

originally set forth in Strickland v. Washington, 466 U.S. 668 (1984). That

standard requires Mr. Boltz to make two separate showings. “First, the defendant

must show that counsel’s performance was deficient. This requires showing that

counsel made errors so serious that counsel was not functioning as the ‘counsel’

guaranteed the defendant by the Sixth Amendment.” Strickland, 466 U.S. at 687.

To establish deficiency, a “defendant must show that counsel’s representation fell

below an objective standard of reasonableness.” Id. at 688. This is a heavy

burden, as we presume that counsel’s actions constituted sound strategy. Id. at

689.

“Second, the defendant must show that the deficient performance

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

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

Id. at 687. To establish prejudice, Mr. Boltz must demonstrate there is a

“reasonable probability” that, but for counsel’s errors, the result of the trial

would have been different. Id. at 694. When deficiencies occur during the

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sentencing stage in a capital case, the more focused inquiry is “whether there is a

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

concluded that the balance of the aggravating and mitigating circumstances did

not warrant death.” Id. at 695. “A reasonable probability is a probability

sufficient to undermine confidence in the outcome.” Id. at 694. We review the

totality of the evidence, including all evidence presented by the State, in

determining whether there is prejudice. Id. at 695. Finally, “[t]his Court may

address the performance and prejudice components in any order, but need not

address both if [petitioner] fails to make a sufficient showing of one.” Cooks v.

Ward, 165 F.3d 1283, 1292–93 (10th Cir. 1998).

In his § 2254 petition before the District Court, Mr. Boltz pointed to

seventeen instances of Mr. Miller’s alleged ineffectiveness during both the guilt

and sentencing phases of trial. The District Court applied Strickland and

determined in each instance that Mr. Miller’s performance was not deficient, was

not prejudicial, or was neither deficient nor prejudicial. On appeal, Mr. Boltz

contests the District Court’s conclusions as to fourteen of the seventeen

instances. We agree with the District Court that none of Mr. Miller’s acts rise to

the level necessary to justify granting Mr. Boltz’s habeas petition under

Strickland.

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 1. Counsel’s Illness During Trial

Mr. Boltz first contends that Mr. Miller was physically ill on the day of

Mr. Boltz’s trial and that this illness rendered him ineffective. We agree with the

District Court that the record indicates Mr. Miller was sick that day. Indeed, Mr.

Miller testified in the evidentiary hearing before the District Court that he felt as

though he had the flu and had trouble breathing, which interfered with his

concentration. Mr. Boltz does not argue, however, that Mr. Miller’s illness,

standing alone, entitles him to relief. Instead, Mr. Boltz simply contends that it

should be considered during the review of his specific claims of ineffective

assistance of counsel. This Court has done so.

2. Inadequate Pretrial Investigation

Mr. Boltz also argues that Mr. Miller’s assistant in preparing the defense,

Michael Esche, was not qualified. Mr. Boltz points out that Mr. Esche was not a

licensed investigator, only attended college for a short time, and was hired by Mr.

Miller as a favor to a family friend. Like his argument concerning Mr. Miller’s

illness, Mr. Boltz does not argue that Mr. Miller’s reliance on Mr. Esche in and

of itself entitles him to habeas relief. We also note that the record makes clear

that Mr. Esche acted only at the direction of Mr. Miller. Therefore, we consider

Mr. Boltz’s argument concerning Mr. Esche’s investigation and qualifications in

the context of Mr. Boltz’s specific claims that Mr. Miller failed to investigate

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particular issues, which we address below.

3. Calling Ralph Robertson as a Witness

Mr. Boltz’s first specific claim of ineffective assistance is that Mr. Miller

should not have called Ralph Robertson to testify. Mr. Robertson was a friend of

Mr. Boltz’s and claimed to be a criminal investigator. As the defense’s first

witness, he testified that he went to Mr. Boltz’s trailer the day after the killing to

investigate the scene on behalf of his friend and found a book with a bullet hole

through it in the trailer. He also found a bullet slug near the book which was

admitted into evidence. The implication of Mr. Robertson’s testimony was that

Mr. Kirby had fired a gun at Mr. Boltz, which tended to bolster Mr. Boltz’s claim

that he was acting in self-defense.

On cross-examination, however, Mr. Robertson testified that he was not a

ballistics expert and had not compared the slug he claimed to have found with the

bullets from the gun in Mr. Kirby’s car. Moreover, the state later called the lead

investigator in the case to the stand. He testified that he had test-fired the gun

found in Mr. Kirby’s car and examined the slug Mr. Robertson allegedly found;

he stated that the bullets were clearly not the same. In his § 2254 petition, Mr.

Boltz claims that Mr. Miller’s decision to call Mr. Robertson as a witness

constituted deficient performance and that this error effectively destroyed the

credibility of the defense from the outset of the trial. The District Court did not

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decide whether Mr. Miller’s conduct constituted deficient performance. Instead,

it held that Mr. Boltz had failed to demonstrate prejudice from any error. We

agree.

We first note that Mr. Boltz insisted that Mr. Robertson testify. Moreover,

when we consider the overwhelming evidence against Mr. Boltz—including Mr.

