Malicoat v. Mullin

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
October 11, 2005
UNITED STATES COURT OF APPEALS
Clerk of Court
TENTH CIRCUIT

JAMES PATRICK MALICOAT,

Petitioner-Appellant,

v. No. 03-6301

MIKE MULLIN, Warden, Oklahoma
State Penitentiary at McAlester,

Respondent-Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
(D.C. No. CIV-01-018-M)

Scott W. Braden, Assistant Federal Public Defender, Death Penalty Federal
Habeas Corpus Division, Oklahoma City, Oklahoma, for Petitioner-Appellant.

Jennifer J. Dickson, Assistant Attorney General, Criminal Division (W.A. Drew
Edmondson, Attorney General, with her on the brief), State of Oklahoma,
Oklahoma City, Oklahoma, for Respondent-Appellee.

Before HENRY , BRISCOE , and O’BRIEN , Circuit Judges.

HENRY, Circuit Judge.
 Petitioner James Patrick Malicoat was convicted in Grady County,

Oklahoma District Court of first-degree felony murder by child abuse. Following

the jury’s recommendation, the trial court imposed the death penalty.

The Oklahoma Court of Criminal Appeals (OCCA) affirmed Mr. Malicoat’s

conviction and sentence. See State v. Malicoat, 992 P.2d 383 (Okla. Crim. App.

2000). Then, in an unpublished opinion, the OCCA denied Mr. Malicoat’s

application for post-conviction relief. Subsequently, the federal district court

denied Mr. Malicoat’s 28 U.S.C. § 2254 habeas petition.

In this appeal, Mr. Malicoat argues that: (1) his counsel on direct appeal

was ineffective for failing to argue that a carving in the courtroom bearing the

inscription “AN EYE FOR AN EYE AND A TOOTH FOR A TOOTH” deprived

him of a fair trial. Mr. Malicoat also argues that the OCCA erred by (2)

concluding that, under Beck v. Alabama, 447 U.S. 625, 627 (1980), he was not

entitled to an instruction on the lesser-included offense of second-degree

depraved-mind murder; (3) concluding that no finding of Mr. Malicoat’s intent to

kill was required to support the death sentence, in violation of the Eighth

Amendment principles set forth in Enmund v. Florida, 458 U.S. 782 (1982) and

Tison v. Arizona, 481 U.S. 137 (1987); (4) rejecting Mr. Malicoat’s claim that the

prosecution’s closing arguments during the guilt and sentencing stages deprived

him of a fair trial; (5) concluding that the admission of a photograph of the victim

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while alive, although error, was harmless; (6) rejecting Mr. Malicoat’s claim that

he received ineffective assistance of counsel at trial. Finally, Mr. Malicoat argues

that (7) the cumulative effect of these errors also deprived him of a fair trial.

We are not convinced by these arguments. First, the display of the “EYE

FOR AN EYE” inscription on the carving in the courtroom did not constitute

structural error. Thus, Mr. Malicoat’s Sixth Amendment right to effective

assistance of counsel was not violated by his attorney’s failure to challenge it on

direct appeal. Second, as to Mr. Malicoat’s Enmund/Tison argument, we

conclude that the OCCA did not unreasonably apply federal law in holding that,

in order to impose the death penalty, the prosecution was not required to prove

that Mr. Malicoat intended the death of the victim or acted in reckless disregard

of human life. As to Mr. Malicoat’s Beck claim, we similarly conclude that the

OCCA did not unreasonably apply federal law in holding that Mr. Malicoat was

not entitled to an instruction on second-degree depraved-mind murder. Mr.

Malicoat’s claims of prosecutorial misconduct, admission of prejudicial evidence,

ineffective assistance of trial counsel, and cumulative error also lack merit.

Accordingly, we conclude that the district court properly denied Mr. Malicoat’s

28 U.S.C. § 2254 petition.

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 I. BACKGROUND

The relevant facts are set forth in the OCCA’s opinion on direct appeal.

See 992 P.2d at 391-92. As a result, we only briefly summarize them here.

At about 8:25 p.m. on February 21, 1997, Mr. Malicoat and his girlfriend,

Mary Ann Leadford, brought their thirteen-month-old daughter, Tessa Leadford,

to the county hospital emergency room. The hospital staff determined that Tessa

had been dead for several hours. Her face and body were covered with bruises.

She had a large mushy closed wound on her forehead and three human bite marks

on her body. A post-mortem examination revealed two subdural hematomas from

the head injury, and severe internal injuries, including broken ribs, internal

bruising and bleeding, and a torn mesentery. The medical examiner concluded the

death was caused by a combination of the head injury and internal bleeding from

the abdominal injuries.

Tessa and Mary Ann Leadford had begun living with Mr. Malicoat on

February 2, 1997. Mr. Malicoat worked a night shift on an oil rig and was

responsible for Tessa’s care during the day.

Mr. Malicoat admitted that he routinely poked Tessa hard in the chest area

and occasionally bit her, both as a disciplinary measure and in play. When

interviewed by police officers, Mr. Malicoat initially denied knowing how Tessa

had received the severe head injury. Subsequently, he suggested that she had

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fallen and hit the edge of a waterbed frame. However, he eventually admitted that

he had hit her head on the bed frame one or two days before she died. He also

admitted that, at about 12:30 p.m. on February 21, while Ms. Leadford was at

work, he twice punched Tessa hard in the stomach. He stated that Tessa stopped

breathing and that he gave her CPR. According to Mr. Malicoat, when Tessa

began breathing again, he gave her a bottle containing a soft drink and went to

sleep next to her on the bed. When he awoke around 5:30 p.m., she was dead. He

put Tessa in her crib and covered her with a blanket, spoke briefly with Ms.

Leadford, and went back to sleep in the living room. Ms. Leadford eventually

discovered that Tessa was not moving, and the couple took her to the emergency

room.

Seeking to explain the events leading to Tessa’s death, Mr. Malicoat

reported that he had worked all night, had car trouble, took Ms. Leadford to work,

and was exhausted. He added that he had hit Tessa when she would not lie down

so he could sleep. He said he sometimes intended to hurt Tessa when he

disciplined her, but never meant to kill her. He told the officers that he had

suffered through extreme abuse as a child that he did not realize his actions would

seriously hurt or kill Tessa.

The state charged Mr. Malicoat with first-degree felony murder by child

abuse under O KLA . S TAT . tit. 21, § 701.7(C). A first trial ended with a mistrial

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during jury selection. After the second trial, the jury convicted Mr. Malicoat of

the murder charge. Then, upon hearing additional evidence at sentencing, the jury

found two aggravating factors: (1) that the murder was especially heinous,

atrocious, and cruel and (2) that there existed a probability that Mr. Malicoat

would commit criminal acts of violence that constituted a continuing threat to

society. See O KLA S TAT . tit. 21, § 701.12(4) and (7). Following the jury’s

recommendation, the trial court imposed the death penalty.

The OCCA affirmed Mr. Malicoat’s conviction and sentence on direct

appeal and then rejected his petition for post-conviction relief. Subsequently, the

federal district court denied Mr. Malicoat’s federal habeas petition.

II. DISCUSSION

We begin by addressing the standard of review. Then, we proceed to the

merits of Mr. Malicoat’s claims.

A. Standard of Review

Because Mr. Malicoat filed his § 2254 habeas corpus petition after the

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

its provisions apply to this appeal. See Smallwood v. Gibson , 191 F.3d 1257,

1264 (10th Cir. 1999). Under AEDPA, a federal court may only grant habeas

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relief on a claim adjudicated on the merits by a state court if the state court

proceedings “resulted in a decision that was contrary to, or involved an

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

Supreme Court,” 28 U.S.C. § 2254(d)(1), or “resulted in a decision that was based

on an unreasonable determination of the facts in light of the evidence presented in

the State court proceeding,” id. § 2254(d)(2). In addition, AEDPA directs federal

courts to presume that the factual findings of the state court are correct unless the

petitioner can rebut this presumption by clear and convincing evidence. See id. §

2254(e)(1); Smith v. Mullin , 379 F.3d 919, 924-25 (10th Cir. 2004).

