Snow v. Sirmons

F IL E D
United States Court of Appeals
Tenth Circuit

January 8, 2007
PUBLISH
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT

ROCKY DALE SNOW ,

Petitioner-A ppellant ,

v.
No. 02-7027
M ARTY SIRM ONS, W arden,
Oklahoma State Penitentiary,

Respondent-Appellee .

A ppeal from the U nited States D istrict C ourt
for the E astern D istrict of O klahom a
(D .C . N o. C IV -00-70-S )

Kristi Christopher, Assistant Federal Public Defender, Oklahoma City, Oklahoma,
for Petitioner-A ppellant.

Preston Draper, Assistant Attorney General, State of Oklahoma (W .A. Drew
Edmondson, Attorney General, and Seth S. Branham, Assistant Attorney General,
State of Oklahoma, on the briefs), O klahoma City, Oklahoma, for Respondent-
Appellee.

Before H E N R Y , SE Y M O U R , and E B E L , Circuit Judges.

SE Y M O U R , Circuit Judge.
 Rocky Dale Snow seeks federal habeas relief pursuant to 28 U.S.C. § 2254

to challenge his Oklahoma state court conviction and sentence for unauthorized

use of a motor vehicle, assault and battery with a deadly weapon, and murder in

the first degree. He claims he received ineffective assistance of trial and

appellate counsel under Strickland v. Washington, 466 U.S. 668 (1984), and that

the state suppressed exculpatory and material evidence in violation of Brady v.

M aryland, 373 U.S. 83 (1963). The district court denied relief and Rocky

appeals. 1 Exercising jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253, we

affirm.

I

Rocky filed his habeas petition after the effective date of the Antiterrorism

and Effective Death Penalty Act of 1996 (AEDPA ). W e are therefore bound by

1
Normally, we would refer to petitioner/defendant as Mr. Snow and all
other witnesses or relevant individuals in the case by their last name. But nearly
forty individuals testified at trial, and a number of additional affidavits were
proffered in the course of the appeal and post-conviction litigation in this action.
A number of these witnesses or affiants are related, many have the same last
name, and many share similar first names. As we note later in the opinion, these
similarities have caused occasional moments of confusion in the state appellate
and federal district courts. In our attempt to avoid this confusion, we will refer
to petitioner/defendant as Rocky. All other individuals will be introduced by
their full names. Thereafter, we will refer to Rocky’s family members who share
the last name of Snow by their first names. All other family members or
witnesses will be identified by their last name only.

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the provisions of that statute. M cGregor v. Gibson, 248 F.3d 946, 951 (10th Cir.

2001). Pursuant to AEDPA , our review of Rocky’s claims for relief is determined

by how those issues were addressed by the state courts. LeFevers v. Gibson, 182

F.3d 705, 711 (10th Cir. 1999).

W here the state court has addressed a petitioner’s claims on the merits,

habeas relief will only be granted where the state court decision was “contrary to,

or involved an unreasonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States; or resulted in a decision

that was based on an unreasonable determination of the facts in light of the

evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(1), (2).

The Supreme Court noted that when Congress drafted this portion of the statute, it

specifically used the word “unreasonable,” and not a term like
“erroneous” or “incorrect.” U nder § 2254(d)(1)’s “unreasonable
application” clause, then, 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.

Williams v. Taylor, 529 U.S. 362, 411 (2000). W e are thus precluded from

granting habeas relief where we conclude the state court was merely erroneous or

incorrect in its application of federal law. Rather, we may grant relief only when

we are convinced the state court’s application of federal law goes beyond being

erroneous and instead becomes objectively unreasonable. M cLuckie v. Abbott,

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337 F.3d 1193, 1197 (10th Cir. 2003). This standard does not require our “abject

deference,” id. at 1202 n.5, but nonetheless prohibits us from substituting our

“own judgment for that of the state court.” Woodford v. Visciotti, 537 U.S. 19, 25

(2002). In addition, factual findings made by the state court are presumed to be

correct unless rebutted by the petitioner w ith clear and convincing evidence.

Smith v. M ullin, 379 F.3d 919, 925 (10th Cir. 2004).

“To the extent that the state court has not addressed the merits of a claim

and ‘the federal district court made its own determination in the first instance,’

this court reviews ‘the district court’s conclusions of law de novo and its findings

of fact, if any, for clear error.’” Cannon v. Gibson, 259 F.3d 1253, 1260 (10th

Cir. 2001) (quoting LeFevers, 182 F.3d at 711). “If the district court’s factual

findings depend entirely on the state court record, we independently review that

record.” Allen v. M ullin, 368 F.3d 1220, 1234 (10th Cir. 2004) (citations

omitted).

AEDPA also governs Rocky’s ability to obtain a remand to the district

court for an evidentiary hearing on his claims. Section 2254(e)(2) of the statute

provides that

[i] f the applicant has failed to develop the factual basis of a claim in
State court proceedings, the court shall not hold an evidentiary
hearing on the claim unless the applicant shows that– (A) the claim
relies on– (i) a new rule of constitutional law , made retroactive to
cases on collateral review by the Supreme Court, that was previously
unavailable; or (ii) a factual predicate that could not have been

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 previously discovered through the exercise of due diligence; and (B)
the facts underlying the claim would be sufficient to establish by
clear and convincing evidence that but for constitutional error, no
reasonable factfinder would have found the applicant guilty of the
underlying offense.

28 U.S.C. § 2254(e)(2) (emphasis added). Section 2254(e)(2) does not apply,

however, where a petitioner has diligently sought to develop the factual basis

underlying his habeas petition. A petitioner is diligent when he requests an

evidentiary hearing and presents evidence “that would be readily available if the

claim were true,” Cannon v. M ullin, 383 F.3d 1152, 1177 (10th Cir. 2004), but his

request is nonetheless denied, M iller v. Champion, 161 F.3d 1249, 1253 (10th Cir.

1998). In such settings, an evidentiary hearing is warranted so long as the

petitioner’s “allegations, if true and not contravened by the existing factual

record, would entitle him to habeas relief.” Id. W ith these standards in mind, w e

turn to the facts presented at Rocky’s trial.

II

Rocky’s case was tried to a jury over a five-day period. The evidence

presented at trial indicated that around 10:30 a.m. on December 8, 1988, a young

man entered the office of the 12th Street Flea M arket in Ada, Oklahoma. Betty

Bush ran the flea market and was in the office that morning along with Richard

Newland and W ayne Russell.

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 The young man had “a full head of . . . blondish . . . light brown hair,”

which “seemed to be a little fluffed up or disheveled . . . by the wind that day.”

Tr. at 304, 422. 2 According to Newland, the man w as wearing jeans and a gray or

dark blue t-shirt. He was a “comparatively young man . . . [and] w as probably

near six feet tall.” Id. at 304. Newland speculated the man w eighed between 170

to 175 pounds. The man seemed to be in a hurry and “kind of held his neck like

maybe he had a crick in [it]” over to the right side. Id. at 307.

Russell testified the man w as wearing a “gray-hooded, zip-up-the-front

sweatshirt, faded blue jeans, [and] a dark shirt. He was roughly 5’11”, 6’, [and]

weighed about a hundred and seventy-five to eighty pounds.” Id. at 422, 433.

Russell also commented that the man’s “eyes had a weird look to them,” id. at

423, and that “when he came into the office, he had his head tilted way back.” Id. 3

2
The record on appeal is extensive. It includes the entire transcript from
Rocky’s trial and related filings and documents; the expanded record from his
direct appeal; the record from his state court post-conviction filings; and the
record in his federal habeas corpus action. Citations to the trial record will
appear as “Tr. at ___.” State court preliminary hearing proceedings will appear
as “Prelim. Hearing, date, at ___.” Citations to the direct appeal record will
appear as “Dir. App., rec. at ___.” Citations to the state post-conviction record
will appear as “State PC, rec. at ___.” Citations to the federal record will appear
as “Fed. HC, rec., vol. ___, doc. ___, item ___.” Finally, citations to the parties
briefs or petitions will indicate whether the brief is from the direct appeal (e.g.,
Dir. App., Aplt. Br. at ___), state post-conviction proceeding (State PC Pet., date,
at ___), or federal appeal briefs (Fed. HC, Aplt. Br. at ___).
3
Russell commented that “the man . . . had his eyes distorted to where it
would disguise his features.” Tr. at 435. However, it was not until late
(continued...)

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 The young man asked Bush if he could see some bedding. [Id. at 307.] She

left the office and led the man in the direction of the flea market storage unit

containing mattresses and bedding. A few minutes later, the man returned to the

office in what appeared to be a slightly agitated state and asked Newland for

further assistance. Newland left the office, and the young man followed him to

the bedding unit. As New land entered the unit, the man grabbed his shoulder,

started to turn him around, and began to strike him with a knife. Newland

suffered blows to his head, forehead, neck, and left hand. Newland testified that

his orientation to the assailant was somewhere between “profile[] and face-to-

face.” Id. at 335. For a brief period of time during the assault, he was “nose-to-

nose with the man.” Id. at 337. Newland commented while hospitalized and

recovering from his wounds that he would “never forget that face.” Id.

After stabbing Newland several times, the assailant ran out of the storage

3
(...continued)
December that Russell specifically remembered the nature of this distortion,
which he described as
a little trick with the eyelids that I hadn’t seen since I was in junior
high school, . . . where [kids would] reach up and grab their eyelid
and fold the top part down to where it would hang down about a
quarter of an inch below the eyelashes. Then they would release it,
and it would just remain hanging like that. It would give a very
weird, kind of wild look. And to be able to see, they’d have to tilt
their head way back and look under that part of their eyelid that was
hanging down below the eyelash . . . .
Id. at 436, 462.

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unit. N ewland did not immediately see Bush and feared she was also injured. H e

was bleeding profusely and was afraid he might lose consciousness, so he

returned to the office and asked Russell to call the police for help. The police

logged their receipt of the flea market call at 10:47 a.m., and they arrived at the

scene almost immediately along with emergency medical personnel.

Bush was found wedged between a mattress and box springs in the storage

unit. She had suffered stab wounds to her head, face, chest, back, and right arm.

The top pocket of her coat was ripped, and loose change was found on the ground

around her. M edical personnel were able to stabilize her temporarily, but soon

thereafter she died from her wounds. Newland was hospitalized for about five

days. The w eapon w as never found, but a medical examiner determined it was a

single-edged knife, about one half-inch wide and at least three inches long.

Sometime after 10 a.m. that morning, Houston Owens, who worked at an

establishment across the street from the flea market, observed a man drive up to

the flea market and park a faded or dull red Chevrolet pickup. The man w as

wearing a gray hooded sweatshirt. Owens watched the man w alk to the south end

of the flea market building and disappear. About fifteen to twenty minutes later,

the man returned, jumped into the truck and drove away in a hurry.

That same morning, Jerry Breeden, a mechanic who had a shop near the

flea market, heard a truck speeding down the street. He went outside to observe

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the vehicle and saw a “reddish-brown Chevrolet pickup heading south, running

stop signs as it was going.” Id. at 548. Owens testified to observing the same.

After being shown a photograph of a J.B. Stallings Construction Company

(Stallings) truck, Breeden identified the vehicle he saw as the truck in the

photograph. Owens also eventually identified the vehicle as the Stallings truck.

The truck’s southernly route meant it was traveling away from, rather than

toward, the Stallings work yard located in Ada.

Around noon that same day, employees at the Stallings work yard in Ada

noticed that one of the trucks from the work fleet was missing. The truck was

described as burnt orange or dull red in color and was last seen at the Ada

location earlier that morning. The company only had one vehicle this color. The

morning following the flea market crimes, the truck was found by Stallings

employees at the company’s Hartshorne, Oklahoma location. 4

At trial, the state’s theory was that Rocky took the Stallings truck from the

Ada work yard, drove to the flea market, and in the course of robbing Bush,

murdered her and stabbed Newland. The state further contended Rocky drove the

truck to the Stallings location in Hartshorne. In supporting this theory, the state

4
Hartshorne is located about seventy-six miles east of Ada. McAlester,
another Oklahoma town relevant to the facts of this case, is between Ada and
Hartshorne. It is sixty miles east of Ada and about fifteen miles west of
Hartshorne.

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presented twenty-nine witnesses, three rebuttal witnesses, and a variety of

exhibits. The defense attempted to shift suspicion for the murder and assault

from Rocky to his older brother, Allen. Rocky took the stand in his own defense

and his counsel presented ten additional witnesses to bolster the defense case and

cast suspicion on Allen. In response, Allen flatly denied killing Bush or

assaulting Newland. He also denied bearing a resemblance to the composite

image created by the police of the assailant.

A central component of the state’s case was based on Newland and

Russell’s eye witness identifications of Rocky. The day after the murder and

assault, both men individually met with Harvey Pratt, a police artist, to create a

composite image. Pratt explained that

as a police artist, in interviewing a witness or a victim to a crime, I
go through a verbal description with the witness. By that, I ask a
series of questions regarding physical characteristics, mannerisms,
and speech patterns. After w e go through a written description, I
show the w itness or the victims an Identification Kit, which is a
small booklet comprised of facial characteristics.
. . . As w e go through the [kit], I’ll ask the witness or victim to
pick out the pair of eyes or lips or nose that comes the closest.
As they pick out the different categories, I view them, and at
that time, I am making a drawing . . . .
And as I make the this drawing, and I complete all the
components of the facial characteristics, I . . . show the drawing to
the witness and ask them to make any changes . . . . And we’ll go
through the series again . . . – once we’ve got everything as close as
they can get, then we will quit.
Now , the drawing is not a positive identification. I also advise
the witnesses that. The drawing is a look-a-like, similarities. They
are not positive or portrait quality. They’re a sketch.

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Id. at 881-82. Pratt also acknowledged he has a “descriptive data sheet,” id. at

880, that he goes over w ith the witnesses, and he specifically asks about scars.

He affirmed that if he were told about a scar, he would include it in a composite

drawing.

Pratt went through this process with both Newland and Russell. After

reviewing the completed image, Newland suggested that the face be drawn to look

a bit longer and that the hair needed to be changed. According to Newland, in the

initial composite, the hair “looked close to the head, fairly close to the head, not

fluffy, not bushy.” Id. at 340. Russell was never fully satisfied with the image

because it did not capture the unusual appearance of the assailant’s eyes. Neither

man mentioned whether the assailant had any scars or distinguishing marks. The

composite image was posted in Ada, and soon thereafter Barbara Duncan, a

woman who casually knew Rocky through his girlfriend, M arcia Cross, informed

the police she thought Rocky bore a resemblance to the composite image. Rocky

was subsequently arrested as a suspect for the December 8 crimes and charged

w ith unauthorized use of a motor vehicle. As discussed in more detail below,

Rocky admitted to driving the Stallings truck from Ada to Hartshorne.

On December 13, five days after the crimes, police conducted a six-man

line-up. Rocky and five men enrolled at East Central University in Ada,

Oklahoma comprised the line-up. Prior to the line-up, Rocky’s court-appointed

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attorney, Jess Green, unsuccessfully objected to its construction, asserting Allen

should have been included. Counsel also insisted Rocky be allowed to tidy his

hair so that it would have a groomed appearance more like that of the other men

in the line-up. As Green testified at trial, prior to the line-up Rocky’s hair was

messy and looked like he had been sleeping. Green was concerned Rocky’s

mussed hair would make him stand out in the line-up. Consequently he had

Rocky wet down his hair, dry it and groom it. It was dry for the line-up. Counsel

was also concerned that the scar over Rocky’s left eyebrow would be a

distinguishing feature. 5 In response to this concern, the police required the

m em bers of the line-up to put a small band-aid over their left eyebrow.