Boltz’s confrontation with his wife and Mr. Morrison earlier on the day of the

killing, Mr. Boltz’s statement to Mr. Morrison that he had cut off heads in the

war and had not been afraid to do so, his finding the note from Ms. Kirby saying

the marriage was over, his subsequent threat to Ms. Kirby that evening that he

was going to cut off her son’s head, the recorded phone call played to the jury in

which Ms. Kirby told the police about that threat, and the fact that Mr. Boltz

admitted to stabbing Mr. Kirby a short time later—we cannot say that there is a

reasonable probability that had Mr. Robertson not testified, the jury would have

found Mr. Boltz not guilty of first-degree murder.

4. Failure to Demonstrate that Mr. Boltz Did Not Plant the Gun Found
in Mr. Kirby’s Car

At trial, the State contended that Mr. Boltz planted the .22 caliber pistol

found in Mr. Kirby’s car in order to claim self-defense. Eyewitness Vita Witt,

who was in a home nearby looking out the window during the killing,

corroborated the State’s theory by testifying at trial that she saw Mr. Boltz put

the gun in Mr. Kirby’s car. In his § 2254 petition, Mr. Boltz argues that Mr.

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Miller should have ordered the transcript of the preliminary hearing because had

he done so, he would have realized that Ms. Witt testified in that hearing that Mr.

Boltz did not put the gun in the car and could have impeached her testimony at

trial. The District Court determined that Mr. Miller was deficient in not ordering

the transcript but held there was no prejudice. We agree.

Mr. Boltz’s only argument that he was prejudiced by Mr. Miller’s failure to

order the transcript is that had Mr. Miller ordered the transcript, he would have

elicited testimony from Ms. Witt that Mr. Boltz did not plant the gun. This

contention, however, fails to address the prejudice component as defined by

Strickland—namely, that but for counsel’s error, there is a reasonable probability

that the jury would have returned a different verdict. We seriously question

whether impeaching Ms. Witt on this point would have led the jury to conclude

that Mr. Boltz did not plant the gun because the State introduced photographs

showing that the gun had no blood on it even though it was resting on the car

seat atop of a pool of blood—evidence that strongly supports the State’s theory

that someone put the weapon in the car after the killing. Moreover, impeaching

Ms. Witt’s testimony that she saw Mr. Boltz plant the gun could not have

reasonably undermined the evidence of premeditation—namely, Mr. Boltz’s

statement to Ms. Kirby that he was going to cut off Mr. Kirby’s head just minutes

before he nearly did so—that was obviously crucial to the jury’s verdict of first-

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degree murder. Finally, given that Ms. Witt also testified she saw Mr. Boltz

astride Mr. Kirby—whom she described as looking as motionless as a “rag

doll”—stabbing him repeatedly while calling him a “son of a bitch” and smiling

when he finished, we conclude that Mr. Boltz was not prejudiced by Mr. Miller’s

error in not ordering the transcript from the preliminary hearing so that he could

have impeached Ms. Witt’s statement that she saw Mr. Boltz plant the .22 pistol

in Mr. Kirby’s car.

5. Failure to Introduce Evidence of Bruises on Mr. Boltz’s Arm

During his opening statement, Mr. Miller promised the jury that the

defense would present evidence that Mr. Kirby, while initiating a life-threatening

attack, grabbed Mr. Boltz by the arm and bruised him. Mr. Miller did not put on

any such evidence, forgetting to ask Mr. Boltz and witnesses Mr. Robertson and

Mr. Thompson about it. The District Court concluded that this constituted

deficient representation. Nonetheless, it held that Mr. Boltz was not prejudiced.

Again, we agree that Mr. Boltz has failed to demonstrate that there is a

reasonable probability that the jury would have returned any other verdict if Mr.

Miller had put on evidence of the bruises. With respect to the second prong of

the Strickland test, Mr. Boltz argues only that Mr. Miller “made promises to the

jury and then failed to deliver” and that “this allowed the State to further impugn

the integrity of the defense through yet more rebuttal witnesses.” While we agree

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that the omitted evidence could tend to corroborate Mr. Boltz’s version of events,

given the overwhelming evidence of premeditation, Mr. Boltz has not

demonstrated a reasonable probability that, but for Mr. Miller’s failure to

introduce such evidence, “the result of the proceeding would have been

different.” Strickland, 466 U.S. at 694.

6. Failure to Present Evidence of Mr. Kirby’s Glasses

Mr. Kirby’s glasses were found in the front passenger seat of his car, and

Mr. Boltz argues that Mr. Miller should have pointed this out to the jury. He

maintains that there was testimony at trial that Mr. Kirby drove his car to a

“screeching halt” in front of Mr. Boltz’s trailer, and that evidence of Mr. Kirby

leaving his prescription glasses in the passenger seat further demonstrates that he

got out of the car intending to confront Mr. Boltz physically. The District Court

concluded that Mr. Miller’s failure to introduce this evidence did not meet either

prong of the Strickland test. We agree that trial counsel was not deficient in this

regard.