In Williams v. Taylor , 529 U.S. 362 (2000), the Supreme Court provided

guidance as to when a state court decision may be deemed “contrary to” or “an

unreasonable application of” established Supreme Court precedent pursuant to

section 2254(d)(1). As to the former term, the Court explained that a state court

decision is “contrary to” the Court’s clearly established precedent in two

circumstances: (1) when “the state court applies a rule that contradicts the

governing law set forth in [the Court’s] cases” and (2) when “the state court

confronts a set of facts that are materially indistinguishable from a decision of

[the] Court and nevertheless arrives at a result different from” the result reached

by the Supreme Court. Id. at 405-06. As to the latter term, the Court explained

that a state court decision constitutes “an unreasonable application” of Supreme

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Court precedent if “the state court identifies the correct governing legal principle

from [the] Court’s decisions but unreasonably applies that principle to the facts of

the prisoner’s case.” Id. at 413. Thus, “[u]nder § 2254(d)(1)’s ‘unreasonable

application’ clause, . . . a federal habeas court may not issue the writ simply

because that court concludes in its independent judgment that the relevant

state-court decision applied clearly established federal law erroneously or

incorrectly. Rather, that application must also be unreasonable.” Id. at 411; see

also Thomas v. Gibson , 218 F.3d 1213, 1219-20 (10th Cir. 2000) (discussing

Williams ).

As we discuss more fully below, with regard to Mr. Malicoat’s claims

regarding ineffective assistance of appellate and trial counsel, the OCCA applied

state law standards that differ from the federal standard. We therefore engage in

de novo review of those claims. In contrast, the OCCA based its rejection of Mr.

Malicoat’ s Beck, Enmond-Tison , prosecutorial misconduct, and evidentiary

claims on its reading of federal law. Therefore, as to those claims, we apply

AEDPA’s standard of review and consider whether the OCCA’s decision was

unreasonable. Finally, as to Mr. Malicoat’s claim for cumulative error, it is not

clear that the OCCA applied the federal standard. Accordingly, we afford Mr.

Malicoat the benefit of the doubt and engage in de novo review of that claim as

well.

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 B. Merits

1. Ineffective Assistance of Appellate Counsel
(in failing to challenge the “EYE FOR AN EYE” inscription)

Mr. Malicoat first argues that he received ineffective assistance of counsel

on direct appeal. His claim is based upon a wooden carving on the wall directly

behind the judge’s bench in the Grady County, Oklahoma courtroom in which he

was tried. The carving depicts a man and a woman holding a sword bearing the

inscription “AN EYE FOR AN EYE AND A TOOTH FOR A TOOTH.” 1

Mr. Malicoat objected to the inscription during jury selection in his first

trial, and the judge responded by covering it up. However, a different judge

1
Mr. Malicoat attached two photographs of the carving to his state court
application for post-conviction relief, and they are attached as an exhibit to this
opinion.
A 1976 article from the Chickasha Daily Express reports that the carving
was made by Derald Swineford in 1934. The article states that the carving is
entitled “Justice Tempered by Mercy.” Fed. Ct. Rec. doc. 23, Ex. A (Response to
Petition for Writ of Habeas Corpus, filed Dec. 4, 2001).
According to the Daily Express , “the sword with the harsh inscription ‘An
Eye for an Eye and a Tooth for a Tooth’ carving on the blade and the winged
lions at the bottom represents the early Babylonian code.” Id. “The male figure .
. . represents the [Grecian] practice which was the same as that of Hammurabi, as
he is grasping the sword of justice.” Id.
The female figure represents Mercy. “[She] represents the Roman element
since it seems the Romans were the first to really try a case and decide it not on
the belief that the party guilty of the misdeed should suffer in the same manner as
the recipient but that a group of men should weigh the causes of the misdeed and
decide in what manner the guilty party should be punished or whether he was
deserving of any punishment.” Id.
There is no indication in the record that the title appears anywhere on the
carving, and the parties do not so suggest.

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presided over the second trial, and he overruled Mr. Malicoat’s objection. On

direct appeal, Mr. Malicoat’s counsel did not argue that the inscription deprived

him of a fair trial.

Mr. Malicoat now maintains that the failure to advance this argument was

constitutionally deficient. In particular, he argues that the trial judge’s failure to

cover the inscription constituted “a structural error,” the kind of error that

“necessarily render[ed] [his] trial fundamentally unfair,” Rose v. Clark, 478 U.S.

570, 577 (1986) and that “def[ies] analysis by ‘harmless-error’ standards,”

Arizona v. Fulminante, 499 U.S. 279, 309 (1991). As a result, he asserts, there is

a reasonable probability that, if his appellate counsel had challenged the “EYE

FOR AN EYE” inscription, Mr. Malicoat’s capital sentence would have been

overturned.

In assessing this argument, we begin by examining the OCCA’s

adjudication of this claim in order to determine the appropriate standard of

review. Then, we outline the framework for evaluating claims alleging

ineffective assistance of appellate counsel. Finally, we turn to the particular error

alleged here, the failure to challenge the “EYE FOR AN EYE” inscription as an

improper invocation of religious principle in a capital case, and we consider

whether the inscription constituted a structural error, which, if argued by counsel,

would have led the OCCA to overturn Mr. Malicoat’s sentence.

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A. The OCCA’s decision

Mr. Malicoat first raised this claim in post-conviction proceedings in the

OCCA. There, he argued that the inscription constituted a structural error

because it “creat[ed] an establishment of religion at his public trial; and it denied

him a reliable sentencing free from arbitrary, capricious, and unreliable state

action, in violation of the Eighth and Fourteenth Amendments.” Original

Application for Post-Conviction Relief in a Death Penalty Case, at 34 (filed Nov.

19, 1999). Mr. Malicoat submitted photographs of the carving and the

inscription, but he offered no evidence that the jury could see the inscription

given its vantage point. He argued that his counsel’s failure to challenge the

inscription on direct appeal constituted ineffective assistance of counsel in

violation of the Sixth Amendment.

In rejecting this argument, the OCCA applied the three-part test for

ineffective assistance of counsel claims set forth in its prior decisions. See Order

Denying Application for Post-Conviction Relief and Application for Exercise of

Original Jurisdiction, filed Feb. 1, 2000, at 3 (citing Walker v. State, 933 P.2d

327, 333 (Okla. Crim. App. 1997)). 2 Under that standard, “omission of

2
Notably, Judge Chapel vigorously dissented. He concluded that:

the sign over the Grady Courthouse bench, reading “AN EYE FOR AN
EYE & A TOOTH FOR A TOOTH,” [is] inappropriate in any criminal
(continued...)

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meritorious claims [from an appellate brief] will ‘rarely, if ever,’ constitute

deficient performance.” Id. at 3 (quoting Bryan v. State, 948 P.3d 1230, 1233

(Okla. Crim. App. 1997)).

This circuit has held that the OCCA’s three-part standard does not comport

with the established federal standard for evaluating Sixth Amendment ineffective

assistance of counsel claims under Strickland v. Washington, 466 U.S. 668, 687

(1984). See Cargle v. Mullin, 317 F.3d 1196, 1203-04 (10th Cir. 2003)

(concluding that the OCCA’s decisions appeared to require a petitioner asserting

ineffective assistance of appellate counsel to establish not only that counsel had

omitted an issue from an appeal “but also an improper motive or cause behind

counsel’s omission of the issue” and that this approach “appears to involve the

very inquiry that the Supreme Court specifically repudiated”). Accordingly, we

will not defer to the OCCA’s conclusion. See id. at 1205 (“Because the OCCA’s

2
(...continued)
trial. As I have previously said, in the context of a capital trial I
believe that sign is outrageous and unconstitutional. This violates Art.
I, § 2 of the Oklahoma Constitution and the 1st, 5th, and 14th
Amendments of the United States Constitution.

Order Denying Application for Post-Conviction Relief and Application for Exercise
of Original Jurisdiction, filed Feb. 1, 2000 (Chapel, J., dissenting) (footnote
omitted). In a prior case, Judge Chapel also dissented on the same grounds. See
Anderson v. Oklahoma, No. PC-99-818 (Okla. Crim. App. Jan. 26, 2000) (Chapel,
J., dissenting).