The police conducted two separate line-ups, one for Newland and the other

for Russell. Both line-ups were videotaped and later viewed by the jury at trial.

Rocky was the fourth man in the line-up. Neither Newland nor Russell picked

Rocky as the flea market assailant. Instead, they both independently picked the

sixth man in the line-up, Richard M arkum, who was at home with his wife on the

morning of D ecember 8. Jeff Crosby, the officer who videotaped the line-ups,

testified it was quite unusual for two witnesses to pick out the same individual

5
Dr. John Huneke testified at trial that he treated Rocky in May 1988 for a
serious cut over his left eye. The doctor stated that the wound “had to be
surgically repaired,” Tr. at 786, and the injury was likely to leave a permanent
scar. The doctor further testified that the scar would have been more obvious in
December 1988 than during the trial, which occurred in June 1989.

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from a line-up when that individual was not the suspected perpetrator.

At trial, Newland testified that he w as asked to select the man w ho most

closely resembled the man at the flea market, and he understood he could pick

only one man. He said that following the line-up the officers informed him he

“had made the wrong choice. That is, [he] had not picked the Defendant.” Id. at

324. Newland further stated that while he had picked the sixth man out of the

line-up, he had “privately . . . made a second selection,” id. at 328, which was

Rocky.

Green testified that as Newland was viewing the line-up, he pointed to the

sixth man, M arkum, and stated “[t]hat’s the one that looks the most like him, to

my recollection.” Id. at 801. Gary Rodgers, a lead investigator in the case who

was present at the line-up, also said Newland told him that number six “appeared

to be similar from what he could recall the suspect appearing on the date that the

incident occurred. And he indicated that number four [Rocky] – there was just

something about number four, that his eyes just didn’t seem right for some reason

. . . .” Id. at 527-28.

Russell testified he understood he “was supposed to pick out the man w ho

most clearly at the time resembled the man at the flea market.” Id. at 436.

According to Crosby, Russell stated the sixth man in the line-up, M arkum, looked

the most like the man he saw in the flea market on December 8. During the line-

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up, Russell asked the fourth man, Rocky, to come forward to the line-up window

so he could take a closer look at him. Because Russell remembered that “the man

at the flea market had had his eyes distorted to where it would disguise his

features, [he] wanted to see if [he] could get this distortion . . . with the man w ho

was number four in the line-up.” Id. at 435. According to Green, Russell asked

the police to “be sure and make [Rocky] look up.” Id. at 802. Others observing

the line-up, however, testified Rocky never completely looked up or widened his

eyes as he was directed by the police. Russell indicated he might have picked

Rocky, except “his eyes [were not] right.” Id. at 504.

Russell was also aware after the line-up that he had not made the right

choice because the man he picked was not “the man that had been” at the flea

market. Id. at 439. Although he chose M arkum, he told the police M arkum

“more nearly resembles the one at the flea market, but this is not the person who

did it.” Id. at 457. Russell returned to the police station the day after the line-up

to inquire if there was anything else he needed to do to help in the investigation.

He bumped into Crosby and stated he understood he picked the wrong man.

Crosby responded “you know, that’s not the person we were suspecting.” Id. at

505.

In the days following the unsuccessful line-up, the Ada Evening News ran a

number of articles regarding the flea market crimes. On December 14, an article

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stated that Rocky had been arrested and assault and murder charges were pending.

It further stated Rocky had been part of a line-up, but had not been identified.

The following day, an additional article noted that Newland and Russell picked a

different man out of the line-up. 6 The next day, Russell called the police and

indicated he had selected the wrong man in the line-up and that Rocky was the

man he had seen at the flea market. He told the police he “had made the wrong

choice, and [he] . . . w asn’t convinced who was the guilty party” from the line-up.

Tr. at 440.

On February 28, 1989, a preliminary hearing was held regarding the

unauthorized vehicle use charge against Rocky, the sole charge then pending.

The state’s first witness, Newland, thought he was appearing at the hearing to

testify on the assault and murder charges. Rocky was still represented by Green,

who objected to Newland testifying. Counsel’s objection was overruled when the

state explained that “M r. Newland was at his place of business, and subsequent

witnesses will identify the pickup leaving the scene there . . . .” Prelim. Hearing,

Feb. 28, 1989, at 6. Rocky was present at the hearing, wearing prison garb but

6
The federal habeas record reflects that the paper reported the assistant
district attorney “accused Snow of attempting to conceal his identity during the
line-up and requested more time to prepare charges in the case.” Fed. HC, rec.,
vol. III, doc. 14, item G. Additional articles repeated this general information.
Id. Finally, on December 20, the paper ran an article that reiterated the
information detailed in the previous articles, but also included a copy of the
composite image created by Pratt, along with a photograph of Rocky.

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not handcuffs. 7 After being questioned by the state, Newland identified Rocky as

the man at the flea market on the morning of December 8. The state immediately

sought to amend the charges against Rocky to include the murder and assault

counts. At Rocky’s counsel’s request, the hearing was continued. W hen it

resumed on April 10, 1989, Green withdrew and Barney W ard, who had been

hired by Rocky’s father, began representing Rocky.

At the second preliminary hearing, as well as at trial, Newland and Russell

both positively identified R ocky as the man at the flea market on December 8. A t

trial, both were questioned as to why they were unable to identify Rocky in the

line-up five days after the December 8 crimes but then could identify him in the

pretrial and trial proceedings. Newland explained he did not pick Rocky from the

line-up because Rocky appeared differently there than he had at the flea market.

Newland recalled that at the line-up, Rocky’s hair was “slicked down pretty

slick,” Tr. at 321, and “it appeared that he has a . . . permanent scar on his

forehead, and that seemed to show up that day . . . like it was irritated or

something.” Id. at 321, 353.

O n cross-examination, Ward questioned Newland as to this reasoning. H e

asked Newland to examine a photograph taken of the line-up, and Newland

7
Russell was at the preliminary hearing but did not testify. While there, he
saw Rocky being brought into the courtroom by police officers.

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acknowledged that each man in the line-up had a band-aid over his left eye.

Newland further admitted that he did not inform anyone he thought the band-aids

might be covering scars, or whether he even thought this at all. Others present at

the line-up also testified that neither Newland nor Russell saw Rocky with wet

hair, and that Rocky’s hair was dry in the line-up. Newland thus seemed to be

confused about how Rocky looked on the day of the line-up and how his

appearance differed from the man at the flea market.

Newland further admitted that sometime between the December 13 line-up

and the February 28 preliminary hearing, he saw a photograph of Rocky in the

Ada Evening News. Nonetheless, he claimed he did not identify Rocky based on

seeing the picture in the paper. Rather, New land said “I’m identifying him, or I

did identify him, because I remember the face of the one who assaulted me, and

that was not necessarily the same face I saw in the line-up, [he] did not appear to

be the same person, [he] had a different appearance.” Id. at 355.

Defense counsel also questioned Russell on his failure to identify Rocky in

the line-up. Russell said he picked M arkum out of the line-up instead of Rocky

because M arkum’s eyes looked “more different than the most normal eyes that

you see.” Id. at 454. He also said that Rocky’s hair appeared different to him at

the line-up than the hair of the assailant at the flea market. He stated that “[o]n

the 8th of December, when the man came into the office, it was very windy, and it

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had been raining and snowing, which would have caused it to be somewhat wet,

which would make it appear to be different at that time.” Id. at 455. Russell

admitted on cross-examination that he did not see a scar over the assailant’s left

eye, but acknowledged that Rocky had a scar “proceeding from the middle of his

left eyebrow up on his forehead.” Id. at 451. 8 He explained that at the flea

market, he did not look directly into the assailant’s face. The prosecution asked

Russell to stand next to Rocky in the same position as he had stood in relation to

the assailant on the day of the assault. W hile in this position, Russell testified

that he w as unable to see Rocky’s scar.

The state presented a variety of other evidence to further its case against

Rocky. At the time of the flea market crimes, Rocky was staying in Ada with his

brother A llen. From time to time, Rocky also lived with his father, John Snow, in

M cAlester, Oklahoma. Allen w orked as a mechanic for Stallings. In the course

of his work, he often drove trucks in the Stallings fleet, including the burnt

orange pickup. Allen testified the company policy regarding truck use was that

“if you need one, the keys are in them. You just go find one that somebody ain’t

using and take it.” Id. at 624. Glenn Pendergrass, bookkeeper and office manager

for Stallings, testified that “depending on the job . . . [w ]e’ll have certain people

8
Conversely, Harvey Pratt, the police sketch artist, testified at trial he was
unable to see Rocky’s scar while he observed him in the courtroom.

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assigned to the vehicles . . . . Normally, we left the keys in [the trucks], and of

course, we locked up our gate at night when we left. But normally, the keys

stayed in the pickups.” Id. at 725-26. 9

A day or so before the flea market crimes, Rocky and Allen spent part of

their evening at the Sportsman’s bar in M cA lester. 1 0 Kelly Klift, one of Rocky’s

girlfriends, 1 1 and her sister Kimberly M iller, visited with Rocky and Allen at the

bar. Klift testified that on at least two occasions, Rocky informed her he would

be returning to M cAlester in a couple of days. He said he was driving one of the

Stallings trucks from Ada to M cAlester for his brother, and that Allen had offered

to pay him to accomplish this task. Allen did not participate in these

conversations, but was close at hand when Rocky shared this information with

Klift. Rocky testified Allen told him “that if M r. Stallings had a pickup for . . .

[Allen] to take to M cAlester, and that if I wanted to go home, that I could drive

the truck for him instead . . . .” Id. at 900. Allen was going to give Rocky thirty-

9
Glenn Pendergrass also testified that Rocky had never been employed by
Stallings. Rocky had applied for a job by filling out an employee identification
questionnaire. The company kept these questionnaires on file in case they needed
to hire anyone.
10
Trial testimony is unclear regarding whether Rocky and Allen’s evening
at the Sportsman’s bar occurred on December 6 or 7. On direct appeal and
during the state and federal habeas proceedings, however, the parties appear to
agree that the events at the Sportsman’s bar occurred on December 6, 1989.
11
Rocky had two girlfriends: Kelly Klift, who lived in McAlester, and
Marcia Cross, who lived in Ada.

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five dollars for gas. Allen testified otherwise, stating Rocky had informed him he

would be returning to M cAlester but that he had sorted out his own transportation.

Rocky did not ow n a car.

The following day, on December 7, Rocky and Allen went to the Ada flea

market to do some Christmas shopping. They were accompanied by M arcia

Cross, Rocky’s other girlfriend. Allen testified that after making a purchase,

Rocky commented that one of the flea market salesmen had a great deal of money

and it would be easy to knock the man in the head and steal from him. Allen

“told [Rocky] that if he was going to be . . . doing this kind of thing[], . . . [he]

didn’t want him around [his] house, because [he] was tired of doing time . . . .”

Id. at 627, 651. 1 2 Rocky denied engaging in this conversation. Later that night,

Rocky and Allen w ent to see a film, where another movie patron, M elvin Jones,

observed Rocky “wearing blue jeans, a light colored sweatshirt and a gray zip-up

type sweat jacket with a hood and high-top tennis shoes.” Id. at 968. Jones also

stated Rocky’s hair was longer in the back, and “probably went down to his collar

. . . .” Id.

On December 8, the day of the murder and assault, Allen testified he awoke

12
Allen admitted to having a substantial criminal record. At the time of
trial, he had already amassed six prior convictions, including four second degree
burglaries and one armed robbery. At the time of trial, Allen was serving time in
jail as the result of his continued criminal activity.

-20-
at 6 a.m., and went to work. He claimed he worked in the Stallings yard until

about 9 a.m., at which point he used the burnt orange truck to drive back to his

apartment and wake up Rocky. Allen testified he then returned to the Stallings

yard and stayed there until noon. The state thereafter presented a sales receipt

from a local store, B& M ’s Auto Parts, time stamped 9:54 a.m. and signed by

Allen. W ith his memory refreshed, Allen testified that after he had awakened

Rocky, he went to the auto parts store before returning to the Stallings yard. Id.

at 639. Once back at the yard, Allen worked with John Higgenbotham, another

Stallings employee.

Higgenbotham testified he had been in and out of the Stallings yard that

morning, returning at about 10:30 a.m. with a radiator. “Allen helped [him]

unload the radiator out of [his] pickup, and [they] put it over in front of the M ack

truck that it was to go on.” Id. at 720. Higgenbotham said the two men then

chatted for a while, until just before 11 a.m. As Higgenbotham left the yard, he

checked his watch because he was in charge of keeping his own hours for w ork.

He proceeded to the bank to cash a personal check. W hile there, he overheard

bank staff discussing the flea market crimes which had just occurred.

Charles W aldrop, another Stallings employee, also generally verified

Allen’s testimony regarding his time at the Stallings yard that morning. W aldrop

testified that Allen spent the morning repairing the company truck W aldrop used,

-21-
and that Allen was in and out of the yard purchasing parts. W aldrop thought he

last saw Allen returning to the Stallings yard in the burnt orange truck at around

9:30 a.m. He was not aware whether Allen made any other trips that morning.

Emory Holt testified he arrived at the Stallings yard sometime after 10 a.m.

that day to pick up a paycheck. As he was driving toward the yard entrance, he

saw the burnt orange red truck being driven out by a man he later identified as

Rocky. He testified he paid close attention to w ho was driving the truck because

he had been laid off from work two days prior and was curious to see who

Stallings w as currently employing. He was certain the driver was not Allen. Holt

went into the business office to collect his check and chatted with two employees

who were there. He then left the Stallings yard and went to cash his check at an

establishment near the flea market. Soon thereafter, he heard police sirens and

saw an ambulance drive by. W hen he left, he noticed the flea market was closed

and surrounded by emergency vehicles.

Allen testified he left the Stallings yard around noon for lunch and noticed

the burnt orange truck was missing. He also testified that he thought he heard the

truck start up around 10 or 10:30 a.m. W aldrop and Pendergrass also noticed the

truck was missing around 11:30 or noon that day.

Rocky testified to the events of the morning of December 8, but his account

varied in several respects from that presented by the other witnesses at trial. H e

-22-
said that sometime after 10 a.m., Allen came by the apartment to get him. Rocky

testified

there was money, if I remember right, laying in the seat of the pickup
with some receipts from a purchase he had made and some boxes.
And we went to the Stallings yard, and then we both got out and went
in. We carried the stuff he had purchased inside the shop, and we
stood around there for a while . . . I would say, maybe fifteen, twenty
minutes, maybe even longer than that. And then he gave me the keys
to the pickup. He said, “I’ll see you tonight.” I said “O’kay,” and as
I was leaving the yard, I seen several employees. I nodded to them,
left the yard, and I went straight to Holdenville.

Id. at 901. 1 3 Except for Holt, who testified to seeing Rocky drive out of the

Stallings yard in the burnt orange truck sometime after 10 a.m., no one else

claimed to have seen Rocky at the Stallings yard that morning.

On cross-examination, Rocky reaffirmed his testimony that Allen had come

by the apartment to wake him up around 10 a.m. and that they left together to go

to the Stallings yard. He further testified he was constantly with his brother, or in

the truck, from the time Allen picked him up. He remembered seeing someone

driving into the Stallings yard as he was leaving with the truck. Rocky agreed

with the state that the assault and murder probably occurred around 10:45 a.m.,

that the police were called at 10:47, and that the truck seen at the flea market was

the burnt orange truck he drove to Hartshorne. Id. at 914.