Evidence at trial established that Mr. Kirby often did not wear his glasses.

Indeed, Mr. Kirby’s ex-wife testified that he did not wear them every day. Mr.

Kirby’s brother also testified that Mr. Kirby did not wear his glasses often and

that they may simply have been reading glasses. Moreover, as Mr. Miller put it,

“[t]he fact that the glasses were out in the car didn’t prove . . . whether that made

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him the aggressor or not.” Indeed, as the State contends, the jury could just as

easily have inferred that the glasses, which were not folded closed and were

splattered with blood, fell off Mr. Kirby’s head during the attack by Mr. Boltz.

Given these circumstances, failing to raise the issue of the glasses falls within the

realm of strategic choice. See Strickland, 466 U.S. at 689.

7. Failure to Present Evidence that Mr. Kirby Knew Mr. Boltz Had
Accused Ms. Kirby of Adultery

Ms. Kirby testified at trial that her son knew nothing about her marital

problems with Mr. Boltz. In support of his petition for habeas relief, Mr. Boltz

argues that Mr. Miller should have impeached Ms. Kirby’s trial testimony with

her preliminary hearing testimony. According to Mr. Boltz, Mr. Miller’s failure

to demonstrate that Mr. Kirby knew that Mr. Boltz had accused his wife of

having an affair left the jury without a reason why Mr. Kirby would want to kill

Mr. Boltz.

We agree with the District Court that Mr. Miller’s failure to impeach Ms.

Kirby on this point did not prejudice him. Even if the jury believed that Mr.

Kirby was angry with Mr. Boltz for accusing his mother of adultery and drove to

Mr. Boltz’s home to confront him about it, the fact remains that after Mr. Boltz

informed Mr. Kirby of the alleged affair, Mr. Boltz phoned Ms. Kirby and told

her he was going to cut off Mr. Kirby’s head. That is to say, this impeachment

simply does not speak to the issue of premeditation, on which the State presented

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overwhelming evidence. Hence, there is no reasonable probability that the jury

would have returned a different verdict had Mr. Miller impeached Ms. Kirby on

this issue.

8. Failure to Investigate Mr. Kirby’s Violent Nature

Mr. Boltz next argues that Mr. Miller failed to investigate Mr. Kirby’s

propensity for violence but nonetheless attempted to show that Mr. Kirby was a

violent person at trial; this, Mr. Boltz contends, only opened the door for the

State to present evidence of Mr. Kirby’s peacefulness. Further, Mr. Boltz argues,

because Mr. Miller had not investigated Mr. Kirby’s propensity for violence, Mr.

Miller had no evidence to rebut the State’s evidence of Mr. Kirby’s peaceful

nature.

Mr. Boltz fails to satisfy the second prong of the Strickland test. First, as

the District Court exhaustively details, the potential testimony from witnesses

who would have testified that Mr. Kirby had a violent nature is far from ideal.

Moreover, we simply cannot conclude that had Mr. Miller investigated Mr.

Kirby’s propensity for violence and presented such evidence to the jury, the jury

would have returned a different verdict given the overwhelming evidence of

premeditation in this case.

9. Failure to Present Evidence that Mr. Kirby Attacked Mr. Boltz
Inside the Trailer

The State’s theory of the case was that Mr. Boltz phoned Mr. Kirby and

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asked him to drive out to his trailer. When Mr. Kirby pulled up, the State

contended, Mr. Boltz met him on his front porch and stabbed him with

premeditation repeatedly as Mr. Kirby retreated toward his car. In accordance

with this theory, the State told the jury that Mr. Kirby never stepped inside the

trailer—and therefore was not the initial aggressor—and that the police found no

blood stains inside the trailer. In his § 2254 petition, Mr. Boltz argues that Mr.

Miller should have called three witnesses who would have rebutted the State’s

assertion that he essentially ambushed Mr. Kirby on the porch by testifying about

blood spatter they saw inside the living room.

We agree with the OCCA, Boltz, 806 P.2d at 1126, and the District Court

that Mr. Miller’s actions were not deficient. First, as the District Court

thoroughly illustrated, Mr. Boltz’s proposed witnesses’ testimony is not

compelling. Second, photographs taken by investigators revealed no blood in the

trailer. Third, Mr. Miller himself surveyed the scene the day after the killing and

found no evidence of a struggle inside. Fourth, Ms. Witt, the eyewitness to the

killing, testified that she saw Mr. Boltz standing over Mr. Kirby just outside his

car—not on the porch—when Mr. Boltz was stabbing Mr. Kirby and cutting his

throat. Finally, as Mr. Miller elaborated during his testimony at the habeas

evidentiary hearing, given these circumstances whether Mr. Kirby entered the

house or not was simply not relevant to Mr. Boltz’s self-defense theory. As such,

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we conclude that failure to present evidence of an indoor attack was a legitimate

strategic choice. See Strickland, 466 U.S. at 689.

10. Failure to Call Mr. Morrison to Testify

Mr. Boltz next argues that Mr. Miller should have called Mr. Morrison to

testify about the circumstances that would have led a reasonable person in Mr.