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analysis of petitioner’s appellate ineffectiveness allegations deviated from the

controlling federal standard, . . . it is not entitled to deference.”). Instead, we

examine Mr. Malicoat’s claim of ineffective assistance of appellate counsel de

novo, applying the familiar standard established by Strickland. Id.

B. Ineffective Assistance of Appellate Counsel

In order to prevail, Mr. Malicoat must first demonstrate that his appellate

counsel’s performance was deficient. Secondly, Mr. Malicoat must demonstrate

that his counsel’s performance prejudiced his defense. Strickland, 466 U.S. at

687.

Deficient performance entails an error so serious that counsel was not

functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.

Id. Counsel’s representation must fall below “an objective standard of

reasonableness.” Id. at 688. As to prejudice, Mr. Malicoat must show that “that

there is a reasonable probability that, but for counsel’s unprofessional errors, the

result of the proceeding would have been different.” Id. at 694. The Supreme

Court has defined “[a] reasonable probability” as “a probability sufficient to

undermine confidence in the outcome” of the proceeding. Id.

When, as here, a habeas petitioner’s Sixth Amendment claim is based upon

appellate counsel’s failure to raise a particular issue, the Supreme Court has

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recognized that “appellate counsel who filed a merits brief need not (and should

not) raise every nonfrivolous claim, but rather may select from among them in

order to maximize the likelihood of success on appeal.” Smith v. Robbins, 528

U.S. 259, 288 (2000) (citing Jones v. Barnes, 463 U.S. 745 (1983)). Indeed, the

winnowing out of weaker arguments so that counsel may focus the court’s

attention on those more likely to prevail “is the hallmark of effective advocacy.”

Tapia v. Tansy, 926 F.2d 1554, 1564 (10th Cir. 1991).

Nevertheless, in certain circumstances, appellate counsel’s omission of an

issue may constitute ineffective assistance under Strickland. In analyzing such

claims, the court must consider the merits of the omitted issue. Smith, 528 U.S.

at 288; Cargle, 317 F.3d 1202. “If the omitted issue is so plainly meritorious that

it would have been unreasonable to winnow it out even from an otherwise strong

appeal, its omission may directly establish deficient performance.” Cargle, 317

F.3d at 1202 (discussing Smith, 528 U.S. at 288). On the other hand, if the

omitted issue has merit but is not so compelling, we must examine the issue in

relation to the rest of the appeal. Id. Habeas relief is warranted only if the

petitioner establishes a reasonable probability of a favorable result had his

appellate counsel raised the omitted issue. Neill v. Gibson, 278 F.3d 1044, 1057

n.5 (10th Cir. 2001) (applying Strickland, 466 U.S. at 694).

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 C. Alleged Structural Error

Here, the issue omitted from Mr. Malicoat’s counsel’s brief on direct

appeal involves his right to a fair trial under the Sixth and Fourteenth

Amendments and his Eighth Amendment right to an individualized jury

determination as to whether the death penalty should be imposed. Mr. Malicoat

notes that the phrase “an eye for an eye and a tooth for a tooth” occurs in three

chapters of the Old Testament. See Aplt’s Br. at 10-11 (citing L EVITICUS 24:19-

21; E XODUS 21:24; and D EUTEROMONY 19:21). He thus maintains that the

inscription on the carving in the Grady County courtroom constituted a “specific

Biblical exhortation[] demanding a sentence of death that [was] part of the

official government facility.” Aplt’s Br. at 10. In his view, the inscription “told

the jury if it found Mr. Malicoat guilty it should sentence him to death,” it

“prevent[ed] the jury from making the specific findings required to determine the

existence of aggravating and mitigating circumstances,” and it “announc[ed] to

the jurors [that] the State chooses the death penalty for murderers, regardless of

what the instructions say.” Id. at 11-12.

In the state post-conviction proceedings, Mr. Malicoat characterized the

trial court’s refusal to cover the “EYE FOR AN EYE” inscription as a structural

error. See Original Application For Post-Conviction Relief in a Death Penalty

Case, at 9-34 (filed Nov. 19, 1999). He argued that the display of the inscription

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throughout the trial violated the Establishment Clause and rendered his death

sentence reversible per se. Although, in his brief to this court, Mr. Malicoat does

not use the term “structural error,” he advances essentially the same argument that

he did in the state post-conviction proceedings. See Aplt’s Br. at 11 (stating that

the inscription on the carving “undermined every aspect of the Constitutional

framework mandated for capital trials”).

In advancing this argument, Mr. Malicoat faces a high hurdle. As the

Supreme Court has often observed, structural errors occur in only a “very limited

class of cases.” Johnson v. United States, 520 U.S. 461, 468 (1997). Errors

deemed to be “structural” have included the total deprivation of the right to

counsel at trial, a biased presiding judge, the systematic exclusion of members of

the defendant’s own race from a grand jury, the denial of the right to

self-representation at trial, the denial of the right to a public trial, the denial of

the right to have a district judge (rather than a magistrate judge) preside over jury

selection, and a defective reasonable doubt instruction. See United States v.

Pearson, 203 F.3d 1243, 1260-61 (10th Cir. 2000) (collecting cases). In contrast

to these fundamental deficiencies in the trial process, most errors can be harmless.

“If the defendant had counsel and was tried by an impartial adjudicator, there is a

strong presumption that any other constitutional errors that may have occurred are

subject to harmless-error analysis.” Rose v. Clark, 478 U.S. 570, 579 (1986).

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 Here, Mr. Malicoat cites no decision holding that a jury’s viewing of

extraneous material analogous to the “EYE FOR AN EYE” constitutes a structural

error. We too have found none.

Moreover, Mr. Malicoat’s structural error argument is undermined by our

decisions concerning jurors’ exposure to particular items of extraneous

information about pending matters. See, e.g., United States v. Scull, 321 F.3d

1270, 1279-81 (10th Cir.) (considering juror’s exposure to an inaccurate report of

attorney-juror contact), cert. denied sub nom., Bono v. United States, 540 U.S.

804 (2003); Vigil v. Zavares, 298 F.3d 935, 940-43 (10th Cir. 2002) (considering

jurors’ exposure to fellow juror’s personal account of how long it took to drive a

certain route—a matter relevant to the prosecution’s alleged time line and the

defendant’s alibi). On direct appeal, “[w]hen members of a jury are exposed to

extraneous information about a matter pending before the jury[,] a presumption of

prejudice arises.” Scull, 321 F.3d at 1280 (citing Remmer v. United States, 347

U.S. 227, 229 (1954)). “The presumption of prejudice weighs heavily in favor of

the defendant but is not insurmountable” and “the government can seek to prove

the exposure to extraneous information was harmless beyond a reasonable doubt.”

Id.

In habeas corpus proceedings, this presumption generally does not apply.

Vigil, 298 F.3d at 940 n.6 (applying Brecht v. Abrahamson, 507 U.S. 619, 637

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(1993)). Thus, the court may grant relief only if the extraneous information “‘had

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

Id. at 940 (quoting Brecht, 507 U.S. at 637). In deciding whether such

information substantially influenced the jury’s verdict the court may consider a

number of factors, such as: (1) the degree to which the jury discussed and

considered the extrinsic information; (2) the extent to which the jury had

difficulty reaching a verdict prior to receiving the improper evidence; (3) the

degree to which the information related to a material fact in the case; (4) when the

jury received the extrinsic evidence; (5) the strength of the legitimate evidence;

and (6) whether the extrinsic evidence merely duplicates evidence properly before

the jury. See id. at 941 (collecting cases). This case-specific, record-intensive

approach is inconsistent with Mr. Malicoat’s assertion of structural error.

Additionally, we have found no federal cases involving prosecutors’ use of

religious material in closing arguments that have characterized such misconduct

as structural error. For example, in Sandoval v. Calderon, 241 F.3d 765, 775-776

(9th Cir. 2001), the prosecutor told the jury in closing argument that God

approved of the death penalty for people like the defendant, whom he

characterized as evil and as defying the authority of the state. He explained that,

by imposing the death penalty, the jury would be “doing what God says.” Id. at

776. Although the court overturned the defendant’s conviction on the grounds of

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prosecutorial misconduct, it did not apply the doctrine of structural error.