13
Holdenville is about eleven miles north of the halfway mark between Ada
and McAlester.

-23-
 At this point, the state asked Rocky how it could be that the truck he was

with from 10 a.m. onward, either with his brother or driving toward Hartshorne,

could also have been at the flea market. Flummoxed, Rocky rapidly refined and

revised his testimony. He said

I was at the Stallings yard. W e got there right around --- from
the previous testimonies that I have heard, I can only assume
my time frame, and from what even my brother has said, that
he purchased the parts around 9:54 that morning. I know he
came, possibly, directly to the house. He picked me up, and if
you’re counting time-wise, he picked me up at 10:00. W e went
to the yard. W e went straight to the yard, and he – See I must
have been there ten minutes, probably ten minutes, on the yard
before he left, and when he came back, it was possibly around,
I don’t know, 10:45. I know I was there on the yard for a long
time, and we visited that long.

Id. at 917 (emphasis added).

Indicating surprise, the prosecutor asked Rocky why he did not include in

his earlier testimony the very important information that his brother left the

Stallings yard. Rocky simply answered, “I was not asked.” Id. at 917. The

prosecutor then asked Rocky to clarify what time he left the yard after Allen

allegedly returned. Rocky began to say that he left Stallings around 10:45 a.m.,

but then stopped himself. He then stated “Allen was back around 10:47, so I

couldn’t have left or left at 10:45, so I had to have left a few minutes before

11:00.” Id. at 919. Rocky then added that Allen “had [him] in a garage working

on some brakes” for a semi and a half-ton truck. Id. at 919-20. W hat is clear is

-24-
that sometime during these varied time lines, a man arrived at the flea market in a

burnt orange faded red truck, murdered Bush, and assaulted Newland. 1 4

Rocky further testified that when he left the Stallings yard, he drove to

Holdenville. W hile in Holdenville, he shopped at a W al-M art, put gas in the

truck and checked its oil, stopped for a pizza, and then proceeded to M cAlester.

Once in M cAlester, Rocky stopped to visit his father, John, who expressed

concern about Rocky driving a Stallings truck. Rocky claimed his father said

“W ell, what are you doing with the pickup,” and I told him, I said,
“Allen had me bring it down here to M r. Stallings, and hopefully, I
can get me a job for M r. Stallings.” A nd my dad said, Rocky, don’t
trust him. You know how he is, because he has alw ays had . . . a
personal problem against you.

Id. at 903. John Snow did not testify at trial.

Rocky then went to the home of Karen Black, where his girlfriend Kelly

Klift was assisting Black in her babysitting business. Klift remembered Rocky

arrived between 1:15 and 1:30 p.m. in the Stallings pickup truck. She and Black

both testified that Rocky looked dirty. “H e had oil on his jeans and dirt. His hair

was messed up.” Id. at 579, 604. 1 5 Black said Rocky told her he had been

14
As noted earlier, the weapon was never found. Nor were the police able
to obtain much physical evidence from the scene of the crime. The police did
make a plaster cast of a boot print, and they took photographs of a tire track and
skid marks in the alley behind the flea market as well as of Rocky’s tennis shoes
in Allen’s apartment.
15
Klift testified that later she had a conversation with Rocky about what he
(continued...)

-25-
working for Stallings Construction driving a truck. Tim W ebb, a friend Rocky

spoke to later that day, also testified that Rocky informed him “he was working

for J.B. Stallings part-time, and that’s why he had the truck.” Id. at 672. 1 6

Although Rocky testified he was to deliver the truck to the Stallings yard in

Hartshorne, he nonetheless engaged in a number of activities before doing so and

attempted to find a place to leave the truck while he accomplished his personal

tasks. He initially tried to leave the truck w ith W ebb, but W ebb declined so

Rocky left the truck at Klift’s home.

Using Klift’s car, Rocky and Klift ran a number of errands and then went

back to Rocky’s father’s home. Rocky testified his dad expressed anger tow ard

15
(...continued)
was wearing when he arrived and that he confirmed he was wearing boots, jeans,
a t-shirt, and a thicker plaid shirt. Later, however, Rocky told her he was
wearing tennis shoes. Allen testified Rocky was wearing work boots that day.
Rocky’s sister, Angelia Stanley, testified that on November 29, 1989, she
cut Rocky’s hair quite short. She said that “his hair used to be real long . . . it
had real bad dead ends, and [Rocky] told [her] cut it all off. In order to get all
that off, [she] had to cut it short, and then [she] messed up, and [she] had to
really cut it short.” Id. at 795.
Klift verified Stanley’s version of events. On November 29, she
underwent a one-day surgical procedure. Rocky came to see her before the
procedure, and then again afterward. Klift testified that his hair had been cut
between the time she had the operation and when she saw him afterwards.
16
Gilbert Lawrence, president of Stallings, indicated that only he or J.B.
Stallings, owner of the company, had the authority to permit an employee to drive
one of the company trucks from one location to another and that he did not give
Rocky permission to do so. Pendergrass also testified that Rocky had never been
hired to drive a truck from Ada to Hartshorne. J.B. Stallings testified similarly.

-26-
Allen about something, and Klift testified that John told Rocky “to take [the

truck] back to the yard and wipe the fingerprints off of it.” Id. at 583. Instead of

immediately doing so, Rocky continued with his own agenda. Klift and Rocky

eventually returned to Black’s residence to pick up Black’s children and take

them out for pizza. W hen they finished dinner and returned the children to

Black’s house, Rocky and Klift went back to her home to get the truck. Klift

followed Rocky in her car while he drove the truck to the Stallings yard in

Hartshorne. Klift gave Rocky a rag and he w iped off the truck per his father’s

instructions. Rocky commented that he thought Allen might be trying to set him

up.

The next day, Rocky, Klift, and M iller went shopping and encountered an

angry Allen at the M cAlester W al-M art. Klift remembered Allen saying

“something about the truck and that he wasn’t going to go to prison for anyone.”

Id. at 592. Allen testified he asked Rocky “if he took the truck and had anything

to do with the killing over . . . in [Ada], and [Rocky] denied both of them.” Id. at

637. Rocky testified Allen “pulled [him] aside and started telling [him]

something about, ‘I’m in trouble because of you.’ He said, ‘W hy did you take the

pickup to the Stallings’ yard? W hy are you making it look like I did it?’ And

[Rocky] didn’t understand what he was talking about . . .” Id. at 908. The

tension and verbal sparring between Rocky and his brother continued that

-27-
afternoon at their father’s house. Later, Klift and M iller both overheard Rocky

ask his father if he should go back to Ada to clear things up, but John told him

not to worry about it at the moment. Rocky testified that he did not then know an

assault and murder had occurred in Ada.

Sondra Campbell, a childhood friend of Rocky, testified that the following

evening, December 10, she was at the Zodiac Bar in M cAlester. According to

Campbell, Rocky came into the bar and started chatting with her. Campbell

described Rocky as w earing blue jeans, a navy-blue sw eat jacket that zipped all

the way up, and black army combat boots. His hair was “long, collar length, and

it covered his ears.” Id. at 762.

She said they talked about their shared childhood, and then he told her he

had killed two people in Ada for money. He also told her “he w ent to where

Allen worked and stole his truck, stole the truck from the company,” id. at 760,

but that he eventually hitchhiked back to M cAlester. He asked her if she knew

where he could get a hair cut, as “he needed to get it washed and cut because it

smelled like blood.” Id. at 759. Campbell testified that while she could not smell

any blood, the man she was speaking with did need a haircut. Campbell asked

Rocky to leave her table, and he told her “not to tell anybody, because if [she]

-28-
did, he would kill [her].” Id. at 760. 1 7

On cross-examination, Rocky’s attorney questioned Campbell about the

extent of her friendship w ith Rocky and how long it had been since they had last

seen each other and engaged in a substantive conversation. After establishing

Campbell had not said more than a passing hello to Rocky over the past ten years,

he asked “[a]nd you’re telling this Court and jury, under oath, that he just came

up to you in a tavern in M cAlester and confessed to two first degree murders and

armed robberies?” Id. at 768. Campbell answ ered in the affirmative. She also

testified that as far as she was able to see, the man she spoke to in the bar did not

have a scar on his face. But Campbell admitted she was able to see the scar on

Rocky’s forehead in the courtroom. Id. 1 8

Defense counsel presented witnesses who countered Campbell’s version of

17
Sondra Campbell became a witness for the state just days before Rocky’s
trial began. Allen’s girlfriend, Jeannie McNeelus, had recently befriended
Campbell and expressed concern about Allen having to testify at trial. Campbell
said she had not told anyone about Rocky’s confession because she was afraid,
but she eventually told McNeelus. McNeelus told the police about Rocky’s
confession to Campbell. McNeelus began cooperating with the police and
recorded a subsequent conversation with Campbell in which Campbell repeated
what she had previously told McNeelus. Campbell was then questioned by the
police and called by the state as a witness. At trial, Campbell denied being
threatened by McNeelus to testify, but she indicated they were no longer friends.
18
Jack Stringer, an investigator on Rocky’s direct appeal, interviewed
Campbell in December 1992. State PC Pet., July 24, 1995, at 120. She “said
everything that she testified to at trial was true to the best of her memory.” Id.
She further stated “no one threatened her after she was arrested to testify.” Id.

-29-
events. Robert Scofield testified that on the evening of December 10, Rocky

worked for him. Scofield was the restaurant manager at the Ramada Inn, which

had hosted a banquet that evening. Rocky was scheduled to assist Scofield in

tearing down the banquet room. Rocky arrived sometime between 9 and 10 p.m.

and worked for at least three hours. Scofield described Rocky has having collar

length hair at the time. Klift testified that she joined her mother at the banquet

that evening and then around 8 or 8:30 p.m. picked up Rocky at his father’s house

and brought him back to the banquet to work. She stated she was with Rocky for

the entire evening and helped him on the banquet job. Rocky’s version of events

was similar. He claimed Klift picked him up around 9 p.m., and that they worked

until around 11 p.m. or midnight. Rocky denied going to the Zodiac bar that

evening or engaging in any conversation with Campbell.

In an effort to further raise reasonable doubt as to Rocky’s guilt, defense

counsel presented testimony from Janice Benson. Benson was the sister of

Jeannie M cNeelus, Allen’s girlfriend, and had lived briefly with M cNeelus and

Allen in January 1989, just following the flea market crimes. 1 9 Benson testified

that on January 7, 1989, she, Allen, and M cNeelus, along with M ike Tripp and

Eddie Snow, Allen’s cousin, were visiting at M cNeelus’ house. Allen had

recently moved clothing and dishes he had been storing at his father’s apartment

19
Allen had since moved from Ada to McAlester to live with McNeelus.

-30-
to M cN eelus’ home, and Benson testified that Allen and M cN eelus w ere

unpacking the boxes. According to Benson, Eddie asked Allen if Rocky had

bonded out of jail, and “Allen started laughing and said, ‘No, they’ve got him on

murder.’” Id. at 850. Benson further testified that Allen told the group he wanted

to show them something, and he went over to one of his boxes and pulled out a

kitchen knife w ith a w ooden handle on it. He said “[t]his is the knife they’re

looking for in Ada.” Id. at 851. He also said he was not going to let anyone find

him with it. Allen denied engaging in any such conversation.

Benson also testified that she was at M cNeelus’ house a few nights later

watching a movie w ith Allen, her sister, and Eddie. There was a scene in the film

where

a man had a big drill, and he was killing [a] lady. And Allen said,
“On TV, they make it look so easy to kill somebody, but it’s not like
that at all.” He said, “W hen you stab somebody, you hit bones, and
you hit muscle, and they start gurgling and choking on the blood.”

Id. at 852. Allen denied this occurred.

A few days later, Benson was at M cNeelus’ home helping Allen and

M cNeelus clean up the house and yard. According to her testimony, they took

boxes out of the house and drove to a dump to dispose of the trash. She testified

that one of the boxes contained the knife Allen intimated was used in the Ada flea

market crimes. She said she went to the police and shared this information with

them. Officers Joe Hogan and Gary Rodgers drove out to the dump w ith Benson,

-31-
but they were unable to find the knife. She later told her mother she had given

this information to the police, and her mother in turn told M cNeelus and Allen.

According to Benson,

Allen called me up several times, and he told me that he would kill
me if I didn’t shut my mouth about what was going on. He said that
he would never go back to prison, and he told me – at first he was
just threatening me, and I told him I wasn’t afraid of him. And the
he called me up and said, “I’m going to kill your kids if you don’t lay
off.”

Id. at 855. Unsurprisingly, Allen denied all of these allegations. 2 0

On cross-examination, Benson admitted that when she spoke to the police,

she did not specifically identify Tripp and Eddie to the officers. She claimed

Tripp had already threatened her life if she spoke to the police. She also claimed

Eddie’s girlfriend had threatened her. Likewise, she testified M cNeelus told her

“somebody was going to file perjury charges on me. She said I w ould be sorry if

I came down here to testify. She said she would make my life hell.” Id. at 861.

The state sought to undermine Benson’s statements by presenting testimony

from her mother and Officer Hogan. Her mother testified that Benson’s story

about Allen with the knife was driven by revenge because Benson was angry at

20
Allen did testify that soon after Rocky stopped living with him, he
discovered a knife was missing. He described the knife as having “a pretty good
sized wooden handle on it . . . [with] . . . a nine, ten inch blade, real, real skinny,
like it’s been sharpened down for quite a few times.” Id. at 645.

-32-
M cNeelus and Allen for stealing Benson’s gun. 2 1 Officer Hogan verified he had

spoken with Benson about Allen’s statements regarding the knife but that in his

opinion, Benson was not a truthful person.

After hearing all of this evidence, the jury found Rocky guilty of the three

counts against him. At the end of the second stage proceedings, the jury

recommended a death sentence. The trial court imposed sentences of twenty years

for the unauthorized vehicle use, ninety-nine years for the assault, and death for

the murder. Rocky’s convictions and sentences were affirmed on direct appeal

after the Oklahoma Court of Criminal Appeals (OCCA) permitted the record to be

expanded with numerous affidavits. Snow v. State, 876 P.2d 291 (Okla. Crim.

App. 1994). Rocky’s petition for rehearing was rejected, Snow v. State, 879 P.2d

150 (O kla. Crim. App. 1994), and the United States Supreme Court denied his

petition for w rit of certiorari, Snow v. Oklahoma, 513 U.S. 1179 (1995).

Rocky filed his first application for post-conviction relief with the District

Court for Pontotoc County in July 1995, which he was permitted to supplement in

July 1997. 2 2 He was denied an evidentiary hearing, and his petition was denied by

21
Benson and her mother were not close. She testified that her mother did
not raise her, they did not get along and spoke only occasionally.
22
In his state post-conviction proceedings, Rocky was represented by staff
from the Oklahoma Indigent Defense System, Capital Post-Conviction Division.
Soon after his first petition was filed, the Capital Post-Conviction Division had
eighty percent of its funding cut and terminated a majority of its staff. In light of
(continued...)

-33-
the state district court in September 1997. In an unpublished opinion, the OCCA

ultimately affirmed the denial of relief. Snow v. State, PC 97-1350 (Okla. Crim.

App., Nov. 10, 1999). One judge dissented, asserting Rocky should have received

an evidentiary hearing regarding a number of his Brady claims. Id. at 15. 2 3

Rocky filed a petition for a writ of habeas corpus in federal court in July

2000. W ithout conducting an evidentiary hearing, the district court denied

Rocky’s request for relief. Rocky appealed, and we granted his application for a

certificate of appealability on his claims of ineffective assistance of trial and

appellate counsel, as well as his Brady claims.