Boltz’s position to believe Ms. Kirby was having an affair. He also argues that

Mr. Morrison’s testimony would have demonstrated that he did not feel

threatened by Mr. Boltz’s statement about cutting off heads in the war.

To begin, whether Mr. Boltz reasonably believed his wife was having an

affair is not relevant to this case. 2 Therefore, Mr. Boltz has failed to show that

Miller’s decision not to call Mr. Morrison to the stand “fell below an objective

standard of reasonableness” under the first prong of Strickland. Strickland, 466

U.S. at 688. As to his second argument, Mr. Boltz was not prejudiced by Mr.

Miller’s failure to call Mr. Morrison to the stand in order to testify that he did not

perceive Mr. Boltz’s statements as threats. The overwhelming evidence of

premeditated murder in this case does not cause us to question the jury’s verdict

based on the absence of Mr. Morrison’s testimony on this point.

2
To the extent it could be argued that such evidence is relevant to Mr.
Boltz’s claim that the jury should have been instructed on heat of passion
manslaughter, because we conclude below that the evidence did not support such
an instruction, this argument does not warrant relief. See infra Part IV.

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 11. Deborah Gregg’s Testimony Regarding Motive

At trial, Deborah Gregg, an office deputy with the Pottawatomie County

Sheriff’s Office, testified that while she was booking Mr. Boltz into jail, she

allowed him to make a telephone call and overheard him say to the recipient,

“You damn right I killed him. I’d do it again if I had to. He took my life, he

took my wife, my family, and he took my church.” Although there is some

dispute between Mr. Boltz and the State as to whom Mr. Boltz called that night,

the District Court determined on the basis of phone records that the call was

placed to Earline Thompson, Mr. Boltz’s ex-wife. After a review of the record,

we accept this factual determination because it is not clearly erroneous. See

Bryan, 335 F.3d at 1216.

In support of his petition for habeas relief, Mr. Boltz argues that Mr.

Miller should have impeached Officer Gregg’s testimony by calling Ms.

Thompson to testify about the statement; 3 she apparently would have testified

that Mr. Boltz never made the statement. 4 Assuming Ms. Thompson would have

3
Mr. Boltz also argues that the phone call might have been placed to Cedric
James, and that Mr. James should also have been called to testify about the
statement. Because the District Court found that Mr. Boltz called Ms. Thompson
only, this contention is without merit.
4
At the evidentiary hearing held nearly eighteen years after Mr. Boltz’s
trial, Ms. Thompson testified that she does not remember ever hearing Mr. Boltz
utter the words attributed to him by Officer Gregg; she also testified, however,
that she does not remember receiving a phone call from Mr. Boltz from jail the
(continued...)

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testified to this effect, Mr. Boltz has not shown how this testimony would have

changed the outcome of the trial. Evidence that Mr. Boltz had seen Ms. Kirby

and Mr. Morrison together the day of the killing and that Ms. Kirby wrote him a

note telling him their marriage was over supplied the motive for murder to the

same extent as Officer Gregg’s unrebutted testimony; therefore, even if Ms.

Thompson had testified that Mr. Boltz never made the statement attributed to him

by Officer Gregg, we are confident the jury would have still returned a guilty

verdict of first-degree murder.

12. Failure to Pursue an Intoxication Defense

“Voluntary intoxication can reduce homicide from murder in the first

degree to manslaughter in the first degree, provided it rendered the defendant

incapable of entertaining a necessary specific intent to effect death.” Brogie v.

State, 695 P.2d 538, 546 (Okla. Crim. App. 1985). Mr. Boltz claims to have

ingested prescription medication with a large amount of alcohol the day of the

killing and that Mr. Miller should have investigated this and brought it to the

jury’s attention. Mr. Boltz argues he was prejudiced by this alleged error because

evidence of intoxication “makes a much more compelling case for either a

defense to the crime or a lesser included offense.”

4
(...continued)
night he was arrested.

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 Contrary to Mr. Boltz’s assertion, he was not prejudiced by Mr. Miller’s

failure to develop an intoxication defense because the jury would have returned

the same verdict even had such evidence been before it. “When voluntary

intoxication is relied upon as an affirmative defense, the defendant must

introduce sufficient evidence to raise a reasonable doubt as to his ability to form

the requisite criminal intent.” Brogie, 695 P.2d at 546. As the District Court

reasoned, however, Mr. Boltz “cannot escape the fact the jury was informed he

had stated to Pat Kirby shortly before the murder that he was going to cut off her

son’s head. Shortly thereafter, in addition to other multiple stab wounds, [Mr.

Boltz] nearly decapitated the victim with his knife.” In other words, the evidence

clearly shows Mr. Boltz had formed the specific intent to kill Mr. Kirby; indeed,

he informed his wife of that intention. Because testimony that Mr. Boltz had

been drinking heavily while on prescription drugs earlier in the day would in no

way call that evidence into question, habeas relief on this ground is denied.

13. Failure to Rebut the Burglary Allegation

During the penalty phase of the trial, the State offered evidence that Mr.