Instead, it concluded that the prosecutor’s remarks had actually prejudiced the

defendant. In support of that conclusion, the Sandoval court examined “the likely

effect of the statements in the context in which they were made.” Id. at 778. The

court considered the fact that “this was not a case in which the evidence

overwhelmingly supported the jury’s verdict” and that, after three days of

deliberation, the jury had informed the judge that it was hopelessly deadlocked.

Id. at 779.

Confronting a similar argument by the prosecutor, the Eleventh Circuit also

examined actual prejudice. See Romine v. Head, 253 F.3d 1349, 1368-71 (11th

Cir. 2001). The court inquired whether, absent the improper argument, there was

a reasonable probability that the result would not have been a death sentence. In

answering that question affirmatively, the court considered the fact that the trial

was “saturated with evidence relating to religion,” that “there was nothing

ambiguous or unintentional about the prosecutor’s improper argument,” that the

court did not give a curative instruction, that at least two members of the jury had

discussed the prosecutor’s interpretation of the Bible, that one juror “cared

enough about the argument to check one of the scriptures that the prosecutor had

used to ensure that he had quoted it correctly,” 3 and the relative strength of the

3
The jurors had testified about their deliberations at an evidentiary hearing in the
(continued...)

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aggravating and mitigating circumstances surrounding the murder. Id. at 1369-

70; see also Coe v. Bell, 161 F.3d 320, 351 (6th Cir. 1998) (concluding that the

prosecutor’s invoking the Bible, which included using the phrase “[w]hosoever

sheddeth man’s blood, by man shall his blood be shed,” did not “so taint[] the

proceedings that they constitute[d] reversible error”); Hill, 952 P.2d at 692-700

(concluding that prosecutorial misconduct, including invoking the Bible and using

the phrase “an eye for an eye” during closing argument, along with other errors,

“created a negative synergistic effect” that deprived the defendant of a fair trial);

Long, 883 P.2d at 177 (“Given the strong evidence against the [defendant-

]appellant, we find beyond a reasonable doubt that the prosecutor’s improper

appeal to religious bias in the jurors was harmless.”); State v. Shurm, 866 S.W.2d

447, 464 (Mo. 1993) (concluding that the prosecutor’s statement in closing

argument that “I’m asking you to take an eye for an eye” was an “isolated

reference” that did “not rise to the level of plain error”). But see State v.

Chambers, 599 A.2d 630, 644 (Pa. 1991) (not using the term “structural error” but

vacating a death sentence and holding that the “reliance in any manner upon the

Bible or any other religious writing in support of a penalty of death is reversible

error per se and may subject violators to disciplinary action”).

3
(...continued)
state post-conviction proceedings. See 253 F.3d at 1362-63.

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 These decisions convince us that the trial judge’s refusal to cover the “EYE

FOR AN EYE” inscription was not a structural error. Here, in contrast to the

cases involving the use of religious authority in closing argument, the jury was

not directly told to apply the “eye for an eye” maxim. Although the inscription

was displayed behind the judge’s bench, there is no evidence that the inscription

caused the jurors to bring Bibles into deliberation. Nor is there any evidence that

any of the jurors invoked the “eye for an eye” maxim in their discussions.

Moreover, although the inscription directly quotes a portion of a biblical passage,

it did not explicitly inform the jury that it should apply religious principles in

arriving at its decision. Indeed, it is possible that the jury understood the carving

to suggest that mercy should trump retaliation (although there is no evidence to

support that proposition either). Finally, the jury was properly instructed on the

weighing of aggravating and mitigating circumstances in determining whether to

impose the death penalty. See State Ct. Rec. at 350-365 (sentencing phase

instructions). As a result, unlike the cases involving prosecutorial references to

the Bible in closing argument, the integrity of the sentencing proceeding was not

threatened in a fundamental way.

Accordingly, we conclude that the trial judge’s refusal to cover the

inscription was not a structural error, and that, as a result, Mr. Malicoat’s

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counsel’s failure to advance a structural error argument on direct appeal did not

constitute ineffective assistance of counsel in violation of the Sixth Amendment.

Thus, Mr. Malicoat is not entitled to habeas relief on this claim.

2. Lesser-Included Offense Instruction

Mr. Malicoat argues that the trial court erred in refusing to instruct the jury

on the offense of second-degree “depraved mind” murder. See Willingham v.

State, 947 P.2d 1074, 1081 (Okla. Crim. App. 1997) (discussing the elements of

that offense), overruled on other grounds by Shrum v. State, 991 P.2d 1032, 1034

(Okla. Crim. App. 1999). He contends that the evidence was sufficient to support

such an instruction, invoking his lack of sleep on the day of the killing, his

statement that he did not hit Tessa on purpose, and the other stresses that he

suffered then. He adds that the district court denied his request to present

evidence of the abuse that he suffered as a child. According to Mr. Malicoat, this

personal history led him to act abusively when under stress, and, if the jury had

considered this evidence, it could have convicted him of “depraved mind” murder.

In rejecting this argument, the OCCA relied on evidence indicating that the

killing was “part of a pattern of intentional abuse . . . rather than an impulsive

outburst.” Malicoat, 992 P.2d at 396. The court thus concluded that “[t]aken as a

-22-
whole, [the evidence] does not support a lesser included instruction on depraved

mind murder.” Id.

Mr. Malicoat’s argument is grounded in the Due Process Clause of the

Fourteenth Amendment, which ensures that “a sentence of death [may not] . . . be

imposed after a jury verdict of guilt of a capital offense, when the jury was not

permitted to consider a verdict of guilt of a lesser included non-capital offense,

and when the evidence would have supported such a verdict.” Beck v. Alabama,

447 U.S. 625, 627 (1980). Due process does not require the jury to be instructed

on every non-capital lesser-included offense supported by the evidence. Schad v.

Arizona, 501 U.S. 624, 646 (1991). However, a jury may not be placed in “an

all-or-nothing position” when the evidence supports a third option. Id.

Whether one state offense is a lesser-included offense of another offense is

a question of state law. See Hopkins v. Reeves, 524 U.S. 88, 96-98 & n.6 (1998);

Darks v. Mullin, 327 F.3d 1001, 1008 (10th Cir.), cert. denied, 540 U.S. 968

(2003). Under Oklahoma law, “[i]t is the trial court’s duty to instruct the jury on

all lesser [] offenses that are supported by the evidence, even absent a request

from a defendant.” Grant v. State, 58 P.3d 783, 795 (Okla. Crim. App. 2002)

(citing Shrum, 991 P.2d at 1034), vacated on other grounds, 540 U.S. 801 (2003).

The OCCA has adopted an “evidence test [that] considers not only the elements,

but [also] looks to the crimes the trial evidence tends to prove.” Shrum, 991 P.2d

-23-
at 1036. Thus, “the court is only required to instruct on lesser offenses that are

reasonably supported by the evidence.” Grant, 58 P.3d at 795. The jury is not

required “to consider a lesser offense if no jury could rationally find both that the

lesser offense was committed and that the greater offense was not.” Frederick v.

State, 37 P.3d 908, 943-44 (Okla. Crim. App. 2001). In other words, “[o]nly if

there is evidence which tends to negate an element of [the greater offense], which

would reduce the charge,” should instructions on a lesser included offense be

given. Fairchild v. State, 998 P.2d 611, 627 (Okla. Crim. App. 1999) (emphasis

added)

We must thus consider both the elements of first-degree murder by child

abuse and second-degree “depraved mind” and the evidence offered at trial. The

elements of the former offense are: (1) the death of a child under the age of

eighteen; (2) resulting from the willful or malicious injuring, torturing, or using

of unreasonable force; (3) by the defendant and/or another engaged with the

defendant. Gilson v. State, 8 P.3d 883, 910 (Okla. Crim. App. 2000) (discussing

O KLA . S TAT tit. 21, § 701.7(C)). 4 The OCCA has held that first degree child-

4
O KLA . S TAT . tit. 21, § 701.7(C) provides:

A person commits murder in the first degree when the death of a child
results from the willful or malicious injuring, torturing, maiming or
using of unreasonable force by said person . . . . It is sufficient for the
crime of murder in the first degree that the person either willfully
tortured or used unreasonable force upon the child or maliciously
(continued...)