22
(...continued)
these financial difficulties, Rocky’s case was temporarily abated. In 1997, the
court directed that briefing on Rocky’s case be completed. At that time, Rocky
was permitted to supplement his state post-conviction petition.
23
Rocky filed a second application for state post-conviction relief
challenging his death sentence in light of the Supreme Court’s decision in Atkins
v. Virginia, 536 U.S. 304 (2002). In Atkins, the Court held that the execution of
a mentally retarded individual would constitute cruel and unusual punishment
under the Eight Amendment of the United States Constitution, but left to the
states the task of “determining which offenders are in fact retarded.” Id. at 317.
Rocky’s case was remanded for a trial on the issue of his mental retardation.
Snow v. State, 87 P.3d 626 (Okla. Crim. App. 2004). He was found to be
mentally retarded as defined by Oklahoma law, and his sentence was modified to
life imprisonment without the possibility of parole.

-34-
 III

Brady Claim

Rocky contends the prosecution withheld evidence in violation of Brady v.

M aryland, 373 U.S. 83 (1963), thereby undermining the reliability of the verdict

against him. The withheld evidence included Oklahoma State Bureau of

Investigation (O.S.B.I.) notes of an interview with Kris Grogins; an O.S.B.I.

interview report of Duncan; videotaped interviews of a number of witnesses; the

audio tape of M cNeelus and Campbell discussing Rocky’s confession to the flea

market crimes; O.S.B.I. interview notes of Cross; O.S.B.I. interview notes of

Allen and the accompanying videotape of that interview; and information

regarding alleged police coercion, leading to Campbell’s trial testimony and her

eventual recantation of the same. Rocky claims this withheld evidence was

exculpatory and its suppression raises serious doubts as to the state’s case against

him.

In Brady, the Supreme Court held that “the suppression by the prosecution

of evidence favorable to an accused upon request violates due process where the

evidence is material either to guilt or to punishment, irrespective of the good faith

or bad faith of the prosecution.” Id. at 87. “In order to establish a Brady

violation, a habeas petitioner must show that: (1) the prosecution suppressed

evidence; (2) the evidence was favorable to the accused; and (3) the evidence was

-35-
material to the defense.” Banks v. Reynolds, 54 F.3d 1508, 1516 (10th Cir. 1995)

(citing Fero v. Kerby, 39 F.3d 1462, 1472 (10th Cir. 1994); United States v.

DeLuna, 10 F.3d 1529, 1534 (10th Cir. 1993)). Brady claims normally present

m ixed questions of law and fact, which we review de novo. Foster v. Ward, 182

F.3d 1177, 1191-92 (10th Cir. 1999); Banks, 54 F.3d at 1516.

Exculpatory evidence includes impeachment evidence. United States v.

Bagley, 473 U.S. 667, 676 (1985); Nuckols v. Gibson, 233 F.3d 1261, 1267 (10th

Cir. 2000). How ever, exculpatory evidence is only material if “there is a

reasonable probability that, had the evidence been disclosed to the defense, the

result of the proceeding would have been different. A ‘reasonable probability’ is

a probability sufficient to undermine confidence in the outcome.” Bagley, 473

U.S. at 682; Banks, 54 F.3d at 1518. The Supreme Court has further refined the

Brady/Bagley materiality standard as follow s:

Bagley’s touchstone of materiality is a “reasonable probability” of a
different result, and the adjective is important. The question is not
whether the defendant would more likely than not have received a
different verdict with the evidence, but whether in its absence he
received a fair trial, understood as a trial resulting in a verdict
worthy of confidence.

Kyles v. Whitley, 514 U.S. 419, 434 (1995) (citing Bagley, 473 U.S. at 678). See

also Scott v. M ullin, 303 F.3d 1222, 1230-31 (10th Cir. 2002). W hen engaging in

a materiality analysis, we are not to consider each piece of withheld evidence in

isolation. Banks, 54 F.3d at 1518.

-36-
 Rather, we review the cumulative impact of the withheld evidence;
its utility to the defense as well as its potentially damaging impact on
the prosecution’s case. Furthermore, . . . we evaluate the materiality
of withheld evidence in light of the entire record in order to
determine if the omitted evidence creates a reasonable doubt that did
not otherwise exist. W hat might be considered insignificant evidence
in a strong case might suffice to disturb an already questionable
verdict.

Id. (internal citations and quotations omitted).

Rocky first raised his Brady claims in state court in his petition for post-

conviction relief. The OCCA rejected all but three of Rocky’s claims as barred

under O klahoma’s Post-Conviction Procedure Act, see O KLA . S TAT . tit. 22, §§

1080-1089, reasoning he could have raised these claims on direct appeal but

failed to do so. 2 4 The state court addressed the merits of Rocky’s claims

regarding Campbell, Grogins, and the lost videotaped interview s. 2 5 W e begin

24
Oklahoma’s Post-Conviction Procedure Act, O KLA . S TAT . tit. 22, §§
1080-1089, “embodies the principles of res judicata and precludes state collateral
review of issues actually raised on direct appeal, as well as those issues that
could have been raised on direct appeal, but were not.” Brecheen v. Reynolds, 41
F.3d 1343, 1349 n.4 (10th Cir. 1994).
25
The federal district court noted the procedural bar and stated it was
therefore “precluded from considering the issues not raised on direct appeal.”
Fed. HC, rec., vol. VII, doc. 38 at 55. See Hale v. Gibson, 227 F.3d 1298, 1330
n.15 (10th Cir. 2000) (Oklahoma’s Post-Conviction Procedure Act “is an
adequate state bar to Brady claims raised on post-conviction review that could
have been raised on direct appeal.”). However, the district court held it was not
necessary “to resolve [the Brady claims] on the basis of procedural bar since
[the] Court [found] that the documents were either not suppressed from [Rocky]
or they were not ‘material’ to his defense.” Fed. HC, rec., vol. VII, doc. 38 at 55.

-37-
with the claims the OCCA addressed on the merits, recognizing we can grant

relief only where the state court’s resolution of Rocky’s claims was contrary to, or

an unreasonable application of, Supreme Court precedent. 28 U.S.C. § 2254(d);

W illiam s, 529 U.S. at 411; M cLuckie, 337 F.3d at 1197.

Rocky alleges the state’s failure to disclose police notes from Grogins’

interview violates Brady. He claims Grogins’ testimony could have undermined

the state’s proffered time line for the morning of December 8 and challenged

Allen’s alibi for his whereabouts that morning.

The police interviewed Grogins in mid-December 1989 regarding her

recollection of events on the morning of December 8. She told them that

sometime between 10 and 10:45 a.m. that morning, she saw Allen “drive up and

park at the apartment in what looked like a company pickup. [He] left the motor

running and went inside his apartment and stayed just a short time, then he came

out and drove off. He came there alone and left alone.” Fed. HC, rec., vol. III,

doc. Y. She did not see anyone else leave the apartment, and she did not see

Rocky. Id. Later, in an affidavit dated July 1997, she narrowed the time frame

for w hen she saw Allen arrive to betw een 10:15 and 10:30 a.m. Id. The OCCA

rejected this claim on the merits, summarily concluding in a single sentence that

the information from Grogins’ police interview was not exculpatory. Snow, PC

97-1350, at 4.

-38-
 W e have held that even where a state court’s decision on the merits lacks

analysis, we must defer to that ruling under § 2254(d) “unless our independent

review of the record and pertinent federal law persuades us that its result

contravenes or unreasonably applies clearly established federal law, or is based on

an unreasonable determination of the facts in light of the evidence presented.”

Aycox v. Lytle, 196 F.3d 1174, 1178 (10th Cir. 1999). After engaging in an

independent review of the record and the relevant federal law while remaining

mindful of § 2254(d)’s highly deferential standard, we conclude the state court’s

ruling regarding the Grogins information was not an unreasonable application of

federal law.

Grogins’ statements to the police partially counter the time line presented

by the state as to Allen’s movements on the morning of December 8. Allen

testified he woke Rocky around 9 a.m. and thereafter bought auto parts and

returned to the Stallings yard. The store receipt indicated Allen made his

purchase at 9:54 a.m., and Allen testified he returned to the work yard after

completing this sale. Other testimony presented at trial places Allen at the

Stallings yard on December 8 with Higgenbotham from about 10:30 until 11 a.m.

Grogins told the police she saw Allen at the apartment sometime between 10 and

10:45 a.m., rather than at 9 a.m., as A llen attested. To this extent then, Grogin’s

time line could be construed as assisting Rocky because Rocky asserted Allen

-39-
came by the apartment around 10 a.m. Conversely, Grogins’ statement directly

undercuts Rocky’s own testimony regarding the events of that morning. Rocky

claimed that when Allen came to the apartment, he and Allen left together in the

Stallings truck. Grogins stated she saw Allen leaving alone and did not see Rocky

at all that morning. Thus, Grogin’s information seems to provide more support to

Allen’s account of the events that morning than to Rocky’s.

M oreover, we are not convinced that even if the Grogins interview had

been disclosed to the defense, “there is a reasonable probability that . . . the

result of the proceeding would have been different.” Bagley, 473 U.S. at 682.

The jury had before it the uncontested testimony of Higgenbotham w ho stated he

worked with Allen between 10:30 and 11 a.m. that morning, as well as Holt who

testified he observed Rocky leaving the Stallings yard in a company truck

sometime after 10 a.m. Higgenbotham testified that he went to the bank to cash a

personal check after he left the Stallings yard, at which time he heard bank staff

discussing a crime just committed at the flea market. Holt testified he arrived at

the Stallings yard around 10 a.m. to collect his work check. He said that he saw

Rocky as he was arriving. Holt obtained his check, chatted in the company office

for a while with some other Stallings employees, and then went to an

establishment near the flea market to cash his check. W hile he was there, he

heard sirens and saw an ambulance drive by in the direction of the flea market.

-40-
W hen he finished his financial transaction, he noticed that the entrance to the flea

market had been closed off and was surrounded by emergency vehicles.

Higgenbotham’s and Holt’s recollections of that morning are firmly

anchored by their remembrance of contemporary conversations or observations of

events directly connected to the flea market crimes. Thus, it had to be soon after

10:47 a.m., the time the police were called to the flea market, when Holt heard

sirens and saw an ambulance while he was cashing his check. Likewise, when

Higgenbotham heard employees at the bank discussing the recent commotion at

the flea market, it would have been sometime after 11 a.m., as Higgenbotham

testified.

Contrary to this evidence, the jury heard Rocky testify that his brother

picked him up around 10 a.m. Rocky claimed that after Rocky and Allen arrived

at the Stallings yard, they unloaded the truck, stood around and chatted for

perhaps as long as twenty minutes, and worked on a couple of trucks. Then,

according to Rocky’s revised testimony, Allen left the work yard perhaps ten to

fifteen minutes after they arrived and returned around 10:45 or 10:47 a.m. Rocky

claims he left the Stallings yard in the burnt orange truck around 11 a.m., nodding

to other Stallings employees as he was leaving. W e would have to interpret the

Grogins information as suggesting that when Allen allegedly left the work yard,

he returned to the apartment, went to the flea market and murdered Bush and

-41-
assaulted Newland, fled the flea market in a direction taking him away from the

Stallings yard, but nonetheless returned to the yard in time to assist

Higgenbotham sometime between 10:30 and 11 a.m. and then turn the truck over

to Rocky. This proffered time line attempts too much and cannot be squared with

the firmly grounded testimony of H olt and Higgenbotham. In these

circumstances, we cannot conclude the absence of Grogins’ information

undermines our confidence in the outcome of Rocky’s proceeding. Kyles, 514

U.S. at 434. The state court’s resolution of Rocky’s Brady claim on this issue

was not an unreasonable application of Supreme Court law. 28 U.S.C. § 2254(d).

Rocky also contends the state violated Brady by failing to disclose the

manner by which the police procured Campbell’s testimony. As discussed above,

Campbell testified at trial that on December 10, she was drinking at the Zodiac

B ar. She claimed R ocky came into the bar and confessed to her that he killed tw o

people in Ada and needed to get his hair cut because it smelled like blood. She

also testified that she had not been threatened to provide her testimony. Defense

counsel vigorously cross-examined Campbell, and counsel presented witnesses

who placed Rocky elsewhere on the night of December 10. During Rocky’s direct

appeal, Campbell was interview ed and affirmed the veracity and uncoerced nature

of the statements she had made at Rocky’s trial. But in 1997, Campbell recanted

her trial and direct appeal statements. In an affidavit, Campbell stated that about

-42-
a week before Rocky’s trial, M cNeelus expressed fears that Allen was going to be

arrested for the flea market crimes. Campbell admitted she told M cNeelus that

she was in the Zodiac Bar on December 10 and that a man came up to her in the

bar and told her he had committed the flea market crimes. Campbell said

M cNeelus was very interested in what she had to say and asked if the man w as

Rocky. Campbell said she “had not seen Rocky in a long time, but the man could

have been Rocky Snow.” Fed. HC, rec., vol. III, doc. 14, item H. Campbell

claimed that later the same evening, she and M cNeelus had another conversation

in which M cNeelus appeared to be acting strange and asked Campbell to repeat

what she had said in their earlier conversation. 2 6

26
Campbell later learned McNeelus was taping their conversation. Rocky
contends the tape recording of the conversation was withheld by the state,
constituting a Brady violation. Rocky first raised this claim in his state
application for post-conviction relief. The OCCA deemed the claim waived
because direct appeal counsel could have raised it but did not. The federal
district court conducted an analysis on the merits and concluded the tape was not
withheld. We are not convinced the tape was made available to defense counsel
during trial, but we nonetheless conclude the material on the tape was not
exculpatory to Rocky.
Like the district court, we listened to the tape and found it extremely
difficult to understand. No transcript accompanied the tape, and the voices on
the tape, many of which clearly did not belong to McNeelus or Campbell, are
unidentified. Moreover, based on what we were able to discern from the tape,
nothing McNeelus or Campbell says is exculpatory. McNeelus is certainly
proactive during her conversation with Campbell, steering the discussion to
Rocky’s impending trial and his alleged confession to Campbell at the Zodiac
bar. However, when questioned by McNeelus about what happened on December
10, Campbell never specifically says that the man was not Rocky, nor does she
(continued...)

-43-
 According to Campbell’s affidavit, at approximately 3 a.m. the following

morning, Ada police arrested her as a material witness and held her for

questioning. The police would not let her call anyone to take care of her

daughter, but instead made her take her child to a youth shelter. The police also

allegedly told her she could not call a lawyer until she had spoken with them.

“They told [her] that if [she] did not tell them w hat they wanted to hear, they

would leave [her] in jail and take [her] little girl away from [her.]” Id. The

police accused Campbell of withholding state’s evidence and stated “that they

could keep [her] in jail until [she] told them the story [she] had told Jeannie.” Id.

Campbell also asserts the police showed her a photograph of Rocky and

that she told them “the man in the picture was not the man [she] saw in the

Zodiac.” Id. She “told the officers the man [she] saw did not have a scar and had

sandy brown hair rather than dark brown hair. [She] told the officers [she] was

positive the man [she] saw in the Zodiac was not Rocky Snow .” Id. According to

Campbell, the police did not care and told her she was lying. She claims the

26
(...continued)
correct McNeelus when McNeelus consistently asks about what Rocky said or
what he was wearing that night. In response to McNeelus’ questions, Campbell
indicates, without specifically saying “Rocky said . . . ,” that Rocky confessed he
killed the people at the flea market and that he needed to get his hair cut because
it smelled like blood. She also stated that Rocky said “he did it.” Fed. HC, rec.,
vol. VI, doc. 23. Campbell’s taped statements are nearly identical to those she
made at trial. We are therefore unpersuaded this information is exculpatory to
Rocky.