Boltz broke into Mr. Kirby’s home looking for Ms. Kirby after killing her son but

before going to the American Legion, in order to establish the aggravating

circumstance that there was a probability Mr. Boltz would commit criminal acts

of violence constituting a continuing threat to society. See Okla. Stat. Ann. tit.

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21, § 701.12(7). Specifically, the State put on testimony that the morning after

Mr. Kirby’s death, police discovered the door to his home splintered as a result

of forcible entry. Although nothing was missing, a picture on the floor was

shattered. Mr. Boltz argues that Mr. Miller was ineffective because he did not

rebut the State’s allegation by putting on evidence that it would have been

impossible for Mr. Boltz to have committed the burglary and still arrive at the

American Legion when he did.

Assuming Mr. Miller should have pursued this line of attack—which,

given the testimony of Officer Moody and the other witnesses at the American

Legion Hall, is a dubious assumption at best—we are not convinced that the

burglary was essential to the jury’s finding of the continuing threat aggravating

circumstance. Ms. Kirby testified that after Mr. Boltz told her he was going to

kill her son, he told her that he would also kill her. Mr. Boltz subsequently

carried through on the first threat. Even if the jury did not believe that Mr. Boltz

broke in to Mr. Kirby’s home looking for Ms. Kirby the night of the killing, the

fact remains that Mr. Boltz threatened Ms. Kirby’s life shortly before he killed

her son. As the State stated during the penalty phase, “the Defendant appears to

harbor extreme ill will towards the mother of the victim, and . . . she is still

alive.” Therefore, in light of that evidence, we are unpersuaded that had Mr.

Miller demonstrated that Mr. Boltz did not burglarize Mr. Kirby’s residence, the

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jury might have found that Mr. Boltz was not a continuing threat to society.

14. Penalty Phase Mitigation Witnesses

Mr. Boltz’s final contention with respect to his ineffective assistance claim

is that Mr. Miller should have conducted a proper investigation of possible

mitigation witnesses and then called such witnesses to testify during the penalty

phase.

To begin, we note that Mr. Miller made a record at trial that Mr. Boltz did

not want him to present mitigation witnesses:

MR. MILLER: I want the record to show that Mr. Boltz has advised
me that he does not wish to present any additional evidence to this
jury during the punishment stage, with the exception of a stipulation
that the District Attorney and the defense are entering into; and that
stipulation being, that Mr. Boltz has no prior criminal record, which
is not to say that we aren’t going to present argument, and that sort
of thing. But we intend to offer no other evidence.

And that’s your—your instructions to me; is that correct? Would you
say “Yes”—

MR. BOLTZ: Yes.

...

THE COURT: All right.

Trial Tr. at 687–88.

Instead, Mr. Miller incorporated the testimony of four character witnesses

who appeared in the guilt phase of the trial. Moreover, Mr. Miller testified at the

evidentiary hearing that he conducted an investigation into possible mitigation

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evidence, but ultimately did not call witnesses—including members of Mr.

Boltz’s church—in part because they either did not know Mr. Boltz well, were

unwilling to testify, or had criminal records or other problems that would

undermine their efficacy as a mitigation witness. Indeed, Mr. Miller testified that

his investigation produced “very few people that would be willing to offer any

kind of evidence in mitigation for Mr. Boltz.”

Mr. Boltz argues, however, that had Mr. Miller conducted an adequate

investigation, he would have discovered many helpful witnesses. The District

Court examined the proffered testimony of these witnesses during the evidentiary

hearing and concluded that they would have testified in the same manner as the

character witnesses in the guilt phase of the trial—namely, “that [Mr. Boltz] was

a good guy, honest and likable”—and that, given the nature of the crime, there

was not a possibility that their cumulative testimony would have altered the

jury’s decision to impose death. 5

Upon a review of the record, we agree. The State presented two possible

aggravating circumstances: that the killing was “especially heinous, atrocious or

cruel,” and that Mr. Boltz was a continuing threat to society. The fact that these

5
Moreover, the District Court concluded, and we agree, that the value of
some of the witness’ testimony is debatable due to lengthy periods of time since
they had last interacted with Mr. Boltz and due to the limited nature of their
relationships.

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witnesses considered Mr. Boltz to be a good person would not have supported the

notion that the crime was not committed in a heinous, atrocious, or cruel manner.

Additionally, the fact that Mr. Boltz threatened to kill Ms. Kirby shortly before

he killed her son provides more than adequate support for finding the continuing

threat aggravating circumstance, even if witnesses testified that Mr. Boltz was

generally an upstanding citizen. Accordingly, habeas relief is denied as to this

claim.