-24-
abuse murder is a general intent crime. See Fairchild, 998 P.2d at 619. Thus, in

order to prove the second element—the “‘willful or malicious injuring, torturing,

or us[e] of unreasonable force,” the prosecution need only prove “a general intent

. . . to commit the act which causes the injury.” Id. at 622-23; see also Workman

v. Mullin, 342 F.3d 1100, 1110 (10th Cir. 2003) (discussing first-degree murder

by child abuse under Oklahoma law and concluding that “the jury need not find

that the defendant intended to kill the child . . . but rather the crime is a type of

felony murder”).

In contrast, the elements of second-degree depraved mind murder in

Oklahoma are “(1) [the] death of a human; (2) caused by conduct which was

imminently dangerous to another person; (3) the conduct was that of the

defendant; (4) the conduct evinced a depraved mind in extreme disregard of

human life; (5) the conduct is not done with the intention of taking the life of any

particular individual.” Willingham, 947 P.2d at 1081 (emphasis added).

The fourth element–the extreme disregard of human life–actually places a higher

burden on the prosecution than does the general intent element of first-degree

murder by child abuse, which only requires the intent to commit the act of abuse.

As a result, the evidence that Mr. Malicoat invokes to support a second-

degree depraved mind murder instruction (his fatigue, stress, and past abuse) does

4
(...continued)
injured or maimed the child.

-25-
not “tend[] to negate an element . . . of the First-Degree [child abuse] Murder

statute.” Fairchild, 998 P.2d at 627. Although that evidence might be read to

suggest that Mr. Malicoat’s conduct did not evince a depraved mind in extreme

disregard of human life, the evidence does not support the inference that Mr.

Malicoat lacked the general intent to assault Tessa—as required to establish first-

degree murder by child abuse. Thus, the trial court was not required to instruct

the jury on second-degree depraved-mind murder.

That conclusion is supported by our interpretation of the federal murder

statutes. In Chanthadara, 230 F.3d at 1257-59, we held that second-degree

murder under federal law was not a lesser-included offense of first-degree felony

murder under 18 U.S.C § 1111(a). We reasoned that second-degree murder

required proof of malice as to the homicide whereas first-degree felony murder

only required commission of felonies listed in the statute. Significantly, we relied

on a prior decision, Franks v. Alford, 820 F.2d 345, 347 (10th Cir. 1987), in

which we held that “‘depraved mind’ murder [under Oklahoma law] is not a lesser

included offense of felony murder because it requires proof of a mental state that

felony murder does not.”

Accordingly, the OCCA did not unreasonably apply federal law in rejecting

Mr. Malicoat’s Beck claim.

-26-
3. Enmund-Tison challenge

Mr. Malicoat argues that because the jury did not find that he intended to

kill Tessa, the imposition of the death penalty violated his Eighth Amendment

rights under the principles set forth in Enmund v. Florida, 458 U.S. 782 (1982)

and Tison v. Arizona, 481 U.S. 137 (1987). The OCCA rejected this argument on

direct appeal, holding that Enmund and Tison are not applicable “when the

defendant himself ‘personally, willfully, commits an act which produces an injury

upon a child resulting in the death of the child, or uses unreasonable force upon a

child resulting in the death of the child.’” Malicoat, 992 P.2d at 396 (quoting

Fairchild v. State, 992 P.2d 350, 370, opinion on rehearing, 998 P.2d 611 (Okla.

Crim. App. 1999)).

The central concern of Enmund and Tison is whether a conviction for

felony murder contains an adequate determination of defendants’ culpability such

that imposition of the death penalty does not violate the Eighth Amendment’s

prohibition against cruel and unusual punishment. In Enmund, the Supreme

Court reversed the death sentence of a defendant who waited outside while his

accomplices committed a murder during an armed robbery of a home and

subsequently drove the getaway car. The Supreme Court held that because the

defendant had not himself killed, attempted to kill, or intended to kill the victims

his “degree of participation in the murders was so tangential that it could not be

-27-
said to justify a sentence of death.” Tison, 481 U.S. at 148 (describing

Enmund’s ruling) (emphasis in original). The Court has subsequently clarified

that “major participation in the felony committed, combined with reckless

indifference to human life, is sufficient to satisfy the Enmund culpability

requirement.” Id. at 158.

This circuit has recently rejected an Enmund-Tison challenge arising out

of an Oklahoma conviction for first-degree child abuse murder. In Workman, we

held that “the constitutional check that Enmund, and certainly that Tison,

represent is satisfied in felony murder cases in which the defendant actually

killed his victim.” 342 F.3d at 1114. Examining the record before us, we noted

that the petitioner “was convicted of child abuse murder in which a jury

determined that he had actually killed [the victim] . . . [and] was found to have

purposefully inflicted the[] blows.” Id. at 1114-15.

Workman is applicable here. Like the jury in that case, the jury here found

that Mr. Malicoat willfully committed child abuse and that he actually killed

Tessa. These findings are sufficient to comport with the Enmund-Tison Eighth

Amendment limitations on the application of capital punishment. Accordingly,

the OCCA did not unreasonably apply federal law in rejecting Mr. Malicoat’s

challenge, and he is thus not entitled to relief on this claim.

-28-
4. Prosecutorial misconduct

Mr. Malicoat next argues that several of the prosecutor’s remarks deprived

him of a fair trial. The OCCA rejected this claim, concluding that “[a]lthough

certain comments were error, and others approached the limits of impermissible

argument, we cannot say that the arguments taken as a whole deprived Malicoat

of a substantial right or went to the foundation of his defense.” Malicoat, 992

P.2d at 401. The court also noted that Mr. Malicoat had not objected to most of

the comments, and it thus reviewed those comments for plain error only.

In a habeas corpus action, claims of prosecutorial misconduct are reviewed

only for a violation of due process. See Darden v. Wainwright, 477 U.S. 168,

181 (1986). “[N]ot every trial error or infirmity which might call for application

of supervisory powers correspondingly constitutes a failure to observe that

fundamental fairness essential to the very concept of justice.” Donnelly v.

DeChristoforo, 416 U.S. 637, 642 (1974) (citations and quotations omitted). In

order to be entitled to relief, Mr. Malicoat must establish that the prosecutor’s

conduct or remarks “so infected the trial with unfairness as to make the resulting

conviction a denial of due process.” Id. at 643. This determination may be made

only after considering all of the surrounding circumstances, including the

strength of the state’s case. See Darden, 477 U.S. at 181-82.

-29-
 Applying those standards, we consider the individual instances of alleged

misconduct invoked by Mr. Malicoat.

a. Conducting arguments in the voice of Tessa

The prosecutor conducted a substantial portion of his rebuttal argument in

the guilt phase as if he were Tessa. For example, he started the argument by

stating “today I want to take you back to February, 1997, because today I’m

Tessa Leadford and I live here in Chickasha. That’s the man with Mrs. Leadford

who gave me life. And that’s who I live with.” See Tr. Trans. vol. IV, at 42.

Mr. Malicoat objected to this approach, but the trial court overruled the

objection. On appeal, the OCCA explained that “[w]hile theatrical, we do not

find this argument overly prejudicial.” Malicoat, 992 P.2d at 401. The court

added that “[t]he argument very nearly constitutes an improper solicitation of

sympathy for the victim, but is largely based upon the evidence presented.” Id.

Upon review of the record, we conclude that the OCCA did not

unreasonably apply federal law in holding that the prosecutor’s argument was not

sufficiently prejudicial to deprive Mr. Malicoat of a fair trial. As the court

observed, the statements made by the prosecutor as to Mr. Malicoat’s abusive

conduct and the extent of Tessa’s injuries are supported by evidence in the record.

The prosecution’s case was compelling. Thus, Mr. Malicoat is not entitled to

relief on this claim of prosecutorial misconduct.

-30-
 b. Arguing that it was the jury’s civic duty to convict Mr. Malicoat:

Next, Mr. Malicoat challenges the following statements about the jurors’

duty:

You know, you have a great responsibility here.
You’re doing a civic duty as jurors here, but you’re justice
in this community. We told you starting out if you think
he’s not guilty turn him loose. That’s your duty. If we
haven’t proved these material elements to you, turn Mr.
Malicoat loose.