-44-
officers told her she “had already said it was Rocky Snow once, and that if [she]

did not say it again, they would put [her] in jail and take [her] little girl.” Id. A n

officer also told her she “might never get [her] little girl back if [she] had to go to

jail and was convicted of withholding state’s evidence.” Id. Campbell then wrote

a statement at the direction of the police. She claims the police told her exactly

what to write. Campbell asserts in the affidavit that she has “felt guilty for

almost ten years for lying and causing Rocky Snow to go to prison.” Id. She did

not tell the truth because she was afraid of losing her daughter and scared Allen

might harm her. She claims she is willing to “testify or do whatever is necessary

to tell this story to whoever needs to hear it.” Id.

Rocky contends that had defense counsel known Campbell was allegedly

coerced into giving her testimony, there would have been a reasonable probability

the outcome of his trial would have been different. Bagley, 473 U.S. at 682;

Banks, 54 F.3d at 1519. The OCCA rejected Rocky’s argument that Campbell had

been coerced, noting that at trial and during direct appeal she attested otherw ise.

The court also rejected Rocky’s claim that Campbell had lied at trial. In

considering the entire record as a whole, the state court concluded that

information regarding Campbell’s alleged lying would not have resulted in a

different outcome at Rocky’s trial.

The state court’s ruling was not an unreasonable application of established

-45-
Supreme Court authority. 28 U.S.C. § 2254(d). First, the only potentially

relevant Brady material the state could have turned over in terms of Campbell’s

testimony at the time of trial was handwritten police notes regarding Campbell’s

arrest and initial police interview. Those notes would have indicated that on June

13, 1989, M cNeelus engaged in a taped conversation with Campbell regarding

Rocky’s alleged December 10 confession at the Zodiac bar. M cNeelus then

provided police with the tape, after which the police obtained a material witness

warrant to arrest Campbell. Campbell was arrested at 3 a.m. the following

morning and questioned by police. According to the notes, Campbell told

officers that she . . . w as glad Jeannie M cNeelus told law-
enforcement officers about their conversation regarding Rocky Dale
Snow . [Campbell] advised officers . . . she had worried greatly about
what she . . . was told by Rocky Dale Snow and being scared to tell
anyone due to the threat Rocky Dale Snow made to her . . . on
December 10, 1988.

Fed. HC, rec., vol. III, doc. 14, item DD. There is nothing exculpatory about this

report.

M oreover, even assuming Campbell lied about Rocky’s confession, our

confidence in the outcome of Rocky’s trial is not undermined. Bagley, 473 U.S.

at 682. At trial, Campbell was vigorously cross-examined by defense counsel,

raising great doubts as to the veracity of her testimony. Similarly, defense

counsel presented Klift and Scofield as witnesses who further undermined

Campbell’s credibility and placed Rocky elsewhere on the evening Campbell

-46-
claims he confessed to her at the Zodiac bar. Neither witness was subjected to

significant cross-examination by the state. Campbell’s credibility was thus placed

squarely before the jury. The O CCA’s rejection of Rocky’s Brady claim

regarding Campbell’s subsequent affidavit was not an unreasonable application of

Supreme Court law. Rocky can likewise find no relief in his claim regarding the

lost videotaped police interviews. In the course of investigating the case against

Rocky, the police interviewed a number of witnesses and videotaped some of

those interview s. Rocky claims the state lost the videotapes, which he asserts

contain exculpatory and material evidence.

The O CCA appears to have addressed this Brady claim only in relation to

the undisclosed information in an O.S.B.I. interview with Allen, which included a

videotape of the interview, although Rocky’s petition for state post-conviction

relief was not so limited. See State PC Pet., July 24, 1995, at 53. The state court,

without explicitly commenting on whether Rocky’s videotape argument was

procedurally barred, summarily rejected the claim, stating Rocky “disclose[d] no

information regarding the videotaped interview to show that it is exculpatory or

that it contains newly discovered evidence.” Snow, PC 97-1350 at 5-6. The

federal district court also gave this argument passing reference, stating Rocky

“has failed to submit any evidence that . . . any of the videotapes of the various

interviews . . . were exculpatory.” Fed. HC, rec., vol. VII, doc. 38 at 62.

-47-
 Supreme Court authority makes clear that when dealing with lost or

destroyed evidence, “unless a criminal defendant can show bad faith on the part

of the police, failure to preserve potentially useful evidence does not constitute a

denial of due process of law.” Arizona v. Youngblood, 488 U.S. 51, 58 (1988)

(emphasis added). In this setting, the Court has noted “the difficulty of

developing rules to deal with evidence destroyed through prosecutorial neglect or

oversight. Whenever potentially exculpatory evidence is permanently lost, courts

face the treacherous task of divining the import of materials whose contents are

unknown and, very often, disputed.” California v. Trombetta, 467 U.S. 479, 486

(1984). The Court therefore imposed the requirement that the defendant show bad

faith on the part of the police when potentially exculpatory evidence is lost or

destroyed. Youngblood, 488 U.S. at 58. See also United States v. Fletcher, 801

F.2d 1222, 1224-25 (10th Cir. 1986) (“Absent evidence of police or prosecutorial

bad faith or misconduct, [relief is] warranted only if the missing evidence

possesses an exculpatory value that was apparent before the evidence was

destroyed.”). Rocky presents, at most, a conclusory argument that the lost

videotapes might have contained exculpatory material. Furthermore, he takes no

specific posture as to whether the tapes were lost as a result of bad faith by the

police or prosecutors. Under these circumstances, Rocky is not entitled to relief

on this claim

-48-
 M oreover, we are not convinced Rocky can succeed on any of his other

Brady claims. Rocky contends the state failed to disclose a number of O .S.B.I.

reports detailing interviews conduced by the A da Police Department in the course

of investigating the flea market crimes. He argues the information contained in

those reports is exculpatory and material. In particular, he points to O.S.B.I.

interview s w ith Allen, as well as with Cross and Duncan. The OCCA rejected all

of these claims as procedurally barred because they could have been raised on

direct appeal but were not. The district court ultimately rejected the claims on

their merits, essentially concluding that the withheld information was not

material.

W e can avoid deciding procedural bar questions w here claims can readily

be dismissed on the merits. Cannon, 383 F.3d at 1159. Rocky reasserts many of

these issues as part of his claim of ineffective assistance of appellate counsel in

an attempt to clear any procedural bar that may exist by his failure to raise these

claims on appeal. See Murray v. Carrier, 477 U.S. 478, 489-90 (1986) (claim of

ineffective assistance of appellate counsel can serve as cause and prejudice to

overcome procedural bar); Johnson v. Gibson, 169 F.3d 1239, 1251 (10th Cir.

1999) (same). Thus, we must address the merits of these claims in any event.

Rocky claims the information contained in the O.S.B.I. interview notes of

Allen differed significantly from the testimony Allen provided at trial. In

-49-
particular, Allen did not mention in his O.S.B.I. interview that he left the

Stallings yard to go home and wake Rocky, and the interview notes also state

Allen left for work at 7 a.m. At Rocky’s preliminary hearing, Allen testified he

went to wake his brother sometime between 8:30 and 9 a.m., Prelim. Hearing,

April 10, 1989 at 126, and that he also left the Stallings yard to get parts on that

day. Id. at 127. 2 7 At trial, Allen said he awoke and left for w ork around 6 a.m.,

and returned to the apartment around 9 a.m. to w ake his brother. Rocky asserts

that the inconsistencies in Allen’s recollection of events could have served to

impeach Allen’s trial testimony and further the defense’s theory that Allen, rather

than Rocky, was responsible for the flea market crimes.

Impeachment evidence is exculpatory for Brady purposes. Bagley, 473

U.S. at 676. See also Napue v. Illinois, 360 U.S. 264, 269 (1959) (conviction

based on false testimony not corrected by the state violates Fourteenth

Amendment); Alcorta v. Texas, 355 U.S. 28, 31-32 (1957) (conviction based on

testimony known by prosecutor to be false violates a defendant’s right to due

process). Although Allen did not tell the police he returned to the apartment to

wake Rocky, we are not convinced there is a reasonable probability that the result

27
In the affidavit for Rocky’s arrest warrant, dated December 12, 1988,
police detailed Allen’s recollection of events the morning of December 8. In this
account, Allen stated that sometime between 9 and 9:30 a.m., he left work to
return to his apartment to wake Rocky.

-50-
of Rocky’s trial would have been different if the O.S.B.I. interview of Allen had

been disclosed to the defense. Bagley, 473 U.S. at 682; Banks, 54 F.3d at 1519. 2 8

Rocky’s own testimony was that A llen returned to the apartment that morning.

The only relevant inconsistencies that existed on this issue w ere between Rocky’s

proffered timing of events and his assertion that he returned to the Stallings yard

with Allen, and Allen’s claim that he merely went to the apartment to wake

Rocky. The interview notes of Allen were not helpful to Rocky on this point.

Rocky also claims information contained in the O.S.B.I. reports from

interviews with Cross and Duncan was exculpatory and material. Cross was

pregnant with Rocky’s child, and Rocky informed Cross just prior to the flea

market crimes that he was neither able to, nor interested in, supporting her and the

child. He also was currently dating Klift. In the undisclosed O.S.B.I. interview

notes, Cross described Rocky as

a white male about six feet tall, weight about 160 pounds, and he had
blue eyes and blond hair. Rocky had dyed his hair darker, but he had
recently got a spike haircut and that cut most of the color off his hair
in front. His hair was about collar length in the back and it was a
little darker than the front.

28
It is not entirely clear that this information was withheld by the state.
Rocky claims the O.S.B.I. interview with Allen was not disclosed, but he has
presented no evidence verifying this assertion. Indeed, trial counsel submitted an
affidavit in support of Rocky’s state habeas proceeding in which counsel
indicated he did not receive O.S.B.I. reports of Grogins, Duncan, or Cross, but he
did not refer to any other undisclosed O.S.B.I. reports. See Fed. HC, rec., vol.
III, doc. 14, item BB.

-51-
Fed. HC, rec., vol. III, doc. 14, item D. Cross also acknowledged she spoke with

Allen soon after the flea market crimes and complained about how Rocky was

treating her. Allen allegedly told her that the police were investigating Rocky and

that Cross could turn him in. During the O.S.B.I. interview, the police showed

Cross the composite drawing created by Pratt. Cross commented that the drawing

looked like Rocky. However, she noted Rocky had a scar over his left eye, but

that “the scar was not noticeable at a distance.” Id.

Duncan was Cross’s friend and had known Rocky for a couple of months.

She turned Rocky into the police after deciding the composite image looked like

him. In her O.S.B.I. interview, she claimed Rocky used to have long bleached

hair that was almost w hite blond but that “around December 5, 1988, [he] had his

hair cut and changed to its natural color of light brown.” Id. Duncan was not

particularly fond of Rocky because she did not like how he was treating Cross.

She affirmed that she, Cross, and Allen had had a conversation about how Cross

could “get back” at Rocky, during which A llen had suggested they could turn

Rocky in to the police. Id.

Rocky has not pointed to anything in either D uncan’s or Cross’ O.S.B.I.

interview reports that can be deemed exculpatory or material. Duncan’s and

Cross’ statements that Rocky looked like the man in the composite image is more

inculpatory than exculpatory, and the women’s statements regarding Rocky’s hair

-52-
are hardly exculpatory. Duncan’s testimony that Rocky had his hair cut around

December 5 provides only the limited information that after Rocky had his hair

cut, his hair color was a natural light brown rather than the white blond hair he

had worn previously. Cross stated Rocky’s hair was collar length in the back and

a little darker in the front. This description does not significantly depart from

how trial w itnesses Newland, Russell, Scofield, and Jones described Rocky.

Finally, even if Allen did tell Cross and Duncan they could turn Rocky into

the police to “get back at” him for treating Cross poorly, and even if this

information had been disclosed to the defense prior to trial, we are not persuaded

“there is a reasonable probability that . . . the result of the proceeding would have

been different.” Bagley, 473 U.S. at 682. At most, this information might further

Rocky’s argument that there existed animosity between him and his brother that

might have led Allen to implicate Rocky in the flea market crimes. But the jury

heard evidence of strife between the brothers through Rocky’s testimony and that

of Klift and M iller. M oreover, any implication of festering enmity between Allen

and Rocky was undercut by Rocky’s own testimony that he was living with his

brother in Ada and that they went drinking and Christmas shopping and attended a

movie together. The fact that defense counsel was not provided access to

Duncan’s and Cross’ “get back at” comments does not undermine our confidence

in the outcome of Rocky’s trial. Their “get back at” statements do not indicate in

-53-
any way that the other information in their O.S.B.I. reports was untrue. In light

of the above, we are not persuaded Rocky is entitled to relief on his Brady

claims. 2 9

IV

Ineffective Assistance of Trial Counsel

Rocky also contends his trial attorney was ineffective during the

29
On appeal, Rocky requests that his case be remanded to the district court
for an evidentiary hearing if he is not entitled to direct relief on his claims.
Pursuant to 28 U.S.C. § 2254(e)(2), if a petitioner “has failed to develop the
factual basis” of his claim in state court, an evidentiary hearing can only be
provided in federal court if he satisfies one of the two exceptions laid out in the
statute. However, if a petitioner has been diligent and attempted to develop the
factual basis of his claim in state court, “we may proceed to consider whether a
hearing is appropriate, or required under pre-AEDPA standards.” Miller v.
Champion, 161 F.3d 1249, 1253 (10th Cir. 1998).
Rocky was diligent in developing the factual bases of his post-conviction
claims. When seeking such relief from the Oklahoma courts, he requested an
evidentiary hearing, which was denied. He provided the state court numerous
affidavits and other evidence to support his claims. See Cannon v. Mullin, 383
F.3d 1152, 1177 (10th Cir. 2004) (diligence requires requesting an evidentiary
hearing as well as presenting readily available evidence to support claim).
Therefore, Rocky would be entitled to an evidentiary hearing in federal court “so
long as his allegations, if true and not contravened by the existing factual record,
would entitle him to habeas relief.” Miller, 161 F.3d at 1253. In making this
determination, we apply deference pursuant to AEDPA to any determination on
the merits by the OCCA of any of these claims. See Hammon v. Ward, 466 F.3d
919, 928 (10th Cir. 2006). As we discuss throughout the body of our opinion, we
are not persuaded Rocky’s allegations entitle him to habeas relief on either his
Strickland or Brady claims. Therefore, we decline to remand for an evidentiary
hearing.

-54-
guilt/innocence stage of his trial. He bases this claim on counsel’s failure to

challenge the in-court identifications made by Newland and Russell; to request a

continuance after Campbell was added at the last minute as a witness for the state;

to object to the state’s entry of irrelevant evidence; and to investigate and present

additional evidence to raise a reasonable doubt as to his guilt.