In sum, because we conclude that Mr. Miller’s performance either was not

deficient or not prejudicial, we conclude that his conduct did not rise to the level

of ineffective assistance of counsel; therefore, habeas relief is not warranted. 6

III. INSUFFICIENT EVIDENCE TO PROVE THE “CONTINUING
THREAT” AGGRAVATING CIRCUMSTANCE

A. Standard of Review

Mr. Boltz next argues that he is entitled to habeas relief because the

evidence was not sufficient to support the jury’s finding of the aggravating

circumstance that there was a probability he would commit criminal acts of

violence constituting a continuing threat to society. See Okla. Stat. Ann. tit. 21,

§ 701.12(7). In contrast to Mr. Boltz’s first claim for relief, the OCCA decided

Mr. Boltz does not raise the issue of cumulative error. See United States
6

v. Toles, 297 F.3d 959, 972 (10th Cir. 2002). Nonetheless, we have reviewed the
issue and conclude that it does not provide a basis for relief in this case.

-26-
this issue on the merits and rejected it. Therefore, under AEDPA, we review the

OCCA’s determination and may not issue a writ of habeas corpus unless that

decision:

(1) . . . was contrary to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court of the United
States; or
(2) . . . 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). In addition, we presume that the OCCA’s factual

determinations are correct, and Mr. Boltz has the burden to rebut that

presumption by clear and convincing evidence. See 28 U.S.C. § 2254(e)(1).

Our case law is unclear whether a sufficiency of the evidence claim

presents a question of law that is reviewed under § 2254(d)(1) or a question of

fact reviewable under § 2254(d)(2). See Turrentine v. Mullin, 390 F.3d 1181,

1197 (10th Cir. 2004); Hogan v. Gibson, 197 F.3d 1297, 1306 (10th Cir.1999);

Moore v. Gibson, 195 F.3d 1152, 1176 (10th Cir. 1999). Nonetheless, we need

not decide this issue because the OCCA’s determination is neither contrary to

clearly established federal law nor based on an unreasonable determination of the

facts.

B. Merits

In this case, the OCCA concluded that evidence showing that Mr. Boltz

lured Mr. Kirby to his trailer, called Ms. Kirby and told her he was going to kill

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her son, told Ms. Kirby he would also kill her within the hour, entered Mr.

Kirby’s home looking for Ms. Kirby after he killed her son, and had bragged

about killing before, combined with the sheer callousness in the manner the

murder was committed, sufficiently supported the jury’s finding of the continuing

threat aggravator. See Boltz, 806 P.2d at 1125. Mr. Boltz does not argue that the

OCCA’s determination of these facts is unreasonable; therefore, we presume

them to be correct. See 28 U.S.C. § 2254(e)(1). Hence, we find there is a clear

basis for the OCCA’s factual determinations; as such, habeas relief is not

warranted under § 2254(d)(2). Therefore, we turn to Mr. Boltz’s specific

arguments and analyze whether the OCCA’s upholding of the jury’s finding is

contrary to clearly established federal law.

1. Evidence

First, Mr. Boltz contends that the introduction of an unadjudicated

offense—namely, the burglary of Ms. Kirby’s home—during the sentencing phase

in a capital case is a violation of due process; he argues that due process is

satisfied only when there is sufficient “indicia of reliability” supporting the claim

that the defendant committed the offense. He argues that no such indicia of

reliability exist here, pointing out that his appellate counsel’s investigator drove

the route between Mr. Boltz’s trailer, Mr. Kirby’s house, and the American

Legion, and concluded that it would have been impossible for Mr. Boltz to have

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committed the burglary in the time frame alleged by the State.

The Supreme Court has emphasized the “‘need for reliability in the

determination that death is the appropriate punishment in a specific case.’”

Caldwell v. Mississippi, 472 U.S. 320, 340 (1985) (vacating sentence where

prosecution misled jury into believing that responsibility for determining the

appropriateness of a death sentence lies with the appellate court which will

review the jury’s decision, rather than with the jury itself) (quoting Woodson v.

North Carolina, 428 U.S. 280, 305 (1976) (plurality opinion)). Nonetheless, the

Supreme Court itself has never indicated, as is required for Mr. Boltz to obtain

relief, see Williams v. Taylor, 529 U.S. 362, 411 (2000), that only those

unadjudicated offenses which are supported by sufficiently reliable evidence may

be introduced in the sentencing phase of a capital case. To the contrary, in

Williams v. New York, the Court held that due process is not implicated when the

sentencing judge imposes death based in part on evidence of the defendant’s

unadjudicated offenses that were not introduced at trial and which were therefore

not subject to cross-examination by the defendant. 337 U.S. 241, 250–52 (1949);

see also Nichols v. United States, 511 U.S. 738, 747–48 (1994) (citing Williams

and stating that “[s]entencing courts have not only taken into consideration a

defendant’s prior convictions, but have also considered a defendant’s past

criminal behavior, even if no conviction resulted from that behavior.”). And,

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following Williams, this Court has flatly held that “the admission of evidence of

unadjudicated offenses at a sentencing proceeding does not violate due process.”

Hatch v. Oklahoma, 58 F.3d 1447, 1465 (10th Cir. 1995). Therefore, the OCCA

did not act contrary to clearly established federal law when it determined that

evidence that Mr. Boltz burglarized Mr. Kirby’s home could properly be

presented to the jury.