By God, that’s not what the evidence showed you.
The evidence showed you beyond any doubt whatsoever he
committed those elements. And your duty is a double-
pronged sword, like we also told you. It’s a double-
pronged sword. You have a duty to convict him if we’ve
proven those elements.

Tr. Trans. vol. IV, at 39-40. Mr. Malicoat did not object to this line of argument.

Mr. Malicoat correctly observes that “[i]t is error for a prosecutor to exhort

a jury to reach a guilty verdict based ‘on the grounds of civic duty.’” Spears v.

Mullin, 343 F.3d 1215, 1247 (10th Cir. 2003) (quoting Viereck v. United States,

318 U.S. 236, 247-48 (1943)), cert denied sub nom., Powell v. Mullin, 541 U.S.

909 (2004). However, here, the prosecutor’s argument referred to the evidence,

stating to the jury that it had a duty to convict if the prosecution had proven the

elements. This is not the same as baldly telling the jury that it had a civic duty to

-31-
convict. Cf. Walker v. Gibson, 228 F.3d 1217, 1242 (10th Cir. 2000) (stating that

it was not fundamental error for the prosecutor to tell the jury that it should “do

its business”), abrogated on other grounds by Neil v. Gibson, 278 F.3d 1044, 1057

n.5 (10th Cir. 2001). Thus the OCCA was not unreasonable in concluding that

this argument did not render Mr. Malicoat’s trial fundamentally unfair.

c. Calling Mr. Malicoat “a monster”

Mr. Malicoat also challenges the prosecutor’s denigrating and degrading

comments, particularly his calling Mr. Malicoat “evil” and “a monster.” Tr.

Trans. vol. V, at 202. Although Mr. Malicoat did not object to these comments at

trial, the OCCA concluded that they constituted misconduct under its precedent.

See Malicoat, 992 P.2d at 401 (stating that “[t]his Court has repeatedly looked

with disfavor on this sort of name-calling and stated prosecutors should refrain

from airing their personal opinions”). Nevertheless, the OCCA reasoned, the

comments did not constitute plain error.

Here too, the OCCA’s analysis was not an unreasonable application of

federal law. A prosecutor may not use closing argument to inflame the passions

and prejudices of the jury. See United States v. Young, 470 U.S. 1, 8 n.5 (1985)

(discussing ABA S TANDARDS FOR C RIMINAL J USTICE 3-5.8 (2d ed. 1980)); United

States v. Pena, 930 F.2d 1486, 1490-91 (10th Cir. 1991) (concluding that a

-32-
prosecutor’s argument was improper because “it was calculated to inflame the

jury's passions” by implying that the defendant had committed another crime).

The prosecutor’s name-calling was an attempt to do so. Nevertheless, the

OCCA’s conclusion is supported by the strength of the state’s case and the fact

that the majority of the prosecutor’s argument was based upon evidence in the

record. See Young, 470 U.S. at 16 (concluding that “the prosecutor’s statements,

although inappropriate and amounting to error, were not such as to undermine the

fundamental fairness of the trial and contribute to a miscarriage of justice”); see

also Rojem v. Gibson, 245 F.3d 1130, 1143 (10th Cir. 2001) (concluding that

“[i]n light of the considerable evidence supporting guilt and the aggravating

factors, the prosecutor’s comments did not influence the jury’s verdict”).

d. Demeaning the mitigating evidence offered by Mr. Malicoat

Mr. Malicoat argues that it was improper for the prosecutor to demean the

mitigating evidence that he presented. He notes that, in closing argument, the

prosecutor stated that “[Mr. Malicoat’s attorney] told you in his opening we’re not

here to talk about excuses. He said no excuses. These mitigators—that’s what

these mitigators are. They’re excuses.” Tr. Trans. vol. V, at 206.

Mr. Malicoat did not object at trial. On direct appeal, the OCCA concluded

that this line of argument was not improper. The court reasoned that the

-33-
“characterization of Malicoat’s mitigating evidence as an attempt to blame his

family for the cycle of child abuse, which resulted in Tessa’s death, is a

reasonable inference from the evidence.” Malicoat, 992 P.2d at 401-02.

Again, we conclude that the OCCA did not unreasonably apply federal law.

A prosecutor may present an argument to the jury regarding the appropriate

weight to afford the mitigating factors offered by the defendant. See Buchanan v.

Angelone, 522 U.S. 269, 279 (1998) (stating that “the extensive arguments of

both defense counsel and the prosecutor on the mitigating evidence and the effect

it should be given in the sentencing determination” indicated that the jury had

considered that evidence); see also Walker, 228 F.3d at 1243 (“[A] prosecutor is

permitted to comment upon and to argue the appropriate weight to be given

mitigating factors.”) Fox v. Ward, 200 F.3d 1286, 1300 (10th Cir. 2000)

(rejecting an allegation of misconduct when “the prosecutor merely commented

on the weight that should be accorded to the mitigating factors” and “did not

suggest that the jury was not permitted to consider the factors”).

e. Expressing a personal opinion about the death penalty

Mr. Malicoat argues that the prosecutor improperly expressed his personal

beliefs about the death penalty. Mr. Malicoat cites the prosecutor’s statements

that “[t]here’s a place in our system for the death penalty,” “[i]t is proper

punishment,” “[t]his is the time,” “[t]he only just verdict this case warrants the

-34-
death penalty,” and that “[w]e need you to do it for Tessa.” Tr. Trans. vol. V, at

203, 211. He points out that the prosecutor also asked “What kind of crime

besides the torture of a 13-month-old is a proper crime for the death penalty?

What justifies it more than this crime?” Id. at 203.

Mr. Malicoat did not object to this line of argument at trial. On direct

appeal, the OCCA noted that it had “repeatedly warned prosecutors not to engage

in these specific arguments or express personal opinions about the

appropriateness of the death penalty.” Malicoat, 992 P.2d at 402. However, the

court further concluded, these “‘improper and reprehensible comments’ did not

deprive Malicoat of a substantial right or go to the foundation of his defense.” Id.

(quoting Harjo v. State, 882 P.2d at 1067, 1076 (Okla. Crim. App. 1994)).

Again, the OCCA’s ruling was not unreasonable. “‘Expressions of personal

opinion by the prosecutor are a form of unsworn, unchecked testimony and tend to

exploit the influence of the prosecutor’s office and undermine the objective

detachment that should separate a lawyer from the cause being argued.’” Young,

470 U.S. at 8 n.5 (quoting ABA S TANDARDS FOR C RIMINAL J USTICE 3-5.8); see

also Le v. Mullin, 311 F.3d 1002, 1021 (10th Cir. 2002) (concluding that a

prosecutor’s statement that the jury “could only do justice in this case by bringing

in a verdict of death” constituted misconduct) (internal quotation marks and

alternations omitted). However, we have further concluded that, in light of

-35-
overwhelming evidence of a defendant’s guilt, evidence of aggravating factors

supporting a death sentence, and the general content of the instructions to the

jury, such comments do not necessarily deprive a defendant of a fair trial. See

Le, 311 F.3d at 1021. Here, these factors support the OCCA’s conclusion that the

prosecutor’s improper comments did not deprive Mr. Malicoat of a fair trial.

f. Arguing facts not in evidence to play to the jury’s sympathy

Finally, Mr. Malicoat challenges the prosecutor’s argument that Tessa was

named after a character in the television show “Touched by an Angel.” He points

out that this fact was not put into evidence. Again, Mr. Malicoat did not object to

this argument at trial. On direct appeal, the OCCA concluded that the argument

did not deprive Mr. Malicoat of a substantial right or go to the foundation of his

defense. Malicoat, 992 P.2d at 402.