Ineffective assistance of counsel claims are examined under the familiar

rubric laid out by the Supreme Court in Strickland. “To establish ineffective

assistance of counsel, a petitioner must prove that counsel’s performance was

constitutionally deficient and that counsel’s deficient performance prejudiced the

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

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

satisfy the deficiency prong, Rocky must show his attorney’s performance “fell

below an objective standard of reasonableness,” Strickland, 466 U.S. at 688, in

that counsel’s performance was not “within the range of competence demanded of

attorneys in criminal cases.” Id. at 687. In making this determination, “the

Supreme Court admonishes us to free our inquiry from ‘the distorting effects of

hindsight’ by indulging in a strong presumption counsel acted reasonably. Thus,

counsel’s performance will not be deemed deficient if it ‘might be considered

sound trial strategy.’” M ayes v. Gibson, 210 F.3d 1284, 1288 (10th Cir. 2000)

(quoting Strickland, 466 U.S. at 689).

-55-
 In addressing Strickland’s prejudice prong, Rocky must show that “but for

counsel’s errors, there is a reasonable probability that the result of the proceeding

would have been different.” Boyd, 179 F.3d at 914 (citing Strickland, 466 U.S. at

694). “The prejudice defendant must demonstrate is by less than a preponderance

of the evidence: ‘a defendant need not show that counsel’s deficient conduct more

likely than not altered the outcome of trial.’” Fisher v. Gibson, 282 F.3d 1283,

1307 (10th Cir. 2002) (quoting Strickland, 466 U.S. at 693). See also Sallahdin v.

Gibson, 275 F.3d 1211, 1235 (10th Cir. 2002) (“To establish prejudice,

[defendant] must show that, but for counsel’s errors, there is a reasonable

probability the result of the proceeding would have been different. A reasonable

probability is a probability sufficient to undermine confidence in the outcome.”).

In these circumstances, “we look at the totality of the evidence, not just the

evidence helpful to” Rocky. Boyd, 179 F.3d at 914.

A. Failure to challenge in-court identifications

Rocky contends his attorney was ineffective for failing to challenge the in-

court identifications provided by Newland and Russell. He asserts that, prior to

trial, counsel should have sought a motion to suppress the identifications, or

should have objected to their introduction at trial and requested the trial court to

issue a cautionary instruction to the jury regarding the use of eye witness

identification evidence. Rocky raised these concerns on direct appeal.

-56-
 W hen a pretrial identification occurs under impermissibly suggestive

circumstances and the in-court identification of the witness is unreliable, the

identification should be excluded. See Grubbs v. Hannigan, 982 F.2d 1483, 1489-

90 (10th Cir. 1993); United States v. Aigbevbolle, 772 F.2d 652, 653 (10th Cir.

1985). However, we are not required to suppress a suggestive or tainted

confrontation in and of itself. “The totality of the circumstances must be

considered to determine whether sufficient independent basis for the

identification leads one to conclude that the identification is reliable.” United

States v. William s, 605 F.2d 495, 498 (10th Cir. 1979). Hence, “reliability is the

linchpin in determining the admissibility of identification testimony.” M anson v.

Brathwaite, 432 U.S. 98, 114 (1977).

In Neil v. Biggers, 409 U.S. 188 (1972), the Supreme Court laid out a series

of factors to consider in determining whether an in-court identification is reliable.

They are:

the opportunity of the witness to view the criminal at the time of the
crime, the w itness’ degree of attention, the accuracy of the witnesses’
prior description of the criminal, the level of certainty demonstrated
by the witness at the confrontation, and the length of time between
the crime and the confrontation.

Id. at 199-200. These factors must be weighed against “the corruptive effect of a

suggestive pre-trial identification procedure to determine whether the

identification testimony should have been suppressed.” Grubbs, 982 F.2d at 1490

-57-
(citing Archuleta v. Kerby, 864 F.2d 709, 711 (10th Cir. 1989); United States v.

Thurston, 771 F.2d 449, 453 (10th Cir. 1985)). In so doing, a court must ask

whether “under all the circumstances of [the] case, there is ‘a very substantial

likelihood of irreparable misidentification.’” M anson, 432 U.S. at 116 (quoting

Simmons v. United States, 390 U.S. 377, 384 (1968)).

Folding this analysis into an ineffective assistance of counsel claim, the

first question is whether trial counsel was deficient here for failing to move for

the suppression of the in-court identifications. If so, the second question is

whether the failure to take such action prejudiced Rocky, i.e., whether “there is a

reasonable probability that, but for counsel’s unprofessional error[], the result of

the proceeding would have been different.” Strickland, 466 U.S. at 694. In this

regard, Rocky must show “he would likely have prevailed on the suppression

motion and that, having prevailed, there is a reasonable likelihood that he would

not have been convicted.” Thom as v. Varner, 428 F.3d 491, 502 (3rd Cir. 2005).

On direct appeal, the OCCA rejected Rocky’s claim that his attorney was

ineffective for failing to suppress or object to the in-court identifications. The

court stated “defense counsel cross-examined the witnesses extensively to weaken

their credibility. The failure to object appears to be trial strategy. As such it

cannot be a grounds for a claim of ineffective assistance of counsel.” Snow, 876

P.2d at 295 (citing Strickland, 466 U.S. at 694). The OCCA also acknowledged

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trial counsel failed to request a cautionary instruction regarding the eye witness

identifications, but held there could be no claim of ineffective assistance of

counsel on this question unless the failure to request such an instruction

represented a “substantial violation of [Rocky’s] rights. Such a violation will be

found if there is a very substantial likelihood of misidentification.” Id. at 295

(citing, in part, M anson, 432 U.S. at 113). In this regard, the court determined

Newland’s and Russell’s identifications of Rocky were reliable.

Certainly the reliability of the in-court identification by both
Newlund [sic] and Russell is w eakened by the fact each failed to
identify the appellant in the police line-up. However, where this fact
was thoroughly brought out by cross-examination, each w itness
testified he identified appellant in court based on his memory from
the time of the crimes, and the jury was properly instructed it was the
sole judge as to the credibility of the witnesses, and the
circumstantial evidence supports the identification as well, we cannot
say there is a very substantial likelihood the witnesses misidentified
the appellant.

Id. at 295.

In addressing Rocky’s identification concerns raised in his federal habeas

petition, the district court held the state court’s decision was not contrary to or an

unreasonable application of Supreme Court law. The court stated:

Trial counsel’s strategy seems obvious from the record . . . .
Specifically, defense counsel spent a great deal of time emphasizing
that the eyewitnesses were unable to pick out the petitioner during a
lineup held within a few days of the crime. In fact, defense counsel
vigorously challenged the validity of both the eyewitnesses’
identifications at trial. . . . The trial transcript leaves no doubt in this
Court’s mind that trial counsel’s strategy was an attempt to get

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 [Rocky] acquitted of this horrendous crime by arguing the
eyew itnesses failure to identify [Rocky] in the lineup, and the failure
to notice the scar on [Rocky’s] forehead, created reasonable doubt as
to [Rocky’s] guilt.

Fed. HC, rec., vol. VII, doc. 38 at 17, 19. M oreover, the district court was not

convinced those identifications would have been suppressed even if trial counsel

had attempted to challenge them. The court determined that despite the

suggestiveness that might have existed in the context of N ew land’s and Russell’s

identifications of Rocky, those identifications were nonetheless reliable. Id. at

20-21. The court therefore held “the Oklahoma Court’s adjudication of this issue

was not contrary to, nor an unreasonable application of the Supreme Court law to

the facts of this case.” Id. at 22. The court similarly determined trial counsel was

not deficient for failing to request a cautionary instruction regarding the eye

witness testimony. Id. It concluded by stating that

even if this court were to second guess counsel’s conduct and find
counsel’s failure to challenge the identifications was unreasonable,
based upon the overwhelming circumstantial evidence against
[Rocky], the extensive cross-examination of defense counsel on the
eyewitness’ discrepancies and the jury instructions as a whole, this
Court does not believe that [Rocky] has established “a reasonable
probability that, absent the errors, the fact finder would have had a
reasonable doubt respecting guilt.” [Strickland,] 466 U.S. at 644.
Accordingly, [Rocky] has failed to establish prejudice and therefore,
is not entitled to any relief.

Id. at 24.

W e agree with the district court. Even if, in our own independent

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judgment, we might be inclined to reach a different result, we are not convinced

that the OCCA’s resolution of Rocky’s claim on this issue was objectively

unreasonable pursuant to § 2254(d). M cLuckie, 337 F.3d at 1202. It is certainly

arguable that trial counsel was deficient for failing to raise some form of

objection to Newland’s and Russell’s identifications. See, e.g., Thom as, 428 F.3d

at 500 (failure to seek suppression of suggestive identification not reasonable trial

strategy); Tom lin v. M yers, 30 F.3d 1235, 1238-39 (9th Cir. 1994) (failure to

object to identification occurring during illegal lineup was unreasonable trial

strategy); Rodriguez v. Young, 906 F.2d 1153, 1160 (7th Cir. 1990) (attorney’s

proffered reasons for failing to move to suppress impermissibly suggestive

identification not sufficient to be deemed reasonable trial strategy). But we are

not persuaded any such objection or motion to suppress would have been

successful. W ithout clearing this first hurdle, see Thomas, 428 F.3d at 502,

Rocky cannot show he suffered prejudice as a result of his attorney’s actions.

As noted by the OCCA on direct appeal, if defense counsel had objected to

the eye witness identifications, the trial court would have conducted a hearing to

determine whether the identifications were reliable. Snow, 867 P.2d at 255. In

such a hearing, counsel would have presumably challenged Newland’s and

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Russell’s identifications of Rocky in much the same way he did at trial. 3 0 There,

counsel challenged Newland and Russell to explain how they had failed to

identify Rocky in the line-up but were nonetheless able to identify him a few

months later during the pre-trial hearing. In so doing, counsel established that

neither w itness remembered the assailant had a scar over his left eye; that Russell

never looked the assailant directly in the face; that the men only observed the

assailant for a short period of time; and that both men saw the article in the Ada

newspaper featuring a photograph of Rocky next to the composite image created

by Pratt.

Nothing, however, indicated that when Newland and Russell observed the

assailant, their view s were obstructed or impeded by poor lighting. Nor was there

indication that they were distracted and looking elsewhere when the assailant

entered the flea market office. Similarly, both men provided descriptions of the

assailant that were relatively consistent with one another and matched other

evidence presented at trial regarding Rocky’s general appearance around the time

of the flea market crimes. Likewise, when Newland and Russell identified Rocky

30
During Rocky’s preliminary hearing, defense counsel rigorously cross-
examined Newland and Russell as to the reliability of their identification of
Rocky, highlighting their failure to identify him in the line-up, their inattention to
his scar, and their viewing of the Ada newspaper articles. See generally, Prelim.
Hearing, April 10, 1989, at 16-64. Despite this testimony, the trial court
determined there was probable cause to believe Rocky committed the crimes
charged against him. Id. at 284.

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at trial, neither man expressed hesitation that Rocky was the man they saw at the

flea market on December 8. Finally, the time between the men’s observation of

the assailant and their subsequent identifications of Rocky was not so attenuated

as to undermine the reliability of their identifications. See Archuleta, 864 F.2d at

712 (listing cases indicating that identifications occurring anywhere from two

days up to a year after the crime were reliable). See also generally Neil, 409 U.S.

at 199-200 (outlining factors to consider when determining reliability of eye

witness identifications). In light of the above, we are not convinced that even if

trial counsel had sought to suppress Newland’s and Russell’s identifications, he

would have been successful in doing so. 3 1 As the Supreme Court declared,

[s]urely, we cannot say that under all the circumstances of this case

31
The OCCA engaged in a similar analysis when considering whether
presentation of the eye witness identifications without a cautionary instruction
represented a substantial violation of Rocky’s rights. It concluded that while
Newland’s and Russell’s identifications of Rocky had been thoroughly
challenged by trial counsel, the identifications were nonetheless reliable. Snow v.
State, 876 P.2d 291, 295 (Okla. Crim. App. 1994).
Rocky asserts counsel was ineffective for not requesting a cautionary jury
instruction regarding identification testimony. We cannot say the absence of
such an instruction prejudiced Rocky. As we have repeatedly discussed,
Newland and Russell were subject to rigorous cross-examination by defense
counsel. Counsel’s adept cross-examination made quite clear that Newland’s and
Russell’s identifications should be approached with a healthy dose of skepticism.
Weighing all the evidence, the jury was nevertheless convinced of Rocky’s guilt.
Rocky has not persuaded us that had the jury received a specific instruction
regarding how they should weigh identification testimony, there is a reasonable
probability the outcome of his trial would have been different. The state court’s
resolution of this issue was not unreasonable.

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 there is “a very substantial likelihood of irreparable
misidentification.” Short of that point, such evidence is for the jury
to weigh. W e are content to rely upon the good sense and judgment
of American juries, for evidence with some element of
untrustworthiness is customary grist for the jury mill. Juries are not
so susceptible that they cannot measure intelligently the weight of
identification testimony that has some questionable feature.

M anson, 432 U.S. at 116 (quoting Simmons, 390 U.S. at 384). Indeed, here the

jury was given the opportunity to consider the w eaknesses inherent in New land’s

and Russell’s identifications of Rocky but nonetheless deemed the two men’s

identifications worthy. On this record, Rocky has not shown his counsel was

ineffective under Strickland for failing to seek suppression of Newland’s and

Russell’s identifications of Rocky.

B. Failure to request a continuance

Rocky also contends his trial attorney was ineffective for failing to request

a continuance after the state endorsed Campbell as a witness just two days before

trial. He argues that a continuance would have enabled counsel to investigate

Campbell’s claims regarding Rocky’s confession. In particular, he asserts the

extra time afforded by a continuance would have provided counsel the opportunity

to learn of the circumstances under which M cNeelus secretly recorded Campbell

discussing Rocky’s confession, to interview Campbell to learn of the alleged

coercive manner by which the police obtained her statement, and potentially to

discover Campbell’s statement was untrue. Rocky raised this claim on his direct

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appeal, and the OCCA ruled against him, stating “[d]efense counsel thoroughly

cross-examined this witness and weakened her credibility considerably. W e find

no error here.” Snow, 876 P.2d at 296.

W e note that in fact the state trial court granted a continuance and pushed

the trial’s start date back by a day when Campbell was endorsed by the state as a

witness. During trial, counsel vigorously cross-examined Campbell, raising

doubts as to the veracity of her testimony. Counsel also called Klift and Scofield,

both of whom provided testimony that undermined Campbell’s version of events.

They testified Rocky was w orking at the Ramada Inn the night he allegedly

confessed to Campbell.

Rocky suggests a further continuance would have enabled trial counsel to

learn Campbell’s statement was untrue. W e are not persuaded. It was not until

1997 that Campbell recanted her testimony. Prior to that date, she affirmed the

accuracy of her trial statements. Specifically, when appellate counsel was

investigating Rocky’s claims for his direct appeal, Campbell maintained that her

testimony at trial was true and that no one threatened her in the course of her

providing information to the police. Nothing indicates that a slightly longer

continuance prior to the commencement of Rocky’s trial would have enabled trial

counsel to learn Campbell’s testimony was allegedly coerced. The O CCA’s

rejection of Rocky’s ineffective assistance of counsel claim on this issue was not

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a contrary or unreasonable application of Supreme Court law. See 28 U.S.C. §

2254(d)(1).

C. Failure to object to irrelevant and inadmissible evidence

At trial, the state presented a number of pieces of evidence to which

defense counsel did not object. These included a plaster cast of a footprint found

at the scene of the crime and photographs of skid marks, a tire track, and tennis

shoes. Rocky claims this evidence was either irrelevant or its probative value was

outweighed by the danger of unfair prejudice or confusion to the jury and should

have been excluded.