Mr. Boltz next argues that a nonviolent crime, such as the alleged burglary,

is insufficient to support a finding of a probability of future criminal acts of

violence. While it is true that under Oklahoma law, a nonviolent crime standing

alone cannot be the basis for finding the continuing threat aggravator, see Torres

v. State, 962 P.2d 3, 23 (Okla. Crim. App. 1998), neither Oklahoma nor the

United States Supreme Court has ever prohibited a jury from considering the

defendant’s nonviolent offenses in conjunction with other factors when

determining whether the defendant poses a future risk to society. Because the

OCCA affirmed the jury’s finding based on facts other than simply the

burglary—namely, that Mr. Boltz had talked about killing people and how it did

not bother him to do so, and that he had threatened to kill Ms. Kirby later on in

the evening (a threat that was directly linked to his forced entry of Mr. Kirby’s

home)—the OCCA did not act contrary to federal law when it accounted for the

burglary in its analysis of the continuing threat aggravator.

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 Finally, Mr. Boltz contends that allowing the continuing threat aggravator

to be supported only by the callous nature of the murder violates the Eighth

Amendment under clearly established law because every first-degree murder is

“callous.” See Tuilaepa v. California, 512 U.S. 967, 972 (1994) (explaining that

an aggravating circumstance “must apply only to a subclass of defendants

convicted of murder.”); Arave v. Creech, 507 U.S. 463, 474 (1993) (“If the

sentencer fairly could conclude that an aggravating circumstance applies to every

defendant eligible for the death penalty, the circumstance is constitutionally

infirm.”). We disagree.

First, and most important, Mr. Boltz mischaracterizes the OCCA opinion.

It did not rest its determination on callousness alone. As that court held:

The record reveals that appellant lured the victim to his trailer, and
while he was en route, appellant called Ms. Kirby to tell her that he
was going to kill Doug and threatened to kill her within the hour.
There was further evidence that appellant had attempted to enter
Doug’s house in an attempt to find her. Other testimony revealed
that appellant had bragged about killing before. These facts
combined with the sheer callousness in which this murder was
committed amply support the jury’s finding of this aggravating
circumstance.

Boltz, 806 P.2d at 1125. Moreover, Mr. Boltz fails to satisfy the demanding

§ 2254(d)(1) standard here. It is far from clearly established that every first-

degree murder is callous, thereby making callousness an impermissible basis for

the imposition of the death penalty. Therefore, because we cannot conclude that

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the OCCA’s conclusion is contrary to clearly established federal law as

established by the Supreme Court or an unreasonable application of Supreme

Court precedent, we must deny habeas relief on this ground as well.

2. Sufficiency of the Evidence

Having determined that the OCCA did not act contrary to clearly

established federal law when it relied on the foregoing evidence in considering

the jury’s finding of the continuing threat aggravating factor, we turn now to

whether it acted contrary to clearly established federal law when it concluded that

the evidence was sufficient to sustain the jury’s finding. Sufficiency of the

evidence claims are reviewed under the “rational fact-finder” standard announced

in Jackson v. Virginia, 443 U.S. 307, 319 (1979), and require appellate courts to

determine, after reviewing the evidence presented at trial in the light most

favorable to the government, whether any rational trier of fact could have found

the aggravating circumstance existed beyond a reasonable doubt. This standard

is based on our system’s longstanding principle that it is the province of the jury

to evaluate the evidence and to draw reasonable inferences from trial testimony.

Jackson, 443 U.S. at 319. Our review under Jackson 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

-32-
defer to that resolution.” Turrentine, 390 F.3d at 1197 (quotations and

alterations omitted). We must accept the jury’s determination as long as it is

within the bounds of reason. Messer v. Roberts, 74 F.3d 1009, 1013 (10th Cir.

1996). Our review is even more limited given that AEDPA governs this issue.

See 28 U.S.C. § 2254(d)(1).

In this case, evidence of Mr. Boltz’s comments to Mr. Morrison about

killing people and cutting off their heads, in conjunction with Mr. Boltz’s threat

to Ms. Kirby that he would kill her after he finished killing her son, and evidence

that Mr. Boltz entered Mr. Kirby’s home looking for Ms. Kirby after the killing,

is more than sufficient for a rational factfinder to find that there was a probability

that Mr. Boltz would commit criminal acts of violence that would constitute a

continuing threat to society. Mr. Boltz contends that these statements were only

“false braggadocio.” He points out that he had no prior criminal record at the

time and many character witnesses testified that he was a peaceful and law-

abiding citizen. Even if Mr. Boltz’s implied threats were empty, however, a

rational juror could conclude that he was telling the truth and was threatening

similar action in the future. This is all that is necessary under Jackson, and Mr.

Boltz’s argument that he had not in fact killed anyone in Korea does not prevent

the jury from coming to its own reasonable conclusion about Mr. Boltz’s intent in

making the statements. Therefore, the OCCA did not act contrary to Jackson or

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other clearly established federal law in upholding the jury’s finding of this

aggravating circumstance. Accordingly, habeas relief is not warranted on this

issue.

IV. FAILURE TO INSTRUCT ON LESSER INCLUDED OFFENSE OF
HEAT OF PASSION MANSLAUGHTER

Mr. Boltz’s final basis for relief is that the trial court should have

instructed the jury on the offense of heat of passion manslaughter. 7 The OCCA

rejected this argument because it found that the evidence at trial did not support

such an instruction.