Again, the OCCA did not unreasonably apply federal law. “‘It is

unprofessional conduct for a lawyer intentionally to misstate the evidence or

mislead the jury as to the inferences it may draw.’” Young, 470 U.S. at 9 n.7

(quoting ABA S TANDARD FOR C RIMINAL J USTICE 4-7.8); see also Jones, 194 F.3d

at 1181 (“A prosecutor engages in misconduct when he refers to matters outside

the record.”). The state does not dispute that the prosecutor engaged in such

misconduct here, since there was no testimony in the record about the origin of

-36-
Tessa’s name. However, we note that the trial court instructed the jury to decide

the case on the basis of the evidence presented. See State Ct. Rec. vol. I, at 329

(informing the jury that it “should consider only the evidence introduced while

the Court is in session”). The strength of the prosecution’s case and the fact that

the jury was properly instructed support the OCCA’s decision. Cf. United States

v. Ramirez, 63 F.3d 937, 944-45 (10th Cir. 1995) (holding that prosecutorial

misconduct did not warrant reversal because, inter alia, the court instructed the

jury to decide the case based on the evidence presented).

g. Cumulative effect of prosecutor’s statements

Finally, we have also considered the cumulative effect of the incidents of

misconduct set forth above. See Walker, 228 F.3d at 1243 (considering

prosecutor’s comments, individually and cumulatively). Again, the strength of

the prosecution’s case, presented to a properly instructed jury, establishes that the

cumulative effect of this misconduct did not deprive Mr. Malicoat of a fair trial.

5. Admission of Tessa’s photograph

Mr. Malicoat argues that the state trial court erred in admitting a

photograph of Tessa taken approximately two months before her murder. The

-37-
trial court admitted the photograph in the sentencing phase, during the

prosecutor’s cross-examination of Mr. Malicoat’s brother Hugh. The prosecutor

then referred to the photograph in closing argument, stating that “Tessa Leadford

went from being a beautiful, blonde-haired girl with beautiful blue eyes, puppy

dog eyes, as [Mr. Malicoat] called it.” Tr. Trans. vol. V, at 210.

Mr. Malicoat objected to admission of the photograph, but the trial court

overruled his objection. On direct appeal, the OCCA noted that “[p]hotographs of

live victims are generally inadmissible, as they are irrelevant to any issues at

trial.” Malicoat, 992 P.2d at 404. The court held that the photograph of Tessa

was irrelevant and should not have been admitted and that the prosecution’s

reference to it in closing argument compounded the error. Nevertheless, the

OCCA concluded beyond a reasonable doubt that the picture did not contribute to

Mr. Malicoat’s death sentence.

Under Chapman v. California, 386 U.S. 18, 24 (1967), a constitutional error

is harmless if it appears “beyond a reasonable doubt that the error complained of

did not contribute to the verdict obtained.” Here, in light of the evidence offered

by the prosecution in support of the aggravating circumstances, we conclude that

the OCCA’s holding was not an unreasonable application of Chapman’s federal

harmless error standard. See Spears, 343 F.3d at 1233 n.14 (stating that when

“there is a state-court-Chapman determination to defer to under 28 U.S.C. §

-38-
2254(d),” the court must decide “whether the state court’s finding of harmless

error was contrary to or an unreasonable application of Chapman”).

The jury heard ample evidence in support of the aggravating circumstances

urged by the prosecution in support of the death penalty. The OCCA’s conclusion

that the single living photograph of Tessa “did not contribute to Malicoat’s death

sentence,” Malicoat, 992 P.2d at 404, is a plausible reading of the record. Thus,

Mr. Malicoat is not entitled to relief on this claim.

6. Ineffective assistance of trial counsel

Mr. Malicoat next argues that he received ineffective assistance of counsel

at trial. According to Mr. Malicoat, his trial counsel was ineffective because he:

(1) did not give an opening statement in the guilt phase; (2) failed to present

evidence from a psychologist, Dr. Phillip Murphy, that Mr. Malicoat did not have

the intent to injure or kill; (3) failed to conduct an adequate mental health

investigation by failing to ask Mr. Malicoat’s family about his history of seizures.

The first of these alleged deficiencies resulted in part from the trial court’s

ruling that Mr. Malicoat’s counsel would not be allowed to present an opening

statement until the close of the prosecution’s case. Mr. Malicoat’s counsel

objected to this restriction, but his objection was overruled. Then, when the time

-39-
came for the defense’s opening statement, Mr. Malicoat’s counsel did not give

one. He also chose not to put on any defense evidence during the guilt phase.

As to testimony from the psychologist, the record indicates that, at the close

of the prosecution’s case, Mr. Malicoat’s counsel informed the trial judge that he

intended to call Dr. Murphy on the following day as the first witness for the

defense. According to Mr. Malicoat’s trial counsel, Dr. Murphy had written a

report that stated that Mr. Malicoat was “misreading the reality of [his punches to

Tessa’s stomach] and the effect that [they] would have on someone so small

which led to the homicide.” Tr. Trans. vol. III, at 285. Thus, “Dr. Murphy’s

report indicated Mr. Malicoat was intending to discipline his daughter and not

kill her.” Aplt’s Br. at 54-55. However, on the following day, Mr. Malicoat’s

counsel announced that he would be presenting no evidence during the guilt

phase.

As to the third alleged instance of ineffective assistance of counsel, Mr.

Malicoat reports that interviews with his family members indicated that he had a

long history of seizures. According to Mr. Malicoat, this information would have

supported a conviction on the lesser offense of second-degree depraved-mind

murder and would also have been powerful mitigating evidence if it had been

presented at sentencing. Mr. Malicoat asserts that trial counsel was deficient for

failing to unearth this mental health evidence and that there is a reasonable

-40-
probability that the jury’s verdict would have been different had this evidence

been presented. Id. at 59. He adds that the federal district court should have

granted his request for an evidentiary hearing because there are factual disputes as

to his mental health history and its effect on the offense.

On direct appeal, the OCCA rejected Mr. Malicoat’s claim of ineffective

assistance of counsel. As to the failure to present an opening statement, the

OCCA characterized Mr. Malicoat’s counsel’s action as a strategic decision. As

to Dr. Murphy’s testimony, the OCCA noted that first-degree child abuse murder

is a general intent crime and that, as a result, the testimony about Mr. Malicoat’s

lack of intent to kill or injure would have been irrelevant in the guilt phase of the

trial. Thus, Mr. Malicoat’s attorney was not ineffective for declining to present

it. Finally, as to Mr. Malicoat’s history of seizures, the OCCA observed that his

counsel had presented at sentencing “a thorough and comprehensive picture of

Malicoat’s personal and family history, concentrating on his experience of severe

abuse and resulting personality transformation.” Malicoat, 992 P.2d at 406. In

light of all of this evidence, Mr. Malicoat had not shown that the additional

evidence that he suffered from seizures “would have led the jury to conclude

[that] the balance of aggravating circumstances and mitigating factors did not

support death.” Id.

-41-
 In rejecting Mr. Malicoat’s claim for ineffective assistance of trial counsel,

the OCCA relied in part on the standard set forth in Lockhart v. Fretwell, 506

U.S. 364, 369-70 (1993). The OCCA stated that “[t]he question [in determining

whether Mr. Malicoat was prejudiced by his trial counsel’s errors] is not whether

the outcome would have been different absent counsel’s actions but whether the

result of the proceeding was fundamentally unfair or unreliable.” Malicoat, 992

P.2d at 405. As Mr. Malicoat argues, this is not the correct standard. In

particular, as the Supreme Court explained in Williams v. Taylor, 529 U.S. 362,

392-93 (2000), the Lockhart “fundamentally unfair” inquiry is used to supplement

the ordinary prejudice inquiry under Strickland only when the law has changed

after counsel’s allegedly deficient performance. See also Lockhart, 506 U.S. at

373 (O’Connor, J., concurring) (stating that the majority opinion “will, in the vast

majority of cases, have no effect on the prejudice inquiry under [Strickland]”).

Because the OCCA applied the incorrect standard, we do not defer to its

analysis of this claim. See Spears, 343 F.3d at 1248 (concluding that, because the

OCCA had “applied Strickland, but as further restricted by Lockhart,” the

OCCA’s ruling was not entitled to deference under AEDPA). Instead, we

examine the claim de novo, applying the familiar two-part standard set forth in

Strickland and asking whether Mr. Malicoat’s counsel’s performance was

deficient, and if so, whether counsel’s deficient performance actually prejudiced

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Mr. Malicoat’s defense. United States v. Harms, 371 F.3d 1208, 1211 (10th Cir.