The OCCA rejected this claim on the merits. It held that

[t]he boot print was the same size as the appellant’s; the skid marks
and tire tracks could have been made by the Stalling’s truck seen
speeding aw ay from the flea market. The tennis shoes w ere
photographed at the apartment where appellant had been staying and
contradicted his statement to his girlfriend that he wore his tennis
shoes on the day of the murder. W hile none of this evidence is
particularly strong, it does tend to make certain facts more or less
probable than they would have been without the evidence. Thus, the
evidence satisfies the statutory requirement for admission. Counsel
did not err by failing to object to it.

Snow, 876 P.2d at 296 (citation omitted). The federal district court agreed, noting

that “to the extent that the state court found the evidence satisfied the admission

requirements of Oklahoma law , this court finds the failure to object was w ell

within the ambit of reasonable trial strategy and does not constitute ineffective

assistance of trial counsel.” Fed. HC, rec., vol. V II, doc. 38 at 36-37.

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 Rocky has done nothing on appeal but present the conclusory assertion that

the OCCA’s adjudication of this issue was unreasonable. He has not presented

sufficient argument for why counsel’s failure to object to the evidence was

deficient and how such alleged failure prejudiced him. Trial counsel was not

ineffective for failing to object to this evidence.

D. Failure to investigate and present other evidence that would have raised
reasonable doubt as to Rocky’s guilt

Rocky asserts counsel was ineffective for failing to call as additional

witnesses his father, John; his uncle, Ed Snow; 3 2 his sister, Angelia Stanley; his

cousin, Eddie Snow; 3 3 his cousin, Johnny Snow ; Johnny Snow ’s comm on law

wife, Sheila Clark; Larry Scott; Barbara Beasely; Duncan; Tripp; and Grogins. 3 4

32
Ed Snow’s full name is Edward Lawrence Snow. Fed. HC, rec., vol. III,
doc. 14, item Q.
33
Eddie Snow’s full name is Lawrence Edward Snow. Fed. HC, rec., vol.
III, doc. 14, item U.
34
As referenced above, trial counsel stated in an affidavit that he did not
receive the O.S.B.I reports on Duncan and Groggins. See supra note 31; Fed.
HC, rec., vol. III, doc. 14, item BB. In Rocky’s request for state post-conviction
relief, he noted this fact but, for the sake of argument, addressed the relevance
and alleged impact of the evidence potentially obtained from Duncan and
Grogins under both a Brady and Strickland analysis. He did essentially the same
in his request for relief on appeal
The OCCA addressed the Grogins information in the context of Rocky’s
Brady claim and deemed any argument regarding Duncan procedurally barred.
Snow, PC 97-1350 at 4, 9. The federal district court analyzed the Duncan
information solely under a Brady rubric. As for the Grogins O.S.B.I. interview,
the federal district court first noted trial counsel attested he did not receive this
(continued...)

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Rocky asserts the additional testimony provided by these individuals would have

provided reasonable doubt as to his guilt. He also claims counsel was ineffective

for failing to present psychological evidence showing Rocky’s susceptibility to

manipulation by others, particularly his brother.

A few of these claims were raised on direct appeal, but a majority of them

were presented to the Oklahoma courts for the first time in Rocky’s petition for

state post-conviction relief. The OCCA declined to address a majority of the new

claims, deeming them waived under O klahoma’s Post-Conviction Procedure Act.

34
(...continued)
information. Id. at 33. The court then rejected any argument regarding the
Grogins information under both a Strickland and Brady analysis. In so doing, the
court concluded that under Strickland’s prejudice prong and Brady’s materiality
standard, Rocky could not prevail.
These two standards are virtually identical. See United States v. Bagley,
473 U.S. 667, 682 (1985) (“We find the Strickland formulation of the Agurs test
for materiality sufficiently flexible . . . : The evidence is material only if there is
a reasonable probability that, had the evidence been disclosed to the defense, the
result of the proceeding would have been different. A ‘reasonable probability’ is
a probability sufficient to undermine confidence in the outcome.”); Strickland v.
Washington, 446 U.S. 668, 694, 695 (1984) (“[T]he appropriate test for prejudice
finds its roots in the test for materiality of exculpatory information not disclosed
to the defense by the prosecution, and in the test for materiality of testimony
made unavailable to the defense by Government deportation of a witness. The
defendant must show that there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different. A
reasonable probability is a probability sufficient to undermine confidence in the
outcome.” (citing in part, United States v. Agurs, 427 U.S. 97, 104 (1976)).
Because we have already rejected Rocky’s Brady claims regarding the Grogins
and Duncan information, his ineffective assistance of counsel claims have been
effectively decided as well. We therefore decline to address them further.

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See O KLA . S TAT . tit. 22, §§ 1080-1089; supra note 26. The federal district court

agreed with the OCCA’s waiver rulings and determined the newly raised claims

were procedurally barred. Nevertheless, the court, “assuming for purposes of

argument that [Rocky’s new claims] were not procedurally barred,” rejected those

claims on their merits. Fed. HC, rec., vol. V II, doc. 38 at 32.

As with our examination of Rocky’s Brady claims, we need not review the

district court’s procedural bar ruling regarding Rocky’s ineffective assistance of

counsel claims. 3 5 Instead, we “may exercise . . . discretion to bypass . . .

35
We have expressed concern regarding application of Oklahoma’s
procedural bar to ineffective assistance of counsel claims and questioned whether
it can deemed adequate and independent to bar habeas review of claims not raised
on direct appeal. See English v. Cody, 146 F.3d 1257 (10th Cir. 1998); Brecheen
v. Reynolds, 41 F.3d 1343 (10th Cir. 1994). Oklahoma’s procedural bar rules
indicate ineffective assistance of counsel claims must normally be brought on
direct appeal. See supra note 26. There is a provision, however, for remand to
the trial court for an additional hearing on the ineffectiveness claims. See O KLA .
S TAT . tit. 22, ch. 18, App. Rule. 3.11 (record may be supplemented on appeal,
and where necessary, trial court may be directed to conduct an evidentiary
hearing). But Oklahoma rarely, if ever, remands cases for such a hearing.
English, 146 F.3d at 1264. We have therefore held that
the Oklahoma bar will apply in those limited cases meeting the
following two conditions: trial and appellate counsel differ; and the
ineffectiveness claim can be resolved upon the trial record alone. All
other ineffectiveness claims are procedurally barred only if
Oklahoma’s special appellate remand rule for ineffectiveness claims
is adequately and evenhandedly applied.
Id. We have also indicated the state has the initial burden of asserting that a
petitioner has procedurally defaulted his claims under an adequate procedural
bar. Hooks v. Ward, 184 F.3d 1206, 1217 (10th Cir. 1999). Once the state has
done so, “the burden to place that defense in issue shifts to the petitioner. This
(continued...)

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procedural issues and reject a habeas claim on the merits.” Cannon, 383 F.3d at

1159 (citing Romero v. Furlong, 215 F.3d 1107, 1111 (10th Cir. 2000)). See also

Smith, 379 F.3d at 937-38; Allen, 368 F.2d at 1235. Because Rocky reasserts

these claims in his ineffective assistance of appellate counsel argument, we must

35
(...continued)
must be done, at a minimum, by specific allegations by the petitioner as to the
inadequacy of the state procedure.” Id.
In this case, Rocky had a different attorney on direct appeal than at trial.
His appellate counsel, a member of the Appellate Indigent Defender office,
raised several ineffective assistance of counsel claims after requesting and being
granted leave to supplement the trial record. Counsel did not request an
evidentiary hearing on Rocky’s ineffective assistance claims but did have an
investigator assist in preparing Rocky’s appeal.
Rocky argues that Oklahoma’s procedural bar should be deemed
inadequate, thereby permitting review of his additional ineffectiveness claims.
He contends that only a few defendants, himself included, were permitted during
the time period of his direct appeal to supplement the trial record for their
appeals. He also alleges the Appellate Indigent Defender office was understaffed
and, by implication, underfunded, and hence unable to provide the type of
advocacy that should be rendered in state post-conviction proceedings.
Therefore, he argues, Oklahoma’s procedural bar should not apply to his
ineffectiveness claims.
While we harbor continuing concerns regarding Oklahoma’s procedural bar
to claims regarding the ineffectiveness of counsel, we are not convinced by
Rocky’s argument in this specific case. His direct appeal attorney was able to
expand the record, use an investigator, and raise a number of ineffectiveness
claims on appeal based on that expanded record. Nor has Rocky proffered any
evidence by affidavit or otherwise that his appellate counsel was limited or
constrained in representing him. Appellate counsel provided an affidavit on
Rocky’s behalf in his post-conviction proceedings to address other issues, but she
made no reference to staffing or funding cuts undermining her ability to represent
Rocky. Fed. HC, rec., vol. III, doc. 14, item DD. Under the specific
circumstances of this case, therefore, we are not persuaded by Rocky’s procedural
bar argument.

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reach the merits of these issues in any event.

W e acknowledge this portion of Rocky’s appeal has given us pause. In the

final analysis, however, whether under § 2254(d)’s highly deferential standard, or

even under a de novo review, we are unable to conclude counsel’s representation

was so deficient as to cause prejudice even assuming counsel erred as Rocky

alleges.

W e begin with the claims that have caused us the greatest concern, focusing

on the alleged testimony Ed, Johnny, and Clark subsequently claimed they were

willing to give in Rocky’s defense. In an affidavit prepared for Rocky’s direct

appeal, Ed stated:

One night Allen came to my place and talked to me about what
happened in Ada in December 1988. It was after Rocky was arrested
for the stabbings in Ada, but before he went to trial. . . . Allen likes
to brag about what he has done . . . .
Allen told me Rocky did not kill the woman in Ada. He said he
did. He told me every time he stabbed her it sounded like a pig hung
under a gate or like hitting a ripe watermelon. Allen carried a knife
in the headliner of his pickup. That night he went out to his pickup
and got the knife out of the headliner. He brought the knife into the
house and showed me how he stabbed the woman. Allen said all he
wanted was money. The knife was like a steak knife. It did not have
jagged edges.
....
I told Barney W ard about what Allen had told me, but he just
said something like, “w e already got that.” I w ould have testified if
he had let me.

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Fed. HC, rec., vol. III, doc. 14, item Q (emphasis added). 3 6 Johnny and Clark

subsequently signed affidavits for use in post-conviction proceedings stating they

would be willing to testify to similar information. They both claimed that

“[s]om etime after Rocky’s trial, [they] heard Allen say he was the one who

committed the murder in Ada, not Rocky. He said the woman squealed like a pig

every time he stuck her. [They] believed Allen because [they] knew what kind of

person he is.” Id., item S, T (emphasis added). They also both indicated that trial

counsel was aware of the information they were willing to provide, but declined

to call them as witnesses at trial. Johnny’s affidavit specifically states

I was never asked to testify at Rocky’s trial in June of 1989, but I did
tell Rocky’s attorney, Barney W ard, everything I am saying in this
affidavit. He said he already had the information I gave him, and he
did not want to use it because someone might get in trouble.

Id., item S. Clark’s affidavit largely mirrors the language appearing in Johnny’s

affidavit. She stated

I was never asked to testify at Rocky’s trial in June of 1989, but
Rocky’s trial attorney, Barney W ard, was aware of everything I am
saying in this affidavit. He said he already had the information, and
he did not want to use it because someone might get in trouble.

36
During trial, defense counsel asked Allen on cross-examination if he had
ever told his uncle that he stabbed Bush and “she squealed like a pig.” Tr. at
854. Allen denied making any such statements. Id. Counsel did not call Ed to
testify.

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Id., item T. 3 7

Ed’s, Johnny’s, and Clark’s information went to the heart of Rocky’s

defense: that the jury could not find Rocky comm itted the flea market crimes

beyond a reasonable doubt because evidence indicated his brother, Allen, was the

perpetrator instead. To advance this theory, trial counsel relied on Benson’s

testimony. She testified Allen made a number of incriminating statements about

the flea market crimes. According to Benson, Allen claimed to have the knife

used in the flea market crimes; claimed to have knowledge about what it is like to

stab a person; said he threw the knife away at a local dump; and subsequently

threatened Benson when he learned she shared this information with the police.

Of course, much of Benson’s testimony was called into question when she was

cross-examined by the state and further undermined by rebuttal testimony

37
Johnny’s affidavit also asserts that Allen asked Johnny if he would be
willing to drive the Stallings truck from Ada to Hartshorne but that he declined
because he had recently ceased working for Stallings. Fed. HC, rec., vol. III,
doc. 14, item S. Johnny and Clark also claimed they were present at the
Sportsman’s bar a few nights before the Ada crimes and heard Allen offer Rocky
money to drive the Stallings truck from Ada to Hartshorne. In addition, they
asserted Allen attempted to implicate Johnny in the flea market crimes; that they
saw Allen place a grey hooded sweatshirt and a knife into a box and leave it at
his father’s house in McAlester; that Allen claimed the knife was the weapon
Rocky used in the flea market crimes; and that Allen threatened to kill them and
their children if they testified at Rocky’s trial. Id., item S, T.
Curiously, Rocky’s state post-conviction and federal habeas counsel
focused more intently on this information than on Johnny and Clark’s statement
that they heard Allen say he committed the Ada crimes.

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provided by her mother and Officer Hogan. Rocky contends the additional

testimony from Ed, Johnny, and Clark would have created reasonable doubt

regarding his guilt, and counsel was therefore ineffective for failing to present

them as witnesses.

Rocky’s claim regarding his uncle was raised on direct appeal. Rejecting

this claim on the merits, the OCCA stated

[h]ad [this witness] been called, [Rocky] argues, [Ed] could have
corroborated certain defense evidence. Of course [Ed] would also
have been subject to cross-examination. As there is no claim defense
counsel was not aw are of [this] w itness[], the decision not to call
[him] must be considered reasonable trial tactics. Reasonable trial
tactics, even those which ultimately are not successful, are not
grounds for finding trial counsel ineffective.

Snow, 876 P.2d at 296. W e review the court’s decision under § 2254(d)’s

deferential standard.

Rocky’s claims regarding Johnny and Clark were first raised in his petition

for state post-conviction relief and were dismissed by the OCCA as procedurally

barred. 3 8 Because these claims w ere not addressed by the state court on their

38
These two claims have followed a confused procedural path. When the
OCCA addressed Rocky’s state post-conviction claims, it confused Johnny Snow,
Rocky’s cousin, with John Snow, Rocky’s dad. As we will discuss later, Rocky
raised an ineffective assistance of counsel claim on direct appeal regarding his
attorney’s failure to call his father as a witness. The OCCA rejected this claim
on the merits. Snow, 876 P.2d at 296. In denying Rocky relief in his state post-
conviction petition, the OCCA erroneously believed the claims raised regarding
John Snow on direct appeal were the same as the claims regarding Johnny Snow
(continued...)

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merits, we review them de novo. Cannon, 259 F.3d at 1260. The differing

standards of review for Ed, Johnny, and Clark are of no matter, however. W hile

we have severe reservations regarding trial counsel’s failure to call these three

individuals as w itnesses, we nonetheless are not convinced the absence of their

testimony prejudiced Rocky.