A. Standard of Review

Because the OCCA decided this issue on the merits, AEDPA applies.

Therefore, as discussed above, we will not reverse the OCCA’s determination

unless it was contrary to clearly established federal law or was based on an

unreasonable determination of the facts. 28 U.S.C. § 2254(d)(1)–(2). Again, this

Court has not decided whether a question concerning the sufficiency of the

evidence to support the giving of a lesser included offense instruction is a matter

of law or fact, and therefore reviewable under § 2254(d)(1) or § 2254(d)(2). See,

Under Oklahoma law, there are three types of first-degree manslaughter:
7

heat of passion manslaughter, manslaughter while committing a misdemeanor,
and manslaughter while resisting an attempt by the person killed to commit a
crime. See Okla. Stat. Ann. tit. 21, § 711. The trial judge ultimately instructed
on manslaughter while resisting an attempt by the person killed to commit a
crime—the crime ostensibly being assault.

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e.g., Turrentine, 390 F.3d at 1197. Because we hold that the OCCA’s rejection

of Mr. Boltz’s argument was neither contrary to federal law nor involved an

unreasonable determination of the facts, we do not grant relief on this issue.

B. Merits

First, the OCCA’s legal decision to reject Mr. Boltz’s claim because the

evidence did not support a heat of passion manslaughter instruction was not

contrary to clearly established federal law. Due process requires a judge to give a

lesser included offense instruction “only when the evidence warrants such an

instruction.” Hopper v. Evans, 456 U.S. 605, 611 (1982) (emphasis omitted).

Therefore, the OCCA did not err, in light of clearly established federal law, when

it reasoned that the trial court must have heard evidence supporting the instruction

before it could have given such an instruction.

Second, the OCCA’s determination that the actual evidence at trial did not

support the instruction was not based on an unreasonable determination of the

facts. Heat of passion manslaughter is defined, in part, as a homicide “perpetrated

without design to effect death.” Okla. Stat. Ann. tit. 21, § 711(2); see also

Walker v. State, 723 P.2d 273, 283–84 (Okla. Crim. App. 1986). Under

Oklahoma law, a “design to effect death” means “an intent to kill.” Walker v.

Gibson, 228 F.3d 1217, 1238 (10th Cir. 2000) abrogated on other grounds by

Neill v. Gibson, 278 F.3d 1044, 1057 n.5 (10th Cir. 2001) (en banc footnote);

-35-
Smith v. State, 932 P.2d 521, 532–33 (Okla. Crim. App. 1996). In support of its

determination that the evidence did not warrant a heat of passion instruction, the

OCCA found that “the evidence clearly showed [Mr. Boltz] had a design to effect

death.” Boltz, 806 P.2d at 1124.

Although the OCCA did not state the facts on which it relied in making this

specific determination, based on our review of the evidence at trial, the OCCA

could conclude that Mr. Boltz lured Mr. Kirby to his home, after which he phoned

Ms. Kirby and told her that he was going to decapitate her son, and then did so

after stabbing him multiple times. Indeed, the OCCA found these same facts in

relation to Mr. Boltz’s argument concerning the continuing threat aggravating

circumstance that we analyzed above. See Boltz, 806 P.2d at 1125. We conclude

that the OCCA’s finding that Mr. Boltz clearly intended to kill Mr. Kirby is an

entirely reasonable determination of the facts—even in light of Mr. Boltz’s

testimony that he was not in a rational frame of mind on the night of the killing

and had a prior history as a law-abiding citizen—and is more than sufficient to

support the OCCA’s finding that the evidence did not support giving a heat of

passion instruction. See also United States v. Chapman, 615 F.2d 1294, 1298

(10th Cir. 1980) (quoting Keeble v. United States, 412 U.S. 205, 208 (1973), and

holding that a lesser included instruction must be given only “‘if the evidence

would permit a jury rationally to find [the defendant] guilty of the lesser offense

-36-
and acquit him of the greater.’”). Therefore, under the highly deferential standard

of review set forth in both § 2254(d)(1) and § 2254(d)(2), we hold that the

OCCA’s determination that the evidence did not support a heat of passion

instruction was not unreasonable in light of the law or the facts. Habeas relief on

this issue is denied.

V. CONCLUSION

Mr. Miller’s performance at both the guilt and sentencing phases of Mr.

Boltz’s trial does not cause us to question either the jury’s verdict or its decision

to impose the death penalty; therefore, habeas relief based on Mr. Boltz’s claim of

ineffective assistance of counsel is not warranted. In addition, the OCCA did not

act contrary to clearly established federal law or base its decision on an

unreasonable determination of the facts when it concluded that the evidence

supported the jury’s finding of the continuing threat aggravating circumstance and

when it concluded that Mr. Boltz was not entitled to an instruction on heat of

passion voluntary manslaughter. Accordingly, we AFFIRM the District Court’s

denial of Mr. Boltz’s habeas petition.

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