2004) (discussing Strickland).

a. Failure to give an opening statement

As to Mr. Malicoat’s counsel’s failure to give an opening statement during

the guilt phase, we note that, under the first Strickland inquiry—whether counsel

engaged in deficient performance—we must “impose a heavy presumption that

‘counsel’s conduct falls within the wide range of reasonable professional

assistance; that is, . . . the presumption that, under the circumstances, the

challenged action might be considered sound trial strategy.’” United States v.

Aptt, 354 F.3d 1269, 1284 (10th Cir. 2004) (quoting Strickland, 466 U.S. at 689).

Here, affording Mr. Malicoat’s counsel the benefit of that presumption, his

decision to waive his opening statement appears sound. During the guilt phase,

the prosecution’s evidence was overwhelming, and there was little dispute as to

the relevant facts. Moreover, because first-degree murder by child abuse is a

general intent crime in Oklahoma, there is little indication that Mr. Malicoat had a

plausible defense to offer. Thus, his counsel might reasonably have concluded

that, in order be more persuasive to the jury at sentencing, it was preferable to

refrain from making a fruitless opening statement during the guilt phase. See

Fox, 200 F.3d at 1296 (“While opening and closing statements are not to be

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lightly waived in a capital case, it is well-settled that the decision to waive an

opening or closing statement is a commonly adopted strategy, and without more,

does not constitute ineffective assistance of counsel”); Parker v. Head, 244 F.3d

831, 840 (11th Cir. 2001) (finding reasonable a state court’s conclusion that

counsel’s concession during the guilt phase closing argument was “a strategic

decision made . . . in order to maintain credibility with the jury for sentencing

purposes”). Accordingly, we conclude that Mr. Malicoat’s counsel’s waiver of

opening statement did not constitute deficient performance.

b. Failure to introduce psychological testimony during the guilt phase

As to counsel’s failure to introduce testimony from Dr. Murphy during the

guilt phase, we agree with the OCCA that Mr. Malicoat’s argument is undermined

by the fact that, in Oklahoma, first-degree murder by child abuse is a general

intent crime. Accordingly, the prosecution was not required to prove that Mr.

Malicoat intended to kill or injure Tessa but only that he intended to commit the

abusive act. See Fairchild, 998 P.2d at 622-23. Thus, Dr. Murphy’s statement

about the effects that Mr. Malicoat anticipated from his abuse of Tessa (i.e., that

Mr. Malicoat “was misreading the reality of [his] punches to the stomach and the

effect that such would have on someone so small,” Tr. Trans. vol. III, at 285),

could not have provided a colorable defense to the first-degree murder charge.

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Accordingly, Mr. Malicoat’s counsel did not provide deficient performance by

failing to offer Dr. Murphy’s testimony during the guilt phase.

c. Failure to investigate Mr. Malicoat’s history of seizures

As to the failure to investigate Mr. Malicoat’s history of seizures, we

conclude that Mr. Malicoat has failed to establish that this evidence, if discovered

by his counsel and presented to the jury, “might well have influenced the jury’s

appraisal of [his] culpability.” Rompilla v. Beard, 125 S. Ct. 2456, 2469 (2005)

(internal quotation marks and citations omitted). The record does indicate that

Mr. Malicoat’s attorney did present to the jury at sentencing fairly extensive

evidence about the abuse that Mr. Malicoat had suffered as a child. There is no

indication that additional evidence of Mr. Malicoat’s mental health history would

have affected the jury’s imposition of the death penalty.

Accordingly, as to this claim of ineffective assistance of counsel, Mr.

Malicoat has failed to establish the required element of prejudice.

7. Cumulative error

Finally, Mr. Malicoat argues that the cumulative effect of various errors

deprived him of a fair trial: (1) the admission of the photograph taken of Tessa

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when she was alive; (2) the testimony of Mr. Malicoat’s estranged wife that he

failed to pay child support; (3) the testimony of a social worker that the social

worker believed that Mr. Malicoat had intentionally abused Tessa; (4) the

prosecutor’s statement in closing argument that Tessa was named after an angel in

a television show; and (5) testimony that Mr. Malicoat’s home was unclean and

that the refrigerator was not stocked with food appropriate for a thirteen-month

old child. Mr. Malicoat notes that the OCCA found error in the first four

instances but further concluded that the errors were not sufficiently prejudicial to

warrant a new trial. He now asserts that the cumulative effect of these errors

establishes that his conviction and sentence should be overturned.

As to this claim, the parties disagree regarding the proper standard of

review. According to Mr. Malicoat, the OCCA did not apply the controlling

federal standard regarding cumulative error and, as a result, the OCCA’s rejection

of his cumulative error claim is entitled to no deference. In support of this

contention, Mr. Malicoat notes that the OCCA rejected his cumulative error

argument in fairly cursory terms:

Malicoat claims he is entitled to relief due to the accumulation of error
in the case. Malicoat has raised no issue which individually or in
accumulation requires relief. We have determined that any individual
errors were either cured or did not affect a substantial right or go to the
foundation of Malicoat’s defense. There is no cumulative error, and this
proposition is denied.

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Malicoat, 992 P.2d at 406. As Mr. Malicoat reads this passage, the OCCA

concluded that because none of the individual errors was prejudicial, the

cumulative effect of these individual errors was necessarily not prejudicial either.

Mr. Malicoat notes that this reading of the cumulative error doctrine is incorrect.

See Cargle v. Mullin, 317 F.3d 1196, 1207 (10th Cir. 2003) (explaining that “to

deny cumulative-error consideration of claims unless they have first satisfied their

individual substantive standards for actionable prejudice would render the

cumulative error inquiry meaningless, since it [would] . . . be predicated

predicated only upon individual error already requiring reversal”) (internal

quotation marks omitted).

In response, the state contests this reading of the OCCA’s opinion. The

state contends that the OCCA’s application of the cumulative error doctrine

comported with the federal standard and that the OCCA did assess the collective

impact of the individual errors. It invokes this court’s decision in Miller v.

Mullin, 354 F.3d 1288, 1301 (10th Cir. 2004). There, we applied the deferential

AEDPA standard of review to the OCCA’s ruling on the petitioner’s cumulative

error claim. See id. (discussing the OCCA’s ruling in Miller v. State, 977 P.2d

1099, 1114 (Okla. Crim. App. 1998)). According to the state, the OCCA’s ruling

on the cumulative error claim in Miller resembles its ruling on the cumulative

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error claim at issue here, and, as a result, AEDPA deference is warranted in this

case as well.

Unlike the state, we see an arguable difference between the OCCA’s

rulings in Miller and in Mr. Malicoat’s case. In Miller, the OCCA identified four

individual errors that it had found and then concluded that the individual errors

“gather no force in aggregate” and “gain no weight in aggregate.” 977 P.2d at

1114. That language establishes that the OCCA independently considered the

aggregate effect of the individual errors, as required by federal law. In contrast,

the OCCA’s opinion in Mr. Malicoat’s case can be reasonably read to suggest

that, because “any individual errors were either cured or did not affect a

substantial right or go to the foundation of Malicoat’s defense,” Malicoat, 992

P.2d at 405, there was necessarily no cumulative error. Thus, the OCCA’s

opinion does not clearly indicate that it considered, in the aggregate, the

prejudicial effect of the individual errors. Accordingly, as to the standard of

review, we afford Mr. Malicoat the benefit of the doubt and review his

cumulative error claim de novo.

Nevertheless, even under the de novo standard, we conclude that Mr.

Malicoat has not demonstrated that the cumulative effect of the individual errors

deprived him of a fair trial. The prosecution’s evidence during the guilt phase

was overwhelming, and, in light of that evidence, we see no indication that the

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evidentiary errors and instances of prosecutorial misconduct affected the jury’s

decision. The evidence offered by the prosecution at sentencing was also quite

strong. Given the extent of Tessa’s injuries, her young age, the pattern of abuse,

and Mr. Malicoat’s conduct after inflicting the fatal blows, Mr. Malicoat has

failed to establish that these errors had a “substantial and injurious effect or

influence in determining the jury’s verdict.” Brecht, 507 U.S. at 637 (internal

quotation marks omitted).

III. CONCLUSION

Accordingly, for the reasons set forth above, we AFFIRM the district

court’s decision denying Mr. Malicoat’s 28 U.S.C. § 2254 petition for a writ of

habeas corpus.