Generally, counsel’s failure to call witnesses whose testimony would be

corroborative or cumulative of evidence already presented at trial is not deemed

constitutionally deficient. See Humphreys v. Gibson, 261 F.3d 1016, 1021 (10th

Cir. 2001) (cumulative evidence would not have led jury to reach a different

result in sentencing phase of capital case and thus cannot provide basis for habeas

relief); M edina v. Barnes, 71 F.3d 363, 367 (10th Cir. 1995) (additional evidence

38
(...continued)
raised in the post-conviction petition. The court therefore deemed the claim
barred by res judicata. Snow, PC 97-1350 at 2, 8. The court correctly concluded
that Clark’s information was identical to Johnny’s but then, continuing to believe
Johnny and John were the same person, held Rocky had “not shown sufficient
reason why [his] claim [regarding Clark] was not raised by direct appeal counsel.
This information does not raise additional facts not already part of the record.”
Id. at 9. Rocky’s claim regarding Clark was thus rejected as procedurally barred.
The federal district court perpetuated this confusion by holding the OCCA
did not err in deeming these claims precluded by res judicata and procedural bar.
These courts’ confusion is wholly understandable. As we acknowledged earlier
in this opinion, see supra note 1, there are numerous witnesses and affiants in
this case who are related and share very similar names. Distinguishing these
individuals, let alone distinguishing when Rocky raised his claims regarding their
varying proffered testimony or statements, is a daunting task. Nonetheless, the
claims regarding Johnny and Clark were dismissed as barred on erroneous
grounds.

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was “at most cumulative, and of limited probative value” and, as such, could not

provide basis for habeas relief); United States v. Schaflander, 743 F.2d 714, 719

(9th Cir. 1984) (trial counsel’s failure to call witnesses to provide cumulative

exculpatory evidence did not prejudice defendant). Unlike these cases, however,

here counsel declined to present witnesses whose testimony would support the

innocence of the defendant, i.e., that Allen, rather than Rocky, committed the flea

market crimes. Instead, as we have noted, counsel’s defense theory hinged upon

Benson’s testimony in which she only said Allen implied that he had committed

the crimes and which was significantly undermined at trial. Ed, Johnny, and

Clark could have provided testimony that Allen said he had committed the flea

market crimes. W e are thus hard pressed to understand how counsel’s failure to

call these individuals as trial witnesses in addition to Benson could be construed

as reasonable trial strategy.

Nonetheless, we are not convinced that “but for counsel’s errors, there is a

reasonable probability that the result of the proceeding would have been

different.” Boyd, 179 F.3d at 913 (citing Strickland, 466 U.S. at 694).

Significantly, Ed’s, Johnny’s, and Clark’s testimony could have served only as

impeachment evidence against Allen. In Rocky’s state petition for habeas relief,

he argued that Ed’s, Johnny’s, and Clark’s reports of Allen’s statements would

not constitute inadmissible hearsay because the information would not be offered

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for the truth of the matter asserted but rather to impeach Allen’s testimony. State

PC, Pet. July 24, 155, at 44 n.17. In essence, the testimony of these individuals

would be used to present out-of-court statements allegedly made by Allen that

were inconsistent with his testimony at trial. Oklahoma case law indicates a

witness may be impeached with relevant prior inconsistent statements. However,

only those statements that were previously “given under oath subject to the

penalty of perjury at a deposition, trial, hearing or other proceeding,” O KLA .

S TAT . tit. 12, § 2801(4)(a)(1), can be used as substantive evidence. See Omalza

v. State, 911 P.3d 286, 302 (Okla. Crim. App. 1995). Hence, even if Ed,

Johnny, and Clark did testify, their comments regarding Allen’s statements could

not be used to establish that Allen in fact committed the flea market crimes.

Rather, their testimony could only be used to undermine Allen’s credibility,

which was how Benson’s testimony was used.

In looking at the totality of the evidence and not just the evidence helpful

to Rocky, we are not persuaded the jury would have had a reasonable doubt

regarding Rocky’s guilt even if they had heard this additional testimony. Id. W e

find it impossible to overlook the damning effects of Rocky’s own confused and

wavering testimony. 3 9 Rocky’s testimony, coupled with the identifications

39
No argument was raised at any point during these proceedings that
counsel was ineffective for failing to advise Rocky of the perils of testifying on
(continued...)

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provided by New land, Russell and Holt, and with W ard and Higgenbotham ’s

testimony regarding the timing of events on the morning of December 8, greatly

undermines the defense’s assertion that Allen committed the flea market crimes.

On this record, we cannot conclude that had counsel presented testimony from Ed,

Johnny, and Clark, “there is a reasonable probability that the result of the

proceeding would have been different.” Boyd, 179 F.3d at 913 (citing Strickland,

644 U.S. at 694).

Nor do any of Rocky’s remaining claims provide him grounds for relief.

Rocky contends counsel was ineffective in questioning his sister, Angelia Stanley,

at trial. Stanley could have provided testimony that Allen had a gray hooded

sweatshirt like the one the assailant was seen wearing. 4 0 As detailed in her

affidavit presented on direct appeal, Stanley would have testified “in M arch 1988

. . . [she] gave [A llen] . . . a gray, hooded sweatshirt that zipped up the front. A s

far as [she knew] Rocky did not have a sw eatshirt like that.” Fed. HC, rec., vol.

III, doc. 14, item R. She also claimed to have seen Allen with a gray sweatshirt

during Rocky’s trial. Id. Jones testified at trial that he saw Rocky wearing a gray

39
(...continued)
his own behalf.
40
Rocky raised this claim on direct appeal, see Dir. App., Aplt. Br. at 87,
but the state court did not explicitly address the issue. The district court noted
the OCCA’s failure to mention Rocky’s claim regarding Stanley and then rejected
the claim on the merits. Our review is de novo. Cannon, 259 F.3d at 1260.

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zip-up hooded sweatshirt at the movie theater the night before the crimes, tr. at

968, and Allen and Rocky were living together at the time of the flea market

crimes. Id. at 618. Regardless of who owned the sweatshirt, evidence was

presented to the jury that Rocky was seen wearing the article of clothing prior to

the crimes. Trial counsel’s failure to ask Stanley about the sweatshirt was neither

deficient nor prejudicial.

Rocky also claims counsel was ineffective for failing to call his father,

John, to testify. Rocky asserts his father could have further explained the

circumstances surrounding Allen’s plans for Rocky to drive the Stallings truck

from Ada to Hartshorne, commented on the confrontation at his home between

Allen and Rocky on the day after the flea market crimes, and explained why he

thought Allen was trying to get Rocky into trouble. 4 1 Coupled w ith his father’s

potential testimony, Rocky claims his cousin Eddie could have corroborated that

Allen asked Rocky to drive the Stallings truck from Ada to Hartshorne and that

Rocky was trying to get a job at Stallings. 4 2

41
John Snow’s affidavit indicated he had spoken with defense counsel prior
to trial and that counsel was aware of everything contained therein.
42
In rejecting Rocky’s request for state post-conviction relief, the OCCA
confused Eddie Snow with Eddie’s father, Ed Snow. Rocky had raised an
ineffective assistance of counsel claim regarding testimony his Uncle Ed was
willing to provide. The OCCA erroneously rejected Rocky’s claim regarding
Cousin Eddie as barred by res judicata, thinking it was the same claim Rocky
raised on direct appeal. Our review, therefore, is de novo. Cannon, 259 F.3d at
(continued...)

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 Evidence regarding Rocky’s alleged truck driving for Allen as well as

possible strife between the brothers was established at trial. Both Rocky and Klift

testified that Rocky drove the truck from Ada to Hartshorne at Allen’s behest.

Similarly, Klift and M iller testified to Rocky and Allen’s fight at John’s house.

Finally, Black and W ebb testified that Rocky said he was w orking for, or trying to

get a job with, Stallings driving trucks. Of course, John’s and Eddie’s testimony

might have provided a measure of corroboration to the other testimony proffered

on Rocky’s behalf. However, in light of all the other evidence presented at trial,

we are not persuaded John’s and Eddie’s testimony create a reasonable probability

that the result of Rocky’s proceeding would have been different. Boyd, 179 F.3d

at 913.

42
(...continued)
1260.
Eddie might also have testified that Mike Tripp told him Allen kept a knife
in his truck that Allen said was used to commit the flea market crimes. Fed. HC,
rec., vol. III, doc. 14, item U. As discussed below, we give little weight to
Eddie’s hearsay reporting of Tripp’s statements, which are wholly unverified.
Investigators for Rocky’s state post-conviction petition indicated they
interviewed Tripp. Tripp allegedly saw Allen with the murder weapon and heard
Allen say he committed the crimes at the flea market. However, the investigators
were unable to get Tripp to sign an affidavit attesting to this information. Tripp
also indicated he would refuse to testify at trial. In light of the unverified nature
of Tripp’s statements, we cannot conclude trial counsel was ineffective for
failing to call him as a witness. Even if such action had been unreasonable, “[t]o
affirmatively prove prejudice, [Rocky] . . . must show not only that the testimony
of [an] uncalled witness[] would have been favorable, but also that [the]
witness[] would have testified at trial.” Lawrence v. Armontrout, 900 F.2d 127,
130 (8th Cir. 1990).

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 Rocky also challenges trial counsel’s failure to call Scott and Beasley as

witnesses. Scott owned the Zodiac Bar and stated in an affidavit that he “did not

see Rocky Snow in [his] bar at any time on December 10, 1988.” Fed. HC, rec.,

vol. III, doc. 14, item I. Beasely also worked at the bar and stated she was

working on December 10 but did not remember seeing Rocky. 4 3 Id. Rocky

contends the testimony of Scott and Beasely could have confirmed that he did not

make a confession to Campbell at the Zodiac Bar on December 10. This

information was cumulative, however. Defense counsel presented testimony from

Klift and Scofield indicating Rocky worked at a banquet at the Ramada Inn during

the time period Campbell claimed Rocky confessed to her. These witnesses were

able to definitively state Rocky was in their company on the evening of December

10, while Scott and Beasely were only able to state that they did not remember

seeing Rocky at the Zodiac Bar that day. 4 4 As with the other potential witnesses

43
In addressing this claim, the federal district court confused Barbara
Beasely with Barbara Duncan. See Fed. HC, rec., vol. VII, doc. 38 at 34-35. The
court refers to a Barbara Duncan in discussing whether Rocky was present at the
Zodiac Bar on the evening of December 10, 1988, but the court’s citation to the
record makes clear it is discussing the affidavit provided by Barbara Beasely.
The district court did refer to Barbara Duncan’s information in addressing
Rocky’s Brady claims, which we addressed in section III of this opinion.
44
Mary Luna’s affidavit also undercuts Larry Scott’s affidavit. Luna’s
affidavit was presented by direct appeal counsel in an effort to undermine the
veracity of Campbell’s trial testimony. Luna stated Campbell told her she made
up the story she told to McNeelus and that in her opinion, Campbell “has never
been known to tell the truth [and] is a compulsive liar.” Dir. App., Aplt. Br., ex.
(continued...)

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counsel did not call to testify at trial, we cannot say counsel’s failure to call Scott

and Beasley was so unreasonable or prejudicial to Rocky as to result in

ineffective assistance of counsel.

Finally, Rocky claims counsel was ineffective for failing to present

psychological evidence. He asserts counsel should have presented evidence

indicating that due to mental impairments, Rocky was easily manipulated by

people he trusted. Rocky asserts such evidence would have furthered his defense

that Allen engineered a situation in which Rocky drove the Stallings truck from

Ada to Hartshorne and therefore could be framed for the flea market crimes.

The evidence indicates that in 1979 Rocky underwent a psychiatric

evaluation at Eastern State Hospital in Vinita, Oklahoma, ten years prior to the

flea market crimes, where he was subject to an examination that revealed he had a

verbal IQ of 73, a performance IQ of 96, and a full scale IQ of 83. According to

44
(...continued)
I, doc. 3 at 2. Luna also stated that Scott told her “that on the night Sondra
Campbell [was] supposed to have talked to Rocky about how he committed the
two murders . . . [Scott] . . . positively remembers that when Rocky came into the
bar, he went to another table and did not speak to Sondra at all.” Id., doc. 3 at 1.
Hence, Luna’s remembrance of events contradicts Scott’s account.
It appears that on direct appeal, appellate counsel primarily relied on the
statement in Luna’s affidavit regarding Campbell being a compulsive liar. Aplt.
Dir. App. Br. at 67 n.15. However, one cannot escape that when Rocky filed his
direct appeal, he affirmatively relied on the information from the Luna affidavit
without any qualifications, even though Luna’s hearsay statement regarding Scott
countered Rocky’s own trial testimony that he was not at the Zodiac Bar on the
evening of December 10.

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the evaluation report, these scores placed Rocky “at the top of the ‘borderline

retardation’ range of intellectual functioning.” Fed. HC, rec., vol. III, doc. 14,

item X. The following IQ ranges were used at the time of Rocky’s trial to

denominate varying levels of mental retardation: borderline mental retardation,

71-84; mild mental retardation, 50-70; moderate mental retardation, 35-50; severe

mental retardation, 20-35; profound mental retardation, below 20. See A MER .

P SYCHIATRIC A SS ’ N , D IAGNOSTIC AND S TATISTICAL M ANUAL OF M ENTAL

D ISORDERS 31-32 (3d ed. 1987). 4 5 Even if counsel erred in failing to investigate

Rocky’s psychological history and present evidence of his borderline intellectual

45
Rocky was reexamined by a licensed clinical psychologist in 1995, at
which time he had been in prison for at least five years for the flea market
crimes. The 1995 report indicated Rocky had suffered a number of head injuries
over the course of his life, and the cumulative effect of these injuries could result
in cognitive and emotional deficits greater than the sum of each individual injury.
Fed. HC, rec., vol. III, doc. 14, item W. However, at least two of the head
injuries listed in the report appear to have occurred after Rocky was charged and
convicted of the flea market crimes.
By 1995, Rocky’s IQ scores had dropped in relevant respects. He had a
verbal IQ of 76, a performance IQ of 85, and a full scale IQ of 77. The report
noted Rocky’s “Verbal and Full Scale values are in the borderline mentally
defective range with the non-verbal score in the middle of the low average
range.” Id. (emphasis added). Likewise “[m]easures of higher cognitive
functioning found information processing speed to be borderline impaired for
easy to process information and in the mild/moderately impaired range for more
complex reasoning tasks.” Id. The report concluded that Rocky’s “verbal and
overall abilities [were] in the borderline intellectually impaired range with non-
verbal skills consistently better and in the low average range.” Id. Even with a
full scale IQ of 77, Rocky remained at the high end of the borderline mentally
retarded range six years after the crime.

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functioning at trial, Rocky has not shown that any such error prejudiced him.

Although he did not present psychological evidence, Rocky did present evidence

that Allen manipulated him into driving the Stallings truck to Hartshorne. By his

own testimony, Rocky placed himself at the Stallings yard at the time the flea

market crimes w ere occurring. Even if Rocky was easily manipulated by his

brother, any such manipulation according to Rocky resulted in him being at the

Stallings yard at the time of the crimes. Therefore, evidence regarding Rocky’s

psychological makeup would not have further advanced his own proffered alibi.

Counsel was not ineffective for failing to present this evidence.

V

Ineffective Assistance of Appellate Counsel

In light of the foregoing discussion, we need not devote much comment to

Rocky’s ineffective assistance of appellate counsel claim. Rocky raised this issue

in the event we deemed procedurally barred the claims he failed to raise on direct

appeal and therefore declined to address them on the merits. Obviously we took a

different path and instead determined that none of R ocky’s Brady or ineffective

assistance of trial counsel claims have merit. Having disposed of all of Rocky’s

claims on the merits, there remains nothing for us to review in regard to his

ineffective assistance of appellate counsel argument.

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 VI

In conclusion, Rocky Dale Snow is not entitled to habeas relief pursuant to

28 U.S.C. § 2254(d) for either his Brady or ineffective assistance of counsel

claims. The judgment of the district court is A F FIR M E D .

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